The State of Washington, Respondent, v. David W. McCuistion, Petitioner, 174 Wash. 2d 369

Madsen, C.J. ¶1 Three years after he was civilly committed as a sexually violent predator (SVP), David McCuistion sought an evidentiary hearing pursuant to RCW 71.09.090(2). In support of his petition for release, Mr. McCuistion submitted a declaration from an expert stating that he had never qualified as an SVP. The trial court denied an evidentiary hearing to determine his eligibility for unconditional discharge or conditional release to a less restrictive alternative, and the Court of Appeals denied Mr. McCuistion’s motion for discretionary review. Mr.

McCuistion claims he was entitled to an evidentiary hearing on the basis of the evidence he presented. He further contends that the 2005 amendments to RCW 71.09.090 — which allow for an evidentiary hearing only upon a showing of physiological change or a change in condition resulting from treatment— violate substantive due process and the separation of powers doctrine. ¶2 We hold that Mr. McCuistion had neither a statutory nor a constitutional right to an evidentiary hearing because he did not present prima facie evidence that his condition had changed such that he no longer met the criteria for confinement.

In addition, we hold that the challenged amendments do not violate procedural and substantive due process. Finally, we conclude that the 2005 amendments do not violate separation of powers principles. FACTS AND PROCEDURAL HISTORY ¶3 Between 1980 and 1993, David McCuistion was convicted of a number of sex-related offenses, including attempted indecent liberties, third degree rape, phone harassment, and second and third degree assault. On October 3, 2003, following an SVP commitment trial, Mr.

McCuistion was found to have satisfied the criteria for commitment as an SVP and was committed indefinitely to the care and custody of the Department of Social and Health Services (DSHS). He appealed the commitment order unsuccessfully. ¶4 Pursuant to Mr. McCuistion’s petition under RCW 71.09.090(2), the trial court held a show cause hearing on October 27,2006 to determine whether Mr. McCuistion was entitled to a full evidentiary hearing concerning his eligibility for unconditional release or conditional release to a less restrictive alternative.

The State submitted written annual reviews produced by DSHS in 2004 and 2005, each of which recommended continued commitment. In the 2005 annual review, Dr. Carla van Dam, PhD, indicated that Mr. McCuistion had scored highly on several risk assessment instruments; had a history of behavioral infractions; had failed to participate in substance abuse or sex offender treatment; and met diagnostic criteria for a number of psychiatric conditions, including pedophilia, paraphilia not otherwise specified, and antisocial personality disorder. She concluded that Mr.

McCuistion continued to meet the definition of an SVP and that conditional release to a less restrictive alternative would threaten community safety. ¶5 In response, Mr. McCuistion submitted a declaration from Dr. Lee Coleman, MD. Dr. Coleman concluded that Mr. McCuistion did not meet — and indeed, had never met — the criteria for continued confinement. Given these statutory requirements, I have reviewed institutional records and professional evaluations of Mr. McCuistion and I have formed the opinion that his evaluators have not presented any evidence that such a mental abnormality exists, or has ever existed.

Instead, they have relied on his past crimes: the required “mental abnormality” has been “determined” by simply summarizing his past behavior, and the “evidence” for the alleged disorder is a recitation of the details of his past behavior. Clerk’s Papers (CP) at 617 (emphasis omitted). Dr. Coleman also attacked the legitimacy of Washington’s SVP commitment scheme. Dr.

DeMarco claims that “Paraphilia Not Otherwise Specified (Nonconsent) is an accepted diagnosis among practitioners knowledgeable about sexual offenders.” I believe it would be more accurate to say that the only practitioners who use this label are those who perform SVP evaluations. But regardless of how many use it, the so-called “diagnosis” is obviously nothing more than doublespeak for the crime of rape.

If this is the best the evaluators are capable of doing, when seeking the “congenital or acquired condition,” surely it means that the entire evaluation process is a sham created to fulfill legal and legislative agendas. Id. at 622-23. In addition to Dr. Coleman’s declaration, Mr. McCuistion submitted a law review

article providing guidelines for forensic psychologists, several declarations from special commitment center (SCC) staff attesting to his good behavior throughout his stay at the SCC, and two articles providing empirical data on recidivism. One article, prepared by Canadian researchers in 2004, addressed various predictors of recidivism for male sex offenders, including number of previous convictions, age, length of time in the community without subsequent offenses, type of crime (rape versus incest), and victims’ gender.

The researchers found a significant correlation between age and recidivism, finding that offenders under age 50 at the time of release were twice as likely to reoffend within 15 years as those over age 50. The other article, prepared by the Washington State Institute for Public Policy in 2004, indicated that sex offenders have lower recidivism rates than other types of offenders and that recidivism decreases with advancing age. In particular, the

article stated that for every 5 years’ difference in age at release, felony recidivism among sex offenders drops by 3.4 percent and violent felony recidivism by 1.4 percent. ¶6 In his briefing, Mr. McCuistion urged the trial court to consider the correlation between aging and recidivism, maintaining that according to Dr. van Dam, the “fantasies and the behaviors” associated with paraphilias “ ‘often diminish with advancing age in adults.’ ” Id. at 608 (quoting 2005 annual review at 16).

