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        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Detention of
Alberto S. Lane.                                    No. 70644-6-1

STATE OF WASHINGTON,                                DIVISION ONE


                      Respondent,
                                                    PUBLISHED OPINION
               v.

                                                    FILED: August 11, 2014
ALBERTO S. LANE,

                      Appellant.


        Becker, J. — The statute that governs mental health services for minors,

including involuntary commitment proceedings, states: "Rules of evidence shall

not apply in fourteen-day commitment hearings." RCW 71.34.740(9). Because

this provision conflicts irreconcilably with court rules, it is unconstitutional.

        Appellant Alberto Lane was admitted involuntarily to Seattle Children's

Hospital on June 29, 2013. Two physicians signed the petition to commit Lane

for a 14-day period of involuntary treatment. The petition was heard on July 2,

2013.


        At the beginning of the hearing, Lane asked the court to invalidate RCW

71.34.740(9) as a violation of the separation of powers doctrine and to apply the
No. 70644-6-1/2



rules of evidence. The court rejected the constitutional challenge, and the

hearing proceeded.

       The sole witness for the State was Paul Samuelson, an advanced

registered nurse practitioner specializing in psychiatric mental health at Seattle

Children's Hospital. Samuelson testified to his opinion that Lane met the criteria

for commitment. Samuelson said his opinion was based in part on an interview

he had conducted with Lane, and in part on medical chart notes, information from

other medical providers, and conversations with family.

       The State asked Samuelson questions aimed at establishing that to the

extent his testimony was based on hearsay, it was admissible under the

exceptions for business records or for medical diagnosis and treatment. Lane

objected that Samuelson was relying on medical charts that were not created at

Seattle Children's Hospital, and that his testimony did not make a clear

distinction as to what was said by Lane and what was said by others. The trial

court overruled these objections.

      The court granted the petition to commit Lane. Lane appeals. He

contends that RCW 71.34.740(9) violates the separation of powers doctrine by

suspending the application of the rules of evidence in direct conflict with ER 101

and ER 1101.


       Because Lane was released from detention at the end of the 14-day

commitment, this court cannot provide effective relief. Lane contends, and the

State accepts, that the issue deserves appellate review even though the case is

moot. We agree. The issue presented is public in nature, it is likely to recur, and
No. 70644-6-1/3



it is desirable to have an authoritative determination to provide future guidance to

public officers. See, e.g., Dunnerv. McLaughlin, 100 Wn.2d 832, 838, 676 P.2d

444 (1984) (the need to clarify the statutory scheme governing adult civil

commitment proceedings is a matter of continuing and substantial public

interest).

        Issues of constitutional and statutory interpretation are questions of law

that are reviewed de novo. State v. Gresham, 173 Wn.2d 405, 419, 269 P.3d

207 (2012). A statute is presumed constitutional and will not be declared

unconstitutional unless it clearly appears to be so. State ex rel. Morgan v.

Kinnear, 80 Wn.2d 400, 402, 494 P.2d 1362 (1972). A party challenging the

constitutionality of a statute bears the burden of proving it unconstitutional

beyond a reasonable doubt. State v. Bravman, 110 Wn.2d 183, 193, 751 P.2d

294(1988).

       The power to prescribe rules for procedure and practice is one of the

court's inherent powers. State v. Smith, 84 Wn.2d 498, 501, 527 P.2d 674

(1974). The legislature also has the power to create rules governing court

procedure. If there is a conflict between the court rules and a statute, the court

should first attempt to harmonize the rules. Gresham, 173 Wn.2d at 428-29.

When the rules cannot be harmonized, the court rule prevails in procedural

matters, and the statute prevails in substantive matters. Gresham, 173 Wn.2d at

429.


       In Gresham, the court considered a statute that made evidence of a

defendant's prior sex offenses admissible "notwithstanding Evidence Rule
No. 70644-6-1/4



404(b)." Gresham. 173 Wn.2d at 426. The court held that this statute violated

the separation of powers doctrine by producing an irreconcilable conflict with ER

404(b). Gresham, 173 Wn.2d at 432.

       Here the statutory provision in question is RCW 71.34.740(9), one short

subsection in a comprehensive statutory scheme. RCW 71.34, enacted in 1985,

addresses the mental health care and treatment of minors procedurally as well

as substantively. See RCW 71.34.010 (statement of legislative purpose). In

enacting the statute, the legislature repealed former RCW 72.23.070 (1983).

Laws of 1985, ch. 354, § 34. Former RCW 72.23.070 did not restrict application

of the rules of evidence.

       Chapter 71.34 RCW parallels chapter 71.05 RCW in many respects. It

follows the same time frame by requiring a hearing within 72 hours of involuntary

detention and permitting commitment for periods of 14 and 180 days. It uses the

same definitions for the circumstances under which involuntary commitment is

permitted. But in proceedings under chapter 71.05 RCW, a detainee has the

right "to be proceeded against by the rules of evidence." RCW 71.05.360(8)(c).

Under chapter 71.34 RCW, the rules of evidence "shall not apply in fourteen-day

commitment hearings." RCW 71.34.740(9).

