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State v. McCuistion (David W.)

                                         No. 81644-1

       STEPHENS, J. (dissenting) -- This case presents a  facial challenge to the 

2005 amendments to the annual review process under Washington's sexually violent 

predator (SVP) statute, chapter 71.09 RCW.  The majority holds that David 

McCuistion  is not entitled to an evidentiary hearing               under RCW 71.09.090

regardless of the constitutionality of the 2005 amendments because he failed to 

establish probable cause to believe his condition had "so changed" that he is no 

longer an SVP.  Though unnecessary to its holding, the majority further opines that 

the 2005 amendments satisfy substantive due process because they do not eliminate 

the State's burden to establish a prima facie case justifying continued commitment.  

Finally, deferring to legislative "findings" concerning what evidence is relevant to 

decide if a committed person remains mentally ill and dangerous, the majority 

concludes the amended statute satisfies procedural due process.

       I dissent because I believe the majority's analysis reasons away the very 

constitutional question we are obligated to answer.  We cannot defer to legislative 

views on judicial facts.  The 2005 amendments impermissibly truncate a court's  

State v. McCuistion (David W.), 81644-1 (Stephens, J. Dissent)

consideration of relevant evidence at a show cause hearing under the SVP statute

and thereby violate substantive due process.           I would hold the amendments are 

facially invalid.  Whether McCuistion can show his condition has so changed to 

require a full evidentiary hearing under the pre-2005 statute is a question that was 

not asked or answered below.  Accordingly, I would reverse and remand for a show 

cause hearing under the prior version of RCW 71.09.090.

                                       DISCUSSION

       The SVP statute provides for the civil commitment of an individual who has 

been convicted of a crime of sexual violence and who suffers from a mental 

abnormality making him likely to reoffend.  The legislature intended the SVP law to 

increase public safety in two ways: by incapacitating dangerous offenders and by 

treating them to eliminate the danger.  RCW 71.09.010; In re Pers. Restraint of 

Young, 122 Wn.2d 1, 10, 857 P.2d 989 (1993).  Since 1990, when the civil 

commitment scheme was first created, we have consistently upheld the legislature's 

approach to the difficult problem of recidivism among  SVPs.  See Young, 122 

Wn.2d at 26 ("[T]here are no substantive constitutional impediments to the sexually 

violent predator scheme.").

       At the same time, we have recognized that because the SVP statute 

contemplates indefinite civil commitment, it presents substantive                 due process 
concerns.1     Id.  at 25-42 (exploring several aspects of due process).  Civil 

       1 The majority separately addresses substantive and procedural due process, but 
this case is not about procedural due process.           The  "procedure" required under a 
constitutionally valid SVP statute reflects substantive limits on the power of the 
legislature to restrict an individual's fundamental rights.  As our opinion in Young makes 

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State v. McCuistion (David W.), 81644-1 (Stephens, J. Dissent)

commitment impairs an individual's fundamental right to liberty and so is 

subject to strict scrutiny.  Id. at 26.  Strict scrutiny requires that any deprivation of 

a fundamental right be narrowly tailored to the State's compelling interests.  Id.  The 

United States     Supreme Court and this court have held that the State has a 

compelling interest in civilly committing only those who are both mentally ill and 

dangerous to themselves or others.  Foucha v. Louisiana, 504 U.S. 71, 75-76, 112 

S. Ct. 1780, 118 L. Ed. 2d 437 (1992); Young, 122 Wn.2d at 27.  At the initial 

commitment proceeding, the SVP statute satisfies strict scrutiny by requiring the 

State to prove beyond a reasonable doubt that the individual suffers from a mental 

disorder and is dangerous.  Young, 122 Wn.2d at 27-33.

       Because commitment for SVPs is indefinite in nature, the due process 

requirement that an SVP be mentally ill and dangerous is ongoing.  Foucha, 504 

U.S. at 77 ("[T]he acquittee may be held as long as he is both mentally ill and 

dangerous, but no longer."); accord O'Connor v. Donaldson, 422 U.S. 563, 574-

76, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975).  This is true because a law allowing 

the detention of individuals who are no longer mentally ill or dangerous would not 

be narrowly tailored to the State's compelling interests.  Id.  

