In re Meirhofer

• Decision Date: 12 February 2015
• Docket Number: No. 89251–2.,89251–2.
• Citation: 182 Wash.2d 632,343 P.3d 731
• Parties: In the Matter of the Personal Restraint of Alan MEIRHOFER, Petitioner.
• Court: Washington Supreme Court

182 Wash.2d 632
343 P.3d 731

In the Matter of the Personal Restraint of Alan MEIRHOFER, Petitioner.

No. 89251–2.

Supreme Court of Washington, En Banc.

Argued Aug. 5, 2014.
Decided Feb. 12, 2015.

343 P.3d 732

Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, for Petitioner.

Tricia S. Boerger, Office of the Attorney General, Criminal Justice–Sexually Violent Pred Unit Atty. General, Attorney at Law, Sarah Sappington, Office of the Atty. General, Mary Elizabeth Robnett, Office of the Attorney General, Seattle, WA, for Respondent.

Opinion

GONZÁLEZ, J.

182 Wash.2d 636

¶ 1 Alan Meirhofer was civilly committed under the sexually violent predator (SVP) act, chapter 71.09 RCW, in 2000. He now seeks a full evidentiary proceeding on whether he still meets the statutory and constitutional criteria for SVP commitment. Before holding such a full evidentiary proceeding, the SVP act directs trial courts to hold an initial show cause hearing to determine whether the State has presented prima facie evidence that continued commitment is justified or the detainee has presented prima facie evidence that his or her condition has “so changed” as to warrant a new evidentiary proceeding. The trial court found the State had made its showing and Meirhofer had not. We affirm.

Background

¶ 2 In the late 1980s, Meirhofer was charged with several counts of brutally raping children, along with charges of burglary and kidnapping. Meirhofer v. State , noted at 109 Wash.App. 1057, 2001 WL 1643535, at *1. Meirhofer was implicated in several more child rapes. Pers. Restraint Pet. (PRP), App. B at 4–8. He pleaded guilty to several charges, apparently in return for the State dropping others. Meirhofer, 2001 WL 1643535, at *1. As Meirhofer finished serving his criminal sentence, the State brought SVP commitment proceedings against him under the SVP act, chapter 71.09 RCW. This act authorizes the State to civilly commit those who “suffer[ ] from a mental abnormality^{[ 1 ]} or personality disorder^{[ 2 ]}

182 Wash.2d 637

which makes the person likely to engage in predatory acts of

343 P.3d 733

sexual violence if not confined in a secure facility.” RCW 71.09.020(18). At the civil commitment trial, the State submitted evidence that Meirhofer suffered from pedophilia; paraphilia not otherwise specified (NOS) nonconsent; a personality disorder with antisocial features; and alcohol and amphetamine dependence, and that he had a high risk of reoffending. Mot. for Discr. Review (MDR) (June 15, 2012), App. B at 20, 15. In 2000, a jury found beyond a reasonable doubt that Meirhofer was a sexually violent predator and the trial court ordered him civilly committed to the Special Commitment Center. Meirhofer, 2001 WL 1643535, at *2.

¶ 3 Civil commitment under the SVP act is indefinite, but the Department of Social and Health Services (DSHS) is required to have the condition of each person detained under the act reviewed by a qualified professional at least annually and regularly report to the court whether each detainee still meets the statutory and constitutional criteria for civil commitment. RCW 71.09.070(1) ; WAC 388–880–031. If the secretary of DSHS determines that a detainee does not still meet the requirements, “the secretary shall authorize the person to petition the court for conditional release to a less restrictive alternative or unconditional discharge.”RCW 71.09.090(1). In such cases, “[t]he court must order an evidentiary hearing upon receipt of the petition.” State v. McCuistion, 174 Wash.2d 369, 380, 275 P.3d 1092 (2012) (citing RCW 71.09.090(1) ), cert. denied, ––– U.S. ––––, 133 S.Ct. 1460, 185 L.Ed.2d 368 (2013). Alternatively, those civilly committed under the SVP act can petition the court for either full release or release to a less restrictive alternative than full civil commitment. RCW 71.09.090(2)(a). In such cases, the trial court will hold a show cause hearing to

