IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Detention of No. 81523-7-I
L.H. DIVISION ONE
PUBLISHED OPINION
CHUN, J. — This case concerns a 90-day commitment hearing under the
“Involuntary Treatment Act” (ITA), ch. 71.05 RCW. While testifying, a mental
health professional read aloud medical chart notes written by other mental health
professionals about L.H.’s behavior during his 14-day involuntary treatment. L.H.
objected, claiming a due process right to confront and cross-examine the authors
of the notes. The trial court overruled the objection. And then, relying in part on
this testimony, it committed L.H. for 90 days. We affirm.
I. BACKGROUND
The trial court entered a 14-day commitment order under the ITA placing
L.H. into inpatient treatment at Cascade Behavioral Health Hospital. Cascade
then petitioned to commit L.H. for 90 more days. 1
1 At the expiration of the fourteen-day period of intensive treatment, a person may be committed for further treatment pursuant to RCW 71.05.320 if: ... (2) Such person was taken into custody as a result of conduct in which he or she attempted or inflicted physical harm upon the person of another or himself or herself, or substantial damage upon the property of No. 81523-7-I/2
During the 90-day commitment hearing, the State introduced testimony by
Jon Bibler, a crisis intervention specialist, who testified about L.H.’s threatening
behavior before commitment; Hyemin Song, a records custodian at Auburn
MultiCare, who testified about L.H.’s condition upon admission; and Claire
Coetzer, a clinical social worker at Cascade, who testified about L.H.’s condition
at Cascade during the 14-day treatment.
Coetzer testified that she diagnosed L.H. with schizoaffective disorder.
And she concluded that L.H. presented a substantial risk of physical harm to
others as evidenced by behavior that has caused harm or placed another in
reasonable fear of such harm.
Coetzer then said she would read aloud notes from L.H.’s medical chart
written by other mental health professionals during his 14-day treatment. L.H.’s
counsel stipulated that the notes qualified as business records for purposes of
the hearsay exception.
Coetzer read a note by a licensed practitioner nurse, which says that L.H.
yelled, cursed, acted sexually, threatened others, and postured. The same note
says staff and peers were afraid of him. L.H.’s counsel objected, saying that L.H.
had a due process right to confront the author of the note if the State intended to
use it as proof of an element of the State’s case. The trial court asked the State
others, and continues to present, as a result of a behavioral health disorder, a likelihood of serious harm. RCW 71.05.280. “‘Likelihood of serious harm’ means: . . . A substantial risk that: . . . physical harm will be inflicted by a person upon another, as evidenced by behavior which has caused such harm or which places another person or persons in reasonable fear of sustaining such harm.” RCW 71.05.020(35)(a)(ii).
2 No. 81523-7-I/3
if it was offering the note to prove an element of its case; the State declined to
answer definitively but said that the notes “confirm the assertion about the
likelihood of harm.” The court decided to admit the testimony about the note and
reserved ruling on whether it could consider the testimony in its commitment
decision. L.H.’s counsel clarified that he was not making a Sixth Amendment2
confrontation clause argument, but a Fourteenth Amendment3 due process
argument.
Coetzer resumed reading from the chart note, which describes additional
physically aggressive behavior by L.H. His counsel objected again on the same
grounds and the trial court admitted testimony about the note subject to a later
ruling on the due process issue. The trial court asked L.H.’s counsel for case law
on the issue, and he responded that there was no case law about the due
process right to confrontation in an ITA hearing.
Coetzer continued reading from multiple chart notes by different authors,
which reflected similar behavior by L.H. His counsel continued to object on due
process grounds and the trial court allowed the testimony to continue subject to a
ruling on due process.
On cross-examination, Coetzer said that L.H.’s medical chart notes were
all written by Cascade employees and that Cascade was in the same building as
the courtroom where the ITA hearing was taking place.
2 U.S. CONST. amend. VI. 3 U.S. CONST. amend. XIV.
3 No. 81523-7-I/4
After the hearing adjourned for the day, L.H.’s counsel submitted briefing
on whether the due process clause guaranteed a confrontation right. The next
day, the trial court addressed the due process objection. It applied the Mathews4
factors and concluded that two of the three factors favored the State and thus
overruled the objection. The trial court said the first factor weighed in L.H.’s favor
because of his liberty interest. It determined the second factor—about existing
procedural safeguards—weighed in the State’s favor. It said that ITA hearings
come with “pretty significant protections akin” to sexually violent predator (SVP)
commitment hearings—including the right to an attorney, cross-examination of
testifying witnesses, examination of evidence, and a high civil standard of clear,
cogent, and convincing evidence. It also determined that the third factor—about
the State’s interest—weighed in the State’s favor because the State has an
interest in ensuring that people who have a mental illness do not harm
themselves or others and get treatment. The court noted that, if ITA hearings
required every author of a medical chart note to testify, such a requirement would
detract from their primary task of caring for patients.
