State v. McCuistion

• Decision Date: 03 May 2012
• Docket Number: No. 81644–1.,81644–1.
• Citation: 275 P.3d 1092
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. David W. McCUISTION, Petitioner.

275 P.3d 1092

STATE of Washington, Respondent,

v.David W. McCUISTION, Petitioner.

No. 81644–1.

Supreme Court of Washington, En Banc.

Argued May 12, 2011.Decided May 3, 2012.

Nancy P. Collins, David L. Donnan, Washington Appellate Project, Seattle, WA, for Petitioner.

Sarah Sappington, Joshua Choate, Malcolm Ross, Todd Richard Bowers, Brooke Elizabeth Burbank, Office of the Atty. General, Seattle, WA, Jeffrey Todd Even, Office of The Attorney General, Olympia, WA, for Respondent.

William McFarland Van Hook, Attorney General's Office, Olympia, WA, amicus counsel for Kelly Cunningham.Kenneth M. Chang, Kenneth P. Henrikson, The Defender Association, Leslie Jean Garrison, The Schwarz–Garrison Law Firm, Peter Michael MacDonald, Law Office of Pete MacDonald, PLLC, Seattle, WA, amicus counsel for Defender Association.David J.W. Hackett, Donald J. Porter, King County Prosecuting Attorney, Seattle, WA, amicus counsel for King County Prosecutor & Association of Prosecuting Attorneys.William Alderman Jaquette, III, Snohomish County PDA, Everett, WA, amicus counsel for Snohomish County Public Defender Association.Suzanne Lee Elliott, Attorney at Law, Seattle, WA, amicus counsel for Washington Association of Criminal Defense Lawyers.Travis Stearns, Washington Defender Association, Seattle, WA, amicus counsel for Washington Defender Association.MADSEN, C.J.

¶ 1 Three years after he was civilly committed as a sexually violent predator (SVP), David McCuistion sought an evidentiary hearing pursuant to RCW 71.09.090(2). In support of his petition for release, Mr. McCuistion submitted a declaration from an expert stating that he had never qualified as a sexually violent predator. The trial court denied an evidentiary hearing to determine his eligibility for unconditional discharge or conditional release to a less restrictive alternative, and the Court of Appeals denied Mr. McCuistion's motion for discretionary review. Mr. McCuistion claims he was entitled to an evidentiary hearing on the basis of the evidence he presented. He further contends that the 2005 amendments to RCW 71.09.090—which allow for an evidentiary hearing only upon a showing of physiological change or a change in condition resulting from treatment—violate substantive due process and the separation of powers doctrine.

¶ 2 We hold that Mr. McCuistion had neither a statutory nor a constitutional right to an evidentiary hearing because he did not present prima facie evidence that his condition had changed such that he no longer met the criteria for confinement. In addition, we hold that the challenged amendments do not violate procedural and substantive due process. Finally, we conclude that the 2005 amendments do not violate separation of powers principles.

FACTS AND PROCEDURAL HISTORY

¶ 3 Between 1980 and 1993, David McCuistion was convicted of a number of sex-related offenses, including attempted indecent liberties, third degree rape, phone harassment, and second and third degree assault. On October 3, 2003, following an SVP commitment trial, Mr. McCuistion was found to have satisfied the criteria for commitment as a SVP and was committed indefinitely to the care and custody of the Department of Social and Health Services (DSHS).¹ He appealed the commitment order unsuccessfully.

¶ 4 Pursuant to Mr. McCuistion's petition under RCW 71.09.090(2), the trial court held a show cause hearing on October 27, 2006 to determine whether Mr. McCuistion was entitled to a full evidentiary hearing concerning his eligibility for unconditional release or conditional release to a less restrictive alternative. The State submitted written annual reviews produced by DSHS in 2004 and 2005, each of which recommended continued commitment. In the 2005 annual review, Dr. Carla van Dam, PhD, indicated that Mr. McCuistion had scored highly on several risk assessment instruments; had a history of behavioral infractions; had failed to participate in substance abuse or sex offender treatment; and met diagnostic criteria for a number of psychiatric conditions, including pedophilia, paraphilia not otherwise specified, and antisocial personality disorder. She concluded that Mr. McCuistion continued to meet the definition of a SVP and that conditional release to a less restrictive alternative would threaten community safety.

¶ 5 In response, Mr. McCuistion submitted a declaration from Dr. Lee Coleman, MD. Dr. Coleman concluded that Mr. McCuistion did not meet—and indeed, had never met—the criteria for continued confinement.

