Date: 09-30-2015

Case Style: In re the Detention of Anthony Rushton

Case Number: 32396-0

Judge: George B. Fearing

Court: IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

Plaintiff's Attorney: Sarah Sappington

Defendant's Attorney: Eric J. Nielsen, Casey Grannis

Description: In 1989, at age fifteen, Anthony Rushton molested twin nine-year-old boys. As a
No. 32396-0-III In re Det. ofRushton 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.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. 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.
In May 1999, Rushton returned to prison and reentered sexual offender treatment.
During treatment, Rushton reported sexual arousal and daily fantasies ofphysically
violent rape ofteenage girls. After he began taking an antidepressant, Rushton reported
that ninety percent of his sexual fantasies consisted of violent anal rape of his mother.
No. 32396-0-III In re Det. ofRushton
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 ifMr. 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.
DSHS must evaluate a sexually violent person's condition each year to assess
whether continued confinement is justified. 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.
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.
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
No. 32396-0-III In re Det. ofRushton
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.
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
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
RCW 71.09.070 and RCW 71.09.090 and the due process clauses ofboth the state and
No. 32396-0-III In re Det. ofRushton
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.
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 ofpotential 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 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.
No. 32396-0-111 In re Det. ofRushton
The State of Washington responded to Anthony Rushton's motion for release by
arguing it substantially complied with 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.
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.
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:
No. 32396-0-III In re Det. ofRushton
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. RCW 71.09.070(1). 4. The use of the word "shall" in 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 evaluation to an extent that violates Respondent's due process rights. 9. Petitioner's public safety interest would be significantly impacted if Respondent was released from commitment before final judgment was rendered in this action.
CP at 413.
The trial court stayed the release of Anthony Rushton from confinement. This
court further stayed the release pending our decision.
LAW AND ANALYSIS
In this appeal, we confront the following questions. First, did DSHS timely
prepare the yearly evaluation of Anthony Rushton? Second, if not, is dismissal of the
confinement and unconditional release an available and proper remedy? In answering the
second issue, we identifY and evaluate possible remedies for any DSHS violation of time
constraints. Before answering either question, we review the sexually violent person
No. 32396-0-III In re Det. ofRushton
commitment statutes in order to identify the policies and concerns expressed by the
confinement scheme, which identification will assist us in resolving the two questions.
The 2000 order confining Anthony Rushton in a secured facility read, in part, that
the order was irrevocable as of its date. The State does not argue that such language bars
Rushton from seeking release from commitment.
Statutory Overview
Washington's legislature adopted the "Community Protection Act" of 1990 in
response to citizens' concerns about whether state law protected communities from
sexually violent offenders. See GOVERNOR'S TASK FORCE ON CMTY. PROT. DEP'T OF
SOC. & HEALTH SERVICES, FINAL REpORT, I-I (1989). The impetus for the act was the
murder of a Seattle woman by a sexual offender on work release and the violent sexual
attack on a young Tacoma boy. GOVERNOR'S TASK FORCE ON CMTY. PROT. at I-I. The
Community Protection Act contains fourteen parts dealing with such topics as
registration of sex offenders, crime victims' compensation, background checks, and
increased penalties for sex offenders. LAWS OF 1990, ch. 3, §§ 1001-13, codified at
RCW 71.09, is entitled "Civil Commitment" and is the part of the act we address on this
appeal. LAWS OF 1990, ch. 3, §§ 1001-13.
To protect the public, the State may constitutionally confine dangerous individuals
who are suffering from mental illnesses or disorders even if the mental condition is
untreatable. Kansas v. Hendricks, 521 U.S. 346, 390, 117 S. Ct. 2072, 138 L. Ed. 2d 501
No. 32396-0-III In re Det. ofRushton
(1997); In re Det. ofGaff, 90 Wn. App. 834, 845,954 P.2d 943 (1998). Therefore, under
RCW 71.09.060, a person determined to be a "sexually violent predator" can be
involuntarily committed after he or she serves a sentence for a crime. The legislature
enacted extensive findings concerning the need to involuntarily commit violent sexual
offenders. Among those findings, the legislature declared:
In contrast to persons appropriate for civil commitment under chapter 71.05 RCW, sexually violent predators generally have antisocial personality features which are unamenable to existing mental illness treatment modalities and those features render them likely to engage in sexually violent behavior. .... The legislature further finds that the prognosis for curing sexually violent offenders is poor, the treatment needs of this population are very long term, and the treatment modalities for this popUlation are very different than the traditional treatment modalities.
Former RCW 71.09.010 (1990).
A "sexually violent predator" is someone "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."
Former RCW 71.09.020(1) (1995). The term "personality disorder" is not defined by the
statute, but the act defines the term '"mental abnormality" as "a congenital or acquired
condition affecting the emotional or volitional capacity which predisposes the person to
the commission of criminal sexual acts." Former RCW 71.09.020(2) (1995).
"Predatory" acts are those directed at strangers or individuals groomed by the offender
for the purpose of victimization. Former RCW 71.09.020(3) (1992).
No. 32396-0-II1 In re Del. ofRushlon
When a person's sentence for a sexually violent offense has expired or is about to
expire, the State may file a petition alleging the person to be a sexually violent predator.
RCW 71.09.025; .030. When the petition is filed, a judge must determine ex parte if
"probable cause exists to believe that the person named in the petition is a sexually
violent predator." RCW 71.09.040(1). If the court finds probable cause, DSHS assumes
