IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Detention of No. 85652-9-I RANDY RYAN ROSS. DIVISION ONE
PUBLISHED OPINION
DÍAZ, J. — The State twice charged Ross with a sexually violent offense.
Each time, the court found Ross incompetent and dismissed the charges.
Following the dismissal of the second charged offense, the State filed a sexually
violent predator (SVP) petition. Ross moved the court to empanel a jury to make
the required preliminary determination whether he committed that crime, which
motion the court denied. Ross sought, and this court granted, discretionary review.
We hold that neither RCW 71.09.060(2) nor due process requires a jury, in this
preliminary stage of an SVP proceeding, to determine whether Ross committed
the predicate act(s). Thus, we affirm the denial of Ross’ motion, and remand this
matter to proceed consistent with this opinion.
I. BACKGROUND
In 2015, the State charged Ross with two counts of child molestation in the
first degree and rape of a child in the second degree. In 2016, the trial court found No. 85652-9-I/2
Ross not competent to stand trial and his competency non-restorable. The court
dismissed the charges without prejudice and committed Ross to Western State
Hospital.
In a completely separate incident seven years later, in 2022, the State
charged Ross with one count of attempted child molestation in the first degree. In
2023, the trial court dismissed the charges against Ross, finding him still unable to
assist in his defense and thus incompetent. The same day, the State filed a petition
to commit Ross as an SVP per chapter 71.09 RCW. The State stipulated it would
bring its petition under only the 2022 charge.
Ross moved the court for an order empaneling a jury to make the
preliminary determination required by the statute that he committed the 2022
charge. The trial court denied the motion, finding chapter 71.09 RCW envisions
the court and not a jury making that determination. Ross then petitioned for
discretionary review, which a commissioner of this court granted.
II. ANALYSIS
A. Whether RCW 71.09.060(2) Requires a Jury to Determine Whether the Respondent Committed the Charged Act(s)
1. Overview of Sexually Violent Predator Proceedings
“The legislature has established a civil involuntary commitment system for
individuals who are found to be an SVP.” In re Det. of Reyes, 184 Wn.2d 340,
343, 358 P.3d 394 (2015). “The statute defines a ‘sexually violent predator’ as a
‘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
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secure facility.’” Id. (quoting RCW 71.09.020(18)).
There are several classes of persons who are subject to the SVP petition
process. RCW 71.09.030(1). Relevant here is the class of persons “who has been
charged with a sexually violent offense and who has been determined to be
incompetent to stand trial [, and] is about to be released, or has been released,
pursuant to RCW 10.77.086(7).” RCW 71.09.030(1)(c).
The charges brought by the State in Ross’ 2015 and 2022 cases qualify as
sexually violent offenses under RCW 71.09.020(18). And, thus, Ross falls within
the class of persons who could be committed under RCW 71.09.030(1)(c).
RCW 71.09.060 lays out a three-step procedure for a court to undertake
when presented with an SVP petition under RCW 71.09.030(1)(c).
First, under RCW 71.09.060(2), the court holds a preliminary hearing, at
which:
the court shall first hear evidence and determine whether the person did commit the act or acts charged if the court did not enter a finding prior to dismissal under RCW 10.77.086(7).
RCW 71.09.060(2) (emphasis added).
In such a “hearing,” “the rules of evidence applicable in criminal cases shall
apply, and all constitutional rights available to defendants at criminal trials, other
than the right not to be tried while incompetent, shall apply.” Id. (emphasis added).
“If, after the conclusion of the hearing on this issue, the court finds, beyond a
reasonable doubt, that the person did commit the act or acts charged, it shall enter
a final order [with specific findings to be discussed later], appealable by the person,
on that issue, and may proceed to consider whether the person should be
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committed pursuant to this section.” Id.
Second, if the person “did commit” the acts charged as determined in the
hearing above, RCW 71.09.060(1) then permits “a court or a jury” to determine
whether, beyond a reasonable doubt, an individual meets the statutory definition
of an SVP; someone who “would be likely to engage in predatory acts of sexual
violence if not confined in a secure facility” because of a mental health disorder.
