Lead Opinion
Opinion
Proposition 83, passed by the voters in November of 2006, modified the terms by which sexually violent predators (SVP’s) can be released from civil commitment under the Sexually Violent Predators Act (SVP Act or Act; Welf. & Inst. Code, § 6600 et seq.). In essence, it changes the commitment from a two-year term, renewable only if the People prove to a jury beyond a reasonable doubt that the individual still meets the definition
Defendant, who is subject to indeterminate commitment pursuant to Proposition 83, challenges the law on several constitutional grounds: that it violates the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution and that it violates the ex post facto clause, article I, section 10 of the United States Constitution. Like the Court of Appeal, we conclude that defendant’s due process and ex post facto challenges are without merit. As for the equal protection challenge, we conclude that the state has not yet carried its burden of demonstrating why SVP’s, but not any other ex-felons subject to civil commitment, such as mentally disordered offenders, are subject to indefinite commitment. As explained below, we remand to the trial court to permit the People the opportunity to justify the differential treatment in accord with established equal protection principles. (See In re Moye (1978)
I. Factual and Procedural Background
On November 8, 2004, a petition was filed to establish Richard McKee as an SVP within the meaning of the Act. The petition alleged McKee was “a person who has been convicted of a sexually violent offense against two or more victims for which he was sentenced and who has a diagnosed mental disorder that makes him a danger to the health and safety of others, in that it is likely he will engage in sexually violent predatory criminal behavior.” It alleged he had been convicted of two counts of committing lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)). One victim was an 11-year-old girl and the other was an eight-year-old girl.
On February 16, 2007, McKee demurred to the petition on the ground that the Act, as amended on November 7, 2006, by the voters’ passage of Proposition 83, was unconstitutional. The trial court overruled the demurrer.
On March 5, 2007, an amended petition was filed restating the original petition’s factual allegations and requesting that McKee be committed to an indeterminate term pursuant to the amended Act. On March 12, following a five-day trial, the jury returned a verdict finding McKee was an SVP within
McKee timely filed a notice of appeal. The court rejected McKee’s claims that the indeterminate commitment instituted by Proposition 83 violated federal or state due process, ex post facto or equal protection provisions. The court also rejected McKee’s challenge to the sufficiency of the evidence and to the adequacy of the jury instructions. We granted review, and subsequently limited the issues to whether the Act as amended by Proposition 83 violated McKee’s constitutional rights under the due process, equal protection, and ex post facto clauses.
II. The SVP Act and Proposition 83
The Act, as originally enacted (Stats. 1995, ch. 763, § 3, p. 5922), provided for the involuntary civil commitment for a two-year term of confinement and treatment of persons who, by a unanimous jury verdict after trial (Welf. & Inst. Code, former §§ 6603, subd. (d), 6604),
The Act was “designed to ensure that the committed person does not ‘remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.’ [Citation.]” (Hubbart, supra,
On November 7, 2006, California voters passed Proposition 83, entitled “The Sexual Predator Punishment and Control Act: Jessica’s Law” amending the Act effective November 8, 2006. Proposition 83 is a wide-ranging initiative that seeks to address the problems posed by sex offenders. It increases penalties for sex offenses, both by altering the definition of some sex offenses and by providing longer penalties for some offenses as well as modifying probation and parole provisions: it requires a GPS tracking device for felons subject to such registration for the remainder of their lives; it prohibits a registered sex offender from living within 2,000 feet of schools and parks; and it changes the SVP Act by reducing the number of sexually violent offenses that qualify an offender for SVP status from two to one. (See Voter Information Guide, Gen. Elec. (Nov. 7, 2006) analysis of Prop. 83 by Legis. Analyst, pp. 43-44.) Proposition 83 also changes an SVP commitment from a two-year term to an indefinite commitment. It is this latter provision with which this case is concerned and which will be described in more detail below.
Pursuant to Proposition 83, section 6604, which had prescribed a two-year term for SVP’s, now provides in relevant part: “If the court or jury
In the event the DMH does not authorize the committed person to file a petition for release pursuant to section 6605, the person nevertheless may file, as was the case with the pre-Proposition 83 Act, a petition for conditional release for one year and subsequent unconditional discharge pursuant to section 6608. (§ 6608, subd. (a).) Section 6608, subdivision (i), which was also unamended by the Act, provides: “In any hearing authorized by this section, the petitioner shall have the burden of proof by a preponderance of the evidence.” (Italics added.) After a trial court denies a section 6608 petition, “the person may not file a new application until one year has elapsed from the date of the denial.” (§ 6608, subd. (h).)
In short, under Proposition 83, an individual SVP’s commitment term is indeterminate, rather than for a two-year term as in the previous version of the Act. An SVP can only be released conditionally or unconditionally if the DMH authorizes a petition for release and the state does not oppose it or fails to prove beyond a reasonable doubt that the individual still meets the definition of an SVP, or if the individual, petitioning the court on his own, is able to bear the burden of proving by a preponderance of the evidence that he is no longer an SVP. In other words, the method of petitioning the court for release and proving fitness to be released, which under the former Act had
III. Discussion
A. Due Process Claim
McKee contends his indefinite involuntary commitment as an SVP under the Act violates his federal constitutional right to due process of law. There is no question that civil commitment itself is constitutional so long as it is accompanied by the appropriate constitutional protections. “States have in certain narrow circumstances provided for the forcible civil detainment of people who are unable to control their behavior and who thereby pose a danger to the public health and safety. [Citations.] . . . It. . . cannot be said that the involuntary civil confinement of a limited subclass of dangerous persons is contrary to our understanding of ordered liberty.” (Kansas v. Hendricks (1997)
McKee contends that it is the fact that his commitment is now indefinite, and that it is his burden to show by a preponderance of the evidence that he is no longer an SVP, that violates his federal due process rights. In making this argument, he relies in large part on Addington v. Texas (1979)
The Addington court therefore concluded that “the individual’s interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.” (Addington, supra,
McKee argues Addington requires the state to prove by at least clear and convincing evidence in not only the first commitment hearing but periodically at subsequent commitment hearings as well, and that therefore section 6608, subdivision (i) violates due process by imposing on the petitioner the burden of proving by a preponderance of the evidence that he is entitled to release. As explained below, the United States Supreme Court case law decided after Addington leads to the conclusion that the clear and convincing evidence standard does not apply to subsequent commitment proceedings for SVP’s.
The primary case relied on by the People is Jones v. United States (1983)
The court rejected a due process challenge to the statute. Congress had determined “that a criminal defendant found not guilty by reason of insanity in the District of Columbia should be committed indefinitely to a mental institution for treatment and the protection of society. [Citations.]” (Jones, supra, 463 U.S. at pp. 361-362.) An NGI determination “established] two facts: (i) the defendant committed an act that constitutes a criminal offense, and (ii) he committed the act because of mental illness.” (Id. at p. 363.) Jones stated: “Congress has determined that these findings constitute an adequate basis for hospitalizing the acquittee as a dangerous and mentally ill person. [Citations.] We cannot say that it was unreasonable and therefore unconstitutional for Congress to make this determination, [f] The fact that a person has been found, beyond a reasonable doubt, to have committed a criminal act certainly indicates dangerousness. [Citation.] Indeed, this concrete evidence [of commission of a criminal act] generally may be at least as persuasive as any predictions about dangerousness that might be made in a civil-commitment proceeding.” (Id. at p. 364, fns. omitted.)
