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In re Pers. Restraint of Meirhofer

Supreme Court of Washington, En Banc

February 12, 2015

In the Matter of the Personal Restraint of Alan Meirhofer, Petitioner. In the Matter of the Detention of Alan Meirhofer

Argued May 8, 2014

Appeal from Whatcom County Superior Court. 96-2-01119-0.

Lila J. Silverstein (of Washington Appellate Project ), for petitioner.

Robert W. Ferguson, Attorney General, and Tricia Boerger, Sarah Sappington, and Mary Robnett, Assistants, for respondent.

AUTHOR: Justice Steven C. González. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Teresa C. Kulik, Justice Pro Tem. AUTHOR: Justice Charles K. Wiggins. WE CONCUR: Justice Sheryl Gordon McCloud, Justice Debra L. Stephens.

OPINION

Page 732

González, J.

[182 Wn.2d 636] ¶ 1 Alan Meirhofer was civilly committed under the sexually violent predator (SVP) act, chapter 71.09 RCW, in 2000. He now seeks a full evidentiary proceeding on whether he still meets the statutory and constitutional criteria for SVP commitment. Before holding such a full evidentiary proceeding, the SVP act directs trial courts to hold an initial show cause hearing to determine whether the State has presented prima facie evidence that continued commitment is justified or the detainee has presented prima facie evidence that his or her condition has " so changed" as to warrant a new evidentiary proceeding. The trial court found the State had made its showing and Meirhofer had not. We affirm.

Background

¶ 2 In the late 1980s, Meirhofer was charged with several counts of brutally raping children, along with charges of burglary and kidnapping. In re Det. of Meirhofer, noted at 109 Wn.App. 1057, 2001 WL 1643535, at *1. Meirhofer was implicated in several more child rapes. Pers. Restraint Pet. (PRP), App. B at 4-8. He pleaded guilty to several charges, apparently in return for the State dropping others. In re Det. of Meirhofer, 2001 WL 1643535, at *1. As Meirhofer finished serving his criminal sentence, the State brought SVP commitment proceedings against him under the SVP act, chapter 71.09 RCW. This act authorizes the State to civilly commit those who " suffer[ ] from a mental abnormality [1] or personality disorder [2] [182 Wn.2d 637] which makes the person likely to engage in predatory acts of

Page 733

sexual violence if not confined in a secure facility." RCW 71.09.020(18). At the civil commitment trial, the State submitted evidence that Meirhofer suffered from pedophilia, paraphilia not otherwise specified (NOS) nonconsent, a personality disorder with antisocial features, and alcohol and amphetamine dependence, and that he had a high risk of reoffending. Mot. for Discr. Review (MDR) (June 15, 2012), App. B at 20, 15. In 2000, a jury found beyond a reasonable doubt that Meirhofer was a sexually violent predator and the trial court ordered him civilly committed to the Special Commitment Center. In re Det. of Meirhofer, 2001 WL 1643535, at *2.

