                                                                                     FILED
                                                                             COURT OF APPEALS
                                                                                   DIVISION Ti

                                                                             2014 JUL - 1        8 : 50

                                                                             STATE OF WASHINGTON




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

In the Matter of the Detention of                                            No. 44500 -0 -II



TODD M. PLACE,                                                       UNPUBLISHED OPINION
a/ k/ a Todd McKown,




            JOHANSON, C.J. —       Todd     McKown1 challenges the Thurston County Superior Court' s

denial of his motion to vacate a stipulated order committing him as a sexually violent predator

    SVP).    McKown argues that the order was void and, thus, his CR 60 motion was not time

barred.      He correctly points out that the commitment action had been initiated by the Thurston

County Prosecutor without statutory authority to do so and argues that the prosecutor' s action

made    the   order void.    The trial court disagreed with McKown and denied the motion to vacate,


citing the 12 -year time gap between the entry of the order and McKown' s motion. We affirm the

trial court; a judgment is void only if made without subject matter jurisdiction or personal

jurisdiction, and neither is the case here.




1
    The petitioner' s birth name is Todd M. Place, and he was referred to as such during the original
proceedings      in 2000.    He   now prefers      to be known   as Todd McKown.        Out of respect for the
appellant,    this   opinion will refer   to him   as   McKown throughout.
No. 44500 -0 -II



                                                                  FACTS


        For      most    of     his life, McKown has been receiving treatment for " extreme behavioral


problems."         Clerk'   s   Papers ( CP)        at   8.     McKown has been implicated in sexual misconduct


ranging from voyeurism and " flashing" to forcible intercourse, and he claims to have assaulted a

total of 37   victims, with ages          ranging from 3 to 50.              He has been convicted of sexually violent

offenses    on     two   occasions.       In 1989, while in the custody of the Oregon Youth Authority,

McKown absconded from an Oregon Youth Authority school with a nine -year -old student and

raped him. As a result, he was convicted of first degree sexual abuse and first degree attempted


sodomy.      Then, in Skagit County, Washington in 1995, McKown was caught fondling his 10-

year -old cousin. He admitted that he would have raped his cousin if he had not been discovered

and stated    to   police, "`    Next time I        am        going to turn to    murder.   Next time I won' t be Mr. Nice


Guy. This ain' t even a quarter or a third of what I can do. Not even a tenth. I like blood, death,
murder, and violence.'"             CP   at   9. McKown subsequently pleaded guilty to communicating with


a minor for immoral purposes and was incarcerated.

          In 1999, McKown was due to be released from prison when the Thurston County

Prosecuting Attorney' s Office contacted the Washington Attorney General' s Office to request

that McKown be              committed         as    an   SVP      pursuant   to   ch.   71. 09 RCW.     As the parties now


acknowledge, the Thurston County Prosecuting Attorney' s Office had no authority to make this

request    because McKown had                 not   been       charged or convicted      in Thurston   County.   CP at 45 -46


 citing In    re    Det. of Martin, 163 Wn.2d 501, 506, 182 P. 3d 951 ( 2008)).                           Nevertheless, the


Washington Attorney General' s Office proceeded to file a petition to civilly commit McKown as

an   SVP.     In support of this petition, the State retained a psychologist who found that McKown

 suffered    from "      Pedophilia, as well as a Depressive Personality Disorder with Borderline

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No. 44500 -0 -II



Personality      Features     and    Avoidant     Personality      Features."     CP    at   10 -11.    She further found that


McKown' s condition made him " likely to engage in predatory acts of sexual violence" if he were

not   treated   under "    total   confinement     in   a secure   facility."   CP at 11.


            Subsequently, McKown and the State stipulated to the facts concerning McKown' s

deviant behaviors           and     stipulated    that these facts " establish beyond a reasonable doubt that


 McKown] is         a[ n   SVP],     as   that term is defined in RCW 71. 09. 020."                    CP   at   11.   They further

stipulated      to the subject       matter   jurisdiction   and    the   personal     jurisdiction     of   the   court.    Finally,

they stipulated to an order declaring McKown an SVP and committing him to the custody of the

Department        of   Social     and   Health Services for treatment           and   counseling in     a secure       facility.   The


trial court entered the stipulated order on November 20, 2000.

            McKown has never challenged these findings of fact or conclusions of law on the merits.

Rather, in 2012, McKown moved to dismiss his stipulated order of commitment on two theories.


First, he argued that the Thurston County Prosecuting Attorney' s Office lacked authority under

the SVP statute to have the Attorney General' s Office initiate the proceeding against him, and

that   he   was entitled     to    relief under   CR 60( b)( 5), ( 11),    and ( c).    Second, McKown argued that the


trial court lacked subject matter jurisdiction to hear the SVP proceeding, but he later abandoned

that argument.



