Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 64100-5
Title of Case: In RE the Detention of
v.
Richard Garrett Turay
File Date: 10/21/1999
Oral Argument Date: 12/08/1998
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 91-2-10539-1
Judgment or order under review
Date filed: 05/10/1996
Judge signing: Hon. Michael S. Spearman
JUSTICES
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Authored by Gerry L. Alexander
Concurring: Richard P. Guy
Charles Z. Smith
Charles W. Johnson
Philip A. Talmadge
James M. Dolliver
Dissenting: Richard B. Sanders
Barbara A. Madsen
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Sheryl G. McCloud
Attorney At Law
1201 3rd Ave Ste 3200
Seattle, WA 98101-3052
Counsel for Respondent(s)
Michele A. Hauptman
King County Prosecutor - Appellate Unit
1850 Key Tower
700 5th Ave
Seattle, WA 98104
Donald J. Porter
King Co Prosecuting Aty
900 4th Ave 10th Fl
Seattle, WA 98164
David J. Hackett
Deputy Pros. Attorney
King County Courthouse
516 3rd Ave Rm W554
Seattle, WA 98104-2312
Counsel for Other Parties
Sarah J. Coats
Assistant Attorney General
670 Woodland Square Lp Se
P O Box 40124
Olympia, WA 98504-0124
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In re the Detention of )
) No. 64100-5
RICHARD GARRETT TURAY, )
) En Banc
Appellant. )
) Filed October 21, 1999
ALEXANDER, J. - After a King County Superior Court jury found Richard Turay
to be a sexually violent predator (SVP), the trial judge committed him to
the Special Commitment Center (SCC) at Monroe. Turay appealed and sought
direct review by this court of his commitment and the trial court's rulings
on numerous of his pretrial, trial, and posttrial motions. We granted
review. Turay also filed a personal restraint petition (PRP) in this court
in which he raised basically the same issues that he raised on appeal,
including the question of whether the conditions of his confinement and the
statute under which he was committed are unconstitutional. We granted
review of Turay's PRP as well as the State's cross-appeal of the trial
court's ruling that the State bears the burden of proof at show cause
hearings in SVP commitment trials. We hold that the commitment statute is
constitutional and, therefore, affirm the order of commitment.
FACTS
In 1991, a less than unanimous King County Superior Court jury
determined that Richard Turay was an SVP within the parameters of RCW
71.09.060, and he was, therefore, committed to the SCC at Monroe.
Following Turay's commitment, this court issued its decision in In re
Personal Restraint of Young, 122 Wn.2d 1, 857 P.2d 989 (1993), in which we
held that a unanimous jury verdict is necessary to support a finding that
an individual is an SVP. In light of that opinion, the Court of Appeals
vacated the order committing Turay, and remanded to the superior court for
a new trial.
In November 1993, Turay filed a motion, in superior court, to dismiss
the State's petition and for his immediate release based upon, inter alia,
"the due process and equal protection clauses of the state and federal
constitutions." Clerk's Papers (CP) at 330. This motion was denied. In
January 1994, Turay filed an additional motion to dismiss the commitment
proceeding, arguing that the court "must dismiss the {commitment} petition
against {him} because the conditions of his confinement are punitive, not
treatment oriented in nature." CP at 357. In September 1994, Turay filed
still another motion to dismiss based on a "violation of {his} privacy
right." CP at 675. The latter two motions were not ruled on before trial.
On several occasions prior to his second commitment trial, Turay engaged in
colloquy with the trial court about the possibility of representing
himself. On one occasion, he filed a written motion in which he requested
that attorney Mark Mestel represent him at his upcoming commitment trial or
that, alternatively, his then-attorney, Jennifer Shaw, continue to
represent him. As a third alternative, Turay requested that the trial
court allow him to act as his own counsel. The trial court ordered that
Shaw continue to represent Turay.
Also prior to his new trial, Turay filed a lawsuit in the United
States District Court for the Western District of Washington against
several officials at the SCC.1 In this suit, which he maintained under 42
U.S.C. sec. 1983, Turay alleged, as he had in state court, that the
conditions of his confinement at the SCC were unconstitutional and thus
violative of his civil rights as guaranteed by the United States
Constitution. A federal court jury found that the officials at the SCC had
violated Turay's constitutional right to access to adequate mental health
treatment and awarded him $100.00 in compensatory damages. Following
receipt of the verdict, the United States District Court placed the SCC
under an injunction "narrowly tailored to remedy this constitutional
violation."2 CP at 477.
At Turay's second commitment trial, which took place in superior court
following entry of the injunction in the federal litigation, a jury found
that he was an SVP and that "the best interests of {Turay} or others will
not be served by less restrictive treatment which is an alternative to
total confinement." CP at 844. Accordingly, on October 19, 1994, the
trial court entered an order committing Turay as an SVP. Nine days later,
Turay filed a motion that he denominated as a "Motion for New Trial and for
Extension of Time." CP at 847.
In April 1995, in response to Turay's September 1994 pretrial motion to
dismiss, the trial court entered "Findings of Fact and Conclusions of Law
and {an} Order" in which it concluded that certain aspects of the SCC's
treatment program violated Turay's substantive due process rights. CP at
848-63. It, therefore, ordered the SCC to remedy those deficiencies in its
treatment program and "to report to the Court within 30 days . . . as to
the status of the conditions found to be in violation of {Turay's}
constitutional rights." CP at 863. On December 8, 1995, a show cause
hearing was held, pursuant to RCW 71.09.090(2), to determine "whether facts
exist that warrant a hearing on whether Richard Turay's condition has so
changed that he is safe to be conditionally released to a less restrictive
alternative or unconditionally discharged." CP at 5. The trial court
determined at that hearing that sufficient facts were not presented to
warrant a further hearing, and it ordered that Turay continue in detention.
One week later, Turay filed a motion for an order to dismiss and to vacate
his detention, arguing that his confinement at the SCC amounted to
"punishment," and thus "violate{d} the double jeopardy clause." CP at 948.
He also filed a "Motion for Reconsideration of RCW 71.09.090 Continuing
Detention Decision," alleging that "RCW 71.09's yearly review provisions"
violated the Equal Protection and Due Process clauses of the Washington
State and United States Constitutions. CP at 1050, 1052, 1068.
On May 9, 1996, the trial court entered an order in response to
Turay's motions to dismiss and for reconsideration. It upheld the
constitutionality of RCW 71.09.090 and denied Turay's request for immediate
release. It did, however, conclude that RCW 71.09.090 violated equal
protection by failing to grant an SVP a mandatory review hearing at
intervals of 180 days as is the case with mentally ill persons under RCW
71.05.3 The remedy imposed by the trial court was simply to require review
hearings for SVPs every 180 days as opposed to annually as provided by RCW
71.09.090. In addition, the court concluded that the State bears the
burden of proof at show cause hearings held pursuant to RCW 71.09.090(2),
at which the court determines whether there is probable cause to believe
that the SVP's "mental abnormality or personality disorder has so changed
that {he or she} is not likely to engage in predatory acts of sexual
violence if conditionally released." CP at 1156-157.
On May 22, 1996, Turay appealed and sought direct review by this court of
the trial court's order committing him as an SVP, and its rulings on "all
pretrial, trial, and post-trial motions." CP at 1164. The State cross-
appealed the trial court's ruling placing the burden of proof on it at show
cause hearings held pursuant to RCW 71.09.090(2). Shortly thereafter,
Turay filed a PRP in this court in which he raised basically the same
issues that he raised on direct appeal. We granted review of the direct
appeal and the PRP, and consolidated the two cases.
Because the State raised a question as to the timeliness of Turay's
direct appeal, he filed a motion to enlarge time to file notice of appeal.
The State subsequently filed a motion to redesignate the portion of Turay's
notice of appeal relating to the trial court's May 9, 1996 order into a
"notice for discretionary review." Mot. to Redesignate at 2. These
motions were passed to the merits.
We also requested that the parties advise us in writing of any new
developments regarding the conditions at the SCC. After both parties filed
their responses to this request, the State filed a motion to strike a
portion of Turay's response, claiming that Turay attempted to improperly
supplement the appellate record in violation of RAP 9.1 and 9.11. This
motion was also passed to the merits.
I. PROCEDURAL ISSUES
A. Timely Notice of Appeal
The State claims that Turay's appeal of his 1994 commitment order was
not timely and should, therefore, be dismissed. Pursuant to RAP 5.2(a),
Turay had 30 days from the date the commitment order was entered within
which to file his notice of appeal. Although Turay did not file his
"notice of appeal" until May 22, 1996, which was far more than 30 days
after the date the commitment order was entered, he did file his motion for
new trial and for extension of time within 10 days of the entry of the
commitment order.4 Turay contends that because the trial court failed to
rule on this motion, the time for filing his appeal was tolled pursuant to
RAP 5.2(e) until the trial court issued its May 9, 1996 order denying his
release from confinement, an order which he concedes "decided {his}
outstanding motion for {a} new trial."5 Appellant's Opening Br. at 69.
The State counters Turay's argument by asserting that the motion, which
Turay filed on October 28, 1994, was not, notwithstanding its title, a
motion for a new trial and, thus, did not toll the period within which to
file a notice of appeal. Turay's motion, in relevant part, stated:
{R}espondent . . . moves the court for an order for a new trial.
Respondent additionally seeks an order granting a thirty day extension of
time in which to identify the specific reasons in law and fact as to the
grounds for his motion. This motion is based on CR 59, the files and
records herein, and the attached affidavit of Karen P. O'Shea.
CP at 847. This motion was supported by an affidavit by Turay's attorney,
in which she stated:
1. I am one of the attorneys for respondent Richard Turay.
2. My law firm substituted as counsel for respondent on October 19, 1994.
3. I have met with Mr. Turay's previous counsel and have been provided
with their file materials.
4. The file in this case is voluminous and the issues are complex. I will
be unable to review and digest all of the relevant materials within ten
days after the entry of the Order of Commitment.
5. In order to adequately represent the interests of respondent, an
additional thirty days from the date of this motion is requested in which
to state the grounds for a new trial.
CP at 3.
Even viewing the motion and its supporting affidavit in a light favorable
to Turay, it cannot be said that he meticulously complied with the
procedural requirements for a motion for a new trial that are found in CR
59(b) and King County LR 7.6 Indeed, Turay's counsel concedes that his
motion was "slim." Appellant's Opening Br. at 69. He contends, however,
that it was legally sufficient because "nothing in the rules differentiates
between well prepared and poorly prepared motions." Appellant's Opening
Br. at 69.