      The Supreme Court adopted the current rules of evidence in 1978 and

implemented them in 1979. 91 Wn.2d 1117. Under ER 101, the rules of

evidence are applicable to all Washington court proceedings except to the extent

and with the exceptions provided in ER 1101. ER 1101(c) provides that the rules

of evidence need not be applied in certain circumstances, including:
No. 70644-6-1/5



               (3) Miscellaneous Proceedings. Proceedings for extradition
       or rendition; detainer proceedings under RCW 9.100; preliminary
       determinations in criminal cases; sentencing, or granting or
       revoking probation; issuance of warrants for arrest, criminal
       summonses, and search warrants; proceedings with respect to
       release on bail or otherwise; contempt proceedings in which the
       court may act summarily; habeas corpus proceedings; small claims
       court; supplemental proceedings under RCW 6.32; coroners'
       inquests; preliminary determinations in juvenile court; juvenile court
       hearings on declining jurisdiction; disposition, review, and
       permanency planning hearings in juvenile court; dispositional
       determinations related to treatment for alcoholism, intoxication, or
       drug addiction under RCW 70.96A; and dispositional
       determinations under the Civil Commitment Act, RCW 71.05.

Under ER 1101(c)(3), there are several categories of juvenile proceedings to

which the rules of evidence need not apply. Juvenile 14-day involuntary

commitment proceedings occurring under chapter 71.34 RCW are not among the

stated exceptions.

       Mindful of its duty to attempt to harmonize RCW 71.34.740(9) with ER 101

and ER 1101, the trial court noted that within a year of the effective date of

chapter 71.34 RCW, the Supreme Court amended the mental proceedings rules

(MPR) by rescinding MPR 2.5, a provision titled "Juvenile Court Proceedings."

107Wn.2d1101 (1986). Former MPR 2.5 supplemented former RCW

72.23.070. It required release from detention after a year unless another petition

was filed, it defined terms used in the former statute, and it established that a

facility seeking to prevent the release of a minor would have to file objections

equivalent to a petition for initial involuntary detention. Now the rule only states,

"Rescinded. See RCW 71.34." MPR 2.5.

       The trial court concluded that by stating "See RCW 71.34," the Supreme

Court was implicitly recognizing RCW 71.34.740(9) as an exception to the rules

                                              5
No. 70644-6-1/6



of evidence. The court perceived an analogy to the treatment of the business

records exception to the hearsay rule in ER 803(a)(6), a rule that states,

"Reserved. See RCW 5.45."


       The trial court's attempt to harmonize RCW 71.34.740(9) with ER 101 and

ER 1101 does not overcome the plain language of the evidence rules. Court

rules are to be interpreted in the same way as statutes. State v. George, 160

Wn.2d 727, 735, 158 P.3d 1169 (2007). In interpreting a statute, we are

constrained by the general rule that a court may not read into a statute those

things which it conceives the legislature may have left out unintentionally. State

v.S.M.H., 76 Wn. App. 550, 556, 887 P.2d 903 (1995); Restaurant Dev., Inc. v.

Cananwill, Inc.. 150 Wn.2d 674, 682, 80 P.3d 598 (2003); State ex rel. Hagan v.

Chinook Hotel, Inc., 65 Wn.2d 573, 578, 399 P.2d 8 (1965). The same is true in

interpreting a court rule.

       ER 101 conveys the plain message that the rules of evidence will apply in

all court proceedings in Washington unless an exception is stated in ER 1101.

No exception for juvenile 14-day commitment hearings is found in ER 1101. This

point is made even clearer by the drafters' comments on an amendment made to

ER 1101(c)(3) in 2010. According to the comments, the 2010 amendment

clarified that certain juvenile proceedings under chapter 13.32 RCW and chapter

13.34 RCW are exempt from the rules of evidence. The comments state that the

drafters "do not intend for juvenile hearings other than those listed above (under

whichever RCW sections govern them in future) to be exempt from the Rules of

Evidence." 5C Karl B. Tegland, Washington Practice: Evidence Law and
No. 70644-6-1/7



Practice, § 1101.1 author's cmt. n.5.80, at 40 (5d ed. Supp. 2013) (drafters'

comment, 2010 amendment).

       We cannot infer that the rescinding of former MPR 2.5 was intended to

ratify the statutory exemption of juvenile 14-day commitment hearings from the

rules of evidence in the absence of language expressly saying so. The

rescinding of former MPR 2.5 was more likely a recognition that procedures

designed to supplement former RCW 72.23.070 are no longer needed.

       The State argues that the reference to the statute in MPR 2.5—"See RCW

71.34"—is comparable to ER 803(a)(6), which states "See RCW 5.45." ER

803(a)(6) defers to a statute for the wording of the business records exception to

the hearsay rule. The State contends MPR 2.5 similarly defers to a statute's

decision not to apply the rules of evidence. We disagree. The two provisions are

not comparable. ER 803(a)(6) is itself an evidence rule. MPR 2.5 is not. If the

court had intended to defer to RCW 71.34.740(9), that decision would be

reflected in the rules of evidence.

       The State suggested at oral argument that it may have been an oversight

that the list of juvenile proceedings exempted from the rules of evidence by ER

1101 does not include juvenile 14-day commitment hearings. We cannot add

words to a rule that we think the Supreme Court should have used or may have

intended to use. We may not read an exemption into ER 1101(c)(3) based on

speculation that the court left it out unintentionally.
No. 70644-6-1/8



       RCW 71.34.740(9) prohibits the application of the rules of evidence in

juvenile 14-day commitment hearings. ER 101 and ER 1101 compel their

application. The conflict is irreconcilable.

       Following Gresham, we hold that the rules of evidence prevail. RCW

71.34.740(9) is unconstitutional. The rules of evidence must be applied in

juvenile 14-day commitment hearings. For proponents of the statute who wish to

eliminate the conflict, the proper procedure is to seek a change in the rules of

evidence.


       This disposition makes it unnecessary for us to consider Lane's alternative

argument that RCW 71.34.740(9) is a violation of due process. And because the

case is moot, we need not address the State's argument that Samuelson's

testimony would have been admissible under the rules of evidence.

      The trial court erred and is reversed.




WE CONCUR:
