### FILED NOVEMBER21, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE Inthe Matter ofthe Detention of JAMES McMAHAN

In the Matter ofthe Detention of SHAWNBOTNER ) ) ) ) ) ) ) ) ) ) ) No. 34192-5-111 (consolidated with No. 34198-4-111, No. 35236-6-111, No. 35237-4-111)
PUBLISHED OPINION

PENNELL,

### J.

- UnderRCW 71.09.070(1 ), the Department ofSocial and Health Services is required to obtain a mental condition examination ofeachperson committed
as a sexually violentpredator (SVP) at least once every year. We are asked to clarify whatthe legislature meantbythis requirement andwhatremedies are available for noncompliance.i j 

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1 No. 34192-5-III; 34198-4-III; 35236-6-III; 35237-4-III In re Det. of McMahan
Based onthe plain language ofthe statute, we hold the Department is required to finalize a mental condition examinationreport at least once every calendaryear. Should it fail to do so, a detained person's recourse is to demand a show cause hearing. Atthe show cause hearing, the State mayproffer any evidence that would otherwise be admissible, including an untimely examination report. The trial court's rulings to the contrary are reversed. 

## BACKGROUND James McMahan'sfirst motion James McMahan was civilly committed as an SVP on November 7, 2012. On November 25, 2015, Mr. McMahan filed a motion in superior court, alleging the Departmenthad failed to conduct its annual examination ofhis mental condition as required by RCW 71.09.070. Mr. McMahan's motionrequested a show cause hearing regarding his continued detention under RCW 71.09.090(2)(a). In brief, RCW 71.09.090(2)(a) permits a committedpersonto ask for a preliminary, "show cause" hearing to assess the possibility ofa full evidentiaryhearing regarding the person's continued eligibility for detention as an SVP. Atthe preliminary hearing, the State is burdened with presentingprima facie evidence supporting continued detention. RCW 71.09.090(2)(b). This burden may be satisfiedby reliance on an annual
2No. 34192-5-111; 34198-4-111; 35236-6-111; 35237-4-111 In re Det. of McMahan report preparedpursuantto RCW 71.09.070. 

### Id. Ifthe State fails to meet its burden, or if there is probable cause to believe the committedperson's mental condition has changed such that the criteria for detention are no longer met, the matter mustbe set for a full hearing. RCW 71.09.090(2)(c). 

### Ifthe State satisfies its burden, no further proceedings
are warranted. As part ofhis arguments to the trial court, Mr. McMahan demanded the State be prohibited from satisfying its burden ofproofat the show cause hearing through use ofan untimely annual examination report. Although the State had obtained a report that recommended continued SVP detention shortly after Mr. McMahan filed his initial motion, Mr. McMahan argued the court should exclude the report from evidence as a penalty for missing its deadline. The trial court agreed with Mr. McMahan. Because the Department had not completed Mr. McMahan's examination within one year ofhis commitment anniversary date, the trial court found the mostrecent report untimely. As a sanction for this deficiency, the court excluded evidence ofthe report from Mr. McMahan's show cause hearing. Without the information from the report, the trial court determined the State had failed its show cause obligation. Thus, the court ordered a trial onthe merits regarding whetherMr. McMahan should be released from commitment.
3No. 34192-5-111; 34198-4-111; 35236-6-111; 35237-4-111 In re Det. of McMahan 

### ShawnBotner'sfirst motion Shawn Botnerwas committed as a sexually violentpredator onNovember 17, 2014. On December 23, 2015, the Department completed an initial examinationreport that concluded Mr. Botnercontinuedto meetthe criteria for SVP detention. Despite the report's adverse recommendation, Mr. Botner filed a motion for a show cause hearing under RCW 7I.09.090(2)(a). Mr. Botner argued that because the Department's examination reportwas not issued within oneyear ofhis commitment date, it was untimely and should be excluded from evidence at his show cause hearing. The trial court agreed withMr. Botner and issued the sameruling in his case as was issued for Mr. McMahan. Specifically, the trial court granted Mr. Botner's show cause motion, excluded the examination report from evidence at the show cause hearing, and ordered a release trial. 