custody of the person and transfers him or her to a facility for evaluation. Within forty
five days, the trial court must conduct a trial to determine if the person is a sexually
violent predator. Former RCW 71.09.050(1) (1995). Either party, or the court, may
demand a jury trial. The burden is on the State to prove, beyond a reasonable doubt, that
the detainee is a sexually violent predator. Former RCW 71.09.060(1) (1995). Ifso, then
he or she shall be committed to a facility "for control, care, and treatmenf' until he or she
is "safe ... to be at large." Former RCW 71.09.060(1) (1995). The statute limits
treatment centers to mental health facilities located within correctional institutions. RCW
71.09.060(3); RCW 10.77.220.
Because a civil commitment is indefinite, the due process requirement that a
detainee be mentally ill and dangerous is ongoing. In re Del. ofMoore, 167 Wn.2d 113,
125 n.3, 216 P.3d 1015 (2009); In re Del. ofMitchell, 160 Wn. App. 669,677,249 P.3d
662 (2011). Stated differently, a detainee has a constitutional right to liberty ifhe no
longer poses a danger. Therefore, any detainee must be examined annually to determine
his or her mental condition and whether he or she continues to meet the standard for
No. 32396-0-111 In re Det. 0/Rushton
commitment. RCW 71.09.070; In re Det. 0/Ambers, 160 Wn.2d 543,548, 158 PJd
1144 (2007). DSHS must provide the results of the examination to the trial court that
conducted the original commitment hearing, the detainee, and the prosecuting attorney.
RCW 71.09.070; Ambers, 160 Wn.2d at 548. In addition, the committed person may
obtain an additional examination at state expense. RCW 71.09.070.
IfDSHS determines that a detainee is no longer mentally ill or dangerous, the
secretary must authorize him to petition for release. RCW 71.09.090(1); Ambers, 160
Wn.2d at 548. A detainee may also petition the court directly without the approval of
DSHS. RCW 71.09.090(2)(a). On filing such a petition, a show cause hearing is held, at
which time the petitioner has the right to be represented by appointed counsel, but not the
right to be present. RCW 71.09.090(2)(b). If the court, during the show cause hearing,
finds probable cause that the detainee is no longer dangerous, the trial court must
convene a full evidenti!ll"Y hearing. RCW 71.09.090(2)(c). Either party may demand a
jury trial. RCW 71.09.090(3)(a). At the full trial, the State must prove that the detainee
continues to meet the sexually violent person definition beyond a reasonable doubt.
RCW 71.09.090(3)(a), (c); Ambers, 160 Wn.2d at 548-49; In re Det. o/Cherry, 166 Wn.
App. 70, 76,271 PJd 259 (2012).
Timeliness 0/2013 Evaluation
The State assigns error to the trial court's finding of fact 13 that DSHS failed to
conduct a current examination of Anthony Rushton's mental condition at least once a
No. 32396-0-III In re Det. ofRushton
year. This finding may be more of a conclusion of law since the finding parrots statutory
language. Also, the State focuses its challenge to the finding more toward whether DSHS
violated the statute's requirement of an examination at least once a year rather than
toward a chronology of events unencumbered by their legal consequences. The State
argues that the term "year" is flexible or, at least, more flexible than the terms "twelve
months" or "365 days."
We review whether the trial court's findings of fact are supported by substantial
evidence. In re Foreclosure ofLiens, 123 Wn.2d 197,202,867 P.2d 605 (1994); Tacoma
v. State, 117 Wn.2d 348,361,816 P.2d 7 (1991). We assess the trial court's conclusions
of law, even iflabeled as findings of fact, de novo. Casterline v. Roberts, 168 Wn. App.
376,383,284 P.3d 743 (2012). On this occasion, we need not resolve whether to review
the trial court's finding of fact 13 as a finding or a conclusion because, under either
standard of review, we refuse to entertain the assignment of error on the ground of invited
error.
RCW 71.09.070(1) controls the timeliness ofDSHS' examination of Anthony
Rushton The statute provides:
(1) Each person committed under this chapter shall have a current examination of his or her mental condition made by the department of social and health services at least once every year. The annual report shall include consideration of whether the committed person currently meets the definition of a sexually violent predator and whether 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.
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No. 32396-0-111 In re Det. ofRushton
[DSHS] shall file this periodic report with the court that committed the person under this chapter. The report shall be in the form of a declaration or certification in compliance with the requirements ofRCW 9A.72.085 and shall be prepared by a professionally qualified person as defined by rules adopted by the secretary. A copy of the report shall be served on the prosecuting agency involved in the initial commitment and upon the committed person and his or her counsel.
(Emphasis added.) Subsection (2) ofRCW 71.09.070 suspends this annual requirement
under specific circumstances:
(2) During any period of confinement pursuant to a criminal conviction, or for any period of detention awaiting trial on criminal charges, this section is suspended. Upon the return of the person committed under this chapter to the custody of the department, the department shall initiate an examination of the person's mental condition. The examination must comply with the requirements of subsection (1) of this section.
The statute allows for suspension on no other ground. The State does not assert any
privilege to suspend the required examinations of Anthony Rushton.
A periodic and timely evaluation of the sexually violent person's mental health
condition is critical to the constitutionality of the civil commitment scheme. State v.
McCuistion, 174 Wn.2d 369,387,275 P.3d 1092 (2012), cert. denied, 133 S. Ct. 1460
(2013). Civil incarceration that is noncompliant with the process due under the statute
which authorizes civil incarceration affects a person's substantial rights, namely
depriving basic liberty without the process due by law. State v. McCuistion, 174 Wn.2d
at 387. Civil commitment statutes are constitutional only when continued confinement is
predicated on the individual's mental abnormality and dangerousness. State v.
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No. 32396-0-II1 In re Det. ofRushton
McCuistion, 174 Wn.2d at 387.
Anthony Rushton argues that the State cannot contend on appeal that its 2013
review of his condition was timely since the contention contravenes its concession to the
trial court. We agree. During oral argument before the trial court, the State's counsel
twice conceded that DSHS "clearly" violated the time restrictions of the statute. The