Distinguishing Addington, the court explained that in equating NGI commitment with the ordinary civil commitment at issue in Addington, “petitioner ignores important differences between the class of potential civil-commitment candidates and the class of insanity acquittees that justify differing standards of proof. The Addington Court expressed particular concern that members of the public could be confined on the basis of ‘some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable.’ [Citations.] . . . But since automatic commitment under [the District of Columbia’s NGI commitment statute] follows only if the acquittee himself advances insanity as a defense and proves that his criminal act was a product of his mental illness, there is good reason for diminished concern as to the risk of error. More important, the proof that he committed a criminal act as a result of mental illness eliminates the risk that he is being committed for mere ‘idiosyncratic behavior[.]’ [Citation.]” (Jones, supra,
Although McKee was not found not guilty by reason of insanity, he has been found beyond a reasonable doubt in his initial commitment to meet the definition of an SVP. That finding is, for present constitutional purposes, the functional equivalent of the NGI acquittal in Jones. As in Jones, McKee has already been found not only to have previously committed the requisite criminal acts but was found beyond a reasonable doubt to have “a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” (§ 6600, subd. (a).) Therefore, as in Jones, the danger recognized in Addington “that members of the public could be confined on the basis of ‘some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable’ ” or “for mere ‘idiosyncratic behavior’ ” (Jones, supra,
McKee seeks to distinguish Jones, arguing that in the latter case, an individual was entitled to a hearing every six months, whereas there is no such entitlement for the SVP after Proposition 83. In fact, section 6608, subdivision (h) permits an SVP to file a new petition for release as early as a year after the previous petition was denied. The statute does permit the court to deny a hearing if the petition is frivolous. Section 6608, subdivision (a) provides in pertinent part: “If a person has previously filed a petition for conditional release without the concurrence of the director and the court determined, either upon review of the petition or following a hearing, that the petition was frivolous or that the committed person’s condition had not so changed that he or she would not be a danger to others in that it is not likely that he or she will engage in sexually violent criminal behavior if placed under supervision and treatment in the community, then the court shall deny the subsequent petition unless it contains facts upon which a court could find that the condition of the committed person had so changed that a hearing was warranted. Upon receipt of a first or subsequent petition from a committed person without the concurrence of the director, the court shall endeavor whenever possible to review the petition and determine if it is based upon frivolous grounds and, if so, shall deny the petition without a hearing.”
McKee further contends that his lack of access to mental health experts to challenge his continuing commitment violates due process. As he points out, although section 6605, subdivision (d) mandates the appointment of experts when the DMH authorizes an indigent inmate to petition for release, section 6608, subdivision (a) merely provides that petitioner has the right to counsel, with no mention of experts, when he petitions without the DMH’s approval.
McKee is correct that expert testimony is critical in an SVP commitment proceeding, in which the primary issue is not, as in a criminal trial, whether the individual committed certain acts, but rather involves a prediction about the individual’s future behavior. If the state involuntarily commits someone on the basis of expert opinion about future dangerousness, places the burden on that person to disprove future dangerousness, and then makes it difficult for him to access his own expert because of his indigence to challenge his continuing commitment, that schema would indeed raise a serious due process concern.
We do not believe, however, that the statute needs to be interpreted in this narrow manner. It is true that section 6608, subdivision (a), unlike section 6605, subdivision (d), does not explicitly provide for experts when an SVP petitions the court for release. But section 6605, subdivision (a) states that in conjunction with the DMH’s examination of an SVP’s mental condition, which must occur “at least once every year,” an SVP who is indigent may request and the court may appoint “a qualified expert or professional person to examine him or her.” Although section 6605, subdivision (a) does not explicitly provide for the appointment of the expert in conjunction with a section 6608 petition, such appointment may be reasonably inferred. As is clear from the context, the annual examination authorized by section 6605,
We construe statutes when reasonable to avoid difficult constitutional issues. (See In re Smith (2008)
Construing the amended Act in the above manner, we conclude it does not violate the due process clause.
B. Ex Post Facto Claim
McKee also contends his indefinite commitment under the terms of Proposition 83 violated the federal constitutional prohibition against ex post facto laws because it is punitive and was applied to his conduct prior to its enactment. We disagree.
Article I, section 10 of the United States Constitution provides; “No state shall. . . pass any ... ex post facto law . . . .” The ex post facto clause prohibits only those laws that “retroactively alter the definition of crimes or increase the punishment for criminal acts.” (Collins v. Youngblood (1990)
In Hubbart, supra,
In concluding that our Act is not punitive, and therefore not within the scope of the ex post facto clause, we relied on the United States Supreme Court’s similar conclusion in Hendricks with respect to Kansas’s Sexually Violent Predator Act. As the court stated: “Far from any punitive objective, the confinement’s duration is instead linked to the stated purposes of the commitment, namely, to hold the person until his mental abnormality no longer causes him to be a threat to others. [Citation.] If, at any time, the confined person is adjudged ‘safe to be at large,’ he is statutorily entitled to immediate release. [Citation.]” (Hendricks, supra, 521 U.S. at pp. 363-364.)
We therefore concluded the Act was not punitive because “[v]iewed as a whole, the SVPA is also designed to ensure that the committed person does not ‘remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.’ ” (Hubbart, supra,
McKee also argues that Proposition 83, taken as a whole, including increased provisions regarding the punishment for those convicted of sexually related offenses, evinces a punitive purpose. Obviously, the portion of Proposition 83 that concerns increased punishment for sex offenses is punitive. But the fact that the amendments to the civil commitment statute are part
McKee also argues the seven-factor test articulated in Kennedy v. Mendoza-Martinez (1963)
Although one of the five factors — affirmative restraints on liberty — is present here, as it is with all involuntary civil commitments, the other four factors go against McKee: (1) civil commitment has historically been imposed nonpunitively on those whose inability to control their behavior poses a danger to the public (see Hendricks, supra,
McKee contends his involuntary commitment as an SVP under the Act, as amended by Proposition 83 in 2006, violated his federal constitutional right to equal protection under the law because it treats SVP’s significantly less favorably than those similarly situated individuals civilly committed under other statutes. We conclude his claim has some merit and will require remand for further proceedings.