### Subsequentproceedings and motions Priorto the release trials, the State obtained discretionaryreview from our court and stays ofexecution. During thependency ofthe stays, the Department completed additional examination reports pertainingto McMahan and Botner. Mr. McMahan's report was completed on December 8, 2016. Mr. Botner's reportwas completed on November 28, 2016. Bothreports found a continued basis for SVP detention.
4No. 34192-5-111; 34198-4-111; 35236-6-111; 35237-4-111 In re Det. of McMahan
In December 2016, McMahan and Botner each filed a second motion to show
cause. They again argued the Department failed to meet the statutory one-year deadline for their examinations. Utilizing the anniversary date ofthe two men's original orders of commitment as a reference point, the trial court agreed and found the examination reports untimely. The court then excluded the reports from consideration at each show cause hearing and scheduled full evidentiary hearings for both men. Afterthe trial court's second set ofrulings, the State again sought discretionary review and requested stays ofall scheduled evidentiary hearings. These requests were granted and all four cases pertaining to McMahan and Botnerhave been consolidated for review in this appeal. ANALYSIS "Eachperson committed [as an SVP] shall have a current examination ofhis orher mental condition made by the department at least once every year." RCW 71.09.070(1). This appeal presents questions over what constitutes a "year;"what must be done within the yearlyperiod; and when compliance with the yearly deadline should be measured. We
are also asked what remedies are available ifthese obligations are not met. The questions posed tum on statutory interpretation, which we review de novo. Dep 'tof Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002).


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### No. 34192-5-111; 34198-4-111; 35236-6-111; 35237-4-111 In re Det. of McMahan 

### The statutory requirement of an examination at least once every year The fundamental goal ofstatutory interpretation is to discern the legislature's intent. In re Marriage of Schneider, 

### 173 Wn.2d 353,363,268 P.3d 215 (2011). The best evidence ofthis intent is a statute's language. Id. If

### a statute is plain on its face, we look
no further and do not engage in statutory construction. However, as part ofassessing whether or not a statute's meaning is plain on its face, we may look to the statute's context and related provisions. Campbell & Gwinn, 

### 146 Wn.2d at 11. We may also consult dictionaries to assess the meaning ofterms left undefined by the legislature. Cornu-Labat v. Hosp. Dist. No. 2, 

### 177 Wn.2d 221,231,298 P.3d 741 (2013). If, 

### after this close scrutiny, a statute's terms are only amenable to one reasonable interpretation, the statute must be declared unambiguous and we will give it that effect. Gorre v. City of Tacoma, 

### 184 Wn.2d 30, 42, 357 P.3d 625 (2015). The parties raise three questions regarding what the legislature meantby RCW 71.09.070(1)'s requirement that the Departmentmake an examination ofa committed person's mental condition at least once every year: 1. What is meant by the word year? 2. What must be done to satisfy the requirement that an examination be made at least once every year? 3. What action date should be utilized to determine the Department's 6

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### In re Det. of McMahan

compliancewith its yearly examination obligation? All three questions can be answered by careful review ofthe statute'splain language. 

### What constitutes a year? Neitherthe SVP statute northe Revised Code ofWashington define what is meant by the term "year." This lack ofexplicit definition hasprompted debate over whetherthe term means anniversaryyear or calendaryear. Ifthe termrefers to anniversary year, this leads to dispute overwhich anniversary is intended. Is it the anniversary ofthe committedperson's SVP determination orthe anniversary ofthe person's last mental condition examination? The inquiry need notbe so complicated. In commonparlance the term "year" refers to a cycle in the Gregorian calendar of365 or 366 days, divided into 12 months, beginning with January and ending withDecember. 

### Webster's ThirdNew International Dictionary 2648 (1993); 74 AM. JUR. 2D 

### Time§ 7 (2012). In contrast, "[t]heterm 'precedingyear' or 'yearpreceding'
... signifies a 12-month anniversary-to-anniversary period." 74 AM. JUR. 2o 

### Time § 7, at 626. Byusing the generic term ''year," instead of "anniversaryyear" or some form of"precedingyear," the legislature indicated its intent that the Department only complete an examination at least once every calendaryear.

