Facts: The respondent state of Washington petitioned the Superior Court for Pierce County to have petitioner John Anderson, a convicted sex offender whose release from a state psychiatric hospital was pending, committed pursuant to Washington Revised Code §71.09 as a sexually violent predator, asserting that his sexual relations with mentally disabled patients constituted, as required by the statute, recent overt acts creating a reasonable apprehension of sexually violent harm that justified commitment. The trial court subsequently ordered Anderson’s commitment. On appeal, however, the Washington Court of Appeals reversed the trial court’s decision and ordered a new trial, ruling that although Anderson’s conduct represented a recent overt act under §71.09, the trial court had erred in refusing to appoint Anderson’s requested expert to examine him and testify on his behalf. Anderson and the state of Washington cross-appealed this decision to the Supreme Court of Washington.

Question(s): Did Anderson’s sexual relations with mentally disabled patients incapable of consent create a reasonable apprehension of sexually violent harm?

If so, should the trial court have granted Anderson’s motion to appoint an expert of his choosing to conduct a forensic psychosexual evaluation?

Conclusion: Justice James M. Johnson’s opinion for the Court held that Anderson’s behavior fell within the terms of §71.09 insofar as it was sufficiently recent and akin, given the vulnerability of the sexual partners involved, to the sexual assaults on children that he had previously been convicted of. However, the Court also ruled that the trial court abused its discretion by refusing Anderson’s request to appoint his preferred expert to examine him and potentially offer testimony that would challenge the conclusion of the state’s expert that Anderson was likely to commit predatory acts of sexual violence if not confined. As granting Anderson’s request would not have unduly delayed the proceedings nor prejudiced the state nor imposed excessive costs on the state, the Court affirmed the decision of the Washington Court of Appeals to vacate the trial court’s commitment order.

Docket No. 79111-2 (from Court of Appeals Division II Case No. 31915-2)

Petitioner: John Anderson

(Counsel: Donald B. Lundahl)

Respondent: State of Washington

(Counsel: Robert M. McKenna and Sarah B. Sappington)

Argument: Tuesday, January 15, 2008 10:00am

[Source: TVW, http://tvw.org]

Decided: Thursday, July 9th, 2009

Vote: 5-4

Opinion: 166 Wn.2d 543 (2009)

Court: Alexander4 Court (2008-2009)

Alexander

Johnson

Madsen

Sanders
(Dissent)

Chambers

Owens

Fairhurst
(Dissent)

Johnson
(Majority)

Stephens