       FILE
       IN CUi!l'lKS OFFICE
IUPREME cou;~r. STATE OF WM!IIm'OII
            MAY 0 8 2014
•J11aWJl.,
     DATE
                                                             This opinion-was filed for re-cord
                                                             at '6 :q o a •V! on Me~.'-{ $ , '2-0 1'-\


                                                             ~~~~  ~uprerne   Court Clark


            IN THE SUPREME COURT OF THE STATE OF WASHINGTON

    In the Matter of the Detention of          )   No. 86234-6
                                               )
    CLINTON MORGAN,                            )   EnBanc
                                               )
                                 Petitioner.   )   Filed    MAY 0 8 2014

              GONZALEZ, J.-In 2008, Clinton Morgan was awaiting his civil

     commitment trial to determine if he was likely to engage in predatory acts of

     sexual violence if not confined to a secure facility. Defense counsel became

     concerned that Morgan, who had been diagnosed with schizophrenia, was

     exhibiting psychotic symptoms. Morgan's counsel requested a competency

     determination and sought an order for involuntary medication to control

     Morgan's delusions during trial. The trial judge determined that Morgan was

     incompetent, appointed a guardian ad litem to represent his interests, and

     ordered involuntary medication. His trial followed, and the jury unanimously

     found him to be a sexually violent predator. He is now confined in the Special

     Commitment Center.
In re Detention of Morgan, No. 86234-6


       Morgan asks us to reverse his commitment order, arguing that he has a

due process right to be competent during a sexually violent predator trial and

arguing that a pretrial in-chambers conference violated his right to a public

trial. We affirm his commitment.

                       FACTS AND PROCEDURAL HISTORY

       Morgan carries a diagnosis of chronic undifferentiated schizophrenia.

He has trouble distinguishing fantasy from reality and has invented an alter

ego, a magical persona named lVIoregaine.

       The evidence suggests that Morgan was physically abused as a young

child and began committing sexual offenses in his early adolescence. At the

age of 13, he pleaded guilty in a juvenile adjudication to indecent liberties with

a 15-year-old girl. He was sentenced to 65 weeks in a Juvenile Rehabilitation

Administration (JRA) program, where he participated in sexual deviancy

treatment. At the juvenile facility he was found to have limited cognitive skills,

he exhibited problems distinguishing between fantasy and reality, and he

disclosed stimulating and "pervasive, severely sadistic homicidal fantasies." 2

Verbatim Report of Proceedings (VRP) (Aug. 7, 2008) at 175. In the opinion

of his juvenile rehabilitation counselor, when Morgan left he did not have a

"very good grasp on or understanding of his sexual behavior and what would

motivate him in that regard." 1 VRP (Aug. 4-6, 2008) at 41.



                                         2
In re Detention of Morgan, No. 86234-6


       After Morgan was released from the JRA in 1994, he continued to

receive community-based sex offender treatment until 1997. During this time

he was dismissed from the high school basketball team and briefly suspended

from school for uninvited physical contact with peer-aged females. Two weeks

after completing treatment, Morgan molested a five-year-old girl and a six-

year-old girl at a hotel swimming pool. On the day of the assault, he told police

officers he wanted "to see if he could handle being close to kids," but once he

touched the girls, things "got out of hand" and he "had no control over the

situation, period." 2 VRP (Aug. 7, 2008) at 186, 255. He later "said that his

victim, quote, wanted me to rape her, end quote." 1 VRP (Aug. 4-6, 2008) at

60. Morgan pleaded guilty to one count of first degree child molestation and

received an 89-month sentence.

       During his incarceration he exhibited psychotic symptoms and was

transferred to the Special Offender Unit at Monroe Correctional Complex in

1999, where he was diagnosed with several conditions, including

schizophrenia. He often did not take his medication, which led to involuntary

medication throughout 2000 and 2001. While at Monroe, Morgan participated

in a sex offender treatment program (SOTP), but his ability to progress

appeared to be limited by his psychiatric disorders and developmental

limitations. Morgan's fantasies of using force or coercion increased as he



                                         3
In re Detention of Morgan, No. 86234-6


progressed through treatment. He completed the program and upon completion

was evaluated at a very high risk to reoffend.

       On August 31, 2004, the day before he was scheduled to be released, the

Department petitioned to have Morgan committed as a sexually violent

predator (SVP). At status conferences in late 2005· and early 2006, Morgan's

counsel disclosed that Morgan was experiencing psychotic symptoms, and a

competency hearing was held in February 2006. The trial judge found Morgan

incompetent and Morgan's attorney, the State, and the trial judge agreed that

the SVP trial should proceed. But to "make sure [Morgan's] interests [were]

protected," the trial judge appointed a guardian ad litem (GAL) "with

experience in this area." VRP (Pretrial Hr'gs) (July 25, 2005; Feb. 23, Apr. 21,

Aug. 30, 2006) at 7-8, 19.

       In June 2006, Morgan's counsel moved for an order to involuntarily

medicate Morgan to control his delusions during trial. The trial judge initially

granted the motion orally but later accepted the State's request to consider

additional evidence and weigh different interests before making a final ruling.

During an in-chambers conference at the end of August 2006, counsel, the

GAL, and the trial judge discussed the procedure they would use for hearing

further evidence on that motion. The trial judge, a court reporter, and the GAL

were physically present in chambers, and counsel participated by phone.

Morgan was not present. Defense counsel and the GAL expressed concern that

                                         4
In re Detention of-Morgan, No. 86234-6


failing to medicate Morgan might deprive him of a fair trial because the jury

might think, "Well, he's so crazy, he should be locked up." VRP (Pretrial

Hr'gs) (July 25, 2005; Feb. 23, Apr. 21, Aug. 30, 2006) at 30. The GAL noted

that "Morgan himself is violently [and] vehemently against any kind of

involuntary medication." !d. at 31. The trial judge asked the GAL to meet with

Morgan's psychiatrist and requested a written report from the psychiatrist with

the medical background necessary to decide the involuntary medication issue.

       Written reports were subsequently filed in the record. Dr. Sziebert filed

a report that detailed Morgan's medication history and discussed the efficacy of

involuntary medication in his case. She indicated Morgan did not meet the

Special Commitment Center's requirements for being involuntarily medicated

because he did not have a grave disability or present a danger to himself or

others. She opined that involuntary medication "may benefit Mr. Morgan at his

civil commitment trial from the standpoint of helping him curb his impulses

and inappropriate behavior." Clerk's Papers at 72. The GAL also submitted a

written report noting Morgan's history of positive results from involuntary

administration of antipsychotic medications, acknowledging Morgan's

opposition to medication, and concluding that it was in Morgan's best interests

to be involuntarily medicated. The trial judge ordered involuntary medication.

       A jury trial was held in 2008. The State's expert, Dr. Judd, testified that

Morgan had two mental abnormalities-paraphilia and pedophilia-and a

                                         5
In re Detention of Morgan, No. 86234-6


personality disorder-antisocial personality disorder-that caused him serious

difficulties in controlling his sexual behavior. Dr. Judd also gave Morgan a

provisional diagnosis of sexual sadism. He testified to the varying and

inconsistent accounts that Morgan gave throughout the 1990s and up until the

time of the SVP trial of the indecent liberties incident, all of which depart from

the official report, oftentimes indicating that the contact was consensual but at

other times emphasizing the use of force. An SOTP treatment provider opined

that Morgan had not internalized his relapse prevention plan and that she did

not expect the skills and interventions he learned in the program to be retained

if he did not continue to work on them. Morgan's expert, Dr. Wollert,

disagreed with several of Dr. Judd's diagnoses and testified that Morgan's brain

had likely matured since his offenses, lowering his recidivism risk. A

unanimous jury found Morgan to be a sexually violent predator.

       Morgan appealed on various grounds, and the Court of Appeals
                                   .                                   .
affirmed. See In re Det. of Morgan, 161 Wn. App. 66, 86,253 P.3d 394

(2011). We granted Morgan's petition for review, limited to "(1) whether

involuntary commitment ... when he was allegedly incompetent violate[ d] his

due process rights[] and (2) whether the in-chambers conference regarding

involuntary medications violated [his] right to a public trial." Order, No.

86234-6 (Wash. Nov. 1, 2011).



                                         6
In re Detention of Morgan, No. 86234-6


                              STANDARD OF REVIEW

       Constitutional questions are questions of law and are subject to de novo

review. State v. McCuistion, 174 Wn.2d 369, 387, 275 P.3d 1092 (2012)

(citing Amunrud v. Board ofAppeals, 158 Wn.2d 208, 215, 143 P.3d 571

(2006)).

                                     ANALYSIS

       In 1990, the legislature created an involuntary civil commitment system

for individuals deemed sexually violent predators, commonly known as SVPs.

See generally ch. 71.09 RCW. A "sexually violent predator" is a person "who

has been convicted of or charged with a crime of sexual violence and who

suffers from a mental abnormality or personality disorder which makes the

person likely to engage in predatory acts of sexual violence if not confined in a

secure facility." Former RCW 71.09.020(16) (2006). When we upheld the SVP

civil commitment scheme against a substantive due process challenge, we

noted the legislature's "honest recognition of the difficulties inherent in treating

those afflicted with the mental abnormalities causing the sex predator

condition." In rePers. RestraintofYoung, 122 Wn.2d 1, 31,857 P.2d 989

(1993); see also RCW 71.09.010. The legislature found that "the exceptional

risks posed by sexual predators, and the seemingly intractable nature of their

illness, necessitates a specially tailored civil commitment approach." In re

Young, 122 Wn.2d at 10. SVP proceedings focus not on "the criminal

                                         7
In re Detention of Morgan, No. 86234-6


culpability of ... past actions," but on "treating [SVPs] for a current mental

abnormality, and protecting society from the sexually violent acts associated

with that abnormality." In re Young, 122 Wn.2d at 21; see McCuistion, 174

Wn.2d at 390.

       When an offender's sentence for a sexually violent offense has expired

or is about to expire, these statutes authorize the State to file a petition alleging

the offender to be an SVP. RCW 71.09.025, .030. If the court or jury

determines beyond a reasonable doubt that the individual is an SVP, he or she

is committed for an indefinite period oftime, until either "(a) [t]he person's

condition has so changed that the person no longer meets the definition of a

sexually violent predator; or (b) conditional release to a less restrictive

alternative ... is in the best interest of the person and conditions can be

imposed that would adequately protect the community." RCW 71.09.060(1).

SVPs are housed in a secure facility, and the Department of Social and Health

Services (DSHS) is charged with the responsibility of providing care and

treatment. RCW 71.09 .060(1 ). The State must justify continued commitment

through an annual review. RCW 71.09.070(1).

Due Process

       It is well settled that civil commitment is a significant deprivation of

liberty, and thus individuals facing SVP commitment are entitled to due process

oflaw. In re Det. of Stout, 159 Wn.2d 357, 369, 150 P.3d 86 (2007) (citing

                                           8
In re Detention of Morgan, No. 86234-6


Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 60 L. Ed. 2d (1979); In

re Det. oji-falgren, 156 Wn.2d 795, 807-08, 132 P.3d 714 (2006)). Procedural

due process requires notice and an opportunity to be heard '"at a meaningful

time and in a meaningful manner.'" Amunrud, 158 Wn.2d at 216 (internal

quotation marks omitted) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96

S. Ct. 893, 47 L. Ed. 2d 18 (1976)). The process due depends on what is fair in

a particular context. E.g., In re Stout, 159 Wn.2d at 370 (citing Mathews, 424

U.S. at 334).

       To determine whether a particular procedural protection is required in a

given context, we consider (1) the liberty interest at stake; (2) the risk of

erroneous deprivation of that liberty interest with the existing procedures and

the probable value, if any, of additional safeguards; and (3) the government

interest, including costs and administrative burdens of additional procedures.

I d.

       The first Mathews factor weighs in Morgan's favor. Morgan has a

significant interest in his physical liberty.

       The second Mathews factor weighs heavily in favor of the State. Robust

statutory guaranties in chapter 71.09 RCW provide substantial protection

against an erroneous deprivation of liberty. In re Stout, 159 Wn.2d at 370-71;

McCuistion, 174 Wn.2d at 378-79. Before commitment proceedings may even

be initiated, the State must show probable cause. In re Young, 122 Wn.2d at 48

                                           9
In re Detention ofA1organ, No. 86234-6


(citing RC\V 71.09.040(1)). At the probable cause hearing, the respondent

facing potential SVP proceedings has the right to counsel at public expense, to

present evidence on his or her own behalf; to cross-examine adverse witnesses,

and to view and copy all petitions and reports in the court file. RCW

71.09 .040(3). For the SVP determination, the respondent has the right to a jury

of 12 peers. RCW 71.09.050(3). At trial, the State carries the burden of ·

proof beyond a reasonable doubt, and in a jury trial, the verdict must be

unanimous. RCW 71.09.060(1). Throughout, the respondent has the right to

counsel, including appointed counsel, to meaningfully access this panoply of
            .                                                       '

rights and procedural protections. RCW 71 .09.050(1). Here, the trial court's

appointment of a GAL for Morgan provided an additional safeguard.

       Moreover, once an individual has been committed, "the .State [is required

to] justify continued incarceration tlrrough an annual review." McCuistion, 174

Wn.2d at 388 (citing RCW 71.09.070). IfDSHS finds that the individual's

condition has changed such that he or she no longer meets the definition of an

SVP or conditional release to a less restrictive alternative would be appropriate,

the individual is entitled to an evidentiary hearing, at which he or she again
                   .                                            .
enjoys a panoply of procedural protections. RCW 71.09.090(1), (3). Even if

DSHS finds that the individual continues to meet the criteria for confinement,

the individual is entitled to a show cause hearing, at which he or she has the



                                         10
In re Detention of Morgan, No. 86234-6


right to counsel and to present responsive affidavits or declarations.

McCuistion, 174 Wn.2d at 393 (citing RCW 71.09.090(2)).

       In sum, Morgan had an opportunity to meaningfully contest facts in a

criminal trial; he had a full SVP trial with many protections guaranteed to

criminal defendants; and he was represented by counsel throughout the

proceedings. Although his participation was potentially diminished due to

incompetency, a GAL was charged with representing his best interests, and we

find the existing protections nevertheless robust.

       The third Mathews factor also weighs in favor of the State. "[I]t is

irrefutable that the State has a compelling interest both in treating sex predators

and protecting society from their actions." In re Young, 122 Wn.2d at 26

(citing Addington v. Texas, 441 U.S. 418,426,99 S. Ct. 1804,60 L. Ed. 2d 323

(1979)); In re Det. of Thorell, 149 Wn.2d 724, 750, 72 P.3d 708 (2003). In

cases involving incompetent respondents, Morgan argues that using civil

commitment proceedings under chapter 71.05 RCW instead of SVP

proceedings under chapter 71.09 RCW will reduce the risk of an erroneous

deprivation of liberty and satisfy these State interests. We disagree.