Similarly, in an interview with Dr. van Dam, he argued that he was unlikely to reoffend because he no longer used alcohol and was older and therefore less impulsive. ¶7 The trial court found that the State had met its burden to present prima facie evidence justifying continued commitment and that Mr. McCuistion had failed to present prima facie evidence that his condition had changed such that he no longer met the criteria for commitment or that conditional release to a less restrictive alternative would be appropriate. The trial court dismissed Dr.

Coleman’s report as “essentially a re-argument of the original finding that Mr. McCuistion is a sexually violent predator” and reasoned that Dr. Coleman’s disagreement “with past examiners and fact-finders does not, itself, make his opinion the correct one.” Id. at 585. The court further explained that “[t]he change in his behavior within the confines of a secure facility does not demonstrate that his mental disorder has been changed in any way” and that “his refusal to participate in sexual deviancy treatment compounds the issue.” Id. f 8 Mr.

McCuistion sought discretionary review in the Court of Appeals, arguing that RCW 71.09.090 violated due process and separation of powers principles and that he had presented prima facie evidence that he no longer met the criteria for commitment. The commissioner summarily dismissed Mr. McCuistion’s constitutional claims, noting that the Court of Appeals had rejected similar arguments in In re Detention of Fox, 138 Wn. App. 374, 396-400, 158 P.3d 69 (2007) (Fox I). Next, the commissioner concluded that Mr.

McCuistion had “presented no evidence that his physical or mental condition had changed since the trial court originally found him to be a[n] SVP” and that “[w]ithout such evidence, the trial court was not required to order a new commitment trial.” Ruling Den. Review, State v. McCuistion, No. 35805-1-II, at 7 (Wash. Ct. App. Jan. 30, 2008). A three-judge panel of the court denied McCuistion’s motion to modify the commissioner’s ruling. f 9 We granted discretionary review, reversed the Court of Appeals’ decision, and remanded for a show cause hearing under the pre-2005 statute. State v.

McCuistion, No. 81644-1 (Wash. Sept. 2, 2010), withdrawn May 11, 2011. The State subsequently moved for reconsideration, which we granted. Order Granting Mot. for Recons., State v. McCuistion, No. 81644-1 (Wash. Feb. 9, 2011). We then withdrew our original opinion. ANALYSIS The statutory scheme ¶10

Chapter 71.09 RCW governs the civil commitment of SVPs in Washington State. This

chapter defines a sexually violent predator as “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.” RCW 71.09.020(18). Under this statutory scheme, prosecutors may petition for indefinite civil commitment when a convicted sex offender is about to be released from confinement, among other circumstances. RCW 71.09.030.

The filing of such a petition triggers a probable cause determination followed by a full evidentiary trial, at which the individual enjoys a panoply of procedural protections, and the fact finder must determine, beyond a reasonable doubt, whether the individual meets the definition of an SVP. RCW 71.09.040-.060. If the court or jury finds beyond a reasonable doubt that the individual is an SVP, he must be committed to the custody of the DSHS “until such time as: (

a) The person’s condition has so changed such that the person no longer meets the definition of a sexually violent predator; or (

b) conditional release to a less restrictive alternative as set forth in RCW 71.09.092 is in the best interest of the person and conditions can be imposed that would adequately protect the community.” RCW 71.09-.060(1). Once an individual has been committed, he is entitled to a written annual review by a qualified professional to ensure that he continues to meet the criteria for confinement. RCW 71.09.070. ¶11 RCW 71.09.090 sets forth the procedures by which an individual found to be an SVP may petition for unconditional discharge or conditional release to a less restrictive alternative.

If, in the course of its annual review, DSHS finds that the individual’s condition has changed such that he no longer meets the definition of an SVP or conditional release to a less restrictive alternative would be appropriate, DSHS must authorize the individual to petition for unconditional discharge or conditional release to a less restrictive alternative. RCW 71.09.090(1). The court must order an evidentiary hearing upon receipt of the petition.

Id. ¶[12 Alternatively, if DSHS does not authorize such a petition, the court must set a show cause hearing unless the individual affirmatively waives the right to petition for unconditional discharge or conditional release to a less restrictive alternative. RCW 71.09.090(2)(a). The purpose of the show cause hearing is to determine whether the individual is entitled to an evidentiary hearing. Id.

At the show cause hearing, the State bears the burden to present prima facie evidence that the individual continues to meet the definition of an SVP and that conditional release to a less restrictive alternative would be inappropriate. RCW 71.09-.090(2)(b). The court must order an evidentiary hearing if the State fails to meet its burden or, alternatively, the individual establishes probable cause to believe his “condition has so changed” that he no longer meets the definition of an SVP or that conditional release to a less restrictive alternative would be appropriate.