In re Moye, supra,
This court concluded that such extension of the commitment would violate equal protection. The court compared NGI commitment to commitment under the former Mentally Disordered Sex Offender (MDSO) Act, the forerunner of the SVP Act, although unlike SVP’s, those committed under the MDSO Act were civilly committed in lieu of a prison term, rather than after that term. As we observed: MDSO’s “comprise a class of individuals quite similar to those, such as petitioner, who have been acquitted of a criminal offense by reason of insanity. Both classes, for example, involve persons who initially have been found to have committed a criminal act, but whose mental condition warrants a period of confinement for treatment in a state institution, in lieu of criminal punishment.” (Moye, supra,
Thus, comparing the NGI and MDSO statutory schemes, we stated: “The foregoing provisions demonstrate the marked differences between the statutory commitment and release procedures applicable to MDSOs on the one hand and persons committed under section 1026 on the other. Yet, as we have noted the preconditions to both commitments are similar: the initial commitment follows commission of a criminal act and is based upon a finding of a mental disorder which might present a danger to others. The MDSO can be confined for only a limited period, measured by the maximum term for the underlying offense, unless thereafter the People (or other committing authority) can establish grounds for an extended commitment. In contrast, persons in petitioner’s class face indefinite, lifetime confinement unless they can prove that their sanity has been restored.” (Moye, supra, 22 Cal.3d at pp. 464-465.)
The Moye court then reviewed other California civil commitment statutes, including the Lanterman-Petris-Short Act (LPS Act; § 5000 et seq.), commitment for juvenile offenders, and for those deemed incompetent to stand trial, each of which had rules for recommitment similar to the MDSO Act. The court concluded: “In summary, our research reveals that commitments under section 1026 represent the sole instance of a potential lifetime confinement, imposed without regard to the nature of the underlying offense or the maximum punishment prescribed for it, and without the additional protection of periodic review and recommitment hearings. Thus, disparity of treatment seems clearly to exist.” (Moye, supra,
The court then reasoned: “Because petitioner’s personal liberty is at stake, the People concede that the applicable standard for measuring the validity of the statutory scheme now before us requires application of the strict scrutiny standard of equal protection analysis. Accordingly, the state must establish
The court then rejected the People’s attempts to justify the differences in treatment between NGI and MDSO commitments. “The People suggest that MDSOs suffer from a more ‘limited’ form of mental disorder (predisposition toward commission of sexual offenses) when compared with persons found to be insane under [Penal Code] section 1026. It seems quite clear, however, that both classes of persons present equally substantial risks of harm. By statutory definition, an MDSO is a person ‘who by reason of mental defect, disease, or disorder, is predisposed to the commission of sexual offenses to such a degree that he is dangerous to the health and safety of others.’ (Welf. & Inst. Code, § 6300, italics added.) Yet, despite their potential dangerousness, MDSOs must be released from confinement when the maximum term for their underlying offense has expired, unless the People can establish grounds for an extended commitment. (Id., § 6316.2.) We believe that constitutional demands of equal protection require a similar shifting of the burden of proof in favor of persons acquitted as insane, in order to retain them in confinement beyond the maximum term prescribed for the offense they committed while insane.” (Moye, supra,
The court then concluded: “Specifically, we hold that principles of equal protection require . . . that persons committed to a state institution following acquittal of a criminal offense on the ground of their insanity cannot be retained in institutional confinement beyond the maximum term of punishment for the underlying offense of which, but for their insanity, they would have been convicted.” (Moye, supra,
Decisions by this court and the United States Supreme Court before and since Moye have used the equal protection clause to police civil commitment statutes to ensure that a particular group of civil committees is not unfairly or arbitrarily subjected to greater burdens. (See Baxstrom v. Herold (1966)
Most recently in In re Smith, supra,
Our statement of these principles in Smith followed an extensive discussion of Hofferber. In Hofferber, we found that those charged with criminal acts determined to be incompetent to stand trial could be subject to civil commitment under the LPS Act even though the state was not initially required to prove such persons were “gravely disabled” (§ 5008, subd. (h)(1)(A)) within the meaning of that act. (Hofferber, supra, 28 Cal.3d at pp. 170-174.) “[The state] may adopt more than one procedure for isolating, treating, and restraining dangerous persons; and differences will be upheld if justified. [Citations.] Variation of the length and conditions of confinement, depending on degrees of danger reasonably perceived as to special classes of persons, is a valid exercise of state power.” (Id. at p. 172, italics added.) For this reason, we concluded, “some separate treatment of permanently incompetent criminal defendants formally charged with violent felonies is justified. Allegedly they have engaged in violence so critical that serious criminal charges were believed appropriate. Magistrates or grand juries have found substantial evidence that the alleged conduct actually was committed as alleged. Those determinations of probable cause establish strong grounds to believe that, by concrete acts, the incompetent defendants already have seriously imperiled public safety and thus are particularly dangerous.” (Id. at p. 173.)
In Smith, we concluded that the reasonably perceived greater danger of SVP’s justifies their being treated differently from those subject to the LPS Act, the general civil commitment statute, who cannot be subject to long-term commitment based on psychiatric opinion alone. “Individuals in prison with felony convictions have yet to demonstrate their capacity or willingness to keep their conduct within the bounds of the law and to break old criminal habits, and the Legislature could legitimately conclude that such felons who have prior sexually violent offenses represent a particular danger to society that justifies a separate system of civil commitment.” (Smith, supra,
With these principles in mind, we turn to McKee’s equal protection claim. He contends that SVP’s are treated less favorably than those similarly
“As a condition of parole, a prisoner may be designated and civilly committed as an MDO for involuntary treatment of a ‘severe mental disorder’ if certain conditions are met. ([Pen. Code,] §§ 2962, 2966; [citations].) Section 2962 provides that a prisoner is subject to the MDO Act if: ‘(a) The prisoner has a severe mental disorder that is not in remission or cannot be kept in remission without treatment’; ‘(b) The severe mental disorder was one of the causes of or was an aggravating factor in the commission of a crime for which the prisoner was sentenced to prison’; ‘(c) The prisoner has been in treatment for the severe mental disorder for 90 days or more within the year prior to the prisoner’s parole or release’; ‘(d)’ a special team of mental health professionals] evaluated the prisoner and concluded that criteria (a), (b) and (c) above have been met, and that due to the severe mental disorder, the prisoner ‘represents a substantial danger of physical harm to others’, ‘(e)’ the prisoner received a determinate sentence for the crime referenced in subdivision (b), and the crime is one of the enumerated crimes in subdivision (e). (§ 2962, subds. (a)-(e).) If such are found to exist, the prisoner may request a de novo hearing before the Board of Parole Hearings. (§ 2966.) If the Board of Parole Hearings concludes that the criteria are met, the prisoner may request a jury trial in the superior court. {Ibid.) ‘The standard of proof shall be beyond a reasonable doubt, and if the trial is by jury, the jury shall be unanimous in its verdict.’ (§ 2966, subd. (b); [citation].)
“Before an MDO’s current commitment period expires, the district attorney may petition to extend that commitment by one year. (§ 2970.) To do so, the medical director of the state hospital, the community program director, or the Director of Corrections first ‘shall submit’ to the district attorney a written evaluation of the prisoner ‘[n]ot later than 180 days’ before the prisoner’s termination of parole or release. . . .’ ” (People v. Allen (2007)
As stated above, a prisoner is only eligible for MDO commitment if he or she has committed certain crimes of violence. These crimes are set forth in Penal Code section 2962, subdivision (e) and include voluntary manslaughter, kidnapping, carjacking, rape, forcible sodomy, armed robbery, arson, attempted murder, and other crimes in which the prisoner used force or violence or caused serious bodily injury.
