In re Detention of Brooks

• Decision Date: 27 December 2001
• Docket Number: No. 68201-1, No. 68501-1., No. 68116-3
• Citation: 145 Wn.2d 275,36 P.3d 1034,145 Wash.2d 275
• Court: Washington Supreme Court
• Parties: In the Matter of the DETENTION OF Scott W. BROOKS, Petitioner, In the Matter of the Detention of Rudolph Franklin, Appellant.

36 P.3d 1034

145 Wash.2d 275

145 Wn.2d 275

In the Matter of the DETENTION OF Scott W. BROOKS, Petitioner,

In the Matter of the Detention of Rudolph Franklin, Appellant.

Nos. 68116-3, 68201-1, 68501-1.

Supreme Court of Washington, En Banc.

Argued June 15, 2000.

Decided December 27, 2001.

Douglass Colley McCrae, Christine Anne Jackson, Dennis Paul Carroll, Leslie Jean Garrison, David Barrett Hirsch, Shawn Roric Crowley, Seattle, for Petitioner.

Norm Maleng, King County Prosecutor, David J.W. Hackett, Deputy, Michele Ann Hauptman, Deuty, Dana Cashman, Deputy, Seattle, for Respondent.

GUY, J.¹

In these consolidated cases Scott W. Brooks and Rudolph Franklin ask this court to determine whether either chapter 71.09 RCW (known as the sexually violent predator statute), as amended in 1995 and in 2001, or this court's decision in In re Personal Restraint of Young, 122 Wash.2d 1, 857 P.2d 989 (1993), requires at the probable cause hearing and commitment trial consideration of less restrictive alternatives to total confinement. Brooks alone argues that chapter 71.09 RCW is unconstitutional because it allows the commitment of a person upon a showing short of what he claims is the constitutionally required minimum of clear and convincing evidence. Additionally, Brooks asks that the judgment against him be vacated because the State's sole witness as to Brooks' mental disorder and likelihood of reoffending may have committed perjury when he falsified some of his medical qualifications.

The equal protection clauses of the federal and state constitutions require that less restrictive alternatives (LRAs) to confinement be considered at the commitment trials of those committed under chapter 71.09 RCW, the sexually violent predator (SVP) statute, just as LRAs are considered at the trials of persons committed under chapter 71.05 RCW, the mental illness statute. We do not find a rational relationship between the timing of the consideration of LRAs under the current SVP statute—only after the commitment trial—and greater public safety. On this issue, the SVP statute fails rational basis scrutiny.

Because LRAs were not considered at Brooks' commitment trial, we vacate the order committing him as an SVP and remand his case for a new commitment trial under RCW 71.09.050 and 71.09.060. We reverse in part and affirm in part the Court of Appeals decision in In re Detention of Brooks, 94 Wash.App. 716, 973 P.2d 486 (1999); we reverse on equal protection grounds the Court of Appeals affirmation of the order committing Brooks, and we affirm on other grounds the court's rejection of Brooks' claims that the SVP statute violates due process and equal protection because it allows for commitment on a showing below what is constitutionally required. We reverse the trial court's order committing Franklin and remand his case for a commitment trial under chapter 71.09 RCW. Having decided the cases on constitutional grounds, we do not reach the issue of whether the order committing Brooks should be vacated because the State's expert witness misrepresented his qualifications.

FACTS

Brooks was convicted on four separate occasions of having committed sexually violent crimes, including indecent liberties and second degree rape. State's Answer to Brooks' Pet. for Review at 1. In 1987 he was convicted of indecent liberties and communication with a minor for immoral purposes. Brooks' Pet. for Review at 2. Just before Brooks was about to complete his sentence for this crime, the State petitioned for Brooks' involuntary commitment under chapter 71.09 RCW. Brooks moved to dismiss the petition because chapter 71.09 RCW, as amended in 1995, eliminated consideration of LRAs, thus violating due process and equal protection. Id. He also argued that the statute would permit the State to commit him if he were found "more likely than not" to commit an act of sexual violence instead of "highly likely" as constitutionally required. Id. at 3. At his trial, Brooks asked the court to instruct the jury that the State must establish that he could not be safely treated in an LRA to total confinement, but the court refused. Id. On April 7, 1997, the jury found Brooks to be an SVP, and two days later the trial court entered a judgment and order committing Brooks. Id. On appeal, Division One found no constitutional infirmity in the amended statute and found the evidence sufficient to support the determination that Brooks was an SVP. In re Detention of Brooks, 94 Wash. App. at 719, 973 P.2d 486. Accordingly, the Court of Appeals affirmed the commitment order. Id. This court granted review on September 29, 1999.