RCW 71.09.090(1); In re Det. of Petersen, 145 Wn.2d 789, 798, 42 P.3d 952 (2002) (.Petersen II) (“We hold there are two possible statutory ways for a court to determine there is probable cause to proceed to an evidentiary hearing under former RCW 71.09.090(2): (1) by deficiency in the proof submitted by the State, or (2) by sufficiency of proof by the prisoner.”). ¶13 In 2005, the legislature amended RCW 71.09.090 by adding what is now subsection (4) and redesignating former subsection (4) as subsection (5). Laws of 2005, ch. 344, § 2. Subsection (4) provides: (4)(

a) Probable cause exists to believe that a person’s condition has “so changed,” under subsection (2) of this section, only when evidence exists, since the person’s last commitment trial, or less restrictive alternative revocation proceeding, of a substantial change in the person’s physical or mental condition such that the person either no longer meets the definition of a sexually violent predator or that a conditional release to a less restrictive alternative is in the person’s best interest and conditions can be imposed to adequately protect the community. (

b) A new trial proceeding under subsection (3) of this section[] may be ordered, or a trial proceeding may be held, only when there is current evidence from a licensed professional of one of the following and the evidence presents a change in condition since the person’s last commitment trial proceeding: (

i) An identified physiological change to the person, such as paralysis, stroke, or dementia, that renders the committed person unable to commit a sexually violent act and this change is permanent; or (ii) A change in the person’s mental condition brought about through positive response to continuing participation in treatment which indicates that the person meets the standard for conditional release to a less restrictive alternative or that the person would be safe to be at large if unconditionally released from commitment. (

c) For purposes of this section, a change in a single demographic factor, without more, does not establish probable cause for a new trial proceeding under subsection (3) of this section. As used in this section, a single demographic factor includes, but is not limited to, a change in the chronological age, marital status, or gender of the committed person.

The 2005 amendments thus limited the means by which a committed person may show he has “so changed” to where he has had (1) “[a]n identified physiological change” making him “unable to commit a sexually violent act and this change is permanent,” or (2) “[a] change in the person’s mental condition brought about through positive response to continuing participation in treatment.” RCW 71.09.090(4)(b). The probable cause hearing ¶14 Mr. McCuistion does not dispute the sufficiency of the State’s prima facie evidence.

Instead, he argues that because he presented prima facie evidence that he no longer meets the definition of an SVP, he has both a statutory and constitutional right to an evidentiary hearing. We disagree. Mr. McCuistion has failed to show a physiological change or a treatment-induced change to his mental condition, as required by RCW 71.09.090(4)(b). Moreover, even if we consider evidence beyond that which is permitted by the 2005 amendments to show Mr.

McCuistion has “so changed,” as the trial court did here, we would still conclude that the trial court correctly denied his request for an evidentiary hearing. ¶15 The standard of proof at the show cause hearing is “probable cause.” Petersen II, 145 Wn.2d at 796. While the probable cause standard is not a stringent one, it allows the court to perform a critical gate-keeping function. Under this standard, a court must assume the truth of the evidence presented; it may not “weigh and measure asserted facts against potentially competing ones.” Id. at 797.

At the same time, the court can and must determine whether the asserted evidence, if believed, is sufficient to establish the proposition its proponent intends to prove. Id. at 798 (“sufficiency of proof by the prisoner” warrants evidentiary hearing). In determining whether probable cause exists, the trial court is entitled to consider all of the evidence, including evidence submitted by the State. A trial court’s determination as to whether evidence establishes probable cause is subject to de novo review. Id. at 799. ¶16 RCW 71.09.090(2)(

c) requires an individual seeking an evidentiary hearing to establish probable cause to believe his condition has changed. As the trial court recognized, Dr. Coleman’s declaration is nothing more than a collateral attack on the original finding that Mr. McCuistion was an SVP; it does not demonstrate change. ¶17 As Mr. McCuistion correctly notes, the probable cause standard bars the trial court from weighing the evidence. However, at the same time, it does not require a trial court to discredit the original verdict when presented with a contrary opinion. Thus, Dr.

Coleman’s disagreement with previous experts was not grounds for relitigating a settled issue, and contrary to Mr. McCuistion’s assertion, the trial court did not need to weigh the evidence to reach this conclusion. ¶18 Similarly, staff declarations attesting to Mr. Mc-Cuistion’s good behavior at the SCC do not establish probable cause to believe that Mr. McCuistion is no longer an SVP. If believed, these declarations demonstrate that Mr. McCuistion behaves appropriately in a secure and highly structured environment. They do not suggest that Mr.

McCuistion no longer suffers from a mental abnormality or personality disorder or, alternatively, that if he continues to suffer from such a condition, it would be unlikely to cause him to engage in predatory acts of sexual violence if conditionally released to a less restrictive alternative or unconditionally discharged. Moreover, these declarations speak to Mr. McCuistion’s current condition — not to a change in his condition. In sum, even when taken in conjunction with Mr. McCuistion’s other evidence, these declarations are insufficient to establish probable cause to believe that Mr.

McCuistion’s condition has changed such that he no longer meets the criteria for confinement. ¶19 Further, the scientific studies Mr. McCuistion presented do not establish probable cause to believe Mr. McCuistion has changed such that he is no longer an SVP. The data Mr. McCuistion presented on aging and recidivism showed a significant difference in recidivism between offenders older than 50 and younger than 50; it did not demonstrate a correlation between age and recidivism within each of these subcategories. Mr.

McCuistion was 45 years old at the time of the show cause hearing and thus not within the age category with lower recidivism rates. More importantly, he had aged only three years since the initial commitment order, and he has failed to demonstrate that a three-year age difference had a measurable effect on his risk of reoffending. Thus, despite Mr.

