In re Detention of Rushton

190 Wash.App. 358

359 P.3d 935

In the Matter of the DETENTION OF Anthony RUSHTON.

No. 32396–0–III.

Court of Appeals of Washington, Division 3.

Sept. 24, 2015.

Malcolm Ross, Attorney General of Washington, Sarah Sappington, Office of The Atty. General, Seattle, WA, for Appellant.

Eric J. Nielsen, Casey Grannis, Nielsen Broman & Koch PLLC, Seattle, WA, for Respondent.

Opinion

FEARING, J.

¶ 1 Former RCW 71.09.070 (2011) requires the state of Washington Department of Social and Health Services (DSHS) to evaluate a sexually violent person's condition at least once every year to determine if continued civil commitment is warranted. This appeal asks: what happens if DSHS violates this obligation? The trial court ordered unconditional release of civil committee Anthony Rushton because of DSHS' failure to conduct an evaluation for more than one year. We reverse and hold that, rather than unconditional release, Rushton's remedy is a motion to compel DSHS to show cause as to whether DSHS should continue to confine him.

FACTS

¶ 2 In 1989, at age fifteen, Anthony Rushton molested twin nine-year-old boys. As a result of this conduct, Rushton was convicted in juvenile court of first degree rape of a child. In 1994, Rushton stalked and violently raped a seventeen-year-old girl. He followed the girl home and forced his way into her house. Once inside the home, Rushton grabbed the girl, pushed her to the floor, yanked off her clothes, and raped her. As a result of this conduct, Rushton pled guilty to second degree rape and was sentenced to sixty-seven months in incarceration.

¶ 3 Rushton later disclosed more rapes and molestations, beginning as early as his age of eight. His victims included neighborhood children, a teenage girl, and his mother's friend.

¶ 4 Anthony Rushton was released from prison on February 16, 1999. Within weeks, Rushton repeatedly violated his parole by contacting minor children. He admitted that, had he remained in the community, he would have committed a violent rape. He confessed to a polygrapher that he fantasized about violent rapes and that he had “cruised” on several occasions by one high school and two elementary schools while on release. Rushton also disclosed he masturbated, after his cruising, to fantasies of raping preteen girls.

¶ 5 In May 1999, Rushton returned to prison and reentered sexual offender treatment. During treatment, Rushton reported sexual arousal and daily fantasies of physically violent rape of teenage girls. After he began taking an antidepressant, Rushton reported that ninety percent of his sexual fantasies consisted of violent anal rape of his mother.

¶ 6 On September 15, 1999, the State of Washington petitioned to civilly commit Anthony Rushton as a sexually violent predator under chapter 71.09 RCW. On November 3, 2000, Rushton stipulated to his confinement. The stipulated court order declared, in part:

[Rushton] currently suffers from two mental abnormalities, Pedophilia, and Paraphilia Not Otherwise Specified (nonconsenting), and a personality disorder, Antisocial Personality Disorder. These mental abnormalities and personality disorders make him likely to engage in predatory acts of sexual violence if Mr. Rushton is not confined in a secure facility.

Clerk's Papers (CP) at 12. The order further read that, based on an agreement of the parties, the stipulation was irrevocable as of its date.

¶ 7 DSHS must evaluate a sexually violent person's condition each year to assess whether continued confinement is justified. Former RCW 71.09.070. Between 2001 and 2012, a qualified expert employed by DSHS yearly evaluated Anthony Rushton. On October 9, 2012, DSHS filed an evaluation for the period from July 2011 to August 2012.

¶ 8 During the calendar year 2013, DSHS failed to perform or file an annual evaluation of Anthony Rushton. In turn, more than one year passed between the 2012 evaluation and the 2013 evaluation.

¶ 9 Anthony Rushton's case is not the only case, in which DSHS failed to evaluate a civil committee under chapter 71.09 RCW for more than one year. A January 2013 report from the Washington State Institute for Public Policy described and assessed Washington's civil commitment of sexually violent persons. According to the report, DSHS failed to prepare all 245 annual reviews in 2012 of sexually violent persons. The failure resulted from limited staffing and resources at DSHS' Special Commitment Center.

¶ 10 On February 16, 2014, Harry Hoberman, a qualified expert, completed an evaluation of Anthony Rushton for the period covering August 2012 to September 1, 2013. DSHS filed the report with the superior court on February 28, 2014. According to Dr. Hoberman, Rushton continued to show significant sexual arousal to rape, including sadistic rape of adult females and rape and coercion of minor males and females. Rushton continued to fantasize about anally raping his mother. Hoberman diagnosed Rushton with pedophilia and sexual sadism disorder. Hoberman estimated the odds of Rushton reoffending within the next ten years as sixty-five percent. Hoberman concluded that Anthony Rushton continued to meet the statutory definition of a sexually violent predator.

