Opinion Information Sheet

			

          IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                )
                                                    )
                             Respondent,            )                 No. 85549-8
                                                    )
       v.                                           )                   En Banc
                                                    )
JOHN ROBERT HURST,                                  )
                                                    )           Filed January 26, 2012
                             Petitioner.            )
                                                    )

       OWENS, J.  --  John Hurst was charged with a felony, but the criminal 

proceedings against him were stayed because the trial court determined that he was not 

competent to stand trial.  Hurst's lack of competence twice resulted in his commitment 

to a 90-day mental health treatment and restoration period. As Hurst failed to regain 

competency during either of these periods, the State sought a third and final mental 

health treatment and restoration period of up to 180 days.  This case concerns the 

standard of proof required to commit an incompetent criminal defendant charged with 

a felony to a third mental health treatment and restoration period.  Hurst alleges that 

the due process clause of the Fourteenth Amendment to the United States  

State v. Hurst
No. 85549-8

Constitution (Due Process Clause), U.S. Const. amend XIV, § 1, requires that the 

standard of proof be clear, cogent, and convincing evidence.  We disagree; the 

legislature's selected preponderance of the evidence standard satisfies the Due Process 

Clause.  Accordingly, we affirm the Court of Appeals.

                                             Facts

       On March 11, 2008, Hurst, while in the emergency room, allegedly punched 

and threw a shoe at an on-duty nurse.  As a result, the State charged Hurst with assault 

in the third degree, a class C felony.  RCW 9A.36.031(1)(i), (2).  At some point, the 

issue of Hurst's competency to stand trial was raised, and, on March 31, King County 

Superior Court entered an order committing Hurst to Western State Hospital for an 

examination relating to his competency.  A report was submitted to the court on April 

30 and, on May 12, the court found Hurst incompetent to stand trial and ordered him 

committed to Western State Hospital for up to 90 days to restore his competency.  On 

August 20, the court again found Hurst incompetent to stand trial and ordered him 

committed for a second period of up to 90 days.  On January 23, 2009, the court 

determined that Hurst had not yet regained competency to stand trial.

       A jury trial relating to Hurst's continued commitment was held beginning on 

February 3, 2009.  The jury was asked to determine whether the State had proved by a 

preponderance of the evidence that Hurst presented a substantial danger to others or 

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State v. Hurst
No. 85549-8

presented a substantial likelihood of committing criminal acts jeopardizing public 

safety or security and whether there was a substantial probability that Hurst would 

regain competency within a reasonable period of time.  The jury found that Hurst did 

not present a substantial danger to other persons but that there was a substantial 

likelihood that he would commit criminal acts jeopardizing public safety or security 

and that there was a substantial probability that he would regain competency within a 

reasonable period of time.  Based on the jury's verdict, the court entered an order 

committing Hurst to an additional 180-day period of mental health treatment and 

restoration.  On August 3, 2009, the superior court found that Hurst remained 

incompetent to stand trial and dismissed the criminal charges.1

       Hurst sought review of the superior court's imposition of the final 180-day 

commitment period on several grounds, including a challenge to the standard of proof 

imposed on the State.  The Court of Appeals granted discretionary review and held 

that RCW 10.77.086(4) requires proof by only a preponderance of the evidence and 

that this standard does not violate the Due Process Clause.  State v. Hurst, 158 Wn. 

App. 803, 808-09, 812, 244 P.3d 954 (2010).  We granted Hurst's petition for review.  

State v. Hurst, 171 Wn.2d 1016, 253 P.3d 392 (2011).

1 This case is, technically, moot.  Neither party seeks dismissal on this basis and 
competency hearings present an issue of "continuing and substantial public interest."  
Born v. Thompson, 117 Wn. App. 57, 63-64, 69 P.3d 343 (2003), rev'd on other grounds, 
154 Wn.2d 749, 117 P.3d 1098 (2005).

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State v. Hurst
No. 85549-8

                                             Issue

       Does the Due Process Clause require proof of dangerousness by clear, cogent, 

and convincing evidence to detain an incompetent criminal defendant for purposes of 

competency restoration beyond 180 days?

                                           Analysis

I.     Analytical Framework for Due Process Clause Challenges

       The first issue in dispute is whether this case is governed by the analytical 

framework set forth in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 47 

L. Ed. 2d 18 (1976), or the framework set out in Medina v. California, 505 U.S. 437, 

445, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992).  This issue is, at least theoretically, a 

significant one because the Medina framework is "far less intrusive than that approved 

in Mathews."  Id. at 446.

