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Washington SVP Statutory Amendments re Re-Commitment Hearings Not Retroactive

Washington state civilly committed sexually violent predators (SVPs) Harry Fox, Robert Jones and Anthony Jacka appealed the dismissal of their previously-ordered re-commitment hearings. The appellate court found that SVP statutory amendments operated to deny Fox and Jones hearings, but Jacka's hearing was ordered. Upon remand from the Supreme Court, the Court of Appeals found that the SVP amendments could not be applied retroactively.

After SVP evaluations by psychologist Dr. Richard Wollert, re-commitment hearings for Fox, Jones and Jacka were ordered in separate proceedings. Subsequent amendments to RCW 71.09.090 required cancellation of the hearings due to a newly-required need for increased demographic factors. Fox, Jones and Jacka appealed, arguing violations for 1) retroactivity, 2) limiting types of evidence allowable under the separation of powers doctrine, 3) due process for preventing show cause mitigation, and 4) equal protection for allowing Dr. Wollert's testimony only in the initial stages of the re-commitment proceedings.

The Court of Appeals for the State of Washington, Division II, after considering community protection and sex offender treatment needs, held that the amendment's provisions supported the legislative intent. The appellate court found that no safeguard infringement on civil commitment challenges existed. However, Jacka's re-commitment hearing denial was reversed for progressive evidence sufficiency. See: Fox v. State of Washington, 138 Wash.App. 374, 158 P.3d 69 (Wash.App. Div. 2, 2007).

The Washington Supreme Court accepted review of the appellate decision and remanded the case for reconsideration in light of In re Detention of Elmore, 162 Wn.2d 27, 168 P.3d 1285 (2007). Upon remand, the Court of Appeals reversed its previous ruling as to Fox, and ordered the lower court to hold “a full evidentiary hearing at which the State must establish, beyond a reasonable doubt, that Fox remains an SVP....” As the prior ruling related to Jones was not based on the retroactivity of the statutory amendments, the decision as to Jones was affirmed. See: In re Detention of Fox v. State, Case Nos. 34145-0-II, 33596-4-II and 35221-4-II (Wash.App. Div. 2, 2008); 2008 WL 2262200.

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Related legal case

Fox v. State of Washington