182 Wash.2d 638

determine if sufficient grounds exist to hold a full evidentiary proceeding. McCuistion, 174 Wash.2d at 380, 275 P.3d 1092 (citing RCW 71.09.090(2)(a) ). At this show cause hearing, the State bears the burden of presenting prima facie evidence that continued commitment is appropriate. Id. (citing RCW 71.09.090(2)(b) ); In re Det. of Petersen, 145 Wash.2d 789, 798, 42 P.3d 952 (2002). If it fails to do so, the court will hold a full evidentiary hearing. RCW 71.09.090(2). Alternately, the detainee may present prima facie evidence that there is probable cause to believe his or her condition has “so changed” that release is appropriate. RCW 71.09.090(2)(c)(ii) ; McCuistion, 174 Wash.2d at 382, 275 P.3d 1092. If the detainee succeeds, the court will set a full evidentiary proceeding. RCW 71.09.090(2)(c), (3) ; In re Det. of Petersen, 145 Wash.2d at 798, 42 P.3d 952. At the show cause hearing, the court “must assume the truth of the evidence presented; it may not ‘weigh and measure asserted facts against potentially competing ones.’ ” McCuistion, 174 Wash.2d at 382, 275 P.3d 1092 (quoting In re Det. of Petersen, 145 Wash.2d at 797, 42 P.3d 952). “At the same time, the court can and must determine whether the asserted evidence, if believed, is sufficient to establish the proposition its proponent intends to prove.” Id. (citing In re Det. of Petersen, 145 Wash.2d at 798, 42 P.3d 952). While the court does not weigh the evidence, it is entitled to consider all of it. See In re Det. of Petersen, 145 Wash.2d at 798, 42 P.3d 952.

¶ 4 In 2005, the legislature limited the type of evidence and the grounds a court may consider when determining whether there was probable cause to believe an SVP had “ ‘so changed’ ” that release might be appropriate. Laws of 2005, ch. 344, § 1. These amendments were in response to two cases where evidentiary hearings had been ordered based on changes in “demographic factors,” such as the offender's age, which trial courts found rendered them not likely to reoffend if released. Id. (citing In re Det. of Ward, 125 Wash.App. 381, 104 P.3d 747 (2005) ; In re Det. of Young, 120 Wash.App. 753, 86 P.3d 810 (2004) ). The legislature declared that “a mere advance in age or a change in gender

182 Wash.2d 639

or some other demographic factor after the time of commitment does not merit a new trial proceeding under RCW 71.09.090.” Id. The legislature expressed concern that allowing new trial proceedings under RCW 71.09.070 and .090 based on such demographic changes “subverts the statutory focus on treatment and reduces community safety by removing all incentive for successful treatment participation in favor of passive aging and distracting committed persons from fully

343 P.3d 734

engaging in sex offender treatment.” Id. To avoid disincentivizing treatment, the 2005 provisions stated that probable cause to believe someone has “ ‘so changed’ ” exists only when there is a “physiological change to the person, such as paralysis, stroke, or dementia, that renders the committed person unable to commit a sexually violent act and this change is permanent” or when there is a “change in the person's mental condition brought about through positive response to continuing participation in treatment.” Id. § 2(4)(a), (b) (codified as RCW 71.09.090(4)(a), (b)(i)-(ii) ). Additionally, “a change in a single demographic factor, without more, does not establish probable cause for a new trial proceeding.” Id. § 2(4)(c) (codified as RCW 71.09.090(4)(c) ). We initially held these amendments unconstitutional on due process and separation of powers grounds, but on reconsideration, we upheld them. McCuistion, 174 Wash.2d at 378, 398, 275 P.3d 1092. The United States Supreme Court denied certiorari. 133 S.Ct. 1460. The 2005 amendments and the McCuistion opinion are especially relevant to Meirhofer because he has declined treatment and because his risk to reoffend, as determined by actuarial tests, has largely been reduced because of his advancing age.

¶ 5 In the 2010 annual report to the court, the State's expert, Dr. Saari, stated he did not have sufficient information to diagnose Meirhofer with pedophilia because “there is not sufficient evidence to indicate a clear pattern of sexual attraction to prepubescent” children. PRP, App. B at 12. Dr. Saari gave Meirhofer the provisional diagnosis of “Rule Out

182 Wash.2d 640

Pedophilia.” Id. at 11 (boldface omitted).³ Dr. Saari diagnosed Meirhofer with paraphilia, NOS hebephilia, paraphilia NOS nonconsent, and personality disorder NOS with antisocial and borderline traits. Id. Dr. Saari reported that the Static–99R actuarial risk assessment test suggested that offenders with similar static risk factors as Meirhofer had “a 5–year sexual recidivism estimate of about 20% and a 10–year sexual recidivism estimate of about 30%.”⁴ Id. at

182 Wash.2d 641

13. Based on Meirhofer's dynamic risk factors, including the fact that “Meirhofer felt entitled to rape teenage boys when he

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