McCuistion’s vague assertions that he had become less impulsive with age, the evidence he presented was insufficient to establish probable cause to believe that his condition had “so changed.” RCW 71.09.090(2)(a). ¶20 Likewise, his bare assertion that he no longer consumed alcohol, coupled with his failure to participate in substance abuse treatment while confined, does not establish probable cause to believe he no longer meets the criteria for confinement.

In sum, we hold that the trial court’s denial of an evidentiary hearing comported with the statutory requirement that a full evidentiary hearing be granted only if Mr. McCuistion met his probable cause burden to show change as specified by RCW 71.09.090, both pre- and post-2005 amendments. f 21 Mr. McCuistion next contends that he is entitled to an evidentiary hearing as a matter of substantive due process. Again, Mr. McCuistion is mistaken.

Requiring change as a prerequisite for an evidentiary hearing — a statutory requirement that pre-dated the 2005 amendments — does not offend substantive due process principles. ¶22 Under the due process clause of the Fourteenth Amendment, an individual subject to civil commitment is entitled to release upon a showing that he is no longer mentally ill or dangerous. Foucha v. Louisiana, 504 U.S. 71, 77-78, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992); O’Connor v. Donaldson, 422 U.S. 563, 575, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975); Jones v. United States, 463 U.S. 354, 368, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983).

However, once a fact-finder has determined that an individual meets the criteria for commitment as an SVP, the court accepts this initial conclusion as a verity in determining whether an individual is mentally ill and dangerous at a later date. Cf. Burke v. Pepsi-Cola Bottling Co. of Yakima, 64 Wn.2d 244, 246, 391 P.2d 194 (1964) (court may not substitute its judgment for that of the jury where there is evidence that, if believed, would support the verdict); City of Aberdeen v.

Regan, 170 Wn.2d 103, 108, 239 P.3d 1102 (2010) (“Collateral estoppel works to prevent litigation of issues that were resolved in a prior proceeding.”). Accordingly, where an individual was found beyond reasonable doubt to be mentally ill and dangerous at the time of his commitment trial, a showing that he no longer satisfies the constitutional criteria for confinement necessarily requires a showing of change.

See Laws of 2005 ch. 344, § 1 (“These provisions are intended only to provide a method of revisiting the indefinite commitment due to a relevant change in the person’s condition, not an alternate method of collaterally attacking a person’s indefinite commitment for reasons unrelated to a change in condition.”). ¶23 Substantive due process requires only that the State conduct periodic review of the patient’s suitability for release. Jones, 463 U.S. at 368.

A committed person’s statutory right to show his condition has “so changed” provides additional safeguards that go beyond the requirements of substantive due process. See id. There is no substantive due process right to a full annual evidentiary hearing based upon a mere showing of a change in a single demographic factor. See id. To conclude otherwise would lead to an endless cycle of review and rereview. f 24 Indeed, this court already has upheld the pre-2005 requirement that an individual seeking an evidentiary hearing present prima facie evidence of a change in condition.

In In re Personal Restraint of Young, 122 Wn.2d 1, 39, 857 P.2d 989 (1993) (Young I), we considered and rejected a substantive due process challenge to our SVP commitment scheme, holding that the procedural safeguards at the initial commitment hearing and the procedures for periodic review under former RCW 71.09.090 were sufficient to ensure that “the commitment is tailored to the nature and duration of the mental illness.” See also In re Det. of Petersen, 138 Wn.2d 70, 81, 980 P.2d 1204 (1999) (Petersen I) (“Our sexually violent predator statute unequivocally contemplates an indefinite term of commitment, not a series of fixed one-year terms with continued commitment having to be justified beyond a reasonable doubt annually at evidentiary hearings where the State bears the burden of proof.”). ¶25 The statutory standard for continuing Mr.

McCuistion’s involuntary commitment remains unchanged by the 2005 amendments. The State must provide an evaluation on a yearly basis demonstrating that Mr. McCuistion continues to meet the definition of an SVP. Because the State concluded from its annual review that McCuistion continued to meet this definition, we hold that the trial court’s order denying Mr. McCuistion’s request for an evidentiary hearing comported with substantive due process requirements.

Had McCuistion established probable cause to believe he had “so changed” under the requirements of the 2005 amended statute, he would have had a statutory right, not a constitutional right, to a full evidentiary hearing. While Dr. Coleman asserted in his declaration that Mr. McCuistion did not meet the criteria for confinement and indeed had never met these criteria, his declaration did not account for the discrepancy between his conclusion and the jury’s initial finding that Mr. McCuistion met SVP criteria. Consequently, ordering a new trial on the basis of Dr.

Coleman’s declaration would have required the trial court to discredit the jury’s initial determination, effectively allowing Mr. McCuistion to collaterally attack his commitment. Facial challenge to the 2005 amendments ¶26 Mr. McCuistion also presents a facial challenge to the 2005 amendments to RCW 71.09.090, which allow for an evidentiary hearing only upon a showing that the individual has undergone a physiological change or a change in mental condition due to treatment.