       Due Process Clause challenges arising in the context of competency hearings in

criminal proceedings are governed by the analytical framework set forth in Medina.  

State v. Heddrick, 166 Wn.2d 898, 904 n.3, 215 P.3d 201 (2009). Indeed, Medina

itself concerned the dictates of the Due Process Clause in precisely such a context.  In 

Medina, a criminal defendant was charged with multiple felonies, including first 

degree murder.  505 U.S. at 440.  Prior to trial, Medina's counsel requested a hearing 

to determine whether Medina was competent to stand trial.  Id.  Under California 

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State v. Hurst
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statute, the party asserting a lack of competence bore the burden of establishing 

incompetence by a preponderance of the evidence.  Id.  Medina argued that the statute 

violated the Due Process Clause by placing the burden of proof on him to demonstrate 

his incompetence.  Id. at 442. The United States Supreme Court specifically rejected 

the Mathews test because the challenge arose in the criminal law context.  Id. at 443 (

"In our view, the Mathews balancing test does not provide the appropriate framework 

for assessing the validity of state procedural rules which, like the one at bar, are part of 

the criminal process.").

       As in Medina, the competency hearing at issue in the present case arose in the 

context of criminal proceedings.  The United States Supreme Court decision in 

Medina is therefore dispositive of the fact that the present case, in which Hurst relies 

exclusively on the federal constitution, is not governed by Mathews.

       Hurst's arguments in favor of the Mathews framework are unavailing.  Hurst is 

correct that in Born v. Thompson, 154 Wn.2d 749, 755-57, 117 P.3d 1098 (2005), 

which concerned the requirements of the Due Process Clause in competency 

proceedings that were part of prosecution for commission of a misdemeanor, we 

applied the Mathews analytical framework.  In Born, however, the parties did not brief 

the applicability of the Medina framework.  See Suppl. Br. of Pet'r Born, and Suppl. 

Br. of Resp'ts, Born v. Thompson, No. 74126-3.  Instead, the parties focused on the 

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State v. Hurst
No. 85549-8

applicability of Addington v. Texas, 441 U.S. 418, 99 S. Ct. 1804, 60 L. Ed. 2d 323 

(1979), which in turn relied upon the Mathews factors, see id. at 425-27.  Accordingly, 

we decided Born under the framework of Mathews and Addington.  Born, 154 Wn.2d 

at 754-55; id. at 778-79 (Owens, J., dissenting); see RAP 12.1(a) ("[T]he appellate 

court will decide a case only on the basis of issues set forth by the parties in their 

briefs."); cf. State v. Brousseau, 172 Wn.2d 331, 346 n.8, 259 P.3d 209 (2011) (

"Though the usefulness of the Mathews test in resolving the due process question 

presented here may be debated, Brousseau relies heavily on the test in his briefing, and 

the State has not argued for a different test."). The failure of the parties in Born to 

raise, as an issue, the appropriate Due Process Clause framework does not compel us 

to employ the incorrect Mathews framework in this case. This is particularly true 

given that after our decision in Born we expressly recognized Medina as the 

controlling framework.  Heddrick, 166 Wn.2d at 904 n.3.2

II.    A Preponderance of the Evidence Standard Satisfies Due Process

       Under the Medina analytical framework, a state law governing criminal 

procedures, "'including the burden of producing evidence and the burden of 

persuasion,'" does not violate "'the Due Process Clause unless "it offends some 

principle of justice so rooted in the traditions and conscience of our people as to be 

2 We do not, by this opinion, overrule Born.  While its reasoning may be somewhat 
undermined, we leave for the appropriate case whether its holding is sound under the 
Medina framework.

