In re WRG

• Decision Date: 15 February 2002
• Docket Number: No. 26871-0-II., No. 26087-5-II
• Citation: 40 P.3d 1177,110 Wash.App. 318
• Court: Washington Court of Appeals
• Parties: In the Detention of W.R.G. State of Washington, Respondent, v. W.R.G., Appellant.

40 P.3d 1177

110 Wash.App. 318

In the Detention of W.R.G.

State of Washington, Respondent, v. W.R.G., Appellant.

Nos. 26087-5-II, 26871-0-II.

Court of Appeals of Washington, Division 2.

February 15, 2002.

Pattie Mhoon (Court Appointed), Tacoma, for Appellant.

Pamela H. Anderson, Allison Margaret Stanhope, Assistant Attorneys General, for Respondent.

SEINFELD, J.

W.R.G. appeals two separate involuntary commitment orders, each of which authorized the State to detain him for a 180-day treatment period at Western State Hospital (WSH). The treatment periods have expired in both instances and, thus, the cases are moot. Nonetheless, we review his jury instruction challenge, finding that it presents an issue of continuing and substantial public interest. The instruction, which was based on RCW 71.05.320(2), said that there had been a finding in an earlier commitment proceeding that W.R.G. came "into custody as a result of conduct in which he attempted or inflicted serious harm upon the person of another" and that the State did not need to reprove that fact. We conclude that this instruction was improper because the evidence did not support it and it was an unconstitutional comment on the evidence.

FACTS

I. No. 26087-5-II

In April 2000, WSH staff filed a petition seeking a 180-day involuntary commitment period for W.R.G. The petition alleged that W.R.G. had been taken into custody as a result of conduct by which he attempted or inflicted serious physical harm upon another or himself, that he continued to present a likelihood of serious harm, and that he was gravely disabled. The petition also alleged that there was no appropriate less restrictive alternative to involuntary commitment.

WSH professionals testified at trial that W.R.G. suffered from bipolar disorder and pedophilia, that he had stated that upon his release he would contact and reunite with his ex-wife and two daughters who are in hiding, and that he had violated staff rules by collecting pictures of children. They opined that W.R.G. was gravely disabled and that he continued to present a likelihood of serious harm to others.

Over W.R.G.'s objection, the trial court gave instruction 4, which stated in part:

[T]here has been a finding, based on a prior proceeding that the Respondent did come into custody as a result of conduct in which he attempted or inflicted serious harm upon the person of another. That finding is conclusive evidence and the Petitioners are not required to reprove the events that led to Respondent's detention.

Clerk's Papers (CP) at 49. The jury found that W.R.G. suffers from a mental disorder, that he is gravely disabled, and that he presents a likelihood of serious harm to others. On May 15, 2000, the trial court ordered W.R.G. detained at WSH for a period not to exceed 180 days, a period that has now elapsed.

II. No. 26871-0-II

In October 2000, WSH staff again petitioned for a 180-day involuntary commitment period for W.R.G. The testimony at this second commitment hearing was generally consistent with that of the earlier proceeding. WSH staff reported the same diagnosis and again opined that W.R.G. continued to be gravely disabled and that he presented a likelihood of serious harm to others. There were no challenges to the jury instructions and the jury again found that W.R.G. has a mental disorder, that he is gravely disabled, and that he presents a likelihood of serious harm. On December 13, 2000, the trial court entered an order committing W.R.G. for a 180-day involuntary treatment period; this period has also elapsed.

DISCUSSION

I. MOOTNESS

As the 180-day detention periods have expired in both cases, we can not provide effective relief and the appeals are moot. See In the Detention of Swanson, 115 Wash.2d 21, 24, 793 P.2d 962, 115 Wash.2d 21, 804 P.2d 1 (1990); In the Detention of Cross, 99 Wash.2d 373, 376-77, 662 P.2d 828 (1983). Nonetheless, we may reach the merits of moot cases that involve matters of continuing and substantial public interest. Dunner v. McLaughlin, 100 Wash.2d 832, 838, 676 P.2d 444 (1984). In making that determination, we consider "(1) the public or private nature of the question presented; (2) the desirability of an authoritative determination which will provide future guidance to public officers; and (3) the likelihood that the question will recur." Dunner, 100 Wash.2d at 838, 676 P.2d 444.