7No. 34192-5-111; 34198-4-111; 35236-6-111; 35237-4-111 In re Det. of McMahan
Hadthe legislature intended "year" to mean anniversaryyear, it would have used clarifying language similar to that set forth in RCW 71.09.070(7), which sets an anniversary year deadline in special circumstances. 1 Because the language used in subsection (1) is substantially different than what is contained in subsection (7), it is apparent the legislature intended different meanings. Densleyv. Dep 't of Ret. Sys., 162 Wn.2d 210,219, 173 P.3d 885 (2007). Reviewing the term "everyyear" in both isolation and context, it is reasonably apparentthe legislature intended the State have some leeway2 in choosing the precise timing ofa committedperson's annual examination, so long as an examinationtakes place at least once every calendaryear. Such leeway does not lead to untenable results. Requiring the Departmentto conduct examinations once every calendaryear enables it to

1Subsection (7) sets a special anniversary deadline for an initial examination that takes place once an individual has been ordered recommitted after an unconditional release trial. In this unique circumstance, the Department's examination deadline is one year after entry ofthe recommitment order. 2 Such leeway appears to play an importantrole in the Department's current examinationpractices. According to a 2013 report submitted in the record for this case, a team ofseven individuals workto perform a majority ofthe annual SVPreviews. ROXANNE LIEB ET AL., WASH. STATE INST. FORPUB. POLICY, SPECIAL COMMITMENT CENTER FOR SEXUALLY VIOLENT PREDATORS: POTENTIALPATHS TOWARD LESS RESTRICTIVE ALTERNATIVES 14 (Jan. 2013); Clerk's Papers (CP) at 283. In 2012, the team was responsible for producing 245 annual reviews. CP at 285. The teamhas a performance goal ofproducing 25 percent ofthe annual reviews each quarter. 

### Id. 8No. 34192-5-111; 34198-4-111; 35236-6-111; 35237-4-111 In re Det. of McMahan evenly spread its work out overthe course ofthe year and maximize staffefficiencies.3 Were the Departmentrequired to use an anniversary deadline, examination due dates would be scattered unevenly for reasons outside the Department's control, making the Department's work more difficult than it is already. In addition, the Departmentneed not be overly concerned about howto handle an initial yearly examination ifan individual is adjudicated an SVP late in the calendaryear. As explained below, the only remedy for a late examination is a show cause hearing. Atthe show cause hearing, the State is free to present evidence ofa detainedperson'srecent SVP determination and supporting documentation. RCW 71.09.090(3)(c), (d) (evidence ofprior commitmenttrial and disposition admissible). Thus, for persons adjudicated as SVPs late in the year, the State
can generally use the SVP determination to comply with its annual examination obligation. 

### What must bedonefor yearly compliance? In its briefing, the State suggests the Department can satisfy its yearly examination obligations by conducting some portion ofa mental examination eachyear. We disagree.

3 Certainly the Department could conduct itselfin a disorganized fashion and leave large numbers ofexaminations for December each year. Butthis wouldbe a problem in its own control, not one subjectto the whims oftrial court SVP adjudications.
9No. 34192-5-111; 34198-4-111; 35236-6-111; 35237-4-111 In re Det. of McMahan Although RCW 71.09.070(1) only refers to making a mental condition "examination" at least once every year, the ensuing subsection states that the evaluator conductingthe examination mustprepare a "report." RCW 71.09.070(2). Throughthis language, the legislature made plain that an evaluator's examination duties include preparation ofa report. Accordingly, the statutory scheme as a whole clarifies thatthe duty onthe Department's evaluator is to finalize an examination report at least once every calendar year. Mere progress toward a report is insufficient. 

### What date is used tojudge compliance? Theparties' final dispute regarding RCW 71.09.070(1) is overwhat date should be used to determine yearly compliance. Is an examination reporttimely so long as it is completed within each calendaryear? Ormustthe examination report be shared with the court orthe detained person bythe end ofthe yearly deadline? The plain statutory language favors the former interpretation. The yearly deadline specified in RCW 71.09.070(1) onlypertains to the Department's obligationto conduct
an examination, including writing a final report. The statute does not set any deadlines for filing the reportwiththe court orproviding a copy to the committedperson. RCW 71.09.070(5). Giventhis language, it is apparent the Department's compliance

10No. 34192-5-111; 34198-4-111; 35236-6-111; 35237-4-111 

### In re Det. of McMahan
with the statutes's yearly deadline must be measured by the date ofits annual examination report, not the date ofcirculation. 