As we have stated: “ ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’ ” (Cooley v. Superior Court, supra,
The Court of Appeal, in rejecting McKee’s equal protection challenge, concluded that SVP’s and MDO’s are not similarly situated. “The classifications of an SVP and an MDO are different. An SVP is defined as ‘a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.’ (§ 6600, subd. (a)(1).) In contrast, an MDO is generally defined as a person with a severe mental disorder that cannot be kept in remission without treatment and that was a cause or factor in the commission of a felony offense and, because of that severe mental disorder, represents a substantial danger of physical harm to others. (Pen. Code, § 2962, subds. (a)-(e); People v. Allen, supra,
We conclude that MDO’s and SVP’s are similarly situated for our present purposes. As was stated in In re Calhoun (2004)
In other terms, imposing on one group an indefinite commitment and the burden of proving they should not be committed, when the other group is subject to short-term commitment renewable only if the People prove periodically that continuing commitment is justified beyond a reasonable doubt, raises a substantial equal protection question that calls for some justification by the People. As the United States Supreme Court has made clear, standards and burdens of proof represent societal determinations of who should bear the risk that a court’s or jury’s judgment will be in error. (Addington, supra, 441 U.S. at pp. 426-427.) Standards and burdens of proof, like other due process protections afforded both criminal defendants and persons subject to involuntary commitment, also balance the individual’s fundamental liberty interest in not being incarcerated or involuntarily confined with the state’s
The People argue that the state has a wide latitude in classifying different types of civil commitments, citing People v. Wilkinson (2004)
The People also rely on a passage from Buffington that attempts to justify the fact that MDO’s receive treatment while in prison while SVP’s do not. As that court stated: “Prisoners who suffer from conditions that may with treatment be kept in remission are the target of the MDO Act, whereas the SVPA covers prisoners whose conditions pose a risk of future sexually violent criminal behavior and who may never be completely treated. (Pen. Code, § 2962; Welf. & Inst. Code, § 6606, subd. (b).) Given these contrasting backgrounds and expectations related to treatment, we cannot say the two groups are similarly situated in this respect for equal protection purposes.” (Buffington, supra,
The truth of this assertion is unclear from the face of the statutes in question. The two statutes cited in Buffington and Hubbart are Penal Code section 2962 and Welfare and Institutions Code section 6606, subdivision (b). Penal Code section 2962, subdivision (a) states, in pertinent part that a prisoner may be classified as an MDO if he “has a severe mental disorder that is not in remission or cannot be kept in remission without treatment.” (Italics added.) Welfare and Institutions Code section 6606, subdivision (b) provides: “Amenability to treatment is not required for a finding that any person is a person described in Section 6600, nor is it required for treatment of that person. Treatment does not mean that the treatment be successful or potentially successful, nor does it mean that the person must recognize his or her problem and willingly participate in the treatment program.”
In other words, Penal Code section 2962, subdivision (a) includes two classes of MDO’s: those whose mental disorders are simply found to be not in remission, and those whose mental disorders are found to be in remission only due to treatment. While the statute therefore contemplates that the latter class of MDO’s will need and respond to treatment, it also includes in the former class those whose illnesses are not in remission and do not necessarily respond to treatment. There is therefore little difference in this respect between MDO’s and SVP’s; section 6606, subdivision (b) envisions that some SVP’s will, and some will not, respond to treatment.
The Court of Appeal below, in concluding that SVP’s are more of a danger than MDO’s, relied upon the legislative findings to Proposition 83: “As the California Supreme Court noted, the Act, on its original enactment, ‘narrowly targeted] “a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders [who] can be identified while they are incarcerated.” ’ (Cooley v. Superior Court, supra,
But these assertions, written into the findings of Proposition 83 by those who drafted the initiative, are not the same as facts, and an allusion to an uncited United States Department of Justice study does not make them so.
Nor is it a response to McKee’s equal protection challenge that the SVP commitment statute does not violate the due process clause, as discussed above. Due process and equal protection protect different constitutional interests: due process affords individuals a baseline of substantive and procedural rights, whereas equal protection safeguards against the arbitrary denial of benefits to a certain defined class of individuals, even when the due process clause does not require that such benefits be offered. (See, e.g., Califano v. Westcott (1979)
McKee argues that NGI’s and SVP’s are also similarly situated and that a comparison of the two commitment regimes raises similar equal protection problems as discussed above. His argument has merit. NGI’s as discussed are those who have committed criminal acts but have been civilly committed rather than criminally penalized because of their severe mental disorder. Under the current statutory scheme they may not be in civil custody longer than the maximum state prison term to which they could have been sentenced for the underlying offense (Pen. Code, § 1026.5, subd. (a); People v. Crosswhite (2002)
We do not conclude that the People could not meet its burden of showing the differential treatment of SVP’s is justified. We merely conclude that it has not yet done so. Because neither the People nor the courts below properly
The concurring and dissenting opinion objects to any such remand, declaring that “[wjhether society should treat sex crimes and their perpetrators differently from those who commit other crimes, however, is a judgment call for society to make, not a ‘fact’ for a judge to determine after an evidentiary hearing.” (Conc. & dis. opn. of Chin, J., post, at p. 1229.) In support of its position it cites a criminal case, Powell v. Texas (1968)
We therefore remand this case to the trial court to determine whether the People, applying the equal protection principles articulated in Moye and related cases discussed in the present opinion, can demonstrate the constitutional justification for imposing on SVP’s a greater burden than is imposed
Moreover, we emphasize that mere disagreement among experts will not suffice to overturn the Proposition 83 amendments. The trial court must determine whether the legislative distinctions in classes of persons subject to civil commitment are reasonable and factually based — not whether they are
TV. Disposition
The judgment of the Court of Appeal is affirmed in part and reversed in part, and the cause is remanded with directions to remand to the trial court for proceedings consistent with this opinion.
George, C. J., Kennard, J., Werdegar, J., and Corrigan, J., concurred.
Notes
At trial, the evidence showed McKee had been convicted in 1991 for committing lewd acts against an 11-year-old babysitter and in 1998 for committing lewd acts against his eight-year-old niece.
McKee does not contend that the amended Act was not intended to apply to someone in his situation, who was committed as an SVP after the passage of Proposition 83. This is therefore not a case in which Proposition 83 is being imposed retroactively. (See People v. Litmon (2008)
All statutory references are to the Welfare and Institutions Code unless otherwise specified.
Former section 6604 provided in pertinent part: “[T]he person shall not be kept in actual custody longer than two years unless a subsequent extended commitment is obtained from the court incident to the filing of a new petition for commitment under this article or unless the term of commitment changes pursuant to subdivision (e) of Section 6605.”
