IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter ofthe Detention of 

### ) No. 77471-9-I 

### ) C.B. 

### ) DIVISION ONE 

### ) PUBLISHED OPINION 

### )

_________________________________

### ) FILED: June 17, 2019 LEACH, J.

— C.B. appeals the trial court’s order for an involuntary 90-day commitment. She claims that she did notwaive her alleged constitutional rightto
a jury trial. But C.B. does not have a constitutional right to a jury trial in this proceeding. And because C.B. was given notice of her statutory rightto demand
ajury and did not do so, we affirm. FACTS In July 2017, a King County designated mental health professional detained C.B. for 72 hours of psychiatric evaluation and treatment. Three days later, Harborview Medical Center filed a 14-day involuntary treatment petition. After a probable cause hearing, the trial court ordered her committed for 14 days. Her attorney acknowledged receiving a copy of the court’s findings of fact, conclusions of law, and order by signing the original. This document included a statementthat C.B.’s defense attorney notified C.B. that she had the rightto afullNo. 77471-9-I /2

hearing and/or ajurytrial if Harborview sought involuntarytreatment beyond this 14-day period. In August, Harborview asked the court to commit C.B. involuntarily for 90 days. At a trial setting hearing, the trial court scheduled a bench trial on this request. C.B.’s attorney signed the scheduling form and initialed the statement confirming C.B.’s oral waiverofajurytrial. At trial, C.B.’s defense attorney explained why C.B. could not be transported in person to court. She said she had informed C.B. of her rightto be present and that C.B. had waived that right.1 The court accepted the requested waiverofappearance. Witnesses testified that C.B.’s mental impairment resulted in her inability and unwillingness to care for herself. The trial courtfound by clear, cogent, and convincing evidence that C.B. was gravely disabled and less restrictive alternativesto 90 days of involuntary commitmentwere not in her best interest. It ordered C.B. involuntarilycommitted for90 days. C.B. appeals.

1 C.B.’s attorney and the court discussed the possibility of a videoconference or phone call, but C.B. declined. On August28, 2017, this court concluded that a respondent to a petition for involuntary treatment was not “present” under RCW 71.05.310 in a videoconference. It did not rule on telephonic presence. In re Det. of J.N., 200 Wn. App. 279, 290, 402 P.3d 380 (2017). -2-No. 77471-9-1/3

ANALYSIS

An appellate court reviews a claim ofa constitutional rightto ajurytrial de novo.2 Italso reviewsthe interpretation ofa statute orcourt rule de novo.3 Mootness As a preliminary issue, C.B. asserts that hercase is not moot.4 We agree. For certain commitment orders, including the one C.B. challenges, Washington’s involuntary treatment act (ITA)5 provides for collateral consequences in later petitions and hearings.6 So the challenged involuntary commitment order may have an adverse impact on C.B. in any future effort to involuntarily commit her.7 Because this case is not moot, we address the merits of herappeal. Rightto JuryTrial C.B. claims thatthe Washington State Constitution guarantees the rightto
ajurytrial in 90-daycommitment proceedings. We disagree. 8

2 In re Det. ofS.E., 199Wn. App. 609, 614, 400 P.3d 1271 (2017), review denied, 189Wn.2d 1032 (2018).

~ Dept of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002); Statev. McEnroe, 174Wn.2d 795, 800, 279 P.3d 861 (2012).

~The State does notaddressthis issue.