       The legislature has clearly found that the chapter 71.05 RCW scheme is

not suitable for the special challenges of SVPs. See RCW 71.09.010; In re

Thorell, 149 Wn.2d at 749 (noting that "SVPs have treatment issues distinct

from those amenable to treatment under chapter 71.05"). Indeed, the

                                         11
In re Detention ofMorgan, No. 86234-6


legislature found that "the treatment modalities for [the SVP] population are

very different than the traditional treatment modalities for people appropriate

for commitment under the involuntary treatment act." RCW 71.09.010. Under

chapter 71.05 RCW, commitment orders are limited to 180 days, and the State

must file a new petition and bear the burden of proof in order to extend the

order. RCW 71.05.320. But the legislature has found that persons committed

as SVPs "generally require prolonged treatment in a secure facility followed by

intensive community supervision in the cases where positive treatment gains

are sufficient for community safety." LAWS OF 2005, ch. 344, § 1. A finding

that competency must be restored prior to SVP civil commitment could result

in the inde±lnite and perhaps permanent housing of alleged SVPs under chapter

71.05 RCW in places that are "insufficiently secure," RCW 71.09.060(3), or

the release of incompetent suspected SVPs who do not satisfy the requirements

of chapter 71.05 RCW. Prohibiting the State from pursuing commitment of an

incompetent suspected SVP under chapter 71.09 RCW would significantly

undermine the safety of the public and of those persons committed to state

mental hospitals.

       We find no additional protections that would minimize the risk of error

without significantly undermining compelling State interests. Balancing the

Mathews factors, we are satisfied that adequate procedural due process was

provided Morgan. Courts in other states with similar statutes have uniformly

                                        12
In re Detention of Morgan, No. 86234-6


held as much. See Moore v. Superior Court, 50 Cal. 4th 802, 237 P.3d 530, 114

Cal. Rptr. 3d 199 (2010); Commonwealth v. Nieves, 446 Mass. 583, 846 N.E.2d

379, 385-86 (2006); see also State ex rel. Nixon v. Kinder, 235 Mo. App. 168,

129 S.W.3d 5, 10 (2003)(finding that an SVP "determination, regardless of

competency, is not an unconstitutional deprivation of liberty"); In re Det. of

Cubbage, 671 N.W.2d 442 (Iowa 2003) (finding that a lack of pretrial

evaluation of competency causes no deprivation of due process rights); In re

Commitment of Weekly, 647, 2011 IL App (1st) 102276, 956 N.E.2d 634, 353

Ill. Dec. 772 (establishing that fitness evaluation does not impact ability to

receive a fair commitment trial).

       Morgan also contends that subjecting an incompetent detainee to an SVP

trial violates substantive due process. Substantive due process prohibits certain

governmental action even when the procedures are constitutionally adequate.

Amunrud, 15 8 Wn.2d at 218-19. Substantive due process forbids the

government from interfering with a fundamental right unless the infringement

is narrowly tailored to serve a compelling state interest. !d. The United States

Supreme Court has recognized certain fundamental rights protected by the due

process clause but not explicitly enumerated in the Bill of Rights. See id. at

220. Although a fundamental right to competency may be recognized in the

criminal context, prior cases have established that the same concerns and

concomitant protections that arise in a criminal case do not necessarily arise in

                                         13
In re Detention of Morgan, No. 86234-6


the civil commitment arena. See Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct.

2072, 138 L. Ed. 2d 501 (1997). And the United States Supreme Court has

"'always been reluctant to expand the concept of substantive due process."'

Sacramento v. Lewis, 523 U.S. 833, 842, 118 S. Ct. 1708, 140 L. Ed. 2d 1043

(1998) (quoting Collins v. City ofHarker Heights, 503 U.S. 115, 125, 112 S.

Ct. 1061, 117 L. Ed. 2d 261 (1992)). We follow other courts in declining to

recognize a fundamental right to competency in the civil commitment context.

See Nixon, 129 S.W.3d 5; In re Cubbage, 671 N.W.2d 442.

       When government action does not affect a fundamental right, the proper

standard of review is rational basis. Amunrud, 158 Wn.2d at 220. Under

rational basis review, the challenged law must be rationally related to a

legitimate state interest. Seeley v. State, 132 Wn.2d 776, 940 P.2d 604 (1997).

For the reasons discussed, existing processes for committing an incompetent

individual as an SVP are rationally related to the State's legitimate interest in

treating sex predators and protecting society from their actions.

Public Trial Right

       Finally, Morgan contends that a pretrial in-chambers discussion violated

his right to a public trial. Suppl. Br. ofPet'r at 18-21. Article I, section 10 of

the Washington Constitution provides that "[j]ustice in all cases shall be

administered openly," protecting Morgan's "individual right to have the

proceedings open to the observation and scrutiny of the general public." In re

                                         14
In re Detention of Morgan, No. 86234-6


Det. ofD.F.F., 172 Wn.2d 37, 40, 256 P.3d 357 (2011). There is a strong

presumption that courts are to be open at all stages of a trial, "[b Jut not every

interaction between the court, counsel, and defendants will implicate the right

to a public trial[ ] or constitute a closure if closed to the public." State v.

Sublett, 176 Wn.2d 58, 71,292 P.3d 715 (2012).

       The open administration of justice serves "to ensure a fair trial, to

remind the prosecutor and judge of their responsibility to the accused and the

importance of their functions, to encourage witnesses to come forward, and to

discourage perjury." !d. at 72 (citations omitted). It also affirms the legitimacy

of the proceedings and promotes confidence in the judiciary. State v. Momah,

167 Wn.2d 140, 148,217 P.3d. 321 (2009). To determine whether a specific

proceeding implicates these core values, we apply the experience and logic test.