Proposition 83’s findings state: “The People find and declare each of the following: H] . .. HQ (k) California is the only state, of the number of states that have enacted laws allowing involuntary civil commitments for persons identified as sexually violent predators, which does not provide for indeterminate commitments. California automatically allows for a jury trial every two years irrespective of whether there is any evidence to suggest or prove that the committed person is no longer a sexually violent predator. As such, this act allows California to protect the civil rights of those persons committed as a sexually violent predator while at the same time protect society and the system from unnecessary or frivolous jury trial actions where there is no competent evidence to suggest a change in the committed person.” (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) text of Prop. 83, § 2, p. 127; see Historical and Statutory Notes, 47C West’s Ann. Pen. Code (2008 ed.) foil. § 209, pp. 52-53.)
Of course, nothing we say here precludes an individual from challenging an erroneous judicial determination that a petition is frivolous. (See People v. Collins (2003)
The Smith v. Doe court, which addressed whether the imposition of a registration requirement for sex offenders fell within the scope of the ex post facto clause, explained that “[t]he two remaining Mendoza-Martinez factors — whether the regulation comes into play only on a finding of scienter and whether the behavior to which it applies is already a crime — are of little weight in this case. The regulatory scheme applies only to past conduct, which was, and is, a crime. This is a necessary beginning point, for recidivism is the statutory concern. The obligations the statute imposes are the responsibility of registration, a duty not predicated upon some present or repeated violation.” (Smith v. Doe, supra,
The concurring and dissenting opinion argues that because there is some overlap between the SVP Act and the MDO Act, and because the former was enacted after the latter, it follows that “sexually violent predators are a particularly dangerous subset of the broader group of persons who may be civilly committed under the MDO Act.” (Conc. & dis. opn. of Chin, J., post, at p. 1220, original italics.) But if the concurring and dissenting opinion means to suggest that SVP’s are therefore more dangerous than persons committed under the MDO Act, that inference neither follows logically from the circumstances of overlap and later enactment, nor is it supported by authority or evidence. Indeed, that inference is contrary to the fact that originally the terms under which MDO’s and SVP’s were committed were substantially similar. (See Buffington, supra, 74 Cal.App.4th at pp. 1156-1162.)
Our own research has been unable to locate a relevant 1998 United States Department of Justice study. We have uncovered a 1997 study of sex offenders by the United States Department of Justice, Bureau of Justice Statistics. (Greenfeld, Bur. of Justice Statistics, Sex Offenses and Offenders: An Analysis of Data on Rape and Sexual Assault (Feb. 1997).) It is unclear from an initial reading of the report whether it supports the factual assertions about recidivism made by the Proposition 83 legislative findings. (See also Langan & Levin, Bur. of Justice Statistics, Recidivism of Prisoners Released in 1994 (June 2002).)
It is not entirely clear why SVP’s who target children are more dangerous to society than MDO’s or NGI’s whose victims were children. It may be the case that SVP’s whose previous victims were children are more likely, because of the nature of their mental disorder, to target children in the future, whereas MDO’s or NGI’s who have committed violent acts against children are less likely to specifically target child victims if they reoffend. This argument was not made below, and we have no way of knowing whether it has a factual basis.
McKee also argues that equal protection is violated because he is treated differently from those committed under the LPS Act. The LPS Act (§ 5000 et seq.) is California’s general civil commitment statute and applies to those mentally incompetent individuals who are gravely disabled and/or represent a danger to themselves and others. (See Smith, supra, 42 Cal.4th at pp. 1267-1268.) Although some committed under the LPS Act have been found incompetent to stand trial on criminal charges (see § 5008, subd. (h)), they have not been definitively determined to have committed serious felonies, and in that respect differ from SVP’s, MDO’s, and NGI’s. As noted, “[individuals in prison with felony convictions have yet to demonstrate their capacity or willingness to keep their conduct within the bounds of the law and to break old criminal habits, and the Legislature could legitimately conclude that such felons who have prior sexually violent offenses represent a particular danger to society that justifies a separate system of civil commitment.” (Smith, supra,
In this connection, we note that the concurring and dissenting opinion goes to considerable length to demonstrate a point no one contests, no matter what the standard of review being applied — that SVP’s may be validly subject to a different statutory scheme than those subject to the general civil commitment statute. Indeed, the out-of-state cases that the concurring and dissenting opinion cites for the most part merely support this unremarkable proposition. (See Martin v. Reinstein (Ct.App. 1999)
The two out-of-state cases cited by the concurring and dissenting opinion that are remotely on point are readily distinguishable. In State v. Post (1995)
In In re Care and Treatment of Coffman (Mo. 2007)
We also note that Senate Bill No. 1128 (2005-2006 Reg. Sess.), enacted in September 2006 as an urgency measure, shortly before the passage of Proposition 83, anticipated the
We further note that the concurring and dissenting opinion’s speculation that we are contemplating the use of “nonexpert testimony” on remand (conc. & dis. opn. of Chin, J., post, at p. 1229) is unwarranted.
Moreover, we strongly disagree with the concurring and dissenting opinion’s characterization of our view as being “that every detail of every civil commitment program is subject to strict scrutiny.” (Conc. & dis. opn. of Chin, J., post, at p. 1218.) Nor do we agree with the concurring and dissenting opinion inasmuch as it means to imply that the change from a short-term commitment, renewable only if the state carries its burden beyond a reasonable doubt, to an indefinite commitment in which the person committed has the burden of proof is merely an alteration of a minor detail of the commitment scheme.
We also emphasize that our holding in the present case does not mean that statutes pertaining to sexual offenders in general must be subject to heightened scrutiny. The lifetime registration requirements imposed by Penal Code section 290, for example, do not involve the loss of liberty. (See Smith v. Doe, supra,
Concurrence Opinion
Concurring and Dissenting. — In 2006, the Legislature and then, in an identical fashion, the electorate, reformed provisions of California’s Sexually Violent Predators Act (SVPA; Welf. & Inst. Code, § 6600 et seq.) concerning the procedures for releasing sexually violent predators from civil commitment and permitting them to rejoin society.
The majority holds that the reforms do not violate defendant’s ex post facto and due process rights. I agree. But, because the Legislature and electorate did not make similar changes to other civil commitment schemes, the majority also holds that an evidentiary hearing is needed to determine whether the changes violate equal protection principles. I disagree. Consistent with the unanimous view of all seven panels in five Courts of Appeal that have considered this precise question in originally published opinions, and of all the decisions in other states that have rejected this or similar equal protection contentions, I would find no equal protection violation. I would uphold the legislative and electoral reforms against all of the constitutional challenges of this case.