Given these statutory requirements, I have reviewed institutional records and professional evaluations of Mr. McCuistion and I have formed the opinion that his evaluators have not presented any evidence that such a mental abnormality exists, or has ever existed. Instead, they have relied on his past crimes: the required “mental abnormality” has been “determined” by simply summarizing his past behavior, and the “evidence” for the alleged disorder is a recitation of the details of his past behavior.

Clerk's Papers (CP) at 617 (emphasis omitted). Dr. Coleman also attacked the legitimacy of Washington's SVP commitment scheme.

Dr. DeMarco claims that “Paraphilia Not Otherwise Specified (Nonconsent) is an accepted diagnosis among practitioners knowledgeable about sexual offenders.” I believe it would be more accurate to say that the only practitioners who use this label are those who perform SVP evaluations. But regardless of how many use it, the so-called “diagnosis” is obviously nothing more than doublespeak for the crime of rape. If this is the best the evaluators are capable of doing, when seeking the “congenital or acquired condition,” surely it means that the entire evaluation process is a sham created to fulfill legal and legislative agendas.

Id. at 622–23. In addition to Dr. Coleman's declaration, Mr. McCuistion submitted a law review article providing guidelines for forensic psychologists, several declarations from special commitment center (SCC) staff attesting to his good behavior throughout his stay at the SCC, and two articles providing empirical data on recidivism. One article, prepared by Canadian researchers in 2004, addressed various predictors of recidivism for male sex offenders, including number of previous convictions, age, length of time in the community without subsequent offenses, type of crime (rape versus incest), and victims' gender. The researchers found a significant correlation between age and recidivism, finding that offenders under age 50 at the time of release were twice as likely to reoffend within 15 years as those over age 50. The other article, prepared by the Washington State Institute for Public Policy in 2004, indicated that sex offenders have lower recidivism rates than other types of offenders and that recidivism decreases with advancing age. In particular, the article stated that for every five years' difference in age at release, felony recidivism among sex offenders drops by 3.4 percent and violent felony recidivism by 1.4 percent.

¶ 6 In his briefing, Mr. McCuistion urged the trial court to consider the correlation between aging and recidivism, maintaining that according to Dr. van Dam, the “fantasies and the behaviors” associated with paraphilias “ ‘often diminish with advancing age in adults.’ ” Id. at 608 (quoting 2005 annual review at 16). Similarly, in an interview with Dr. van Dam, he argued that he was unlikely to reoffend because he no longer used alcohol and was older and therefore less impulsive.²

¶ 7 The trial court found that the State had met its burden to present prima facie evidence justifying continued commitment and that Mr. McCuistion had failed to present prima facie evidence that his condition had changed such that he no longer met the criteria for commitment or that conditional release to a less restrictive alternative would be appropriate. The trial court dismissed Dr. Coleman's report as “essentially a re-argument of the original finding that Mr. McCuistion is a sexually violent predator” and reasoned that Dr. Coleman's disagreement “with past examiners and fact-finders does not, itself, make his opinion the correct one.” Id. at 585. The court further explained that “[t]he change in his behavior within the confines of a secure facility does not demonstrate that his mental disorder has been changed in any way” and that “his refusal to participate in sexual deviancy treatment compounds the issue.” Id.

¶ 8 Mr. McCuistion sought discretionary review in the Court of Appeals, arguing that RCW 71.09.090 violated due process and separation of powers principles and that he had presented prima facie evidence that he no longer met the criteria for commitment. The commissioner summarily dismissed Mr. McCuistion's constitutional claims, noting that the Court of Appeals had rejected similar arguments in In re Detention of Fox, 138 Wash.App. 374, 396–400, 158 P.3d 69 (2007) ( Fox I).³ Next, the commissioner concluded that Mr. McCuistion had “presented no evidence that his physical or mental condition had changed since the trial court originally found him to be a SVP” and that “[w]ithout such evidence, the trial court was not required to order a new commitment trial.” Ruling Den. Review, State v. McCuistion, No. 35805–1–II, at 7 (Wash.Ct.App. Jan. 30, 2008). A three-judge panel of the court denied McCuistion's motion to modify the commissioner's ruling.

¶ 9 We granted discretionary review, reversed the Court of Appeals' decision, and remanded for a show cause hearing under the pre–2005 statute. State v. McCuistion, 169 Wash.2d 633, 238 P.3d 1147 (2010), withdrawn May 20, 2011. The State subsequently moved for reconsideration, which we granted. Order Granting Mot. for Recons., State v. McCuistion, No. 81644–1 (Wash. Feb. 9, 2011). We then withdrew our original opinion.

ANALYSIS

The statutory scheme

¶ 10 Chapter 71.09 RCW governs the civil commitment of SVPs in Washington State. This chapter defines a sexually...