In the Matter of the Personal Restraint of ALAN MEIRHOFER,
No. 89251-2
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
FEB 12 2015
GONZALEZ, J.
En Banc
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GONZALEZ, J.-Alan Meirhofer was civilly committed under the sexually violent predator (SVP) act,
BACKGROUND
In the late 1980s, Meirhofer was charged with several counts of brutally raping children, along with charges of burglary and kidnapping. Meirhofer v. State, noted at 109 Wn. App. 1057, 2001 WL 1643535, at *1. Meirhofer was implicated in several more child rapes. Pers. Restraint Pet. (PRP), App. B at 4-8. He pleaded guilty to several charges, apparently in return for the State dropping others. Meirhofer, 2001 WL 1643535, at *1. As Meirhofer finished serving his criminal sentence, the State brought SVP commitment proceedings against him under the SVP act,
Civil commitment under the SVP act is indefinite, but the Department of Social and Health Services (DSHS) is required to have the condition of each person detained under the act reviewed by a qualified professional at least annually and regularly report to the court whether each detainee still meets the statutory and constitutional criteria for civil commitment.
In 2005, the legislature limited the type of evidence and the grounds a court may consider when determining whether there was probable cause to believe an SVP had “so changed” that release might be appropriate. LAWS OF 2005, ch. 344, § 1. These amendments were in response to two cases where evidentiary hearings had been ordered based on changes in “demographic factors,” such as the offender‘s age, which trial courts found rendered them not likely to reoffend if released. Id. (citing In re Det. of Ward, 125 Wn. App. 381, 104 P.3d 747 (2005); In re Det. of Young, 120 Wn. App. 753, 86 P.3d 810 (2004)). The legislature declared that “a mere advance in age or a change in gender or some other demographic factor after the time of commitment does not merit a new trial proceeding under
In the 2010 annual report to the court, the State‘s expert, Dr. Saari, stated he did not have sufficient information to diagnose Meirhofer with pedophilia because “there is not sufficient evidence to indicate a clear pattern of sexual attraction to prepubescent” children. PRP, App. B at 12. Dr. Saari gave Meirhofer the provisional diagnosis of “Rule Out Pedophilia.” Id. at 11 (boldface omitted).3 Dr. Saari diagnosed Meirhofer with paraphilia, NOS
hebephilia, paraphilia NOS nonconsent, and personality disorder NOS with antisocial and borderline traits. Id. Dr. Saari reported that the Static-99R actuarial risk assessment test suggested that offenders with similar static risk factors as Meirhofer had “a 5-year sexual recidivism estimate of about 20% and a 10-year sexual recidivism estimate of about 30%.”4 Id. at 13. Based on Meirhofer‘s dynamic risk factors, including the fact that “Meirhofer felt entitled to rape teenage boys when he
opinion that Mr. Meirhofer appears to continue to meet the definition of a sexually violent predator.” Id. at 11, 13, 15. Dr. Saari‘s 2011 report was consistent and additionally observed that Mr. Meirhofer had been recently suspended from his job in the kitchen at the Special Commitment Center after he was caught making alcohol. Dr. Saari noted in the report that Meirhofer reported he
did not see any problem with making the alcohol, except for the fact he got caught. Prior to making the alcohol, he reportedly did not consider the potential consequences or how it might negatively affect his chances of release from the SCC. When I asked him why it is important to refrain from drinking, given his history of offending while under the influence of substances, he said he did not believe it is important for him to abstain from alcohol. More specifically, he said, “Quite frankly, I never raped anyone when I was drinking, only when I was under the influence of methamphetamine did I do that.”
PRP, App. G at 9. Once again, Dr. Saari concluded that Meirhofer continued to meet the definition of an SVP.
