Fox v. Dept. of Social & Health Services, 34145-0-II.

• Decision Date: 01 May 2007
• Docket Number: No. 35221-4-II.,No. 34145-0-II.,No. 33596-4-II.,34145-0-II.,33596-4-II.,35221-4-II.
• Citation: 158 P.3d 69,138 Wn. App. 374
• Parties: In re DETENTION OF Harry Vern FOX, Appellant, v. STATE of Washington, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent. In re Detention of Robert M. Jones aka Robert Benjamin, Appellant, v. State of Washington, Department of Social and Health Services, Respondent. In re the Detention of Anthony Jacka, Appellant, v. State of Washington, Department of Social and Health Services, Respondent.
• Court: Washington Court of Appeals

158 P.3d 69

138 Wn. App. 374

In re DETENTION OF Harry Vern FOX, Appellant, v. STATE of Washington, DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent.

In re Detention of Robert M. Jones aka Robert Benjamin, Appellant, v. State of Washington, Department of Social and Health Services, Respondent.

In re the Detention of Anthony Jacka, Appellant, v. State of Washington, Department of Social and Health Services, Respondent.

No. 34145-0-II.

No. 33596-4-II.

No. 35221-4-II.

Court of Appeals of Washington, Division 2.

May 1, 2007.

Sheri Lynn Arnold, Attorney at Law, Tacoma, WA, for Appellant.

Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle, WA, Darrel S. Ammons Jr., Attorney at Law PLLC, Longview, WA, for Petitioner.

Malcolm Ross, Attorney General of Washington, Todd Richard Bowers, Attorney General, Seattle, WA, Ray Waldo Hinea III, Attorney at Law, Vancouver, WA, for Respondent.

HUNT, J.

¶ 1 Harry Fox, Robert Jones, and Anthony Jacka ("SVPs") are ch. 71.09 RCW sexually violent predators (SVP). Fox appeals the trial court's summary judgment dismissal of a full evidentiary hearing/SVP recommitment trial it had previously ordered.¹ We granted Jones' request for discretionary review of a trial court order denying his request for a new commitment trial. We granted Jacka's similar request for discretionary review of a trial court order (1) ruling amended RCW 71.09.090 constitutional, and (2) denying his request for a full evidentiary hearing/SVP recommitment trial. We have consolidated these cases on appeal.

¶ 2 Fox, Jones, and Jacka argue that their respective superior courts should have granted their requests for full fact-finding recommitment hearings under chapter 71.09 RCW to consider their present dangerousness and readiness for release because (1) their conditions had changed since their original SVP commitments; (2) compared with other methods previously used to determine dangerousness, their expert actuarial data demonstrated lower risk for them to re-offend; and (3) legislative amendments to the SVP Act, denying a new evidentiary hearing when a petitioner alleges a change in only a single demographic factor, violate the separation of powers doctrine and petitioners' rights to due process and the equal protection of the law. In addition, (1) Fox argues that the trial court improperly applied the RCW 71.09.090 amendment retroactively to him, and (2) Jacka argues that he merits a full evidentiary hearing regardless of the amendment's constitutionality.

¶ 3 Holding that the SVP Act amendments to RCW 71.09.090 are constitutional as enacted and as applied to the three SVPs here, we affirm the trial courts' denial of Jones' and Fox's requests for full evidentiary recommitment hearings. We reverse the trial court's denial of Jacka's request and remand for a full evidentiary hearing.

FACTS

¶ 4 Fox, Jones, and Jacka were originally committed as sexually violent predators (SVPs) under ch. 71.09 RCW. All three requested full evidentiary hearings to reevaluate their continued commitment. Effective May 2005, our Legislature amended RCW 71.09.090, the statute governing annual review hearings for SVPs. This new legislation allowed a new SVP trial in certain circumstances and disallowed a hearing where an SVP alleges a change in only a single demographic factor. None of the three SVPs here had full evidentiary SVP recommitment hearings before the May 2005 effective date of these SVP Act amendments. Following this amendment, the trial courts for these three SVPs denied their requests for evidentiary hearings. Thus, Fox, Jones, and Jacka remained committed as SVPs.

I. Fox

¶ 5 In 1999, a jury convicted 56-year-old Harry Fox of communicating with a minor for immoral purposes. By his own admission, Fox is a pedophile with a history of 30 victims.² In 2002, he stipulated to civil commitment as a sexually violent predator under ch. 71.09 RCW.

¶ 6 In October 2004, the superior court conducted Fox's annual review hearing, as required by the SVP Act, and set a date for a show cause hearing to consider an annual review report and to determine whether Fox still met the statutory criteria for continued SVP commitment.³ The State submitted an annual review prepared by Dr. Jason Durham, a licensed clinical psychologist at the Special Commitment Center for SVPs at McNeil Island, where Fox was being detained and treated. Dr. Durham's review documented that Fox continued to suffer from pedophilia and personality disorder not otherwise specified (NOS) with antisocial and histrionic features. After six years in treatment, Fox remained in phase one of the center's six-stage treatment program. Durham concluded that Fox remained at a high risk for re-offending.

