Born v. Thompson, 74126-3.

Decision Date04 August 2005
Docket NumberNo. 74126-3.,74126-3.
Citation154 Wn.2d 749,117 P.3d 1098
CourtWashington Supreme Court
PartiesMark BORN, Petitioner, v. Steve THOMPSON, Director of King County Jail; The Honorable Mark Chow, King County District Court, Seattle Division, and State of Washington, Respondents.

Christine Anne Jackson, The Public Defender's Office, Seattle, for Petitioner.

Deanna Jennings Fuller, Cristy J. Craig, King County Prosecutor's Office, Seattle, for Respondents.


¶ 1 Petitioner Mark Born challenges the Court of Appeals' holding that the standard of proof necessary to detain an individual under RCW 10.77.090(1)(d)(i) for restoration of competency to stand trial for certain misdemeanors is by a preponderance of the evidence. We hold that due process requires that proof must be by clear and convincing evidence and that under this standard the State did not prove that Mr. Born was charged with a violent act as required for commitment for competency restoration under RCW 10.77.090(1)(d)(i).


¶ 2 The parties have agreed to the facts contained in a King County Sheriff's Office incident report describing Mr. Born's alleged offense. On May 31, 2001, Born was riding a bus that had completed its route. The driver stood up and asked Born, who was "seated at the front on the passenger side" of the bus, to get off. Clerk's Papers (CP) at 8. Mr. Born raised his fist and cocked it back as if to hit the driver and told the driver that he would take him, Born, where he wanted to go—he was not getting off. The driver twice asked Mr. Born to leave the bus, and twice Mr. Born responded in the same way. The driver was concerned that Born would hit him and "felt that Born might have some mental health issues." Id. The bus driver got off the bus and called for assistance. The Seattle Police Department responded and Mr. Born was arrested and charged with unlawful bus conduct for exhibiting harassing behavior, a misdemeanor under King County Code (KCC) 28.96.010(B)(7).1

¶ 3 At arraignment, the district court inquired into Mr. Born's competence to stand trial, and then ordered an evaluation of Born's competency.2 The court subsequently reviewed the written evaluation and the police incident report and concluded that Mr. Born was incompetent and the pending charge alleged a violent act. Under RCW 10.77.090(1)(d)(i), a court may stay a misdemeanor prosecution and commit the defendant for mental health treatment and competency restoration if he or she is charged with "one or more violent acts" and a court has found the defendant incompetent.3 Accordingly, the court ordered that Born be sent to Western State Hospital for treatment and competency restoration.

¶ 4 Mr. Born immediately filed a habeas corpus petition in superior court, arguing that the State had not proved that the facts contained in the police incident report supported the trial court's determination that he had been charged with a violent act.4 The commitment order was stayed pending the hearing on the petition for the writ. At the hearing, the parties agreed that the superior court could proceed based on the facts stated in the police incident report. The superior court held that under either a preponderance of the evidence standard or a clear and convincing standard the pending charge alleged a violent act as defined by RCW 10.77.010(21). The court denied the application for a writ and lifted the stay. Mr. Born was transferred to Western State Hospital.5

¶ 5 Mr. Born appealed. The Court of Appeals initially noted the parties' dispute about whether the issues raised were moot given that Born's commitment for competency restoration had ended, and concluded that even if the case was moot, review was appropriate because the issues raised involve matters of continuing and substantial public interest. Born v. Thompson, 117 Wash.App. 57, 63, 69 P.3d 343 (2003). The Court of Appeals affirmed the superior court's denial of the writ, holding that the standard of proof is by a preponderance of the evidence and the evidence established that Born was charged with a violent act.


¶ 6 RCW 10.77.090(1)(d)(i) does not contain a standard of proof. Mr. Born argues that to satisfy due process concerns the standard of proof the State must meet under the statute is proof by clear and convincing evidence.6 We agree.

¶ 7 Determining the standard of proof that applies for civil commitment is a due process inquiry that requires a court to balance the interests at stake and consider the risk of an erroneous decision:

In considering what standard should govern in a civil commitment proceeding, we must assess both the extent of the individual's interest in not being involuntarily confined indefinitely and the state's interest in committing the emotionally disturbed under a particular standard of proof. Moreover, we must be mindful that the function of legal process is to minimize the risk of erroneous decisions.

Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (citing Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). As the United States Supreme Court observed, the function of a standard of proof for due process purposes is "to `instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.'" Addington, 441 U.S. at 423, 99 S.Ct. 1804 (quoting In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring)). "In cases involving individual rights, whether criminal or civil, `[t]he standard of proof ... reflects ... the value society places on individual liberty.'" Addington, 441 U.S. at 425, 99 S.Ct. 1804 (quoting Tippett v. Maryland, 436 F.2d 1153, 1166 (4th Cir.1971) (Sobeloff, J., concurring in part, dissenting in part)).

¶ 8 The Court noted that it had used the clear and convincing standard to protect particularly important individual interests in civil cases. Addington, 441 U.S. at 424, 99 S.Ct. 1804. The Court held that a clear and convincing standard of proof applies to indefinite involuntary civil commitment proceedings and rejected the preponderance standard because the individual interests at stake were of such weight and gravity that the state had to justify confinement by a more substantial standard of proof. Id. at 427, 99 S.Ct. 1804.

¶ 9 We have also applied the balancing test of Mathews when determining what standard of proof is required to satisfy procedural due process concerns in involuntary commitment proceedings. See, e.g., In re Det. of LaBelle, 107 Wash.2d 196, 221, 728 P.2d 138 (1986) (the preponderance standard satisfies due process for a 14-day involuntary civil commitment under RCW 71.05.240); Dunner v. McLaughlin, 100 Wash.2d 832, 839, 843, 676 P.2d 444 (1984) (as a matter of due process, RCW 71.05.310's 90-day civil commitment proceeding requires proof by clear, cogent, and convincing evidence).

¶ 10 Turning first to the individual interests at stake, without question a "commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Addington, 441 U.S. at 425, 99 S.Ct. 1804. Under RCW 10.77.090(1)(d)(i), an individual charged with a misdemeanor that is a violent act may be committed for up to 29 days (evaluation and mental health treatment and restoration of competency time combined).7 Further, the individual may be forced to spend time in jail awaiting space at the appropriate institution. See Weiss v. Thompson, 120 Wash.App. 402, 85 P.3d 944, review denied, 152 Wash.2d 1033, 103 P.3d 202 (2004). In addition, committing an individual for mental health treatment may give rise to adverse social consequences due to stigma associated with civil commitment.

¶ 11 As to the governmental interests, at the time the provisions for commitment of misdemeanant defendants were added to RCW 10.77.090 the legislature noted the goals of "[i]ncreasing public safety" and making decisions under chapter 10.77 RCW "based on a person's current conduct and mental condition rather than the classification of the charges." RCW 10.77.2101 (LAWS OF 1998, ch. 297, § 46).8 Another governmental interest at stake is the interest in prosecution of misdemeanors, an interest that is obvious given RCW 10.77.090(1)(d)(i)'s purpose of restoring the misdemeanant defendant to competency to stand trial.

¶ 12 The first of these interests, the interest in public safety, must be considered in light of the fact that even if competency is restored, the potential penalties if the individual is found guilty of a misdemeanor are relatively light. Thus, detention for treatment and restoration of competency under RCW 10.77.090(1)(d)(i) may have little relative effect in providing for public safety. Moreover, where an individual poses a danger to the public as a result of mental illness, the State has the option to seek involuntary commitment under the civil commitment statutes in chapter 71.05 RCW as an alternative course for protecting the public.

¶ 13 As to the interest in prosecuting misdemeanors, the United States Supreme Court recently stated in regard to restoring a defendant to competency through administration of antipsychotic drugs that "[t]he Government's interest in bringing to trial an individual accused of a serious crime is important." Sell v. United States, 539 U.S. 166, 180, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003). Implicit in this statement is the premise that the relative importance of the governmental interest in prosecuting those charged with crimes correlates to the seriousness of the crime. The government simply does not have the same interest in prosecuting misdemeanant defendants as it does in prosecuting defendants charged with felonies.9 For this reason, we do not agree with the State that the preponderance standard strikes the proper balance in the case of those charged with misdemeanors based...

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