State limited its argument to the remedy available for a violation of the statutory timeline.
We will not permit the State to argue a contrary position before this court. If the trial
court committed any error, the State encouraged the error.
Under the doctrine of invited error, a party may not materially contribute to an
erroneous application of law at trial and then complain of it on appeal. In re Dependency
ofK.R., 128 Wn.2d 129, 147,904 P.2d 1132 (1995). The invited error dogma precludes a
party from seeking appellate review of an error it helped create. State v. Studd, 137
Wn.2d 533,546-47,973 P.2d 1049 (1999); State v. Henderson, 114 Wn.2d 867, 870-71,
792 P .2d 514 (1990). The doctrine of invited error prohibits a party from setting up an
error at trial and then complaining of it on appeal. State v. Wakefield, 130 Wn.2d 464,
475,925 P.2d 183 (1996); State v. Pam, 101 Wn.2d 507,511,680 P.2d 762 (1984),
overruled on other grounds by State v. Olson, 126 Wn.2d 315,893 P.2d 629 (1995).
Sound reason exists to apply the invited error rule in this appeal. This case poses
many factual and legal questions regarding the timing of the DSHS evaluation, which
questions the trial court could and should have addressed but for DSHS' concession. For
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No. 32396-0-II1 In re Det. ofRushton
example, the 2012 Anthony Rushton examination report spans July 2011 to August 2012,
but DSHS did not file the report with the court until October 9,2012. The 2013 report
spans August 2012 to September 1,2013, but DSHS did not file the report until February
28,2014. Neither review period coincides with Anthony Rushton's initial confinement
date ofNovember 3,2000, but each ending date precedes November 3 by three months.
One wonders if DSHS randomly assigns periods ofreview to its reports, in part, to avoid
the statutory deadline. One wonders if the review periods sometimes exceeds one year.
One wonders why the 2013 report has a specific day as its ending period, but other
beginning and ending dates only identify the month. One wonders if a competent
evaluation for the time frame ofAugust 2012 to September 2013 can be performed in
February 2014. One wonders why each evaluation seemingly spans a year and one
month, rather than only one year.
RCW 71.09.070 requires an "annual report" "at least once every year." But
nothing in chapter 71.09 RCW establishes a precise deadline for the completion or filing
of this report. The statutory scheme does not identify a beginning date or an ending date
for the year. No court has addressed whether substantial compliance with RCW
71.09.070 is sufficient, and, if so, what constitutes substantial compliance. Without the
State's concession in the trial court, Anthony Rushton could have discoursed below on
his views of these questions and the learned trial judge could have assisted us in resolving
the factual and legal questions.
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No. 32396·0·III In re Det. ofRushton
For purposes of this appeal, we accept the trial court's finding that Anthony
Rushton did not have a current examination of his mental condition at least once a year,
and DSHS completed the 20 l3 evaluation at least three months tardy. Based on this
finding, we agree with the trial court that DSHS violated the one-year requirement found
in RCW 71.09.070.
The State contends that budgetary restraints excused DSHS' violation ofRCW
71.09.070. The State assigns error to the trial court's conclusion that lack of funding did
not pardon DSHS' violation of the mandate. Nevertheless, the State cites no authority for
this argument. RAP 1O.3(a)(6) directs each party to supply, in its brief, "argument in
support of the issues presented for review, together with citations to legal authority and
references to relevant parts of the record." We do not consider conclusory arguments that
are unsupported by citation to authority. Joy v. Dep't ofLabor & Indus., 170 Wn. App.
614,629,285 P.3d 187, 194-95 (2012), review denied, 176 Wn.2d 1021,297 P.3d 708
(20l3). Passing treatment of an issue or lack of reasoned argument is insufficient to
merit judicial consideration. West v. Thurston County, 168 Wn. App. 162, 187, 275 P.3d
1200 (2012); Holland v. City ofTacoma, 90 Wn. App. 533,538,954 P.2d 290 (1998).
Therefore, we decline to address this assignment of error.
Due Process
The State assigns error to the trial court's conclusion of law 8. That conclusion
held that Anthony Rushton possessed a liberty interest in his freedom from confinement
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No. 32396-0-111 In re Det. 0/Rushton
and a late evaluation infringed Rushton's due process rights. The State contends that,
even assuming a breach ofRCW 71.09.070, the violation does not implicate Rushton's
constitutional rights to due process.
Anthony Rushton does not challenge the constitutionality of chapter 71.09 RCW.
Such challenges have already failed. See In re Pers. Restraint o/Young, 122 Wn.2d 1,
38-39,857 P.2d 989 (1993); State v. McCuistion, 174 Wn.2d at 398 (2012). On appeal,
Rushton concedes the statutory scheme satisfies procedural due process. Instead,
Rushton argues that DSHS' failure to comply with that scheme violated his right to due
process.
We decline to address whether the untimely examination of Anthony Rushton's
mental health condition contravened his right to due process. We have already ruled that
DSHS violated RCW 71.09.070, and we must now determine if release from confinement
was the correct remedy. As discussed below, characterizing the violation of the statute as
also an infringement of a constitutional right adds little to our analysis of the available
remedies or remedy.
Remedy
We finally arrive at the important question on appeal. We now review what
remedy the trial court should impose when DSHS violates RCW 71.09.070 by failing to
evaluate the mental health condition of the sexually violent person and report this
condition to the court at least once every year. The State contends that dismissal of the
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No. 32396-0-III In re Det. ofRushton
confinement is not the appropriate remedy. The State argues a sexually violent predator
can only achieve his unconditional release into the community by showing a substantial
change in his condition through treatment under RCW 71.09.090.
Chapter 71.09 RCW expressly identifies no remedy for DSHS' failure to provide a
timely annual evaluation. The due process clauses, on which Anthony Rushton relies,
also set forth rights, but no remedies. No Washington case has addressed the issue. After
reviewing the civil commitment statutory scheme and reading a parallel Wisconsin
decision, we conclude that a show cause hearing, not release from confinement, is the
proper remedy.
The court's duty in statutory interpretation is to discern and implement the