~ Ch. 71.05 RCW. 6 In re Det. of M.K., 168 Wn. App. 621, 626, 279 P.3d 897 (2012) (citing RCW71 .05.012, .212, .245). See M.K., 168Wn. App. at625. 8The State does notdiscussthis issue. -3-No. 77471-9-114

The Washington Constitution provides, “The right of trial by jury shall remain inviolate.”9 To determine whether this right exists for a particular case, Washington courts use a two-step analysis.1° First, the court identifies the scope ofthe right to ajurytrial in 1889.11 Second, the court decides whether “the type ofaction at issue is similarto the one thatwould include the rightto ajurytrial at thattime.”12 The Code of 1881 was in effectwhen Washington adopted its constitution in 1899.13 Section 1632 of this code provided an individual with the right to demand a jury trial in a case to decide whether she could be committed indefinitely to a “hospital for the insane.”14 So, in 1889, the jury trial right attached to a case involving a request for indefinite detention. But no statute provided for a defined period oftemporary confinement similarto the provisions of the ITA. So in 1889 the right to a jury trial did not extend to a request to involuntarilycommita person for90 days. Our Supreme Court’s consideration of other provisions of the ITA shows that a proceeding to decide if a person should be involuntarily committed for 90

~ WASH. CONST. art. I, 

### § 21. 10 In re Det. of M.W., 185 Wn.2d 633, 662, 374 P.3d 1123 (2016) (citing Endicottv. Icicle Seafoods, Inc., 167Wn.2d 873, 884, 224 P.3d 761 (2010)). 11 MW., 185Wn.2d at662 (citing Endicott, 167Wn.2d at 884). 12 MW., 185Wn.2d at662 (citing Endicott, 167Wn.2d at 884). 13Sherwin v. Arveson, 96Wn.2d 77, 83, 633 P.2d 1335 (1981). 14SE, 199Wn. App. at617. -4-No. 77471-9-I I 5

days is not similarto the 1889 commitment proceeding that included a right to a jurytrial. In In re Detention of M.W.,15 our Supreme Court considered whether a provision ofthe ITA’6 providing the procedure for recommitting individuals found incompetentto stand trial forviolentfelonies violated the constitutional right to a jurytrial. The court held itdid not.17 Wefind the court’s explanation instructive: This civil commitment process is distinguishable from indefinite civil commitment schemes that require jury trials on initial commitment because the ITA involves only short periods of commitment and requires the State to file a new petition and carry a high burden of recommitment at the expiration of each period (here, every 180 days).[18) For purposes of our analysis, the 90-day commitment period in issue cannot be distinguished. So no state constitutional jury right exists for a 90-day commitment underthe ITA. C.B. contends that In re QuesnelF~9 recognizes a constitutional right to a jury trial applicable here. It does not. In Quesnell, the Washington Supreme Court held that a guardian ad litem could notwaive an individual’s right to ajury trial in a commitment proceeding after that individual had asserted it through

15185Wn.2d 633, 641, 374 P.3d 1123 (2016). 16 Former RCW71 .05.320(3)(c)(ii) (2013). 17 M.W., 185Wn.2d at663. 18 M.W., 185Wn.2d at663. 1983Wn.2d 224, 240-41, 517 P.2d 568 (1973). -5-No. 77471-9-I /6

private counsel.2° In a footnote, the court stated that “[ojur ruling in this case is limited strictlytothe single issue involved.”21 Recently, this court decided that no constitutional rightto ajurytrial exists for a 14-day probable cause hearing under the ITA.22 Here, we extend that holding and conclude that the Washington Constitution does not provide for a rightto ajuryforproceedings on a petition fora 90-day involuntarycommitment. WhetherC.B had a constitutional right ora statutory rightto ajurytrial, the result would be the same. She must demand it or it is waived.23 The statutes and casesfrom the Code of 1881 to the present all have required a partysubject to a proceeding for involuntary commitment demand a jury for the right to attach.24 TheWashington Constitution, article I, section 21 allows the legislature to “provide

. . . for waiving of the jury in civil cases where the consent of the parties interested is given thereto.” In 1973, the legislature adopted the ITA.25 It requires that a defendant demand ajury for a 90-day proceeding orthat right is

20 Quesnell, 83Wn.2d at242. 21 Quesnell, 83Wn.2d at242 n.23. 22 S.E., 199Wn. App. at627-28. 23 SE., 199 Wn. App. at 616 (quoting CODE OF 1881, ch. 110 

