In Re the Care & Treatment of Norton

123 S.W.3d 170, 2004 WL 67949

Opinions

RONNIE L. WHITE, Chief Justice.

I.

The State of Missouri petitioned the probate division of the circuit court seeking to confine Mr. Norton as a sexually violent predator (SVP).¹ The court found probable cause to believe that Mr. Norton might be a SVP, and following a jury trial he was committed to the Department of Mental Health (DMH) for control, care, and treatment as a SVP. Mr. Norton appealed claiming due process and equal protection violations, and the Court of Appeals, Eastern District, transferred the case to this Court pursuant to article V, section 11.

II.

Mr. Norton asserts that he was denied due process for not being advised of his right to counsel during his evaluation for the “End of Confinement” report prepared pursuant to section 632.483.² Mr. Norton argues that section 632.492 guarantees that any person subject to the SVP evaluation “shall be entitled to assistance of counsel” during his or her interview because the evaluation is part of the “proceedings pursuant to sections 632.480 to 632.513.”

“The primary rule of statutory construction is to ascertain the intent of the legislature from the language used, to give effect to the intent if possible, and to consider the words in their plain and ordinary meaning.”³ The term “proceeding,” in the context of legal action, means “the course of procedure in a judicial action or in a suit in litigation; legal action; a particular action at law or case in litigation.”⁴ A “proceeding” refers to a judicial action,⁵ and the SVP proceeding is a statutorily created civil action.⁶

Rule 53.01, entitled “Commencement of Civil Action” states, “A civil action is commenced by filing a petition with the court.” Mr. Norton’s due process right to the assistance of counsel vested at the time the Attorney General filed a petition with the probate division pursuant to section 632.486. This initiated the “proceedings” pursuant to sections 632.480 to 632.513. There was no violation of due process rights when Mr. Norton was interviewed in the absence of legal counsel for the end of confinement report, because this evaluation was not part of the proceedings pursuant to sections 632.480 to 632.513.

III.

Mr. Norton also raises three equal protection claims in association with his civil commitment proceeding. “In deciding whether a statute violates the Equal Protection Clause, this Court engages in a two-part analysis. The first step is to determine whether the classification operates to the disadvantage of some suspect class or impinges upon a fundamental right explicitly or implicitly protected by the Constitution. If so, the classification is subject to strict scrutiny and this Court must determine whether it is necessary to accomplish a compelling state interest. If not, review is limited to determining whether the classification is rationally related to a legitimate state interest.”⁷

“A suspect classification exists where a group of persons is legally categorized and the resulting class is ‘saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.’ ”⁸ While sexually violent predators are not members of a suspect class,⁹ civil commitment of persons so classified impinges on the fundamental right of liberty.¹⁰ Strict scrutiny review applies to Mr. Norton’s equal protection claims. “To pass strict scrutiny review, a governmental intrusion must be justified by a ‘compelling state interest’ and must be narrowly drawn to express the compelling state interest at stake.”¹¹

IV.

Mi*. Norton asserts that he was denied equal protection because being denied counsel during his end of confinement interview creates differential treatment compared to other persons rendered dangerous by a mental disorder who are immediately entitled to counsel under sections 632.300 to 632.325. The State correctly points out, however, that this argument is fatally flawed because even assuming, arguendo, that other persons rendered dangerous by a mental disorder compose a comparable class to that of the SVP, there is no differential treatment. The statutory scheme for the described offenders provides counsel in the same time frame as that of the SVP, after probable cause for detention and evaluation has been determined, and after the person has become subject to the court as a party to a petition or application.

y.

Mr. Norton’s second equal protection claim is that the court erred by not allowing consideration of less restrictive alternatives to the “secure confinement” of those adjudicated as sexually violent predators (SVPs).¹² Appellant maintains that two other similar classes of individuals facing civil commitment are allowed this consideration for detention and treatment: (1) those persons presenting a risk of serious harm to himself or others pursuant to section 632.355; and (2) those persons tried and acquitted on the basis of a mental disease or defect pursuant to section 552.040.4. Mr. Norton directs this Court to the state of Washington’s SVP laws allowing alternatives in confinement under what he believes is the constitutionally correct statutory scheme for detention and treatment of SVPs.¹³

The State argues that SVPs are not a suspect class and that there is a rational basis for maintaining individuals classified as SVPs in secure confinement because of the high incidence of recidivism of sex offenders. The State also contends that the annual review process, provided under section 632.498, allowing for discharge balances Mr. Norton’s rights with that of the need to protect the public.