PROCEDURE

¶ 11 On February 21, 2014, before the filing of Harry Hoberman's report, Anthony Rushton moved the trial court to dismiss his civil commitment as a sexually violent person or, in the alternative, grant him a trial on his commitment based on DSHS' failure to file an annual evaluation. In support of the motion, Rushton asserted the provisions of former RCW 71.09.070 and RCW 71.09.090 and the due process clauses of both the state and federal constitutions. Rushton contended that he should not be harmed by any State budgetary shortfalls that prevented timely reviews. Rushton argued that the remedy for DSHS' failure to timely evaluate him for 2013 is his unconditional release.

¶ 12 In response to Anthony Rushton's motion for release, Steven Marquez, a forensic services manager with the Special Commitment Center, claimed an inability to timely complete Rushton's 2013 evaluation because of a shortage of staff. In a declaration, Marquez testified:

2. The loss of two qualified evaluators at the SCC [Special Commitment Center] in 2013 has contributed to delays in annual review reports.

3. The pool of potential qualified candidates to fill vacancies in evaluator positions is small, and the difficulties associated with filling vacancies has contributed to delays in annual review reports.

4. Approximately two years ago, the Department of Social and Health Services reassigned two Special Commitment Center (SCC) evaluators to Western State Hospital to address the backlog of forensic evaluations at that facility. That reassignment had a significant impact on the SCC's ability to complete annual reviews.

5. Due to the staff shortage, Mr. Rushton's evaluation was contracted to an outside evaluator, Dr. Harry Hoberman, Ph.D., in an effort to provide the evaluation to the Court as soon as possible.

6. A current evaluation report regarding Mr. Anthony Rushton's status as a Sexually Violent Predator pursuant former RCW 71.09.070 was recently completed. The evaluation was based on Dr. Hoberman's report, which is dated February 16, 2014. The completed evaluation was submitted to the Court on February 25, 2014.

7. The delay in completing Mr. Rushton's annual review was not the result of neglect or inexcusable delay, but instead because of lack of qualified personnel.

CP at 336–37.

¶ 13 The State of Washington responded to Anthony Rushton's motion for release by arguing it substantially complied with former RCW 71.09.070's mandate for review within one year and by denying it violated Rushton's due process rights. The State also argued that Rushton's motion was moot since it filed the 2013 evaluation with the court on February 28, 2014, before the hearing on Rushton's motion. Finally, the State contended that unconditional release was not a proper remedy, since RCW 71.09.090 allowed release of a sexually violent person only if he no longer met the statutory definition of a sexually violent predator. The State emphasized the need to protect the community from a sexually violent person.

¶ 14 The trial court entertained oral argument addressing Anthony Rushton's motion to dismiss. During oral argument, the State's counsel commented “clearly, the statute was not adhered to [by DSHS.]” Report of Proceedings (RP) at 20. Later the State's counsel restated the same remark: “Because I'm telling you, again, with respect to the statute, clearly the statute wasn't followed. Okay.” RP at 26–27. The State focused its argument on the remedy available for a violation of the statutory timeline.

¶ 15 The trial court granted Anthony Rushton's motion to dismiss the sexually violent person petition, which dismissal granted unconditional release from confinement. The trial court found that DSHS failed to, at least once a year, perform a current examination of Anthony Rushton's mental condition. The trial court entered the following conclusions of law:

2. The issue before the Court deals with a matter of continuing and substantial public interest.

3. Each person committed under RCW 71.09 shall have a current examination of his or her mental condition made by the department of social and health services as least once a year. former RCW 71.09.070(1).

4. The use of the word “shall” in former RCW 71.09.070(1) means that this provision is mandatory.

5. RCW 71.09 is silent with respect to the remedy if the evaluation is not completed at least once a year.

6. The eventual filing of the 2013 evaluation, at least three months beyond the “at least once a year” requirement, does not preclude this Court's grant of the relief requested by Respondent.

7. The budgetary and/or staffing concerns at the Special Commitment Center outlined on the Declaration of Steven Marquez, Ph.D. do not excuse the lapse of more than one year between evaluations.

8. Respondent's liberty interest is directly affected by a late

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