The equal protection question comes down to this: May society treat sexually violent predators — those who have committed and been convicted of sex crimes — differently from persons who did not commit sex crimes? To ask the question should be to answer it. As the United States Supreme Court and this court have recognized, sexually violent predators are different from other
A community may take action to protect its children and other vulnerable members from violent sex offenders, even if that action does not apply to persons subject to other civil commitment schemes. The Legislature or electorate may, without running afoul of equal protection principles, address one societal problem even if it does not simultaneously address other problems. Society has long treated sexual predators differently from others. Good reason exists for this different treatment. Sexual predators are different. And their sexually predatory conduct has a uniquely traumatizing effect on their victims. The Legislature or the electorate or, as here, both, may address the dangers that sexually violent predators pose separately from other societal problems, and craft remedies to protect society from their depravations that differ from remedies crafted for nonsex offenders.
I. Background
A historical review is necessary to place this issue fully into context.
“Historically, the states have exercised a power of involuntary civil commitment involving the care and treatment of dangerous mentally disordered individuals.” (Hubbart v. Superior Court (1999)
One early statute dealing specifically with sexual predators is a Kansas law enacted in 1994 entitled, much like the California statute at issue here, the Sexually Violent Predator Act. (Kan. Stat. Ann. § 59-29a01 et seq.) In 1997, the United States Supreme Court considered — and rejected — a constitutional challenge (that did not include an equal protection challenge) to that law. (Hendricks, supra,
The court quoted with approval the preamble to the Kansas law, where the Kansas Legislature explained that a “ ‘small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to the [general involuntary civil commitment statute] .... In contrast to persons appropriate for civil commitment under the [general involuntary commitment statute], sexually violent predators generally have anti-social personality features which are unamenable to existing mental illness treatment modalities and those features render them likely to engage in sexually violent behavior. The legislature further finds that sexually violent predators’ likelihood of engaging in repeat acts of predatory sexual violence is high. The existing involuntary commitment procedure ... is inadequate to address the risk these sexually violent predators pose to society. The legislature further finds that the prognosis for rehabilitating sexually violent predators in a prison setting 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 [general involuntary civil commitment statute].’ ” (Hendricks, supra,
The Kansas statute defined a “sexually violent predator” as “ ‘any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.’ ” (Hendricks, supra,
Justice Breyer, speaking for four members of the court, dissented in Hendricks, but only on the ex post facto point. (Hendricks, supra, 521 U.S. at pp. 373-374 (dis. opn. of Breyer, J.).) Speaking for three members of the court, Justice Breyer expressly agreed that, other than the ex post facto concern, the Kansas act was constitutional. (Id. at pp. 374-37S.)
California’s SVPA was enacted a year after Kansas’s, and took effect January 1, 1996. (Stats. 1995, ch. 763, § 3, p. 5922.) In many respects, California’s SVPA is similar to the Kansas act. (See Hubbart, supra,
The California SVPA was accompanied by legislative findings similar to those stated in the preamble to the Kansas law. (See Hubbart, supra,
In Hubbart, supra,
The year 2006 saw the enactment of a number of reforms in the law’s treatment of sexual predators. “On September 20, 2006, the Governor signed the Sex Offender Punishment, Control, and Containment Act of 2006, Senate Bill No. 1128 (2005-2006 Reg. Sess.) (Senate Bill 1128). (Stats. 2006, ch. 337.) Senate Bill 1128 was urgency legislation that went into effect immediately. (Stats. 2006, ch. 337, § 62.) Among other things, it amended provisions of the SVPA to provide the initial commitment set forth in Welfare and Institutions Code section 6604 was for an indeterminate term. (Stats. 2006, ch. 337, § 55.) All references to an extended commitment in sections 6604
The majority correctly explains that “[o]n November 7, 2006, California voters passed Proposition 83, entitled ‘The Sexual Predator Punishment and Control Act: Jessica’s Law’ amending the [SVPA] effective November 8, 2006. Proposition 83 is a wide-ranging initiative that seeks to address the problems posed by sex offenders. It increases penalties for sex offenses, both by altering the definition of some sex offenses and by providing longer penalties for some offenses as well as modifying probation and parole provisions: it requires a GPS tracking device for felons subject to such registration for the remainder of their lives; it prohibits a registered sex offender from living within 2,000 feet of schools and parks; and it changes the [SVPA] by reducing the number of sexually violent offenses that qualify an offender for [sexually violent predator] status from two to one. (See Voter Information Guide, Gen. Elec. (Nov. 7, 2006) analysis of Prop. 83 by Legis. Analyst, pp. 43-44.)” (Maj. opn., ante, at p. 1186.)
Proposition 83 also “ ‘requires that [sexually violent predators] be committed by the court to a state mental hospital for an undetermined period of time rather than the renewable two-year commitment provided for under existing law.’ (Voter Information Guide, Gen. Elec. (Nov. 7, 2006) analysis of Prop. 83 by Legis. Analyst, p. 44.)” (Bourquez v. Superior Court, supra,
Proposition 83’s findings include the following: “The People find and declare each of the following: [][]... [f] (b) Sex offenders have very high recidivism rates. According to a 1998 report by the U.S. Department of Justice, sex offenders are the least likely to be cured and the most likely to reoffend, and they prey on the most innocent members of our society. More than two-thirds of the victims of rape and sexual assault are under the age of 18. Sex offenders have a dramatically higher recidivism rate for their crimes than any other type of violent felon. [][]... (k) California is the only
Proposition 83’s intent clause provides as relevant: “It is the intent of the People of the State of California in enacting this measure to strengthen and improve the laws that punish and control sexual offenders.” (Voter Information Guide, Gen. Elec., supra, text of Prop. 83, § 31, p. 138; see Historical and Statutory Notes, 47C West’s Ann. Pen. Code, supra, foil. § 209, p. 53.)
Proposition 83 was approved by a 70.5 percent majority of the voters casting votes on the proposition. (See Cal. Sect, of State, Votes For and Against November 7, 2006 Statewide Ballot Measures <http://www.sos.ca.gov> [as of Jan. 28, 2010].)
As relevant here, the majority accurately summarizes the substance of the 2006 reforms: “In short, under Proposition 83 [and also under the Sex Offender Punishment, Control, and Containment Act of 2006], an individual [sexually violent predator’s] commitment term is indeterminate, rather than for a two-year term as in the previous version of the [SVPA]. [A sexually violent predator] can only be released conditionally or unconditionally if the [Department of Mental Health] authorizes a petition for release and the state does not oppose it or fails to prove beyond a reasonable doubt that the individual still meets the definition of [a sexually violent predator], or if the individual, petitioning the court on his own, is able to bear the burden of proving by a preponderance of the evidence that he is no longer [a sexually violent predator]. In other words, the method of petitioning the court for release and proving fitness to be released, which under the former Act had been the way [a sexually violent predator] could cut short his two-year commitment, now becomes the only means of being released from an indefinite commitment when the [Department of Mental Health] does not support release.” (Maj. opn., ante, at pp. 1187-1188.)
Two recent Court of Appeal opinions have held that the 2006 reforms apply to sexually violent predators who were already civilly committed under
Thus, seven originally published Court of Appeal opinions rejected constitutional challenges to the 2006 reforms, including the equal protection challenge at issue here. Until today, no court has reached a contrary result.
II. Discussion
Although the majority upholds the 2006 reforms against due process and ex post facto challenges, it finds they potentially violate equal protection principles. I disagree. The reforms are constitutional in all respects.