¶ 7 In February 2005, Fox submitted a declaration and opinion from Dr. Richard Wollert, a private psychologist specializing in SVP assessment. Using an actuarially-derived risk assessment called the "Bayes Theorem," Dr. Wollert opined that Fox's recidivism risk was 11 percent. Although Dr. Wollert interviewed Fox, he based his opinion on deficiencies in assessing recidivism risk through clinical diagnoses and the reliability of age-based risk assessment. Dr. Wollert concluded that, solely because Fox was then 61 years old, he was unlikely to re-offend based on statistical data showing a general tendency for reduction in predatory offense as a pedophile ages.

¶ 8 Based on Dr. Wollert's statistical data and opinion at the March 3, 2005 show-cause hearing, the trial court granted Fox's request for a full evidentiary hearing and scheduled it for December 8, 2005.

¶ 9 After the Legislature amended the SVP Act, the State moved for summary judgment, arguing that the amendment's language allowed the trial court to order or to hold a full evidentiary recommitment hearing only if the SVP demonstrated a qualifying change in condition. Agreeing with the State's interpretation of this statutory amendment, the trial court ruled that it could not conduct a new SVP hearing based solely on evidence of Fox's change in a single demographic factor, namely that he had reached an age at which there was generally a lowered likelihood of reoffending. The trial court granted the State's motion for summary judgment and cancelled Fox's hearing.

II. JONES

¶ 10 Thirty-five-year-old Robert Jones has been confined since he was 17 years old. He pleaded guilty to an indecent liberties charge when he was 15 years old. He pleaded guilty to second degree rape and rape of a child when he was 17 years old, and was sentenced to prison. On his release from prison, Jones stipulated to civil commitment as a SVP in October 1995. Between then and now, Jones dropped out of SVP treatment for approximately 18 months.

¶ 11 By the time of his January 2005 annual review in superior court, Jones had reentered treatment and was at phase three of the six-phase program. Dr. Holly Coryell's annual review evaluation surveyed Jones' history and current condition; Dr. Coryell found that Jones still met the criteria for continued SVP commitment because he had recently admitted to maintaining his attraction to young boys.

¶ 12 Jones hired Dr. Wollert as a forensic SVP expert. Dr. Wollert's report documented statistical evidence about the risk of a juvenile sex offender's committing additional sexual crimes as an adult. Dr. Wollert (1) challenged Dr. Coryell's use of the Static 99 Test (a common test for predicting recidivism risk), asserting that there is little evidence of the test's accuracy for predicting future recidivism based on juvenile offenses; (2) observed that most common clinical tests are not appropriate for testing recidivism rates among juveniles; (3) put Jones' risk of re-offending at no higher than ten percent, based on an actuarial study in Wisconsin; and (4) opined that Jones had never met the statutory requirements for an SVP. Dr. Wollert, however, did not address Jones' individual history, diagnoses, or change in condition brought about through his SVP treatment.

¶ 13 Jones then challenged the annual report, thus triggering a show cause hearing to determine whether there was probable cause to conduct a full evidentiary recommitment hearing. The trial court set the show cause hearing for June 10, 2005. Before the show cause hearing, Jones submitted Dr. Wollert's report to the trial court. The State responded that Dr. Wollert's report did not merit a new SVP commitment hearing.

¶ 14 On June 16, the trial court denied Jones' request for a new commitment hearing. The trial court ruled that Dr. Wollert's declaration failed to make a prima facie showing of physiological changes in Jones or "a change in his mental condition brought about by treatment."

III. JACKA

¶ 15 Thirty-nine-year-old Anthony Jacka has a history of sexually violent offenses against adult women and teenage girls. He admitted having raped a 14-year-old girl at knifepoint and having attempted to rape a woman sleeping next to her child, for which the trial court sentenced him to prison in 1990. At the end of Jacka's prison sentence, the State petitioned to commit him as a SVP. In 1999, the trial court found that Jacka met the SVP criteria and committed him to the Special Commitment Center, where he has remained since.

¶ 16 In January 2005, the State submitted a report from Dr. Durham for Jacka's annual review. Dr. Durham described Jacka's diagnosis of paraphilia NOS, voyeurism, exhibitionism, alcohol and cannabis abuse, and antisocial personality disorder. Dr. Durham also observed, however, that Jacka had progressed in his treatment, specifically noting that:

[Jacka] has not been a behavior problem at the SCC and has attended and actively participated in individual and group treatment. He has a solid understanding of sex offender treatment concepts and offers good feedback to other residents in the group. However, he continues to demonstrate anger when confronted, hold feelings of entitlement, and be argumentative with his treatment team...