October 27, 2014
The State of Washington, Respondent
Rickey A. Beaver, Appellant
Oral Argument September 17, 2014
Appeal from King County Superior Court. Docket No: 04-1-05852-6. Judge signing: Honorable Gain Brian D. Judgment or order under review. Date filed: 01/11/2013.
Casey Grannis (of Nielsen Broman & Koch PLLC ), for appellant.
Daniel T. Satterberg, Prosecuting Attorney, and Alison M. Bogar, Deputy, for respondent.
Verellen, A.C.J. WE CONCUR: Dwyer, J., Schindler, J.
[184 Wn.App. 239] [¶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 [184 Wn.App. 240] defect at the time he committed the offense. 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 10.77.150. In 2012, the State sought to have Beaver's conditional release revoked because he violated release conditions. Instead of revoking Beaver's conditional release,
the trial court modified the conditions of release.
[¶4] Beaver again violated several release conditions. 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. 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.
[184 Wn.App. 241] [¶5] Beaver appealed. While this appeal was pending, Beaver was conditionally released in October 2013 and then finally discharged in May 2014.
[¶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."  Generally, " we do not consider questions that are moot."  However, we may address a moot issue if it presents a matter of " continuing and substantial public interest."  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."  We may also consider a fourth factor: the " level of genuine adverseness and the quality of advocacy of the issues." 
[¶8] Given these considerations, we conclude that the moot issues presented here raise matters of continuing [184 Wn.App. 242] and substantial public interest. 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. 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
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."  The due process clause confers both procedural and substantive protections. 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.
[184 Wn.App. 243] [¶11] Substantive due process " 'bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them.'"  The level of review applied in a substantive due process challenge depends upon the nature of the interest involved. " 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." 
[¶12] Liberty is a fundamental right. " Accordingly, a civil commitment scheme ... is constitutional only if it is narrowly drawn to serve compelling state interests."  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." '"  Beyond that, " [s]ubstantive due process requires only that the State conduct periodic review of the patient's suitability for release"  because " [t]he committed [184 Wn.App. 244] acquittee is entitled to release when he has recovered his sanity or is no longer dangerous." 
[¶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
or she is charged."  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."  But if the court finds that the acquittee is dangerous, the acquittee may be detained for treatment. 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."  But the court may revoke the conditional release or modify the [184 Wn.App. 245] terms of release if the defendant violates release conditions or presents a public safety threat.
[¶14] Beaver's recommitment upon the revocation of conditional release is supported by adequate findings of mental illness and dangerousness. 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. 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. 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 [184 Wn.App. 246] Dang dangerous to revoke his conditional release."  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
dangerous. Consequently, Beaver's insanity is presumed to continue. 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."  " The fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.'"  " [D]ue process is flexible and calls for such procedural protections as the particular situation demands."  To determine whether a particular procedure satisfies due process, the court must balance three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
[184 Wn.App. 247] [¶17] " It is clear that 'commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.'"  Because the acquittee's " confinement rests on his continuing illness and dangerousness,"  there must be " assurance that every acquittee has prompt opportunity to obtain release if he has recovered."  But this does not mean that the acquittee must be given the opportunity at every stage of the proceedings to demonstrate that he has recovered. Rather, due process requires only that he be given a prompt opportunity to obtain release.
[¶18] Beaver concentrates on the absence of any statutory requirement that the trial court make a finding that the acquittee is suffering from a current mental illness before revoking a conditional release. But his narrow focus on one statutory provision ignores the statutory scheme as a whole. Individuals detained under chapter 10.77 RCW have significant procedural rights, and additional or substitute procedural safeguards--namely the [184 Wn.App. 248] statutory procedures for obtaining final discharge--greatly diminish any risk of an erroneous deprivation of liberty. Specifically,
the statutory scheme provides insanity acquittees with the right to petition the secretary of the Department of Social and Health Services or the court directly for final discharge at any time following initial commitment. After such a petition is filed, the court must promptly hold a hearing and the acquittee may request a trial by jury. To obtain final discharge, the insanity acquittee has the burden of proving " by a preponderance of the evidence" that he " no longer presents, as a result of a mental disease or defect, a substantial danger to other persons, or a substantial likelihood of committing criminal acts jeopardizing public safety or security, unless kept under further control by the court or other persons or institutions."  These procedures for obtaining release provide an insanity acquittee with an adequate opportunity to [184 Wn.App. 249] rebut the presumption of continuing mental illness. These alternate procedures provide " assurance that every acquittee has prompt opportunity to obtain release if he has recovered." 
[¶19] Furthermore, the State has an interest in preserving the integrity and efficiency of the current statutory scheme. The " revocation/modification proceeding under RCW 10.77.190 is designed to efficiently determine whether an insanity acquittee has violated the conditions of her release and presents a danger to herself or others."  Beaver's proposal would effectively turn every revocation hearing into a de novo commitment hearing. Instead of focusing on the critical question of whether the acquittee violated release conditions or presents a public safety threat, the court would need to additionally consider whether the acquittee has recovered his sanity. Such an expanded hearing would likely consume valuable resources of time and effort on a proceeding that would do little more than replicate separate release proceedings available to acquittees. In addition, blurring the distinction between the various types of hearings risks shifting the primary responsibility for establishing the condition of the acquittee's [184 Wn.App. 250] mental
health from the acquittee to the State. " Maintaining the trial court's discretion to efficiently address and modify conditions of an acquittee's release is a significant governmental interest." 
[¶20] Balancing these factors, we conclude that an insanity acquittee's procedural due process rights are not violated when a conditional release is revoked without a renewed finding that the acquittee suffers from a mental illness. Although the acquittee's interest in liberty is substantial, so too is the State's interest in avoiding unnecessarily costly and confusing revocation hearings. Most importantly, the risk of erroneous commitment is minimal because existing procedures provide acquittees with the opportunity to be heard at a meaningful time and in a meaningful manner separate from conditional release revocation hearings. Beaver's procedural due process rights were not violated.
[¶21] We further note that Beaver would not prevail even if we accepted his premise that the trial court must find that the insanity acquittee suffers from a current mental illness in order to revoke conditional release. Because the acquittee has the burden to prove that he has regained his sanity, Beaver bears the consequences of failing to obtain such a finding. Here, the trial court did not [184 Wn.App. 251] make any findings regarding Beaver's mental health. " 'In the absence of a finding on a factual issue we must indulge the presumption that the party with the burden of proof failed to sustain their burden on this issue.'"  Thus, in the absence of a finding that Beaver has recovered his sanity, we presume that he remains mentally ill.
[¶22] We need not consider any of the vague claims that Beaver raises in passing in his statement of additional grounds for review.
[¶23] We affirm.
Schindler and Dwyer, JJ., concur.