¶ 3 Civil commitment under the SVP act is indefinite, but the Department of Social and Health Services (DSHS) is required to have the condition of each person detained under the act reviewed by a qualified professional at least annually and regularly report to the court whether each detainee still meets the statutory and constitutional criteria for civil commitment. RCW 71.09.070(1); WAC 388-880-031. If the secretary of DSHS determines that a detainee does not still meet the requirements, " the secretary shall authorize the person to petition the court for conditional release to a less restrictive alternative or unconditional discharge." RCW 71.09.090(1). In such cases, " [t]he court must order an evidentiary hearing upon receipt of the petition." State v. McCuistion, 174 Wn.2d 369, 380, 275 P.3d 1092 (2012) (citing RCW 71.09.090(1)), cert. denied, 133 S.Ct. 1460 (2013). Alternatively, those civilly committed under the SVP act can petition the court for either full release or release to a less restrictive alternative than full civil commitment. RCW 71.09.090(2)(a). In such cases, the trial court will hold a show cause hearing to [182 Wn.2d 638] determine if sufficient grounds exist to hold a full evidentiary proceeding. McCuistion, 174 Wn.2d at 380 (citing RCW 71.09.090(2)(a)). At this show cause hearing, the State bears the burden of presenting prima facie evidence that continued commitment is appropriate. Id. (citing RCW 71.09.090(2)(b)); In re Det. of Petersen, 145 Wn.2d 789, 798, 42 P.3d 952 (2002). If it fails to do so, the court will hold a full evidentiary hearing. RCW 71.09.090(2). Alternately, the detainee may present prima facie evidence that there is probable cause to believe his or her condition has " so changed" that release is appropriate. RCW 71.09.090(2)(c)(ii); McCuistion, 174 Wn.2d at 382. If the detainee succeeds, the court will set a full evidentiary proceeding. RCW 71.09.090(2)(c), (3); In re Det. of Petersen, 145 Wn.2d at 798. At the show cause hearing, the court " must assume the truth of the evidence presented; it may not 'weigh and measure asserted facts against potentially competing ones.'" McCuistion, 174 Wn.2d at 382 (quoting In re Det. of Petersen, 145 Wn.2d at 797). " At the same time, the court can and must determine whether the asserted evidence, if believed, is sufficient to establish the proposition its proponent intends to prove." Id. (citing In re Det. of Petersen, 145 Wn.2d at 798). While the court does not weigh the evidence, it is entitled to consider all of it. See In re Det. of Petersen, 145 Wn.2d at 798.

¶ 4 In 2005, the legislature limited the type of evidence and the grounds a court may consider when determining whether there was probable cause to believe an SVP had " 'so changed'" that release might be appropriate. Laws of 2005, ch. 344, § 1. These amendments were in response to two cases where evidentiary hearings had been ordered based on changes in " demographic factors," such as the offender's age, which trial courts found rendered them not likely to reoffend if released. Id. (citing In re Det. of Ward, 125 Wn.App. 381, 104 P.3d 747 (2005); In re Det. of Young, 120 Wn.App. 753, 86 P.3d 810 (2004)). The legislature declared that " a mere advance in age or a change in gender [182 Wn.2d 639] or some other demographic factor after the time of commitment does not merit a new trial proceeding under RCW 71.09.090." Id. The legislature expressed concern that allowing new trial proceedings under RCW 71.09.070 and .090 based on such demographic changes " subverts the statutory focus on treatment and reduces community safety by removing all incentive for successful treatment participation in favor of passive aging and distracting committed persons from fully

Page 734

engaging in sex offender treatment." Id. To avoid disincentivizing treatment, the 2005 provisions stated that probable cause to believe someone has " 'so changed'" exists only when there is a " physiological change to the person, such as paralysis, stroke, or dementia, that renders the committed person unable to commit a sexually violent act and this change is permanent" or when there is a " change in the person's mental condition brought about through positive response to continuing participation in treatment." Id. § 2(4)(b)(i), (ii) (codified as RCW 71.09.090(4)(b)(i)-(ii)). Additionally, " a change in a single demographic factor, without more, does not establish probable cause for a new trial proceeding." Id. § 2(4)(c) (codified as RCW 71.09.090(4)(c)). We initially held these amendments unconstitutional on due process and separation of powers grounds, but on reconsideration, we upheld them. McCuistion, 174 Wn.2d at 378, 398. The United States Supreme Court denied certiorari. 133 S.Ct. 1460. The 2005 amendments and the McCuistion opinion are especially relevant to Meirhofer because he has declined treatment and because his risk to reoffend, as determined by actuarial tests, has largely been reduced because of his advancing age.