When this court made major revisions to the rules of civil procedure in
1967, it had as a goal the elimination of "many procedural traps now
existing in Washington practice'" and minimization of "technical
miscarriages of justice inherent in archaic procedural concepts once
characterized by Vanderbilt as 'the sporting theory of justice.'" Curtis
Lumber Co. v. Sortor, 83 Wn.2d 764, 766, 767, 522 P.2d 822 (1974) (quoting
in part Forward to Civil Rules for Superior Court, 71 Wn.2d xxiii, xxiv
(1967)). In keeping with this mandate, Washington's appellate courts have
strived to elevate substance over form, and decide cases on their merits.
See Vaughn v. Chung, 119 Wn.2d 273, 280, 830 P.2d 668 (1992) (holding "that
the civil rules contain a preference for deciding cases on their merits
rather than on procedural technicalities"); Weeks v. Chief of State Patrol,
96 Wn.2d 893, 895, 639 P.2d 732 (1982) (stating the "present rules were
designed to allow some flexibility in order to avoid harsh results"); First
Fed. Sav. & Loan Assoc. v. Ekanger, 93 Wn.2d 777, 781, 613 P.2d 129 (1980)
(holding that "whenever possible, the rules of civil procedure should be
applied in such a way that substance will prevail over form").
Furthermore, in In re Saltis, 94 Wn.2d 889, 896, 621 P.2d 716 (1980), we
held that substantial compliance with procedural rules is sufficient
because "'delay and even the loss of lawsuits {should not be} occasioned by
unnecessarily complex and vagrant procedural technicalities.'" (alteration
in original) (quoting Curtis Lumber, 83 Wn.2d at 767).
After viewing Turay's October 28, 1994 motion and supporting affidavit
with the aforementioned principles in mind, we are satisfied that the
submissions satisfy the spirit, if not the letter, of the requirements set
forth in CR 59 and King County LR 7. Significantly, the motion sets forth
the relief that Turay requests. Although it is a bit of a stretch to say
that the motion and affidavit set forth "the specific reasons in fact and
law as to each ground on which the motion {was} based," we believe we can
be generous in reviewing Turay's submissions because, as a practical
matter, he has raised the same issues in his PRP.7 CR 59(b).
As an alternative argument, the State asserts that Turay's notice of appeal
of May 22, 1996 was not timely because the trial court decided "any
remaining pretrial motions" in the April 4, 1995 order, wherein it entered
findings of fact and conclusions of law and an order in regard to Turay's
September 1994 motion to dismiss. Br. of Resp't and Cross-Appellant at 18-
19. This argument fails because the April 1995 order did not purport to
decide Turay's motion for a new trial. Rather, it dealt strictly with his
pretrial motion to dismiss.
Additionally, the State claims that, regardless of the procedural
sufficiency of Turay's motion for a new trial, it did not toll the appeals
period because Turay failed to "note" the motion for hearing. Br. of
Resp't and Cross-Appellant at 13, 14. This contention also lacks merit
because the "failure to note the motion at the time it is served and filed
does not affect the extension of time for appeal under RAP 5.2(e)."
Buckner, Inc. v. Berkey Irrigation Supply, 89 Wn. App. 906, 916, 951 P.2d
338, review denied, 136 Wn.2d 1020, 969 P.2d 1063 (1998).
In short, we are satisfied that Turay's October 28, 1994 motion may be
treated as a valid motion for a new trial. It, therefore, tolled the time
for filing an appeal until May 9, 1996, the date when the motion was
effectively denied. Consequently, Turay's May 22, 1996 notice of appeal
was timely filed.
B. State's Motion to Redesignate a Portion of Turay's Appeal as a Notice
for Discretionary Review
As noted above, the State moved this court for an order "redesignating
{the} portion of . . . Turay's notice of appeal seeking review of the {May
9, 1996} post-commitment order to a notice for discretionary review." Mot.
to Redesignate at 1. It also contends that this request for
"{d}iscretionary review should . . . be denied under RAP 2.3(b)." Br. of
Resp't and Cross-Appellant at 23.
RAP 2.2(a) sets forth the grounds on which a party may appeal a decision of
the superior court as a matter of right. The State contends that
postcommitment orders in SVP cases do not fall under any of the grounds
covered by RAP 2.2(a) and, thus, "review can only be sought through a
timely notice of discretionary review." Mot. to Redesignate at 4.
The only subsection of RAP 2.2(a) arguably applicable to the
postcommitment order at issue is RAP 2.2(a)(1), which provides that a party
may appeal from a "final judgment entered in any action or proceeding."
(Emphasis added.) However, a "final judgment" is one that settles all the
issues in a case. See Rhodes v. D&D Enters., Inc., 16 Wn. App. 175, 178,
554 P.2d 390 (1976); see also CR 54(a)(1) (providing that a "judgment is
the final determination of the rights of the parties in the action").
Pursuant to RCW 71.09.090(3), the superior court has continuing
jurisdiction over a civilly committed individual until he or she is
unconditionally discharged. In our judgment, the postcommitment order was
not a "final judgment" because it did not constitute a final determination
of Turay's rights, nor did it settle all of the issues in the case. Cf. In
re Detention of Petersen, 138 Wn.2d 70, 88, 980 P.2d 1204 (1999) ("A
decision under RCW 71.09.090(2) finding no probable cause is not a final
order after judgment in light of the court's continuing jurisdiction over
the committed persons until their unconditional release."). Because the
May 9, 1996 order was not a "final judgment," we grant the State's motion
to designate the portion of Turay's appeal seeking review of that order as
a "notice for discretionary review."8
Turay, possibly in recognition of the meritorious nature of the
State's motion,9 requests that if we redesignate his notice of appeal, that
we consider the brief he submitted in support of his notice of appeal "as
the required substantive motion for discretionary review." Opp'n to
State's Mot. to Redesignate at 15. Even considering that brief, we
conclude that Turay fails to satisfy the criteria found at RAP 2.3(b) for
discretionary review, and, therefore, we reject his motion for
discretionary review of the postcommitment order.10 In doing so, we note
that the State's victory on this issue is somewhat Pyrrhic, because Turay
has raised the same issues in his appeal from the October 1994 order of
commitment, that he raised in what we have now denominated as a request for
discretionary review of the May 9, 1996 postcommitment order.
C. State's Motion to Dismiss Turay's Personal Restraint Petition
As noted above, Turay filed a PRP in 1997 in which he incorporated the
same arguments that he set forth in his opening brief in support of his
direct appeal. Turay also raised a new claim in his PRP to the effect that
the trial court erred in admitting evidence of his 1977 rape conviction at
his commitment trial because the conviction was unconstitutionally
obtained. The State asserts that the "portions of the PRP duplicating the
direct appeal should be dismissed under RAP 16.4(d) because Turay currently
has an adequate remedy in his direct appeal." State's Mot. on the Merits
to Dismiss Turay's PRP at 1. The State also contends that "{t}he remainder
of the PRP, which challenges the 1977 rape conviction{,} is barred by RCW
10.73.090." State's Mot. on the Merits to Dismiss Turay's PRP at 1.
RAP 16.4(d) states, in relevant part, that "{t}he appellate court will
only grant relief by a personal restraint petition if other remedies which
may be available to petitioner are inadequate." Because we have determined
that Turay filed his direct appeal in a timely fashion, he has an adequate
remedy for all of the claims that he sets forth in the PRP, except for his
claim that admission of his 1977 rape conviction was error. Thus, we need
only address the portion of the PRP dealing with that issue.
With regard to his 1977 rape conviction, Turay asserts that because
SVP commitment proceedings are civil in nature, RCW 10.73.090 is
inapplicable. This assertion, however, ignores the plain language of RCW
10.73.090(1), which provides that "{n}o petition or motion for collateral
attack on a judgment and sentence in a criminal case may be filed more than
one year after the judgment becomes final if the judgment and sentence is
valid on its face and was rendered by a court of competent jurisdiction."
(Emphasis added.) Because Turay is collaterally attacking his 1977 rape
conviction on constitutional grounds, the statute applies. Accordingly,
his failure to file a PRP within a year of this conviction bars our
consideration of it. To hold otherwise would lead to the absurd result of
condoning Turay's failure to challenge the conviction for over 20 years.
Turay argues that, "{e}ven if the one year statute of limitations applies
to civil commitment actions like this one," the one-year period should
begin from when the conviction is used against him in a subsequent
proceeding. Reply Br. in Supp. of PRP at 10. The argument fails, this
court having held that the one-year period in which to challenge a
conviction by collateral attack runs from when the conviction becomes
final, and not when the conviction is used in subsequent proceedings. See
In re Personal Restraint of Runyan, 121 Wn.2d 432, 450-51, 853 P.2d 424
(1993).11
II. SUBSTANTIVE ISSUES RAISED BY TURAY
A. Trial Court's Refusal to Allow Turay to Represent Himself
Turay claims that he "made a clear, timely, and unequivocal request to
represent himself" before his second commitment trial, and that the trial
court committed reversible error when it denied this request. Appellant's
Opening Br. at 15. The State responds that Turay's request for self-
representation was at most "equivocal," and was, therefore, properly
denied. Br. of Resp't and Cross-Appellant at 27.
If Turay desired to represent himself, his request to do so must have
been unequivocal in the context of the record as a whole.12 State v.
Stenson, 132 Wn.2d 668, 740-42, 940 P.2d 1239 (1997), cert. denied, 523
U.S. 1008 (1998). In addition, the United States Supreme Court requires
"that courts indulge in every reasonable presumption" against a defendant's
waiver of his or her right to counsel. Brewer v. Williams, 430 U.S. 387,
404, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977); see also State v. Robtoy, 98
Wn.2d 30, 40, 653 P.2d 284 (1982). Accordingly, in determining whether
Turay's requests to represent himself were unequivocal, we must view the
record as a whole, keeping in mind the presumption against the effective
waiver of right to counsel.
At a pretrial hearing held on November 16, 1997, Turay indicated to the
trial court that he was making a motion "to represent myself with standby
counsel." Report of Proceedings (RP) (Nov. 16, 1993) at 13. He prefaced
this comment, however, with several requests to have Mark Mestel, an
attorney who had represented him at his first commitment trial, represent
him again. Because Mestel was unavailable at that time, the trial judge
asked Turay if he would be willing to work with Jennifer Shaw, of the
Public Defenders Association, until the court could determine whether
Mestel would be able to represent him at some time in the future. Turay
did not directly respond to the trial court's inquiries at that point.
