In re the Detention of Petersen

Sanders, J.

(dissenting) — The majority consigns Mr. Petersen to indefinite imprisonment without benefit of appeal or right to counsel. It claims the civil nature of his incarceration diminishes his rights below those enjoyed by convicted criminals. It holds the United States Supreme *96 Court’s interpretation of a similar statute is “simply wrong.” Majority at 79. It states the legislature’s guarantee of the right to counsel “[a]t all stages of the proceedings” does not mean what it says and that there is no constitutional right to counsel for one potentially deprived of his liberty in a civil proceeding. RCW 71.09.050(1) (Majority at 92).

A. Order on annual review is appealable as a matter of right.

Whatever rights may be truly fundamental to the rule of law in a free society, the right to appeal must surely rank among them. 17 Our rules protect the right to access the appellate courts without regard to whether we characterize the proceeding civil or criminal. RAP 2.2.

Not every order may be appealed as a matter of right; however, no person may be barred appellate access to contest a final order affecting his substantial rights. RAP 2.2(a)(13). Notwithstanding the majority’s claim to the contrary, this case is most certainly “about the right to appeal itself.” Majority at 84 n.10. The opportunity to seek discretionary review is no substitute for appeal as a matter of right because discretionary review, absent the favorable exercise of discretion, is no review at all. Such is contingent on surmounting a discretionary threshold, usually on the assumption that a truly appealable order will follow, not *97 that it will never follow. 18 RAP 2.3(b). To limit appellate access to discretionary review under these circumstances is to abrogate that which each citizen has heretofore justly claimed by right.

RAP 2.2(a)(13) expressly provides, “Any final order made after judgment which affects a substantial right” is appeal-able as a matter of right. The issue here is therefore whether the annual review provisions outlined in RCW 71.09.090 invite a “final order” “after judgment” which “affects a substantial right.” Such questions of appeal-ability are answered by applying substance over form. Alpine Indus., Inc. v. Gohl, 101 Wn.2d 252, 255 , 676 P.2d 488 (1984).

The majority, without meaningful analysis, denies an appeal of right under this section within the space of two sentences asserting the court has “continuing jurisdiction,” citing RCW 71.09.090(3). Majority at 88. While this court’s jurisdiction may “continue,” that jurisdiction is invoked only by a petition for release. The court is not authorized to free the prisoner absent a statutory petition. “Continuing jurisdiction” is therefore not incompatible with the requirements of RAF 2.2(a) (13).

In satisfaction of the rule’s criteria, even the state admits this is an “order made after judgment,” since an order entered in an annual review proceeding is an order entered after an individual was initially imprisoned as a result of a prior final judgment entered pursuant to RCW 71.09.060(1) that he is “a sexually violent predator.” The order on annual review may result from a hearing conducted on a petition filed by the state pursuant to RCW 71.09.090(1) (seeking a conditional release to less restrictive alternative or unconditional discharge), or it may result from a petition *98 filed by the prisoner himself for such relief under subsection (2) of the same statute. 19 That subsection provides,

The secretary shall provide the committed person with an annual written notice of the person’s right to petition the court for conditional release to a less restrictive alternative or unconditional discharge over the secretary’s objection.

RCW 71.09.090(2).

And the order is also “final.” This must be so because the court’s order on the petition—whether it be an order on show cause which denies a full hearing based upon the court’s determination that probable cause does not exist for success, or an order for continued imprisonment, release, or a less restrictive alternative entered after a full hearing—is, by operation of law, “final” in the sense that it determines whether the prisoner will be released at that point in time or not. It is also “final” because there is nothing else to be done to arrive at the ultimate disposition of the petition, unless the order to show cause is issued in which event finality awaits the hearing’s disposition. A subsequent petition will begin the process again; however, a subsequent petition stands separate, apart, and independent of that petition which preceded it. The order at issue here ended the pending petition, and ended it finally. Although a subsequent petition might result in an order of release, that order is not in any sense a result or culmination of the previously dismissed petition but rather an entirely new order based on an entirely separate proceeding.