Also in 2011, before we withdrew our first McCuistion opinion, a second psychologist, Dr. Rosell, opined that there was insufficient evidence that Meirhofer suffered from pedophilia, as currently defined in the academic literature, and that his risk of reoffending had dropped significantly due to his age. Dr. Rosell diagnosed Mеirhofer with alcohol and amphetamine dependence and a personality disorder with antisocial traits. Perhaps sensitive to the legislature‘s response to Young and Ward and to the pending constitutional challenge to that response in McCuistion, Dr. Rosell‘s report said that under “pre-2005 standards,” Meirhofer “no longer meets the criteria of sexual violent predator based on the lack of evidence of a current paraphilic disorder as well as the low risk found on the actuarial instruments utilized.” PRP, App. D at 29. He offered no opinion on whether Meirhofer met the criteria under the 2005 legislative standards.
Based on Dr. Rosell‘s report and our then recently published opinion in McCuistion, the trial court found that Meirhofer had presented prima facie evidence that “[h]is condition has so changed that he no longer meets the criteria of a sexually violent predator.” PRP, App. E at 2. The trial court stayed its order pending this court‘s resolution of the motion for reconsideration in McCuistion. A few months later, this court withdrew its opinion in McCuistion, and in 2012, we upheld the 2005 amendments. McCuistion, 174 Wn.2d at 398. After we withdrew our first McCuistion opinion, the trial judge found DSHS had met its prima facie burden of showing that Meirhofer continued to meet the statutory definition of an SVP and that Meirhofer had failed to present sufficient prima facie evidence that he did not. MDR (June 15, 2012), App. I at 2 (Oct. 10, 2011 order). Thus, it did not order the evidentiary proceeding Meirhofer seeks. Id.
Meirhofer sought discretionary review of that October order and challenged his continued confinement by way of a personal restraint petition. The Court of Appeals consolidated the two cases and denied relief in an unpublished opinion. In re Pers. Restraint of Meirhofer, noted at 175 Wn. App. 1049, 2013 WL 3867834. We granted review to determine whether Meirhofer was entitled to an evidentiary proceeding under
ANALYSIS
I. APPEAL OF THE RCW 71.09.090 SHOW CAUSE HEARING
Under the SVP act, “there are two possible statutory ways for a court to determine there is probable cause to proceed to an evidentiary hearing ... (1) by deficiency in the proof submitted by the State, or (2) by sufficiency of proof” by the detainee that he or she “no longer suffers from a mental abnormality or personality disorder” or that any mental abnormality or personality disorder “would not likely cause the prisoner to engage in predatory acts of sexual violence.” In re Det. of Petersen, 145 Wn.2d at 798.
First, Meirhofer contends the State‘s evidence that he “continues to meet the definition of a sexually violent predator” was deficient. See
Meirhofer argues that because the State‘s experts originally testified he suffered from pedophilia and now the State‘s expert found insufficient evidence for that diagnosis, the State has not met its burden. His argument is unpersuasive. First, this court has affirmed commitment based on paraphilia NOS nonconsent and antisocial personality disorder, which are essentially Meirhofer‘s remaining diagnoses. See In re Det. of Stout, 159 Wn.2d 357, 363, 150 P.3d 86 (2007). Second, we rejected a similar challenge to continued civil commitment after an insanity acquittal when the detainee‘s diagnosis changed in State v. Klein, 156 Wn.2d 103, 120-21, 124 P.3d 644 (2005). While we cautioned that “‘[d]ue process requires that the nature of the commitment bear some reasonable relation to the purpose for which the individual is committed,‘” we found sufficient connection from the “original diagnosis of ‘psychoactive substance-induced organic mental disorder’ ... and the current diagnosis of polysubstance dependence” to justify continued commitment. Id. (first alteration in original) (quoting Foucha v. Louisiana, 504 U.S. 71, 79, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992)). We observed that “the subjective and evolving nature of psychology may lead to different diagnoses that are based on the very same symptoms, yet differ only in the name attached to it.” Id. at 120. Similar principles apply here. Without more, the change from a diagnosis of pedophilia to a “rule out pedophilia” and hebephilia diagnosis is not sufficient to require a new evidentiary proceeding.
