State High Court to Sex Predators: No Automatic Appeal if Conditional Release Is Revoked

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A new Washington Supreme Court ruling limits the appellate rights of sexually violent predators who have their conditional release revoked.

The high court's unanimous ruling Thursday means that people civilly committed as sexually violent predators don't have a right to an immediate appeal when a court revokes their conditional release to a less-restrictive placement. Instead of an immediate appeal, they must seek discretionary review — which leaves it up to the Court of Appeals whether to review a case.

Michael McHatton was civilly committed as a sexually violent predator and sent to the Special Commitment Center on McNeil Island in 2002 after he served a five-and-a-half-year prison sentence for molesting a 2-year-old child, according to court records.

In 2017, he was moved to a less-restrictive alternative placement in Spanaway. Pierce County Superior Court Judge James Orlando revoked his conditional release after McHatton violated a condition that he not have pictures of children, according to court records, and McHatton was sent back to the SCC.

"Having an LRA revoked happens fairly regularly," Department of Social and Health Services spokesperson Chris Wright said via email. "There are strict conditions of the LRA the resident must abide by and any violations mean a return to the SCC."

There are 52 residents on community LRAs, he said. Eight are in Pierce County.

He said DSHS doesn't control where residents are placed in the community, but that the passage of Senate Bill 5163 will change that soon.

"DSHS will be taking over LRA placements," Wright said.

McHatton appealed his revocation. The state argued the appeal should be treated as a motion for discretionary review, and Division III of the Washington State Court of Appeals ruled that the revocation order wasn't "appealable as a matter of right."

An "appeal of right" is one that an appellate court has to hear. A "discretionary appeal" is one the appellate court can choose to review but doesn't have to.

The Division III panel granted discretionary review, and found the Pierce County court didn't abuse its discretion when it revoked McHatton's conditional release.

McHatton petitioned the state Supreme Court for review.

Justice Mary Yu wrote for the unanimous court: "We are asked to decide whether an order revoking a sexually violent predator's conditional release to a less restrictive alternative placement ... is one of the limited number of superior court orders appealable as of right under our Rules of Appellate Procedure."

The high court said no, upholding the decision from the state Court of Appeals.

"... rather, such orders are subject to discretionary review," Yu wrote.

McHatton's brief to the Supreme Court argued: "The overwhelming majority of motions for discretionary review are denied, meaning the merits of the claims are never adjudicated on appeal."

It also argued the decision could potentially have implications for other types of civil commitment cases, such as people who are acquitted by reason of insanity and those who are involuntarily committed for treatment of a behavioral health disorder.

"The Court of Appeals' decision will have far reaching effects," the brief said. "Appeals are routinely taken from LRA revocation orders in analogous commitment contexts without anyone giving it a second thought ... ."

The state argued in its response brief: "... once back in total confinement, McHatton will continue to receive annual reviews, which entitle him to show cause hearings at which the issue of his conditional release may again be litigated."

The high court's ruling said something similar.

"The LRA placement revocation altered the nature of McHatton's confinement but did not alter his status as a civilly committed SVP," Yu wrote. "McHatton will continue to receive annual reviews where DSHS will evaluate whether conditional release to another LRA placement is in his best interest and whether conditions can be imposed that would adequately protect the community. ... And even if DSHS (the Department of Social and Health Services) determines that an LRA placement is not appropriate, McHatton has a right to an annual show cause hearing to determine whether probable cause exists to warrant a full hearing on conditional release to another LRA."

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