Sublett, 176 Wn.2d at 73. 1 If both prongs of the test are met, the constitution

mandates the specific proceeding be open. !d. Under the experience prong, we

consider '"whether the place and process have historically been open to the


       1
          Sublett concerned a criminal defendant's rights under article I, section 22, but
we also use the experience and logic test to analyze whether an event triggers the
protections of article I, section 10. As we observed in Sublett, we have "historically
analyzed allegations of a court closure under either article I, section 10 or article I,
section 22 analogously, although each is subject to different relief depending upon who
asserts the violation." Sublett, 176 Wn.2d at 71 n.6. Moreover, we adopted the
experience and logic test from Press-Enterprise Co. v. Superior Court, 478 U.S. 1
(1986), a case under the First Amendment to the United States Constitution, and noted
that the public's right to open proceedings under article I, section 10 of our state
constitution mirrors the First Amendment. !d.

                                             15
In re Detention of Morgan, No. 86234-6


press and general public,"' and under the logic prong we ask "'whether public

access plays a signifi.cant positive role in the functioning of the particular

process in question."' ld. (quoting Press-Enter. Co. v. Superior Court, 478

U.S. 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986)).

       In substance, the proceeding at issue was akin to a status conference,

which in common experience may take place in chambers rather than in open

court. The in-chambers conference concerned the procedure for hearing

additional evidence regarding the need for involuntary medication. Counsel,

the GAL, and the trial judge discussed the legal standard for involuntary

medication and agreed that the GAL would request a report from the DSHS

psychiatrist about whether medication would help control Morgan's delusions

during trial. Unlike a trial or some motion hearings, no evidence or testimony

was presented, no substantive decisions were made, and no orders were

entered. See id. at 77. Subsequently, reports from the DSHS psychiatrist and

the GAL were filed in the record and the trial judge entered an order for

involuntary medication.

       Turning to the logic prong, public access to the in-chambers conference

would have made little difference to the functioning of the conference or the

involuntary medication proceedings overall. The evidence that was eventually

admitted and the decision that followed were filed in the open record. Thus,

there was meaningful public access to the court proceedings that concerned

                                          16
In re Detention of Morgan, No. 86234-6


involuntary medication. Under the experience and logic test, Morgan's rights

"as a member of the public to attend the proceedings" and as "the target of a

civil action ... to have the proceedings open to the observation and scrutiny of

the general public" were not violated. In re Det. of D.F.F., 172 Wn.2d at 40. 2

                                      CONCLUSION

       We find the challenged in-chambers conference did not implicate public

trial rights under article I, section 10, and due process did not require Morgan

to be competent for his SVP trial. We affirm Morgan's civil commitment.




         2 Morgan's supplemental brief also argues that Morgan had a due process right to
be present. Suppl. Br. of Pet'r at 22. But we decline to address that issue because only
the article I, section 10 public trial right issue is properly before us. Order, No. 86234-6
(Wash. Apr. 30, 2013).

                                             17
In re Detention of Morgan, No. 86234-6




WE CONCUR:



                                              q mq~P1,
                                              H!~,!f·




                                         18
In re Detention ofMorgan (Clinton)




                                    No. 86234-6




      STEPHENS, J. (dissenting)-An individual facing detention as a sexually

violent predator (SVP) should have a procedural due process right to be competent

at trial. This is essential to the integrity of the SVP statutory scheme and      o~r

constitutional obligations. As the majority recognizes, "It is well settled that civil

commitment is a significant deprivation of liberty." Majority at 8 (citing In re Det.

of Stout, 159 Wn.2d 357, 369, 150 P.3d 86 (2007). For this reason, the quasi-

criminal statutory scheme under which persons are civilly committed as SVPs for

treatment in the Special Commitment Center (SCC) must comport with due process.

Stout, 159 Wn.2d at 369 (explaining that "individuals facing commitment, especially

those facing SVP commitment, are entitled to due process of law before they can be

committed."). At a minimum this means an alleged SVP has a right to counsel and

to a trial by jury at which the Department of Social and Health Services (Department)

carries the burden of proof beyond a reasonable doubt that the individual in question

is an SVP. See id. at 371-72. It should also mean that an incompetent person cannot

be forced through a trial.


                                          -1-
In re Detention ofMorgan (Clinton), 86234-6 (Stephens, J. Dissent)




      This case primarily concerns procedural due process. 1 At its core, procedural

due process requires notice and a meaningful opportunity to be heard. In re Pers.

Restraint ofBush, 164 Wn.2d 697, 704, 193 P .3d 103 (2008). It is a flexible concept

and '"calls for such procedural protections as the particular situation demands."'

Mathews v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)

(quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 33 L. Ed. 2d 484

(1972)). As the majority observes, majority at 9, we employ the balancing test set

forth in Mathews to determine whether a particular procedural protection is

warranted in a given context. Stout, 159 Wn.2d at 370. That test requires us to

consider (1) the liberty interest at stake; (2) the risk of erroneous deprivation of that

liberty interest with the existing procedures and probable value, if any, of additional

safe guards; and (3) the government interest, including costs and administrative

burdens of additional procedures. !d. at 370.

