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Seattle Times Co.

October 4, 1996


Appeal from Superior Court of King County. Docket No: 96-2-22753-6. Date filed: 09/04/96. Judge signing: Hon. Charles W. Mertel.

Authored by William W. Baker. Concurring: Mary K. Becker, C. Kenneth Grosse

The opinion of the court was delivered by: Baker

Under the sexually violent predator provisions of the Community Protection Act, RCW 71.09, once a person has been ordered detained for possible commitment for treatment, he or she is entitled to a probable cause hearing within 72 hours. The purpose of the hearing is to determine whether probable cause exists to believe that the person is a sexually violent predator. If the court determines that probable cause exists, the person is then transferred to an appropriate facility for evaluation, and a trial is held to decide, based upon proof beyond a reasonable doubt, whether the person should be committed to a secure treatment center for sexually violent predators.

D.A.H. was convicted of a sex offense, and incarcerated. The day before he completed serving his sentence, the State commenced a sexually violent predator proceeding. The superior court ordered D.A.H. detained, and sealed the court file. The Seattle Times moved to intervene, and sought to have the file opened. D.A.H. moved to close the probable cause hearing. The superior court ordered that the file remain sealed, and that the probable cause hearing be closed based upon equal protection and privacy rights of D.A.H. The court also ordered that the public may be notified that the courtroom and court file are closed, and that the public will be notified of the outcome of the probable cause hearing. The Seattle Times and D.A.H. both sought discretionary review of the superior court's order, which we granted. We now affirm the superior court, and hold that probable cause proceedings under RCW 71.09 are presumptively closed.

Chapter 71.05 RCW sets forth the procedures for involuntary civil commitment of mentally ill individuals. These procedures are intended primarily to provide short-term treatment to individuals with serious mental disorders and then return them to the community. Because the Legislature found that a small but extremely dangerous group of sexually violent predators exists, who suffer from a "mental abnormality or personality disorder," not appropriate for the short-term treatment procedures contemplated by RCW 71.05, it created an alternative form of civil commitment in RCW 71.09, the sexually violent predator act. *fn1

Equal Protection

Under both of these civil commitment chapters, a person may be committed for treatment based upon a determination that the person suffers either from a "mental abnormality" or a "mental disorder." *fn2 Many of the procedural rights of a person committed under RCW 71.09 are similar to those under RCW 71.05. Both provide that a probable cause hearing must be held within 72 hours of detainment. *fn3 At both probable cause hearings, a person has the right to be represented by an attorney, to present evidence, to cross-examine witnesses, and to review all documents in the court file. *fn4 In both the court must also consider whether a less restrictive alternative treatment would be appropriate. *fn5 On the other hand, RCW 71.09 does not contain provisions similar to RCW 71.05 addressing the confidentiality of records, limited access to records, the limited grounds for releasing records, or the penalties for unauthorized release of records. *fn6

Neither statute specifically addresses whether proceedings under the statute should be closed to the public. Pursuant to the directive of RCW 71.05.570, however, the supreme court promulgated the Mental Proceedings Rules (MPR). In particular, MPR 1.3 states that proceedings under RCW 71.05 shall be closed to the public unless the person subject to the proceedings makes a written request that the proceedings be open. No similar provision for promulgation of rules or closure exists in RCW 71.09. *fn7

In analyzing RCW 71.09, we must look beyond its language and examine Young, the supreme court decision upholding its constitutionality. *fn8 The court noted that RCW 71.09 was a civil statute primarily concerned with incapacitation and treatment because it only applied to individuals with a mental disorder, it provided for the care and treatment of those individuals, and it required that they be released when they were no longer dangerous. *fn9

The Young court analyzed the procedural due process protections provided by the statute. In particular, the court examined the equal protection requirements of the Article I sec. 12 and the Fourteenth Amendment, which require that "'persons similarly situated with respect to the legitimate purposes of the laws receive like treatment'." *fn10 The court distinguished persons committed under RCW 71.09 because (1) they are more dangerous that other mentally ill persons and (2) their treatment is different from other mentally ill persons. *fn11 These distinctions relate, however, to the care and treatment provided under the statute. *fn12 Adopting the United States Supreme Court's reasoning, the court noted that:

dangerousness of the detainee "may be a reasonable distinction for purposes of determining the type of custodial or medical care to be given, but it has no relevance whatever in the context of the opportunity to show whether a person is mentally ill at all". *fn13

Following this reasoning, the court determined that for purposes of care and treatment, persons committed under RCW 71.09 are not similarly situated to persons committed under RCW 71.05. *fn14 For reasons other than care and treatment, however, persons committed under RCW 71.09 are similarly situated to those committed under RCW 71.05. *fn15 In particular, during the initial probable cause determination, a party to a civil commitment proceeding under RCW 71.09 is similarly situated to a party to commitment proceedings under RCW 71.05. *fn16

Applying the Young equal protection analysis to this case, we hold that, for the duration of his probable cause hearing, D.A.H. is similarly situated to those appearing at probable cause hearings under RCW 71.05. As a result, equal protection requires ...

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