The need to clarify the civil commitment statutory scheme is an issue of continuing and substantial public interest. In the Detention of LaBelle, 107 Wash.2d 196, 200, 728 P.2d 138 (1986); Cross, 99 Wash.2d at 377, 662 P.2d 828. But challenges that turn on facts unique to a particular case and that are unlikely to recur will not support review. In the Detention of R.A.W., 104 Wash.App. 215, 221, 15 P.3d 705 (2001) (whether trial court had good cause to continue detainee's hearing involved facts unique to detainee's case and was unlikely to recur).

A. Sufficiency of the Evidence

W.R.G.'s challenges to the sufficiency of the evidence turns on facts unique to his particular cases and the trial court's discretionary decision to give the case to the jury. Thus, these claims do not involve matters of continuing and substantial public interest justifying review. See, e.g., In the Detention of R.W., 98 Wash.App. 140, 143-44, 988 P.2d 1034 (1999) (issue of admissibility of transcript testimony was moot because it involved private question, would not likely recur, and was a matter of discretion). As W.R.G. does not raise any other issues in cause No. 26871-0-II, we affirm that commitment order.

B. Instruction 4

W.R.G. also contends that instruction 4 in cause No. 26087-5-II relieved the State of a portion of its burden of proof and constituted a comment on the evidence. Instruction 4 is based on the language of the civil commitment statute, RCW 71.05.320(2).¹ The need to clarify the scope and application of this statute is an issue of continuing and substantial public interest justifying review. See LaBelle, 107 Wash.2d at 200, 728 P.2d 138. Thus, we review W.R.G.'s challenge to the instruction.

II. No. 26087-5-II—INSTRUCTION 4

A. Evidentiary Support

W.R.G. contends that neither a court nor a jury has ever found that he came "into custody as a result of conduct in which he attempted or inflicted serious harm upon the person of another." CP at 49. Thus, he contends, the trial court erred in instructing the jury that there is conclusive evidence deciding this issue. This assignment of error raises a mixed question of fact and law. We not only consider whether there was sufficient evidence to support giving instruction 4, we also must decide what type of evidence is adequate to prove the existence of an earlier conclusive finding.

Under the civil commitment statute, the court can order a person detained for treatment for 180 days based upon the petition of "the superintendent or professional person in charge of the facility" in which the person is confined. RCW 71.05.320(2). The petition may allege one of several grounds, including the two alternatives alleged in this case: (1) if the party "[w]as taken into custody as a result of conduct in which he ... attempted or inflicted serious physical harm upon the person of another, and continues to present, as a result of mental disorder ... a likelihood of serious harm;" or (2) if the party "[c]ontinues to be gravely disabled." RCW 71.05.320(2)(b), (d). This subsection then eliminates the State's burden to reprove the "taken into custody" element where the State has proved this fact in an earlier proceeding: "If the conduct required to be proven in (b) ... of this subsection was found by a judge or jury in a prior trial under this chapter, it shall not be necessary to reprove that element." RCW 71.05.320(2).

Based on this language, the trial court in the case before us instructed the jury that there had been an earlier conclusive finding that W.R.G. had been taken into custody as a result of the specified conduct. To review W.R.G.'s challenge to this instruction, we review the evidence from the prior trial to determine if the jury there did determine that W.R.G. was taken into custody as a result of his attempted or actual infliction of serious harm upon the person of another.

The earlier trial involved the State's petition for a 90-day involuntary commitment period for W.R.G. In that case, the court instructed the jury that it

must find that the petitioners have proved by clear, cogent, and convincing evidence that the respondent has a mental disorder and that he, No. 1, was taken into custody as a result of conduct in which he attempted or inflicted serious physical harm upon a person of another or himself and, as a result of a mental disorder, continues to present a likelihood of serious harm to others or himself or, No. 2, is gravely disabled as a result of a mental disorder.

Report of Proceedings (10/23/98) at 41 (emphasis added). But the trial court's verdict form did not ask the jury to make a finding about why W.R.G. was taken into custody. Instead, it asked the following four questions:

Question 1: Is the Respondent, [W.R.G.], suffering from a mental disorder?

. . . .

Question 2: Is the Respondent, [W.R.G.], gravely disabled?

. . . .

Question 3: Does the Respondent, [W.R.G.], present a likelihood of serious harm to others?

. . . .

Question 4: Which one of the following treatment alternatives would be in the best interests of Respondent or others?

. . . .

Check One:

() Detention for evaluation and treatment at Western State Hospital for a period not to exceed 90 days.

() Treatment in a placement less restrictive than detention at Western State Hospital for a period not to exceed 90 days.

CP at 75-76. The jury responded "Yes" to the first three questions and then checked the first option under question 4.

The State contends that the jury's responses on the above verdict form provided conclusive evidence of the custody prong of RCW...