Meirhofer also argues that hebephilia may not act as a qualifying mental abnormality or personality disorder under the SVP act. He calls our attention to a recent Illinois Court of Appeals case where the court required a Frye55 hearing before admitting evidence that an SVP respondent suffered from hebephilia, which is not a condition listed in the American Psychiatric Association‘s Diagnostic and Statistical Manual of Mental Disorders. In re Det. of New, 2013 IL App (1st) 111556, 992 N.E.2d 519, 372 Ill. Dec. 677, 688 (2013), appeal granted, 2 N.E.3d 1045, 377 Ill. Dec. 764 (2013). New had appealed his commitment arguing, among other things, that hebephilia was not a diagnosis generally accepted in the scientific community. The Illinois Court of Appeals reversed his commitment and remanded for a Frye evidentiary hearing, noting that “if a respondent in an SVP proceeding does not suffer from an actual mental disorder, then there is nothing to cure, and commitment is pointless.” Id. But regardless of whether hebephilia is an accepted diagnosis in the relevant scientific community (a question we need not decide), the State presented sufficient prima facie evidence that Meirhofer has consistently suffered from paraphilia NOS nonconsent and a personality disorder. This is sufficient to show that Meirhofer “suffers from a mental abnormality or personality
The State has also met its prima facie burden of showing Meirhofer is likely to reoffend if not confined.
instruments the State‘s expert used suggest his risk of reoffense is 30% in the next 10 years. However, the SVP act does not limit experts to the results of actuarial tests and there is no requirement that “the SVP will reoffend in the foreseeable future.” In re Det. of Moore, 167 Wn.2d 113, 125, 216 P.3d 1015 (2009). While Meirhofer is correct that we observed in a case considering the admissibly of actuarial instruments in SVP proceedings that the State “asserts [they] are more reliаble than clinical judgment,” we never found that they were better evidence than clinical judgment. In re Det. of Thorell, 149 Wn.2d 724, 757, 72 P.3d 708 (2003). Based on static and dynamic risk factors and his own clinical judgment, the State‘s expert opined that “there has been no apparent change in [Meirhofer‘s] mental condition that would indicate a lowered risk for sexual re-offense.” PRP, App. G at 14. This is amply supported by the evidence reviewed in Dr. Saari‘s report. The State has met its prima facie burden under
Second, Meirhofer contends that he has shown probable cause that his condition has “so changed” that he no longer meets the criteria for a sexually violent predator. See In re Det. of Petersen, 145 Wn.2d at 798;
Perhaps sensitive to the ongoing legal conflict, Meirhofer‘s expert couched his conclusion that Meirhofer had “so changed” as to justify further proceedings in very limited terms:
Mr. Meirhofer was found to be an SVP based on the diagnoses of pedophilia. The most recent annual review by Dr. Saari questions this diagnoses and feels there is a need to rule it out. He has supplemented that diagnoses with paraphilia NOS, hebephilia which as previously mentioned is questionable whether it exists as a mental abnormality as opposed to a descriptor of behavior.
I have been asked to address whether Mr. Meirhofer‘s mental abnormality has “so changed” as to whether he continues to meet the statutory definition of an SVP. As mentioned, recently the Washington State Supreme Court has ruled that the amendments of 2005 which restricted the definition of “so changed” should be reversed to pre-2005 standards. Therefore, it is my opinion that Mr. Meirhofer no longer meets the criteria of sexual violent predator based on the lack of evidence of a current paraphilic disorder7 as well as the low risk found on the actuarial instruments utilized.
requirements for an evidentiary proceeding, the trial court did not err in declining to order one.8
II. PERSONAL RESTRAINT PETITION
Meirhofer also challenges his continued confinement by way of a personal restraint petition, largely reiterating his substantive arguments above. The State responded that relief by way of a personal restraint petition is not available. While we agree with the State that Meirhofer is not entitled to relief on the merits, we stress that there are no special rules prohibiting those committed under the SVP act from filing otherwise meritorious personal restraint petitions. “Personal restraint petitions are modern version of ancient writs, most prominently habeas corpus, that allow petitioners to challenge the lawfulness of confinement.” In re Pers. Restraint of Coats, 173 Wn.2d 123, 128, 267 P.3d 324 (2011) (citing Toliver v. Olsen, 109 Wn.2d 607, 609-11, 746 P.2d 809 (1987)). But relief by way of a personal restraint petition is extraordinary. See id. at 132 (citing In re Pers. Restraint of Cook, 114 Wn.2d 802, 810-12, 792 P.2d 506 (1990)). A personal restraint petition is not a substitute for statutory avenues for review, and “[t]o prevent it from becoming a substitute for an appeal, and to protect the finality of judgments, this court has imposed significant threshold, prima facie burdens on the petitioner before the merits of the substantive
claim will be considered.” In re Pers. Restraint of Grantham, 168 Wn.2d 204, 211, 227 P.3d 285 (2010). Among other things, relief is limited to those who meet the requirements of RAP 16.4, including its requirement that the petitioner show that “other remedies which may be available to petitioner are inadequate.” RAP 16.4(d).
