In re S.E.

• Decision Date: 10 July 2017
• Docket Number: No. 74917-0-I,74917-0-I
• Citation: 199 Wash.App. 609,400 P.3d 1271
• Court: Washington Court of Appeals
• Parties: IN RE the DETENTION OF: S.E., Appellant.

199 Wash.App. 609

400 P.3d 1271

IN RE the DETENTION OF: S.E., Appellant.

No. 74917-0-I

Court of Appeals of Washington, Division 1.

FILED: July 10, 2017

Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave., Ste. 701, Seattle, WA, 98101-3647, for Appellant.

Stephanie Rollins, Brennan King County Prosecutor's Office, 516 3rd Ave., Rm. W400, Seattle, WA, 98104-2388, for Respondent.

OPINION PUBLISHED IN PART

Dwyer, J.¶1 Today we must decide whether the Washington Constitution requires that a jury be seated to determine the issues presented in a probable cause hearing commenced pursuant to RCW 71.05.240, a mental illness statute. We hold that it does not. Because no jury was required, and because substantial evidence supports the trial court's findings of fact, we affirm.¹

I

¶2 S.E. was involuntarily committed to Fairfax Hospital for an initial period of evaluation and treatment due to concerns about her dangerous mental disorder. An evaluating physician from Fairfax petitioned the superior court to authorize an additional 14 days of commitment to allow for further evaluation and treatment of S.E.

¶3 At the resulting probable cause hearing, the superior court determined by a preponderance of the evidence that S.E., due to a mental disorder, presented a significant risk of serious harm to others and that she was gravely disabled. The superior court granted the petition, authorizing 14 days of additional commitment for evaluation and treatment.

¶4 S.E. now appeals.

II

A

¶5 Washington's statutory scheme regulating the involuntary detention of those persons suspected of suffering from a dangerous mental illness was enacted in 1973. Codified at chapter 71.05 RCW, the statutory scheme provides for various lengths of detention for evaluation and treatment and for various decision-makers.

¶6 The initial detention period provided for is 72 hours. RCW 71.05.150, .180. For this detention period to commence, a designated mental health professional must first receive and investigate allegations that a person, "as a result of a mental disorder," "presents a likelihood of serious harm" or "is gravely disabled." RCW 71.05.150(1)(a).² If the mental health professional is satisfied as to the truth of the allegations and determines that the person will not voluntarily seek treatment, the professional may submit a petition to the superior court seeking authorization for a 72-hour commitment period for evaluation and treatment. RCW 71.05.150(1). Thereafter, upon review of the petition, the superior court may—in an uncontested determination—issue an order to detain the person if the judge is satisfied that probable cause supports the petition and that the person has refused or failed to voluntarily accept appropriate evaluation and treatment. RCW 71.05.150(2)(a).

¶7 Thereafter, if further commitment is warranted, the evaluating professional can petition for another 14 days of commitment. RCW 71.05.230. After a 14-day petition is filed, the superior court must—within 72 hours of the person's initial detention—hold a proceeding referenced as a probable cause hearing. RCW 71.05.240(1). At the probable cause hearing, the petitioner must show, by a preponderance of the evidence, that the person identified in the petition, "as the result of mental disorder, presents a likelihood of serious harm, or is gravely disabled." RCW 71.05.240(3)(a). Although the probable cause hearing is adversarial, the statutory scheme does not provide for a right to a jury determination of the question whether the person's mental disorder warrants 14 additional days of commitment.

¶8 If commitment beyond the first 17 days—the initial 72-hour period followed by the 14-day period—is sought, the evaluating professional may petition for 90 or 180 days of further commitment for treatment. RCW 71.05.280, .290. Notably, upon the filing of a 90- or 180-day petition, the statutory scheme provides for a right to demand that a jury determine whether the person's mental disorder justifies the lengthier commitment period requested. RCW 71.05.310. Thereafter, a contested proceeding occurs wherein the superior court or, if demanded, a jury determines whether the petitioners have shown by clear, cogent, and convincing evidence that the commitment is justified by the person's mental illness pursuant to the statutory grounds tailored to the lengthier commitment period requested. See RCW 71.05.310, 320(1).

¶9 If the evaluating professional determines that further commitment beyond the 90- or 180-day period is necessary, a petition seeking a further 180-day commitment may be filed. RCW 71.05.320(4). Thereafter, another contested proceeding is held—pursuant to the procedures set forth in RCW 71.05.310 —and the superior court or a jury must find that the additional commitment is warranted pursuant to distinct statutory grounds tailored to the 180-day commitment request. RCW 71.05.320(6)(a). If further 180-day periods of commitment are sought, petitions are filed and heard in the same manner as provided in RCW 71.05.320(4).