       There is no debate that the first factor weighs heavily in Morgan's favor. A

"civil commitment deprives [Morgan] of significant liberty interests." In re Det. of

Morgan, 161 Wn. App. 66, 79, 253 P .3d 3 94 (20 11 ). This is especially true because

the likelihood of release from the SCC is limited.          See RCW 71.09.090(4)(b)

(explaining that unless an annual review reveals a detainee no longer meets the

criteria for confinement, a detainee will receive a full hearing on the continued



       1
       As the majority notes, Morgan also makes a substantive due process argument.
My resolution of this case would rest on recognizing a procedural due process right to be
competent during an SVP trial, and I would not reach the substantive due process issue.

                                           -2-
In re Detention ofMorgan (Clinton), 86234-6 (Stephens, J. Dissent)




validity of confinement only if he or she has a severe, permanent physiological

change such as a stroke or if he or she successfully completes treatment).

      Resolution of the second factor is considerably more complicated. The Court

of Appeals reasoned that there were no additional safeguards that would have

minimized or prevented an erroneous deprivation ofMorgan's rights. Morgan, 161

Wn. App. at 80. The Court of Appeals suggested that Morgan received all the

process he was due because he attended his SVP commitment trial and "had counsel

vehemently defending his rights." Id. The majority endorses this view, arguing that

chapter 71.09 RCW already "provide[s] substantial protection against an erroneous

deprivation of liberty" and that Morgan's court-appointed guardian ad litem

adequately represented his interests. Majority at 9, 11.

       But the panoply of trial rights the majority identifies mean little if an

individual is required to stand trial while incompetent. "Competency" means an

individual understands the nature of the proceedings against him and is able to assist

in his own defense. State v. Hahn, 106 Wn.2d 885, 895, 726 P.2d 25 (1986).

Competency is therefore a necessary predicate to the effective exercise of one's right

to counsel.    The United States Supreme Court has recognized the relationship

between competency and the rights of the accused in a criminal context.

              It has long been accepted that a person whose mental condition is such
       that he lacks the capacity to understand the nature and object of the
       proceedings against him, to consult with counsel, and to assist in preparing
       his defense may not be subjected to a trial. ... Some have viewed the
       common-law prohibition "as a by-product of the ban against trials in
       absentia; the mentally incompetent defendant, though physically present in
       the courtroom, is in reality afforded no opportunity to defend himself."

                                            -3-
In re Detention of Morgan (Clinton), 86234-6 (Stephens, J. Dissent)




Drape v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975)

(quoting Caleb Foote, A Comment on Pre-Trial Commitment of Criminal

Defendants, 108 U. PA. L. REv. 832, 834 (1960)). The prohibition on subjecting an

incompetent person to criminal proceedings, explained the Drape court, "is

fundamental to an adversary system of justice." Id. at 172.

       To be sure, we have confirmed many times that an SVP trial is a civil, not

criminal, proceeding. See, e.g., In re Pers. Restraint of Young, 122 Wn.2d 1, 23,

857 P.2d 989 (1993). But we have frequently relied on the quasi-criminal procedural

protections afforded to an accused SVP to sustain the statutory scheme's overall

constitutionality. See State v. McCuistion, 174 Wn.2d 369, 393, 275 P.3d 1092

(20 12) (explaining that amendments to the SVP statutory scheme posed a low risk

of erroneous deprivation of liberty "[g]iven the extensive procedural safeguards in

chapter 71.09 RCW'); Stout, 159 Wn.2d at 370-71 (rejecting procedural due process

claim to a confrontation right in light of the "comprehensive set of rights for the SVP

detainee"); see also J(ansas v. Hendricks, 521 U.S. 346, 364, 117 S. Ct. 2072, 138

L. Ed. 2d 501 (1997) (noting that Kansas SVP statutory scheme afforded "numerous

procedural and evidentiary protections," which "demonstrate[d] that the Kansas

Legislature has taken great care to confine only a narrow class of particularly

dangerous individuals, and then only after meeting the strictest procedural

standards"). Surely, the right to counsel is diluted by incompetency in an SVP

proceeding to the same degree it is in a criminal proceeding. When the right to




                                           -4-
In re Detention ofMorgan (Clinton), 86234-6 (Stephens, J. Dissent)




counsel-essential the very right to mount a defense-is diluted, the procedure for

detaining individuals as SVPs loses its constitutional footing.

       The majority engages in little analysis about the value of additional

safeguards, the other piece of the second Mathews factor.            Requiring that an
individual be competent before being tried under chapter 71.09 RCW brings

significant value to the process. It ensures that individuals are not subjected to

involuntary detention based on the results of what is essentially a trial in abstentia.

It ensures that juries are presented with an individual who can understand the nature

of the proceedings against him. Perhaps most important, and as will be discussed

further below, it ensures that persons detained under chapter 71.09 RCW are

amenable to the specific treatment modalities that serve the goals of the SVP scheme,

rather than having their treatment undermined by coexisting psychiatric disorders

better treated elsewhere.
       In light of these concerns, I would conclude that the risk of erroneous

deprivation of liberty is high when an incompetent person is made to stand trial.

Consequently, the value of requiring a competent person in the proceedings is

significant.
       The majority believes the third Mathews factor, the government's interest,
weighs in favor of the Department. Certainly the Department has a compelling

interest in "treating sex predators and protecting society from their actions." Young,

 122 Wn.2d at 26. But as noted above, it is difficult to see how this interest is actually

served when an incompetent person suffering severe psychiatric disturbances is


                                            -5-
In re Detention ofMorgan (Clinton), 86234-6 (Stephens, J. Dissent)




committed to the SCC. The Department has offered no assurance that the treatment

modalities at the   sec can effectively address the kind of mental illness generally
treated via civil commitment under chapter 71.05 RCW. The scholarly research

available suggests that an incompetent person will not be able to participate in SVP

treatment. "[A]ttempting to curb the compulsively lurid behaviors of an SVP that

precipitate within the matrix of a florid psychosis or severe cognitive impairments

would likely prove futile .... [C]urrently available treatments for SVPs finds its

provenance in rational, goal-directed, even insightful, cognition." Alan A. Abrams

et al., The Case for a Thresholdfor Competency in Sexually Violent Predator Civil

Commitment Proceedings, 28 AM. J. FORENSIC PSYCHIATRY no.3, 2007, at 7, 22-23.

       The Department has offered nothing to refute such a conclusion. Indeed,

during Morgan's trial, a sex offender treatment provider testified that it is important

for an individual receiving sex offender treatment to "know what reality [is]. I mean

we're really dealing with reality in treatment. You've done something that got you

in trouble, how are you not going to do that again? Yeah, I needed [Morgan] to think

clearly." 1 Verbatim Report ofProceedings (Aug. 4-6, 2008) at 72. Given that the

Department's interest in effective treatment of SVPs is seemingly undermined when

it seeks to have an incompetent person adjudicated an SVP, the third factor should

tip in Morgan's favor. 2

       2
         This court's reasoning in Stout would not foreclose recognizing a due process right
to competency here. In Stout, this court considered an asserted due process right to
confrontation and concluded that the right to confrontation was not necessary in light of
the process already afforded to an accused SVP. Stout, 159 Wn.2d at 371, 374. But as
noted, those very rights-especially the critical right to counsel-have little meaning if the

                                            -6-
In re Detention ofMorgan (Clinton), 86234-6 (Stephens, J. Dissent)




      The majority echoes the Court of Appeals' concern that requiring competency

to be restored prior to an SVP civil commitment proceeding could result in the

indefinite housing of alleged SVPs in state mental hospitals. Majority at 12; see also

Morgan, 161 Wn. App. at 81-82 (quoting Moore v. Superior Court, 50 Cal. 4th 802,

825-26, 237 P.3d 530 (2010)). But if the Department's interest is in treating SVPs

and treatment requires competency, then it is difficult to see why detention in the

SCC is desirable in this instance. Moreover, the Department can bring a petition

under chapter 71.05 RCW to civilly commit an alleged SVP and seek to have the

person restored to competency. The majority worries this will mean accused SVPs

will be housed "in places that are 'insufficiently secure."' Majority at 12 (quoting

RCW 71.09.060(3)). But the Department acknowledges it already houses such

persons in our state mental hospitals. See In re Det. ofMcGary, 128 Wn. App. 467,

470-71, 116 P.3d 415 (2005) (concerning a case in which the Department dismissed

an SVP petition without prejudice so that the individual could be involuntarily

committed under chapter 71.05 RCW and treated for schizophrenia).

       Contrary to the Department's argument, it is not dispositive that RCW

71.09.060(3) prohibits the Department from placing an accused SVP in a state




accused SVP is incompetent. It is also worth pointing out that Stout did not make a
Mathews argument, which the court noted "tip[ped] the third factor of the Mathews test in
favor of the State," as the court had no counter-argument to the State's contention that
providing a confrontation right would be prohibitively expensive. Jd. at 372 n.ll. Here,
each party has presented a well-briefed and researched argument based on the Mathews
test.

                                           -7-
In re Detention ofMorgan (Clinton), 86234-6 (Stephens, J. Dissent)




facility other than the SCC during SVP proceedings. Resp 't' s Suppl. Br. at 11. That

statute reads:

      Except as otherwise provided in this chapter, the state shall comply with
      RCW 10.77.220 while confining the person. During all court proceedings
      where the person is present, the person shall be detained in a secure facility.
      If the proceedings last more than one day, the person may be held in the
      county jail for the duration of the proceedings, except the person may be
      returned to the department's custody on weekends and court holidays if the
      court deems such a transfer feasible. The county shall be entitled to
      reimbursement for the cost of housing and transporting the person pursuant
      to rules adopted by the secretary. The department shall not place the person,
      even temporarily, in a facility on the grounds of any state mental facility or
      regional habilitation center because these institutions are insufficiently
      secure for this population.

RCW 71.09.060(3). This statute should not be read to disallow placement of a

suspected SVP in a state mental hospital when the purpose is to have his or her

competency restored and the SVP proceedings have been suspended or dismissed

until competency is restored. Indeed, that appears to be exactly what the Department

did inMcGary. 3 The only restriction in RCW 71.09.060(3) is that an individual who

is cuD'ently standing trial as or has been adjudicated an SVP cannot be housed in a

state mental hospital.