RCW 71.09.060(1) (emphasis added). The statute implicitly refers to this second
determination as a “trial.” Id.
Third and finally, “[i]f 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,”
unless a less restrictive option is in the best interest of the person and community
safety. Id.
2. Principles of Statutory Interpretation
When reviewing a statute, “[w]e begin with the statute’s plain language. ‘If
the plain language is subject to only one interpretation, our inquiry ends because
plain language does not require construction.’” Matter of C.A.S., 25 Wn. App. 2d
21, 26, 522 P.3d 75 (2022) (quoting HomeStreet, Inc. v. Dep’t of Revenue, 166
Wn.2d 444, 451, 210 P.3d 297 (2009)). “A statute is ambiguous if ‘susceptible to
two or more reasonable interpretations,’ but ‘a statute is not ambiguous merely
because different interpretations are conceivable.’” HomeStreet, 166 Wn.2d at
452 (quoting State v. Hahn, 83 Wn. App. 825, 831, 924 P.2d 392 (1996)).
4 No. 85652-9-I/5
Our goal in reviewing statutory language is “‘to ascertain and carry out the
intent of the Legislature.’” In re Det. of Anderson, 185 Wn.2d 79, 85, 368 P.3d 162
(2016) (quoting In re Det. of Martin, 163 Wn.2d 501, 506, 182 P.3d 951 (2008)).
We discern the meaning “of a statutory provision . . . ‘from all that the Legislature
has said in the statute and related statutes which disclose legislative intent about
the provision in question.’” Id. at 87 (quoting Dep’t of Ecology v. Campbell &
Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002)).
Taking these principles together, “it is settled that the plain meaning of a
statute is determined by looking not only ‘to the text of the statutory provision in
question,’ but also to ‘the context of the statute in which that provision is found,
related provisions, and the statutory scheme as a whole.’” State v. Hurst, 173
Wn.2d 597, 604, 269 P.3d 1023 (2012) (quoting State v. Ervin, 169 Wn.2d 815,
820, 239 P.3d 354 (2010)).
“Another well-settled principle of statutory construction is that ‘each word of
a statute is to be accorded meaning.’” State v. Roggenkamp, 153 Wn.2d 614, 624,
106 P.3d 196 (2005) (quoting State ex rel. Schillberg v. Barnett, 79 Wn.2d 578,
584, 488 P.2d 255 (1971)). “‘[T]he drafters of legislation . . . are presumed to have
used no superfluous words and we must accord meaning, if possible, to every word
in a statute.’” Id. (alteration in original) (quoting State v. J.P., 149 Wn.2d 444, 450,
69 P.3d 318 (2003)).
In examining such laws, we must keep in mind that “statutes that involve a
deprivation of liberty must be strictly construed.” In re Det. of Hawkins, 169 Wn.2d
796, 801, 238 P.3d 1175 (2010). “Strict construction requires that, ‘given a choice
5 No. 85652-9-I/6
between a narrow, restrictive construction and a broad, more liberal interpretation,
we must choose the first option.’” Id. (quoting Pac. Nw. Annual Conference of
United Methodist Church v. Walla Walla County, 82 Wn.2d 138, 141, 508 P.2d
1361 (1973)).
Finally, we review such questions of statutory interpretation de novo. Echo
Global Logistics, Inc. v. Dep’t of Revenue, 22 Wn. App. 2d 942, 946, 514 P.3d 704
(2022).
3. Discussion
Ross argues that strict construction of RCW 71.09.060 “guarantees” Ross
a trial by jury at the preliminary stage of SVP proceedings. Specifically, he avers
that, because the proceeding described in RCW 71.09.060(2) mandates that “all
constitutional rights available to defendants at criminal trials . . . shall apply,” he is
entitled to a jury determining that issue in the same way any criminal defendant is
entitled to a jury trial under the Sixth Amendment. Ross claims the court and
State’s interpretation of the statute, which permits a judge alone to make that
determination, effectively adds the word “bench” to the requirement that “all
constitutional rights available to defendants at criminal trials” applies to these
proceedings. (Emphasis added). We disagree for three overarching but
interrelated reasons.