¶ 5 In the 2010 annual report to the court, the State's expert, Dr. Saari, stated he did not have sufficient information to diagnose Meirhofer with pedophilia because " there is not sufficient evidence to indicate a clear pattern of sexual attraction to prepubescent" children. PRP, App. B at 12. Dr. Saari gave Meirhofer the provisional diagnosis of " Rule Out [182 Wn.2d 640] Pedophilia." Id. at 11 (boldface omitted). [3] Dr. Saari diagnosed Meirhofer with paraphilia, NOS hebephilia, paraphilia NOS nonconsent, and personality disorder NOS with antisocial and borderline traits. Id. Dr. Saari reported that the Static-99R actuarial risk assessment test suggested that offenders with similar static risk factors as Meirhofer had " a 5-year sexual recidivism estimate of about 20% and a 10-year sexual recidivism estimate of about 30%." [4] Id. at [182 Wn.2d 641] 13. Based on Meirhofer's dynamic risk factors, including the fact that " Meirhofer felt entitled to rape teenage boys when he could

Page 735

not find a way to seduce them," and his own clinical judgment, Dr. Saari concluded that it was his " professional opinion that Mr. Meirhofer appears to continue to meet the definition of a sexually violent predator." Id. at 11, 13, 15. Dr. Saari's 2011 report was consistent and additionally observed that Mr. Meirhofer had been recently suspended from his job in the kitchen at the Special Commitment Center after he was caught making alcohol. Dr. Saari noted in the report that Meirhofer reported he

did not see any problem with making the alcohol, except for the fact he got caught. Prior to making the alcohol, he reportedly did not consider the potential consequences or how it might negatively affect his chances of release from the SCC. When I asked him why it is important to refrain from drinking, given his history of offending while under the influence of substances, he said he did not believe it is important for him to abstain from alcohol. More specifically, he said, " Quite frankly, I never raped anyone when I was drinking, only when I was under the influence of methamphetamine did I do that."

PRP, App. G at 9. Once again, Dr. Saari concluded that Meirhofer continued to meet the definition of an SVP.

¶ 6 Also in 2011, before we withdrew our first McCuistion opinion, a second psychologist, Dr. Rosell, opined that there was insufficient evidence that Meirhofer suffered from pedophilia, as currently defined in the academic literature, and that his risk of reoffending had dropped significantly due to his age. Dr. Rosell diagnosed Meirhofer with alcohol and amphetamine dependence and a personality disorder with antisocial traits. Perhaps sensitive to the legislature's response to Young and Ward and to the pending constitutional challenge to that response in McCuistion, Dr. Rosell's report said that under " pre-2005 standards," Meirhofer " no longer meets the criteria of sexual violent predator based on [182 Wn.2d 642] the lack of evidence of a current paraphilic disorder as well as the low risk found on the actuarial instruments utilized." PRP, App. D at 29. He offered no opinion on whether Meirhofer met the criteria under the 2005 legislative standards.

¶ 7 Based on Dr. Rosell's report and our then recently published opinion in McCuistion, the trial court found that Meirhofer had presented prima facie evidence that " [h]is condition has so changed that he no longer meets the criteria of a sexually violent predator." PRP, App. E at 2. The trial court stayed its order pending this court's resolution of the motion for reconsideration in McCuistion. A few months later, this court withdrew its opinion in McCuistion, and in 2012, we upheld the 2005 amendments. McCuistion, 174 Wn.2d at 398. After we withdrew our first McCuistion opinion, the trial judge found DSHS had met its prima facie burden of showing that Meirhofer continued to meet the statutory definition of an SVP and that Meirhofer had failed to present sufficient prima facie evidence that he did not. MDR (June 15, 2012), App. I at 2 (Oct. 10, 2011 order). Thus, it did not order the evidentiary proceeding Meirhofer seeks. Id.

¶ 8 Meirhofer sought discretionary review of that October order and challenged his continued confinement by way of a personal restraint petition. The Court of Appeals consolidated the two cases and denied relief in an unpublished opinion. In re Pers. Restraint of Meirhofer, noted at 175 Wn.App. 1049, 2013 WL 3867834. We granted review to determine whether Meirhofer was entitled to an evidentiary proceeding under chapter 71.09 RCW or, if not, whether he was entitled to collateral relief.

¶ 9 We affirm.