Later in the hearing, the trial court and Turay engaged in the following
colloquy:
THE COURT: Are you willing to work with Ms. Shaw to have her raise
whatever motions she thinks are proper in your behalf? . . . .
. . . .
TURAY: . . . I don't know. I'd have to think it over. I can't make that
decision right now.
RP (Nov. 16, 1993) at 10-11 (emphasis added). The discussion between Turay
and the court continued:
TURAY: Again, do you want me to work with her {Shaw} on the motions
that I just presented, or do you want me to work with her under this - this
law that was found constitutional?
THE COURT: I want you to work with her at least until we find out a
definite word from Mr. Mestel on every aspect of this case . . . .
TURAY: All right.
RP (Nov. 16, 1993) at 12 (emphasis added). Finally, the discussion ended
with the following exchange:
THE COURT: {A}ll I'm asking right now is, are you willing to work
with Ms. Shaw? I don't care if you call her standby counsel or anything,
are you willing to work with her so that she can make the other motions she
believes may have merit to this Court as we start this process?
. . . .
TURAY: On the motions I just presented --
THE COURT: Yes.
TURAY: . . . Instead of me just coming off the top of my head with an
answer, can I have the Court's permission to think this over?
THE COURT: Absolutely.
RP (Nov. 16, 1993) at 13-14. These exchanges illustrate that at this point
Turay did not state an unequivocal desire to proceed without assistance of
counsel. To the contrary, it is apparent that he wanted an attorney, Mark
Mestel, to represent him. At best he was ambivalent about whether he would
accept the appointment of substitute counsel.
At a subsequent hearing that was held on December 15, 1993 the trial
court again broached the subject of whether Turay desired to represent
himself. In response to this inquiry, Turay's court appointed attorney,
Ms. Shaw, expressly stated, "Mr. Turay and I have discussed this and Mr.
Turay does wish to have me representing him on the pretrial motions filed
and argue them today." RP (Dec. 15, 1993) at 3 (emphasis added). The
following day the issue of whether Turay desired to represent himself again
surfaced. At this time, Turay renewed his request to have the court
appoint Mestel as his counsel. Turay went on to state that if Mestel could
not represent him, he would like the court to appoint another attorney, Jim
Short, as his counsel.
The trial court denied, without prejudice, Turay's request to have
Mestel represent him. It did so because Mestel was unavailable. At that
point, Turay made another reference to acting as his own counsel, and was
asked by the trial court if he was in fact making a motion to represent
himself. Turay responded, "I would like to reserve the motion I just made
in representing myself for a later date." RP (Dec. 16, 1993) at 87. These
statements by Turay, in our view, do not satisfy the "unequivocal"
standard.
In February 1994, the trial court entered an order in response to
another motion by Turay. In his motion, Turay requested that the court (1)
appoint Mestel to represent him; (2) alternatively, order Shaw to remain as
his counsel; and (3) as a last choice, allow him to act as his own counsel.
The trial court granted Turay's second request, and ordered that Shaw
continue to represent him. Significantly, in Stenson this court stated
that if a defendant requests to act as his own attorney as an alternative
to substitution of a new counsel, this may constitute an indication to the
trial court that, in light of the whole record, the request is not
unequivocal. See Stenson, 132 Wn.2d at 740-41. Further, it is noteworthy
that Turay's request to proceed without counsel was actually his third
request, thereby undermining his assertion that his request was
unequivocal.
The final discussion regarding whether Turay wanted to represent
himself occurred at a pretrial hearing on February 25, 1994. At that
hearing, Turay again stated that he wanted the court to appoint Mestel to
represent him, and he objected to the fact that the court had not appointed
Mestel as his counsel. The court asked Turay, "Do you feel that you and he
{the appointed attorney} are going to be able to have at least a decent
attorney-client relationship?" RP (Feb. 25, 1994) at 3. Turay responded,
"Yes, I don't see any problem in that, but I would still like to preserve
my objections." RP (Feb. 25, 1994) at 3. Once again, Turay's statements
fall short of an unequivocal request to waive his right to counsel.
In sum, when we examine the record as a whole, and in light of the
presumption against waiver of right to counsel, we conclude that Turay's
requests to represent himself were, at best, equivocal.13 Accordingly, the
trial court did not err in denying Turay's motions to represent himself.
B. Admission of Testimony Regarding Turay's Prior Rape Convictions
At his second commitment trial, Turay made several motions to exclude
the testimony of several of his prior rape victims, expert testimony, and
other evidence relating to these prior rapes.14 Although Turay offered to
stipulate to the existence of his prior rape convictions, in order to
prevent "prejudicing the jury by garnering overwhelming sympathy for {the
victims,}" the State would not agree to enter into such a stipulation.15 RP
(Sept. 21, 1994) at 153. The trial court "exclude{d} any reference to non
sex offenses except those that can be specifically tied, connected to
{Turay's} sexual history," however, it admitted most of the evidence which
Turay sought to exclude.16 RP (Sept. 21, 1994) at 31. Turay asserts that
the trial court erred in admitting this evidence because it was unfairly
prejudicial under ER 403.
Turay concedes that in Young this court "upheld the practice of admitting
testimony from prior victims of the respondent's sex crimes - rather than
admitting only the fact of the Judgment - in sexual predator trials."
Appellant's Opening Br. at 58. He attempts to circumvent Young by relying
solely upon the United States Supreme Court's recent decision in Old Chief
v. United States, 519 U.S. 172, 174, 117 S. Ct. 644, 136 L. Ed. 2d 574
(1997), wherein the court held:
The issue here is whether a district court abuses its discretion if it
spurns such an offer and admits the full record of a prior judgment, when
the name or nature of the prior offense raises the risk of a verdict
tainted by improper considerations, and when the purpose of the evidence is
solely to prove the element of prior conviction.
Turay's reliance upon this case is misplaced for several reasons. First,
Old Chief is not entirely on point because the State's purpose for
introducing prior victim testimony in SVP proceedings is not "solely" to
prove the existence of a prior conviction. Old Chief, 519 U.S. at 174.
The purpose of SVP commitment proceedings, pursuant to RCW 71.09.060(1), is
for "{t}he court or jury {to} determine whether, beyond a reasonable doubt,
the person is a sexually violent predator." In making this determination,
the manner in which the alleged SVP committed his or her previous crimes is
relevant to establish the "motivations and mental states" of that person.
Young, 122 Wn.2d at 53. Furthermore, the prejudicial effect of introducing
testimony of prior victims does not outweigh its probative value because
"{i}n assessing whether an individual is a sexually violent predator, prior
sexual history is highly probative of his or her propensity for future
violence" and "the likelihood of continued violence on the part of
petitioners is central to the determination of whether they are sexually
violent predators under the terms of the Statute." Young, 122 Wn.2d at 53
(emphasis added). Accordingly, the rationale behind admitting prior victim
testimony in an SVP commitment proceeding is not solely to prove the
element of prior conviction, but rather to assess the mental state of the
alleged SVP, the nature of his or her sexual deviancy, and the likelihood
that he or she will commit a crime involving sexual violence in the future.
In addition, the other prong in the test set forth in Old Chief is not
met here. The Supreme Court stated there that the improper ground at issue
was the possibility of "generalizing a defendant's earlier bad act into bad
character and taking that as raising the odds that he did the later bad act
now charged." Old Chief, 519 U.S. at 180. As we stated above, this simply
is not the purpose of an SVP commitment proceeding because the trier of
fact is not attempting to determine whether the alleged SVP committed the
"bad act now charged," but is rather trying to determine whether the person
suffers from a mental abnormality or personality disorder which makes them
likely to engage in predatory acts of sexual violence if not confined in a
secure facility. See RCW 71.09.020(1).
The final reason why Turay's reliance upon Old Chief is erroneous is
that in that case the Supreme Court stated its "holding is limited to cases
involving proof of felon status." Old Chief, 519 U.S. at 183 n.7. SVP
commitment proceedings, as previously noted, do not revolve around "proof
of felon status," but rather turn upon the determination of whether a
particular person fits within the definition of an SVP. See RCW
71.09.060(1).
Finally, even assuming arguendo that Old Chief is applicable to SVP
commitment proceedings, this court is not bound by that decision because
"federal case law interpreting a federal rule is not binding on this court
even where the rule is identical '{t}his court is the final authority
insofar as interpretations of this State's rules is concerned.'" State v.
Copeland, 130 Wn.2d 244, 258-59, 922 P.2d 1304 (1996) (alteration in
original) (quoting State v. Brown, 113 Wn.2d 520, 548, 782 P.2d 1013, 787
P.2d 906, 80 A.L.R.4TH 989 (1989)); see also Orwick v. City of Seattle, 103
Wn.2d 249, 692 P.2d 793 (1984). Accordingly, Old Chief's interpretation of
Fed. R. Evid. 403 does not bind this court in our interpretation of ER 403.
For the aforementioned reasons, the trial court did not err in its
admission of the evidence relating to Turay's prior rape victims.
C. Exclusion at Trial of Evidence of the Conditions of Confinement at the
SCC and of Evidence of the Verdict in Turay's Federal Litigation
Turay contends that the trial court committed reversible error by
granting the State's motion in limine to exclude evidence of the conditions
of confinement at the SCC and of the verdict in Turay's federal litigation17
because this evidence was "relevant and powerful" and the "exclusion of
powerful exculpatory evidence proffered by the defense violates the right
to due process and to present a defense." Appellant's Opening Br. at 63,
64. The State counters that this evidence was properly excluded and that
"Turay's argument depends on a misconstruction of the trial issues." Br.
of Resp't and Cross-Appellant at 73.
Turay's arguments in regard to this issue are meritless and demonstrate a
fundamental misunderstanding of the purpose of an SVP commitment
proceeding.18 The trier of fact's role in an SVP commitment proceeding, as
the trial judge correctly noted, is to determine whether the defendant
constitutes an SVP; it is not to evaluate the potential conditions of
confinement. See RCW 71.09.060(1) (stating "{t}he court or jury shall
determine whether, beyond a reasonable doubt, the person is a sexually
violent predator. . . . If the court or jury determines that the person is
a sexually violent predator, the person shall be committed to the custody
of the department of social and health services {DSHS} for placement in a
secure facility operated by the department of social and health services").