First, RCW 71.09.060 does not define the term “court.” RCW 71.09.060.
“When a statutory term is undefined, the court may look to a dictionary for its
ordinary meaning.” In re Estate of Blessing, 174 Wn.2d 228, 231, 273 P.3d 975
(2012). Merriam-Webster defines “court” as “a judge or judges in session.”
6 No. 85652-9-I/7
MERRIAM-W EBSTER ONLINE DICTIONARY (last visited April 10, 2024),
https://www.merriam-webster.com/dictionary/court). Thus, as a matter of plain
language, the legislature meant “judge” when it used the word “court.”
In response, Ross argues that “the common meaning of ‘court’ includes
both judge and jury.” In support, Ross offers a panoply of sources of definitions
for the meaning of “court,” including:
• an internet browser search engine, which defines “court” as a “tribunal presided over by a judge, judges, or a magistrate”;
• Encyclopedia Britannica, which defines “court” as a “body of persons having judicial authority to hear and resolve disputes”; and
• Black’s Law Dictionary, which defines, not “court” but, “trier of fact” as “either a judge or a jury.”
We decline to rely on these sources, first, because we “may consider the
plain and ordinary meaning of [a] term in a standard dictionary.” State v. Fuentes,
183 Wn.2d 149, 160, 352 P.3d 152 (2015) (emphasis added). Addressing each in
turn, it is patently obvious that an internet browser search engine and an
encyclopedia are not standard dictionaries. Further, the Encyclopedia Britannica
citation is to an article about the functions of courts rather than the meaning of the
term “court” itself. Brian P. Smentkowski, James L. Gibson & Delmar Karlen,
Court, BRITANNICA (Apr. 17, 2024), https://www.britannica.com/topic/court-law
[https://perma.cc/J9NX-SKSL]. Moreover, both of these first two definitions do not
mention a “jury” at all and, thus, do not support Ross’ claim that a “court” could
mean a jury. Finally, while Black’s Law Dictionary may be a standard dictionary,
Ross provided the definition of a “trier of fact” instead of the definition of “court.” In
short, none of these sources offered by Ross support his proposed definition of
7 No. 85652-9-I/8
“court” or disturb our reliance on Merriam-Webster.
Ross further argues that, even if we assume “court” means only a judge,
the specific language of RCW 71.09.060(1) ensuring “all [criminal] constitutional []
[trial] rights” controls over the more general word “court.” However, only if a statute
is ambiguous do courts “resort[] to [such] principles of statutory construction . . .”
Taylor v. Burlington N.R.R. Holdings, Inc., 193 Wn.2d 611, 617, 444 P.3d 606
(2019). Here the dictionary definition of the term “court” as “judge or judges in
session” obviates the need to avail ourselves of this principle.
As to our second overarching reason, we must read the two sections of
RCW 71.09.060 in relation to each other to understand the “context” of the
provisions in question. Hurst, 173 Wn.2d at 604 (quoting Ervin, 169 Wn.2d at 820).
When we do so, it becomes clear that sections (1) and (2) of RCW 71.09.060
expressly distinguish when a task is the role of the “court” or the role of the “court
or the jury.”
Specifically, following the provisions reviewed above, RCW 71.09.060(1)
states that:
If the court or unanimous jury decides that the state has not met its burden of proving that the person is a sexually violent predator, the court shall direct the person’s release.
RCW 71.09.060(1) (emphasis added). Similarly, the next sentence delineates
distinct steps for first the jury and then for the court to take, thus defining different
roles, temporally and functionally:
If the jury is unable to reach a unanimous verdict, the court shall declare a mistrial and set a retrial.
Id. (emphasis added). It nearly goes without saying that juries do not direct a
8 No. 85652-9-I/9
person’s release or declare mistrials in our legal system. Thus, in this provision,
the legislature carved out a role for the jury and a separate role for the court.
