Facts: Following a series of convictions for sex offenses, petitioner David McCuistion was committed indefinitely as a sexually violent predator pursuant to Washington Revised Code §71.09. After a subsequent reevaluation of McCuistion’s mental health as required by §71.09, the Superior Court for Pierce County concluded that McCuistion had failed to establish probable cause to believe his condition had changed and ordered that he remain committed. McCuistion appealed, asserting that §71.09.090, which establishes procedures for proceedings reviewing the status of those committed as sexually violent predators, violated his constitutional right to due process insofar as it unduly limited the bases for challenging a sexually violent predator’s continued commitment. The Washington Court of Appeals affirmed the continuation of McCuistion’s commitment. McCuistion appealed this decision to the Supreme Court of Washington.

Question(s): Do the procedures established by §71.09.090 for annual reviews of the status of those committed as sexually violent predators violate the right to due process?

Conclusion: Justice Stephens’ opinion for the Court ruled that §71.09.090 violates the right to due process by directing courts to consider only whether an individual committed as a sexually violent predator has undergone specific physiological or treatment-based changes in determining whether they should continue to be committed. Thus, as Washington Revised Code §71.09.060(1), which governs initial commitment proceedings, imposes a higher burden of proof upon the state and requires that the state prove beyond a reasonable doubt that a person subject to commitment suffers from a mental abnormality or personality disorder making them likely to engage in predatory acts of sexual violence if not committed, the Court concluded that §71.09.090 could potentially allow the continued commitment of a person who is no longer dangerous and therefore was not sufficiently narrowly tailored to the state’s compelling interest in committing sexually violent predators. Thus, the Court reversed the trial court’s decision that McCuistion continue to be committed and remanded the case for a new hearing.

Docket No. 81644-1

Petitioner: David McCuistion

(Counsel: Nancy P. Collins and David L. Donnan)

Respondent: State of Washington

(Counsel: Sarah Sappington, Joshua Choate, Malcolm Ross, Todd Richard Bowers, and Jeffrey Todd Even)

Argument: Tuesday, October 20, 2009 1:30pm

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

Decided: Thursday, September 2nd, 2010

Prevailing Party: David McCuistion (Petitioner)

Vote: 5-4

Citation: Pending

Court: Madsen1 Court (2010-)

Alexander

Johnson

Madsen

Sanders
(Concurs)

Chambers

Owens
(Dissent)

Fairhurst

Johnson

Stephens
(Majority)