Meirhofer contends that if he is not entitlеd to an evidentiary hearing under
not show probable cause that he had been “so changed” as to proceed to an evidentiary
We began with first principles. “Under the due process clause of the Fourteenth Amendment, an individual subject to civil commitment is entitled to release upon a showing that he is no longer mentally ill or dangerous.” Id. at 384 (citing Foucha, 504 U.S. at 77-78). “However, once a fact-finder has determined that an individual meets the criteria for commitment as an SVP, the court accepts this initial conclusion as a verity in determining whether an individual is mentally ill and dangerous at a later date.” Id. at 385 (citing Burke v. Pepsi-Cola Bottling Co. of Yakima, 64 Wn.2d 244, 246, 391 P.2d 194 (1964)). “Accordingly, where an individual was found beyond reasonable doubt to be mentally ill and dangerous at the time of his commitment trial, a showing that he no longer satisfies the constitutional criteria for confinement necessarily requires a showing of change.” Id. (citing LAWS OF 2005 ch. 344, § 1). We rejected McCuistion‘s contention that he was
constitutionally entitled to an evidentiary hearing based on the evidence he presented on age and recidivism, cоncluding that “[t]here is no substantive due process right to a full annual evidentiary hearing based upon a mere showing of a change in a single demographic factor.” Id. Thus, he did not show that his restraint was unlawful on those grounds.
We also rejected McCuistion‘s contention that the 2005 amendments were facially unconstitutional because (relevant to this case) they limited detainees seeking to prove their mental condition had changed due to a positive response to treatment. Id. at 387. Again, similarly to Meirhofer, McCuistion argued that requirement violated the constitution because it created the possibility someone could be detained who was not “‘currently likely to commit sexually violent offenses due to a mental disorder.‘” Id. (quoting trial court record). We rejected that argument on the grounds the SVP act provided adequate constitutional protections:
If the individual no longer meets the definition of a SVP, then “the secretary shall authorize the person to petition the court for conditional release” or “unconditional discharge” and the court “shall within forty-five days order a hearing.”
RCW 71.09.090(1) . This statutory scheme comports with substantive due process because it does not permit continued involuntary commitment of a person who is no longer mentally ill and dangerous.
McCuistion, 174 Wn.2d at 388. Meirhofer makes no attempt to show that McCuistion should be overruled or that
If the secretary of DSHS determines continued commitment is not appropriate, the detainee is allowed to petition for an evidentiary hearing without having to first show cause. Id. at 810. Meirhofer has not shown that these statutory remedies are inadequate as applied to him.11
CONCLUSION
Meirhofer did not make a prima facie showing that his condition had “so changed” to justify an evidentiary hearing under the SVP act. Nor has he shown that the statutory procedures are inadequate to safeguard against deprivation of his constitutional rights. We affirm.
Gonzalez, J.
WE CONCUR:
Madsen, C.J.
Kulik, J.P.T.
