Born v. Thompson
| Decision Date | 19 May 2003 |
| Docket Number | No. 49384-1-I.,49384-1-I. |
| Citation | 117 Wash.App. 57,69 P.3d 343 |
| Court | Washington Court of Appeals |
| Parties | Mark BORN, Appellant, v. Steve THOMPSON, Director of King County Jail, Honorable Mark CHOW, King County District Court, Seattle Division, and State of Washington, Respondents. |
Christine Jackson, Attorney At Law, The Public Defender, Carol Ellerby, Public Defender Assoc., Seattle, WA, for Appellant.
Cristy J. Craig, King County Prosecuting Office, Lisa Lawrence, King County Courthouse, Seattle, WA, for Respondents.
RCW 10.77.090, a provision of the criminally insane procedures act, permits a court to stay a misdemeanor criminal prosecution based on specific statutory criteria. They include, among other things, "a pending charge [against a defendant] of one or more violent acts" and a finding that the defendant is not competent. Based on the fulfillment of the statutory criteria, a court may order the defendant to be placed in the custody of the state Department of Social and Health Services for treatment and restoration of competency. The statutory maximum period of custody is 29 days.1
We must decide in this case the proper burden of proof and who must meet it as a predicate to confinement of the defendant for mental health treatment to restore competency. We must also decide if the trial court properly determined that the pending charge against Mark Born was for a "violent act," as defined in RCW 10.77.090 at the time he was subjected to the procedures challenged here. Finally, we must decide whether the term "violent act" is void for vagueness.
We conclude that the term "violent act" in RCW 10.77.090 is not unconstitutionally void for vagueness. We also hold that the State met its proper burden of proof of preponderance of the evidence to demonstrate that the pending charge against Born was for a "violent act" under RCW 10.77.090. Thus, the superior court properly dismissed Born's application for a writ of habeas corpus. We affirm.
Born was riding a Metro bus that completed its route and was stopped at a layover point. He was seated near the front of the bus near the driver. The driver, who was about to start a new route, stood up and twice asked Born to leave the vehicle. Both times, Born "raised his fist and cocked it back as if to hit" the driver. The first time he told the driver "you will take me where I want to go." The driver feared that Born would hit him. In response to a telephonic request for assistance from the driver, an officer from the sheriff's office arrived on the scene, arrested Born, and later completed a police incident report.
The County charged Born with unlawful bus conduct, a misdemeanor violation of the King County Code. After he was booked into the King County Jail, it appears that a psychologist attempted to examine him pursuant to a court order under RCW 10.77.060.2 On October 11, 2001, a district court judge held a hearing to determine competency and whether the court should issue an order for mental health treatment and restoration of competency under RCW 10.77.090(1)(d)(i). No testimony was presented. The court relied solely on a psychologist's report prepared while Born was in the King County Jail and the police incident report. The court determined that Born was not competent and that he had committed a "violent act," as defined in RCW 10.77.010(21).3 Accordingly, the judge ordered Born to be transported to and confined at Western State Hospital for mental health treatment and restoration of competency.
Thereafter, Born applied to the King County Superior Court for a writ of habeas corpus. At the October 16, 2001 hearing on the application for the writ, the parties stipulated that the only evidence for the superior court to consider was the police incident report describing Born's encounter with the bus driver. The court denied the application for the writ.
Upon Born's return to the district court following his stay at Western State Hospital, the district court determined that he was still not competent. The State moved to dismiss the charge without prejudice, and the court granted the motion, directing that Born be held for 72 hours for evaluation regarding filing a petition under chapter 71.05 RCW, as provided by RCW 10.77.090(1)(d)(iii)(B).
Born appeals the denial of the writ.
The parties dispute whether this case is now moot. Born's commitment for competency restoration has ended, and this court can no longer provide him any effective relief.4 Assuming that this case is moot, we nevertheless address the issues before us because they involve matters of continuing and substantial public interest.
"Our courts have consistently stated that clarifying the statutory scheme governing civil commitment `is a matter of continuing and substantial public interest.'"5 Here, we are faced with such issues regarding the criminally insane procedures act. RCW 10.77.090 is silent on what burden of proof applies and who must meet that burden to confine a person for treatment. Because of these questions, and the constitutional and sufficiency of evidence challenges to "violent act," we decide these issues.6
RCW 10.77.090 does not state either what burden of proof governs the issues at a restoration of competency hearing or who bears that burden. Born argues that the proper burden is proof by clear, cogent, and convincing evidence. The State disagrees, arguing that the proper burden is proof by a preponderance of the evidence. We hold that the State bears the burden of proof by a preponderance of the evidence under RCW 10.77.090.
The Legislature amended RCW 10.77.090 in 1998.7 The final bill report indicates that one of the purposes of the legislation was to change the focus to whether the accused poses a danger to public safety or security rather than whether his or her action constituted a felony offense.8 The same legislation made similar changes to RCW 71.05, the civil commitment statute.9
As to who bears the burden of proof and what the proper burden is, State v. Wilcox10 is instructive. There, Wilcox was charged with first and second degree arson. At trial, both sides stipulated that he was criminally insane when he committed the crimes. Former RCW 10.77.040 required a determination of whether one acquitted by reason of insanity met any of several criteria.11 After a hearing on this question, the trial court ordered that Wilcox be committed to Western State Hospital for treatment as a criminally insane person.