B

¶10 S.E. calls our attention to a territorial statute that was in effect in 1889. This statute provided the subject of an insanity trial with the right to a jury trial on the question of whether the person was sane or insane. This, by itself, S.E. argues, establishes that—at the time of statehood—no person could be detained for any period of time based upon a belief that the person was insane without first having had a jury determine the person's insanity. On this premise, S.E. contends that RCW 71.05.240 is unconstitutional because it does not provide a person the right to a jury determination of the issues presented at a probable cause hearing. S.E.'s argument in this regard also constitutes an implied challenge to RCW 71.05.150, inasmuch as the 72-hour commitment period provided for therein is also allowed to commence without a jury first determining the factual question of the person's sanity.

C

¶11 We review de novo a constitutional challenge to a statute, with a presumption that the statute is constitutional. In re Det. of M.W. , 185 Wash.2d 633, 647, 374 P.3d 1123 (2016) (citing City of Bothell v. Barnhart , 172 Wash.2d 223, 229, 257 P.3d 648 (2011) ). As the party challenging the constitutionality of a statute with regard to the jury trial right, S.E. bears the burden to show that territorial authority in effect upon the adoption of the Washington Constitution provided for a right to a jury trial in a proceeding analogous to the challenged statutory proceeding. M.W. , 185 Wash.2d at 647, 662, 374 P.3d 1123 (citing Barnhart , 172 Wash.2d at 229, 257 P.3d 648 ; Endicott v. Icicle Seafoods, Inc. , 167 Wash.2d 873, 884, 224 P.3d 761 (2010) ).

¶12 The Washington Constitution provides that, "The right of trial by jury shall remain inviolate." CONST. art. I, § 21.³ In proceedings to commit a person for evaluation and treatment of a mental disorder, "the jury plays an essential role in guarding against wrongful commitment." In re Quesnell , 83 Wash.2d 224, 241, 517 P.2d 568 (1973).

¶13 To determine whether the state constitution grants the right to a jury trial in a particular proceeding, we engage in a two step analysis: "First, we determine the scope of the right to a jury trial as it existed at the time of our founding in 1889; second, we determine if the type of action at issue is similar to one that would include the right to a jury trial at that time." M.W. , 185 Wash.2d at 662, 374 P.3d 1123 (citing Endicott , 167 Wash.2d at 884, 224 P.3d 761 ). The nature of our inquiry " ‘is a purely historical question, a fact which is to be ascertained like any other social, political or legal fact. The right is the historical right enjoyed at the time it was guaranteed by the Constitution.’ " Wings of the World, Inc. v. Small Claims Court , 97 Wash.App. 803, 807, 987 P.2d 642 (1999) (quoting State ex rel. Goodner v. Speed , 96 Wash.2d 838, 841, 640 P.2d 13 (1982) ).⁴

¶14 We look to contemporaneous legal authority as well as legal authority subsequent to statehood as representative of "the essence of the [jury trial] right's scope." Sofie v. Fibreboard Corp. , 112 Wash.2d 636, 645-46, 771 P.2d 711, 780 P.2d 260 (1989) (referencing In re Ellern , 23 Wash.2d 219, 224, 160 P.2d 639 (1945) ; State v. Strasburg , 60 Wash. 106, 116, 110 P. 1020 (1910) ); see also Speed , 96 Wash.2d at 841-42, 640 P.2d 13 (discussing State v. Tieman , 32 Wash. 294, 295-98, 73 P. 375 (1903) ).

D

¶15 S.E. asserts that, at the time of statehood, no person could be detained for any period upon suspicion of insanity unless such detention was preceded by a court hearing at which a jury could decide the facts. She has not proved this to be true.

¶16 "[W]hatever right may have been given to a trial by jury in proceedings to adjudicate insanity by a territorial statute, a constitutional guaranty that the right to trial by jury shall remain inviolate preserves such right to the extent given by the statute ." Sherwin v. Arveson , 96 Wash.2d 77, 83, 633 P.2d 1335 (1981) (emphasis added) (citing Ellern , 23 Wash.2d at 224, 160 P.2d 639 ).

¶17 In commitment proceedings, the jury trial right was preserved [i]nasmuch as the Code of 1881, § 1632 ... provided that when the mental condition of a person was the subject of judicial inquiry, he had the right to demand a jury trial. Sherwin , 96 Wash.2d at 83, 633 P.2d 1335.

¶18 Section 1632 of the Code of 1881 read:

The probate court of any county in this territory, or the judge thereof, upon application of any person under oath, setting forth that any person by reason of insanity is unsafe to be at large, or is suffering under mental derangement, shall cause such person to be brought before said court or judge at such time and place as the court or judge may direct; and shall cause to appear at said time and place, one or more respectable physicians who shall state under oath in writing, their opinion of the case, which opinion shall be carefully preserved and filed with

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