WIGGINS, J. (dissenting)—I agree with the majority that Alan Meirhofer has not proved his entitlement to a full evidentiary hearing under
Rather than arguing his condition changed physiologically or as a positive response to treatment, Meirhofer argues that the basis for his commitment changed when the diagnoses describing his mental condition changed. The majority, having held that Meirhofer has no recourse under the statute, ironically holds that Meirhofer has not proved that “these statutory remedies are inadequate as applied to him.” Majority at 13, 18. Accordingly, the majority concludes that Meirhofer cannоt bring a personal restraint petition to challenge the constitutionality of his continued detention as a sexually violent predator (SVP) because the statute provides Meirhofer with “[o]ther grounds . . . to challenge the legality” of his restraint. Majority at 15 (quoting
I disagree. A statutory remedy that does not allow a challenge to the constitutionality of restraint cannot be an adequate remedy. Moreover, the legislature cannot restrict the right of a person to challenge his or her restraint through a personal restraint petition. In a personal restraint petition, we provide relief for those restrained when the manner of the restraint is unconstitutional.
Both Meirhofer and the State presented evidence at Meirhofer‘s annual show cause hearing that his diagnoses have changed since his commitment hearing and that his risk of reoffending has declined substantially. These changes are significant: there is a reasonable possibility that a reasonable juror wоuld decline to find, beyond a reasonable doubt, that Meirhofer continues to be mentally ill and dangerous. I would reverse the trial and appellate courts and remand for an evidentiary proceeding. For these reasons, I respectfully dissent.
DISCUSSION
In order to be committed, an SVP must be diagnosed with a mental illness that renders them dangerous. Civil confinement is subject to strict scrutiny because it is a massive curtailment of liberty, Young, 122 Wn.2d at 26. Liberty can be curtailed only by a narrowly drawn, compelling
I. Relief under a Personal Restraint Petition
The SVP statute does not contemplate the situation before us. A state cannot continue to confine someone who is no longer mentally ill and dangerous. Id. The statute addresses this by providing periodic review and release mechanisms for individuals.
Contrary to the State‘s assertions, petitioners are not limited to challenging their confinement through statutes that do not contemplate their circumstances. Importantly, personal restraint petitions are not motions for reconsideration and they are not substitutes for direct review; the relief they seek is collateral. “The whole purpose of collateral review is to provide a forum for potentially meritorious prisoners’ claims.” In re Pers. Restraint of James, 96 Wn.2d 847, 855, 640 P.2d 18 (1982) (Utter, J., concurring). “Though it does tax the judicial system to provide such collateral review, its proven historical value looms much larger than the particular economic exigencies with which we as judges are now beset.” Id. (footnote omitted).
When alternative grounds of relief are inadequate and a petition is not barred by
To challenge confinement through a personal restraint petition, a detainee must present a sufficiently significant change, such that a reasonable juror could conclude that the detainee is no longer mentally ill and dangerous. Meirhofer‘s restraint may be unlawful because the basis for Meirhofer‘s original commitment no longer exists.
II. Change in Meirhofer‘s Diagnoses
The court will grant relief in a personal restraint petition if the petitioner is under restraint and the restraint is unlawful.
A. Meirhofer‘s diagnoses have changed since his commitment trial
Two licensed psychologists evaluated Meirhofer prior to his commitment trial; both diagnosed him with pedophilia and amphetamine dependence. In addition to those diagnoses, one of the psychologists diagnosed Meirhofer with paraphilia, not otherwise specified (NOS)-nonconsent, and the other diagnosed him with personality disorder, NOS, with antisocial traits. Meirhofer continued to be evaluated annually for nine years with similar diagnostic results: (A)
In 2010, Meirhofer‘s diagnoses changed. The State‘s expert diagnosed him with: (not-A) “Rule Out Pedophilia,” (B) paraphilia, NOS, nonconsent, (C) personality disorder, NOS, antisocial, and (D) paraphilia, NOS, hebephilia. PRP, Apps. B, G. In addition, an expert retained by Meirhofer made two diagnoses, neither of which was a sexual disorder. After reviewing the commitment documents, interviewing Meirhofer, and using аctuarial assessments, Meirhofer‘s expert diagnosed him with (1) alcohol dependence and amphetamine dependence, remission in controlled environment and (2) personality disorder, NOS, with antisocial traits by history. PRP, App. D.
We can chart these diagnoses and their consequences, thus:
Original diagnoses: A + B + C = sexually violent predator
2010-11 diagnoses: not-A + B + C + D = ?