The majority also claims an order on annual review is “interlocutory,” Majority at 88, asserting it is therefore not *99 appealable of right. However, an interlocutory decision is “[a]ny decision prior to a final decision,” Black’s Law Dictionary 815 (6th ed. 1990), whereas an order on annual review cannot be “interlocutory” because there is no decision which it necessarily precedes. See Balfour-Guthrie Inv. Co. v. Geiger, 20 Wash. 579, 580 , 56 P. 370 (1899), and see Alwood v. Aukeen Dist. Court, 94 Wn. App. 396 , 973 P.2d 12, 14 (1999). Even the majority recognizes the finality implicit in the termination of an annual review proceeding as it argues in another context that an improper psychological evaluation for the purpose of one annual review cannot be the basis for granting relief in a subsequent annual review. Majority at 91 n.15 (“A ‘new’ 1997 evaluation would obviously be moot. The court can grant no relief to Petersen now for what happened in 1997.”).

Most importantly an order entered in the review proceeding is an adjudication of the prisoner’s right to be released based upon his current mental condition at the time of the review proceeding, as distinguished from the initial adjudication which was premised upon his mental status at the time of the original final judgment of commitment. It is therefore a “final order made after judgment” because “it affects a right other than those adjudicated by the earlier final judgment.” State v. Campbell, 112 Wn.2d 186, 190 , 770 P.2d 620 (1989) (death warrant not separately appeal-able because it affects the same right already adjudicated in the underlying judgment). The constitutional necessity for such a review proceeding to assess the current mental status of the prisoner is discussed in greater detail below; however, it is clear an order on the review petition is a “final order made after judgment,” fulfilling that portion of the rule. RAP 2.2(a)(13).

The final aspect of the rule requires the order “affectl] a substantial right.” Although the majority discounts the liberty of every individual to be free from unlawful imprisonment, gratefully the statute and the Constitution are more generous.

If the purpose of this statute is the protection of society *100 from sexually violent offenders as well as the treatment and cure of those individuals so as to render them safe for release, In re Personal Restraint of Young, 122 Wn.2d 1, 10 , 857 P.2d 989 (1993), certainly it cannot be argued its statutory purpose is advanced by continued incarceration of those who are no longer dangerous as a result of this alleged mental condition. The statutory review provisions at issue in this proceeding facilitate this purpose by providing:

If the court at the show cause hearing determines that probable cause exists to believe that the person’s mental abnormality or personality disorder has so changed that the person is not likely to engage in predatory acts of sexual violence if conditionally released to a less restrictive alternative or unconditionally discharged, then the court shall set a hearing on the issue.

RCW 71.09.090(2). This provision is in accord with the constitutional mandate that one who is confined on mental illness grounds “may be held as long as he is both mentally ill and dangerous, but no longer.” Foucha v. Louisiana, 504 U.S. 71, 77 , 112 S. Ct. 1780, 1784 , 118 L. Ed. 2d 437 (1992) (citing Jones v. United States, 463 U.S. 354, 368 , 103 S. Ct. 3043, 3052 , 77 L. Ed. 2d 694 (1983) and O’Connor v. Donaldson, 422 U.S. 563 , 95 S. Ct. 2486 , 45 L. Ed. 2d 396 (1975)).

The right to release after recovery, as opposed to endless, needless confinement, is especially important as the United States Supreme Court has reaffirmed, “ ‘[t]he loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement,’ ” Foucha, 504 U.S. at 79 , 112 S. Ct. at 1785 (quoting Vitek v. Jones, 445 U.S. 480, 492 , 100 S. Ct. 1254, 1263 , 63 L. Ed. 2d 552 (1980)); whereas even confinement under civil commitment statutes less onerous than this is a “ ‘massive curtailment of liberty’ ” entitling the imprisoned to the full scope of constitutional protections. State ex rel. T.B. v. CPC Fairfax Hosp., 129 Wn.2d 439, 452 , 918 P.2d 497 (1996) (quoting Humphrey v. Cady, 405 U.S. 504, 509 , 92 S. Ct. 1048, 1052 , 31 L. Ed. 2d 394 (1972)).

*101 The presence of the annual review provision therefore serves a special function with respect to the constitutionality of this statute as a whole. Although we originally upheld the constitutionality of the statute against facial challenge in In re Young, we did so only upon recognition that “[a]n individual’s liberty interest is important and fundamental,” 122 Wn.2d at 26 , thereby requiring the statute to pass the test of strict scrutiny by forcing the state to prove the statute not only “furthers compelling state interests,” but also is “narrowly drawn to serve those interests.” Id.