[182 Wn.2d 643]Analysis

I. Appeal of the RCW 71.09.090 Show Cause Hearing

¶ 10 Under the SVP act, " there are two possible statutory ways for a court to determine there is probable cause to proceed to an evidentiary hearing ... (1) by deficiency in the proof submitted by the State, or (2) by sufficiency of proof" by the detainee that he or she " no longer suffers from a mental abnormality or personality disorder" or that any mental abnormality or personality disorder " would not likely cause the prisoner to engage in predatory acts of sexual violence." In re Det. of Petersen, 145 Wn.2d at 798.

Page 736

We review the legal conclusions the trial court drew from that evidence de novo. Id. at 799. Meirhofer contends he succeeds on both grounds.

¶ 11 First, Meirhofer contends the State's evidence that he " continues to meet the definition of a sexually violent predator" was deficient. See RCW 71.09.090(2)(b). He stresses that the State's expert did not diagnose him with pedophilia and that an actuarial risk assessment test found his risk of reoffending to be 30 percent over the next 10 years, among other things. See PRP, App. G at 10, 12. Considering the experts' conclusions and the reasons recited in the reports, we agree with the courts below that the State has met its statutory prima facie burden. An SVP is " any person who has been convicted of ... a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility." RCW 71.09.020(18). It is undisputed that Meirhofer has been convicted of sexually violent crimes. In re Det. of Meirhofer, 2001 WL 1643535. It is also undisputed that Meirhofer has been currently diagnosed by licensed forensic psychologists with both mental abnormalities and personality disorders, including paraphilia NOS (nonconsent) and [182 Wn.2d 644] personality disorder NOS with antisocial and borderline features. PRP, App. G at 10.

¶ 12 Meirhofer argues that because the State's experts originally testified he suffered from pedophilia and now the State's expert found insufficient evidence for that diagnosis, the State has not met its burden. His argument is unpersuasive. First, this court has affirmed commitment based on paraphilia NOS nonconsent and antisocial personality disorder, which are essentially Meirhofer's remaining diagnoses. See In re Det. of Stout, 159 Wn.2d 357, 363, 150 P.3d 86 (2007). Second, we rejected a similar challenge to continued civil commitment after an insanity acquittal when the detainee's diagnosis changed in State v. Klein, 156 Wn.2d 102, 120-21, 124 P.3d 644 (2005). While we cautioned that " '[d]ue process requires that the nature of the commitment bear some reasonable relation to the purpose for which the individual is committed,'" we found sufficient connection from the " original diagnosis of 'psychoactive substance-induced organic mental disorder' ... and the current diagnosis of polysubstance dependence" to justify continued commitment. Id. at 119-20 (first alteration in original) (quoting Foucha v. Louisiana, 504 U.S. 71, 79, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992)). We observed that " the subjective and evolving nature of psychology may lead to different diagnoses that are based on the very same symptoms, yet differ only in the name attached to it." Id. at 120-21. Similar principles apply here. Without more, the change from a diagnosis of pedophilia to a " rule out pedophilia" and hebephilia diagnosis is not sufficient to require a new evidentiary proceeding.

¶ 13 Meirhofer also argues that hebephilia may not act as a qualifying mental abnormality or personality disorder under the SVP act. He calls our attention to a recent Illinois Appellate Court case where the court required a Frye[5] hearing before admitting evidence that an SVP respondent [182 Wn.2d 645] suffered from hebephilia, which is not a condition listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders. In re Det. of New, 2013 IL App. (1st) 111556, 992 N.E.2d 519, 372 Ill.Dec. 677, 688, appeal granted, 2 N.E.3d 1045, 377 Ill.Dec. 764 (2013). New had appealed his commitment arguing, among other things, that hebephilia was not a diagnosis generally accepted in the scientific community. The Illinois Appellate Court reversed his commitment and remanded for a Frye evidentiary hearing, noting that " if a respondent in an SVP proceeding does not suffer from an actual mental disorder, then there is nothing to cure, and commitment is pointless." Id. But regardless of whether hebephilia is an accepted diagnosis in the relevant scientific community (a question we ...


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