The State‘s position is that (A + B + C) yields exactly the same result as (not-A + B + C + D): therefore, Meirhofer is still an SVP. The State‘s position is fuzzy logic, or perhaps fuzzy psychology.
B. Meirhofer is currently confined for “mental illnesses” that are not recognized by the medical community
The majority justifies Meirhofer‘s continued confinement by relying on mental illnesses that are not accepted by the majority of the scientific community. However, the mental illness must be a legitimate illness widely recognized by the psychiatric community. This is made clear in Kansas v. Hendricks, in which the United States Supreme Court ruling upheld the Kansas SVP commitment scheme in a five-to-four decision. 521 U.S. 346, 358, 117 S. Ct. 2072, 2080, 138 L. Ed. 2d 501 (1997). Although divided on the holding, all nine justices agreed that civil commitment is constitutional only if we can distinguish individuals who are mentally disordered from those who are mere criminals. Id. at 360 (the disorder must be one that “the psychiatric profession itself clаssifies as a serious mental disorder.“), 373 (Kennedy, J., concurring) (confinement cannot be based on a mental abnormality that is “too imprecise“), 375 (Breyer, J., dissenting) (the statute is constitutional, inter alia, because pedophilia is a “serious mental disorder“).
Science must have “gained general acceptance in the particular field in which it belongs” before it is admitted in trial. Frye v. United States, 54 App. D.C. 46, 293 F. 1013, 1014 (1923). One way to determine “general acceptance” with respect to psychiatric disorders is to refer to the American Psychiatric Association‘s Diagnostic and Statistical Manual of Mental Disorders (DSM). See, e.g., Hall v. Florida, 572 U.S. 701, 134 S. Ct. 1986, 1991, 1994, 2000, 188 L. Ed. 2d 1007 (2014) (determining the meaning of “intellectual disability” using the DSM); State v. Greene, 139 Wn.2d 64, 71, 984 P.2d 1024 (1999) (the DSM is an authoritative source which “‘reflect[s] a consensus of current formulations of evolving knowledge’ in the mental health field.‘” (quoting State v. Greene, 92 Wn. App. 80, 98, 960 P.2d 980 (1998) (quoting AM. PSYCHIATRIC ASS‘N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS at xxvii (4th ed. 1994) (DSM-IV)))).1 In 2010, the State‘s expert diagnosed Meirhofer with two disorders that are not in previous or current versions of the DSM: (1) hebephilia and (2) paraphilia, NOS, nonconsent.2 See DSM-IV at xxvii; AM. PSYCHIATRIC ASS‘N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 566-67 (4th rev. ed. 2000) (DSM-IV-TR); AM. PSYCHIATRIC ASS‘N, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 697 (5th ed. 2013) (DSM-5). Likewise, the international standard diagnostic tool does not include a code
the American psychiatric community nor the international medical community recognizes a disorder, we should not do so either.
Paraphilia, NOS, nonconsent and hebephilia are not listed in the DSM-IV or DSM-5. The essential features of paraphilia are “recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving 1) nonhuman objects, 2) the suffering or humiliation of oneself or one‘s partner, or 3) children or other nonconsenting persons . . . .” DSM-IV-TR at 566.4 The explicit diagnosis of “Paraphilia Not Otherwise Specified” applies to paraphilias that are less frequently encountered, such as necrophilia, sexual attraction to corpses and klismaphilia, receiving sexual pleasure from introducing liquids into the rectum or colon. Id. at 576 (boldface omitted). The diagnosis “paraphilia not otherwise specified nonconsent” is not included in the list of paraphilias nor was it adopted in thе DSM-5. In fact, the DSM-5 explicitly rejected “coercive paraphilia” as a diagnosis. Allen Frances, Should Having Antisocial Personality Qualify a Rapist for SVP Commitment?, PSYCHIATRIC TIMES, July 15, 2011, http://www.psychiatrictimes.com/couch-crisis/should-having-antisocial-personality-qualify-rapist-svp-commitment. Similarly, “hebephilia,” defined as attraction to pubescent children, is not listed in the DSM-5 or previous versions. The DSM-5 Sexual Disorders Workgroup considered adding hebephilia to the pedophilia category but explicitly rejected the addition because it was based on imprecise and incomplete
research. Allen Frances & Michael B. First, Hebephilia Is Not a Mental Disorder in DSM-IV-TR and Should Not Become One in DSM-5, 39 J. AM. ACAD. PSYCHIATRY & L. 78, 82-84 (2011).5
III. Meirhofer Is Entitled to an Evidentiary Hearing
The majority dismisses Meirhofer‘s personal restraint petition on the basis of Meirhofer‘s 2000 restraint order, this court‘s decision in McCuistion, and an inaccessible avenue for statutory relief. I address these arguments in turn.
Relief is available under
The trial court dismissed Dr. Coleman‘s report as “essentially a re-argument of the original finding that Mr. McCuistion is a sexually violent predator” and reasoned that Dr. Coleman‘s disagreement “with past examiners and fact-finders does not, itself, make his opinion the correct one.” The court further explained that “[t]he changе in his behavior within the confines of a secure facility does not demonstrate that his mental disorder has been changed in any way.”
McCuistion, 174 Wn.2d at 377-78 (alteration in original) (citations omitted). Furthermore, the majority ignores the grounds for our decision—we specifically concluded that McCuistion‘s argument consisted of little more than a collateral attack on the original finding that McCuistion was an SVP and that his other arguments were merely a series of “vague assertions,” “bare assertion,” and declarations that, even if we were to consider, would have been insufficient to make a prima facie showing of change. Id. at 382-84. McCuistion is distinguishable from Meirhofer; Meirhofer does not challenge his initial commitment, and Meirhofer‘s change in diagnosis could lead a reasonable juror to conclude he is no longer mentally ill and dangerous.
Finally, we disagree with the majority‘s dismissal of Meirhofer‘s personal restraint petition under
IV. Meirhofer Is Entitled to Relief
An SVP may challenge confinement through a personal restraint petition when changes occur that fall outside the statute. It is a question of fact whether a change in the diagnoses leads to the conclusion that the SVP is no longer mentally ill and dangerous. I would hold that if a detainee presents a sufficiently significant change, such that there is a reasonable possibility that a trier of fact could find the person is no longer suffering from a mental abnormality that renders him or her dangerous, then the detainee is entitled to a new evidentiary hearing to determine if he or she continues to meet the constitutional criteria for confinement.
Meirhofer meets the test: it is reаsonably possible that his change in diagnoses could lead a reasonable trier of fact to believe that he is no longer suffering from a mental abnormality that renders him dangerous. In considering Meirhofer‘s case, we examine the evidence that would be presented to the jury to make the case that Meirhofer is no longer mentally ill and dangerous.
The jury would consider if Meirhofer continues to be mentally ill. The jury would be told that Meirhofer was diagnosed with paraphilia, NOS, nonconsent, and paraphilia, NOS, hebephilia. They would learn that neither diagnosis is found in the pages of the DSM. They would hear of the controversial nature of these two diagnoses and the rejection of both by the national and international psychiatric communities. The jury would then consider Meirhofer‘s third diagnosis, antisocial disorder, and would hear that the DSM assigns antisocial personality disorder to individuals who habitually violate the rights of others without remorse. The definition includes four diagnostic criteria and seven subfeatures, including failure to obey the laws. The jury would be told that under
The jury would also consider whether Meirhofer is still dangerous. They would hear that he was convicted in 1988 and served a 9-year prison sentence, after which he was confined at the Special Commitment Center on McNeil Island for 14 years. They would be shown actuarial instruments6 that predict his likelihood of reoffending. They would be told that the State‘s expert predicted a likelihood of reoffending between 20 percent and 30 percent, down from 92 percent during his commitment trial. Meirhofer‘s own expert would confirm this score. The jury would be told that the State‘s рsychologist, despite his actuarial assessment, believes that Meirhofer is still dangerous because of his criminal actions nearly 27 years prior. They would be told that his risk assessment will never drop to zero because of his previous criminal behaviors.
