In re the Detention of Kistenmacher , 163 Wash. 2d 166 ( 2008 )

¶27

(concurring) — I concur in the result and with the majority’s analysis that there is no estoppel against the State. I write separately because I do not agree that the sexually violent predator (SVP) act, chapter 71.09 RCW, creates a statutory right to counsel at precommitment psychological evaluations. The plain language of the statute is ambiguous, and application of the canons of statutory construction does not support a right to counsel at these psychological evaluations.

Fairhurst, J.

¶28 Chapter 71.09 RCW was enacted to remedy the inadequate ability of Washington’s civil commitment system to handle the risks associated with sexually violent predators. RCW 71.09.010. RCW 71.09.030 provides:

When it appears that: (1) A person who at any time previously has been convicted of a sexually violent offense is about to be released from total confinement . . . and it appears that the person may be a sexually violent predator, the prosecuting attorney of the county where the person was convicted or charged or the attorney general if requested by the prosecuting attorney may file a petition alleging that the person is a “sexually violent predator” and stating sufficient facts to support such allegation.

When this petition is filed, the alleged SVP is afforded a probable cause determination, RCW 71.09.040(l)-(3), “an evaluation as to whether the person is a sexually violent predator,” RCW 71.09.040(4), and “a trial to determine whether the person is a sexually violent predator.” RCW 71.09.050(1).

|29 RCW 71.09.050(1) states:

Within forty-five days after the completion of any hearing held pursuant to RCW 71.09.040, the court shall conduct a trial to determine whether the person is a sexually violent predator. The trial may be continued upon the request of either party and a showing of good cause, or by the court on its own motion in the due administration of justice, and when the respondent will not be substantially prejudiced. At all stages of the proceedings under this chapter, any person subject to this chapter shall be entitled to the assistance of counsel, and if the person is indigent, the court shall appoint counsel to assist him or her. The person shall be confined in a secure facility for the duration of the trial.

A. The meaning of “stages of the proceedings” in RCW 71.09.050(1) is ambiguous

¶30 “ ‘A court’s objective in construing a statute is to determine the legislature’s intent.’ ” Udall v. T.D. Escrow Servs., Inc., 159 Wn.2d 903, 909, ¶ 11, 154 P.3d 882 (2007) (quoting Tingey v. Haisch, 159 Wn.2d 652, 657, ¶ 8, 152 P.3d 1020 (2007)). “ ‘[I]f the statute’s meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent.’ ” Id. (alteration in original) (internal quotation marks omitted) (quoting Tingey, 159 Wn.2d at 657, ¶ 8). “Plain meaning is ‘discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole.’ ” Id. (quoting Tingey, 159 Wn.2d at 657, ¶ 8). A court must, when possible, “give effect to every word, clause and sentence of a statute.” Cox v. Helenius, 103 Wn.2d 383, 387, 693 P.2d 683 (1985). However, “[i]f the statutory language remains susceptible to more than one reasonable interpretation, the statute is considered ambiguous, and the court may then employ statutory construction tools, including legislative history, for assistance in discerning legislative intent.” Udall, 159 Wn.2d at 909.

¶31 The majority discerns from dicta in In re Detention of Petersen, 138 Wn.2d 70, 92, 980 P.2d 1204 (1999) that “all stages of the proceedings” was to be read broadly and thus encompasses these evaluations. However, “stages of proceedings” must be read in light of definitions of “proceeding.” While Webster’s Third New International Dictionary 1807 (2002) defines “proceeding” as “a particular step or series of steps adopted for doing or accomplishing something,” it also defines “proceedings” as “a particular action at law or case in litigation.” Similarly, while Black’s Law Dictionary 1241 (8th ed. 2004) defines “proceeding” as “[t]he regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment,” it also defines “proceeding” as “[t]he business conducted by a court;... a hearing.” As evidenced from the dictionary definitions of “proceedings,” the statute may be considered ambiguous, and we must turn to canons of statutory construction to discern legislative intent.

B. “Stages of the proceedings” does not include psychological evaluations given the statute’s meaning when interpreted through canons of statutory construction

1. Noscitur a sociis

¶32 First, under the doctrine of noscitur a sociis, we should read “stages of the proceedings” to mean legal proceedings under this chapter. Under that doctrine, “a single word in a statute should not be read in isolation” and “ ‘the meaning of words may be indicated or controlled by those with which they are associated.’ ” State v. Roggenkamp, 153 Wn.2d 614, 623, ¶ 14, 106 P.3d 196 (2005) (internal quotation marks omitted) (quoting State v. Jackson, 137 Wn.2d 712, 729, 976 P.2d 1229 (1999)). The phrase “stages of the proceedings” does not appear within any generalized section of the SVP act. Rather, the phrase is found in the section of the act titled “Trial — Rights of parties.” RCW 71.09.050 (boldface omitted). The language leading up to the phrase speaks of procedures at trial. Id. The language after the phrase speaks specifically of confinement at trial. Id. Thus, the phrase “stages of the proceedings” should be read in light of the surrounding language to apply to all stages of legal proceedings.

2. Reading “proceedings” broadly would render other language as superfluous

¶33 Second, reading RCW 71.09.050(1) to include more than legal proceedings would render other portions of the SVP act superfluous. It is a long-standing principle that we will not interpret a statute so as to render other language within the statute superfluous. See Lakemont Ridge Homeowners Ass’n v. Lakemont Ridge Ltd. P’ship, 156 Wn.2d 696, 699, ¶ 5, 131 P.3d 905 (2006). This court has previously held that the language found in RCW 71.09.050(1) is not as broad as petitioner reads it. Petersen involved an evaluation of whether an SVP had a right to counsel at an annual postcommitment psychological evaluation. 138 Wn.2d at 91. Petersen had argued that the postcommitment psychological evaluation was a proceeding falling under RCW 71.09.050(1), and he was entitled to have counsel present for that evaluation. Petersen, 138 Wn.2d at 92. This court rejected that argument, stating:

Later, in RCW 71.09.090(2), the Legislature created another statutory right to counsel when a committed person petitions for release or less onerous confinement. If RCW 71.09.050(1) truly represents the overarching statutory grant of the right to counsel at all stages of proceedings under the entire chapter, the grant of the right to counsel in the latter section is surplusage. Under the usual rule of statutory construction, “[c]ourts should not construe statutes to render any language superfluous.” State v. Riles, 135 Wn.2d 326, 340, 957 P.2d 655 (1998). Thus, in the absence of a constitutional right or a clear declaration from the Legislature, a committed person is not entitled to counsel during the annual evaluations.

Id. (alteration in original). Similarly, if we read RCW 71.09.050(1) to include all proceedings, rather than legal proceedings, then the language explicitly granting a right to counsel at the precommitment probable cause hearing found in RCW 71.09.040(3) would be rendered superfluous. Thus, I disagree with the majority’s expansive reading of RCW 71.09.050(1) and would instead hold that it is limited to legal proceedings.

3. Expressio unius est exclusio alterius

¶34 Third, application of the doctrine expressio unius est exclusio alterius does not permit a construction of stages of the proceedings as anything other than legal. Under the doctrine, “ ‘legislative inclusion of certain items in a category implies that other items in that category are intended to be excluded.’ ” Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 571, 980 P.2d 1234 (1999) (quoting Bour v. Johnson, 122 Wn.2d 829, 836, 864 P.2d 380 (1993)). Chapter 71.09 RCW provides three things that must happen postfiling before a person may be classified as an SVP: (1) the person must be given a probable cause hearing, RCW 71.09.040(l)-(3); (2) if probable cause is found, the person must undergo a psychological evaluation, RCW 71.09-.040(4); and (3) after the psychological evaluation, and regardless of the result of the evaluation, the person must be afforded a jury trial. RCW 71.09.050.