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State v. Hurst
No. 85549-8

ranked as fundamental."'" 505 U.S. at 445 (internal quotation marks omitted) 

(quoting Patterson v. New York, 432 U.S. 197, 201-02, 97 S. Ct. 2319, 53 L. Ed. 2d 

281 (1977)).  Both historical and contemporary practice are probative of whether such 

rules are fundamental.  Id. at 446-48.  If the rule is not ranked as fundamental, the 

court must then determine "whether the rule transgresses any recognized principle of 

'fundamental fairness' in operation."  Id. at 448 (quoting Dowling v. United States, 

493 U.S. 342, 352, 110 S. Ct. 668, 107 L. Ed. 2d 708 (1990)).

       As a starting point, we must precisely identify Hurst's claim of error and 

determine, as a matter of statutory construction, the meaning and effect of the 

statutory scheme. Provisions addressing defendants who are not competent to stand 

trial are set forth in chapter 10.77 RCW.  Cf. Drope v. Missouri, 420 U.S. 162, 171, 95 

S. Ct. 896, 43 L. Ed. 2d 103 (1975) (holding that the Due Process Clause prohibits the 

trial of a person who is incompetent).  In brief, if the court finds that a criminal 

defendant charged with a felony is not competent to stand trial it must stay the 

criminal proceedings, RCW 10.77.084(1)(a), and may commit the defendant to a 

"mental health treatment and restoration period," RCW 10.77.084(1)(c), of up to 90 

days.  RCW 10.77.086(1). By the conclusion of that 90-day period, the court must 

hold a hearing, RCW 10.77.086(2), and may commit the defendant to an additional 

mental health treatment and restoration period of up to 90 days if it or a jury

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State v. Hurst
No. 85549-8

determines that the defendant remains incompetent, RCW 10.77.086(3).  By the 

expiration of the second mental health treatment and restoration period, the court must 

again hold a hearing.  Id. At this hearing, the court may commit the defendant to a 

third and final mental health treatment and restoration period of up to six months if the 

court or jury finds that (1) the defendant remains incompetent, (2) "there is a 

substantial probability that the defendant will regain competency within a reasonable 

period of time," and (3) the defendant either (a) "is a substantial danger to other 

persons" or (b) "presents a substantial likelihood of committing criminal acts 

jeopardizing public safety or security."3 RCW 10.77.086(4).  Hurst argues that the 

Due Process Clause requires that the second and third of these showings be made by 

clear, cogent, and convincing evidence and, therefore, that the trial court erred in 

instructing his jury that it need only find these elements by a preponderance of the 

evidence.

       By statute, the legislature has adopted the preponderance of the evidence

standard of proof.  Though Hurst accurately points out that the term "preponderance 

of the evidence" does not appear in RCW 10.77.086(4), it is settled that the plain 

meaning of a statute is determined by looking not only "to the text of the statutory 

provision in question," but also to "'the context of the statute in which that provision is 

3 For simplicity, we refer to both prongs of the third showing as "dangerousness" in this 
opinion.

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State v. Hurst
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found, related provisions, and the statutory scheme as a whole.'"  State v. Ervin, 169 

Wn.2d 815, 820, 239 P.3d 354 (2010) (quoting State v. Jacobs, 154 Wn.2d 596, 600, 

115 P.3d 281 (2005)).  In the subsection immediately preceding RCW 10.77.086(4), 

the legislature expressly adopted the preponderance of the evidence standard as the 

appropriate standard for determining competency at the hearing following the first 

mental health treatment and restoration period.  RCW 10.77.086(3).  The absence of a 

contrary standard elsewhere in the statute creates an inference that the legislature 

intended the same standard of proof to apply to the other determinations as well.  Had 

the legislature intended to impose a more stringent standard of proof, it knew how to 

do so.  See, e.g., RCW 13.34.190(1)(a) (requiring "clear, cogent, and convincing 

evidence" or proof "beyond a reasonable doubt" to terminate parental rights); RCW 

71.05.235(2) (requiring "clear, cogent, and convincing evidence" for chapter 71.05 

RCW commitment). That is, by declining to expressly impose a more stringent 

standard of proof, the legislature has indicated its intent to impose the preponderance 

of the evidence standard of proof.

       The legislature's adoption of the preponderance of the evidence standard of 

proof does not violate the Due Process Clause. As discussed above, the appropriate 

analytical framework is set forth in Medina.  This requires consideration of historical 

and contemporary practice and the "'fundamental fairness'" of the rule in operation.  

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State v. Hurst
No. 85549-8

Medina, 505 U.S. at 445-48 (quoting Dowling, 493 U.S. at 352).

