please the court docket would like to reserve three minutes for a bottle certainly the fourteenth amendment to the united states constitution prohibits the continued commitment of persons who are civilly committed when the reason for that commitment knowing that you remember what do you try to captured we're trying to accomplish a procedure that we believe the statute provides for to ensure that mr and mr butler have fair hearings in the future because we saw on the record that the state was taking this position that they needed to have a judgment showing that there was no probable cause based on each of those years and each of the facts that occurred over those years so that they could use that judgment in the future to prevent future potholes mr butler how would they be able to do that to use that judgment in the future well when we look at these standards decision we know that under the prior version of the statute the question at the end your examination proceeding was that had things changed since the initial commitment which was that after a trial and then after stanford was careful to say you know the statutes been amended and then the statute provides for review based on this annual period period so the way that they would and that they're asking to use it would be to say we have a asking to send it back for a rehearing because we think that the remedy based on a waiver should be that the matter simply taken off call and everything that happened in two thousand and fifteen two thousand and sixteen two thousand and seventeen could be considered at the appropriate time and that's not from this field all right we're aware of that susan so that was interpreted with change wasn't it was however what the state is seeking is a judgment saying that those facts do not accept probable cause and then the future they'll be saying well look you can't essentially cutting up the progress coming up the changes into pieces and same each one of those pieces there was no probable cause based on the facts based on the treatment based on the changes in but there does not need to be an annual we determine ational renewal of the commitment order when you look in comparison to the mental health the developmental disabilities code those orders for commitment are time limited to ninety days one hundred eighty days and if the state doesn't file a petition within that time to renew the commitment then that person would have to be released and they would have to proceed on a whole new petition to commit them but this is a different state yes it is one of the questions i have is that petition for discharge and then it has the waiver of right to petition and it says i putting my initials on each paragraph of this form and signing this waiver form i know that and then no all right the form is one way that they can affirmatively waive their right to petition for discharge but if we read the statute as limited that's the only way that they could affirmatively waive their right to this charge that would prevent them from fir knowing what the examiners opinion is before they make that determination and it would prevent them from consulting with an attorney before their attorney before they make a determination of whether to waive that right if you were in a stage of this is specifically state and the waiver form to the court and then if the person does not affirmatively waive the right to petition the court cells that are probable cause so what i'm saying i guess is that that you know the idea of a waiver has to be knowing  intelligent so they need to know what they're waving you need to know what the examiners opinion is and they need to be able to consult with their attorney because under the statute they're not even entitled to be present for these hearings now the trial court or they're not being present for the hearing right but there's nothing documents so perhaps the procedure that should be followed i think i understand your argument that you can't really waive this until you've had a chance to fully understand your rights and perhaps it should be done with counsel so shouldn't the person be brought before the court perhaps to affirmatively knowledges this point in a way for a petition for discharge certainly that would be i think one way of doing it in this case there was no objection to filing the written waiver the trial court accepted the written waiver and acknowledge that that written waiver and that they have waived the right to petition for discharge there's been no dispute by the attorney general in the fact his signature or whether this was in fact something that had been explained to him that he could have that could have been raised in the trial court and we could have brought him in the court and he could have said whatever and answered any questions that the court might have just like if somebody is waving their way toward jury trial or you know waiving the right to testify but none of that happened ok and i don't i don't pretty here but the fact that he did submit this waiver has he were fitted any other you know procedures as far as being brought into court what certainly not if there was a question as to the voluntary l i mean often the counsel on the individual has an opportunity to consult would his lawyer but it appears from the statute that the waiver should be signed in conjunction with the examination not this  pears that there was an examination then later line when your client met with counsel then to determine to sign the waiver yes that and i think reading the statute it does contemplate that the be provided at the time of the interview right but at the time of the interview the person doesn't know what the examiners what so that's my problem with this is that it seems like the lawyers making the the assessment not not the examiner when the form is be because the the presence of the examiner during a waiver of rights is not strictly required by the statute and should not be read into the statute because that would preclude the person from actually making believe that they were no longer sexually dangerous persons you're not contesting are you in that why a person would waive the hearing because they are conceding that at the particular time they there's no probable cause to believe if the person does not affirmatively waive their right to petition for this charge and that's i think the meaning of the affirmative waiver is a distinguishes between the circumstance where the person does nothing in which case the rendon decision said that they have a petition