¶35 In regard to the probable cause hearing, the legislature expressly stated, “[a]t the probable cause hearing, the person shall have the following rights ... (a) To be represented by counsel.” RCW 71.09.040(3). Similarly, the language of RCW 71.09.050(1) is included in the section titled “Trial — Rights of parties.” (Boldface omitted.) However, no such similar language was included in RCW 71.09.040(4). The legislature expressly placed the entitlement to have an attorney present within the section involving the probable cause hearing and within the section annunciating rights at trial. We should not read into the language of RCW 71.09.040(4) that it also intended to provide a right to an attorney at a psychological evaluation where none was expressly granted.

4. Absurd results

¶36 Finally, the majority’s interpretation of the statute would lead to absurd results. In In re Dependency of J.R.U.-S., 126 Wn. App. 786, 801, ¶ 29, 110 P.3d 773 (2005), Division One of the Court of Appeals considered RCW 13.34.090(2) and whether parents in dependency proceedings had the right to counsel at court-ordered psychological evaluations under RCW 13.34.090(2). RCW 13.34.090(2) provides, in relevant part, “At all stages of a proceeding in which a child is alleged to be a dependent, the child’s parent, guardian, or legal custodian has the right to be represented by counsel, and if indigent, to have counsel appointed for him or her by the court” (Emphasis added.) The parents argued that because the evaluations were statutorily authorized, they were a “ ‘stage’ of the proceedings” within the meaning of the statute. J.R.U.S., 126 Wn. App. at 801, ¶ 29.

¶37 The court concluded that “[a] psychological evaluation is not a ‘proceeding’ or ‘stage’ of the proceedings.” Id. at 802, ¶ 30. In analyzing the right to counsel in J.R.U.S., this court stated:

For the first time on appeal, the parents contend they had a right to counsel under RCW 13.34.090(2). That statute provides that a parent in dependency proceedings has the right to counsel “[a]t all stages” of the proceeding. The parents argue that because the evaluations were statutorily authorized, they were a “stage” of the proceedings within the meaning of RCW 13.34.090(2). We disagree.

A psychological evaluation is not a “proceeding” or “stage” of the proceedings. It is one of the dispositional services ordered by the court. If the evaluation were considered a “stage” of the proceedings, then parents would have a right to counsel at every counseling appointment, every visit with their children, and every other dispositional activity in a dependency case. The parents’ interpretation of the statute leads to absurd results, and we reject it.

J.R.U.S., 126 Wn. App. at 801-02, ff 29-30 (emphasis added) (alteration in original) (citing State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (courts must avoid absurd results when interpreting statutes)).⁶

138 Both RCW 13.34.090(2) and RCW 71.09.050(1) contain similar wording in that both provide a right to counsel at all stages of a proceeding. The majority’s attempts to differentiate J.R.U.-S. are unconvincing. The majority states, “[t]he Court of Appeals in J.R.U.-S. based its conclusion less on the statutory text and more on its evaluation of the overarching dependency scheme.” Majority at 172. That is not correct. With reference to RCW 13.34.090(2), the court did no analysis of the scheme, instead applying only the statutory interpretive canon that we do not interpret a statute so as to lead to absurd results. J.R. U.-S., 126 Wn. App. at 801-02.⁷

¶39 The majority also attempts to distinguish J.R.U.-S. on the basis that the goals of chapter 13.34 RCW differ from those of chapter 71.09 RCW. Majority at 172. In essence, the majority argues that because the purpose of our State’s SVP act is to “protect the public,” and because the proceedings “mimic criminal proceedings,” that more protection should be afforded a respondent. However, this is an argument to the constitutionality of conducting an SVP psychological evaluation without counsel — an argument that is not before this court.⁸

¶40 A proper reading of the statute does not provide support for a statutory right to counsel at anything other than a legal proceeding.