### The Department satis fled the statutory criteria The Department completed mental condition examination reports for McMahan and Botner at least once during each ofthe calendaryears at issue in this litigation. This satisfied the plainterms ofRCW 71.09.070(1). The examinations also adequately protected McMahan and Botner's constitutional rights to periodic review ofthe grounds for their commitment. 

### See State v. 

### McCuistion, 174 Wn.2d 369,385,275 P.3d 1092 (2012). The trial court's orders rejecting the Department's examination reports as untimely are reversed. 

### Potential remedies Because the State satisfied its yearly obligations under RCW 71.09.070, there is no need to address the issue ofremedies. However, given the possibilitythis issue may arise in the future, we optto provide clarification. The duty to procure a yearly examination report is grounded in statute, RCW 71.09.070. Although an individual cannotbe committed as an SVP without an underlying courthearing, the yearly report obligation exists independent ofany court order or activejudicialproceedings. Accordingly, the broad discretion enjoyed by courts
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to enforce rules and orders during the course oflitigation 

### (see CR 37 (discovery sanctions); RCW 2.28.010 (disruption ofcourtproceedings); and chapter 7.21 RCW (contempt ofcourt)), does not apply to a violation ofRCW71.09.070. Because the duty to procure a yearly report is based on statute, rather than a court order, we must look to legislative guidance for the applicable remedy. We previously engaged in this exercise in 

### In re Detention of Rushton, 190 Wn. App. 358, 375, 359 P.3d 935 (2015). As explained in

### Rushton, the remedy for a report violation under RCW 71.09.070 is a show cause hearing. 

### Id. No further equitable remedies apply. 

### Id. The trial court abused its discretion in imposing an evidentiarypenalty in addition to the statutoryremedy ofa show cause hearing. As set forth in

### Rushton, a show cause hearing is adequate to address any harm caused by an untimely mental condition examination. Id. at 380-81. After all, the purpose ofan annual examination is to assess whether a committedperson continues to meetthe criteria for SVP detention. 

### Id. By demanding a show cause hearing, a committedperson is empoweredto ensure an updated review ofhis or her circumstances. Indeed, as was true in this case, the mere request for a show cause hearing will likely promptthe Departmentto finalize a current mental condition report. Excluding an untimely mental condition report from a show cause hearing does nothing to assist in the determination ofwhether a committedperson should
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# I No. 34192-5-III; 34198-4-III; 35236-6-III; 35237-4-III In re Det. of McMahan
remain in detention. 

### It is not an available remedy for a statutory violation ofRCW 71.09.070(1).4 

### CONCLUSION RCW 71.09.070(1) requires the Departmentto complete an examination report ofa committedperson's mental condition at least once each calendaryear. The examination reports at issue in this appeal metthis standard. We therefore reverse the trial court's rulings setting release trials or evidentiaryhearings for McMahan and Botner and remand for further proceedings, consistent with this opinion. 

### Pennell, J.

# ?~,QI CONCUR:



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4 Because the strictrequirement ofa yearly examination report is statutory, not constitutional, we do not address whatremedies might apply ifthe Departmentnot only failed to procure a yearly report but also failed to comport withthe broader constitutional duty ofperiodically reviewing the basis for a committedperson's detention. 13

### Nos. 34192-5-111 consolidated with 34198-4-111, 35236-6-111 and 35237-4-111
FEARING, 

### C.J. (concurrence)- I disagree with the majority's conclusion as to what constitutes a "year" for purposes ofRCW 71.09.070(1). The statute reads: Eachperson committed [as an sexually violent predator] shall have a current examination ofhis orher mental condition made by the department at least once everyyear. (Emphasis added.) The statute does not declare what constitutes a "year." None ofthe language or legislative history compels a conclusion that the legislature intended a calendar year. Constructions that yield unlikely, absurd, or strained consequences must be avoided. City of Seattle v. Fuller, 177 Wn.2d 263, 270, 300 P.3d 340 (2013). The majority's interpretation ofthe word "year" as a calendar year leads to some unreasonable results. Ifthe committee enters treatment on December 23, the Department ofSocial and Health Services (DSHS) must complete a "current examination" before December 31 ofthe same year. Perhaps an examination conducted before the

# I Nos. 34192-5-III; 34198-4-III; 35236-6-III; 35237-4-III In re Det. of McMahan
commitment suffices, but the statute does not so read. More importantly, ifthe committee enters treatment on January 2, DSHS, under the majority's construction ofthe \ 