for discharge filed by operational law and somebody who comes in and says no i'm not going to petition for this charge i'm just going to you know go on until next year and there's another examination up i think we're all struggling with what is the harm here what is the report time period but i believe the twenty fifth year sixth in prime periods as well well this is going back to just make price question then what does that leave us with all these orders th it leaves us with leaving intact those facts from those time periods that can be used in the future without having somebody come in and say well no those facts aren't good enough and coming up here here's here's an argument  attorney general talked with the prosecuting attorney cannot argue essentially if those those previous findings that they all support you know no order releas nuts why couldn't the someone a smart lawyer argue the same thing for example well if it's before the jury right which the response in time to  the facts from those years the changes from those years weren't good enough and that is just an argument about evidence in a hearing i mean it wouldn't someone have to don't you have to have testimony from experts and what the experts in the future we are because that's what the state relied on for saying that they needed this is judged and if we look at the arms them originally the decision those were critical factors to the on our supreme court's terminations and they said they will those expert opinions did not give probable cause or a change in circumstances since the trial so those are critical elements to even getting to a jury you have to get to the probable cause first and the question before the jury is not limited to the most recent periodic resume anation the question is just as a whole whether the person is still sexually violent person shares so so both sides will have the opportunity to probe and explore and talk about the past wouldn't they would and that's why we should have the judgment vacated so that it's not giving this issue precludes civil claim for clues about facts to a judgment when they have no right to cross examine real here that's correct i mean there was a hearing where the court if you want to call it a hearing where the court reviewed the reports and that's sort of the hearing that's contemplated by the statute if there is no if we gave you another hearing what would you do differently now we're not asking for here in the stand but really require well no not in this instance of wait affirmative waiver of the right to petition for discharge the act only requires a how the court rules you know if they're able to carve up the progress the person has made and that definitely gets away from what the constitution authorizes why should they be allowed to do i don't think there's anything in the statute says that they get to come up and say progress i don't understand where they're coming from in the sticky issue that's just simply an argument that they're going to make and don't you get to argue that there has been a progression coming you know from the first time that he was committed to where we are today don't you get to argue that too yes but there's an argument that they're making that would be supported by the judgment and the only time that challenge that judgment is now we can file the appeal to you from now when you're actually using the judgment and say that judgment should have been entered matters and then there was a misunderstanding whether or not you were in agreement with no probable cause right right and then when that got clarified then they said well we're still trying to see what would our motion because we feel that the contesting that right certainly that the trial court accepted the waiver and found on page are three twenty the report of proceedings at three twenty one from that you're waving your right to petition for discharge him to a he respond it's him in harm by not accepting the waivers and not going forward with it i mean by that because all of the treatment they have been doing all of the changes in professional knowledge that occurred over the years that are covered by the judgments in this appeal are now have a judgment that says those things are there's no probable cause to believe based on those facts that the person should no longer be found it's actually a person and that is going to harm them and impair them in the future from getting this charge because they will not be able to rely upon all those facts as something that could lead to a probable cause i'm just like i mean i'm a medical professional  look at all the years of commitment if he or she were to say at some point this person should be conditionally released and it's based on my review of everything is it would be based on that the so that they're no longer a sexual person so the question is necessarily limited by the judgment being in effect so sending them back for a hearing i remained in the back or hearing dad doesn't care there's no because why not because they want but i don't think it rises to the same as having the ability to argue the trial court that there was no probable cause is even stronger the truck or the term helped injured he has had a judgment but how has he been injured because he hasn't been prohibited from arguing any of these things here at him he should be allowed to argue in future see that's the key to the  it's prejudicial because it sets up a hurdle for him to overcome what is it that he has to show backs that don't include the twenty fifteenth or twenty seventeen facts to get this  there is some kind of prejudice or some kind of damages some kind of injury here that would make this reversible error mr johnson we're going to give you some more time but i think your argument is that he he has been damaged because yes in the future about why it will be used against them because that's what the attorney general in the trial court said that they want to go judgment for but can't they also argue let's assume we agreed with you that once somebody waves affirmatively waive the right to petition for discharge that at a hearing in the future the attorney general would be as equally able or allowed to argue that he acknowledged just last chair in his waiver that he had isn't is just discordant and we mentioned earlier that every year in order to continually detain him courts he can't just say well he waived his petition so everything's because that person says i don't want to hearing this year that is what the judge was concerned with ok but