In re Detention of Turay

Decision Date21 October 1999
Docket NumberNo. 64100-5.,64100-5.
Citation986 P.2d 790,139 Wash.2d 379
PartiesIn re the DETENTION OF Richard Garrett TURAY, Appellant.
CourtWashington Supreme Court

Sheryl G. McCloud, Seattle, for Appellant.

Norm Maleng, King County Prosecutor, Donald Porter, Deputy, Michele Hauptman, Deputy, David Hackett, Seattle, Deputy, Christine Gregoire, Attorney General, Sarah Coats, Asst., Olympia, for Respondent.

ALEXANDER, J.

After a King County Superior Court jury found Richard Turay to be a sexually violent predator (SVP), the trial judge committed him to the Special Commitment Center (SCC) at Monroe. Turay appealed and sought direct review by this court of his commitment and the trial court's rulings on numerous of his pretrial, trial, and posttrial motions. We granted review. Turay also filed a personal restraint petition (PRP) in this court in which he raised basically the same issues that he raised on appeal, including the question of whether the conditions of his confinement and the statute under which he was committed are unconstitutional. We granted review of Turay's PRP as well as the State's cross appeal of the trial court's ruling that the State bears the burden of proof at show cause hearings in SVP commitment trials. We hold that the commitment statute is constitutional and, therefore, affirm the order of commitment.

FACTS

In 1991, a less than unanimous King County Superior Court jury determined that Richard Turay was an SVP within the parameters of RCW 71.09.060, and he was, therefore, committed to the SCC at Monroe. Following Turay's commitment, this court issued its decision in In re Personal Restraint of Young, 122 Wash.2d 1, 857 P.2d 989 (1993), in which we held that a unanimous jury verdict is necessary to support a finding that an individual is an SVP. In light of that opinion, the Court of Appeals vacated the order committing Turay, and remanded to the superior court for a new trial.

In November 1993, Turay filed a motion, in superior court, to dismiss the State's petition and for his immediate release based upon, inter alia, "the due process and equal protection clauses of the state and federal constitutions." Clerk's Papers (CP) at 330. This motion was denied. In January 1994, Turay filed an additional motion to dismiss the commitment proceeding, arguing that the court "must dismiss the [commitment] petition against [him] because the conditions of his confinement are punitive, not treatment oriented in nature." CP at 357. In September 1994, Turay filed still another motion to dismiss based on a "violation of [his] privacy right." CP at 675. The latter two motions were not ruled on before trial.

On several occasions prior to his second commitment trial, Turay engaged in colloquy with the trial court about the possibility of representing himself. On one occasion, he filed a written motion in which he requested that attorney Mark Mestel represent him at his upcoming commitment trial or that, alternatively, his then-attorney, Jennifer Shaw, continue to represent him. As a third alternative, Turay requested that the trial court allow him to act as his own counsel. The trial court ordered that Shaw continue to represent Turay.

Also prior to his new trial, Turay filed a lawsuit in the United States District Court for the Western District of Washington against several officials at the SCC.1 In this suit, which he maintained under 42 U.S.C. § 1983, Turay alleged, as he had in state court, that the conditions of his confinement at the SCC were unconstitutional and thus violative of his civil rights as guaranteed by the United States Constitution. A federal court jury found that the officials at the SCC had violated Turay's constitutional right to access to adequate mental health treatment and awarded him $100.00 in compensatory damages. Following receipt of the verdict, the United States District Court placed the SCC under an injunction "narrowly tailored to remedy this constitutional violation."2 CP at 477.

At Turay's second commitment trial, which took place in superior court following entry of the injunction in the federal litigation, a jury found that he was an SVP and that "the best interests of [Turay] or others will not be served by less restrictive treatment which is an alternative to total confinement." CP at 844. Accordingly, on October 19, 1994, the trial court entered an order committing Turay as an SVP. Nine days later, Turay filed a motion that he denominated as a "Motion for New Trial and for Extension of Time." CP at 847.