He claims the amendments violate substantive due process “by divorcing the ability to gain a new trial from [sic] question of the person’s current mental state and dangerousness.” Pet’r’s Suppl. Br. at 3; see RCW 71.09.090(4). In particular, Mr. McCuistion argues: Using success in treatment as the only viable avenue for winning a full re-commitment trial is fraught with scientific uncertainty and unmoored from the necessary requirement that commitment may not continue when a person is not currently likely to commit sexually violent offenses due to a mental disorder. Pet’r’s Suppl.

Br. at 14. ¶27 Constitutional questions are questions of law and, accordingly, are subject to de novo review. Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 215, 143 P.3d 571 (2006). Statutes are presumed constitutional, and the burden is on the challenger to prove otherwise. Id. f28 Because civil commitment involves a massive deprivation of liberty, it must meet the demands of substantive due process. Foucha, 504 U.S. at 80. Liberty is a fundamental right. Id.; Young I, 122 Wn.2d at 26 (citing United States v. Salerno, 481 U.S. 739, 750, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987)).

Accordingly, a civil commitment scheme like this one is constitutional only if it is narrowly drawn to serve compelling state interests. Young I, 122 Wn.2d at 26. As noted, civil commitment statutes are constitutional only when both initial and continued confinement are predicated on the individual’s mental abnormality and dangerousness. Foucha, 504 U.S. at 77-78; O’Connor, 422 U.S. at 575; Jones, 463 U.S. at 368; Jackson v. Indiana, 406 U.S. 715, 738, 92 S. Ct. 1845, 32 L.

Ed. 2d 435 (1972) (“At the least, due process requires that the nature and duration of commitment bear a reasonable relation to the purpose” of the commitment.); Kansas v. Hendricks, 521 U.S. 346, 358, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997) (civil commitment in sexually violent predator context requires mental abnormality rendering the individual dangerous). ¶29 Essentially, McCuistion argues that the 2005 amendments violate substantive due process because they prohibit a court from ordering a new trial even when the SVP does not meet the criteria for continued confinement.

This is not the case. ¶30 In Young I this court held that the SVP commitment scheme satisfies substantive due process because it requires the State to prove beyond a reasonable doubt that the SVP is mentally ill and dangerous at the initial commitment hearing and that the State justify continued incarceration through an annual review. 122 Wn.2d at 26, 39; see also RCW 71.09.070 (requiring annual mental examination to determine whether the committed person currently meets the definition of an SVP with a report of the findings sent to the committing court).

If the individual no longer meets the definition of an SVP, then “the secretary shall authorize the person to petition the court for conditional release” or “unconditional discharge” and the court “shall within forty-five days order a hearing.” RCW 71.09.090(1). This statutory scheme comports with substantive due process because it does not permit continued involuntary commitment of a person who is no longer mentally ill and dangerous. ¶31 The 2005 amendments do not alter the constitutionally critical annual review scheme.

Instead, the amendments only change the requirements necessary to gain a full evidentiary hearing through the statutory protections created by the show cause process.

The legislature had every right to alter a scheme that provides protections beyond what is required by substantive due process to ensure committed persons do not abuse the system to receive full annual evidentiary hearings every year based solely upon a change to a single demographic factor. ¶32 McCuistion speculates that a person who has not participated in treatment or who has a single demographic change, such as age, may nevertheless no longer be mentally ill and dangerous but remain committed; however, this argument assumes that the annual review process fails to properly identify those who are no longer mentally ill and dangerous. ¶33 “ ‘[A] facial challenge must be rejected unless there exists no set of circumstances in which the statute can constitutionally be applied.’ ” In re Det. of Turay, 139 Wn.2d 379, 417 n.27, 986 P.2d 790 (1999) (quoting with approval Ada v.

Guam Soc’y of Obstetricians & Gynecologists, 506 U.S. 1011, 1012, 113 S. Ct. 633, 121 L. Ed. 2d 564 (1992) (Scalia, J., dissenting)). As the State aptly recognizes, facial challenges are generally disfavored. “Facial challenges are disfavored for several reasons. Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of premature

interpretation of statutes on the basis of factually barebones records. Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.” Resp’t’s Resp. to Br. of Amicus Curiae at 1-2 (citations and internal quotation marks omitted) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449-51, 128 S. Ct. 1184, 170 L.

Ed. 2d 151 (2008)). f34 The legislature enacted the 2005 amendments to “address the ‘very long-term’ needs of the sexually violent predator population for treatment and the equally long-term needs of the community for protection from these offenders.” Laws of 2005, ch. 344, § 1. The legislature specifically found “that the mental abnormalities and personality disorders that make a person subject to commitment under

chapter 71.09 RCW are severe and chronic and do not remit due solely to advancing age or changes in other demographic factors.” Id. The legislature wanted to ensure that the statutory focus remains on treatment and did not want to remove the incentive for successful treatment participation. Id. The legislature also stated that persons committed as SVPs “generally require prolonged treatment in a secure facility followed by intensive community supervision in the cases where positive treatment gains are sufficient for community safety.” Id. ¶35 Mr.