the statute in this case does not provide for time limits on the commitment the commitment continues until there's a judgment that the person is no longer a sexual sense that time there was another decision from this court actually i think it was right on that said that there is no burden on the state to proof that there's no probable cause in this charge to proceed now certainly there's a burden for the question was also as to emily isn't that their responsibility and will to make that to bring that to the court's attention yes there's a new legal requirement to bring to the court's attention but there's no requirement to have that judgment or determination made by the court and the exception to that is if there is an affirmative waiver and your complaint is this judgment has harmed him to say that there is some prejudice today so that we should reverse any future and that is we actually disagree that that's what the eighty's argument that's what the assistant attorney general argued below in any event this judgment cannot be used for any kind of issue or claim reclusion it cannot be used against the basically echoes what the trial court's concern is and that was you know listen twenty fifteen twenty sixteen twenty seventeen there is bend no finding of no probable cause here and we're a little worried that if there's a waiver here we're going to go in on four plus years with the back to the how this all started back so these matters were basically continued because of the frye objections that were raised so when when they were initially raised and each said yes to far as i know those were continued for further hearing and that is actually common you know these right now are not a question i do want to know so the court entered is they continue them for further hearing or disposition yes you're ok and and sir you and yet if there's a continual judgment entered every year there really hasn't been change well there's always a change if nothing else responded it's got a year older and we know that that matters so the question is whether there is then a such that the person is no longer sexually violent and that's the real answer so the reason for the change is one which in the statute i think is you know if there's a better finding of no probable cause in the respondents thirty three years old and in the next year despondent doesn't go to treatment doesn't do anything and then petitions for discharge again then the court doesn't have to hold a probable cause hearing because there's you know we've always been a case right there hasn't been there hasn't been a change but it does very little work to change lan investigating especially because you know and there's you know that's that's not ever here necessarily based on the constitution on the statute of this but the court doesn't have to do an independent investigation of your ways over here but at some point that the trial court should have discretion to look into bank shouldn't they have that right that they should you be controlling it or the state be controlling it why shouldn't they responded to now personally i think if that's going to look hurt it shouldn't occur on a piece of paper i don't know that that's an affirmative n execute a waiver without legal representation and that's the other question so we can actually be a partner who are we get into that i mean how can a person with mental health issues sign a waiver without legal representation what kind of a waiver with that is unclear and that question is not before the court at this moment because we actually do agree that there was an affirmative waiver here in this case in this case  it anybody could say a waiver in a person with mental health issues what good would that waiver be and that is all the more reason to allow the trial courts some discretion even where there has been you know some kind of waiver whether it's a piece of paper  right decision for discharge when neither one of these gentlemen was brought before the court to say i understand all of these things that i'm giving up there are six of them in the waiver right and and he's never asked  open court where the court can examine these response to determine if in fact they are of firm it simply waived their right if they understood what they were doing i mean i don't see how a court makes this determination without be and there is no case law on whether on which kind of right all of this is going to be help for another year till the next examination i would think it's a little significant what they're wavering is agreed and or you could have what happened here which is the trial court just makes the has discretion to simply enforce the waiver as it is and make a conclusive binding based on math or to do some independent research namely reading the resume initial reports and that's what happened here so i remained it might be appropriate in another situation especially if the truck or hands made that finding but because there's no harm to the respondents going forward they remain here would just be a it would be an unnecessary use  change our position is that yes they have the right to argue that they haven't been injured and no they haven't been injured so so we don't think that there's a standard issue however and actually that we're you know we're not outcome here is there are two possible outcomes one is the exact same thing that would happen if there was a waiver which is they stay committed another year and when it gets to the next probable cause hearing you use the statute not any argument any error erroneous argument that any parties ma some further proceedings to determine whether there is and whether we need to have a jury so is there a time then they keyed in the order then if we follow that the potential harm is so we vacate the order then i think it's very likely that needle and that's again all the more reason for the trial person not to rely on these waivers in every case and to allow the trial court some discretion you know regardless of whether there's been you know motions made or a waiver or an actual waiver or affirmative waiver or of that rationale was because the mental disorder that predisposes them commit acts of violence would not necessarily be one of the winners in some cases it could yes certainly certainly could and i think that whether there's harm in this case certainly depends on the interpretation of the statute and the idea that there will be a bad argument in the future that's accepted that's what was that argument was already made so it's not a possibility