### § 1632); Quesnell, 83 Wn.2d at 242; In re Ellern, 23 Wn.2d 219, 224, 160 P.2d 639 (1945).24 S.E., 199 Wn. App. at 616 (quoting CODE OF 1881, ch. 110 

### § 1632); Quesnell, 83Wn.2d at242; Ellern, 23Wn.2d at224.

25 Ch. 71.05 RCW;

~ 199Wn. App. at625. -6-No. 77471-9-I I 7

waived.26 So, whetherthe right is constitutional orstatutory, the act provides the method for its assertion: demand ajuryor losethe rightto have one. We next consider C.B.’s claim that she had to be notified in open court of herjurytrial right before itcould bewaived. We again disagree. MPR 3.3 contains the procedure for demanding a jury in an ITA proceeding. C.B.’s claim requires an interpretation of this rule. When an appellate court interprets a court rule, it uses the same tools used for statutory construction.27 When an appellate court interprets a statute, its goal is to “give effect to the legislature’s intent.”28 The court first looks to the rule or statute’s plain language, “considering the text of the provision in question,” its context, ‘related provisions, and the statutory scheme as a whole.”29 The court seeks a construction that avoids constitutional problems if possible.3° Courts construe civil commitment rules and statutes strictly because they involve a deprivation of liberty.31 Butwe also ‘keep in mind the need to satisfythe intentofthe statute [or rule] while avoiding absurd results.”32

26 RCW71 .05.300, .310; see also MPR 3.3(b). 27 State v. George, 160Wn.2d 727, 735, 158 P.3d 1169 (2007). 28 TracFone Wireless, Inc. v. Dep’t of Revenue, 170 Wn.2d 273, 281, 242 P.3d 810 (2010).

29 State v. Evans, 177Wn.2d 186, 192, 298 P.3d 724 (2013). 30 Statev. Chester, 133 Wn.2d 15, 21, 940 P.2d 1374 (1997). 31 In re Det. ofSwanson, 115Wn.2d 21, 27, 795 P.2d 962 (1990). 32 Swanson, ll5Wn. 2d at28. -7-No. 77471-9-I /8

The ITA gives the State the right to request a longer period oftemporary commitment ifa person involuntarilycommitted fora short period oftime exhibits
a mental impairment that renders her gravely disabled.33 To address this possibility, the ITA requiresthe trial court provide a person committed for 14 days with this written notice: “if involuntary treatment beyond the fourteen day period

. . . is to be sought, such person will have the right to a full hearing orjury trial as required by RCW71.05.310”when a 14-day petition is granted.34 If the State determines additional commitment is necessary, it may then file a 90-day involuntary petition,35 and the court clerk “shall set a time for the person to come before the court on the next judicial day after the day of filing unless such appearance is waived by the person’s attorney.”36 The ITA states that “[altthetime setforappearancethe detained person shall be brought before the court, unless such appearance has been waived and the court shall advise him or her of.

. . his or her right to a jury trial.”37 It also provides that “[i]f the person named in the petition requests ajurytrial, the trial shall commence within tenjudicial days ofthefirst courtappearance afterthe probable cause hearing.”38

33See, e.ci., RCW7I.05.240(3)(c).

~ RCW71.05.240(5).

~ RCW71.05.300. 36 RCW7I.05.300(1).

