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In re Detention of McMahan

Court of Appeals of Washington, Division 3

November 21, 2017

In the Matter of the Detention of JAMES McMAHAN In the Matter of the Detention of SHAWN BOTNER

          Pennell, J.

         Under 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.

         Based 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.


         James McMahan's first motion

         James 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 71.09.090(2)(a).

         In 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.

         As part 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.

         The 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.

         Shawn Botner's first motion

         Shawn 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.

         Subsequent proceedings and motions

         Prior 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.

         In 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 both men.

         After 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.


         "Each 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).

         The statutory requirement of an examination at ...

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