In ordering L.H. to 90 days of involuntary inpatient treatment, the trial court
concluded that L.H. was “taken into custody as a result of conduct in which he . .
. attempted or inflicted physical harm on the person of another or himself[], or
substantial damage on the property of others, and continues to present a
likelihood of serious harm as a result of a mental disorder.” The trial court based
its conclusion in part on Bibler’s testimony about L.H.’s actions before he was
4 Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
4 No. 81523-7-I/5
committed for 14 days and in part on the evidence of L.H.’s behavior in
treatment—specifically from the medical chart notes. L.H. appeals.
II. ANALYSIS
L.H. says that the trial court erred by considering Coetzer’s testimony
about the chart notes because due process5 guarantees him the right to confront
the notes’ authors through cross-examination.6 He claims the three Mathews
balancing test factors weigh in his favor. We disagree.
We review de novo constitutional challenges based on Mathews, deferring
to the trial court’s factual findings “where appropriate.” In re Dependency of E.H.,
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Detention of No. 81523-7-I
L.H. DIVISION ONE
PUBLISHED OPINION
CHUN, J. — This case concerns a 90-day commitment hearing under the
“Involuntary Treatment Act” (ITA), ch. 71.05 RCW. While testifying, a mental
health professional read aloud medical chart notes written by other mental health
professionals about L.H.’s behavior during his 14-day involuntary treatment. L.H.
objected, claiming a due process right to confront and cross-examine the authors
of the notes. The trial court overruled the objection. And then, relying in part on
this testimony, it committed L.H. for 90 days. We affirm.
I. BACKGROUND
The trial court entered a 14-day commitment order under the ITA placing
L.H. into inpatient treatment at Cascade Behavioral Health Hospital. Cascade
then petitioned to commit L.H. for 90 more days. 1
1 At the expiration of the fourteen-day period of intensive treatment, a person may be committed for further treatment pursuant to RCW 71.05.320 if: ... (2) Such person was taken into custody as a result of conduct in which he or she attempted or inflicted physical harm upon the person of another or himself or herself, or substantial damage upon the property of No. 81523-7-I/2
During the 90-day commitment hearing, the State introduced testimony by
Jon Bibler, a crisis intervention specialist, who testified about L.H.’s threatening
behavior before commitment; Hyemin Song, a records custodian at Auburn
MultiCare, who testified about L.H.’s condition upon admission; and Claire
Coetzer, a clinical social worker at Cascade, who testified about L.H.’s condition
at Cascade during the 14-day treatment.
Coetzer testified that she diagnosed L.H. with schizoaffective disorder.
And she concluded that L.H. presented a substantial risk of physical harm to
others as evidenced by behavior that has caused harm or placed another in
reasonable fear of such harm.
Coetzer then said she would read aloud notes from L.H.’s medical chart
written by other mental health professionals during his 14-day treatment. L.H.’s
counsel stipulated that the notes qualified as business records for purposes of
the hearsay exception.
Coetzer read a note by a licensed practitioner nurse, which says that L.H.
yelled, cursed, acted sexually, threatened others, and postured. The same note
says staff and peers were afraid of him. L.H.’s counsel objected, saying that L.H.
had a due process right to confront the author of the note if the State intended to
use it as proof of an element of the State’s case. The trial court asked the State
others, and continues to present, as a result of a behavioral health disorder, a likelihood of serious harm. RCW 71.05.280. “‘Likelihood of serious harm’ means: . . . A substantial risk that: . . . physical harm will be inflicted by a person upon another, as evidenced by behavior which has caused such harm or which places another person or persons in reasonable fear of sustaining such harm.” RCW 71.05.020(35)(a)(ii).
2 No. 81523-7-I/3
if it was offering the note to prove an element of its case; the State declined to
answer definitively but said that the notes “confirm the assertion about the
likelihood of harm.” The court decided to admit the testimony about the note and
reserved ruling on whether it could consider the testimony in its commitment
decision. L.H.’s counsel clarified that he was not making a Sixth Amendment2
confrontation clause argument, but a Fourteenth Amendment3 due process
argument.