In April 1995, in response to Turay's September 1994 pretrial motion to dismiss, the trial court entered "Findings of Fact and Conclusions of Law and [an] Order" in which it concluded that certain aspects of the SCC's treatment program violated Turay's substantive due process rights. CP at 848-63. It, therefore, ordered the SCC to remedy those deficiencies in its treatment program and "to report to the Court within 30 days ... as to the status of the conditions found to be in violation of [Turay's] constitutional rights." CP at 863. On December 8, 1995, a show cause hearing was held, pursuant to RCW 71.09.090(2), to determine "whether facts exist that warrant a hearing on whether Richard Turay's condition has so changed that he is safe to be conditionally released to a less restrictive alternative or unconditionally discharged." CP at 5. The trial court determined at that hearing that sufficient facts were not presented to warrant a further hearing, and it ordered that Turay continue in detention.

One week later, Turay filed a motion for an order to dismiss and to vacate his detention, arguing that his confinement at the SCC amounted to "punishment," and thus "violate[d] the double jeopardy clause." CP at 948. He also filed a "Motion for Reconsideration of RCW 71.09.090 Continuing Detention Decision," alleging that "RCW 71.09's yearly review provisions" violated the Equal Protection and Due Process clauses of the Washington State and United States Constitutions. CP at 1050, 1052, 1068.

On May 9, 1996, the trial court entered an order in response to Turay's motions to dismiss and for reconsideration. It upheld the constitutionality of RCW 71.09.090 and denied Turay's request for immediate release. It did, however, conclude that RCW 71.09.090 violated equal protection by failing to grant an SVP a mandatory review hearing at intervals of 180 days as is the case with mentally ill persons under RCW 71.05.3 The remedy imposed by the trial court was simply to require review hearings for SVPs every 180 days as opposed to annually as provided by RCW 71.09.090. In addition, the court concluded that the State bears the burden of proof at show cause hearings held pursuant to RCW 71.09.090(2), at which the court determines whether there is probable cause to believe that the SVP's "mental abnormality or personality disorder has so changed that [he or she] is not likely to engage in predatory acts of sexual violence if conditionally released." CP at 1156-157.

On May 22, 1996, Turay appealed and sought direct review by this court of the trial court's order committing him as an SVP, and its rulings on "all pretrial, trial, and post-trial motions." CP at 1164. The State cross-appealed the trial court's ruling placing the burden of proof on it at show cause hearings held pursuant to RCW 71.09.090(2). Shortly thereafter, Turay filed a PRP in this court in which he raised basically the same issues that he raised on direct appeal. We granted review of the direct appeal and the PRP, and consolidated the two cases.

Because the State raised a question as to the timeliness of Turay's direct appeal, he filed a motion to enlarge time to file notice of appeal. The State subsequently filed a motion to redesignate the portion of Turay's notice of appeal relating to the trial court's May 9, 1996 order into a "notice for discretionary review." Mot. to Redesignate at 2. These motions were passed to the merits.

We also requested that the parties advise us in writing of any new developments regarding the conditions at the SCC. After both parties filed their responses to this request, the State filed a motion to strike a portion of Turay's response, claiming that Turay attempted to improperly supplement the appellate record in violation of RAP 9.1 and 9.11. This motion was also passed to the merits.

I. PROCEDURAL ISSUES
A. Timely Notice of Appeal

The State claims that Turay's appeal of his 1994 commitment order was not timely and should, therefore, be dismissed. Pursuant to RAP 5.2(a), Turay had 30 days from the date the commitment order was entered within which to file his notice of appeal. Although Turay did not file his "notice of appeal" until May 22, 1996, which was far more than 30 days after the date the commitment order was entered, he did file his motion for new trial and for extension of time within 10 days of the entry of the commitment order.4 Turay contends that because the trial court failed to rule on this motion, the time for filing his appeal was tolled pursuant to RAP 5.2(e) until the trial court issued its May 9, 1996 order denying his release from confinement, an order which he concedes "decided [his] outstanding motion for [a] new trial."5 Appellant's Opening Br. at 69.

The State counters Turay's argument by asserting that the motion, which Turay filed on October 28, 1994, was not, notwithstanding its title, a motion for a new trial and, thus, did not toll the period within which to file a notice of appeal. Turay's motion, in relevant part, stated:

[R]espondent ... moves the court for an order for a new trial. Respondent additionally seeks an order granting a thirty day extension of time in which to identify the specific reasons in law and fact as to the grounds for his motion. This motion is based on CR 59, the files and records herein, and the attached affidavit of Karen P.
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