Finding the statute, at least on its face, passes constitutional muster we emphasized the requirement of Jones that due process “ ‘requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.’ ” In re Young, 122 Wn.2d at 33 (quoting Jones v. United States, 463 U.S. at 368 ). And we cautioned such a statute survives the meritorious challenge against indefinite commitment sustained in Foucha only because “[although the period of confinement is not predetermined, the statute’s release provisions provide the opportunity for periodic review of the committed individual’s current mental condition and continuing dangerousness to the community.” In re Young, 122 Wn.2d at 39 .

These concerns were echoed, if not enlarged upon, by the United States Supreme Court several years later when it upheld a comparable Kansas statute against facial attack in Kansas v. Hendricks, 521 U.S. 346 , 117 S. Ct. 2072 , 138 L. Ed. 2d 501 (1997), if only by the slimmest of margins in a five to four decision. There the Supreme Court upheld the constitutional validity of a similar statute by rejecting claims it imposed criminal punishment contrary to the double jeopardy and ex post facto clauses of the United States Constitution. Supporting his claim of unconstitutionality “Hendricks focus[ed] on his confinement’s potentially indefinite duration as evidence of the State’s punitive intent,” 521 U.S. at 363 ; however, relying on the same annual review provisions at issue here, the Supreme Court held:

*102 Furthermore, commitment under the Act is only potentially indefinite. The maximum amount of time an individual can be incapacitated pursuant to a single judicial proceeding is one year. If Kansas seeks to continue the detention beyond that year, a court must once again determine beyond a reasonable doubt that the detainee satisfies the same standards as required for the initial confinement. This requirement again demonstrates that Kansas does not intend an individual committed pursuant to the Act to remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.

Id. (citations omitted).

Says our majority, however, the Supreme Court “is simply wrong” (Majority at 79) to reject the claim that the identical Kansas statute provided for an indefinite term of commitment, suggesting “it was offering its interpretation of another state’s statute, not prescribing any constitutional requirements.” Majority at 79-80.

But I fear our majority has missed the point: Were the commitment truly indefinite, as our majority claims, the statute would be so punitive it could not survive constitutional challenge as per Hendricks . Indeed it seems our majority goes out of its way to punish once again for past crimes, and in advance of speculative future ones.

But however the majority may characterize it, the statutory language speaks with a force all -its own: A prisoner is entitled to at least an annual review with a commensurate opportunity to regain his freedom. Even if we were to agree with the State that “[t]he only substantial right Petersen can identify is his continuing commitment,” State’s Resp. Br. at 22, that right is not only substantial, but constitutionally indispensable.

Indeed we have recognized “substantial rights” in situations much less compelling than this. For example a trial court’s ruling on an application for leave to file a second new trial motion pursuant to CR 59(j), after a previous motion for new trial was denied, affects a substantial right and is therefore appealable as a matter of right. Alpine In *103 dus., Inc. v. Gohl, 101 Wn.2d 252 , 676 P.2d 488 (1984). Similarly, our Court of Appeals has held that an order removing a personal representative is appealable of right as a decision affecting substantial rights. In re Estate of Wood, 88 Wn. App. 973, 975 , 947 P.2d 782 (1997). And our rule has been construed to allow an appeal as a matter of right even from an order revoking probation after final judgment, as that too involves a substantial right. State v. Pilon, 23 Wn. App. 609, 611-12 , 596 P.2d 664 (1979). Additionally, was not the jurisdiction of the court “continuing” in many of those very situations where the right to appeal has been vindicated?

I venture it is quite apparent from the statutory structure that this unique annual review proceeding is (1) mandatory and (2) presents a clear opportunity for the incarcerated to regain his freedom. Its outcome “affects a substantial right” because it creates a plain and clear legal remedy (freedom or continued incarceration) which is anything but insubstantial from any standpoint.

In re Dependency of Chubb, 112 Wn.2d 719 , 773 P.2d 851 (1989), is relied upon by the majority to support its claim that the order is not appealable under a wholly different subsection of the rule pertaining to an order of commitment after a dependency or sexual predator hearing. RAE 2.2(a)(8). While I agree the order may not be appealable under that subsection of the rule, neither Chubb nor the subpart of the rule under which it was decided supports the majority’s claim that our intent upon adopting that subsection “was to provide an appeal as of right only from the initial commitment order” (Majority at 85) (emphasis added) to the exclusion of other criteria independently rendering an order appealable. Chubb did not pertain to substantiality and is easily distinguished from the question presented under subsection (13). It spoke to the application of RAF 2.2(a)(5), which allows a direct appeal from a “disposition decision following a finding of dependency by a juvenile court,” Chubb, 112 Wn.2d at 722 , not subsection (13) of the rule which makes appealable “[a]ny final order made after judgment which affects a substantial right.”