       We have therefore attached constitutional significance to the SVP statute's 

annual review process, whereby the State must show that the SVP continues to meet 

clear, the question is not what procedures are required under a balance of competing 
interests, but rather whether the procedures set forth in the statute are narrowly tailored 
to meet the State's compelling interest in continuing to confine mentally ill and dangerous 
persons.  Young, 122 Wn.2d at 25-42.  This is and always has been a question of 
substantive due process.  Id. at 27; Foucha v. Louisiana, 504 U.S. 71, 80-83, 112 S. Ct. 
1780, 118 L. Ed. 2d 437 (1992).  

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State v. McCuistion (David W.), 81644-1 (Stephens, J. Dissent)

the standard for commitment.  Young, 122 Wn.2d at 39; see also In re Det. of 

Ambers, 160 Wn.2d 543, 553 n.4, 559 n.7, 158 P.3d 1144 (2007) (noting the 

constitutional implications of annual reviews); In re Det. of Elmore, 162 Wn.2d 27, 

36 n.8, 168 P.3d 1285 (2007) (same); In re Det. of Petersen, 145 Wn.2d 789, 795-

96, 42 P.3d 952 (2002) (attaching constitutional significance to the burden of proof 

in  annual reviews).  In Young, we recognized that meaningful annual review is 

central to the SVP statute's constitutionality.  We held that SVP commitment is 

narrowly tailored in part because it is "not subject to any rigid time limit," but rather 

is  "tailored to the nature and duration of the mental illness," and because "the 

Statute's release provisions provide the opportunity for periodic review of the 

committed individual's current mental condition and continuing dangerousness to 

the community." Young, 122 Wn.2d at 39. 

       Each year the State must evaluate committed individuals to determine if they 

continue to meet the definition of an SVP.  RCW 71.09.070.  If the State determines 

that an individual is no longer mentally ill or dangerous, the State authorizes the 

detainee   to petition for release or transfer to a less restrictive alternative 

confinement.  RCW 71.09.090(1).  Importantly, this is not the only way a detained 

person may seek release or transfer; an SVP may also petition the court without the 

State's authorization and obtain a show cause hearing.  RCW 71.09.090(2).  At this 

hearing, the State must present prima facie evidence that the petitioner still meets 

the SVP definition.  RCW 71.09.090(2)(b).  Then, if the committed person produces 

evidence establishing probable cause to believe that he has "so changed" as to no 

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State v. McCuistion (David W.), 81644-1 (Stephens, J. Dissent)

longer meet the definition of an SVP, he is entitled to a full hearing.  RCW 

71.09.090(2)(c)(ii).  He makes this showing by presenting prima facie evidence to 

support the finding that he no longer meets the SVP definition, with the ultimate 

burden remaining on the State.  Petersen, 145 Wn.2d at 796, 798-99; Elmore, 162 

Wn.2d at 36-37.  At the full hearing, which may be a jury trial, the State must prove 

beyond a reasonable doubt that the committed person is mentally ill and dangerous.  

RCW 71.09.090(3).

       In Young, we approved of a prior version of the SVP statute's annual review 

provision, finding that it satisfied substantive due process minimums.  122 Wn.2d at 

39; former RCW 71.09.090 (1992).  In 2005, the legislature amended the provision 

in response to a pair of Court of Appeals cases suggesting that demographic or 

scientific changes, such as a committed person's increase in age or new diagnostic 

procedures, could create a prima facie case that an individual had "so changed" that 
he no longer met the definition of an SVP.2  In re Det. of Young, 120 Wn. App. 753, 

761-62, 86 P.3d 810 (2004) (age); In re Det. of Ward, 125 Wn. App. 381, 383, 104 

P.3d 747 (2005) (diagnostic procedures); see also Ambers, 160 Wn.2d at 549-50 

(describing these cases as the impetus behind the 2005 amendments).                  The 2005 

amendments clarified the legislature's intent that the phrase "so changed" refers 

       2 Demographic changes are relevant because experts in SVP cases predict an 
individual's dangerousness using actuarial tables.  See In re Det. of Thorell, 149 Wn.2d 
724, 758, 72 P.3d 708 (2003) (permitting actuarial evidence).  Some experts opine that 
older offenders are statistically less likely to reoffend.  See In re Det. of Young, 120 Wn. 
App. 753, 760-61, 86 P.3d 810 (2004) (describing such an opinion).           We recognized in 
Elmore that increasing age may support a probable cause finding.  Elmore, 162 Wn.2d at 
38.

