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California Sexually Violent Predator's Recurring Habeas Claims Ruled Not Moot, But Nonetheless Merit
Moot, But Nonetheless Meritless
by John E. Dannenberg
The Ninth Circuit U.S. Court of Appeals held that because the two-year
interval between recurring civil commitment trials for California sexually
violent predators (SVP) was shorter than the time to "fully litigate"
federal habeas claims flowing from them, the state's defense of mootness
following an intervening recommitment trial would be disallowed. On the
merits, however, the court held that the prisoner's earlier technically
defective parole revocation would not insulate him from proper later
Christopher Hubbart was California's first SVP committed under the then new
law, Welfare and Institutions Code § 6600, et seq. His criminal record
makes him a literal "poster boy" for such civil commitment. He was first
arrested in 1972 for 25 rapes in the Los Angeles area and committed under
the former § 6300 for treatment at Atascadero State Hospital. Doctors
deemed him cured and released him in 1979. Moving to the San Francisco
area, Hubbart within two years had raped another fifteen women and in 1982
was sentenced to 16 years in state prison. Shortly after release on parole
in 1990, he began attacking more women, bringing him another three years
prison time. Although paroled in 1993, he was nonetheless returned to
prison without violating his parole on a Board of Prison Terms (BPT) action
relying upon a former revocation regulation that unilaterally permitted
forced psychiatric treatment. (Cal.CodeReg., Title 15, § 2616(a)(7).)
Hubbart challenged the Board's action in a habeas petition but was denied
through the California Supreme Court. When § 6600 became the law on January
1, 1996, a petition to commit Hubbart was filed the next day by the Santa
Clara County District Attorney. Hubbart was given the prescribed
psychological tests and trial, and was quickly committed under the new law.
In the meanwhile, another SVP prisoner successfully challenged use of the
former BPT psychological revocation regulation, inspiring Hubbart to
promptly file a "me too" petition that was denied through the California
Supreme Court. Hubbart went on to U.S. District Court with a 28 U.S.C. §
2254 petition, claiming denial of equal protection and due process.
All through this period, Hubbart continued to be recommitted every two
years, per the procedures of § 6600. But since his habeas action challenged
earlier SVP commitments as defective, the state argued that the defects, if
any there be, were cured by the later recommitments. The Ninth Circuit
sharply disagreed, applying the "capable of repetition, yet evading review"
exception to the mootness doctrine expressly to California SVP litigation.
Going to the merits, the court then rejected Hubbart's several U.S.
Constitutional claims. As to his argument that the state failed to follow
its own laws in confirming him as an SVP, the court held that federal
courts do not sit to review state court decisions of state law, except as
to direct violations of the U.S. Constitution. That his first commitment
(the psychological parole revocation) was illegal was rejected. Section
6600 only required that the prisoner be in the custody of the California
Department of Corrections (CDC) not that it be lawful. And where the error,
as here, was in "good faith," the procedural safeguards of the later SVP
commitment process were sufficient due process to protect Hubbart's
The court also rejected Hubbart's equal protection claim, grounded in
treating him differently than the other prisoner who had successfully
challenged the earlier psychological revocation regulation. It deemed this
to simply amount to a restatement of his unavailing due process claim.
Hubbart's final equal protection claim tried to parse a difference between
the alternate statutory language "mental disorder" and "severe mental
disorder." But the court noted that the California Court of Appeal had
ruled on precisely this point, holding that "the term 'mental illness' is
'devoid of any talismanic significance' under the Due Process Clause" and
that "not every disparity between commitment procedures ... amounts toga
denial of equal protection." Accordingly, the Ninth Circuit upheld the
district court's denial of Hubbart's federal challenges to California's SVP
commitment laws. See: Hubbart v. Knapp, 379 F.3d 773 (9th Cir. 2004).
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