In re Morgan

• Decision Date: 08 May 2014
• Docket Number: No. 86234–6.,86234–6.
• Court: Washington Supreme Court
• Parties: In the Matter of the Detention of Clinton MORGAN, Petitioner.

180 Wash.2d 312

330 P.3d 774

In the Matter of the Detention of Clinton MORGAN, Petitioner.

No. 86234–6.

Supreme Court of Washington,

En Banc.

May 8, 2014.

Susan F. Wilk, Washiington Appellate Project, Seattle, WA, for Petitioner.

Anne Elizabeth Egeler, Office of the Attorney General, Olympia, Brooke Elizabeth Burbank, Assistant Attorney General, Seattle, WA, for Respondent.

Sarah A. Dunne, ACLU of Washington Foundation, Nancy Lynn Talner, Attorney at Law, Seattle, WA, for Amicus Curiae on behalf of Aclu.

GONZÁLEZ, J.

¶ 1 In 2008, Clinton Morgan was awaiting his civil commitment trial to determine if he was likely to engage in predatory acts of sexual violence if not confined to a secure facility. Defense counsel became concerned that Morgan, who had been diagnosed with schizophrenia, was exhibiting psychotic symptoms. Morgan's counsel requested a competency determination and sought an order for involuntary medication to control Morgan's delusions during trial. The trial judge determined that Morgan was incompetent, appointed a guardian ad litem to represent his interests, and ordered involuntary medication. His trial followed, and the jury unanimously found him to be a sexually violent predator. He is now confined in the Special Commitment Center.

¶ 2 Morgan asks us to reverse his commitment order, arguing that he has a due process right to be competent during a sexually violent predator trial and arguing that a pretrial in-chambers conference violated his right to a public trial. We affirm his commitment.

Facts and Procedural History

¶ 3 Morgan carries a diagnosis of chronic undifferentiated schizophrenia. He has trouble distinguishing fantasy from reality and has invented an alter ego, a magical persona named Moregaine.

¶ 4 The evidence suggests that Morgan was physically abused as a young child and began committing sexual offenses in his early adolescence. At the age of 13, he pleaded guilty in a juvenile adjudication to indecent liberties with a 15–year–old girl. He was sentenced to 65 weeks in a Juvenile Rehabilitation Administration (JRA) program, where he participated in sexual deviancy treatment. At the juvenile facility he was found to have limited cognitive skills, he exhibited problems distinguishing between fantasy and reality, and he disclosed stimulating and “pervasive, severely sadistic homicidal fantasies.” 2 Verbatim Report of Proceedings (VRP) (Aug. 7, 2008) at 175. In the opinion of his juvenile rehabilitation counselor, when Morgan left he did not have a “very good grasp on or understanding of his sexual behavior and what would motivate him in that regard.” 1 VRP (Aug. 4–6, 2008) at 41.

¶ 5 After Morgan was released from the JRA in 1994, he continued to receive community-based sex offender treatment until 1997. During this time he was dismissed from the high school basketball team and briefly suspended from school for uninvited physical contact with peer-aged females. Two weeks after completing treatment, Morgan molested a five-year-old girl and a six-year-old girl at a hotel swimming pool. On the day of the assault, he told police officers he wanted “to see if he could handle being close to kids,” but once he touched the girls, things “got out of hand” and he “had no control over the situation, period.” 2 VRP (Aug. 7, 2008) at 186, 255. He later “said that his victim, quote, wanted me to rape her, end quote.” 1 VRP (Aug. 4–6, 2008) at 60. Morgan pleaded guilty to one count of first degree child molestation and received an 89–month sentence.

¶ 6 During his incarceration he exhibited psychotic symptoms and was transferred to the Special Offender Unit at Monroe Correctional Complex in 1999, where he was diagnosed with several conditions, including schizophrenia. He often did not take his medication, which led to involuntary medication throughout 2000 and 2001. While at Monroe, Morgan participated in a sex offender treatment program (SOTP), but his ability to progress appeared to be limited by his psychiatric disorders and developmental limitations. Morgan's fantasies of using force or coercion increased as he progressed through treatment. He completed the program and upon completion was evaluated at a very high risk to reoffend.

¶ 7 On August 31, 2004, the day before he was scheduled to be released, the Department petitioned to have Morgan committed as a sexually violent predator (SVP). At status conferences in late 2005 and early 2006, Morgan's counsel disclosed that Morgan was experiencing psychotic symptoms, and a competency hearing was held in February 2006. The trial judge found Morgan incompetent and Morgan's attorney, the State, and the trial judge agreed that the SVP trial should proceed. But to “make sure [Morgan's] interests [were] protected,” the trial judge appointed a guardian ad litem (GAL) “with experience in this area.” VRP (Pretrial Hr'gs) (July 25, 2005; Feb. 23, Apr. 21, Aug. 30, 2006) at 7–8, 19.