            After hearing oral argument, the trial court denied McKown' s motion, holding that

            the aspect of CR 60 that does not permit motions like this brought beyond a
            lengthy period of time applies and that the 12 years in the interim is too long for
            the Court to grant the motion to dismiss under CR 60, considering it' s not a
            subject matter        jurisdiction issue.
No. 44500 -0 -II



Report   of   Proceedings        at   22.   The trial court noted that while there might have been procedural


defects in the way the SVP proceeding was initiated, 12 years after the fact was too late to rectify

those defects.


         McKown           appealed     the trial   court' s   denial, raising only    one   issue   on appeal —he   argued


that the 2000 stipulated order was void and could be vacated under CR(60)( b) at any time.

                                                          ANALYSIS


                                                   I. STANDARD OF REVIEW


         This court reviews a trial court' s decision on a motion to vacate a judgment for abuse of

discretion.      Haller     v.   Wallis, 89 Wn.2d 539, 543, 573 P. 2d 1302 ( 1978);                    In re Marriage of

Herridge, 169 Wn.            App.     290, 296, 279 P. 3d 956 ( 2012);        In re Marriage of Newlon, 167 Wn.

App.    195, 199, 272 P. 3d 903 ( 2012);               Barr v. MacGugan, 119 Wn. App. 43, 46, 78 P. 3d 660

 2003). "     A trial court abuses its discretion if its decision is manifestly unreasonable or based on

untenable     grounds or untenable reasons."                  In re Marriage of Littlefield, 133 Wn.2d 39, 46 -47,

940 P. 2d 1362 ( 1997).


                                                          II. VOIDNESS


         Although 12 years passed between McKown' s commitment and his motion to vacate,


McKown correctly argues that a void judgment is not subject to a time bar and may be vacated at

any time.       In   re   Marriage of Leslie, 112 Wn.2d 612, 618, 772 P. 2d 1013 ( 1989).                    The issue is


whether     this     stipulated order was void.          As we discuss below, a judgment is void if the issuing

court   lacks    subject matter        jurisdiction    or personal    jurisdiction.    Because the superior court had


jurisdiction,      we reject     McKown'      s argument and affirm      the trial   court.
No. 44500 -0 -II



                                            A. UNTIMELY RELIEF FROM A JUDGMENT


             CR 60( b)      provides       that   a motion   to   vacate must             be   made " within a reasonable        time."   But


as the courts have consistently recognized, a motion to vacate a void judgment under CR

60( b)( 5) is       an exception      to the      reasonable      time        requirement.          In Leslie, the trial court entered a


default judgment in favor of the respondent, awarding expenses that the respondent had not

requested.          112 Wn.2d        at   614.    The petitioner moved for relief from the default eight years later

and    the   court      denied the    motion.       Leslie, 112 Wn.2d                at   616 -17.    We affirmed the denial, holding

that   eight years          was '    not    a reasonable       time      as       contemplated        by   CR 60( b)( 5). '      Leslie, 112


Wn.2d        at   617 ( quoting In          re    Marriage of Leslie,                noted     at   50 Wn.   App.     1061 ( 1988)).      The


Supreme Court              reversed,      holding    that the     original         judgment         was           to the extent it provided


relief not requested              in the   complaint and          that   void       judgments        could   be   vacated "   irrespective of


the    lapse      of   time."     Leslie, 112 Wn.2d at 618 ( citing John Hancock Mut. Life Ins. Co. v. Gooley,

196 Wash. 357, 370, 83 P. 2d 221 ( 1938)).


             Similarly, in Allstate Insurance Co: v. Khani, 75 Wn. App. 317, 320, 877 P. 2d 724

    1994),    the appellant was not properly served and subsequently the court entered a default

judgment          against    him.     The trial court denied his motion to vacate, noting that the appellant had

    waited for over four years before doing anything about [ the default] or taking any action to

have it       set      aside. '     Allstate, 75 Wn.         App.        at       322.    Another division of this court reversed,


holding that the judgment was void because service had been improper, depriving the lower


2
    The Supreme Court held that the trial                    court' s order was made without "jurisdiction,"                      but did not
specify what kind of jurisdiction was lacking. Leslie, 112 Wn.2d at       In any event, Leslie                617.
was decided before the Supreme Court clarified in Marley v. Dep' t of Labor & Industries, 125
Wn.2d 533, 541, 886 P. 2d 189 ( 1994),                        that a judgment could only be void for lack of personal
jurisdiction or subject matter jurisdiction.


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No. 44500 -0 -II



court of personal jurisdiction. Allstate, 75 Wn. App. at 324 ( citing In re Marriage ofMarkowski,

50 Wn.     App. 633, 635 -36,              749 P. 2d 754 ( 1988)).        Under the Leslie rule, the appellant was then


entitled to relief regardless of the passage of time.