At Brooks' commitment trial, the State's sole witness offering an opinion on two of the elements required by the statute—mental abnormality or personality disorder, and likelihood of reoffense—was Dr. Barry Maletzky. Brooks' Mot. for Discretionary Review, App. C at 1. In a subsequent superior court trial Dr. Maletzky testified that items on his resume were inaccurate. Brooks' Mot. for Discretionary Review at 4. For example, he had been claiming that his medical degree was from Columbia when in fact it was awarded by the State University of New York. Id. The State withdrew Maletzky from that case and had his testimony stricken. Id. Brooks then filed a motion under CR 60(b) to vacate the judgment. Id. at 4-5. The trial court denied the motion and reasoned that while Maletzky's misrepresentations constituted perjury, they fell under the category of impeachment evidence. Id. at 5. Brooks filed a motion for discretionary review with this court, and review was granted on September 29, 1999. This claim was consolidated with Brooks' other claim arising out of his appeal of the Court of Appeals decision.

Franklin was incarcerated for his 1988 convictions for first and second degree rape and first degree theft. State's Br. in Franklin at 5. On October 1, 1999, the State filed a petition alleging Franklin to be an SVP. Franklin's Opening Br. at 4. At his commitment trial Franklin asked for clarification regarding the role of LRAs. Id. The trial court found that the State did not need to prove that Franklin would be likely to commit future acts of predatory sexual violence if placed in an LRA. Id. at 5-6. Franklin stipulated to meeting the criteria of an SVP as interpreted by the trial court. Id. at 6. As part of the stipulation, Franklin preserved his right to appeal the court's order on this point. Id. Franklin's case was retained by this court on February 9, 2000 and consolidated with Brooks' case.

ISSUES

(1) Does the definition of "sexually violent predator" in RCW 71.09.020(1) require a consideration of LRAs to confinement in a secure facility?

(2) Is it a violation of the equal protection clauses of the federal and state constitutions for LRAs to confinement under chapter 71.09 RCW to be considered only after a person petitions for release from confinement whereas under chapter 71.05 RCW LRAs to confinement are considered at the probable cause hearing and commitment trial?

(3) Is chapter 71.09 RCW unconstitutional because it allows for the commitment of a person upon a showing less than the constitutionally required minimum of clear and convincing evidence?

(4) Should the judgment committing Brooks be vacated because the State's main witness falsified his qualifications?

DISCUSSION

I

Franklin argues that the plain meaning of the 1995 amendment to RCW 71.09.020(1), which added the phrase "if not confined in a secure facility," requires the State to prove a defendant is likely to reoffend under conditions short of confinement in a secure facility, and that "conditions" include LRAs to confinement. Franklin's Reply Br. at 1. Franklin asserts that this court's decision in In re Detention of Campbell, 139 Wash.2d 341, 352, 986 P.2d 771 (1999), interprets the amendment to RCW 71.09.020(1) to exclude from commitment those individuals who could be managed in the community under an LRA. Id. at 2. Laws of 1995, ch. 216, § 1(7) defines an LRA as "court-ordered treatment in a setting less restrictive than total confinement." The State does not dispute that this court has interpreted the statute in that way; the State does counter that this court's discussion of the 1995 amendments is dicta and thus has no precedential or persuasive value. State's Br. in Franklin at 22. The State argues that "if not confined in a secure facility" refers only to voluntary, community-based treatment options and not court-imposed conditions which cannot be effected under the current statute. State's Br. in Franklin at 12.

In Young, this court held that the basic scheme of the SVP statute in effect in 1993 was constitutional. Young, 122 Wash.2d at 59, 857 P.2d 989. However, it agreed with the petitioners that the statute violated equal protection because it did not require consideration of LRAs to confinement as did the mental health statute, chapter 71.05 RCW. Id. This court held that equal protection requires the state to comply with provisions of chapter 71.05 RCW as related to the consideration of LRAs. Young's case was remanded for consideration of alternatives to confinement. Id.

In response to Young, the Legislature amended the SVP statute in 1995. In addition to addressing other concerns raised by Young, amendments to RCW 71.09.090 allowed the confined person to be released to an LRA or discharged if he or she has so changed that the person is no longer likely to engage in predatory acts of sexual violence. Such a release or discharge occurs only after a hearing. RCW 71.09.090. The hearings provided for in RCW 71.09.090 take place after the probable cause hearing and the commitment trial determining whether the person is an SVP.

The 1995 amendments to the SVP statute also added the following language to the definition of "sexually violent predator" in RCW 71.09.020(1):

"Sexually violent predator" means any person who has been convicted of or charged with a crime of sexual

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