State v. Beaver, 70022–7–I.

CourtCourt of Appeals of Washington
Writing for the CourtVERELLEN
Citation184 Wash.App. 235,336 P.3d 654
PartiesSTATE of Washington, Respondent, v. Rickey A. BEAVER, Appellant.
Docket NumberNo. 70022–7–I.,70022–7–I.
Decision Date27 October 2014

184 Wash.App. 235
336 P.3d 654

STATE of Washington, Respondent,
Rickey A. BEAVER, Appellant.

No. 70022–7–I.

Court of Appeals of Washington,
Division 1.

Oct. 27, 2014.


[336 P.3d 656]

Alison Moore Bogar, King County Prosecutor's Office, Seattle, WA, for Respondent.

Nielsen Broman Koch PLLC, Attorney at Law, Casey Grannis, Nielsen Broman & Koch, PLLC, Seattle, WA, for Appellant.


¶ 1 As a matter of due process, an individual who is found not guilty by reason of insanity may be confined for treatment as long as he is both mentally ill and dangerous. Once the acquittee has been found mentally ill, his insanity is presumed to continue to exist. Because of this presumption, substantive due process does not require a renewed finding of mental illness in order to revoke an insanity acquittee's conditional release. Furthermore, procedural due process does not require such a finding at a revocation hearing primarily because alternative procedures provide acquittees with a meaningful opportunity to demonstrate sanity, thereby minimizing the risk of erroneous commitment. For these reasons, Rickey Beaver has not established that his due process rights were violated by the trial court's order revoking his conditional release without a finding that his mental illness continued to exist. Accordingly, we affirm.


¶ 2 In August 2004, Beaver committed a residential burglary. In August 2005, the trial court entered a judgment of acquittal by reason of insanity pursuant to RCW 10.77.080, finding that Beaver was suffering from a mental disease or defect at the time he committed the offense.1 The trial court also found that Beaver was dangerous and ordered that he be detained in a state mental hospital.

¶ 3 In July 2011, the trial court granted Beaver a conditional release pursuant to RCW In 2012, the State sought to have Beaver's conditional release revoked because he violated release conditions. Instead of revoking Beaver's conditional release,

[336 P.3d 657]

the trial court modified the conditions of release.

¶ 4 Beaver again violated several release conditions.3 In January 2013, the trial court held a revocation hearing to determine whether Beaver's conditional release should be modified or revoked. At the hearing, the trial court expressed concerns about confining Beaver in light of recent medical evaluations suggesting that he was not currently suffering from any mental illness.4 Nevertheless, the trial court revoked Beaver's conditional release “[d]ue to the violations of the conditional release order and the threat to the public presented by Mr. Beaver,” and it ordered that he be recommitted for inpatient treatment.5

¶ 5 Beaver appealed. While this appeal was pending, Beaver was conditionally released in October 2013 and then finally discharged in May 2014.6


¶ 6 Beaver challenges the trial court's order revoking his conditional release. Because Beaver was again conditionally released and then finally discharged while this appeal was pending, the State contends that the claims presented in this appeal should be dismissed as moot. We disagree.

¶ 7 “A moot case is one which seeks to determine an abstract question which does not rest upon existing facts or rights.” 7 Generally, “we do not consider questions that are moot.” 8 However, we may address a moot issue if it presents a matter of “continuing and substantial public interest.” 9 In determining whether a sufficient public interest is involved, 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.” 10 We may also consider a fourth factor: the “level of genuine adverseness and the quality of advocacy of the issues.” 11

¶ 8 Given these considerations, we conclude that the moot issues presented here raise matters of continuing and substantial public interest. 12 Notwithstanding that Beaver has been finally released, many other insanity acquittees are subject to conditional release revocation proceedings. We believe that a decision on the trial court's authority to revoke conditional release in the absence of information regarding the acquittee's current mental health condition will provide useful guidance to lower courts and public officers. The parties have adequately briefed and argued the legal issues presented.13 Thus, we turn to the issues raised in this appeal.