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State v. McCuistion (David W.), 81644-1 (Stephens, J. Dissent)

specifically to physiological and treatment-based changes, not changes of 

the types recognized by the Court of Appeals:

              (4)(a) Probable cause exists to believe that a person's condition has 
       "so changed," . . . only when evidence exists, since the person's last 
       commitment trial . . . of a substantial change in the person's physical or 
       mental condition such that the person . . . no longer meets the definition of 
       a sexually violent predator  . . . .
              (b)     A new trial proceeding under subsection (3) of this section 
       may be ordered, or a trial proceeding may be held, only when there is 
       current evidence from a licensed professional of one of the following and 
       the evidence presents a change in condition since the person's last 
       commitment trial proceeding:
              (i)     An identified physiological change to the person, such as 
       paralysis, stroke, or dementia, that renders the committed person unable to 
       commit a sexually violent act and this change is permanent; or
              (ii)    A change in the person's mental condition brought about 
       through positive response to continuing participation in treatment which 
       indicates that the person meets the standard for conditional release to a less 
       restrictive alternative or that the person would be safe to be at large if 
       unconditionally released from commitment.
              (c)     For purposes of this section, a change in a single demographic 
       factor, without more, does not establish probable cause for a new trial 
       proceeding under subsection (3) of this section. As used in this section, a 
       single demographic factor includes, but is not limited to, a change in the 
       chronological age, marital status, or gender of the committed person.

RCW 71.09.090(4); Laws of 2005, ch. 344, §§ 1-2 (expressing the intent behind the 

addition of subsection .090(4) to the statute).  Thus, the 2005 amendments altered 

the standard for the evidence a detainee must present to obtain a full hearing during 

the annual review process and effectively narrowed the universe of facts relevant to 

this standard.

       In Ambers, we heard a constitutional challenge to the amendments based on 

the State's position that the phrase "safe to be at large" in RCW 71.09.090(4)(b)(ii) 

heightened the SVP's burden for obtaining a new trial, so that changes must be 

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State v. McCuistion (David W.), 81644-1 (Stephens, J. Dissent)

treatment based to entitle the SVP to a new trial.  Ambers, 160 Wn.2d at 553, 558.  

In dictum, we opined that because of the State's continuing due process obligation 

to confine only dangerous persons, it "might be unconstitutional" to "require[] a 

more stringent standard at an annual review hearing than is required for initial 

commitment."  Id. at 553 n.4 (citing O'Connor, 422 U.S. at 574-75).  However, we 

did not directly address the issue because we interpreted "safe to be at large" to be 

equivalent to the pre-2005 standard and determined that Ambers' change was in fact 

treatment based.  Id. at 557, 559 n.7.

       In  Elmore, we had to decide whether the 2005 amendments applied 

retroactively, which would have prevented Elmore's new commitment hearing based 

solely on his change in age.  Elmore, 162 Wn.2d at 32-33, 35.  We again avoided 

the  issue of whether the 2005 amendments were constitutionally valid by 

interpreting them not to apply retroactively.   Id. at 36 & n.8; see also In re Det. of 

Smith, 163 Wn.2d 699, 700-01, 184 P.3d 1261 (2008) (reversing per curiam on 

facts indistinguishable from Elmore).

       Both  Ambers and  Elmore foreshadowed the constitutional infirmity of the 

2005 amendments to the extent they might operate to impose greater restrictions on 

the evidence a detainee can present to show he no longer meets the commitment 

standard.  Indeed, we avoided the substantive due process problem only by refusing 

to apply the statute in the way the State advocates here.  See Ambers, 160 Wn.2d at 

558 (instead asking "only whether Ambers sufficiently demonstrated a change in his 

condition such that he no longer meets the definition of an SVP"); accord Elmore, 

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State v. McCuistion (David W.), 81644-1 (Stephens, J. Dissent)

162 Wn.2d at 38-39.  When applied to limit relevant evidence of change, the 2005 

amendments undermine meaningful annual review of SVP status in precisely the 

way that gave us concern in Ambers and Elmore.