In contrast, section (2) of the statute specifically and repeatedly describes
a role for “the court” with no mention of a jury. Again, it is “the court [which] shall
first hear evidence and determine whether the person did commit the act or acts
charged . . .” RCW 71.09.060(2) (emphasis added). Likewise, it is the court which
“[a]fter hearing evidence on this issue . . .” shall make specific findings on whether
the person “did commit the act or acts charged” and other findings. Id. And finally,
it is the court at “the conclusion of the hearing” which “shall enter a final order.” Id.
Unlike in section (1), none of the actions set out in section (2) mention any role for
a jury. And, again, juries do not enter “final orders” in our legal system.
Moreover, it is clear that the legislature intended the provisions of this
statute to be read together. The first sentence of section (2) directly refers the
reader back to section (1), stating: “if . . . commitment is sought . . . pursuant to
subsection (1) of this section.” Id. That sentence also connects the two
subsections with the conjunction “and.” We do not consider these connections
superfluous or meaningless, giving effect to all language used. Linville v. Dep’t of
Ret. Sys., 11 Wn. App. 2d 316, 321, 452 P.3d 1269 (2019). Indeed, at oral
argument on appeal, counsel for Ross acknowledged the two provisions of the
statute “work together.” 1 Therefore, the two sections are properly read in
1 Wash. Ct. of Appeals oral argument, In re the Detention of Randy Ross, No.
85652-9-I (March 7, 2024) at 1 min., 54 sec. through 2 min., 15 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals-2024031199/?eventID=2024031199. 9 No. 85652-9-I/10
conjunction with each other.
It is a “fundamental rule of statutory construction . . . that the legislature is
deemed to intend a different meaning when it uses different terms.” Roggenkamp,
153 Wn.2d at 625. “Because the legislature chose different terms, we must
recognize that a different meaning was intended by each term.” Id. at 626. Here,
the full context of the statute makes clear that certain tasks are within the purview
of the “court” without the jury, such as directing a respondent’s release, declaring
a mistrial, making sundry findings, and enacting “final orders.” RCW 71.09.060(1),
(2). And, the legislature makes equally clear the circumstances when the jury
plays its role as fact-finder in determining when someone qualifies as an SVP
subject to detention. RCW 71.09.060(1).
In short, we “adopt the sense of the words which best harmonizes with the
context.” Roggenkamp, 153 Wn.2d at 623 (quoting McDermott v. Kaczmarek, 2
Wn. App. 643, 648, 469 P.2d 191 (1970)). And we achieve interpretive harmony
when we respect the legislature’s manifest intent to differentiate between the role
of the jury in parts of section (1) and the unitary role of the court in section (2).
As to our third overarching reason, Ross again argues that the State is
reading in the term “bench” in the provision that grants “all the constitutional rights
available to defendants at criminal trials.” Ross’ argument assumes that this
preliminary hearing is the type of hearing that would, as a matter of constitutional
right, be determined by a jury at a criminal trial. We disagree (a) because this type
of preliminary hearing is not determined by a jury pursuant to a “constitutional right
available to defendants at criminal trials” and (b) because ample authority has
10 No. 85652-9-I/11
established SVP proceedings are not criminal trials at all.
Unlike in RCW 71.09.050 and .060(1), the process set out in RCW
71.09.060(2) is not the “trial” as to whether a person is an SVP. Cf. RCW
71.09.060(1) (permitting a mistrial and retrial). Instead, as Ross acknowledges,
the process in section (2) is a preliminary “hearing” to determine whether the
commission of the acts underlying the charge of a sexually violent crime occurred.