Coetzer resumed reading from the chart note, which describes additional
physically aggressive behavior by L.H. His counsel objected again on the same
grounds and the trial court admitted testimony about the note subject to a later
ruling on the due process issue. The trial court asked L.H.’s counsel for case law
on the issue, and he responded that there was no case law about the due
process right to confrontation in an ITA hearing.
Coetzer continued reading from multiple chart notes by different authors,
which reflected similar behavior by L.H. His counsel continued to object on due
process grounds and the trial court allowed the testimony to continue subject to a
ruling on due process.
On cross-examination, Coetzer said that L.H.’s medical chart notes were
all written by Cascade employees and that Cascade was in the same building as
the courtroom where the ITA hearing was taking place.
2 U.S. CONST. amend. VI. 3 U.S. CONST. amend. XIV.
3 No. 81523-7-I/4
After the hearing adjourned for the day, L.H.’s counsel submitted briefing
on whether the due process clause guaranteed a confrontation right. The next
day, the trial court addressed the due process objection. It applied the Mathews4
factors and concluded that two of the three factors favored the State and thus
overruled the objection. The trial court said the first factor weighed in L.H.’s favor
because of his liberty interest. It determined the second factor—about existing
procedural safeguards—weighed in the State’s favor. It said that ITA hearings
come with “pretty significant protections akin” to sexually violent predator (SVP)
commitment hearings—including the right to an attorney, cross-examination of
testifying witnesses, examination of evidence, and a high civil standard of clear,
cogent, and convincing evidence. It also determined that the third factor—about
the State’s interest—weighed in the State’s favor because the State has an
interest in ensuring that people who have a mental illness do not harm
themselves or others and get treatment. The court noted that, if ITA hearings
required every author of a medical chart note to testify, such a requirement would
detract from their primary task of caring for patients.
In ordering L.H. to 90 days of involuntary inpatient treatment, the trial court
concluded that L.H. was “taken into custody as a result of conduct in which he . .
. attempted or inflicted physical harm on the person of another or himself[], or
substantial damage on the property of others, and continues to present a
likelihood of serious harm as a result of a mental disorder.” The trial court based
its conclusion in part on Bibler’s testimony about L.H.’s actions before he was
4 Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
4 No. 81523-7-I/5
committed for 14 days and in part on the evidence of L.H.’s behavior in
treatment—specifically from the medical chart notes. L.H. appeals.
II. ANALYSIS
L.H. says that the trial court erred by considering Coetzer’s testimony
about the chart notes because due process5 guarantees him the right to confront
the notes’ authors through cross-examination.6 He claims the three Mathews
balancing test factors weigh in his favor. We disagree.
We review de novo constitutional challenges based on Mathews, deferring
to the trial court’s factual findings “where appropriate.” In re Dependency of E.H.,
191 Wn.2d 872, 894–95, 427 P.3d 587 (2018).
The due process clause of the Fourteenth Amendment “promises both
substantive and procedural due process before the State may lawfully take a
person’s life, liberty, or property.” In re Welfare of M.B., 195 Wn.2d 859, 867,
467 P.3d 969 (2020). “Procedural due process requires the government to meet
certain constitutional minimum standards before it may lawfully make decisions
that affect an individual’s liberty interests.” Id. “Substantive due process, on the
other hand, limits the rules that the government may adopt governing these
deprivations.” Fields v. Dep’t of Early Learning, 193 Wn.2d 36, 58, 434 P.3d 999
(2019). Our Supreme Court has treated whether a person has a right to
5 L.H. makes a due process claim under the Fourteenth Amendment. 6 L.H. says even though his 90-day commitment has ended, this appeal is not moot. See In re Det. of M.K., 168 Wn. App. 621, 625, 279 P.3d 897 (2012) (determining that an appeal of a 90-day commitment is not moot “[b]ecause an involuntary commitment order may have adverse consequences on future involuntary commitment determinations”). The State does not dispute this.
5 No. 81523-7-I/6
confrontation as a procedural due process issue and applied the Mathews
balancing test to the question. In re Det. of Stout, 159 Wn.2d 357, 370, 150 P.3d
86 (2007). In determining what procedural due process requires in a given context, we employ the Mathews test, which balances: (1) the private interest affected, (2) the risk of erroneous deprivation of that interest through existing procedures and the probable value, if any, of additional procedural safeguards, and (3) the governmental interest, including costs and administrative burdens of additional procedures.