While the State fails to argue the correct standard of review, this Court finds secure confinement of persons adjudicated to be SVPs, as provided in sections 632.480 to 632.513, is narrowly tailored to serve a compelling state interest. The State has a compelling interest in protecting the public from crime.¹⁴ This interest justifies the differential treatment of those persons adjudicated as sexually violent predators when, as determined by the legislature, such mental abnormality makes them distinctively dangerous because of the substantial probability that they will commit future crimes of sexual violence if not confined in a secure facility.¹⁵

The SVP act erects an elaborate, step-by-step procedure, conferring on the suspected predator a number of rights enjoyed by defendants in criminal prosecutions. Those rights include:

the right to a preliminary determination by the probate judge of whether probable cause exists to believe the suspected predator is a sexually violent predator (section 632.489.1); the right to contest an adverse probable cause determination at a hearing (section 632.489.2); the right to appear in person and be represented by counsel at the hearing (sections 632.489.2 and .3(1)); the right to present evidence and cross-examine adverse witnesses (section 632.489.3(2) and .3(3)); the right to a jury trial (section 632.492); the right to require the AG to prove beyond a reasonable doubt that the suspected predator is a sexually violent predator (section 632.495); and the right to have such determination made by unanimous verdict (section 632.495).¹⁶

If ruled to be a SVP, the person is committed to the DMH, which designates the secure facility to provide for the control, care and treatment of the individual.¹⁷ Annual examinations and court review are mandated to determine if the person’s mental abnormality has improved with treatment and if the individual remains likely to engage in violent sexual acts if released.¹⁸ The State, again, has the burden of proving beyond a reasonable doubt that the person’s mental abnormality has not improved and that it is not yet safe to release the SVP.¹⁹

Given the additional procedural safeguards afforded by Missouri’s civil confinement statutes, and the multiple opportunities for court review and dismissal from secure confinement, this Court finds that Missouri’s statutory scheme is narrowly tailored to promote the compelling interest of protecting the public from this small percentage of offenders.

VI.

In his final equal protection claim, Mr. Norton claims disparate treatment with the manner in which individuals are evaluated when suspected of being a SVP prior to the filing of the petition for confinement. At the time of Mr. Norton’s confinement proceedings, persons suspected of being a SVP, not already confined, received their initial evaluation from a licensed psychiatrist or psychologist pursuant to 632.484, whereas, under section 632.483, he, being already confined, received his initial evaluation from a licensed social worker.²⁰

Mr. Norton maintains that had he not been in custody, a determination by a psychiatrist or psychologist would have been required prior to the Attorney General being able to file the commitment petition. Mr. Norton asserts that the first psychiatrist to examine him, who was with the DMH, did not find he met the definition of a SVP. Consequently, according to Mr. Norton, had he received this examination first the State would have been unable to initiate the civil commitment proceedings against him.

The State responds by asserting that Mr. Norton failed to meet his burden to demonstrate that the state lacks a rational basis for allowing a professional other than a psychiatrist or psychologist to conduct the initial interview and evaluation pursuant to section 632.483.²¹ As noted earlier, however, Mr. Norton’s equal protection claim receives strict scrutiny review since the civil confinement statutes at issue have implicated the fundamental right to liberty. Nevertheless, this Court is not persuaded by Appellant’s argument.

The gravamen of Appellant’s equal protection claim concerns the timing of his evaluation by a qualified psychiatrist or psychologist. Both classes of persons subject to the civil commitment statutes, however, those already in confinement and those who are not, must receive'the evaluation of a qualified professional prior to their trial, and this evidence is presented to the court or jury. Additionally, section 632.489 allows for detained persons to be examined by a psychiatrist or psychologist of their own choosing in addition to the professional evaluation mandated by the DMH. All persons detained and evaluated under Missouri’s SVP statutory scheme are equally evaluated prior to the determination of their status as to whether or not they meet the definition of a SVP. There is no equal protection violation in association with the timing of the evaluation provided by the psychiatrist or psychologist.

