Dissent to Order by Sanders, J.

No. 64975-8

SANDERS, J. (dissenting)—Keith Rogers seeks an extension of time to file a petition for review from an unpublished Court of Appeals decision affirming an order committing him under RCW 70.09 as a sexually violent predator and seeks review on the merits of his petition. This court by a vote of six to three granted the extension, however, by a simple majority denied review on the merits. I dissent from denial of review on the merits based upon RAP 13.4(b) which provides review is appropriate "if a significant question of law under the constitution of the State of Washington or the United States is involved . . . ."

Mr. Rogers has raised two very substantial constitutional questions pertaining to (1) lack of a recent overt act and (2) dilution of the constitutional requirement that the State must carry a clear, cogent, and convincing burden of proof to sustain a sexual predator commitment.

This court previously upheld the violent sexual predator statute against facial attack in In re Young, 122 Wn.2d 1, 857 P.2d 989 (1993). On subsequent review, however, the United States District Court for the Western District of Washington disapproved that result and held the statute was facially unconstitutional. See Young v. Weston, 898 F. Supp. 744, 754 (1995). Assuming In re Young was a correct statement of the law it "hold[s] that the state must provide evidence of a recent overt act in accord with Harris whenever an individual is not incarcerated at the time the petition is filed." This is reference to In re Harris, 98 Wn.2d 276, 654 P.2d 109 (1982) which held an act of physical violence perpetrated five days before filing the commitment petition was too remote to be recent. Harris also held the recent overt act standard was adopted to require "a showing of a substantial risk of physical harm as evidence by a recent overt act. This act may be one which has caused harm or creates a reasonable apprehension of dangerousness." Harris, 98 Wn.2d at 284-85.

The conduct alleged by Mr. Rogers, however, was neither recent nor an overt act as that term is used in Harris and various federal cases using similar language. Although Rogers was released from prison on October 13, 1993, and the petition followed his release date, the most recent claim of misconduct arose in the spring of 1993, approximately six months before. This was not "recent." Moreover this claim of misconduct was not an "overt act" but rather discovery that Mr. Rogers had accumulated newspaper clippings regarding child abuse, pornography, sexuality, as well as some letters addressed to publishers requesting copies of books containing pictures of naked children. At most this material indicates sexual deviancy on Mr. Rogers’ part; however, sexual deviancy unaccompanied by physical acts directed toward intended child victims is not in itself an overt act sufficient to meet the Harris test.

The constitutionally minimum burden of proof for commitment is clear and convincing evidence. Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 (1979). However the instruction given in Rogers appears to confuse the beyond-a-reasonable-doubt standard by requiring that the state must merely prove that the defendant is "likely" to engage in predatory acts of a sexual violence. "Likely" is elsewhere defined as "a proposition is more likely true than not."

These are two substantial and grave constitutional concerns which, in my opinion, meet the criteria of RAP 13.4(b)(3) justifying review of these issues on the merits. Accordingly, I dissent.