The particular DSHS facility to which a defendant will be committed should
have no bearing on whether that person falls within RCW 71.090.020(1)'s
definition of an SVP. Furthermore, a person committed under RCW 71.09 may
not challenge the actual conditions of their confinement, or the quality of
the treatment at the DSHS facility until they have been found to be an SVP
and committed under the provisions of RCW 71.09. In re Detention
McClatchey, 133 Wn.2d 1, 5, 940 P.2d 646 (1997). As a result, the
conditions at a particular DSHS facility, as well as the verdict in Turay's
federal litigation, are irrelevant to the determination of whether a person
fits within the statutory definition of an SVP and, therefore, the trial
court properly granted the State's motion to exclude this evidence.
Turay also contends that he should have been able to introduce evidence
regarding the conditions of confinement because the trial court permitted
the State's expert, Dr. Dreiblatt, to testify on direct examination that
"among the grounds for his diagnoses of Richard {Turay} was the fact that
Richard threatened to sue people at SCC over the conditions of
confinement." Appellant's Opening Br. at 62. Turay takes Dr. Dreiblatt's
testimony out of context in an attempt to buttress his argument.19 Dr.
Dreiblatt's testimony, when viewed in context, reveals that his diagnosis
of Turay was not influenced by Turay's decision to sue the SCC and some of
its staff members. Rather, Dr. Dreiblatt determined that Turay's threats
fell under an umbrella of a larger group of threats that Turay consistently
made which manifested his dangerousness as an SVP. The introduction of
testimony regarding an alleged SVP's mental abnormality and/or personality
disorder is not only appropriate, but it constitutes the very purpose of an
SVP commitment proceeding. See RCW 71.09.020(1); RCW 71.09.060(1).
Accordingly, we affirm the trial court's granting of the State's motion to
exclude evidence regarding the conditions of confinement at the SCC and the
jury's verdict in Turay's federal case.
D. Trial Court's Instructions
Turay claims that the trial court's jury instructions erroneously reduced
the State's burden of proof from "beyond a reasonable doubt" to a
"preponderance." Appellant's Opening Br. at 79. In support of this
contention Turay asserts that "although the court's instructions to the
jury recited the beyond a reasonable doubt standard of proof, they did not
require the jury to find that {Turay} was a sexually violent predator by
that strict standard of proof. . . . {because} the court instructed the
jury that it might commit {him} if it found that he was a sexually violent
predator by the preponderance, or more likely than not, standard."
Appellant's Opening Br. at 81-82. The State counters this argument by
asserting that "the jury instructions were in accordance with the law and
did not reduce the State's burden of proof." Br. of Resp't and Cross-
Appellant at 86.
RCW 71.09.060(1) provides that the "court or jury shall determine whether,
beyond a reasonable doubt, the person is a sexually violent predator." RCW
71.09.020(1) defines a "'sexually violent predator'" as "any person who has
been convicted of or charged with 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." In accordance with these statutes, the
trial court instructed the jury that:
To find that the respondent Richard Turay is a sexually violent
predator, the State must prove each of the following elements beyond a
reasonable doubt. One, that the respondent has been convicted of a crime
of sexual violence, specifically rape in the second degree; two, that the
respondent suffers from a mental abnormality; and, three, that such mental
abnormality makes the respondent likely to engage in predatory acts of
sexual violence.
If after weighing all of the evidence you have a reasonable doubt as to any
one or more of these elements, then it will be your duty to return a
verdict that the respondent is not a sexually violent predator.
RP (Oct. 7, 1994) at 15-16 (emphasis added).
The trial court's instruction mirrored the language of the SVP
statute, the constitutionality of which we upheld in Young. Young, 122
Wn.2d at 59. Indeed, in Young, we rejected the very argument that Turay
offers here.20 See Young, 122 Wn.2d at 32 n.9 (stating the statute
"requires proof beyond a reasonable doubt"). Because we have previously
considered, and rejected, the argument that Turay makes, we hold that trial
court's instructions did not reduce the State's burden to a preponderance.
E. Annual Review
RCW 71.09.090(2) mandates that persons committed as SVPs receive an
annual review hearing. At trial, Turay asserted that this statute violated
equal protection because individuals committed under RCW 71.05, which
governs the involuntary civil commitment of persons with serious mental
disorders, receive review hearings every 180 days. The trial court agreed,
and, in an attempt to cure this perceived constitutional defect,
essentially grafted the 180-day review requirement of RCW 71.05 onto RCW
71.09.090(2). Turay contends here that the trial court should have struck
down RCW 71.09.090 as void in its entirety rather than judicially rewriting
the statute. In the alternative, Turay contends that if we determine that
the annual review provision of RCW 71.09.090 does not violate the equal
protection guarantee of the United States Constitution, then we should hold
that it violates the equal protection clause (article I, section 12) of
Washington's Constitution.
In Young, we upheld the constitutionality of RCW 71.09, determining that
"there are no substantive constitutional impediments to the sexually
violent predator scheme." Young, 122 Wn.2d at 26. In addition, we stated
that
{a} person cannot be deprived of procedural protections afforded other
individuals merely because the State makes the decision to seek commitment
under one statute rather than another statute. Thus, in regard to the
initial determination of whether there is probable cause for detention, an
individual is entitled to the same opportunity to appear before the court
to contest detention in any civil commitment proceeding.
Young, 122 Wn. 2d at 45-46 (citations omitted; emphasis added). Turay
claims that "{t}he same conclusion is compelled here, under the same
binding precedent that compelled the Young decision; to paraphrase this
Court, 'in regard to the {postcommitment} determination of whether there is
{sufficient evidence to continue} detention, an individual is entitled to
the same {procedures to contest detention} in any civil commitment
proceeding.'"21 Appellant's Opening Br. at 24 (citing Young, 122 Wn.2d at
45-46). Turay's reliance upon this language in Young, however, is
erroneous because in the passage that he cited we expressly referred to the
initial determination of probable cause, not a subsequent recommitment.
Turay's case is, therefore, distinguishable because he is challenging the
timing of his annual review hearing, rather than an initial determination
of whether there is probable cause for detention.
Turay goes on to contend that his argument "is particularly true given
that this Court must apply the 'strict scrutiny' test to this equal
protection challenge." Appellant's Opening Br. at 24 n.2. This contention
is patently erroneous. In Young we applied the strict scrutiny test "to
the Statute as a whole." Young, 122 Wn. 2d at 26. However, we did not
apply strict scrutiny in our analysis of Young's equal protection challenge
to RCW 71.09. To the contrary, a close examination of our holding
indicates that we applied the rational basis test. See Young, 122 Wn. 2d
at 45 (stating "'{e}qual protection does not require that all persons be
dealt with identically, but it does require that a distinction made have
some relevance to the purpose for which the classification is made'")
(emphasis added) (quoting Baxstrom v. Herold, 383 U.S. 107, 111, 86 S. Ct.
76, 15 L. Ed. 2d 620 (1966)).
The rational basis test was the correct standard to apply in Young, as it
is here, because "{c}ourts have uniformly applied the rational relationship
test to the statutes creating differing classes of persons for purposes of
involuntary commitment statutes." In re Detention of Patterson, 90 Wn.2d
144, 149-50, 579 P.2d 1335 (1978), overruled on other grounds by Dunner v.
McLaughlin, 100 Wn.2d 832, 676 P.2d 444 (1984); see also In re Personal
Restraint of Kolocotronis, 99 Wn.2d 147, 155, 660 P.2d 731 (1983); In re
Personal Restraint of Harris, 94 Wn.2d 430, 436, 617 P.2d 739 (1980).
Moreover, in Dydasco, we expressly held that "{w}hen addressing the
constitutionality of civil commitment statutes creating differing classes
of persons, we apply rational basis scrutiny." In re Detention of Dydasco,
135 Wn.2d 943, 951, 959 P.2d 1111 (1998) (emphasis added) (citing
Patterson, 90 Wn.2d at 149-50).
The rational basis standard of review is relaxed and highly
deferential. DeYoung v. Providence Med. Ctr., 136 Wn.2d 136, 144, 960 P.2d
919 (1998). Under this standard "a legislative classification will be
upheld unless it rests on grounds wholly irrelevant to the achievement of
legitimate state objectives." State v. Thorne, 129 Wn.2d 736, 771, 921
P.2d 514 (1996). Furthermore, the "burden is on the party challenging the
classification to show that it is purely arbitrary." Thorne, 129 Wn.2d at
771.
In our view, there is a rational basis for distinguishing between SVPs
and other mentally ill persons. See Young, 122 Wn.2d at 26 (holding that
"it is irrefutable that the State has a compelling interest both in
treating sex predators and protecting society from their actions")
(emphasis added). Accordingly, in Young we recognized that "there are good
reasons to treat mentally ill people differently than violent sex
offenders." Young, 122 Wn.2d at 44-45. In addition, the Legislature has
specifically found that "the prognosis for curing sexually violent
offenders is poor, the treatment needs of this population are very long
term, and the treatment modalities for this population are very different
than the traditional treatment modalities for people appropriate for
commitment under the involuntary treatment act." RCW 71.09.010. Moreover,
while individuals committed under the RCW 71.05 do not necessarily
constitute a danger to public safety, individuals committed under RCW 71.09
are by definition dangerous to others because they have already committed
at least one sexually violent act.22 See RCW 71.09.020(1); RCW 71.09.030.
Accordingly, there is often an extraordinarily higher public safety
interest at stake when dealing with SVPs committed under RCW 71.09 than
with individuals committed under RCW 71.05.
The combination of the aforementioned factors demonstrates that the
annual review provision for individuals committed under RCW 71.09.090
clearly serves a "legitimate state purpose" and is in no way "arbitrary."
The rational basis test is thus satisfied and, therefore, the annual
commitment review hearings under RCW 71.09.090 do not violate the equal
protection clause.23
Finally, Turay argues that if we determine that annual review
provision of RCW 71.09.090 does not violate the equal protection guarantee
of the United States Constitution, then we should hold that it violates the
equal protection clause of the Washington State Constitution. Although
Turay engaged in the required Gunwall24 analysis, his argument fails. This
is so because a long line of Washington cases establishes that the two
clauses have the same impact. For example, in Housing Auth. v. Saylors, 87
Wn.2d 732, 738-39, 557 P.2d 321 (1976), we stated that "the equal
protection clause of the federal constitution and the privileges and
immunities clause of the state constitution are substantially identical in
their impact upon state legislation." Further, we held that "{w}here
language of our state constitution is similar to that of the federal
constitution, we have held that the language of the state constitutional
provision should receive the same definition and interpretation as that
which has been given to the federal provision." Housing Auth., 87 Wn.2d at
739; see also Standing v. Department of Labor & Indus., 92 Wn.2d 463, 467,
598 P.2d 725 (1979) (holding that "the state {equal protection} clause
usually is to be given the same interpretation as the federal clause); In
re Olsen v. Delmore, 48 Wn.2d 545, 550, 295 P.2d 324 (1956) (holding that
article I, section 12 of the Washington State Constitution "is
substantially identical with the equal protection clause of the fourteenth
amendment"); Texas Co. v. Cohn, 8 Wn.2d 360, 374, 112 P.2d 522 (1941)
(holding that "this court regards the equal privileges and immunities
provision of Art. I, sec. 12, of the state constitution and the equal
protection clause of the fourteenth amendment to the constitution of the
United States as substantially identical").25
In summary, we believe that the annual review provision of RCW
71.09.090 clearly survives Turay's equal protection challenge.
F. The Trial Court's Denial of Turay's Motion to Seal the Commitment
Proceeding
Turay contends that the trial court erred in denying his motion to
seal the commitment proceedings. He argues, in support of that motion,
that because a court may seal RCW 71.05 commitment proceedings, its failure
to do so here constituted a violation of equal protection.26 The State
asserts that the trial court did not err in denying Turay's
motion because "proceedings held under RCW 71.09 are presumptively open,
and should not be closed to protect the reduced privacy interest of
convicted sex offenders." Br. of Resp't and Cross Appellant at 78.
The sole authority Turay cites to support this claim is In re
Detention of D.A.H., 84 Wn. App. 102, 924 P.2d 49 (1996). In that case,
the Court of Appeals held that probable cause hearings under RCW 71.09.040
are presumptively closed because during the duration of that hearing an
alleged SVP is similarly situated to individuals appearing at probable
cause hearings under RCW 71.05, and, thus, equal protection requires that
the same confidentiality and closure protections apply to both individuals.
The court, therefore, reasoned that since proceedings under RCW 71.05 are
presumptively closed to the public, the equal protection clause mandated
that probable cause hearings under RCW 71.09.040 also be sealed. D.A.H. is
distinguishable, however, because the Court of Appeals explicitly limited
its holding in that case to probable cause hearings under RCW 71.09.040,
and refused to extend its analysis to the actual SVP commitment trial under
RCW 71.09.060. In addition, we note that D.A.H. does not appear to be
consistent with case law from this court. We, therefore, question its
continued validity. See, e.g., In re Detention of Campbell, No. 63986-8,
slip op. at 19-21 (Wash. 1999) (holding that the trial court did not
violate a sexually violent predator's privacy rights by refusing to seal
his commitment proceedings because sex offenders threaten public safety and
have reduced privacy interests due to the fact that the "specific modus
operandi of sex offenders, preying on vulnerable strangers or grooming
potential victims, is markedly different from the behavior of other types
of persons civilly committed and such dangerous behavior creates a need for
disclosure of information about convicted sex offenders to the public"); In
re Detention of Petersen, 138 Wn.2d 70, 93-94, 980 P.2d 1204 (1999)
(holding that the commitment procedures for sexually violent predators need
not mirror those for individuals committed under RCW 71.05).
In the final analysis, we have a long tradition of keeping courtrooms
open in this state, and there is certainly a rational basis for doing so
here. See Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 211, 848
P.2d 1258 (1993) (holding that "{w}e adhere to the constitutional principle
that it is the right of the people to access open courts where they may
freely observe the administration of civil and criminal justice"); Cohen v.
Everett City Council, 85 Wn.2d 385, 388, 535 P.2d 801 (1975). Accordingly,
we reject Turay's claim that the trial court's refusal to seal the
proceedings violated his right to equal protection.
G. Constitutionality of the Conditions of Confinement "As Applied" to
Turay
In Young, we held that the SVP statute, RCW 71.09, was "civil rather
than criminal, and does not violate either the prohibition against ex post
facto laws or the double jeopardy clause."27 Young, 122 Wn.2d at 59
(emphasis added). Further, in Kansas v. Hendricks, 521 U.S. 346, 371, 117
S. Ct. 2072, 138 L. Ed. 2d 501 (1997), the United States Supreme Court held
that Kansas's Sexually Violent Predator Act, which is almost identical to
our SVP statute, "comports with due process requirements and neither runs
afoul of double jeopardy principles nor constitutes an exercise in
impermissible ex post facto lawmaking." Turay seemingly ignores those
decisions by alleging that the conditions of confinement at the SCC violate
the double jeopardy clause. He attempts to distinguish his case from Young
and Hendricks by asserting that the conditions at the SCC are punitive and
thereby render RCW 71.09 a criminal statute "as applied" to him, and thus
violative of the double jeopardy clause. Appellant's Opening Br. at 39.
Further, Turay claims that in order to remedy this violation of his
constitutional rights, we must order his release.
The State contends that Turay "mischaracterizes the nature of his
challenge and misunderstands the nature of a challenge to a statute 'as
applied.'" Br. of Resp't and Cross-Appellant at 50. Specifically, the
State claims that
{a}ny alleged deficiencies in the treatment offered by the SCC do not go to
deficiencies in the Statute, but to deficiencies in the administrative
implementation of the Statute. . . . As such, a challenge to these
conditions cannot properly be characterized as a challenge to the Statute
'as applied.'
Br. of Resp't and Cross-Appellant at 60-61. In addition, the State asserts
that "any alleged inadequacies in the implementation of the Statute by
government administrators, particularly when the alleged inadequacies
concern conditions at a facility which are remedial in nature, cannot
impact the constitutionality of the Statute itself." Br. of Resp't and
Cross-Appellant at 52-53.
We believe that Turay's "as applied" double jeopardy challenge to RCW
71.09, based upon the conditions at the SCC, rather than the language of
the statute, is flawed. In order to establish a double jeopardy claim,
Turay must present a "high level of proof" that the statutory scheme he is
challenging (RCW 71.09) is so punitive that it must be considered criminal
and not civil. Young, 122 Wn.2d at 20; see also Allen v. Illinois, 478
U.S. 364, 369, 106 S. Ct. 2988, 92 L. Ed. 2d 296 (1986). In Hudson v.
United States, 522 U.S. 93, 118 S. Ct. 488, 493, 139 L. Ed. 2d 450 (1997),
the Supreme Court clarified the two-part test for determining whether a
particular sanction is criminal or civil for purposes of double jeopardy
analysis, stating:
A court must first ask whether the legislature, 'in establishing the
penalizing mechanism, indicated either expressly or impliedly a preference
for one label or the other.' Ward, 448 U.S. {242, 248, 100 S. Ct. 2636, 65
L. Ed. 2d 742 (1980)}. Even in those cases where the legislature 'has
indicated an intention to establish a civil penalty, we have inquired
further whether the statutory scheme was so punitive either in purpose or
effect,' id., at 248-249, as to 'transfor{m} what was clearly intended as a
civil remedy into a criminal penalty,' Rex Trailer Co. v. United States,
350 U.S. 148, 154 {, 76 S. Ct. 219, 100 L. Ed. 2d 149} (1956).
Hudson, 522 U.S. at 99. Further, in making the latter determination, the
Supreme Court stated that "'only the clearest proof' will suffice to
override legislative intent and transform what has been denominated a civil
remedy into a criminal penalty." Hudson, 522 U.S. at 100 (quoting United
States v. Ward, 448 U.S. 242, 249, 100 S. Ct. 2636, 65 L. Ed. 2d (1980)).
We applied the aforementioned double jeopardy test in Young, and determined
that RCW 71.09 passed constitutional muster. See Young, 122 Wn.2d at 18-
23. Furthermore, we subsequently expressly adopted this test for "the
purpose of determining whether a statute is remedial or punitive under
article I, section 9 of our state constitution." Winchester v. Stein, 135
Wn.2d 835, 845, 959 P.2d 1077 (1998); see also State v. Catlett, 133 Wn.2d
355, 945 P.2d 700 (1997). Accordingly, despite the fact that the case law
clearly establishes the proper double jeopardy test to apply, Turay is
advocating the use of an erroneous test.28
In an attempt to buttress his "as applied" challenge, Turay cites
United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487
(1989), overruled by Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488,
493, 139 L. Ed. 2d 450 (1997), as standing for the proposition that a civil
or criminal sanction constitutes punishment when the sanction as applied in
the particular case serves the goals of punishment. However, in Hudson,
522 U.S. at 96, the Supreme Court "disavow{ed} the method of analysis used
in United States v. Halper." The Supreme Court reasoned that the
analysis applied by the Halper Court deviated from our traditional double
jeopardy doctrine in two key respects. First, the Halper Court bypassed
the threshold question: whether the successive punishment at issue is a
'criminal' punishment. . . . The second significant departure in Halper was
the Court's decision to 'asses{s} the character of the actual sanctions
imposed,' rather than, as Kennedy {v. Mendoza-Martinez, 372 U.S. 144, 169,
83 S. Ct. 554, 9 L. Ed. 2d 644 (1963)} demanded, evaluating the 'statute on
its face' to determine whether it provided for what amounted to a criminal
sanction.
Hudson, 522 U.S. at 101 (emphasis added) (citations omitted). Finally, the
court concluded that
Halper's deviation from longstanding double jeopardy principles was ill
considered. As subsequent cases have demonstrated, Halper's test for
determining whether a particular sanction is 'punitive,' and thus subject
to the strictures of the Double Jeopardy Clause, has proved unworkable.29
Hudson, 522 U.S. at 101-02 (footnote omitted).
It is evident that the United States Supreme Court squarely rejected the
double jeopardy analysis used in Halper, thereby rendering Turay's citation
of the case of no value. Furthermore, Hudson clearly stands for the
proposition that, in performing double jeopardy analysis, a court must look
at the statute on its face to determine whether it actually provides for a
criminal sanction, rather than evaluating the character of the actual
sanctions as imposed.30 It is also noteworthy that the Supreme Court
decided Hudson after Hendricks and yet reaffirmed its ruling that a double
jeopardy challenge to a statute must be made facially rather than by
assessing the character of the actual sanctions imposed i.e., as applied.