VII.

The judgment is affirmed.

BENTON, LAURA DENVIR STITH, PRICE, TEITELMAN and LIMBAUGH, JJ., concur. MICHAEL A. WOLFF, J., concurs in separate opinion filed.

1

. Sections 632.480 to 632.513. All statutory references are to RSMo 2000 unless otherwise noted.

2

. Mo. Const, article I, section 10.

3

. Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 2003 WL 21386324*10 (Mo. banc 2003).

4

. Webster's Third New International Dictionary, Unabridged, Second College Edition, 1807 (1966).

5

. Brown v. Whitaker 926 S.W.2d 1, 4 (Mo.App.1996).

6

. In re Salcedo, 34 S.W.3d 862, 867 (Mo.App.2001) Superceded by statute on other grounds in Barlow v. State, 114 S.W.3d 328, 331 (Mo.App.2003).

7

. Etling v. Westport Heating & Cooling Services, Inc., 92 S.W.3d 771, 774 (Mo. banc 2003); Missourians for Tax Justice Educ. Project v. Holden, 959 S.W.2d 100, 103 (Mo. banc 1997). See also San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Maher v. Roe, 432 U.S. 464, 470, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977). Suspect classes include such classes as race, national origin or illegitimacy. Id.

8

. Holden, 959 S.W.2d at 103; Rodriguez, 411 U.S. at 28, 93 S.Ct. 1278.

9

. State ex rel. Nixon v. Askren, 27 S.W.3d 834, 842 (Mo.App.2000).

10

. Freedom from physical restraint is a fundamental right. Heller v. Doe, 509 U.S. 312, 113 S.Ct. 2637, 125 L.Ed.2d 257, 337 (1993); Vitek v. Jones, 445 U.S. 480, 491-92, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980); Foucha v. Louisiana, 504 U.S. 71, 86, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). Missouri's General Assembly evidently conferred additional rights on suspected predators in its civil commitment statutes because, "even in civil proceedings for involuntary commitment,” the person whose commitment is sought has a "liberty [interest] protected by the Due Process Clause from arbitrary governmental action.” Salcedo, 34 S.W.3d at 867, citing to, Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997).

11

.Herndon v. Tuhey, 857 S.W.2d 203, 211 (Mo. banc 1993), citing to Roe v. Wade, 410 U.S. 113, 155, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). See also Apthekerv. Secretary of State, 378 U.S. 500, 508-09, 84 S.Ct. 1659, 12 L.Ed.2d 992, (1964).

12

. See section 632.495.

13

. See In re Young, 122 Wash.2d 1, 857 P.2d 989 (1993).

14

. See Foucha, 504 U.S. at 81, 112 S.Ct. 1780; De Veau v. Braisted, 363 U.S. 144, 155, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (1960).

15

.Section 632.480(5). See also State v. Post, 197 Wis.2d 279, 321-23, 541 N.W.2d 115 (1995). A "mental abnormality” is defined as "a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.” See Section 632.480(2).

16

. Salcedo, 34 S.W.3d at 867.

17

. Section 632.495.

18

. Section 632.498. An individual so committed can also petition the court at any time for discharge.

19

. Section 632.498.

20

. Section 632.483 was amended, effective August 28, 2002 by S.B. 969 to require an initial determination by a psychiatrist or a psychologist, as defined in section 632.005, as to whether or not the person meets the definition of sexually violent predator. Section 632.483.2(3).

21

. The State proffers three reasons as to why there is a rational distinction between these two sections regulating the civil commitment of SVPs. First, those persons subject to review under section 632.483 are currently under the jurisdiction of the DMH and not suddenly being taken into custody as those subject to section 632.484. Secondly, the State maintains a clinical licensed social worker is competent to make the initial finding that a person "may” meet the definition of a “sexually violent predator.” Finally, the State asserts that a person subject to section 632.483 has generated other institutional records by virtue of his or her tenure with the department of corrections and/or the DMH whereas a person committed under the provisions of section 632.484 may not have additional documentation for review. This Court, however, determines that strict scrutiny applies.