### term "year," would have until December 31 ofthe following calendaryearto complete the "current examination." In other words, a year becomes one year and 363 days. The
more reasonable construction ofRCW 71.09.070 is to impose the obligation ofan examination within the one-year anniversary ofthe commitment and each anniversary thereafter. The majority's construction ofthe word "year" also could result in DSHS completing examinations ofall committees during the month ofDecember ofeach year. The superior courts in tumwould encounter the obligation ofreviewing stacks of examination reports during the season ofgood will. If

### DSHS does not fulfill the one-year deadline, the use ofa calendar year could also result in scores ofshow cause hearings scheduled in January ofeach year. DSHS could impose its own staggered internal deadlines for reports in various cases throughout the calendar year, but many individuals' and organizations' work flows stagnate until a real deadline approaches. DSHS signals that it lacks the resources to timely complete all ofits reports, which confirms the likelihood that superior courts will face numerous show cause hearings in January. In short, the legislature likely intended, to the contrary, that deadlines for examinations be staggered throughout the calendar year. The word "year" may be flexible in meaning in accordance with the statutory context in which it is used. McKee v. Commission on Professional Competence, 114 Cal. 2Nos. 34192-5-III; 34198-4-111; 35236-6-111; 35237-4-111 

### In re Det. of McMahan App. 3d 718, 723, 171 Cal. Rptr. 81 (1981); 74 AM. JUR. 2D 

### Time§ 7 (2012). When, from the context ofa statute, it appears a meaning ofthe term "year" as calendaryear is intended, that other meaning will be applied. 

### Southerlandv. Bradshaw, 255 Ga. 455, 339 S.E.2d 579, 580 (1986). In 

### Southerlandv. Bradshaw, the Georgia court held that a year, for purposes ofimposing a premium payable upon redemption ofproperty from sale for taxes applied to each twelve-month year or fraction thereofbegan to run at the date oftax sale, rather than to each fraction ofeach calendar year following date oftax sale. Closerto home and in 

### Sims v. City of Bremerton, 190 Wash. 62, 66 P.2d 863 (1937), our Supreme Court addressed the meaning ofthe word "year" in a statute that allowed a city to tax above the maximum rate ifa three-fifths majority ofvoters at a special election, conducted "in the year in which the levy is made," approve. 

### Sims v. City of Bremerton, 190 Wash. at 63. The court held, in light ofthe statutorypurpose, the term "year" to refer to a period ofthree-hundred and sixty five days, not a calendaryear. The majority cites 74 AM. JUR. 2D 

### Time§ 7 (2012) for the proposition that a "year" generally means a "calendaryear." This American Jurisprudence section cites 

### State v. Hirsch, 245 Neb. 31, 511 N.W.2d 69 (1994); 

### Finch v. Fitzpatrick, 254 So. 2d 203 (Fla. 1971); 

### State ex rel. Gareau v. Stillman, 18 Ohio St. 2d 63,247 N.E.2d 461 (1969); and 

### Clopton v. Scharrenberg, 106 Cal. App. 2d 430, 235 P.2d 84 (1951) for this proposition. Nevertheless, the

### Hirsch decision relied onNebraska's statute ofgeneral application that defined "year" as a "calendaryear." NEB. REV. STAT. § 49-801. Washington lacks such a definitional statute. 

### Finch v. Fitzpatrick and 

### Gareau v. Stillman 

### 3Nos. 34192-5-III; 34198-4-III; 35236-6-III; 35237-4-III In re Det. of McMahan
also construed a respective state statute that mentioned a "calendaryear." FormerFLA. STAT. ANN.§ 27.14 (1996); OHIO REV. CODEANN.§ 3513.191. Clopton V. Scharrenberg relied on a military rule that referenced a "calendaryear." The majority scores a legitimate point when mentioning that subsection (7), another segment ofRCW 71.09.070, references an examination "no laterthan one year afterthe date ofthe order finding the individual continues to be a sexually violent predator." Subsection (1 ), at issue in this appeal, omits any designation ofan event from which to measure the one year. Nevertheless, subsection (7) may evidence an intent of the legislature to demand an examination quicker than one year and 363 days from the last examination as the majority allows. 

### I otherwise concur in the remainder ofthe majority's decision.

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