         If the Thurston County stipulated order was indeed void, then the . 12 -year interim

between the entry of the order and McKown' s motion to vacate is no more relevant than the 8-

year   interim in Leslie        or    the 4 -year interim in Allstate.           Accordingly, the determinative question

is   whether    the    order    committing McKown               was   void or not.       We turn to the issue of voidness


now.



                                                             B. VOIDNESS


         Voidness is          a narrow concept.            The Supreme Court has made clear that " a court enters a


void order only when it lacks personal jurisdiction or subject matter jurisdiction over the claim."

Marley     v.   Dep' t   of Labor & Indus., 125 Wn.2d 533, 541, 886 P. 2d 189 ( 1994).
                                                                                                                McKown does


not argue that the court lacked either personal jurisdiction over the party or subject matter

jurisdiction     over    the   claim—        indeed, he     stipulated    to both —but    rather raises the alternate theory

that the     superior     court       lacked " authority, statutory         or   otherwise."     Br.   of   Appellant   at   9.   In


support of      this   theory, he      cites   Dike   v.   Dike, 75 Wn.2d 1, 7, 448 P. 2d 490 ( 1968) (          differentiating

error of     law from " power to              make    the   order or rulings complained of') (          quoting Robertson v.

Commonwealth, 181               Va. 520, 536, 25 S. E. 2d 352 ( 1943)).                   His reliance on Dike is not well


taken.     The Supreme Court clarified in Marley that the authority to enter an order is not in itself

part of the test for voidness, but merely " a subset of subject matter jurisdiction, adopted by this

court   to   account     for the      unique qualities of contempt orders."               125 Wn.2d     at   540. That is, there


                               that        judgment           be          and    thus   exempt   from the time bar:          lack of
 are   only two        ways            a               can         void




personal jurisdiction and lack of subject matter jurisdiction.

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No. 44500 -0 -II



         At no point did McKown allege that the superior court lacked personal jurisdiction to


enter the order committing him and nothing in the record suggests that the court lacked personal

jurisdiction.         Furthermore,         McKown voluntarily abandoned his subject matter jurisdiction

arguments prior        to this      appeal.   But even if he did not, the procedural defects he asserts did not


deprive the court of subject matter jurisdiction. As our Supreme Court tells us, the " authority to

enter a given order"           is something     quite     different from      subject matter      jurisdiction.      Marley, 125

Wn.2d     at   539.     Indeed,      our   Supreme Court has held —on similar facts to this casethat the


prosecutor' s "       filing    authority"    was    not    a   matter   of   subject    matter    jurisdiction; rather, the


appellant' s subject matter jurisdiction and venue arguments were " irrelevant to the question" of

whether    the   prosecutor         had authority to initiate     an   SVP proceeding. Martin, 163 Wn.2d at 515-


16. This is because            subject matter   jurisdiction —that        is, the inherent authority to hear a particular

type   of case —      is a broad concept that will be found absent " only in ` compelling circumstances,

such as when       it is explicitly limited          by   the Legislature     or   Congress. "'    In re Marriage of Kelly,

85 Wn. App. 785, 790, 934 P. 2d 1218 ( quoting In re Marriage ofMajor, 71 Wn. App. 531, 534,

859 P. 2d 1262 ( 1993)),             review   denied, 133 Wn.2d 1014 ( 1997).                McKown does not argue that


the    legislature limited          subject   matter      jurisdiction in this       case.    Rather, he argues that the


prosecutor     lacked authority to          bring   the case —   a very different proposition from the court lacking

authority to hear the case.

          The superior court erred when it entered the order committing McKown at the behest of a

prosecutor      that   had     no   authority to initiate the proceeding.            See Martin, 163 Wn.2d             at    516.   If


McKown had timely                challenged    his   commitment,         he may have been          entitled   to   relief.   He did




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No. 44500 -0 -II



not;   he   waited    12   years.   Absent any    briefing that    the   delay   was reasonable,   3 McKown is entitled

to   relief   only if the   superior court' s   judgment     was not     merely    erroneous,   but   void —that   is, if the


court   lacked     personal     jurisdiction    or   subject matter      jurisdiction.   McKown did not prove the


absence of personal jurisdiction or subject matter jurisdiction, but rather proved something

different:      the   absence of     filing   authority.    The trial court did not abuse its discretion when it


ruled   that this showing was         not enough     to   overcome   the CR 60 time bar.         We affirm.


            A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




3 McKown argued to the trial court that his delay was reasonable because he had obtained new
counsel. The superior court disagreed and McKown did not raise the issue on appeal.
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