Id. Procedural due process is flexible. Id. “At its core is a right to be
meaningfully heard, but its minimum requirements depend on what is fair in a
particular context.” Id. We assess procedural due process challenges case-by-
case. State Constr., Inc. v. City of Sammamish, 11 Wn. App. 2d 892, 913, 457
P.3d 1194, review denied 195 Wn.2d 1028, 466 P.3d 770 (2020). “A person
claiming a due process violation has the burden of proof.” State v. Conway, 8
Wn. App. 2d 538, 553, 438 P.3d 1235, review denied, 194 Wn.2d 1010, 452 P.3d
1240 (2019).
A. The private interest affected
The parties agree that L.H. has a significant interest in his physical liberty
for the 90-day period and that this factor weighs in his favor. See In re Det. of
Thorell, 149 Wn.2d 724, 731, 72 P.3d 708 (2003) (“Freedom from bodily restraint
has always been at the core of the liberty interest protected by the due process
clause of the fourteenth amendment. . . . Commitment for any reason constitutes
a significant deprivation of liberty triggering due process protection.”). We agree
as well.
6 No. 81523-7-I/7
B. The risk of erroneous deprivation of liberty given current procedural safeguards and the probable value of added safeguards
L.H. says that the process guaranteed to him during an ITA 90-day
commitment hearing does not sufficiently guard against the risk of erroneous
deprivation of his liberty interest. We disagree.
In Stout, in an analogous context, our Supreme Court addressed whether
a respondent in a SVP trial has a due process right to confront a witness. 159
Wn.2d at 370. At Stout’s SVP trial, the State presented testimony from an
alleged victim in the form of two telephonic depositions. Id. at 368. The second
deposition came with a video recording of the alleged victim answering
questions. Id. Stout contended that the use of the telephonic depositions rather
than live testimony violated his due process right to confrontation. Id. at 368–69.
In determining that the second Mathews factor weighed in the State’s favor, the
court recognized these safeguards in SVP proceedings: the right to counsel
(including appointed counsel), the right to present evidence on a detainee’s own
behalf, the right to cross-examine adverse witnesses who testify against the
detainee, the right to view and copy reports and petitions, and the right to a jury.
Id. at 370. The court said, “Most importantly, at trial the State carries the burden
of proof beyond a reasonable doubt, and in a jury trial, the verdict as to whether a
detainee is a sexually violent predator must be unanimous.” Id. at 370–71. The
court also said that a right to confrontation would add little value to the existing
procedural safeguards because the goals of confrontation had been met by the
deposition. Id. at 371. The court noted that the depositions were under oath,
subject to Stout’s review and potential impeachment, and the second deposition
7 No. 81523-7-I/8
was videotaped, allowing the fact finder to observe the alleged victim’s demeanor
during questioning. Id.7
Like SVP proceedings, ITA proceedings are civil. Stout, 159 Wn.2d at
368–69 (SVP); In re Det. of W.C.C., 185 Wn.2d 260, 261, 370 P.3d 1289 (2016)
(ITA). And similarly, respondents in ITA hearings have significant procedural
protections. They have the right to an attorney (including appointed counsel), the
right to present evidence on their own behalf, the right to cross-examine
witnesses who testify against them, the right to view and copy petitions and
reports, and the right to a jury.8 RCW 71.05.217(5);9 RCW 71.05.310. Also, the
7 In In re Detention of Coe, our Supreme Court addressed a similar issue. 175 Wn.2d 482, 509, 286 P.3d 29 (2012). In an SVP trial, Coe challenged the admission of reports by alleged victims of uncharged assaults. Id. at 509. A psychologist testified that Coe was an SVP and said that she relied on the reports in reaching that determination. Id. Coe claimed that this violated his due process right to confront and cross-examine the alleged victims and that his case was distinguishable from Stout because he had no chance to cross-examine, ensure veracity by oath, or observe demeanor. Id. at 510. The court rejected this distinction and held that the second Mathews factor weighed in the State’s favor given the other existing safeguards discussed in Stout. Id. at 511. In reaching its holding, the court emphasized that the assault reports were admitted only to show the basis of the psychologist’s opinion, and not admitted substantively. Id. 8 Because of the COVID-19 pandemic, L.H. could not have a jury trial. In March 2020, the Supreme Court of Washington suspended all civil jury trials because of the COVID-19 pandemic. Am. Order No. 25700-B-607, In re Statewide Response by Washington State Courts to the Covid-19 Public Health Emergency (Wash. Mar. 20, 2020), http://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20Orders /Supreme%20Court%20Emergency%20Order%20re%20CV19%20031820.pdf [https://perma.cc/NY2J-S4XC]. L.H.’s hearing occurred during this suspension. 9 For convenience, we cite the current version of the relevant statutes. Former RCW 71.05.310 (2005), referencing the rights set forth in former RCW 71.05.360 (2019), was in effect at the time of L.H.’s hearing. LAWS of 2012, ch. 256 § 8 (effective May 1, 2012). Laws of 2020, ch. 302, § 104 (effective June 11, 2020) repealed former RCW 71.05.360. The current version of RCW 71.05.217(5)(a) recodifies statutory rights during an ITA hearing.