*104 Persuasive also is the virtual unanimity of authority from other jurisdictions upholding the appealability of orders entered under similar, if not identical, statutes. People v. Herrera, 78 Cal. Rptr. 2d 531 , 66 Cal. App. 4th 1149 (1998), for example, squarely rejected the identical argument when raised by the California Attorney General that an order entered under an identical annual review provision is not appealable as a matter of right. Based upon nearly identical 20 provisions of the California Penal Code to Washington’s RAP 2.2(a)(13), permitting appeals “ ‘[f]rom any order made after judgment, affecting the substantial rights of the party,’ ” (quoting Cal. Penal Code § 1237 (b)), the California appellate court squarely held: “The trial court’s summary denial of a petition for outpatient status affects appellant’s substantial rights and is an appealable order.” Herrera, 78 Cal. Rptr. 2d at 532 . See also In re Wyatt, 428 Mass. 347 , 701 N.E.2d 337 (1998) (order on petition to be discharged from custody as a sexually dangerous person is appealable); In re Hill, 422 Mass. 147 , 661 N.E.2d 1285 (1996) (same); In re Commitment of Paulick, 213 Wis. 2d 432 , 570 N.W.2d 626 (1997) (same); People v. Parrish, 879 P.2d 453 (Colo. Ct. App. 1994) (same).

We should therefore recognize an order entered on a review proceeding is indeed a final order after judgment which affects a substantial right. In fact, second only to life itself, liberty is the most substantial right we have—our freedom from unlawful incarceration.

B. Right to an attorney at an annual examination.

Mr. Fetersen also claims that his right to an annual examination was abridged by the state’s refusal to allow him to be accompanied by his attorney. He relies upon RCW 71.09.070 which provides in part:

Each person committed under this chapter shall have a current examination of his or her mental condition made at least once every year.

*105 This, claims Petersen, should be read in para materia with RCW 71.09.050(1) which provides in part:

At all stages of the proceedings under this chapter, any person subject to this chapter shall be entitled to the assistance of counsel.

and 71.09.080(1) which mandates:

Any person subjected to restricted liberty as a sexually violent predator pursuant to this chapter shall not forfeit any legal right or suffer any legal disability as a consequence of any actions taken or orders made, other than as specifically provided in this chapter.

At issue is the report from Regina M. Harrington, Ph.D., of May 6, 1997. Mr. Petersen apparently desired to participate in an annual forensic examination; however, according to the psychologist’s report:

Mr. Petersen stated he would not agree to an interview for the annual review process without his attorney present. Clinical meetings are not conducted with legal counsel in attendance.

Clerk’s Papers (CP) at 10. Dr. Harrington does not favor us, however, with any clinical justification, much less a legal one, for her practice of refusing the attendance of legal counsel. 21

*106 The majority’s claim 22 that “the Legislature created the right to counsel only as to all stages leading to the initial trial” (Majority at 92) but not thereafter defies the plain language of the statute which references the right to counsel “[a]t all stages of the proceedings under this chapter . . . RCW 71.09.050(1). The right to a current examination is also a right “under this chapter.” RCW 71.09.070. “[I]f a statute is plain and unambiguous, its meaning must be derived from the language of the statute itself.” Harmon v. Department of Soc. & Health Servs., 134 Wn.2d 523, 530 , 951 P.2d 770 (1998). Therefore the majority’s attempt to construe the right out of existence by claiming the perhaps redundant guarantee of an attorney in RCW 71.09.090(2) is “surplusage” (Majority at 92) may not defeat the plain words of the statute. We should not strain to deny this man legal assistance.

Citing Young, 122 Wn.2d at 23 , the majority also claims, “Petersen has no Fifth Amendment constitutional right to counsel during annual psychological evaluations because proceedings under chapter 71.09 RCW are civil, not criminal.” Majority at 91. The majority errs. Young merely says such proceedings are civil but makes no reference to the constitutional right to counsel in a civil proceeding. Clearly, there is a constitutional right "to counsel in even civil proceedings where liberty is at stake. See, e.g., Tetro v. Tetro, 86 Wn.2d 252, 253 , 544 P.2d 17 (1975) (“In proceedings civil in form but criminal in nature—such as juvenile delinquency or mental commitment hearings—representation is clearly part of due process.” (citing In re Application of Gault, 387 U.S. 1 , 18 L. Ed. 2d 527 , 87 S. Ct. 1428 (1967); Heryford v. Parker, 396 F.2d 393 (10th Cir. 1968); and Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), vacated on other grounds by 414 U.S. 473 , 94 S. Ct. 713 , 38 L. Ed. 2d 661 (1974))).