legislature's intent. Lowy v. PeaceHealth, 174 Wn.2d 769, 779, 280 P.3d 1078 (2012).
Where the plain language of a statute is unambiguous and legislative intent is apparent,
we will not construe the statute otherwise. Lowy v. PeaceHealth, 174 Wn.2d at 779.
Plain meaning may be gleaned from all that the legislature has said in the statute and
related statutes which disclose legislative intent about the provision in question. Dep 't of
Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11,43 P.3d 4 (2002).
Under RCW 71.09.090, the Washington legislature intended a release only upon a
showing of a change in the mental health condition of the sexually violent person. The
legislature reaffirmed this intent in a 2005 amendment:
These provisions are intended only to provide a method ofrevisiting
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No. 32396-0-III In re Det. ofRushton
the indefinite commitment due to a relevant change in the person's condition, not an alternate method of collaterally attacking a person's indefinite commitment for reasons unrelated to a change in condition.
LAWS OF 2005, ch. 344, § 1. This legislative intent is bolstered by a portion of RCW
71.09.060(1), which states in part:
If the court or jury determines that the person is a sexually violent predator, the person shall be committed to the custody of the department of social and health services for placement in a secure facility operated by the department of social and health services for control, care, and treatment until such time as: (a) The 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 as set forth in RCW 71.09.092 is in the best interest of the person and conditions can be imposed that would adequately protect the community.
One impetus behind the Community Protection Act of 1990 was the early release of a
sexually violent person and the tragic homicide that resulted. Therefore, unconditional
release ofthe committee contravenes the intent behind the statutory commitment scheme.
Because of this intent, we believe the legislature would have expressly authorized
unconditional release as the remedy if the legislature so desired.
The language ofRCW 71.09.090 impliedly creates a remedy when DSHS fails to
meet its obligation to yearly evaluate the confined sexually violent person. The confined
individual may demand a hearing for DSHS to provide evidence of his or her continued
qualification as a sexually violent person. IfDSHS fails to provide such evidence,
usually in the form of the annual review, the confined person will receive a trial on his or
her potential release. RCW 71.09.090(2) reads, in relevant part:
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No. 32396-0-III In re Det. ofRushton
(2)(a) Nothing contained in this chapter shall prohibit the person from otherwise petitioning the court for conditional release to a less restrictive alternative or unconditional discharge without the secretary's approval. ... If the person does not affirmatively waive the right to petition, the court shall set a show cause hearing to determine whether probable cause exists to warrant a hearing on whether the person's condition has so changed that: (i) He or she no longer meets the definition of a sexually violent predator; or (ii) conditional release to a proposed less restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the community. (b) . . . At the show cause hearing, the prosecuting agency shall present prima facie evidence establishing that the committed person continues to meet the definition of a sexually violent predator and that a less restrictive alternative is not in the best interest of the person and conditions cannot be imposed that adequately protect the community. In making this showing, the state may rely exclusively upon the annual report prepared pursuant to RCW 71.09.070. The committed person may present responsive affidavits or declarations to which the state may reply. (c) If the court at the show cause hearing determines that either: (i) The state has failed to present prima facie evidence that the committed person continues to meet the definition of a sexually violent predator and that no proposed less restrictive alternative is in the best interest of the person and conditions cannot be imposed that would adequately protect the community; or (ii) probable cause exists to believe that the person's condition has so changed that: (A) The person no longer meets the definition of a sexually violent predator; or (B) release to a proposed less restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the community, then the court shall set a hearing on either or both issues.
Anthony Rushton recognized this remedy when he asked in the alternative, in his motion
to dismiss, for a new trial pursuant to RCW 71.09.090.
The State argues against unconditional release by citing to State ex rei. Marberry
v. Macht, 262 Wis. 2d 720, 665 N.W.2d 155 (2003). The facts in Marberry rest in
similitude. Wisconsin's Department ofHealth and Family Services failed to timely
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No. 32396-0-III In re Det. ofRushton
evaluate, under a Wisconsin statute, whether William Marberry remained a sexually
violent person. The statute required the first evaluation, after confinement, to be within
six months and later evaluations every twelve months. The trial court denied Marberry's
petition for release, but ordered the department to promptly conduct the reexamination.
In State ex rei. Marberry v. Macht, Wisconsin's intermediate appellate court held
that the statutory prescribed examination is mandatory and that Marberry was entitled to
release from his civil commitment as a remedy. Wisconsin's Supreme Court reversed in
a split opinion: three justices joined the lead opinion, three justices joined the
concurrence, and one justice did not participate. Even as a split opinion from a foreign
jurisdiction, Marberry offers persuasive support for the conclusion that unconditional
release is not the appropriate remedy for an untimely evaluation. The lead opinion and
concurrence disagreed only on an alternative remedy.
The lead opinion, in State ex rei. Marberry v. Macht, noted the dual purposes of
the civil commitment scheme as protecting society and helping the sexually violent
committee with treatment. Releasing a sexually violent person prematurely served
neither objective. Release and discharge from commitment for failure to conduct a
timely reexamination would jeopardize public safety and contradict the express statutory
criteria for supervised release and discharge. The statutory policy of protecting the public
outweighed the competing interest ofthe committed individual in receiving his or her
hearing in strict compliance with the statutory time limitations for the reexamination
21

