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                                                      COURI OF APPEALS 01V I
                                                      'STATE OF WASHINGTON

                                                       20IB FEB 26 01 8:39




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Detention of
                                                 No. 75138-7-1
ZACHARY SHANE NELSON,
                                                 DIVISION ONE
                     Petitioner.
                                         )
In the Matter of the Detention of        )       No. 75364-9-1
                                         )
LOUIS BROOK,                             )       PUBLISHED OPINION
                                         )
                     Petitioner.         )       FILED: February 26, 2018
                                         )

       BECKER, J. — These linked appeals are before us on discretionary review

to address a recurring issue in the procedure for determining whether a person

committed as a sexually violent predator may have a trial for release. We hold

that at a show cause hearing under RCW 71.09.090(2)(b), the prosecuting

agency is free to rely on experts of its choosing rather than relying exclusively on

annual evaluations prepared under RCW 71.09.070.

       The issue involves two distinct sections of chapter 71.09 RCW. The first

is the requirement for an annual evaluation. Each person committed as a

sexually violent predator "shall have a current examination of his or her mental

condition made by the department at least once every year." RCW 71.09.070(1).
Nos. 75138-7-1 & 75364-9-1


The second is the procedure for a show cause hearing, which is set forth in

RCW 71.09.090(2).

       A committed person may petition the court once a year for conditional

release to a less restrictive alternative or unconditional release. The court then

sets a show cause hearing to determine whether probable cause exists for a trial

on release. RCW 71.09.090(2)(a). The court performs "a critical gate-keeping

function" at the show cause hearing; the court "must assume the truth of the

evidence presented" but at the same time "must determine whether the asserted

evidence, if believed, is sufficient to establish the proposition its proponent

intends to prove." State v. McCuistion, 174 VVn.2d 369, 382, 275 P.3d 1092

(2012), cert. denied, 568 U.S. 1196 (2013).

       At a show cause hearing, the prosecuting agency for the state "shall

present prima facie evidence establishing that the committed person continues to

meet the definition of a sexually violent predator and that a less restrictive

alternative is not in the best interest of the person and conditions cannot be

imposed that adequately protect the community." RCW 71.09.090(2)(b). If the

state does not make this.initial showing, the court "shall" set a release trial.

RCW 71.09.090(2)(c).

       If the state does make this initial showing, the committed person will still

be allowed to have a release trial if probable cause exists to believe that the

person's condition has "so changed" that

       (A)the person no longer meets the definition of a sexually violent
       predator; or(B) release to a proposed less restrictive alternative
       would be in the best interest of the person and conditions can be
       imposed that would adequately protect the community.

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Nos. 75138-7-1 & 75364-9-1



RCW 71.09.090(2)(c)(ii); see In re Det. of Petersen, 145 Wn.2d 789, 798, 42

P.3d 952(2002)(two 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 prisoner.") Proof that

the prisoner has "so changed" must be shown by current evidence from a

licensed professional of a physiological change or a treatment-induced change to

the person's mental condition. RCW 71.09.090(4); McCuistion, 174 Wn.2d at

382.

       Petitioners contend that the prosecuting agency's prima facie evidence

required by RCW 71.09.090(2)(b) is limited to the annual evaluation. The

objective of petitioners is to proceed to a trial. If the state fails to make its prima

facie showing at the show cause hearing, the committed person will be granted a

full trial even if there is no evidence that the person has "so changed."

McCuistion, 174 Wn.2d at 380("The court must order an evidentiary hearing if the

State fails to meet its burden"); In re Det. of Marcum, 189 Wn.2d 1, 8, 403 P.3d 16

(2017). Thus, if the prosecuting agency's evidence at the show cause hearing

were limited to an annual evaluation, and that evaluation did not meet the State's

burden stated in RCW 71.09.090(2)(b), the matter would proceed to trial.

Nelson

       Petitioner Zachary Nelson was committed as a sexually violent predator in

2011. Nelson's commitment was based on acts he committed as an adolescent.

         Nelson's annual evaluation in 2015 was performed by Dr. Robert Saari, a

psychologist employed as a forensic evaluator by the Department of Social and

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Nos. 75138-7-1 & 75364-9-1


Health Services. An annual evaluation must include "consideration of whether. . .

the committed person currently meets the definition of a sexually violent predator."

RCW 71.09.070(2)(a). According to Dr. Saari's report, he does not think Nelson

currently meets the definition. He said that his opinion was based not on any

clear change in Nelson's mental condition but on a fundamental disagreement

with his initial commitment.

       Dr. Saari's evaluation was sent to the King County Superior Court and the

King County Prosecuting Attorney's Office as required by RCW 71.09.070(1).