¶ 8 In June 2006, Morgan's counsel moved for an order to involuntarily medicate Morgan to control his delusions during trial. The trial judge initially granted the motion orally but later accepted the State's request to consider additional evidence and weigh different interests before making a final ruling. During an in-chambers conference at the end of August 2006, counsel, the GAL, and the trial judge discussed the procedure they would use for hearing further evidence on that motion. The trial judge, a court reporter, and the GAL were physically present in chambers, and counsel participated by phone. Morgan was not present. Defense counsel and the GAL expressed concern that failing to medicate Morgan might deprive him of a fair trial because the jury might think, “Well, he's so crazy, he should be locked up.” VRP (Pretrial Hr'gs) (July 25, 2005; Feb. 23, Apr. 21, Aug. 30, 2006) at 30. The GAL noted that “Morgan himself is violently [and] vehemently against any kind of involuntary medication.” Id. at 31. The trial judge asked the GAL to meet with Morgan's psychiatrist and requested a written report from the psychiatrist with the medical background necessary to decide the involuntary medication issue.

¶ 9 Written reports were subsequently filed in the record. Dr. Sziebert filed a report that detailed Morgan's medication history and discussed the efficacy of involuntary medication in his case. Dr. Sziebert indicated Morgan did not meet the Special Commitment Center's requirements for being involuntarily medicated because he did not have a grave disability or present a danger to himself or others. He opined that involuntary medication “may benefit Mr. Morgan at his civil commitment trial from the standpoint of helping him curb his impulses and inappropriate behavior.” Clerk's Papers at 72. The GAL also submitted a written report noting Morgan's history of positive results from involuntary administration of antipsychotic medications, acknowledgingMorgan's opposition to medication, and concluding that it was in Morgan's best interests to be involuntarily medicated. The trial judge ordered involuntary medication.

¶ 10 A jury trial was held in 2008. The State's expert, Dr. Judd, testified that Morgan had two mental abnormalities—paraphilia and pedophilia—and a personality disorder—antisocial personality disorder—that caused him serious difficulties in controlling his sexual behavior. Dr. Judd also gave Morgan a provisional diagnosis of sexual sadism. He testified to the varying and inconsistent accounts that Morgan gave throughout the 1990s and up until the time of the SVP trial of the indecent liberties incident, all of which depart from the official report, oftentimes indicating that the contact was consensual but at other times emphasizing the use of force. An SOTP treatment provider opined that Morgan had not internalized his relapse prevention plan and that she did not expect the skills and interventions he learned in the program to be retained if he did not continue to work on them. Morgan's expert, Dr. Wollert, disagreed with several of Dr. Judd's diagnoses and testified that Morgan's brain had likely matured since his offenses, lowering his recidivism risk. A unanimous jury found Morgan to be a sexually violent predator.

¶ 11 Morgan appealed on various grounds, and the Court of Appeals affirmed. See In re Det. of Morgan, 161 Wash.App. 66, 86, 253 P.3d 394 (2011). We granted Morgan's petition for review, limited to “(1) whether involuntary commitment ... when he was allegedly incompetent violate[d] his due process rights[ ] and (2) whether the in-chambers conference regarding involuntary medications violated [his] right to a public trial.” Order, No. 86234–6 (Wash. Nov. 1, 2011).

Standard of Review

¶ 12 Constitutional questions are questions of law and are subject to de novo review. State v. McCuistion, 174 Wash.2d 369, 387, 275 P.3d 1092 (2012) (citing Amunrud v. Board of Appeals, 158 Wash.2d 208, 215, 143 P.3d 571 (2006)).

Analysis

¶ 13 In 1990, the legislature created an involuntary civil commitment system for individuals deemed sexually violent predators, commonly known as SVPs. See generally ch. 71.09 RCW. A “sexually violent predator” is a person “who has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.” Former RCW 71.09.020(16) (2006). When we upheld the SVP civil commitment scheme against a substantive due process challenge, we noted the legislature's “honest recognition of the difficulties inherent in treating those afflicted with the mental abnormalities causing the sex predator condition.” In re Pers. Restraint of Young, 122 Wash.2d 1, 31, 857 P.2d 989 (1993); see alsoRCW 71.09.010. The legislature found that “the exceptional risks posed by sexual predators, and the seemingly intractable nature of their illness, necessitates a specially tailored civil...