C. The majority’s reading of the statute is contrary to this court’s previous decision in Petersen

¶41 By holding that SVP respondents are entitled to have counsel present at a psychological evaluation, the majority ignores our previous decision in Petersen. In Petersen, we determined that an SVP had no right to counsel at an annual postcommitment psychological hearing. 138 Wn.2d at 92. The majority argues that the SVP precommitment psychological evaluation differs from a postcommitment evaluation. With this statement, I agree; however, I see that difference as weighing against a right to counsel at the precommitment evaluation. If this court does not require counsel at a postcommitment evaluation, the outcome of which can bar further proceedings⁹ toward release from commitment, it is counterintuitive that we would require it in a situation where the evaluation holds less weight, as in a precommitment evaluation where a respondent still receives a jury trial to determine his status as an SVP.

D. Conclusion

¶42 Because I would instead hold that the SVP act does not provide a right to counsel during a precommitment evaluation, I would affirm the Court of Appeals in whole on both its reasoning and result in this matter.

Madsen, J., and Bridge, J. Pro Tem., concur with Pairhurst, J.

6 Other statutes and rules lend support that stage of proceedings is only to include legal proceedings. RCW 42.40.040(9)(b) provides that depositions can be ordered at any stage of the proceedings in whistleblower actions. It would be absurd in this case to assume the legislature intended to allow for the taking of depositions unless it was in the context of a legal proceeding. CrR 3.1(b)(2) provides, “[a] lawyer shall be provided at every stage of the proceedings, including sentencing, appeal, and post-conviction review.” Under the doctrine of ejusdem generis, the statute should be interpreted to mean legal proceedings, as those are the types of proceedings specifically enumerated by the legislature.

Case law utilizing the term “stages of proceedings” similarly lends support that “stage of proceedings” only includes legal proceedings. Washington Beauty College, Inc. v. Huse, 195 Wash. 160, 80 P.2d 403 (1938), was a challenge to a state statute regulating the beauty industry. This court did not have jurisdiction to hear the case, but the college argued that because Huse did not challenge its right to sue, the court could waive jurisdictional requirements. The court, in holding that the jurisdiction argument was not waived, quoted former Rem. Rev. Stat. § 263, which provided:

“If no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting always the objection that the court has not jurisdiction, or that the complaint does not state facts sufficient to constitute a cause of action, which objection can be made at any stage of proceedings, either in the superior or supreme court.”

Wash. Beauty Coll., 195 Wash. at 166. It would be absurd if Em objection to jurisdiction, which could be made at any stage of the proceedings, would apply to anything other than legal proceedings. See also Gertz v. Am. Disc. Corp., 47 Wn.2d 694, 289 P.2d 369 (1955) (objection to sufficiency of the complaint may be raised at any stage of the proceedings, thus denoting legal proceedings); Joyner v. City of Seattle, 144 Wash. 641, 258 P. 479 (1927) (objection to sufficiency of an affirmative defense can be raised at any stage of the proceedings, thus denoting legal proceedings). To interpret “stage of the proceedings” as anything other than legal proceedings would be absurd.

7 The analysis of the statutory scheme in J.R. U.-S. was limited to whether there was a Fifth Amendment right to counsel at a psychological evaluation and whether that right was adequately protected with the scheme of RCW 26.44.053. J.R.U.-S., 126 Wn. App. at 798-801.

8 On May 15, 2007, Kistenmacher filed a supplemental brief of authority arguing a constitutional right to counsel at his precommitment evaluation. Those portions of the supplemental brief were stricken, as Kistenmacher had not raised the constitutional argument in his petition for review. Pursuant to RAP 13.7(b), this court “will review only the questions raised in the . . . petition for review and the answer.”

9 RCW 71.09.070 provides that a person is entitled to a yearly examination to which, under Petersen, a right to counsel does not attach. The Department of Social and Health Services (DSHS) utilizes that annual report to determine whether or not further commitment is warranted and whether or not DSHS recommends the case for review by the court. RCW 71.09.070. Even if the SVP files an independent petition for release with the court, the court “may rely exclusively upon the annual report prepared pursuant to RCW 71.09.070.” RCW 71.09.090(2)(b). Thus, the annual evaluation may be solely used as a basis for continued commitment and is of more weight in the proceeding than in a precommitment case.