Detention of Petersen v. State, 70360-4.

• Court: United States State Supreme Court of Washington
• Writing for the Court: SANDERS, J.
• Citation: 145 Wash.2d 789,42 P.3d 952
• Parties: In re the DETENTION of Ronald L. PETERSEN, Petitioner, v. STATE of Washington, Respondent. In re the Detention of Bernard Thorell, Petitioner, v. State of Washington, Respondent.
• Docket Number: No. 70360-4.,70360-4.
• Decision Date: 21 March 2002

42 P.3d 952

145 Wash.2d 789

In re the DETENTION of Ronald L. PETERSEN, Petitioner, v. STATE of Washington, Respondent.

In re the Detention of Bernard Thorell, Petitioner, v. State of Washington, Respondent.

No. 70360-4.

Supreme Court of Washington, En Banc.

Argued March 29, 2001.

Decided March 21, 2002.

Suzanne Elliott, Robert W. Goldsmith, Seattle, Christine Anne Jackson, Dennis Paul Carroll, Seattle, for Petitioners.

Norm Maleng, King County Prosecutor, David J.W. Hackett, Deputy, Seattle, for Respondent.

SANDERS, J.

These consolidated cases concern the procedures in probable cause hearings held pursuant to former RCW 71.09.090(2) (1995),¹ hearings that may take place as part of the annual review of prisoners detained under the sexually violent predator statute. Division One of the Court of Appeals certified the cases to this Court pursuant to RCW 2.06.030(d) and RAP 4.4 to harmonize our majority opinions in In re Detention of Petersen, 138 Wash.2d 70, 980 P.2d 1204 (1999) and In re Detention of Turay, 139 Wash.2d 379, 986 P.2d 790 (1999). We accepted certification on November 7, 2000.

For the reasons detailed infra, we reverse and remand both cases. Specifically, we remand Petersen's case for a new probable cause hearing after providing the opportunity for discovery. We remand Thorell's case for an evidentiary hearing.

I. Factual and Procedural Background

A. Ronald L. Petersen

After release from prison, the State committed Ronald L. Petersen as a sexually violent predator pursuant to chapter 71.09 RCW (1995). He has been incarcerated at the Special Commitment Center (SCC) since 1995.

As required by RCW 71.09.070, Petersen had an annual review in 1999.² SCC psychologist Dr. Vincent Gollogly provided an annual report asserting Petersen continued to satisfy the definition of a sexually violent predator. Petersen noted the deposition of Dr. Gollogly for July 2, 1999. The State then moved for a protective order arguing such a deposition "serves no useful purpose and disrupts an important state interest." Clerk's Papers (CP) at 51-54. After finding Petersen failed to show good cause as a prerequisite to a deposition, the trial court granted the State's motion, issued a protective order, and quashed the notice of deposition.

On July 30, 1999, the trial court dismissed Petersen's petition for an evidentiary hearing, concluding there was no probable cause. Petersen appealed to Division One of the Court of Appeals, which certified the case to this Court.

B. Bernard Thorell

Bernard Thorell has been detained as a sexually violent predator at the SCC since 1998. Beginning in January 1999 Thorell underwent corneal transplant surgery and quadruple bypass surgery with complications, resulting in a delay of the annual review process.

On March 5, 1999, Thorell declined to waive his rights to petition for unconditional discharge or conditional release to a less restrictive alternative and requested a hearing and appointment of counsel. A probable cause hearing was set for April 30, 1999.

Thorell's 1999 annual evaluation concluded in a report by SCC psychologist Dr. Daniel Yanisch that "Thorell suffers from a mental abnormality that renders him more likely than not to commit predatory sexual offenses if he were released to the community." CP at 258. Dr. Yanisch also recommended he not be considered for a less restrictive placement.

The primary declarant in support of Thorell was Dr. Thomas Gratzer. He opined Thorell's risk to reoffend was reduced by the substitution of the drug Depo-Lupron for the drug Luvox into Thorell's treatment regime. Dr. Gratzer took the same position in his declaration as he did at the original commitment hearing regarding Thorell's use of the drug Luvox. In addition, Dr. Gratzer had Thorell tested by polygraph and plethysmograph. As there was no evidence of arousal in the plethysmograph examination, he determined it was inconclusive. The physiological responses in the polygraph examination indicated Thorell had answered truthfully to questions about sexual arousal and whether or not he had manipulated the plethysmograph evaluation. After the State's reply, Thorell submitted a new declaration from Dr. Gratzer that stated Thorell was unlikely to reoffend if conditionally released to a less restrictive alternative.

In its June 9, 1999 order, the trial court expressed "[t]he burden is on [Thorell] at the Show Cause hearing to produce evidence sufficient to support the finding." CP at 351. Based on the State's annual evaluation and Thorell's contrary evidence, the trial court concluded Thorell "has not met his burden of establishing probable cause to believe that he is not likely to engage in predatory acts of sexual violence if conditionally released to a less restrictive alternative." CP at 354. Thorell's motion for a hearing on the issue of conditional release to a less restrictive alternative was denied.

The court agreed to reconsider the June 9, 1999 decision because the trial court overlooked Dr. Gratzer's April 28, 1999 declaration on behalf of Thorell. On December 20, 1999, the court denied the petition for reconsideration. In its order it did not restate that the burden to establish probable cause rested on Thorell. Instead, it concluded "the state has established the absence of probable cause to believe that Mr. Thorell is safe to be conditionally released." CP at 348.

Thorell filed a timely notice and motion for discretionary review, which resulted in this certified consolidated case.

II. Issues

The main issues before this Court include:

(1) Who bears the burden of proof at a show cause hearing pursuant to former RCW 71.09.090(2)?

(2) What is the proper standard of proof to be applied?

(3) Do prisoners have the right to depose the State's expert witness to prepare for such hearings?

III. Analysis

A. Burden of Proof

Both this Court's opinions and those of the United States Supreme Court heavily favor placing the burden of proof on the State in former RCW 71.09.090(2) show cause hearings. For example, in Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), the United States Supreme Court reviewed a Louisiana civil commitment statute similar to our statute. Foucha held the State bears the burden of proof in civil commitment proceedings. Foucha, 504 U.S. at 86, 112 S.Ct. 1780. Our Court previously held the State bears the burden of proving that a person be civilly committed under our sexually violent predator statute. See In re Pers. Restraint of Young, 122 Wash.2d 1, 37, 857 P.2d 989 (1993)

.

However, it is now suggested we have issued two contradictory opinions on point: Petersen, 138 Wash.2d 70, 980 P.2d 1204 and Turay, 139 Wash.2d 379, 986 P.2d 790. However, in Petersen, there was no challenge to the constitutional burden of proof at a show cause hearing. Rather Petersen only challenged the validity of the State's evaluation on grounds of his right to counsel and right to a personal interview. Petersen, 138 Wash.2d at 91-95, 980 P.2d 1204. Petersen did not argue the trial court erred by impermissibly placing the burden of proof on him at the show cause hearing. Therefore, although Petersen contains language suggesting the burden rests on the prisoner, see 138 Wash.2d at 90, 980 P.2d 1204, that issue was not then before us.

Turay asked, for the first time, who bears the burden of proof at a former RCW 71.09.090(2) show cause hearing, and the Court clearly answered that the bearer of this burden is the State, not the prisoner.³ The Court first recognized the precedent set by Foucha and Young, see Turay, 139 Wash.2d at 423, 986 P.2d 790, and then unambiguously held:

[B]oth this court and the United States Supreme Court agree that the State must bear the burden of proof in involuntary civil commitment hearings, and, therefore, the trial court was correct in determining that due process requires that the burden of proof remain upon the State in the show cause hearing. We, therefore, reject the State's contention that it does not have to bear the burden of proof in show cause hearings held pursuant to RCW 71.09.090.

Id. at 424, 986 P.2d 790 (emphasis added). The Court likewise concluded "the State must bear the burden of proof in show cause hearings held pursuant to RCW 71.09.090(2)." Turay, 139 Wash.2d at 424, 986 P.2d 790. Unlike Petersen, Turay firmly and explicitly holds the burden of proof rests on the State. And that is also our holding today.

B. Standard of Proof

1. The Probable Cause Standard

Former RCW 71.09.090(2) provides in relevant part:

[t]he court shall set a show cause hearing to determine whether facts exist that warrant a hearing.... If the court at the show cause hearing determines that probable cause exists to believe that the person's mental abnormality or personality disorder has so changed that the person is not likely to engage in predatory acts of sexual violence if conditionally released to a less restrictive alternative or unconditionally discharged, then the court shall set a hearing on the issue.

(Emphasis added.)

Under this statute the inquiry is whether "facts exist" which warrant a hearing on the merits. The standard of proof is "probable cause."

The probable cause standard is familiar to judges as it is used frequently in the Fourth Amendment context. One of the most common examples is the determination of probable cause to issue a search warrant. There the burden is on the State to recite objective facts and circumstances which, if believed, would lead a neutral and detached person to conclude that more probably than not, evidence of a crime will be found if a search takes place. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964)

; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Another common Fourth Amendment example is the determination of probable cause on a warrantless arrest. One way to determine whether a warrantless arrest is "reasonable" is...