Citing Dr. Saari's acknowledged lack of expertise with adolescent sex offenders,

the prosecutor's office contacted the department and requested a second

evaluation. The department retained Dr. Christopher North to complete a second

evaluation of Nelson. Dr. North has experience with juvenile sex offenders and

had previously evaluated Nelson. According to Dr. North's evaluation, Nelson

currently meets the definition of a sexually violent predator.

       The court scheduled a show cause hearing to determine whether Nelson

was entitled to an unconditional release trial. Nelson moved to strike Dr. North's

evaluation, arguing the state was required to rely exclusively on the annual

evaluation performed by Dr. Saari. The trial court denied the motion to strike. If

the only professional evaluation before the court had been Dr. Saari's report

stating that Nelson does not meet the definition of a sexually violent predator, the

state would not have carried its initial burden of producing prima facie evidence.

The court concluded that the state met its prima facie burden through Dr. North's

evaluation.


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Nos. 75138-7-1 & 75364-9-1


        Dr. Saari's report did not evaluate Nelson's condition as having changed

since his commitment trial. The trial court determined that his report was "not

sufficient" to allow Nelson to proceed to a trial and entered an order terminating

Nelson's annual review.

        Nelson's appeal does not challenge the court's ruling that Dr. Saari's

report was insufficient to permit him to proceed to a trial. The sole issue he

presents is whether the trial court properly allowed the state to rely on Dr. North's

report as prima facie evidence of his unfitness for release instead of limiting the

State to Dr. Saari's evaluation.

Brock

        Petitioner Louis Brock has been committed as a sexually violent predator

since 1991. While committed, Brock has largely refused treatment. Dr. Kristen

Carlson, a psychologist employed as a forensic evaluator by the department,

performed an annual evaluation of Brock. Her report was filed in February 2016.

She stated that although Brock was not participating in treatment, she could not

"say with any degree of psychological certainty that Mr. Brock is considered likely

(more probably than not) to commit a sexually violent offense." Brock requested

a show cause hearing to determine whether there were grounds for his

unconditional release in light of Dr. Carlson's report. The show cause hearing

was held in May 2016.

        To meet its initial burden of producing prima facie evidence under

RCW 71.09.090(2)(b), the prosecuting agency—in Brock's case, the Attorney

General's Office—submitted an evaluation produced in November 2015 by


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Nos. 75138-7-1 & 75364-9-1


Dr. Henry Richards. Dr. Richards opined that Brock continues to meet the

definition of a sexually violent predator and is not safe to be released to a less

restrictive alternative. This report was not an annual evaluation produced by the

department. Dr. Richards prepared it in anticipation of serving as an expert

witness for the state at a trial in July 2016 on whether a less restrictive alternative

was appropriate for Brock.

       Brock objected to the introduction of Dr. Richards' evaluation. He made

the same argument as Nelson—that the statute required the state to rely

exclusively on the annual evaluation performed by Dr. Carlson.

       The court ruled the state was unrestricted in the type of evidence it could

present to make the prima facie showing required by RCW 71.09.090(2)(b). The

court admitted Dr. Richards' report and held that it was prima facie evidence that

Brock continued to meet the definition of a sexually violent predator.

       The court then found that Brock did not meet his burden of establishing

probable cause that his condition had "so changed" under RCW 71.09.090(2)(c)(ii).

The court considered Carlson's evaluation but noted that Brock had not been

participating in treatment. The court declined to grant Brock's request for a new

trial. See RCW 71.09.090(4)(b).

       Like Nelson, Brock does not challenge the trial court's ruling that Dr.

Carlson's report was insufficient to establish probable cause. The sole issue is

whether the trial court properly allowed the state to rely on the report by Dr.

Richards to make its prima facie showing. Petitioners contend that only the




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Nos. 75138-7-1 & 75364-9-1


annual evaluation is admissible at the show cause hearing to determine whether

the state has met its prima facie burden.

       Since the grant of discretionary review, both Nelson and Brock have been

granted jury trials regarding their request for unconditional release. Because

they have already obtained the relief they are seeking, their appeals are

technically moot. This court may review a moot case "if it presents issues of

continuing and substantial public interest." In re Marriage of Homer, 151 Wn.2d

884, 891, 93 P.3d 124(2004). We elect to do so in this case due to the recurring

nature of the issue presented.

       The issue presented is a matter of statutory construction. Statutory

interpretation is reviewed de novo. In re Det. of Strand, 167 Wn.2d 180, 186,

217 P.3d 1159(2009). "In interpreting a statute, this court looks first to the plain

language." State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).