       Hurst does not advance any argument that historical or contemporary practice 

demonstrates that imposition of a preponderance of the evidence standard of proof 

violates the Due Process Clause. Because Hurst challenges the statute's 

constitutionality, this is his burden.  Island County v. State, 135 Wn.2d 141, 146, 955 

P.2d 377 (1998). Accordingly, we cannot say that requiring proof of dangerousness 

and likelihood of competency restoration by clear, cogent, and convincing evidence is 

a fundamental principle of justice.

       Nor does application of the preponderance of the evidence standard deny "any 

recognized principle of 'fundamental fairness' in operation."  Medina, 505 U.S. at 448

(quoting Dowling, 493 U.S. at 352). In operation, numerous safeguards exist to ensure 

that no incompetent person will be compelled to stand trial and that only those persons 

who are likely to regain competence are committed for the additional six-month 

period.  Among these safeguards are the right to counsel, RCW 10.77.020(1), the right 

to a jury, RCW 10.77.086(3), and the right to examination by an expert of the 

defendant's choosing, RCW 10.77.020(2). In addition, a third period of mental health 

treatment and restoration commitment is only permitted upon a showing that, on a 

more likely than not basis, "there is a substantial probability that the defendant will 

regain competency within a reasonable period of time" and that the defendant poses "a 

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State v. Hurst
No. 85549-8

substantial danger to other persons" or "presents a substantial likelihood of 

committing criminal acts jeopardizing public safety or security."  RCW 10.77.086(4)

(emphasis added). In addition, even where the requisite showings are made, this 

merely vests the judge with the discretion to commit the incompetent defendant to a 

third mental health treatment and restoration period of up to 180 days; the judge may 

also impose a shorter commitment or no commitment at all.  Id. ("In the event that the 

court or jury makes such a finding, the court may extend the period of commitment for 

up to an additional six months." (Emphasis added.)). Importantly, at any time during 

the proceedings, the defendant is entitled to a hearing if a mental health professional 

determines that the defendant has been or is unlikely to be restored to competency.  

RCW 10.77.084(1)(c). As a result of the many protections, we cannot say that 

application of the preponderance of the evidence standard results in a deprivation of 

fundamental fairness in operation.  As a result, under the Medina framework, the 

preponderance of the evidence standard has not been shown to violate the Due Process 

Clause.

       Our conclusion that the preponderance of the evidence standard of proof does 

not violate the Due Process Clause is further bolstered by the United States Supreme 

Court decisions in Jackson v. Indiana, 406 U.S. 715, 92 S. Ct. 1845, 32 L. Ed. 2d 435 

(1972), and Cooper v. Oklahoma, 517 U.S. 348, 116 S. Ct. 1373, 134 L. Ed. 2d 498 

                                               11 

State v. Hurst
No. 85549-8

(1996).  In Jackson, the Court approved of the detention of a criminal defendant 

deemed incompetent, but limited that detention to "the reasonable period of time 

necessary to determine whether there is a substantial probability that he will attain that 

capacity in the foreseeable future."4 406 U.S. at 738.  In Medina, the Court held that a 

state may, consistent with the Due Process Clause, impose on the defendant the 

burden of showing, by a preponderance of the evidence, a lack of competency. 505 

U.S. at 439, 450-51; cf. Cooper, 517 U.S. at 363 (holding that the Due Process Clause 

prohibits states from requiring defendants to prove their incompetency by clear and 

convincing evidence). Thus, the Supreme Court has, at least implicitly, approved of 

commitment of criminal defendants upon the mere showing of incompetence under a 

preponderance of the evidence standard.

                                          Conclusion

       We hold that the Due Process Clause does not require proof of a substantial 

probability of restoration of competency or dangerousness by clear, cogent, and 

convincing evidence; proof by a preponderance of the evidence suffices, at least 

where, as here, the statutory scheme otherwise ensures "'fundamental fairness' in 

operation."  Medina, 505 U.S. at 448 (quoting Dowling, 493 U.S. at 352).  

Accordingly, we affirm the Court of Appeals.

4 We note that in this case, Hurst does not assert that the period for which he was held 
was unreasonable under Jackson.

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State v. Hurst
No. 85549-8

AUTHOR:

        Justice Susan Owens

WE CONCUR:

        Chief Justice Barbara A. Madsen                  Justice James M. Johnson

        Justice Charles W. Johnson                       Justice Debra L. Stephens

        Justice Tom Chambers                             Justice Charles K. Wiggins

                                                         Gerry L. Alexander, Justice Pro Tem.

        Justice Mary E. Fairhurst

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