¶ 9 Beaver contends that he was deprived of due process by the trial court's failure to

[336 P.3d 658]

find that he has a current mental illness, and he asserts that the statute authorizing revocation of conditional release is unconstitutional if it does not require such a finding. We disagree.

¶ 10 The federal constitution guarantees that federal and state governments will not deprive an individual of “life, liberty, or property, without due process of law.” 14 The due process clause confers both procedural and substantive protections.15 In his appellate briefing, Beaver does not clearly state whether he believes his recommitment violates the substantive or procedural component. During oral argument, Beaver clarified that he primarily relies upon substantive due process concerns. Regardless, we will address both due process components.

¶ 11 Substantive due process “ ‘bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them.’ ” 16 The level of review applied in a substantive due process challenge depends upon the nature of the interest involved.17 “STATE INTERFERENCE with a fundamental right is subject to strict scrutiny,” which “requires that the infringement is narrowly tailored to serve a compelling state interest.” 18

¶ 12 Liberty is a fundamental right.19 “Accordingly, a civil commitment scheme ... is constitutional only if it is narrowly drawn to serve compelling state interests.” 20 The United States Supreme Court has “ ‘consistently upheld such involuntary commitment statutes' when (1) ‘the confinement takes place pursuant to proper procedures and evidentiary standards,’ (2) there is a finding of ‘dangerousness either to one's self or to others,’ and (3) proof of dangerousness is ‘coupled ... with the proof of some additional factor,’ such as a ‘mental illness' or ‘mental abnormality.’ ” 21 Beyond that, “[s]ubstantive due process requires only that the State conduct periodic review of the patient's suitability for release,” 22 because “[t]he committed acquittee is entitled to release when he has recovered his sanity or is no longer dangerous.” 23

¶ 13 Consistent with these constitutional principles, Washington's commitment scheme allows a defendant to be acquitted of felony criminal charges by reason of insanity if the defendant shows “by a preponderance of the evidence that he or she was insane at the time of the offense or offenses with which he

[336 P.3d 659]

or she is charged.” 24 Upon acquittal, the individual may be released if the court finds “that he or she is not a substantial danger to other persons, and does not present a substantial likelihood of committing criminal acts jeopardizing public safety or security.” 25 But if the court finds that the acquittee is dangerous, the acquittee may be detained for treatment.26 An insanity acquittee detained for treatment may be released into the community subject to conditions if the court finds that “the person may be released conditionally without substantial danger to other persons or substantial likelihood of committing criminal acts jeopardizing public safety or security.” 27 But the court may revoke the conditional release or modify the terms of release if the defendant violates release conditions or presents a public safety threat.28

¶ 14 Beaver's recommitment upon the revocation of conditional release is supported by adequate findings of mental illness and dangerousness. 29 At the revocation hearing here, the trial court determined that Beaver violated release conditions and presented a danger to the community. And Beaver's insanity, as asserted by Beaver in his criminal proceeding and established by the trial court's original findings, was presumed to continue to exist.30 Given these findings, the State's action in recommitting Beaver was not arbitrary and his confinement is consistent with substantive due process demands.

¶ 15 Beaver relies on State v. Bao Dinh Dang to assert that due process nevertheless requires that the trial court find a current mental illness for revocation.31 In Bao Dinh Dang, our Supreme Court held that the trial court was required to make a finding that the acquittee was dangerous in order to revoke his conditional release. But this finding was required because the trial court had never previously found that the acquittee, who had been conditionally released immediately upon his acquittal, was dangerous: “Because Dang had never been found dangerous—indeed, his conditional release required a specific finding of nondangerousness—the trial court was required to find Dang dangerous to revoke his conditional release.” 32 In contrast, the trial court here explicitly found at the time of Beaver's acquittal that he suffered from a mental disease or defect and that he was

[336 P.3d 660]

dangerous. Consequently, Beaver's insanity is presumed to continue.33 Bao Dinh Dang does not support Beaver's substantive due process claim.

¶ 16 Procedural due process requires that, when the State seeks to deprive a person of a protected interest, the “individual receive notice of the deprivation and an opportunity to be heard to guard against erroneous deprivation.” 34 “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ ” 35 “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” 36 To determine whether a...

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