On appeal from that order, Wilcox challenged the statute on due process grounds. He argued that the failure of the statute to specify the burden of proof to commit him violated his constitutional right to due process.
The supreme court disagreed. The court reaffirmed several constitutional principles, first noting that the commitment of a criminally insane person is a deprivation of liberty that is subject to the guarantee of due process.12 Second, the court stated that commitment of the criminally insane must be justified on the basis of a legitimate state interest, and the reason for committing an individual must be established in an appropriate proceeding.13 Third, the court held that the State has the burden of proof of establishing the requirements for confinement.14 Finally, the court held that, although the statute was silent on the burden of proof, the proper burden was proof by a preponderance of the evidence.15
Here, the State properly concedes that it has the burden of proof under RCW 10.77.090. Consistent with the constitutional principles articulated in Wilcox for the criminally insane and the standards applied to civil commitment proceedings, this concession is correct.16 Accordingly, we hold that the State has the burden of proof to establish that a person should be committed for medical treatment and restoration of competency under RCW 10.77.090.
A central point of dispute between the parties is what the proper burden of proof is that the State must meet.17 RCW 10.77.090 is silent on this point. Again, Wilcox is instructive.
There, Wilcox argued that the correct standard was beyond a reasonable doubt or at least clear, cogent, and convincing evidence.18 The supreme court disagreed, holding that under former RCW 10.77.040 proof by a preponderance of the evidence of the statutory elements accords due process to the defendant.19
There are important similarities between the statute before the Wilcox court and that before us now. Both involve commitment, though for quite different periods of time, of a person deemed to be incompetent. These deprivations of liberty are thus subject to the guarantee of due process. Likewise, both types of commitment must be justified on the basis of a legitimate State interest. As the final bill report states, the 1998 amendments to RCW 10.77.090 changed the focus from how serious the charged crime is to whether an accused poses a threat to public safety. The State has a parens patriae interest both in providing treatment to a mentally ill person and in protecting the public from harmful acts by such a person under this statutory framework. In short, there are legitimate State interests here. Finally, the State properly has the burden to prove its case at an appropriate hearing. Given the similarities between the two statutes, we see no persuasive reason to require a higher burden of proof for RCW 10.77.090 than the state supreme court concluded was constitutionally required under former RCW 10.77.040. We are particularly persuaded that this is the appropriate burden of proof given the express statutory safeguards to protect individuals from improper governmental action.20
We draw additional support for our conclusion from the Legislature's setting of the standard of proof in substantially similar situations involving civil commitment. We note that the Legislature made very similar changes to RCW 71.05 when it passed the legislation now before us. RCW 71.05.240...
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Born v. Thompson, 74126-3.
...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 prepo......
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...dismissal on this basis and competency hearings present an issue of “continuing and substantial public interest.” Born v. Thompson, 117 Wash.App. 57, 63–64, 69 P.3d 343 (2003), rev'd on other grounds, 154 Wash.2d 749, 117 P.3d 1098 (2005). 2. We do not, by this opinion, overrule Born. While......
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State v. Garcia
...Hernandez Garcia relies on case law holding that "serious" and "substantial" are indistinguishable. See Born v. Thompson, 117 Wn.App. 57, 69 P.3d 343 (2003), rev'don other grounds, 154 Wn.2d 749, 117 P.3d 1098 (2005). In Born, the issue was whether Mr. Born had committed a "violent act" tha......
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Peekay, Inc. v. City of Lacey, No. 30595-0-II (WA 9/8/2004)
...Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984)); State v. Abd-Rahmaan, 120 Wn. App. 284, 288, 84 P.3d 944 (2004); Born v. Thompson, 117 Wn. App. 57, 63, 69 P.3d 343 (2003), review granted, 150 Wn.2d 1025 (2004). 4. We do not, of course, express any opinion on the merits of Part II. 5. Cf.......
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Table of Cases
...Wn.2d 674, 306 P.2d 228 (1957): 21.15(2)(d) Boris v. Ross, 6 Wn.2d 139, 106 P.2d 1081 (1940): 8.11(1) Born v. Thompson, 117 Wn. App. 57, 69 P.3d 343 (2003), rev'd on other grounds, 154 Wn.2d 749, 117 P.3d 1098 (2005): 13.3 Bostain v. Food Express, Inc., 159 Wn.2d 700, 153 P.3d 846, cert. de......
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§ 13.3 Mootness
...of continuing and substantial public interest" even if the particular dispute is moot. E.g., Born v. Thompson, 117 Wn. App. 57, 63, 69 P.3d 343 (2003), rev'd on other grounds, 154 Wn.2d 749, 117 P.3d 1098 (2005); Eugster v. City of Spokane, 115 Wn. App. 740, 751, 63 P.3d 841 (2003). There a......