162 Wn.2d 27, DET. OF ELMORE

[No. 79208-9. En Banc.]

Argued May 10, 2007. Decided October 18, 2007.

In the Matter of the Detention of KEITH W. ELMORE , Petitioner.

[1] Statutes  Construction  Retroactivity  Disfavored Status. Courts disfavor retroactive application of statutes.

[2] Statutes  Construction  Retroactivity  Amendment  Test. A statutory amendment may be applied retroactively if (1) it is intended by the legislature to apply retroactively, (2) it is curative in that it clarifies or technically corrects ambiguous statutory language, or (3) it is remedial in nature.

[3] Statutes  Construction  Retroactivity  Amendment  Legislative Intent  Determination  Factors. In determining whether the legislature intended a statutory amendment to apply retroactively, a court may consider the amendment's purpose and language, legislative history, and legislative bill reports.

[4] Statutes  Construction  Retroactivity  Amendment  Curative Amendment  What Constitutes. A statutory amendment is not curative and remedial unless it clarifies or technically corrects an ambiguous statute without changing prior case law constructions of the statute.

[5] Statutes  Construction  Retroactivity  Amendment  Emergency Clause  Effect. An emergency clause in a statutory amendment weighs against applying the amendment retroactively.

[6] Mental Health  Involuntary Commitment  Sexually Violent Predators  Discharge or Release  Show Cause Hearing  Probable Cause  Age of Offender  Statutory Amendment  Retroactivity. Laws of 2005, ch. 344, § 1, which amended RCW 71.09.090(4) to provide that an increase in the age of a sex offender under commitment as a sexually violent predator is not a proper basis for granting the offender a full evidentiary hearing on a petition for conditional release or unconditional discharge, is not retroactive.

[7] Mental Health  Involuntary Commitment  Sexually Violent Predators  Discharge or Release  Show Cause Hearing  Probable Cause  Review  Standard of Review. At a show cause hearing on a petition by a sex offender for conditional release or unconditional discharge from commitment as a sexually violent predator under RCW 71.09.090(2), the trial court's determination as to whether the evidence meets the probable cause standard for holding a full evidentiary hearing on the petition is reviewed by an appellate court de novo. The question on review is whether the evidence, or lack thereof, suffices to establish probable cause for an evidentiary hearing.

[8] Mental Health  Involuntary Commitment  Sexually Violent Predators  Discharge or Release  Show Cause Hearing  Role of Court. At a show cause hearing on a petition by a sex offender for conditional release or unconditional discharge from commitment as a sexually violent predator under RCW 71.09.090(2), the trial court's role is limited to determining whether the facts, if believed, establish probable cause that the offender is no longer a sexually violent predator or may otherwise be conditionally released. The court does not weigh the evidence. If the court determines that probable cause exists, the court must set a full evidentiary hearing on the petition under RCW 71.09.090(3), where the parties may present all of the evidence and the fact finder may weigh the evidence and resolve any disputes.

[9] Mental Health  Involuntary Commitment  Sexually Violent Predators  Discharge or Release  Show Cause Hearing  Proof  Expert Conclusions  Sufficiency  Conflict With State's Expert. At a show cause hearing on a petition by a sex offender for conditional release or unconditional discharge from commitment as a sexually violent predator under RCW 71.09.090(2), the trial court may not find that an expert's report submitted by the offender does not create probable cause to believe that the offender no longer is a sexually violent predator based on the fact that the expert's opinion conflicts with that of the State's expert. Such a determination by the court amounts to an improper weighing of the evidence.

[10] Mental Health  Involuntary Commitment  Sexually Violent Predators  Discharge or Release  Show Cause Hearing  Proof  Expert Conclusions  Repetition of Previous Conclusion. At a show cause hearing on a petition by a sex offender for conditional release or unconditional discharge from commitment as a sexually violent predator under RCW 71.09.090(2), probable cause to proceed to a full evidentiary hearing is established where an expert's report submitted by the offender indicates that, based on new data from the offender's special commitment center clinical file and other sources, the offender no longer suffers from a mental abnormality or personality disorder. The fact that the expert previously gave an opinion that the offender did not suffer from a mental abnormality or personality disorder does not affect the sufficiency of the expert's current opinion.

[11] Mental Health  Involuntary Commitment  Sexually Violent Predators  Discharge or Release  Show Cause Hearing  Probable Cause  Age of Offender  Statutory Amendment  Before and After. Under RCW 71.09.090(4) before it was amended by Laws of 2005, ch. 344, § 1, an expert's opinion that a sex offender under commitment as a sexually violent predator is less likely to reoffend because the offender has gotten older is sufficient to support a probable cause determination that the offender is no longer a sexually violent predator or may otherwise be conditionally released. Even under the amended version of the statute, an offender's increased age is a factor that may support a probable cause determination if other factors supporting probable cause also are present.

[12] Mental Health  Involuntary Commitment  Sexually Violent Predators  Discharge or Release  Show Cause Hearing  Probable Cause  Establishment  Full Evidentiary Hearing  Necessity. If, at a show cause hearing on a petition by a sex offender for conditional release or unconditional discharge from commitment as a sexually violent predator under RCW 71.09.090(2), the trial court determines that there is probable cause to believe the offender is no longer a sexually violent predator or may otherwise be conditionally released, the court must set a full evidentiary hearing on the petition under RCW 71.09.090(3); the court may not limit the evidentiary hearing to particular issues.

BRIDGE , MADSEN , and FAIRHURST , JJ., dissent by separate opinion.

Nature of Action: A sex offender under commitment as a sexually violent predator sought release on a claim that he no longer met the definition of a sexually violent predator.

Superior Court: After a show cause hearing, the Superior Court for Clark County, No. 99-2-02774-8, Roger A. Bennett, J., on May 13, 2004, ruled that the offender was entitled to a trial on the issue of whether he continues to meet the statutory definition of a sexually violent predator now that he is older than when he was initially committed.

Court of Appeals: The court, at 134 Wn. App. 402 (2006), reversed the trial court's ruling and denied the offender's request for a trial, holding that the offender did not present sufficient evidence that his condition has changed since he was initially committed and that the State met its burden of demonstrating that the offender remains a sexually violent predator.

Supreme Court: Holding that a 2005 amendment to the sexually violent predators commitment statute does not apply retroactively to prevent the offender's increased age from being a basis for granting a full evidentiary hearing on the petition and that the offender made the requisite showing by means of an expert opinion that he no longer meets the definition of a sexually violent predator, the court reverses the decision of the Court of Appeals and remands the case to the trial court for a full evidentiary hearing on the petition.

David Schultz-, for petitioner.

Robert M. McKenna-, Attorney General, and Todd R. Bowers- and Jeffrey T. Even-, Assistants, for respondent.

En Banc

¶1 OWENS , J.  Petitioner Keith W. Elmore is civilly committed in the Special Commitment Center (SCC) as a sexually violent predator (SVP) under the sexually violent predator act (SVPA), chapter 71.09 RCW. Elmore appeals a Court of Appeals decision holding that he is not entitled to an evidentiary hearing to determine whether his commitment remains valid. We hold that Elmore is entitled to a full hearing regarding the validity of his continued confinement.

FACTS