Because the respondent to the SVP petition is incapacitated, by definition, the
purpose of this hearing is not to assign guilt or culpability for the crime, but simply
to determine whether the actions occurred and to make additional evidentiary
findings. RCW 71.09.060(2). 2
This preliminary hearing in an SVP proceeding is comparable to a court’s
determination on a motion to dismiss, or any initial hearing on the relevance of
certain evidence. See, e.g., CrR 8.3(c) (“The court shall grant the motion if there
are no material disputed facts and the undisputed facts do not establish a prima
facie case of guilt.”); ER 404(b). Such hearings are not a trial at all, where the
conclusion would be an acquittal, a finding of guilt, or even the imposition of
incarceration, but rather are hearings on a specific evidentiary issue. Because
juries do not determine motions to dismiss or motions to exclude certain evidence,
2 These additional findings include commentary on the quality of the hearing itself,
namely: “the extent to which the person’s incompetence or developmental disability affected the outcome of the hearing, including its effect on the person’s ability to consult with and assist counsel and to testify on his or her own behalf, the extent to which the evidence could be reconstructed without the assistance of the person, and the strength of the prosecution’s case.” RCW 71.09.060(2). 11 No. 85652-9-I/12
and thus such hearings do not involve a “constitutional right available to
defendants at criminal trials,” the preliminary hearing in RCW 71.09.060(2) likewise
does not implicate the constitutional right to a jury determination.
Moreover, “Washington courts do not characterize SVP proceedings as
quasi-criminal and have consistently held that the SVP statute is resolutely civil in
nature.” In re Det. of Reyes, 184 Wn.2d at 347. As such, “[w]e have repeatedly
relied on this distinction as a basis for declining to extend certain rules from criminal
law to SVP proceedings.” Id. We decline to extend the right to a jury trial to this
preliminary determination because, as analyzed herein, that is clearly not the intent
of our legislature.
Citing to In re Det. of Greenwood, 130 Wn. App. 277, 122 P.3d 747 (2005),
Ross argues the initial SVP hearing for this class of persons should include the
same rights as criminal trials because the “intent” of the statute [is] “to protect Ross’
liberty.” However, that argument overstates the intent of the hearing and conflicts
with this court’s holding that “the requirement of the initial hearing is not an end in
itself as with a criminal trial, but a part of a two-step process designed to protect
incompetent individuals.” Greenwood, 130 Wn. App. at 285. That is, as in other
cases surveyed in Greenwood, the hearing provides an important but limited
gatekeeping mechanism intended to protect the accused from unsubstantiated
claims, which then may lead to the second step in the process, a further finding
that the State proved beyond a reasonable doubt that the respondent met the
statutory definition of an SVP and then later as the third step under the statute, the
trial court may deprive them of liberty by ordering detention on the basis of the
12 No. 85652-9-I/13
jury’s finding. Id.
Stated otherwise, and as Ross acknowledges, a finding by a jury that the
State demonstrated that he meets the definition of an SVP would not constitute
punishment for the predicate crime. Indeed, punishment for that crime may still
occur at a later date if, for example, Ross’ competency is restored, the State opts
to refile the criminal charges, and he is convicted. Instead, as Ross also concedes,
an SVP petition initiates a civil proceeding to incapacitate the respondent from
future offenses and to rehabilitate them so they are safe to re-enter the community.
See In re Det. of Reyes, 184 Wn.2d at 343; In re Young, 122 Wn.2d 1, 46, 857
P.2d 989 (1993).
Thus, because this preliminary hearing does not play the role of a traditional
trial, in procedure or outcome, and courts consistently have held that petitions
seeking to detain someone under ch. 71.09 RCW do not initiate criminal
proceedings, Ross’ argument fails. 3
For these reasons, we conclude that the court here did not err in denying
Ross’ motion for a jury to determine whether he “committed the act.” RCW
71.09.060(2).
B. Whether Due Process Requires a Jury to Determine if a Predicate Act Occurred
3 Finally, both before the trial court and here, Ross relies heavily on the simple fact
that in Greenwood a jury determined whether the predicate act occurred. 130 Wn. App. at 285. While that is true, on appeal, he concedes that the reviewing court there was not presented with the question, and thus did not consider, whether that was the appropriate process. Accordingly, Greenwood is silent about who the fact finder should be for the hearing envisioned by RCW 71.09.060(2), and, thus, does not control here. 13 No. 85652-9-I/14
“‘It is well settled that civil commitment is a significant deprivation of liberty,
and thus individuals facing SVP commitment are entitled to due process of law.’”