~ RCW71.05.300(2). 38 RCW71 .05.310. -8-No. 77471-9-I I 9

MPR 3.3 describes more specifically the procedure for demanding ajury in an ITA proceeding. The Washington Supreme Court adopted this rule under the authoritygranted bythe ITA.39 MPR 3.3(b) provides thatthe defendant must demand ajurytrial “[wjithin twojudicial days afterthe person detained is advised in open court of his right to a jury trial as provided in RCW 71.05.300.” If a defendantfollows this procedure, thejurytrial must commence within tenjudicial days after the preliminary appearance.4° If the defendant does not timely demand ajurytrial, “the mattershall be heard withoutajury.”41 C.B. contends that MPR 3.3(b) requires the defendant be notified in open courtofthe rightto ajurytrial. We disagree. The statutory scheme for involuntary commitment anticipates that the defendant may not be present forthe trial setting hearing on a petition for a 90- day commitment. It states that ifa petition is filed, the court “shall set a time for the person to come before the court on the nextjudicial day afterthe day offiling unless such appearance is waived by the person’s attorney.”42 At this hearing, “the court shall advise [the person subject the petition] of.

. . her right to a jury

~ RCW 71 .05.570 (conferring authority upon the Washington Supreme Court to “adopt such rules at it shall deem necessary with respect to the court procedures and proceedings provided bythis chapter”).

40 RCW71 .05.310. 41 MPR 3.3(b). 42 ROW71.05.300(1) (emphasis added). -9-.No. 77471-9-1/10

trial.”43 This is the “open court” proceeding referenced in MPR 3.3(b). If the person waives appearing in court on this date, she also waives the verbal notice that RCW 71 .05.300(2) instructs the trial court to give her. C.B.s claim would eliminate the right to waive an appearance conferred by the statute and force every subject of a petition to appear, regardless of their physical or mental conditions, so the court could advise them oftheir right to ajury. We reject this unreasonable and unnecessarily burdensome result. C.B waived her appearance at the trial setting hearing. By waiving this appearance, she waived her rightto be orallyadvised in open courtof her rightto demand a jury. C.B. did not demand a jury trial. The trial court did not err by conducting a hearing on the petition withoutajury. C.B. next claims that she did notwaive her rightto ajurytrial because the record does not establish that she had notice of her right to a jury trial. But it does. The written order committing her for 14 days stated, “If involuntary treatment beyond the fourteen day period

. . . is to be sought, respondent will havethe rightto afull hearing orjurytrial as required by RCW71.05.310.” Italso stated that counsel had provided C.B. with a notice of C.B.’s rightto a hearing or jurytrial and that C.B. orallywaived this right in her attorney’s presence. C.B.s defense counsel signed this order indicating C.B. received notice and orally

~ RCW71.05.300(2). -10-No. 77471-9-I /11

waived her right to jury trial. Her current counsel’s claim requires that we presume hertrial counsel misrepresented her own and her client’s actions. We declineto do so. C.B. cites to Quesnell as support for her claim that the State must prove an affirmative waiver directly from C.B. But in Quesnell a guardian ad litem waived the right to a jury trial after the appellant, through private counsel, demanded it.44 Because ofthe demand, the right was not implicitly waived. A proceeding without ajury atthat pointwas properonly ifthe appellant had notice and provided an affirmative waiver.45 Quesnell provides no guidance where the defendantdoes not demand ajurytrial. C.B. also contends that her attorney failed to demonstrate specific authorization to waive the right to a jury on C.B.’s behalf. But she provides no authority to support her contention that specific authorization must be shown when a demand must be made forajury and, in the absence ofsuch a demand, waiver is implicit. Instead, she cites to two cases where a waiver orwithdrawal occurred after a demand was made.46 And she cites to two other cases that involve adoption and deprivation ofparental custody, neitherofwhich address an implicit waiver of the right to a jury trial that occurs when a party does not

~ Quesnell, 83Wn.2d at242.