       The majority refuses to grapple with our precedent, preferring to rely on 

inapplicable standards for reviewing evidence posttrial or for  applying collateral 

estoppel.  Majority at 13 (citing Burke v. Pepsi-Cola Bottling Co. of Yakima, 64 

Wn.2d 244, 246, 391 P.2d 194 (1964); City of Aberdeen v. Regan, 170 Wn.2d 103, 

108, 239 P.3d 1102 (2010)).  The majority mentions Elmore only in a footnote and 

does not even acknowledge Ambers.  Reading the majority, one would suppose our 

decision in Young found no constitutional significance in the details of the annual 

review process, so long as there was one.  See id. at 14-15.  Moreover, it would 

appear that the serious concern we expressed about the 2005 amendments in 

Ambers and Elmore was only so much hand wringing because it is enough that the 

State's evaluators may recommend release or transfer annually.  See id. at 16-18. In 

short, by refusing to acknowledge the effect of the 2005 amendments on meaningful 
annual review, the majority reasons away any constitutional issue.3

       3 The majority apparently finds substantive due process satisfied by the statutory 
requirement that the State present a prima facie case for continued confinement.  Majority 
at 17-18.  It notes that a person who no longer meets the definition of an SVP would be 
subject to release even under RCW 71.09.090(4)'s restrictive standard.  The problem
remains that the 2005 amendments artificially restrict the evidence allowed to rebut the 
State's case.  Under the majority's analysis, there would be no substantive due process 
concern even if the statute provided that the only evidence the SVP could offer was an 
opinion from the State's evaluators.  But the statute authorizes a show cause hearing upon 
the SVP's own petition, regardless of whether the State believes the person has ceased to 
be an SVP.  See  RCW 71.09.090(2)(a) (providing for the right to petition the court 
without the secretary's approval).  Moreover, at the show cause hearing, it is not the 
SVP's burden to convince the State's evaluators (or the court) that he is no longer subject 

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State v. McCuistion (David W.), 81644-1 (Stephens, J. Dissent)

       Contrasting the initial commitment proceeding with the annual review 

proceeding reveals how the 2005 amendments have unconstitutionally eroded the 

substantive due process protections for civil commitment.  At the initial commitment 

proceeding, the State must prove beyond a reasonable doubt that the person to be 

committed is an SVP, RCW 71.09.060(1).  Specifically, the State must prove that 

the person, inter alia, suffers from a mental abnormality or personality disorder and 

is likely to engage in predatory acts of sexual violence if not confined in a secure 

facility.  RCW 71.09.020(18).  If the alleged SVP can show that there is reasonable 

doubt as to one of these criteria, the State fails to meet its burden and the person 

may not be involuntarily committed.  RCW 71.09.060(1).

       At the annual review, the State must make a prima facie showing that the 

committed individual still meets the definition of an SVP, which includes a showing 

that he is still dangerous.  The pre-2005 statute allowed the SVP to counter this 

showing on any number of grounds relevant to the determination of SVP status.  If 

the committed individual produced prima facie evidence showing, for any reason, 

that he was not an SVP, he was entitled to a jury trial at which the State would have 

to prove his continued SVP status beyond a reasonable doubt.  Former RCW 

71.09.090 (2001).  (One such reason might have been that the committed individual 

no longer had a high risk of recidivism.)  But under the 2005 amendments to RCW 

to commitment.  RCW 71.09.090(2)(c) (requiring only probable cause at the show cause 
hearing).  Indeed, the court does not weigh the evidence at the show cause hearing. 
Elmore, 162 Wn.2d at 37; Petersen, 145 Wn.2d at 803.  Rather, if the SVP makes a prima 
facie showing that he no longer meets the definition of an SVP, he is entitled to a full trial 
by a jury.  RCW 71.09.090(3)(a).  The majority's view disregards the importance of the 
detainee's opportunity to make a showing so long as the State makes one.