No. 32396-0-III In re Det. ofRushton
hearing. Like Washington's RCW 71.09.090, a Wisconsin statute rejected discharge
while the committee remained a sexually violent person.
The Wisconsin decision recognized a writ of mandamus as a remedy for the
State's delay in preparing the periodic evaluation and report concerning the condition of
the sexually violent person. Article IV, section 6 of our state constitution gives superior
courts the authority to issue writs of mandamus. RCW 7.16.160 implements the
constitution and reads:
[A writ of mandamus] may be issued by any court, except a district or municipal court, to any inferior tribunal, corporation, board or person, to compel the performance ofan act which the law especially enjoins as a duty resulting from an office, trust or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board or person.
(Emphasis added.) RCW 7.16.170, a related statute, declares:
The writ must be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law.
Pursuant to the latter statute, mandamus lies only when there is practically no other
remedy. Eugster v. City ofSpokane, 118 Wn. App. 383,414, 76 P.3d 741 (2003). As
explained above, Anthony Rushton has another remedy available. Therefore, we
conclude a writ of mandamus is not a proper remedy for DSHS' delay in Rushton's case.
We do not decide whether or not a writ of mandamus may be an appropriate remedy in
another instance of delay by DSHS.
22
No. 32396-0-III In re Det. 0/Rushton
Anthony Rushton highlights cases applying chapter 71.05 RCW, Washington's
statutes for civil commitment ofthe mentally ill, to argue for dismissal as the proper
remedy. In re Detention o/Swanson, 115 Wn.2d 21,804 P.2d 1 (1990) concerned a 72
hour emergency detention under RCW 71.05.150(2). The Swanson Court affirmed the
trial court's denial of a motion to dismiss the detention, because the docket, on which the
State's petition to detain Swanson was scheduled, began within the prescribed 72-hour
period. Nevertheless, the state Supreme Court recognized that: "If Harborview had
totally disregarded the requirements of the statute or had failed to establish legal grounds
for Swanson's commitment, certainly dismissal would have been proper. Indeed, it
would have been required." 115 Wn.2d at 31 (emphasis added).
Anthony Rushton relies on Swanson's language of"totally disregarded" to support
his argument that he is entitled to release. But Swanson is not so broad. The Supreme
Court recognized dismissal as the appropriate remedy because former RCW 71.05.210
(1989) expressly provided: "A person who has been detained for seventy-two hours shall
no later than the end of such period be released, unless referred for further care on a
voluntary basis, or detained pursuant to court order for further treatment as provided in
this chapter." Swanson, 115 Wn.2d at 26 (emphasis added).
Chapter 71.09 RCW has no similar statutory analog demanding release because of
the failure ofDSHS to perform a task. Furthermore, commitment under chapter 71.05
RCW is for a finite term of commitment, not an indefinite one applied to a sexually
23