Hudson, 522 U.S. at 100-02.
In Winchester, consistent with the Supreme Court's holding in Hudson, we
expressly held that when performing double jeopardy analysis "{t}he focus .
. . is on the sanction allowed by the statute, not the actual sanction
imposed in a particular case." Winchester, 135 Wn.2d at 847. In addition,
we stated that "{a} legislature's designation of a penalty as civil is
entitled to considerable deference and that designation will not be
overborne unless the statute, considered on its face and without reference
to the level of sanction imposed in the particular case, is clearly so
punitive as to render it criminal despite the legislature's intent to the
contrary." Winchester, 135 Wn.2d at 853 (emphasis added). Accordingly,
the State is correct that Turay's "as applied" challenge relating to the
administration of the statute simply does not support a double jeopardy
claim.31
The fact that a federal court recently found that the conditions of
confinement at the SCC do not yet meet constitutional standards is
irrelevant to our holding here because Turay's remedy for these
unconstitutional conditions is not a release from confinement.32 Turay's
remedy for unconstitutional conditions of confinement at the SCC is,
therefore, an injunction action and/or an award of damages.33 He has
already received both monetary damages and an injunction via his federal
litigation. Furthermore, the federal court is maintaining a zealous watch
over the conditions at SCC to enforce the injunction that it put in place.
Accordingly, Turay has an adequate remedy that will guarantee that the
conditions at the SCC will meet or exceed constitutional standards.
We are not unmindful of the fact that the Ninth Circuit Court of
Appeals has recently held that Hendricks "does not preclude the possibility
that the Washington {SVP} statute, as applied, is punitive."34 Young v.
Weston, 176 F.3d 1196, 1199 (9th Cir. 1999). This court is, of course, not
bound by that decision and, for the aforementioned reasons, we decline to
follow it. Assuming arguendo, however, that the Ninth Circuit is correct
that a person committed as an SVP under RCW 71.09 may challenge that
statute as violative of double jeopardy "as applied to them," rather than
facially, Turay's claim would still be unsuccessful.
As previously noted, in order to prevail on a double jeopardy claim, "a
party challenging the statute {must} provide{} 'the clearest proof' that
'the statutory scheme {is} so punitive either in purpose or effect as to
negate {the State's} intention' to deem it 'civil.'" Hendricks, 521 U.S.
at 361 (alteration in original) (quoting Ward, 448 U.S. at 248-49); see
also Young, 122 Wn.2d at 19-20. Accordingly, Turay must prove not only
that the conditions of his confinement are constitutionally deficient in
some manner, but that these deficiencies are "so punitive" that they wholly
render the application of RCW 71.09 criminal rather than civil.
Turay has clearly failed to carry his burden of proof. This conclusion is
evidenced by the fact that the trial court expressly held that the SCC's
failure to provide Turay, in some respects, with constitutionally adequate
treatment did not render RCW 71.09 punitive as applied. Further, the
federal district court, noting that "{p}rogress has been made since the
October 1998 hearing toward compliance with the injunction{,}" has also
refused to find that the conditions at the SCC mandate Turay's release.
Turay v. Weston, No. C91-664WD, Order on Renewed Mots. for Contempt, at 3
(May 27, 1999). In addition, the federal court, as noted above, will
continue to monitor the SCC's progress toward compliance with the
injunction in order to ensure that Turay receives constitutionally adequate
care. As a result, it is evident the deficiencies in Turay's treatment at
the SCC are in the process of being remedied. We agree, therefore, with
the trial court and the federal district court's refusal to order Turay's
release. Accordingly, even if Turay's "as applied" challenge to RCW 71.09
is proper, he has failed to establish by "the clearest proof" that the
deficiencies in his treatment at the SCC render that statute "so punitive"
that it is actually criminal in nature and, therefore, requires his
release. See Campbell, No. 63986-8, slip op. at 9 (Wash. 1999) (citations
omitted) (holding that, to the extent that the defendant's claim was
proper, he had failed to sufficiently prove that the conditions of
confinement at the SCC constitute punishment so as to render RCW 71.09
criminal in nature and unconstitutional as applied to him).
In short, we reject Turay's claim that the conditions of confinement
at the SCC are punitive "as applied" to him and thus violative of the
double jeopardy clause. Further, we deny his effort to have us overrule
our decision in Young, insofar as a facial challenge to RCW 71.09 is
concerned. Turay's remedy for the unconstitutional conditions is a
sec.1983 suit or an injunction action, such as he has already instituted.
III. SUBSTANTIVE ISSUES RAISED BY THE STATE
A. Annual Review
The State contends that the trial court erred when it concluded that
the annual review provision of RCW 71.09.090(2) violated equal protection
and, as a result, grafted the 180-day review requirement of RCW 71.05 onto
RCW 71.09.090(2). As we have previously discussed, the annual review
provision of RCW 71.09.090(2) does not violate equal protection.
Accordingly, we overrule the trial court's attempt to judicially amend RCW
71.09.090(2) to require review every 180 days.
B. Burden of Proof at the Show Cause Hearing under RCW 71.09.090(2)
As previously stated, RCW 71.09.090(2) provides that an individual
committed under RCW 71.09 is entitled to an annual show cause hearing "to
determine whether facts exist that warrant a hearing on whether the
person's condition has so changed that he or she is safe to be
conditionally released to a less restrictive alternative or unconditionally
discharged." The trial court held that this statute does not clearly state
which party bears the burden of proof at the show cause hearing, and thus
"{t}o the extent that the burden of proof is placed upon the respondent,
the statute violates his due process rights." CP at 1157. As a result,
the trial court ruled that "the burden is on the state to show that the
respondent is currently suffering from a mental abnormality or personality
disorder which makes the respondent likely to engage in predatory acts of
sexual violence if conditionally released to a less restrictive alternative
or unconditionally discharged." CP at 1157 (emphasis added). The State
argues that the trial court erred in this ruling, but that
should this Court determine that the trial court was correct and that due
process requires the State to bear the burden of proof at the show cause
hearing, no action on this case is warranted. Since the trial court
required the State to bear the burden of proof at Turay's show cause
hearing, Turay has suffered no prejudice.
Br. of Resp't and Cross-Appellant at 38.
The United States Supreme Court has unequivocally held that "in civil
commitment proceedings the State must establish the grounds of insanity and
dangerousness permitting confinement by clear and convincing evidence."
Foucha v. Louisiana, 504 U.S. 71, 86, 112 S. Ct. 1780, 118 L. Ed. 2d 437
(1992) (emphasis added). This language clearly indicates that due process
requires the State to bear the burden of proof in all civil commitment
proceedings, thereby buttressing the ruling of the trial court.
Furthermore, in Young, we held that "before a person can be civilly
committed, the State must prove that the individual is mentally ill and
dangerous." Young, 122 Wn.2d at 37 (emphasis added; footnote omitted).
Accordingly, both this court and the United States Supreme Court agree that
the State must bear the burden of proof in involuntary civil commitment
hearings, and, therefore, the trial court was correct in determining that
due process requires that the burden of proof remain upon the State in the
show cause hearing. We, therefore, reject the State's contention that it
does not have to bear the burden of proof in show cause hearings held
pursuant to RCW 71.09.090.
CONCLUSION
Turay raised a plethora of issues regarding the validity of his continued
confinement at the SCC pursuant to the 1994 order of commitment that the
King County Superior Court entered against him. For the reasons we have
set forth above, we conclude that the record in this case supports the
order of commitment, and, therefore, we affirm that order. We further
conclude that the trial court erroneously determined that RCW 71.09.090's
annual review provision violated Turay's right to equal protection, and,
thus, we overrule the trial court in respect to that issue. Finally, we
affirm the trial court's ruling that the State must bear the burden of
proof in show cause hearings held pursuant to RCW 71.09.090(2).
WE CONCUR:
1Turay v. Weston, No. C91-664WD (W.D. Wash. 1994)
2On November 25, 1998, the federal court entered an order continuing the
injunction because it found that the conditions of confinement remained, in
part, unconstitutional. The federal court noted, however, that the
"defendants were making good faith efforts to achieve compliance. . . {and
that a} tremendous amount of work has been invested by the parties,
counsel, special master, and the court to accomplish an inherently
difficult task." Third Statement of Supplemental Authorities, app. A at 4.
3RCW 71.05 governs the involuntary civil commitment of individuals who
suffer from a serious mental disorder, and as a result of that disorder,
pose a significant danger to themselves or others.
4CR 59(b) provides that a motion for a new trial must be filed within 10
days after entry of the judgment. Accordingly, Turay filed this motion in
a timely manner.
5RAP 5.2(e), in relevant part, provides that a "notice of appeal of orders
deciding certain timely motions designated in this section must be filed in
the trial court within . . . 30 days after the entry of the order."
6CR 59(b), in relevant part, provides that "{a} motion for a new trial or
for reconsideration shall identify the specific reasons in fact and law as
to each ground on which the motion is based." King County LR 7(b)(4)(B)
elaborates on this requirement and mandates that a motion for a new trial
must state the relief requested, the issues, the evidence relied upon, and
any legal authority relied upon. In addition, Turay failed to attach a
proposed order when he filed the motion for a new trial, despite the fact
that LR 7(b)(4)(C) mandates that "{t}he moving party and any party opposing
the motion shall attach to their papers a proposed order."
7In addition, this allows us to reach the issue the State raises in its
cross-appeal.
8The dissent asserts that our holding "diminishes {Turay's} access to
whatever justice may be provided through appellate review." Dissenting op.
at 1. The dissent goes on to contend that Turay may appeal the trial
court's May 9, 1996 Order Denying Motions for Reconsideration and to
Dismiss as of right pursuant to RAP 2.2(a)(10), which states that orders
granting or denying a motion to vacate a judgment may be appealed as of
right. Dissenting op. at 1-2. This contention ignores the fact that a
person found to be an SVP is not denied access to appellate review because
all SVPs may, as of right, appeal their initial order of commitment
pursuant to RAP 2.2(a)(8). Furthermore, the record does not support the
dissent's characterization of the trial court's May 9, 1996 order. That
order responded to, among other things, Turay's December 15, 1995 "Motion
to Dismiss and Vacate Detention" based upon the conditions of confinement
at the SCC. This motion was not, as the dissent asserts, a motion to
vacate the judgment declaring Turay an SVP. Moreover, as we have noted
above, Turay did not need to file such a motion because he was entitled to,
and indeed did, appeal as a matter of right the initial decision ordering
his commitment as an SVP pursuant to RAP 2.2(a)(8). Finally, our
conclusion is buttressed by the fact that Turay has never asserted that he
may appeal the trial court's May 9, 1996 postcommitment order pursuant to
RAP 2.2(a)(10).