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State v. McCuistion (David W.), 81644-1 (Stephens, J. Dissent)

71.09.090, the SVP may counter the State's showing on only two grounds: a 

permanent physiological change or a treatment-based mental change.  Once the 

State offers prima facie evidence that the individual is still an SVP, the court has no 

authority to order a full hearing absent evidence supporting one of these grounds.  

See RCW 71.09.090(4)(b).  Furthermore, the SVP may not obtain a full hearing by 

showing a change in a single demographic factor, even if this change would alter the 

outcome of an SVP determination under the multifactor analysis that previously 
justified SVP commitment.4 RCW 71.09.090(4)(c).

       The flaw in the 2005 amendments is that they separate the annual review 

inquiry from the ultimate constitutional standard under Foucha, 504 U.S. at 77.  The 

SVP statute upheld in Young was narrowly tailored to allow the detention only of 

currently mentally ill and dangerous individuals.  122 Wn.2d at 39.  By altering the 

annual review standard, the 2005 amendments authorize                   the State to detain 

individuals who are no longer mentally ill and dangerous.  There is a multitude of 

ways in which a person might potentially cease to meet the definition of an SVP 

       4 Predictions of future dangerousness often rely on multifactor actuarial analyses.  
Thorell, 149 Wn.2d at 753.  Statistical importance attaches to each factor; that is why 
each one appears in the actuarial model.  See id.  Thus, a change in a single factor may
lower the risk prediction so that it no longer suggests that the individual is an SVP.
       The system set up by the legislature in the 2005 amendments allows the State to 
prove an individual's dangerousness using actuarial tables at the initial SVP commitment 
hearing.  But at an annual review, when the same type of table predicts that the offender 
is no longer dangerous (e.g., because of his increase in age, change in marital status, or 
other demographic factor), the prediction is excluded as "irrelevant." The only "relevant"
predictors allowed are physiological or treatment-based changes.  As discussed above, 
however, evidence that the offender is no longer currently dangerous -- evidence that the 
legislature approves of as credible and scientific when it is used by the State to commit 
SVPs initially -- is necessarily relevant to whether the State may continue to detain 
someone.  See Foucha, 504 U.S. at 77.

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State v. McCuistion (David W.), 81644-1 (Stephens, J. Dissent)

and, thus, cease to be detainable under the due process standard.  Yet, only two of 

those ways are cognizable under the 2005 amendments to the annual review 

provisions.  By artificially limiting the type of information that is relevant to 

continued SVP commitment, the 2005 amendments allow the detention of someone 

who is no longer mentally ill or dangerous and therefore disrupt the narrow tailoring 

present in the preamendment SVP law. 

       The majority defers to the legislature's determination that SVPs' conditions 

are such that they do not abate without treatment or due to advancing age alone.  

Majority at 19-24.        The legislature is certainly entitled to make reasonable 

generalizations from the available data.  However, given the constitutionally 

protected interests at issue, the SVP statute must survive strict scrutiny.  Young, 122 

Wn.2d at 26-27.  Applying this test, we do not defer to legislative pronouncements 

as we would under rational-basis review.  It is simply not true under the SVP 

scheme  that the only factors relevant to a person's current mental illness or 

dangerousness are permanent physiological changes or treatment-based 

psychological changes.  The legislature has adopted a scheme that makes other 

evidence relevant; it cannot by legislative fiat declare that same evidence irrelevant

at an annual review.  Nor can it justify detaining individuals who are no longer 

dangerous because of its (admittedly) compelling interest in treating SVPs.  See 

Foucha, 504 U.S. at 77 (holding that the State's compelling interest in detaining and 

treating the mentally ill is insufficient to permit the detention of mentally ill, but 

nondangerous, individuals).

                                              -11- 

State v. McCuistion (David W.), 81644-1 (Stephens, J. Dissent)

       The majority credits the State's argument that due process can be satisfied 

through a committed person's other avenues for relief, such as a personal restraint 

petition (PRP).  This argument proves too much.  If the 2005 amendments can be 

saved because an unconstitutionally detained person may file a PRP seeking relief, 

then any annual review provision, no matter how alienated from the requirements of 

substantive due process, would be beyond scrutiny.  After all, an individual can 

always file a PRP to seek to prove his restraint is unlawful.  See RAP 16.4.  The

inquiry must focus on the annual review procedure itself.  Due process requires that 

this procedure be narrowly tailored to meet the State's interests, which means 

confining only those individuals who continue to be both mentally ill and dangerous.  