~ Quesnell, 83Wn.2d at242-44. 46 Quesnell, 83 Wn.2d at 238-39; Graves v. P.J. Taggares Co., 94 Wn.2d 298, 305, 616 P.2d 1223 (1980). —11—No. 77471-9-I /12

demand one.47 Since she cites no authority on point, we assume that she has found none.48 Finally, C.B. claims that she had to knowingly, intelligently, and voluntarily waive the right for the waiver to be valid. In an earlier unpublished case we refused to interpret RCW 71.05.310 and MPR 3.3(b) to require knowing, intelligent, and voluntarywaiver ofthejury right, and we decline to do so now.49 The knowing, intelligent, and voluntary standard is the standard fora waiver ofa jurytrial in criminal cases.5° But a civil case differs from a criminal prosecution.51 And the general rule forwaiving a jury trial in civil cases under CR 38 is that a party implicitlywaives her right ifshe does notdemand it.52 C.B. contends that Godfrey v. Hartford Casualty Insurance Co.53 requires this courtto applya criminal standard to the analysis ofjurywaiver in civil aswell
as criminal cases. But, as the State points out, Godfrey is narrowly limited to

~ In re Adoption ofCociqins, 13 Wn. App. 736, 739, 537 P.2d 287 (1975); In reWelfare of Houts, 7Wn. App. 476, 482, 499 P.2d 1276 (1972). 48 Grant County v. Bohne, 89 Wn.2d 953, 958, 577 P.2d 138 (1978) (“Where no authorities are cited, the court may assume that counsel, after diligent search, hasfound none.”).

~ In re Det. ofJ.G., No. 70369-2-I, slip op. at4-5 (Wash. Ct. App. Aug. 19, 2013) (unpublished), http://www.courts.wa.gov/opinions/pdf/703692.pdf. 50 State v. Steqall, 124 Wn.2d 719, 724-25, 881 P.2d 979 (1994); State v. Hos, 154Wn. App. 238, 250, 225 P.3d 389 (2010). 51 Addinqton v. Texas, 441 U.S. 418, 428, 99 5. Ct. 1804, 60 L. Ed. 2d 323 (1979);

, 154Wn. App. at225. 52 CR 38(b)-(d); Sackett v. Santilli, 101 Wn. App. 128, 133-34, 5 P.3d 11 (2000), affd, 146Wn.2d 498, 47 P.3d 948 (2002).

~ 142Wn.2d 885, 898, 16 P.3d 617 (2001). -12-No. 77471-9-I /13

contractual waivers ofthe rightto ajury in arbitration clauses. Itdoes not purport to overturn case law and court rules that allow for implicit waiver ofthe right to jury trial in a civil case without a showing of knowing, intelligent, and voluntary action.54 In a subsequent case, Adlerv. Fred Lind Manor,55 the court explained, “The crux of our decision in Godfrey was that by knowingly and voluntarily agreeing to arbitration, a party implicitlywaives his rightto ajurytrial by agreeing to an alternateforum, arbitration.” C.B. fails to establish the court erred by conducting the trial on the 90-day involuntary commitment petition without a jury. The Washington Constitution does not confer a right to a jury trial for a hearing on a 90-day commitment proceeding. Under the ITA, C.B. had to demand a jury to receive one. And because she waived her right to appear, she also waived her right to be notified in open court of her right to a jury trial. By failing to demand a jury trial, she implicitlywaived herstatutory rightto one.56

~ Godfrey, 142Wn.2d at 898. 55153Wn.2d 331, 360, 103 P.3d 773 (2004) (citation omitted). 56 The State contends that even if criminal standards apply, C.B.’s waiver was valid. Since this is not a criminal case and C.B. did not demand the rightto a jury, we need not address this issue. We note that many issues relating to waivercould be avoided with an amendmentto MPR 3.3 that requiresthefiling of a written waiver of the right to a jury trial signed by any detained person who does not personallyappearatatrial setting hearing. -13-No. 77471-9-I /14

CONCLUSION

We affirm. TheWashington Constitution does not conferthe rightto ajury trial fora 90-day commitment proceeding. C.B.’s attorney provided her notice of her statutory right to a jury trial. By waiving her presence in court at the trial setting hearing, she also waived her rightto notice in open court of her statutory right to demand ajury. She failed to demand ajury and so implicitly waived the right. The trial court did not err in conducting the trial on the petition without a jury.

WE CONCUR:

V

-14-