McCuistion contends that the legislature’s findings are unworthy of deference because they rested on testimony from interested parties (including the attorney representing the State in this matter and two attorneys who filed amicus briefs) rather than “detailed research.” Pet’r’s Answer to Amicus Filed by Wash. Ass’n of Prosecuting Attorneys at 4-6. However, also testifying in support of the 2005 amendments was Henry Richards, superintendent of the SCC and a psychologist and researcher by training. Mr.

Richards provided empirical evidence in support of this legislative finding by testifying that the proposed bill “[p] revents a misapplication of relatively weak and sometimes not carefully thought through scientific evidence that really isn’t scientific and it’s not generally accepted and hasn’t really been empirically validated, certainly on our population.” Hr’g on S.B. 5582 Before H. Criminal Justice & Corrections Comm., 59th Leg., Reg. Sess. (Wash. Mar. 25, 2005).

He further testified that “most of what we know about the science says that any estimates tend to push their severity toward the extreme, toward the more severe, not some sort of simple algorithm where we would reduce their risk by the mere passage of time.” Id. We have no basis to discredit the legislature’s empirical findings on this matter. ¶36 Hendricks, 521 U.S. 346, is instructive.

In upholding Kansas’ sexually violent predator act, the United States Supreme Court rejected the detainee’s argument that the statutory term “mental abnormality,” a term developed by the state legislature and not the psychiatric community, conflicted with the Court’s long standing requirement that an individual subject to civil commitment suffer from a “mental illness.” Id. at 358-59.

Citing the terms “insanity” and “competency,” the Court explained that it had “traditionally left to legislators the task of defining terms of a medical nature that have legal significance.” Id. at 359 (quoting Jackson, 406 U.S. at 732, 737).

Referencing the widespread disagreement among psychiatric professionals concerning pedophilias and paraphilias, it further noted that “when a legislature ‘undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation.’ ” Id. at 360 n.3 (quoting Jones, 463 U.S. at 370). ¶37 By the same token, because predicting recidivism among SVPs is “ ‘fraught with medical and scientific uncertainties,’ ” we owe substantial deference to the legislature’s finding that “the mental abnormalities and personality disorders that make a person subject to commitment under

chapter 71.09 RCW are severe and chronic and do not remit due solely to advancing age or changes in other demographic factors.” Id. (quoting Jones, 463 U.S. at 370); Laws of 2005, ch. 344, § 1; see Wash. State Legislature v. Lowry, 131 Wn.2d 309, 320, 931 P.2d 885 (1997) (court defers to legislative findings of fact). ¶38 The deference we owe generally to the factual findings of the legislature also supports our conclusion that a judicial inquiry into the degree of scientific rigor underlying the findings at issue is not required. See, e.g., City of Tacoma v.

O’Brien, 85 Wn.2d 266, 270-71, 534 P.2d 114 (1975) (“Legislatures must necessarily make inquiries and factual determinations as an incident to the process of making law, and courts ordinarily will not controvert or even question legislative findings of facts.”); Hoppe v.

State, 78 Wn.2d 164, 169, 469 P.2d 909 (1970) (“where a legislative declaration of the basis and necessity for an enactment does appear in the enactment, that declaration is to be deemed conclusive as to the circumstances asserted and must be given effect unless, aided only by facts of which a court can take judicial notice, it can be said that the legislative declaration on its face is obviously false”); Lenci v.

City of Seattle, 63 Wn.2d 664, 668, 388 P.2d 926 (1964) (“And, if a state of facts justifying the ordinance can reasonably be conceived to exist, such facts must be presumed to exist and the ordinance passed in conformity therewith. These rules are more than mere rules of judicial convenience. They mark the line of demarcation between legislative and judicial functions.” (citation omitted)). ¶39 Mr. McCuistion fails to establish that individuals may cease to be mentally ill or dangerous without treatment or physiological change or that the 2005 amendments to

chapter 71.09 RCW violate substantive due process by requiring positive change through treatment or physiological change. This is so because the statutory basis for continued commitment remains the same after the 2005 amendments: mental abnormality and dangerousness, which the State must reevaluate annually. Procedural due process ¶40 The question of whether an individual’s liberty interest is adequately protected is evaluated under procedural due process. In re Pers. Restraint of Bush, 164 Wn.2d 697, 704, 193 P.3d 103 (2008).

Because the 2005 amendments do not alter the standard for continued commitment — that the person continues to be mentally ill and dangerous — the question is whether the 2005 requirements for establishing probable cause and thus gaining a full postcommitment hearing satisfy procedural due process. |41 Applying the three-part test set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), the State contends that the 2005 amendments meet due process.

Under Mathews, this court balances 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. ¶42 Given the extensive procedural safeguards in

chapter 71.09 RCW, the risk of an erroneous deprivation of liberty under the challenged amendments is low. See id. As noted, 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 and the State bears the burden to prove beyond a reasonable doubt that the individual suffers from a mental abnormality rendering him “more likely than not” to commit further sex offenses. RCW 71.09.040-.060, .020(7).

Thereafter, the individual is entitled to annual written reviews by a qualified professional to ensure that he continues to meet the criteria for confinement. RCW 71.09.070. The individual is entitled to a qualified expert to assist in this determination. Id. Where DSHS finds that the individual no longer meets the criteria for confinement, he is entitled to an evidentiary hearing, at which he again enjoys a panoply of procedural protections. RCW 71.09.090(1), (3).

