In Re Detention of Gordon

10 P.3d 500
CourtCourt of Appeals of Washington
DecidedOctober 16, 2000
Docket42947-7-I
StatusPublished
Cited by12 cases

This text of 10 P.3d 500 (In Re Detention of Gordon) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Detention of Gordon, 10 P.3d 500 (Wash. Ct. App. 2000).

Opinion

10 P.3d 500 (2000)
102 Wash.App. 912

In re the DETENTION OF Kenneth GORDON.
State of Washington, Respondent,
v.
Kenneth Gordon, Appellant.

No. 42947-7-I.

Court of Appeals of Washington, Division 1.

October 16, 2000.

David Hirsch, Seattle, for Appellant.

Michele Hauptman, King County Prosecutor, Appellate Unit, Seattle, for Respondent.

AGID, C.J.

Kenneth Gordon appeals his commitment as a sexually violent predator under RCW 71.09 on numerous grounds. Because none of Gordon's arguments merit reversal, we affirm. The State raises a cross assignment of error about the meaning of "secure facility" in RCW 71.09. We reject the State's argument, but that determination has no effect on Gordon's present order of commitment.

FACTS AND PROCEDURAL HISTORY

Gordon was convicted of second degree rape and second degree robbery in 1984 and *501 received two 10 year concurrent sentences. Before his term of confinement expired in 1997,[1] the State filed a sexually violent predator civil commitment petition under RCW 71.09.030. A "sexually violent predator" is "any person 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 if not confined in a secure facility."[2] A superior court judge determined there was probable cause to believe Gordon is a sexually violent predator, and a trial was held on the issue in April and May of 1998.

At trial, defense and State experts generally agreed that Gordon's diagnoses are schizophrenia,[3] antisocial personality disorder, and polysubstance abuse disorder,[4] but disagreed on the extent to which these conditions make Gordon likely to engage in predatory acts of sexual violence in the future. The jury found that Gordon is a sexually violent predator under RCW 71.09 and no less restrictive alternatives to total confinement were appropriate, and the trial court entered an order committing Gordon to the custody of the Department of Social & Health Services (DSHS) pursuant to RCW 71.09.060(1). Gordon appeals that order.

DISCUSSION

Eligibility for Commitment Under RCW 71.05

Gordon first contends that he could not be committed under RCW 71 .09, the sexually violent predator act (SVPA), because he suffers from a schizophrenia-type condition that qualifies him for commitment under RCW 71.05, the involuntary treatment act (ITA).[5] Essentially Gordon argues that if an individual has a major mental illness that could serve as the basis for commitment under the ITA, that person automatically qualifies for ITA commitment and is therefore per se ineligible for SVPA commitment. We disagree.

Even if schizophrenia were Gordon's only diagnosed condition, that would not automatically make him eligible for ITA commitment and consequently ineligible for SVPA commitment.[6] Indeed, despite Gordon's schizophrenia, the record is clear that he was not eligible for commitment under the ITA. All three experts at Gordon's probable cause hearing testified that he was ineligible for ITA commitment largely because his schizophrenia had been stabilized by medication. One of the defense's own experts, Dr. Mark Seling, staff psychologist in the adult psychiatric unit at Western State Hospital (WSH), testified that although he had evaluated Gordon for ITA commitment, he recommended against it because Gordon's schizophrenia had been stabilized by medication. The defense also called Dr. Stuart Wise, who testified that Gordon was not eligible for commitment under RCW 71.05 because "he clearly has a mental disorder, but he's not an eminent [sic] danger to himself, he's not an eminent [sic] danger to others." The State's expert, Dr. Barry Maletzsky, agreed that Gordon was not committable under the ITA because he did not pose an imminent danger to himself or others. Finally, defense counsel told the judge that "the evidence will show that [Gordon] is not presently committable under 71.05 because *502... he's been taking his medications." No different evidence was presented at the later trial.[7]

Because Gordon was ineligible for commitment under RCW 71.05, we hold the State's decision to pursue commitment under RCW 71.09 was proper. Our conclusion is bolstered by the legislative findings in RCW 71.09.010, which read in pertinent part: "The legislature finds that a small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for the existing involuntary treatment act, chapter 71.05 RCW...."[8] The Legislature plainly intended the SVPA to apply in just the sort of situation Gordon's case presents, i.e., when an individual has a mental condition that could be the basis for commitment under the ITA but, for whatever reason, commitment under that statute is either inappropriate or impossible.[9] We recognize the peculiar fact that Gordon's ineligibility for ITA commitment may be temporary to the extent it hinges on his compliance with and the effects of his medication. But endorsing Gordon's argument would be tantamount to instructing the State it should have released Gordon without pursuing SVPA commitment despite the fact that evidence existed to persuade a reasonable jury beyond a reasonable doubt that Gordon is a sexually violent predator. That result would be absurd and contravene the Legislature's purposes in enacting the SVPA.[10]

Jury Instructions

Relying on Kansas v. Hendricks,[11] Gordon claims the trial court erred by refusing to instruct the jury that commitment required proof that his alleged mental abnormality made it difficult, if not impossible, for him to control his dangerous behavior. Gordon's argument fails.

In Hendricks, the Supreme Court considered a substantive due process challenge to the definition of "mental abnormality" in Kansas' Sexually Violent Predator Act.[12] In its analysis, the Court made it clear that civil commitment is appropriate only for individuals whose dangerousness is, to some significant degree, beyond their control, which is determined by linking that dangerousness to the presence of a particular condition, such as a mental abnormality:

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10 P.3d 500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-detention-of-gordon-washctapp-2000.