I will discuss (1) whether the law must treat sexually violent predators the same as others in deciding when to release them into society; (2) the majority’s apparent view that every detail of every civil commitment program is subject to strict scrutiny (see maj. opn., ante, at pp. 1197-1198, 1210); (3) out-of-state cases which, as will be seen, unanimously reject this or closely similar equal protection contentions; and (4) the evidentiary hearing the majority has mandated.
A. Equal Protection
“ ‘ “The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate
An express purpose of the SVPA in general, and the 2006 reforms specifically, is to protect society from sexually violent predators. This is certainly a legitimate purpose. “The problem targeted by the [SVPA] is acute, and the state interests — protection of the public and mental health treatment — are compelling.” (Hubbart, supra,
The majority finds that sexually violent predators are similarly situated for these purposes to persons civilly committed under the Mentally Disordered Offender Act (MDO Act) (Pen. Code, § 2960 et seq.) and that, because the 2006 reforms did not extend to the MDO Act, those reforms potentially violate equal protection.
The MDO Act, enacted in 1985 (People v. Allen (2007)
The MDO Act is thus very broad and includes in its coverage a wide range of violent offenders. It is California’s general involuntary civil commitment program for mentally disordered offenders. “In contrast, the SVPA,” enacted a decade after the MDO Act, “narrowly targets ‘a small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders [who] can be identified while they are incarcerated.’ (Stats. 1995, ch. 763, § 1, p. 5921.)” (Cooley v. Superior Court, supra,
The majority cites virtually no authority addressing the question actually before us — whether society may treat sex offenders differently, and less favorably, than nonsex offenders. It relies almost exclusively on general authority that, as relevant here, merely stands for the obvious proposition that civil commitment programs are subject to equal protection principles.
The 2006 reforms were limited to addressing the danger that sex offenders pose. They do not address other societal problems, such as those posed by mentally disordered offenders governed by the MDO Act. But that circumstance does not make the reforms unconstitutional. Addressing some societal problems but not others in a single piece of legislation does not violate equal protection. “[B]oth the United States Supreme Court and this court have recognized the propriety of a legislature’s [or, presumably, the electorate’s] taking reform ‘ “one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.” ’ [Citation.] ‘[A] legislature need not run the risk of losing an entire remedial scheme simply because it failed, through inadvertence or otherwise, to cover every evil that might conceivably have been attacked.’ [Citation.]” (Kasler v. Lockyer (2000)
Hendricks, supra,
In short, the SVPA seeks to protect the public from sexually violent predators. This purpose is entirely legitimate. Regarding this legitimate purpose, those predators are situated differently from others. The Legislature and the electorate may prescribe rules for their release into society that are different from the rules that apply to California’s general, much broader, civil commitment program.
B. Strict Scrutiny
I question whether the 2006 reforms are subject to strict scrutiny rather than review under the more deferential rational basis test. (See generally People v. Wilkinson (2004)
The belief that strict scrutiny adheres to commitment proceedings like the SVPA can be traced to In re Moye, supra,
Recently, in People v. Wilkinson, supra,
Sexually violent predators are certainly not a suspect class. Additionally, I question whether a person has a fundamental interest in any particular burden or standard of proof leading to a possible finding that he no longer qualifies as a sexually violent predator. Penal classifications that can lead to greatly enhanced prison sentences are subject to the rational basis test. (People v. Wilkinson, supra,
The majority notes that the imposition of lifetime registration requirements on sex offenders, but not others, is subject to rational basis review. (Maj. opn., ante, at p. 1211, fn. 14.) But, because the stigma attached to the requirements may be great and the penal consequences of failure to register immense, the registration requirements can have a far greater impact on a sex offender’s life than the exact procedures of a civil commitment program. To say that the former is subject to rational basis review but the latter to strict scrutiny seems contrived at best.
Ultimately, we do not have to decide the exact test that applies here, because, as I have explained, sexually violent predators are not situated similarly to other offenders for equal protection purposes. Moreover, the high court has not yet expressly decided the point. (See Heller v. Doe (1993)
C. Cases from Other States
Every case outside of California of which I am aware (neither defendant nor the majority cite any to the contrary) that has considered this or a closely similar equal protection contention has found no violation in treating civilly committed sex offenders less favorably than persons committed under other civil commitment programs. I discuss some of the cases in alphabetical order by state.
The Arizona Court of Appeals rejected the argument that strict scrutiny applies to an equal protection challenge to Arizona’s version of the SVPA despite the fact that personal liberty is involved: “We conclude that the rational basis test applies. Petitioners have viewed too expansively the interest at stake. . . . [Tjhey have not pointed us to, and we have not found, a fundamental right to have particular procedures apply. The courts that have analyzed equal protection challenges based upon the application of differing sets of rules have applied the rational basis test, even in cases such as this one, where liberty may ultimately be at stake. [Citations.]” (Martin v. Reinstein (Ct.App. 1999)
The Florida Supreme Court also rejected the argument that strict scrutiny applies to an equal protection challenge to the Ryce Act, Florida’s version of the SVPA, despite the fact that personal liberty is involved: “[Petitioner] contends that his fundamental right to liberty is at issue here and, thus, strict scrutiny is the proper standard by which the statute should be measured. However, we conclude that [petitioner] mischaracterizes the nature of his equal protection claim. Even though [petitioner’s] liberty may ultimately be at stake, his claim challenges the Legislature’s decision to create a special classification for sexually violent predators and to apply special procedures to such involuntary civil commitments. Thus, we conclude that [petitioner’s] equal protection claim should be evaluated under the rational basis test.” (Westerheide v. State (Fla. 2002)
The Illinois Supreme Court held that the Illinois equivalent of California’s SVPA “is subject to the rational basis test. . . . The statutory classifications assailed by defendant are not based on race, national origin, sex or illegitimacy, nor do they implicate fundamental rights.” (In re Detention of Samuelson (2000)
The Iowa Supreme Court rejected the argument that strict scrutiny applies to an equal protection challenge to Iowa’s version of the SVPA, despite the fact that personal liberty is involved: “As the Arizona Court of Appeals recently observed, governmental classifications of the mentally ill have historically been analyzed under the rational basis test even when individual liberty was at stake.” (In re Detention of Williams (Iowa 2001)
The Missouri Supreme Court was one of the few to subject a law comparable to the SVPA “to strict scrutiny because it affects the fundamental right of liberty.” (In re Care and Treatment of Coffman (Mo. 2007)
The North Dakota Supreme Court did not decide what level of scrutiny North Dakota’s equivalent of the SVPA should receive because the North Dakota law “survives [the] equal protection challenge under even the highest level of scrutiny.” (In re P.F. (2008)
The South Carolina Supreme Court applied the rational basis test to an equal protection challenge to South Carolina’s equivalent of the SVPA. (In re Treatment and Care of Luckabaugh (2002)
Washington applies the rational basis test to equal protection challenges to its version of the SVPA. (In re Detention of Stout (2007)
The Wisconsin Supreme Court declined to decide whether strict scrutiny or rational review applies to an equal protection challenge to Wisconsin’s
D. The Evidentiary Hearing
The majority today orders a superior court judge to conduct an evidentiary hearing to decide whether society may take steps to protect itself from sexually violent predators that differ from steps it takes regarding persons subject to California’s general involuntary civil commitment program. At the hearing, “[t]he trial court may, if appropriate, permit expert testimony.” (Maj. opn., ante, at p. 1209.) The purpose of the hearing, according to the majority, is to give the government the opportunity to demonstrate that the 2006 reforms are “based on a reasonable perception of the unique dangers that [sexually violent predators] pose rather than a special stigma that [sexually violent predators] may bear in the eyes of California’s electorate.” (Maj. opn., ante, at p. 1210.) (The majority opinion should, but does not, add “and the California Legislature.”)