       Under RCW 71.09.070, the department must produce an annual report of

the detainee's mental condition. Petitioners claim the statute envisions the

annual report as the only evaluation the prosecuting agency may rely on to meet

the state's burden at the show cause hearing. Their proposed limitation finds no

support in the statutory language. The annual review and the show cause

hearing are separate and distinct procedures. RCW 71.09.070 makes the

production of the annual report an obligation of the department. It does not

preclude the prosecuting agency from hiring another expert to contradict the

annual report at the show cause hearing. It does not even mention the




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Nos. 75138-7-1 & 75364-9-1


prosecuting agency. The obligations of the prosecuting agency are discussed in

RCW 71.09.090(2)(b) in connection with the show cause hearing.

      The show cause hearing is a judicial proceeding. Its purpose is to

determine whether the detainee is entitled to an evidentiary hearing. Marcum,

189 Wn.2d at 11. The initial burden of proof is placed on the prosecuting agency

to demonstrate that continued commitment is appropriate. To make its prima

facie showing at the show cause hearing, "the state may rely exclusively upon

the annual report prepared pursuant to RCW 71.09.070." RCW 71.09.090(2)(b).

       Brock and Nelson argue that "may" in this context means "shall." Their

interpretation runs contrary to the statute's plain language. The word "may" is

ordinarily regarded as permissive, and it is presumed to do so when used in the

same statutory provision as the word "shall." Scannell v. City of Seattle, 97

Wn.2d 701, 704,648 P.2d 435, 656 P.2d 1083(1982). Here, the word "may" is

presumptively permissive. It occurs in a statutory provision that also uses the

word "shall":

       The committed person shall have a right to have an attorney
       represent him or her at the show cause hearing, which may be
       conducted solely on the basis of affidavits or declarations, but the
       person is not entitled to be present at the show cause hearing. At
       the show cause hearing, the prosecuting agency shall present
       prima facie evidence establishing that the committed person
       continues to meet the definition of a sexually violent predator and
       that a less restrictive alternative is not in the best interest of the
       person and conditions cannot be imposed that adequately protect
       the community. In making this showing, the state may rely
       exclusively upon the annual report prepared pursuant to RCW
       71.09.070. The committed person may present responsive
       affidavits or declarations to which the state may reply.

RCW 71.09.090(2)(b)(emphasis added).


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Nos. 75138-7-1 & 75364-9-1


       Courts do not engage in statutory interpretation of a statute that is not

ambiguous. State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001), cert.

denied, 534 U.S. 1130(2002). "If a statute is plain and unambiguous, its

meaning must be derived from the wording of the statute itself." Keller, 143

Wn.2d at 276. The statute quoted above unambiguously provides that the state

is permitted to rely on an annual report to make its prima facie case at the show

cause hearing but is not required to do so.

       In an attempt to overcome the statute's plain language, Nelson and Brock

call on the doctrine of constitutional avoidance. Statutes are construed to avoid

constitutional problems if possible. State v. Chester, 133 Wn.2d 15, 21, 940 P.2d

1374(1997). The annual review scheme is "critical" to the constitutionality of

chapter 71.09 RCW because it provides a means to petition the court for release.

McCuistion, 174 Wn.2d at 388. "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.

      The annual review produced by a professional evaluator for the

department is used "to properly identify those who are no longer mentally ill and

dangerous." McCuistion, 174 Wn.2d at 389. Nelson and Brock argue that

allowing the state to retain and rely on other experts at the show cause hearing

will strip the annual review process of objectivity. They contend that unless the

state is required to rely exclusively on the annual report, the commitment scheme

as a whole will not provide substantive due process.


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Nos. 75138-7-1 & 75364-9-1


       We disagree. What is critical to the constitutionality of the statute is a

"periodic and timely evaluation of the sexually violent person's mental health

condition." In re Det. of Rushton, 190 Wn. App. 358, 371, 359 P.3d 935(2015).

The periodic and timely evaluation is provided for in RCW 71.09.070 by making it

an obligation of the department. Allowing the prosecuting agency to present a

different evaluation to make its prima facie case at the show cause hearing

provided for in RCW 71.09.090(2) does not undermine the objectivity of the

annual review process and is not inconsistent with substantive due process.

Cases cited by petitioners do not suggest otherwise. The Supreme Court has

expressly stated that at a probable cause hearing, the trial court "is entitled to

consider all of the evidence, including evidence submitted by the State."

McCuistion, 174 Wn.2d at 382.

       Contrary to the argument of petitioners, allowing the state to bring in

expert witnesses other than the department's evaluator is not an absurd result. A

party's discretion to retain and rely on expert witnesses of its choosing is a

regular component of civil and criminal proceedings.

       In short, construing "may rely exclusively" as if it meant "shall rely

exclusively" is not warranted by statutory language and is not necessary to avoid

a constitutional problem. The plain language of RCW 71.09.090(2)(b) allows the

state to rely on an annual evaluation at a show cause hearing but does not

prevent the state from presenting an expert witness of its own choosing.




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Nos. 75138-7-1 & 75364-9-1


      Affirmed.




WE CONCUR:



   441444 if.




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