9Turay conceded that the State may be correct. See Opp'n to State's Mot.
to Redesignate at 1 (stating that "the state may be correct in arguing that
the proper method of seeking review of the trial court's recommitment
decision is not by direct appeal").
10RAP 2.3(b) provides that "discretionary review will be accepted only:
"(1) If the superior court has committed an obvious error which would
render further proceedings useless;
"(2) If the superior court has committed probable error and the decision of
the superior court substantially alters the status quo or substantially
limits the freedom of a party to act; or
"(3) If the superior court has so far departed from the accepted and
usual course of judicial proceedings, or so far sanctioned such a departure
by an inferior court or administrative agency, as to call for review by the
appellate court."
11Because we have dismissed Turay's entire PRP, the State's motion to strike
portions of the letter that Turay submitted to this court as a supplement
to the PRP is moot.
12Further, even "when the right is unequivocally asserted . . . it may still
be subsequently waived by words or conduct." State v. Fritz, 21 Wn. App.
354, 360, 585 P.2d 173, 98 A.L.R.3D 1 (1978), review denied, 92 Wn.2d 1002
(1979).
13As the State points out, and the discussion above illustrates, Turay
requested the appointment of three different attorneys, agreed to cooperate
with appointed counsel, and declined to have his motion to act pro se heard
by the court when offered the opportunity. This scenario is analogous to
Hamilton v. Groose, 28 F.3d 859 (8th Cir. 1994), where the Eighth Circuit
Court of Appeals rejected the defendant's contention that he had been
denied his Sixth Amendment right to represent himself, stating that the
"equivocal way in which {the defendant} made his motion to represent
himself . . . would provide the basis for a colorable Sixth Amendment claim
regardless of how the trial judge had ruled." Hamilton, 28 F.3d at 862.
The present case is comparable because Turay's request to represent himself
was so equivocal that he might have had a Sixth Amendment claim if the
court had allowed him to act pro se.
While the dissent takes issue with our holding that Turay did not make an
unequivocal request to represent himself, we fail to see how, after an
objective analysis of the record as a whole, one could arrive at this
conclusion. Furthermore, we note that the dissent fails to sufficiently
appreciate the strong presumption against a defendant's effective waiver of
his or her right to counsel. Brewer, 430 U.S. at 404; Robtoy, 98 Wn.2d at
40. The dissenting justice contends, without citing to any authority, that
"{t}he presumption against waiver of counsel is not, however, a presumption
against one's substituting self-representation for retained or appointed
representation. {Brewer and Robtoy} involved the waiver of the right to
counsel during a custodial interrogation-not an election of self-
representation at trial." Dissenting op. at 3 n.1. This analysis is
wholly circular. If the presumption against waiver of counsel is not a
presumption against self-representation, exactly what is it a presumption
against? A presumption against wavier of counsel is by definition a
presumption against self-representation because if one were to waive their
right to counsel they would necessarily be acting pro se. In addition,
contrary to the dissent's assertions, neither Brewer nor Robtoy were
confined to circumstances involving the right to counsel during a custodial
interrogation. See, e.g., Brewer, 430 U.S. at 404 (stating that the
presumption against waiver of right to counsel "applies equally to an
alleged waiver of the right to counsel whether at trial or at a critical
stage of pretrial proceedings.") (emphasis added) (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 238-40, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973));
Robtoy, 98 Wn.2d at 40 (citing Brewer, 430 U.S. at 404).
14The record indicates that Turay has three prior rape convictions.
15Evidence of a prior conviction for a crime of sexual violence is relevant
because a sexually violent predator is defined as: "any person who has
been convicted of or charged with 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(1).
16Significantly, the trial court gave a limiting instruction that the jurors
were not to consider the description in a physician's (an expert witness)
testimony of Turay's prior rapes "for the truth of the matter asserted but
only for the purpose of assessing what weight should be given the expert
witness's testimony." RP (Oct. 7, 1994) at 26.
17Prior to Turay's commitment trial, the State made a motion in limine to
exclude evidence of: (1) the conditions of confinement at the SCC; (2)
whether there were less restrictive alternatives to Turay's total
confinement; and (3) the verdict in Turay's federal litigation. The State
argued that this evidence was not relevant to the jury's determination of
whether Turay was an SVP because the focus in the commitment trial should
be on Turay and whether he would be amenable to treatment in a less secure
setting. The trial court partially granted the State's motion stating:
"the issue for the jury is, whether or not the respondent {Turay} should be
confined to a secure setting, or is there something less secure that would
be in the best interest of the respondent or others. The issues regarding
the type of treatment that is available are not really relevant to that
consideration. I think that whether or not he is receiving the appropriate
type of treatment is really an unmanageable type of decision for a jury
facing the questions that this jury is going to have to face. It seems to
me that if the jury determines that the respondent is a sexually violent
predator, that there are no less restrictive alternatives available, then
it's the Court's duty to insure that treatment occurs in that environment.
Similarly, if the jury were to determine that less restrictive alternatives
were appropriate, it would be the Court's duty to insure that treatment did
occur in that setting. And the Court, with the assistance of the parties,
would fashion such an environment for that treatment to take place. For
those reasons I am going to grant the State's motion to exclude any
reference to the conditions of confinement at the SCC." RP (Sept. 21,
1994) at 16-17.
The trial court also excluded evidence of the jury's verdict in Turay's
federal case as irrelevant to the issues before the jury in his commitment
trial. However, the court denied the State's motion to exclude evidence of
whether there were less restrictive alternatives to Turay's total
confinement, stating "it is the respondent's right to challenge whether or
not the State has met its burden of proving that no less restrictive
alternatives are appropriate. . . . So the motion to exclude that type of
evidence would be denied." RP (Sept. 21, 1994) at 17-18.
18In addition, he ignores the principle that "{t}he determination of
relevance is within the broad discretion of the trial court, and will not
be disturbed absent manifest abuse of that discretion." Young, 122 Wn.2d
at 53 (emphasis added) (citing State v. Swan, 114 Wn.2d 613, 658, 790 P.2d
610 (1990)); see Maehren v. City of Seattle, 92 Wn.2d 480, 488, 599 P.2d
1255 (1979).
19The following summary gives a more accurate representation of Dr.
Dreiblatt's testimony. On direct examination, the following exchange
occurred between the prosecuting attorney and Dr. Dreiblatt:
"Q: Doctor, when you left off you were talking about Mr. Turay's
dementia. And we had discussed briefly personality trait disturbances
associated with dementia. What I would like you to do now is, describe the
personality trait disturbances associated with the dementia that you found
in Mr. Turay.
"A: In Mr. Turay I found that there had been a consistent and enduring
pattern of mal adaptive and inflexible behavior that kind of pervades his
life . . . . The specific features that I see in terms of that mal adaptive
personality involves what we call antisocial features, things such as
failure to conform to social norms, deceitfulness and dishonesty,
impulsivity, failure to plan ahead, irritability and aggressiveness.
Disregard for the safety of others, lack of remorse about a behavior, low
frustration tolerance, poor judgment. . . . I have also come to believe
that there are also some, what we consider narcissistic features where a
person has an exaggerated sense of their self-importance, a feeling of
entitlement or exploitiveness . . . .
"Q: Doctor, you talk about the narcissistic features, giving him an
exaggerated sense of self importance. Can you give us an example of what
you are talking about in Mr. Turay?
"A: An example would be, I consider some of Mr. Turay's behavior at
the Special Commitment Center where basically he makes threats to people,
he threatens them with powers that he believes he has, threats to sue,
threats to harm, things of that {sic}, involves a belief, I believe, that
he has an exaggerated sense of self-importance, that he is a very important
person, he can do all that." RP (Sept. 28, 1994) at 108-10.
On cross-examination, the following exchange occurred between Dr. Dreiblatt
and the defense counsel:
"Q: Doctor, you told the jury yesterday that you think Mr. Turay has
narcissistic personality traits?
"A: Some narcissistic personality traits.
"Q: And one piece of evidence, in your mind, that he has narcissistic
personality traits is, that he has threatened to sue people at the Special
Commitment Center; isn't that correct?
"A: I commented that one of the things is, quality of superiority that
in some ways had to do with threats to sue.
"Q: Please explain why threats to sue suggests to you a narcissistic
personality trait?
"A: There are various ways someone could threaten to sue. In the
notes I was looking at it was used in terms of specific situations where,
basically my sense was that Mr. Turay was saying, well, I'm in control, I
am in charge, don't cross me, because I can do any one of a number of
things. And sue was only one of a variety of threats he made. I mentioned
several different kinds of threats, if you fool with me, and I am
paraphrasing, I will get you, I will get you later, the kind of notion I
am a powerful person, who, if you mess with me, I am going to take care of
you, I am going to fix you. It wasn't specifically threats to sue, which
is one of a family of different kinds of threats that were conveying I am
an important person, I am in charge, I can control you people. It wasn't
specifically that statement, it was the group of things that were going on.
"Q: What if Mr. Turay's claim was meritorious?
"A: I think the issue of whether one has a cause for suit when one is
threatening people to get their own way with threats are two separate
issues.
"Q: What if Mr. Turay's threat of suit is based on a real claim, based
on a real violation, does that make him narcissistic?
"A: I would say that if Mr. Turay is in a prison-like environment and
going around and telling people you can't do this, you can't do that, I
will harm you, I will beat you up, I will do sexual things to you, that in
no way has to do with the credit of a suit. If he has issues that he has
rightfully somehow been harmed, that he is going to sue, that is a whole
different issue that I am not involved with. . . . What I considered
narcissistic is, holding over the staff, if you don't do what I want I am
going to either harm you or sue or get you, and I felt that that expressed
a belief in his importance and specialness that fit that qualification."
RP (Sept. 29, 1994) at 70-72 (emphasis added).
This testimony belies the dissent's claim that Turay was "penaliz{ed}
. . . for pursuing his legal remedies." Dissenting op. at 7. Dr.
Dreiblatt's testimony demonstrates that while he considered some of the
threats made by Turay, specifically those regarding physical or sexual
violence, to be indicative of "antisocial behavior," he did not "penalize"
Turay for threatening to sue staff at the SCC.