Even if DSHS finds that the individual continues to meet the criteria for confinement, the individual is entitled to a show cause hearing, at which he has the right to counsel and to present responsive affidavits or declarations (though he does not enjoy the right to be present at this hearing). RCW 71.09.090(2). ¶43 As noted earlier, the 2005 amendments do not alter the standard for continued commitment. The State is still required to evaluate the SVP annually to determine whether the person continues to meet the definition of an SVP. If not, a person is entitled to a full evidentiary hearing within 45 days.

RCW 71.09.090(1). In addition, an SVP is entitled by statute to a show cause hearing where the State is required to present a prima facie case that the individual continues to be mentally ill and dangerous, and the SVP need only present evidence that refutes the State’s probable cause showing.

Assuming — as we must — that the legislature is correct that a single demographic is insufficient to demonstrate that the individual has “so changed” as to no longer be mentally ill and dangerous and, additionally, that change of that nature requires participation in treatment, the procedure established by the legislature ensures that individuals who remain committed continue to meet the constitutional standard for commitment, namely dangerousness and mental abnormality.

Thus, it is unlikely to result in an erroneous deprivation of liberty. ¶44 Finally, 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. See Mathews, 424 U.S. at 335. By making treatment the only viable avenue to a release trial (absent a stroke, paralysis, or other physiological change), the State creates an incentive for participation in treatment.

The State directs our attention to several authorities demonstrating a link between sex offender treatment and decreased recidivism. See, e.g., Grant Duwe & Robin A. Goldman, The Impact of Prison-Based Treatment on Sex Offender Recidivism, 21 Sexual Abuse: A Journal of Research and Treatment 279 (2009), http://sax.sagepub.eom/content/21/3/279.abstract (“[P]articipating in treatment significantly reduced the hazard ratio for rearrest by 27% for sexual recidivism. . . .

These findings are consistent with the growing body of research supporting the effectiveness of cognitive — behavioral treatment for sex offenders.”). But see, e.g., Robert A. Prentky et al., Sexually Violent Predators in the Courtroom: Science on Trial, 12 Psychol. Pub.

Pol’y & L. 357, 380 (2006) (“Although numerous studies have demonstrated that cognitive-behavioral interventions can reduce sexual recidivism in the general population of sex offenders, until a sufficient number of those who are civilly committed are released into the community, it will be difficult to ascertain the efficacy of treatment in these SVP programs.”).

Similarly, to the extent that untreated individuals present a significant risk of reoffending, the State has an interest in protecting public safety by restricting evidentiary hearings to those who have participated in treatment. ¶45 The parties vigorously dispute the cost of release trials and the precise impact of the majority decision on the public fisc. See Br. of Amicus Curiae King County Prosecuting Attorney Daniel T.

Satterberg at 7-8 (maintaining that a “typical” release trial “easily cost taxpayers in excess of $400,000”); Pet’r’s Answer to Amicus Filed by King County Prosecutor Satterberg at 5 (arguing that “Satterberg’s accounting of expenses appears unreliable and not capable of judicial notice”).

However, we need not identify a precise dollar amount to conclude that returning to the pre-2005 regime to would have a significant fiscal impact. ¶46 In sum, although the individual’s interest in liberty is substantial, so too is the State’s interest in encouraging treatment and avoiding costly and unnecessary release trials, and the risk of erroneous deprivation associated with the 2005 amendments is minimal. On balance, the 2005 amendments satisfy procedural due process. See Mathews, 424 U.S. at 335. Separation of powers ¶47 Finally, Mr.

McCuistion contends that the 2005 amendments violate the separation of powers doctrine. We disagree. ¶48 This court has drawn a clear distinction between legislative and judicial functions. “A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter.” O’Brien, 85 Wn.2d at 272 (quoting Prentis v. Atl. Coast Line Co., 211 U.S. 210, 226, 29 S. Ct. 67, 53 L.

Ed. 150 (1908)); see also Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 144, 744 P.2d 1032, 750 P.2d 254 (1987) (“Here, the Legislature’s retroactive amendment of RCW 21.20.430 does not impede upon the court’s right and duty to apply new law to the facts of this case. . . . Instead, the amendment is a legislative enactment of a facially neutral law for the court to apply to the facts before it.”).

In enacting the 2005 amendments, the legislature did not apply existing law to a particular set of facts but rather created a rule of general application to determine when an SVP is entitled to an evidentiary hearing. This action falls squarely within the realm of legislation. See O’Brien, 85 Wn.2d at 272. ¶49 A recent Court of Appeals opinion, Fox I, 138 Wn. App. 374, addressed a similar challenge to the 2005 amendments to RCW 71.09.090.

There, Division Two held that the legislature did not violate the separation of powers doctrine in enacting the 2005 amendments because it simply provided “a facially neutral law to apply to pending litigation” and “did not engage in a case by case application of law to a specific set of facts.” Id. at 394, 395 n.13. ¶50 Mr. McCuistion contends that the legislature invades the province of the fact finder by preventing it from considering relevant and otherwise admissible evidence as to an individual’s mental condition.