No. 32396-0-111 In re Det. ofRushton
violent person under chapter 71.09 RCW.
Anthony Rushton also asks that we uphold the trial court's release of him from
confinement on the ground that the trial court held discretion in fashioning a remedy. We
decline this request. Generally, we review the authority of a trial court to fashion
equitable remedies under the abuse of discretion standard. In re Foreclosure ofLiens,
123 Wn.2d at 204 (1994). We need not decide whether release from civil confinement is
an equitable remedy, because whether release from confinement because of DSHS' delay
is an available remedy is a question of statutory construction. The interpretation and
construction of a statute is a question oflaw that an appellate court reviews de novo.
Christenson v. McDuflY, 93 Wn. App. 177, 179,968 P.2d 18 (1998). Thus, we do not
defer to the trial court's ruling.
On the one hand, we value the trial court's frustration over a history of delay in
DSHS' preparing and filing the annual reports critical for continued confinement of a
sexually violent person. We also hope that a confined individual will rarely need to
initiate the yearly evaluation by petitioning for a show cause hearing. The confined
person should not bear the burden of commencing a process assigned to DSHS. On the
other hand, unconditional release is a drastic remedy not approved by the legislature and
potentially dangerous to the pUblic.
Since the show cause process provides a quick hearing to address DSHS' delay,
that process meets due process strictures. The constitutional requirement for revisiting
24