In re Det. of Hatfield, 191 Wn. App. 378, 396, 362 P.3d 997 (2015) (quoting In re
Det. of Morgan, 180 Wn.2d 312, 320, 330 P.3d 774 (2014)). To determine whether
a proceeding violates an individual’s procedural right to due process, we consider
three factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Id. at 396-397 (quoting Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893,
903, 47 L. Ed. 2d 18 (1976)).
“‘When this three-factor test is applied in the context of SVP civil
commitment cases, the first factor often weighs in favor of the individual because
a person has “a significant interest in his [or her] physical liberty.’” Id. at 396
(alteration in original) (quoting In Re Det. Morgan, 180 Wn.2d at 330). “The third
factor often weighs in favor of the State because the ‘State has a compelling
interest both in treating sex predators and protecting society from their actions.’”
Id. at 397 (quoting In Re Det. Morgan, 180 Wn.2d at 322). “Thus, the balance
often turns on the second factor.” Id.
We hold as the State concedes, that the first factor weighs in favor of Ross
because he has “a significant interest in his . . . physical liberty.” Id. at 396.
As to the third factor, the State argues its interest in these hearings is very
high because “the State’s interest lies in an orderly, logical process of factfinding.”
14 No. 85652-9-I/15
See State v. McCuistion, 174 Wn.2d 369, 394, 275 P.3d 1092 (2012) (“the State
has a substantial interest in encouraging treatment, preventing the premature
release of SVPs, and avoiding the significant administrative and fiscal burdens
associated with evidentiary hearings.”). Ross does not contest this particular
interest of the State, but rather asserts that the State “has an interest in an accurate
and just decision . . . [i]n other words, the State does not benefit from an erroneous
denial of liberty.” Ross, however, does not explain why the interests he identifies
are in conflict with those offered by the State. Regardless, because of the State’s
strong interests in protecting our communities and offering treatment and
rehabilitation opportunities, we hold that this factor weighs in favor of the State.
The second Mathews factor is, as expected, the most disputed question.
Ross argues that the one person’s determination that he meets the definition of an
SVP, made without the benefits of a jury, risks procedural error. Ross supports
his argument with cases supporting the right to community participation via jury for
misdemeanor trials. Ross offers no authority in the context of SVP commitment
proceedings.
On the contrary, our Supreme Court has expressly held that, “[g]iven the
extensive procedural safeguards in chapter 71.09 RCW, the risk of an erroneous
deprivation of liberty under the challenged amendments is low.” McCuistion, 174
Wn.2d at 393. That court so held because, “before the State may commit an
individual as an SVP, it must hold a full, evidentiary trial at which the individual
enjoys an array of procedural protections . . .” Id. at 393 (quoting RCW 71.09.040-
.060, .020(7)). Even if there is some risk of allowing a singular decision-maker to
15 No. 85652-9-I/16
conduct the preliminary hearing, the resulting harm is not the loss of liberty; a
respondent may lose their liberty only if a unanimous jury finds that the State
proved beyond a reasonable doubt that the respondent meets the definition of an
SVP in the second step set out in the statute and a determination is made in the
third step that no less restrictive option is appropriate. RCW 71.09.060(1). Our
Supreme Court has held that when the statutory procedures are followed, the risk
of erroneous deprivation of liberty is low.
Although Ross has a significant liberty interest, the State has similarly
important interests and there are procedural safeguards in the SVP trial to
minimize the risk of erroneous deprivation of actual liberty. Our consideration
under the Mathews factors weighs in favor of a conclusion that the statutory
procedures set out in RCW 71.09.060, including a judicial determination at the
preliminary stage under subsection (2), do not deprive Ross of his right to
procedural due process.
III. CONCLUSION
We affirm the superior court.
WE CONCUR: