In the Matter of the Detention of JAMES McMAHAN In the Matter of the Detention of SHAWN BOTNER
RCW 71.09.070(1), the Department of Social and Health
Services is required to obtain a mental condition examination
of each person committed as a sexually violent predator (SVP)
at least once every year. We are asked to clarify what the
legislature meant by this requirement and what remedies are
available for noncompliance.
on the plain language of the statute, we hold the Department
is required to finalize a mental condition examination report
at least once every calendar year. Should it fail to do so, a
detained person's recourse is to demand a show cause
hearing. At the show cause hearing, the State may proffer any
evidence that would otherwise be admissible, including an
untimely examination report. The trial court's rulings to
the contrary are reversed.
McMahan's first motion
McMahan was civilly committed as an SVP on November 7, 2012.
On November 25, 2015, Mr. McMahan filed a motion in superior
court, alleging the Department had failed to conduct its
annual examination of his mental condition as required by RCW
71.09.070. Mr. McMahan's motion requested a show cause
hearing regarding his continued detention under RCW
brief, RCW 71.09.090(2)(a) permits a committed person to ask
for a preliminary, "show cause" hearing to assess
the possibility of a full evidentiary hearing regarding the
person's continued eligibility for detention as an SVP.
At the preliminary hearing, the State is burdened with
presenting prima facie evidence supporting continued
detention. RCW 71.09.090(2)(b). This burden may be satisfied
by reliance on an annual report prepared pursuant to RCW
71.09.070. Id. If the State fails to meet its
burden, or if there is probable cause to believe the
committed person's mental condition has changed such that
the criteria for detention are no longer met, the matter must
be set for a full hearing. RCW 71.09.090(2)(c). If the State
satisfies its burden, no further proceedings are warranted.
of his arguments to the trial court, Mr. McMahan demanded the
State be prohibited from satisfying its burden of proof at
the show cause hearing through use of an untimely annual
examination report. Although the State had obtained a report
that recommended continued SVP detention shortly after Mr.
McMahan filed his initial motion, Mr. McMahan argued the
court should exclude the report from evidence as a penalty
for missing its deadline.
trial court agreed with Mr. McMahan. Because the Department
had not completed Mr. McMahan's examination within one
year of his commitment anniversary date, the trial court
found the most recent report untimely. As a sanction for this
deficiency, the court excluded evidence of the report from
Mr. McMahan's show cause hearing. Without the information
from the report, the trial court determined the State had
failed its show cause obligation. Thus, the court ordered a
trial on the merits regarding whether Mr. McMahan should be
released from commitment.
Botner's first motion
Botner was committed as a sexually violent predator on
November 17, 2014. On December 23, 2015, the Department
completed an initial examination report that concluded Mr.
Botner continued to meet the criteria for SVP detention.
Despite the report's adverse recommendation, Mr. Botner
filed a motion for a show cause hearing under RCW
71.09.090(2)(a). Mr. Botner argued that because the
Department's examination report was not issued within one
year of his commitment date, it was untimely and should be
excluded from evidence at his show cause hearing. The trial
court agreed with Mr. Botner and issued the same ruling in
his case as was issued for Mr. McMahan. Specifically, the
trial court granted Mr. Botner's show cause motion,
excluded the examination report from evidence at the show
cause hearing, and ordered a release trial.
proceedings and motions
to the release trials, the State obtained discretionary
review from our court and stays of execution. During the
pendency of the stays, the Department completed additional
examination reports pertaining to McMahan and Botner. Mr.
McMahan's report was completed on December 8, 2016. Mr.
Botner's report was completed on November 28, 2016. Both
reports found a continued basis for SVP detention.
December 2016, McMahan and Botner each filed a second motion
to show cause. They again argued the Department failed to
meet the statutory one-year deadline for their examinations.
Utilizing the anniversary date of the two men's original
orders of commitment as a reference point, the trial court
agreed and found the examination reports untimely. The court
then excluded the reports from consideration at each show
cause hearing and scheduled full evidentiary hearings for
the trial court's second set of rulings, the State again
sought discretionary review and requested stays of all
scheduled evidentiary hearings. These requests were granted
and all four cases pertaining to McMahan and Botner have been
consolidated for review in this appeal.
person committed [as an SVP] shall have a current examination
of his or her mental condition made by the department at
least once every year." RCW 71.09.070(1). This appeal
presents questions over what constitutes a "year;"
what must be done within the yearly period; and when
compliance with the yearly deadline should be measured. We
are also asked what remedies are available if these
obligations are not met. The questions posed turn on
statutory interpretation, which we review de novo.
Dep't of Ecology v. Campbell & Gwinn, LLC,
146 Wn.2d 1, 9, 43 P.3d 4 (2002).
statutory requirement of an examination at ...