Given all the evidence, the jury would weigh and consider if Meirhofer continues to have a mental abnormality that renders him dangerous, beyond a reasonable doubt. Beyond a reasonable doubt is the highest standard of proof, meaning that the jury must decide that there is no doubt that Meirhofer continues to be mentally ill and dangerous. A jury might find that the State has carried this heavy burden of proof, but there is a reasonable possibility that the jury would hold to the contrary and that Meirhofer would be released. Regardless, due process requires a hearing to determine whether the significant change in Meirhofer‘s diagnoses means that he is no longer an SVP.
Meirhofer‘s case might be unusual. Not all changes in diagnosis will require relief under a personal restraint petition. For example, I agree with the majority that the detainee in Klein would not be аfforded a new proceeding under the test we propose here. State v. Klein, 156 Wn.2d 103, 124 P.3d 644 (2005). Klein, an insanity acquittee, was originally diagnosed with psychoactive substance induced organic mental disorder, a mental disorder induced by using one drug. Her diagnosis was later changed to polysubstance dependence, a dependence on many drugs. Id. at 120. The court concluded that Klein‘s diagnoses are based on “the very same symptoms[ and] differ only in the name attached to it.” Klein, 156 Wn.2d at 120-21. The change from dependence on one drug to many drugs does not give rise to a reasonable possibility that a reasonable trier of fact would determine that Klein no longer suffered from a mental illness that made her dangerous.
Unlike Klein‘s circumstances, Meirhofer‘s diagnostic change removed one of his original diagnoses (not-A) and added a nebulous new diagnosis (D). In contrast, Klein‘s diagnosis could be represented as a change in diagnosis from (A) to (A+). Therefore, I would remand for an evidentiary hearing to determine if Meirhofer continues to meet the criteria for confinement. We cannot live in thе land of make-believe, where fictitious roads for relief exist and we pretend that a change in diagnosis makes no difference. The cornerstone of our system is due process—we must continue to believe in the power of the jury to make a determination for the community. A jury should determine if, beyond a reasonable doubt, Meirhofer continues to meet the criteria for commitment.
CONCLUSION
Meirhofer‘s diagnoses have sufficiently changed in a manner other than what is detailed in the SVP statute. A jury has not found that these conditions alone support a finding that civil commitment is the least restrictive means to adequately protect the community. Under the personal restraint petition analysis, I would hold that Meirhofer is entitled to an evidentiary hearing to determine if the change in diagnoses justifies Meirhofer‘s continued indefinite confinement under the statute.
Therefore I dissent.
Wiggins, J.
Madsen, C. J.
Stephens, J.
Notes
ALVIN E. HOUSE, DSM-IV DIAGNOSIS IN THE SCHOOLS 33 (2002), available at http://books.google.com/books?id=MtS2LjuU5AIC&q=33#v=snippet&q=33&f=false. The ICD-10 does include “pedophilia,” defined as “[a] sexual preference for children, boys or girls or both, usually of prepubertal or early pubertal age.” ICD-10, § F65.4.The phrase “rule out” does not appear in DSM-IV and is not part of the vocabulary of DSM. However, it is a common expression in psychiatric diagnosis and is often seen in reports, especially from professionals with medical training or experience in medical settings. There is often some confusion among nonphysicians as to the meaning of this expression. “Rule out” is typically used to identify an alternative diagnosis that is being actively considered, but for which sufficient data has not yet been obtained. For instance, the diagnostic statement “Alcohol Abuse, rule out Alcohol Dependence,” suggests that the examiner has definitely concluded there is a drinking problem; that there is definitely evidence supporting Alcohol Abuse; and that the more serious problem of Alcohol Dependence may be present, but the available evidence is inconclusive. “Rule out” can be thought of as a reminder or instruction to continue seeking the information which would allow a diagnosis to be conclusively identified or eliminated from consideration (for the present).
RAP 16.4(c).(2) The conviction was obtained or the sentence or other order entered in a criminal proceeding or civil proceeding instituted by the state or local government was imposed or entered in violation of the Constitution of the United States or the Constitution or laws of the State of Washington; or
(3) Material facts exist which have not been previously presented and heard, which in the interest of justice require vacation of the conviction, sentence, or other order entered in a criminal proceeding or civil proceeding instituted by the state or local government.