No. 32396-0-111 In re Det. ofRushton
the basis of commitment is "periodic review." State v. McCuistion, 174 Wn.2d at 385
(2012). Substantive due process requires only that the State conduct periodic review of
the patient's suitability for release. Jones v. United States, 463 U.S. 354,368, 103 S. Ct.
3043, 77 L. Ed. 2d 694 (1983); McCuistion, 174 Wn.2d at 385. DSHS filed its 2013
report one year and four months after its 2012 report. Anthony Rushton cites no direct
authority that this extended time period does not meet constitutional muster.
Anthony Rushton also argues that the process due under the constitution is the
process provided for in RCW 71.09.070, which demands a yearly evaluation.
Nevertheless, Rushton cites no authority for this argument, and statutes may afford more
process than demanded by the constitution. A state statute does not expand the
boundaries of federal, constitutional due process. Cf Bd. ofCurators ofUniv. ofMo. v.
Horowitz, 435 U.S. 78, 92 n.8, 98 S. Ct. 948, 55 L. Ed. 2d 124 (1978); Wells v. Hico
Indep. Sch. Dist., 736 F.2d 243,253 n.l3 (5th Cir. 1984); Atencio v. Bd. ofEduc. of
Pensaco Indep. Sch. Dist. No.4, 658 F.2d 774, 779 (lOth Cir. 1981); Bates v. Sponberg,
547 F.2d 325,329-30 (6th Cir. 1976).
The State of Washington urges this court to reverse and dismiss Anthony
Rushton's motion to dismiss as moot, because DSHS cured any statutory or constitutional
deficiency when it filed the 2013 report. We agree to vacate the order of dismissal of the
petition to confine Anthony Rushton. We note, however, that, because of a delay beyond
his control, Rushton never likely explored with an expert whether he remained a sexually
25

No. 32396-0-111 In re Det. ofRushton
violent person subject to confinement. In the meantime, DSHS has filed another report
declaring that Rushton qualifies for confinement. On remand, we grant Anthony Rushton
ninety days to challenge his confinement by filing a motion to show cause, with
supporting affidavits, pursuant to RCW 71.09.090(2). Otherwise, the confinement will
continue with the State holding the obligation to examine Rushton and report the results
yearly as RCW 71.09.070 requires.

Outcome: We vacate the trial court's order of release and dismissal of the petition to confine Anthony Rushton. We remand to the trial court for further proceedings consistent with this opinion.

Plaintiff's Experts:

Defendant's Experts:

Comments: RCW 71.09.070 requires the state ofWashington Department of Social and Health Services (DSHS) to evaluate a sexually violent person's condition at least once every year to determine ifcontinued civil commitment is warranted. This appeal asks: what happens ifDSHS violates this obligation? The trial court ordered unconditional release of civil committee Anthony Rushton because ofDSHS' 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.