       Likewise, the majority's suggestion that the legislature has found

commitments under chapter 71.05 RCW unsuitable for the special challenges of

SVPs is misplaced. Majority at 11 (citing RCW 71.09.010). Morgan would not be

adjudicated as an SVP were he awaiting competency restoration. Nothing suggests

       3
      McGary also tends to disprove the suggestion that accused SVPs who are
incompetent will never be committed as SVPs. There, the accused SVP had his
competency restored at Western State Hospital and was later committed to the SCC.

                                            -8-
In re Detention ofMorgan (Clinton), 86234-6 (Stephens, J. Dissent)




that the Department does not already commit persons to state mental hospitals who

have perpetrated serious sexual offenses. Moreover, even ifRCW 71.09.010 does

mean that suspected SVPs cannot be committed to state mental hospitals to restore

competency, this statute does not control Morgan's due process right to have his

competency restored before he stands trial as a suspected SVP. The Department has

not shown that the government's interest outweighs Morgan's due process interest

in not being tried while incompetent. Indeed, if the concern is finding a suitable

placement option for accused SVPs who are incompetent to stand trial, the State's

options are not limited by any lack of statutory authority.

       I am aware that other states have declined to recognize a right to competency

during SVP proceedings. See, e.g., In reCommitment of Weekly, 201 IL App. (1st)

102276, 956 N.E.2d 634, 353 Ill. Dec. 772 (2011); Moore, 237 P.3d 530; In re

Commitment ofLuttrell, 312 Wis.2d 695, 754 N.W.2d 249 (2008); Commonwealth

v. Nieves, 446 Mass. 583, 846 N.E.2d 379 (2006); State ex rel. Nixon v. Kinder, 235

Mo. App. 168, 129 S.W.3d 5 (2003); In re Det. of Cubbage, 671 N.W.2d 442 (Iowa

2003). This case presents a question of first impression for this court, and no court

faced with this exact question has found a due process violation. But several of the

courts that have rejected a due process right have relied on a flawed balancing of the

Mathews factors. Much like the majority does, they have ignored concerns about

effective SVP treatment and the indisputable relationship between competency and

the meaningful exercise of the right to counsel and other essential procedural

safeguards. See, e.g., Moore, 237 P.3d at 543-47.


                                           -9-
In re Detention ofMorgan (Clinton), 86234-6 (Stephens, J. Dissent)




      A complete Mathews analysis supports the conclusion that procedural due

process requires an accused SVP be competent to stand trial. Although the weight

of authority from other jurisdictions has come to the opposite conclusion, no court

has presented an analysis that justifies its result. I would not parrot the reasoning of

those courts as a substitute for a hard look at what the constitution expects of a justice

system.      Instead, I would hold that the trial rights afforded to an accused SVP-

rights that are given in recognition of the caution with which the government must

proceed when contemplating a liberty deprivation of this nature-have little force if

an accused SVP is not competent. I would reverse the Court of Appeals and hold

that an individual has a procedural due process right to be competent when tried as

an SVP. I therefore respectfully dissent. 4




       4
           I agree with the majority's analysis as to the public trial issue presented here.

                                               -10-
In re Detention ofMorgan (Clinton), 86234-6 (Stephens, J. Dissent)




                                          -11-
In re Detention of Morgan (Clinton), No. 86234-6
(Gordon McCloud, J., Concurrence in Dissent)




                                    No. 86234-6



      GORDON McCLOUD, J. (concurring in dissent)-! agree with, and have

signed, the dissent in this case. I write separately to address the majority's public

trial analysis. The majority concludes that the August 2006 pretrial meeting in

chambers between the trial judge, the guardian ad litem, and counsel (but not Mr.

Morgan) was a "status conference" to which the public trial right did not attach.

Majority at 16. I disagree.

       The context shows that it was far more than a simple status conference. It was

identified as a motion hearing at the time of the hearing. Verbatim Report of

Proceedings (Pretrial Hr'gs) (Aug. 30, 2006) at 28 ("[T]his is the State's motion for

further proceedings related to involuntarily medicating Mr. Morgan."). Further, it

was identified as the hearing at which the State wanted to bolster its factual record

and legal argument about why forcible medication was permissible, a very nontrivial

subject. !d. at 29. And in the judge's order to involuntarily medicate Mr. Morgan,


                                           1
In re Detention of Morgan (Clinton), No. 86234-6
(Gordon McCloud, J., Concurrence in Dissent)



entered in December 2006, he seems to have referred back to the August hearing in

saying that he had considered "oral argument from counsel." Suppl. Clerk's Papers

at 81.

         The hearing at issue in this case was thus more like a competency hearing or

involuntary commitment hearing than a mere status update.               Competency

proceedings are presumptively public. State v. Chen, 178 Wn.2d 350, 359 & n.12,

309 P.3d 410 (2013) (Gordon McCloud, J., concurring) (citing U.S. CONST. amend.

I; WASH. CONST. art. I, § 10). And so are involuntary commitment proceedings. In

re Det. ofD.F.F., 172 Wn.2d 37, 46-47, 256 P.3d 357 (2011) (citing WASH. CONST.

art. I, § 10). I would therefore hold that the hearing in this case was presumptively

public.




                                           2
In re Detention of Morgan (Clinton), No. 86234-6
(Gordon McCloud, J., Concurrence in Dissent)




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