*107 Stigmatizing labels such as “predator” must not be allowed to defeat the precious right to access appellate courts and obtain representation of counsel in matters involving personal libérty. The court must look behind the label to protect the rights of its citizens. For these reasons I dissent.

Smith, Johnson, and Madsen, JJ., concur with Sanders, J.

Wash. Const, art. I, § 22 (amend. 10) (“In criminal prosecutions the accused shall have the right ... to appeal in all cases . . . .”); The Queen v. Justices of County of London, 2 Q.B. 492, 476 (1893) (“If no appeal were possible . . . this would not be a desirable country to live in. . . .”); Harlon Leigh Dalton, Taking the Right to Appeal (More or Less) Seriously, 95 Vale L.J. 62, 62 (1985) (“Although its origins are neither constitutional nor ancient, the right has become, in a word, sacrosanct.” (footnote omitted)) and (“Even if appeal of right makes little difference in ultimate outcomes, and indeed even if it has a negative effect, we should retain it in each and every criminal case because of our overriding commitment to the following principles: that the awesome power of the state must not be allowed to overwhelm individuals, especially individuals who are genuinely believed to have transgressed laws we hold dear.” Id. at 101-02.). Cf. Weeks v. United States, 232 U.S. 383, 392 , 34 S. Ct. 341, 344 , 58 L. Ed. 652 (1914) (“[T]he courts . . . are charged at all times with the support of the Constitution, and . . . people of all conditions have a right to appeal for the maintenance of such fundamental rights.”), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 , 81 S. Ct. 1684 , 6 L. Ed. 2d 1081 , 84 A.L.R.2d 933 (1961).

The majority implies the distinction between appeal of right and discretionary review is without a substantial difference as the decision to deny discretionary review may itself be reconsidered or reviewed. See Majority at 89. However, the standard for discretionary review and appeal is quite different: It is the discretion which supplants the right.

The majority opines an order entered after a full hearing on annual review is arguably appealable as a matter of right. Majority at 87 n.13. I do not find the distinction between denial of an order to show cause and dismissal after a full hearing persuasive as the same “continuing commitment” results from denial of the show cause order just as surely as it follows from like determination after a full hearing. By analogy any summary dismissal on the pleadings pursuant to CR 12(c) would be nonappealable whereas dismissal after an extended trial would be appealable as a matter of right. However such is not the rule as the end result is the same and equally appealable in either case.

The California provision does not reference a “final” order; however, for the reasons previously stated, the order here is “final” as that term is used in our rule.

Dr. Harrington does however note apparent clinical significance that Mr. Petersen “initiated formal complaints centered on events commonly viewed by others as relatively minor examples of inconsistencies or imperfections in human execution of institutional procedures,” such as “malpractice, abuse and negligence” by staff. She also finds clinical significance in Petersen’s statement that he has considered “litigation against the Superintendent” and demonstrates a “litigious” temperament, with a “legal agenda,” “symptomatic of personality traits of sexual offenders.” CP at 13-14.

Of course we must be mindful that during her observations indicative of Mr. Petersen’s “legal agenda,” the program itself was subject to a continuing federal injunction for abusive conduct toward its prisoners, including failure to provide minimally constitutional, adequate treatment. Thus, I would surmise that Mr. Petersen’s legalistic concerns are not wholly without basis, and legal advice might be as helpful to him as it may be viewed as pathologically symptomatic by the likes of Dr. Harrington. Cf. Inmates of Neb. Penal & Correctional Complex v. Greenholtz, 436 F. Supp. 432, 437 (D. Neb. 1976) (“The Board’s policy of not considering an inmate for parole if he had legal actions pending punished those *106 inmates who had sought relief in the courts and discouraged other inmates from seeking relief in court. This policy obstructed the inmates’ access to the courts in violation of their constitutional rights.”), aff’d, 567 F.2d 1368 (8th Cir. 1977).

The majority primarily discusses a possible analogy to the right to counsel under the civil commitment act, RCW 71.05; however, I see no point in this discussion since the right under “this chapter,” RCW 71.09, is express.