20While the dissent disagrees with this conclusion, in his brief to this
court, Young, like Turay in this case, claimed that RCW 71.09.060 did not
impose a constitutionally adequate burden of proof because the statute
"alters 'beyond a reasonable doubt' to whether the respondent is more
likely than not to reoffend." See Br. of Resp't and Cross-Appellant, app.
A, at 60. We squarely rejected that claim, however, and held that the
statute was constitutional. Young, 122 Wn.2d at 59. Accordingly, the
dissent's suggestion that Young did not reject the aforementioned argument
is unfounded.
21Turay's "paraphrasing" of this language is disingenuous because he, under
the guise of quotation marks, changed the entire structure of the sentence
he quoted, thereby completely altering its meaning, in order to bend the
language to support his conclusion. In short, Turay took all of the
language in the sentence referring to an initial determination of probable
cause and changed it to refer to "post-commitment" determinations, and
dubbed this shenanigan "paraphrasing."
22The State may petition to involuntarily commit a person under RCW
71.05.150(1)(a) if that person "{p}resents a likelihood of serious harm" or
"is gravely disabled." The legislature defined "likelihood of serious
harm" as meaning that there is a substantial risk that the person will
commit physical harm upon themselves, another person, or upon the property
of others. RCW 71.05.020(14). The Legislature defined "gravely disabled"
as a condition in which the person, as a result of a mental disorder, is in
danger of serious physical harm because they cannot provide for their
essential human needs of health or safety, or manifests severe
deterioration in routine functioning so that he or she is not receiving
such care as is essential for their health or safety. RCW 71.05.020(9).
Accordingly, an individual committed under RCW 71.05 does not necessarily
pose a threat to public safety.
23Authority from other jurisdictions supports this conclusion. See People
v. Williams, 228 Mich. App. 546, 580 N.W.2d 438, 443, appeal denied, 589
N.W.2d 287 (1998) (holding that "a different procedure for release from
detention for criminal sexual psychopathic persons than that set forth
elsewhere for those acquitted on the bases of insanity and others who have
been civilly committed" does not violate equal protection); Williams v.
Wallis, 734 F.2d 1434, 1437 (11th Cir. 1984) (holding that Alabama's
release procedures for insanity acquittees did not violate the equal
protection clause, even though they differed from the release procedures
governing other civil committees).
24State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4TH 517 (1986).
25The dissenting justice pays insufficient homage to the large body of
case law we have cited above, which stands for the proposition that the
equal protection clause of the federal constitution and article I, section
12 of the Washington constitution are substantially identical in their
impact upon state legislation. Instead, the dissent asserts that article
I, section 12 might provide Turay with greater protection than he would
receive under the federal equal protection clause. In support of this
assertion, the dissenting justice primarily relies upon the following
sources: (1) dicta in Griffin v. Eller, 130 Wn.2d 58, 922 P.2d 788 (1996);
(2) a concurring opinion in State v. Smith, 117 Wn.2d 263, 814 P.2d 652
(1991); and (3) Darrin v. Gould, 85 Wn.2d 859, 540 P.2d 882 (1975). The
first two sources clearly are not binding on this court. The third source,
Darrin, states, in relevant part, that "Const. art 1, sec. 12, the state's
version of the equal protection clause, has been construed in a manner
similar to that of the equal protection clause of the Fourteenth Amendment.
Such construction, however, is not automatically compelled. Const. art. 1,
sec. 12 may be construed to provide greater protection to individual rights
than that provided by the equal protection clause." Darrin, 85 Wn.2d at
868 (citations omitted). This case is, however, of little precedential
value, because it relies solely upon Carter v. University of Washington, 85
Wn.2d 391, 536 P.2d 618 (1975), to support the aforementioned statement.
Carter is a plurality opinion, which has been expressly overruled by this
court in Housing Auth. Housing Auth., 87 Wn.2d at 739-40. In Housing
Auth., a majority of this court appeared to chide the Carter plurality for
"refusing to accept the United States Supreme Court's interpretation of
constitutional requirements of equal protection." Housing Auth, 87 Wn.2d
at 739. Furthermore, we stated that "{i}t would appear that Const. art. 1,
sec. 12, is less liberal than U.S. Const. amend. 14, if a distinction
between the two is to be found in the language used, for it expressly
authorizes the legislature to impose terms upon the enjoyment of a
privilege." Housing Auth, 87 Wn.2d at 740 n.3 (emphasis added). In short,
although this court could certainly determine that article 1, section 12
provides greater protection than the federal equal protection clause, the
aforementioned case law demonstrates that heretofore we have not done so
and we are not inclined to do so under these facts.
26Turay was not entirely candid with this court in his statement of this
claim. The trial court did not completely deny his motion to seal the
proceedings, but rather ruled that:
"With regard to the alternative motion to seal the court file and seal
the courtroom, I would deny that motion in the form that it was made. The
Court would entertain requests as to specific documents or specific
testimony where a showing can be made that the right to privacy that Mr.
Turay does have could outweigh the public interest in having access to
those documents, or to that testimony. So counsel are free to raise those
issues at the times that they feel are appropriate." RP (Sept. 20, 1994)
at 90-91. No such request by Turay was subsequently forthcoming.
27The double jeopardy clause "protects only against the imposition of
multiple criminal punishments for the same offense." Hudson v. United
States, 522 U.S. 93, 99, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997).
28Turay's claim demonstrates a misunderstanding of the nature of an "as
applied" constitutional challenge to a statute. Justice Antonin Scalia, of
the United States Supreme Court, set forth a basic overview of the
application of an "as applied challenge" when he stated:
"Statutes are ordinarily challenged, and their constitutionality
evaluated, 'as applied'--that is, the plaintiff contends that application
of the statute in the particular context in which he has acted, or in which
he proposes to act, would be unconstitutional. The practical effect of
holding a statute unconstitutional 'as applied' is to prevent its future
application in a similar context, but not to render it utterly inoperative.
To achieve the latter result, the plaintiff must succeed in challenging the
statute 'on its face.' Our traditional rule has been, however, that a
facial challenge must be rejected unless there exists no set of
circumstances in which the statute can constitutionally be applied." Ada
v. Guam Soc'y of Obstetricians & Gynecologists, 506 U.S. 1011, 1012, 113 S.
Ct. 633, 121 L. Ed. 2d 564 (1992) (Scalia, J., dissenting) (first emphasis
added). While this dissenting opinion does not constitute binding
authority, it does provide an excellent framework for the analysis of
Turay's "as applied" challenge to the constitutionality of RCW 71.09.
29In addition, the court stated: "Under Halper's method of analysis, a
court must also look at the 'sanction actually imposed' to determine
whether the Double Jeopardy Clause is implicated. Thus, it will not be
possible to determine whether the Double Jeopardy Clause is violated until
a defendant has proceeded through a trial to judgment. But in those cases
where the civil proceeding follows the criminal proceeding, this approach
flies in the face of the notion that the Double Jeopardy Clause forbids the
government from even 'attempting a second time to punish criminally.'"
Hudson, 522 U.S. at 102 (first emphasis added).
30While one could argue that Hudson is distinguishable because the
sanctions involved in that case were a monetary penalty and occupational
disbarment, rather than confinement, such an argument would fail because
the Supreme Court explicitly stated that in determining whether a statutory
scheme is so punitive that it actually constitutes a criminal penalty,
among the factors to be considered are whether "'the sanction involves an
affirmative disability or restraint" and that this factor, along with the
others, "must be considered in relation to the statute on its face.'"
Hudson, 522 U.S. at 99, 100 (emphasis added) (quoting Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963)).
Furthermore, the dissent's contention that Turay's as applied double
jeopardy challenge is proper ignores the plain language of Hudson. We
believe that the Supreme Court meant what it said when it mandated in
Hudson that, when performing a double jeopardy analysis, statutes must be
evaluated on their face rather than assessing the character of the actual
sanctions imposed. The dissent apparently feels otherwise and attempts to
buttress its view by contending that in Hudson the Supreme Court
distinguished cases involving an affirmative disability or restraint. This
is not, in our view, a correct reading of Hudson. In Hudson, the Supreme
Court expressly stated that while there are several factors which serve as
useful guideposts in performing a double jeopardy analysis, none of these
factors, including whether the sanction involves an affirmative disability
or restraint, should be evaluated to "dispositive status" or "considered
controlling." Hudson, 522 U.S. at 101. Accordingly, the dissent's attempt
to distinguish Hudson is unpersuasive.
31Turay also contends, that "if recent U.S. Supreme Court precedent
casts doubt on the ability of a court to consider the application of a
sanction in deciding whether the statute imposes punishment for double
jeopardy purposes under federal law, this Court may still consider this
double jeopardy question under state law, Wash. Const. art. 1, sec. 9."
Reply Br. at 23-24. This contention is meritless because in Winchester we
held that the test for double jeopardy is same under both the state and
federal constitutions. Winchester, 135 Wn.2d at 845-46.
32This conclusion is supported by case law from other jurisdictions. In a
similar case involving a sexual predator, the Wisconsin Court of Appeals
held:
"{T}he State argues persuasively that even if Seibert {the sexual
predator} were correct that the center failed to develop a treatment
program for his special needs, his conclusion that he should be released
would place society at risk for his acts of sexual violence and produces an
absurd result. Rather, they argue, his remedy is to litigate that issue
and, if successful, obtain appropriate treatment, not supervised release.
We agree." State v. Seibert, 220 Wis. 2d 308, 582 N.W.2d 745, 749, review
denied, 220 Wis. 2d 366, 585 N.W.2d 158 (1998); see also Carson v. Johnson,
112 F.3d 818, 820 (5th Cir. 1997) ("Generally, sec. 1983 suits are the
proper vehicle to attack unconstitutional conditions of confinement").
33In addition, as the Supreme Court noted in Hudson, the "Due Process
and Equal Protection Clauses already protect individuals from sanctions
which are downright irrational." Hudson, 522 U.S. at 103 (citing
Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 75 S. Ct. 461, 99
L. Ed. 563 (1955)).
34It is significant, however, that in Hendricks, the Supreme Court
flatly rejected Hendricks's contention that the SVP statute "as applied to
him . . . violates double jeopardy principles because his confinement under
the Act, imposed after a conviction and a term of incarceration, amounted
to both a second prosecution and a second punishment for the same offense."
Hendricks, 521 U.S. at 369 (emphasis added).