At the evidentiary hearing, however, the court apparently is not to resolve any factual dispute in the way courts normally do. The majority adds that “mere disagreement among experts will not suffice to overturn the Proposition 83 amendments [and, presumably, the Legislature’s amendments]. The trial court must determine whether the legislative distinctions in classes of persons subject to civil commitment are reasonable and factually based — not whether they are incontrovertible or uncontroversial.” (Mai. opn., ante, at pp. 1210-1211.)
Fortunately, I will not be the trial judge who has to try to make sense of these pronouncements on remand, but apparently the trial court will not be allowed to resolve a factual dispute among experts. Indeed, the majority seems to give the trial court discretion to prohibit expert testimony entirely,
The majority states it is not contemplating the use of nonexpert testimony. (Maj. opn., ante, at pp. 1209-1210, fn. 12.) That is reassuring, but if so, it seems the hearing on remand will necessarily turn on expert testimony. Whether society should treat sex crimes and their perpetrators differently from those who commit other crimes, however, is a judgment call for society to make, not a “fact” for a judge to determine after an evidentiary hearing. In Powell v. Texas (1968)
Moreover, the victims of sexual crimes are especially likely to be traumatized because, as the Iowa Supreme Court noted, sexual crimes have “ ‘particularly devastating effects’ ” on the victims. (In re Detention of Williams, supra,
In upholding Kansas’s version of the SVPA, the high court stressed that legislatures must be given the widest latitude to legislate in areas fraught with medical and scientific uncertainty. (Hendricks, supra, 521 U.S. at pp. 360, fn. 3, 370.) That describes this situation. How to treat sex crimes is “analytically nuanced” and, as such, we must defer to the legislative branch. (Hubbart, supra,
The majority cites some specific factual statements by Proposition 83’s proponents and the proponents’ reference to a “1998 report” as also warranting an evidentiary hearing. (Maj. opn., ante, at p. 1206.) I disagree for two reasons. First, the issue before us is whether society may treat sex offenders differently from other offenders, not whether specific factual claims by proponents of legislation are correct. Second, the Legislature did not rely on those findings and that report when it enacted the Sex Offender Punishment, Control, and Containment Act of 2006. Thus, even if a perceived inaccuracy in the factual findings cited by Proposition 83’s proponents would provide a reason to overturn that initiative measure, the inaccuracy would provide no reason to overturn the Legislature’s identical provisions.
The majority acknowledges only obliquely, in a footnote near the end of its opinion, that the Legislature also enacted the reforms the majority finds potentially invalid. (Maj. opn., ante, at pp. 1209-1210, fn. 12.) Then it gets technical. It says, “The People have not addressed whether the legislative history of that statute contains any justification for treating [sexually violent predators] differently from [mentally disordered offenders] and may do so on remand.” (Id. at p. 1210, fn. 12.) (However, the majority also directs the Court of Appeal to remand the matter to the trial court for further proceedings consistent with its opinion, i.e., for an evidentiary hearing. (Maj. opn., ante, at p. 1211.) Thus, it is not clear when the People are supposed to have the opportunity to defend the Legislature’s actions.) I agree the People have not made a separate argument that the Sex Offender Punishment, Control, and Containment Act of 2006 is valid even if Proposition 83 is invalid. Such an argument would seem unnecessary given that the two provisions are identical as relevant here. But at least the People have noted that both the Legislature and the electorate enacted the reforms at issue. Defendant never even cites
The majority confidently asserts that any ruling invalidating the reforms of 2006 would not endanger the constitutional validity of other ways in which society has treated sex offenders differently from others, for example, by imposing lifetime registration requirements. (Maj. opn., ante, at p. 1211, fn. 14.) I hope future potential litigants and courts will heed this assertion. But if the result of the mandated evidentiary hearing is the trial court’s finding that the 2006 reforms are not “based on a reasonable perception of the unique dangers that [sexually violent predators] pose,” but rather are based on “a special stigma that [sexually violent predators] may bear in the eyes of California’s electorate [and the Legislature]” (maj. opn., ante, at p. 1210)— and thus the 2006 reforms violate equal protection guarantees — it is hard to imagine how society could reasonably impose lifetime registration requirements on those same persons that are not imposed on others.
I need not resolve this conundrum, because I believe the law may use different procedures for deciding when to release sexually violent predators into society than it uses regarding other civilly committed persons. No evidentiary hearing can invalidate this legislative choice.
III. Conclusion
The majority has empowered a single superior court judge to find unreasonable all of the following: the unanimous judgment of both branches of California’s Legislature; the overwhelming judgment of the California electorate; the judgment of legislatures throughout the nation; and the decision of the United States Supreme Court approving of the Kansas Legislature’s determination that sexually violent predators present risks that the state’s general involuntary commitment procedure was inadequate to address. This action is contrary to the unanimous judgment of all seven Court of Appeal opinions that considered this precise question in originally published opinions, as well as the judgment of courts around the nation that have rejected equal protection challenges to their states’ equivalent of the SVPA. I cannot agree. Whether sexually violent predators present a distinct danger warranting unique remedies is for society to determine, not a trial judge.
Baxter, J., concurred.
Appellant’s petition for a rehearing was denied March 10, 2010. Baxter, J., and Chin, J., were of the opinion that the petition should be granted.
The majority opinion briefly acknowledges the Legislature’s action (maj. opn., ante, at p. 1209, fn. 12), but otherwise it discusses only what the electorate did and largely ignores the fact that the Legislature acted first.
Justice Ginsburg joined the dissent on the ex post facto point and expressed no opinion regarding the other issues. Thus, “at least eight justices found no basis on which to conclude that the act violated Hendricks’s due process rights.” (Hubbart, supra,
Defendant and the majority also discuss to some extent other civil commitment programs such as those for persons found not guilty of a crime due to insanity. Because these programs are even farther removed from the SVPA than the MDO Act, and the majority concentrates on the MDO Act, I will not discuss the other civil commitment programs. What I say about the MDO Act applies even more strongly to other programs.
The majority cites only one case finding an equal protection violation that actually involves treating sexually violent predators less favorably than others. (In re Calhoun (2004)