To the contrary, it is not unusual for the legislature to enact legislation mandating the exclusion of certain types of otherwise admissible evidence. See, e.g., RCW 5.60.060 (mandating the exclusion of evidence resulting from privileged communications); RCW 9.73.050 (mandating the exclusion of evidence obtained in violation of RCW 9.73.030, which prohibits the interception and recording of private conversations). ¶51 Mr. McCuistion also argues that by enacting subsection (4) in direct response to In re Detention of Ward, 125 Wn. App. 381, 104 P.3d 747 (2005), and In re Detention of Young, 120 Wn.

App. 753, 86 P.3d 810 (2004) (Young II), the legislature overstepped its authority by attempting to contradict previous judicial determinations. In Young II, an individual previously found to be an SVP sought an evidentiary hearing on the basis of an expert’s opinion that he no longer met SVP criteria in light of his advanced age. 120 Wn. App. at 761. The State argued that the expert’s opinion was not grounds for a new evidentiary hearing because it implied that the individual had never been an SVP and thus attacked the initial grounds for commitment. Id. at 762. The Court of Appeals held that the validity of Mr.

Young’s initial commitment was irrelevant and that due process requires an evidentiary hearing whenever an individual presents sufficient evidence to prove he does not qualify as an SVP, whether or not he has participated in treatment. Id. at 758 n.7, 759-60. In Ward, the Court of Appeals relied on Young II in holding that “[i]f a detainee provides new evidence establishing probable cause that he is not currently a sexually violent predator, due process requires a trial on the merits, regardless of whether his evidence could have also challenged the basis of his original commitment.” 125 Wn. App. at 386.

In enacting the 2005 amendments, the legislature took direct aim at these decisions. Laws of 2005, ch. 344, § 1 (“The legislature finds that the decisions in In re [Det. of] Young, 120 Wn. App. 753, review denied, [152] Wn.2d [1007] (2004), and In re [Det. of] Ward, [125] Wn. App. [381] (2005) illustrate an unintended consequence of language in

chapter 71.09 RCW”). ¶52 Contrary to Mr. McCuistion’s contention, this legislative action did not run afoul of separation of powers principles. Both Young II and Ward were Court of Appeals decisions and, as such, did not provide the final word on the constitutionality of denying an evidentiary hearing based on actuarial evidence indicating that an individual no longer meets SVP criteria. Thus, the legislature was free to enact the legislation it did and await a final pronouncement from this court on the constitutionality of its actions. CONCLUSION f 53 We hold that Mr.

McCuistion had neither a statutory nor a constitutional right to an evidentiary hearing because he did not present prima facie evidence that his condition had changed such that he no longer met the criteria for confinement. In addition, we conclude that on their face and as applied to Mr. McCuistion, the challenged amendments do not violate substantive due process, procedural due process, or separation of powers principles. Accordingly, we uphold the 2005 amendments to RCW 71.09.090 and affirm the Court of Appeals. C. Johnson, Owens, Fairhurst, and J.M. Johnson, JJ., concur. In October 1998, while Mr.

McCuistion was still incarcerated, the State petitioned to commit him to the special commitment center. The trial court found probable cause for commitment and entered a commitment order. Due to various delays, he was not found to be an SVP and indefinitely committed as such until October 2003. After the show cause hearing had taken place, Mr. McCuistion apparently-supplemented the record with various SCO records as well as an inspection of care report addressing conditions of care at the SCC. See Verbatim Report of Proceedings (Oct. 27,2006) at 19-20; CP at 574.

The court found that these new materials were “relevant” but did not compel the court to order an evidentiary hearing. CP at 577. Fox I was reversed on remand after this court held in In re Detention of Elmore, 162 Wn.2d 27, 168 P.3d 1285 (2007), that the 2005 amendments were not retroactive. See In re Det. of Fox, noted at 144 Wn. App. 1050, 2008 WL 2262200, 2008 Wash. App. LEXIS 1309 (Fox II) (reversing Fox I in light of Elmore).

RCW 71.09.090(3) sets forth the procedures for an evidentiary hearing to determine whether an SVP is entitled to unconditional discharge or conditional release to a less restrictive alternative. By way of contrast, Mr. McCuistion asks this court to take judicial notice of disciplinary problems among other SCC residents, as described in major newspapers. Even if we were to take judicial notice of this evidence and consider it in conjunction with Mr. McCuistion’s other evidence, it is not sufficient to establish probable cause.

Though not all SCC residents behave well in a secure facility, evidence of a resident’s good behavior at the SCC does not provide a sufficient basis for a court to conclude that Mr. McCuistion no longer meets the definition of an SVP. SVPs are not precluded from collaterally attacking their initial commitment orders. However, the appropriate vehicle for a collateral attack is a personal restraint petition. Mr. McCuistion urges this court to disregard the factual assertions in King County Prosecutor Satterberg’s amicus brief, arguing that appellate briefs cannot rely on facts outside the record.

However, we declined the invitation to disregard this information when we denied Mr. McCuistion’s petition to strike Satterberg’s brief. At the same time, by allowing answers to the State’s motion for reconsideration and to the various amicus briefs filed on behalf of the State, we gave Mr. McCuistion an opportunity to counter the factual assertions of the State and its amici.