Because the SVP law, as amended, is not narrowly                    tailored to the State's 

compelling interests, I would strike down the 2005 amendments as violative of 

substantive due process protections.

       Because of the amendments' severability clause, Laws of 2005, ch. 344, § 3, 

we should remand for the lower court to consider McCuistion's petition under the 

pre-2005 show cause standard --  -- that is, RCW 71.09.090 without subsection 

.090(4).  The relevant provision, RCW 71.09.090(2)(c),  reads:

       If the court at the show cause hearing determines that either: (i) The state 
       has failed to present prima facie evidence that the committed person 
       continues to meet the definition of a sexually violent predator . . . or (ii) 
       probable cause exists to believe that the person's condition has so changed 
       that: (A) The person no longer meets the definition of a sexually violent 
       predator . . . then the court shall set a hearing on either or both issues.

Without subsection .090(4)'s elaboration upon the phrase "so changed,"                      this 

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State v. McCuistion (David W.), 81644-1 (Stephens, J. Dissent)

provision allows for the full range of relevant evidence to prove that a committed 

person no longer meets the definition of an SVP. The evidence need not pertain to a 
permanent physiological or treatment-based change.5

       Ironically, the actual holding in the majority opinion is that Mr. McCuistion 

failed to demonstrate probable cause under the pre-2005 version of RCW 

71.09.090.  See majority at 2, 28 ("We hold that Mr. McCuistion had neither a 

statutory nor constitutional right to an evidentiary hearing because he did not present 

prima facie evidence that his condition had changed such that he no longer met the 

criteria for confinement."); id. at 9 (noting that even if the 2005 amendments are set 

aside,  "we  would still conclude that the trial court correctly denied [Mr. 

McCuistion's] request for an evidentiary hearing").            However, whether probable 

cause exists under the prior statute is a question for the trial court, applying the 
proper standards.  We should leave the show cause hearing to the trial court.6

       5 Of course, the evidence must be otherwise admissible.  The concern that a single 
doctor, without ever examining the SVP in question, can offer an opinion supporting 
release is overblown.  Expert opinions remain subject to challenge for admissibility under 
the rules of evidence and Frye.     See generally ER 702-03 (regulating opinion testimony 
by experts); Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923) (barring new 
scientific evidence unless it is generally accepted in the field).  Furthermore, the most the 
doctor's testimony can do in this situation is convince a judge to allow a jury to decide 
whether the committed individual remains an SVP.
       6 Not only does the majority assume the trial court's role by conducting a show 
cause hearing, it improperly weighs the evidence.  For example, the majority dismisses 
Dr. Coleman's declaration as "nothing more than a collateral attack on the original 
finding that Mr. McCuistion was a sexually violent predator," majority at 11, despite the 
fact that the declaration relies on facts postdating the commitment trial.  See Clerk's 
Papers at 616-24 (Declaration of Lee Coleman, MD).  We were not so dismissive of a
similar declaration in Elmore, observing "[t]he fact that Dr. Wollert previously opined 
that Elmore was not sexually sadistic is inapposite."        162 Wn.2d at 38.  Despite the 
majority's protestations to the contrary, characterizing a declaration as "nothing more"
than one of its conclusions does involve weighing of the evidence.  My criticism of the 
majority should not be read to suggest I would find probable cause requiring a full 

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State v. McCuistion (David W.), 81644-1 (Stephens, J. Dissent)

       I would hold that the 2005 amendments to RCW 71.09.090 violate 

substantive due process and are invalid.  Rather than applying the prior version of 

the statute for the first time on appeal, I would reverse and remand for a new show 

cause hearing under the pre-2005 standard. Accordingly, I respectfully dissent.

evidentiary hearing.  That is the issue for the trial judge.

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State v. McCuistion (David W.), 81644-1 (Stephens, J. Dissent)

AUTHOR:

       Justice Debra L. Stephens

WE CONCUR:

       Justice Tom Chambers

       Gerry L. Alexander, Justice Pro Tem.

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