8 No. 81523-7-I/9
Rules of Evidence apply to ITA hearings.10 RCW 71.05.217(5). And to petition
for 90-day involuntary treatment, a petitioner must support their petition with
affidavits by mental or physical health professionals. RCW 71.05.290.
L.H. highlights that the burden of proof in SVP trials differs from the
burden in ITA hearings. See Stout, 159 Wn.2d at 370–71 (SVP hearings require
proof beyond a reasonable doubt); RCW 71.05.310 (ITA 90-day commitment
hearings require proof by clear, cogent, and convincing evidence). While this is
true, as with SVP trials, 90-day commitment hearings require a heightened
burden of proof. See In re Custody of ALD, 191 Wn. App. 474, 501, 363 P.3d
604 (2015) (noting that the “more rigorous” standard of clear, cogent, and
convincing evidence applies to nonparental custody hearings “[b]ecause of the
severe consequences of an erroneous deprivation of a parent’s custody rights”).
L.H. also emphasizes the lack of a unanimous jury trial requirement in 90-
day hearings. But 90-day hearings still provide an option for a jury trial and still
require agreement by 10 out of 12 jurors or 5 out of 6 jurors. In re Det. of
McLaughlin, 100 Wn.2d 832, 845, 676 P.2d 444 (1984).
On balance, the comprehensive set of procedural safeguards listed above
minimize the risk of a trial court erroneously depriving an ITA respondent of their
liberty interest. Also, in light of these safeguards, the additional safeguards of
confrontation and cross-examination would add little probable value to L.H.’s ITA
hearing. Again, L.H. bears the burden of establishing a due process violation.
10 Again, L.H. stipulated to the admissibility of the evidence at issue. Thus, he essentially claims the court violated his due process right by considering admissible evidence.
9 No. 81523-7-I/10
He does not claim that he was somehow barred from interviewing the authors of
the notes or calling them as witnesses in his case.
C. The State’s interest, including the burden of additional procedure
As for the third Mathews factor, the State says that it has strong interests
(1) in treating those who have a mental impairment and pose a risk of harm to
themselves or others, and (2) reducing administrative burdens. We agree.
The State has an interest in treating individuals with mental illness when
they pose a risk of harm to themselves or others. See In re Det. of M.W. v. Dep’t
of Soc. & Health Servs., 185 Wn.2d 633, 660, 374 P.3d 1123 (2016) (“the
government has important interests in increasing public safety [and] encouraging
effective treatment of violent mentally ill individuals”). L.H. acknowledges this
interest.
Also, the State has an interest in reducing administrative burdens and
costs. See Stout, 159 Wn.2d at 371–72 (noting the State’s interest in
“streamlining” SVP trials, reducing undue burdens, and ensuring the accessibility
of testimony from unavailable or out-of-state witnesses); Coe, 175 Wn.2d at 511–
12 (also discussing the State’s interest in streamlining commitment proceedings
and avoiding heavy financial burdens accompanying live testimony). To be sure,
requiring the author of every relevant medical chart note to testify at a 90-day ITA
commitment hearing would pose a significant burden on the State. L.H. says that
the Mathews analysis is case-by-case and highlights that the authors of the notes
at issue work in the same building as the courtroom. While this proximity may
10 No. 81523-7-I/11
have reduced the burden, having more witnesses testify necessarily imposes
some level of administrative burdens or costs.
We conclude that, on balance, the Mathews test supports the State in this
matter. Existing procedural safeguards sufficiently protected L.H.’s liberty
interests; and the State has significant interests in treating mental illness and
reducing administrative burdens.11
We affirm.
WE CONCUR:
11 We also reject L.H.’s alternative argument based on Vitek v. Jones, 445 U.S. 480, 495–96, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980) (saying that the right to confront and cross-examine witnesses, absent good cause, applies to a hearing to decide whether to transfer a prisoner to a mental health hospital). The Vitek holding is not as broad as L.H. contends—it does not provide that the confrontation right applies in all civil commitment hearings; the case involves a hearing to decide whether to transfer a prisoner to a mental health hospital; and the Court did not conduct a Mathews analysis. Id. at 494–96.