On April 25, 2002, the California Supreme Court set new standards for Sexually Violent Predator Act (“SVPA”) psychological evaluations, when it issued the opinion in People v. Superior Court (Ghilotti), (2002) 27 Cal. 4th 888..  The Court held that the appropriate party could challenge a petition for commitment, or recommitment, for validity on grounds that one or more of the evaluator’s reports are infected with legal error.  The trial court judge must then review the evaluations, with legal error being defined as an inaccurate understanding of the statutory scheme.  (Ghilotti, p.p. 13-17, par. 78-100). 

This decision gives the Superior Court authority to provide legal oversight of an administrative determination which involves the exercise of discretion or judgment subject to statutory standards, and which has a legal effect on proceedings properly before the court.  (Ghilotti.) If the court finds material legal error in an evaluator’s report, the court shall provide the evaluator opportunity either to correct the report or to prepare a new report.  (Ghilotti.) Because there was no prior guidance, the normal presumption against legal error does not apply.  (Ghilotti.) 

This case arose when the Department of Mental Health (“DMH”) evaluators concluded that Mr. Ghilotti no longer met the statutory criteria for commitment.  However, the Director of the DMH disagreed, and through Governor Davis and the Attorney General pressured the Marin County District Attorney to intervene.  The government lost in the lower courts, were it was ruled that the DMH administrators did not have the power to overturn the psychologists’ findings.  The State Supreme Court then upheld the lower courts’ conclusions that the DMH administrators did not have the power to override professional evaluations.  However, the Justices opened a completely new method of attack through challenging the evaluations for legal error in the trial court.  In this case, whether the correct “substantial danger” legal standard was applied. 

The Supreme Court then defined the proper legal standard for the first time, ruling that a mental health evaluator can recommend continued incarceration on less than a 50-50 chance of reoffense.  Stating, “A substantial danger. . .a serious and well founded risk” is enough to justify civil commitment in the sexually violent predator program.  The dissent complained the standard is so broad that it applies to “virtually all violent offenders with a sexual disorder.”  (It should be noted that in California all sex offenses are by definition violent, no matter the facts.  And, all sex offenders are alleged to have a “personality disorder,” making this law very broad indeed.)  The dissent also cautions that this decision places the Act in constitutional jeopardy.  (Note the dissent’s concerns appear to be partially addressed in the later decision People v. Hurtado (2002) 28 Cal. 4th 1179. 

The prosecution claimed victory with the Ghilotti decision because it allowed the state to challenge the evaluations.  However, for defendants, Ghilotti is also a victory of sorts.  The Supreme Court now allows either party to challenge the evaluations in the trial court.  Because Ghilotti announced new standards, virtually every evaluation prepared prior to this decision will contain legal error. 

This case was originally granted review to decide one narrow issue:   Whether subdivision (h) of §6601 allows the filing of a petition. . .without the concurrence of two mental health advisors?  This issue was unanimously decided that two evaluations are required.2

The balance of the opinion is not so easy.  The Court expanded the issues, resulting in three separate opinions being written: the majority opinion of four Justices; the concurring opinion of one Justice, which actually dissents on several points; the concurring/dissenting opinion of two Justices.  In plain English, which this decision avoids, this decision is a mess to decipher!  Therefore, I have also written a separate article with a paragraph breakdown to serve as an index to locate what is where in this lengthy decision.  This should help one correlate the issues in the three opinions. 

The expanded issues begin with the second issue: May and should the Superior Court review the evaluators’ reports to determine whether they are infected with legal error?  This was decided 5-2 that the judges have this power only when requested by one of the parties, but there is no sua sponte duty. 

The third issue ended up spawning a sub-issue which I shall call issue four.  Issue three: What is the meaning of the phrase upon which the evaluators are to opine, i.e., whether “the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without treatment and custody.”  (§6601(d))?  This is the real mess!  In attempting to tally who favored what among the Justices, it appears to be a 4 to 3 split opinion on the critical issue of the application of the new and unique definition of the word “likely,” where an amazing six pages of rhetoric was devoted to justifying an unusual definition for the word.  This was aptly pointed out by the minority, who stated the majority can cite no legal precedent for such a definition, and that they now place the Act at a renewed constitutional hazard.  The ultimate issue being: what does “likely to reoffend” mean? 

Issue four, the sub-issue that flowed out of issue three: Does the meaning of §6601 (d) require treatment to be in custody, or can treatment be as outpatient.  This appears to be a 6 to 1 decision now requiring evaluations to consider outpatient treatment.  This will be new for the evaluators, as it has never before been required.  In this one area, which essentially requires the consideration of a least restrictive alternative (“LRA”), an issue that has been the subject of constitutional challenges in other states, virtually all evaluations prepared prior to the Ghilotti decision will be deficient.  They simply did not previously consider LRA’s, and the defendant can now challenge such evaluations as being legally erroneous in this area. 

Most of the Ghilotti decision represents new criteria and procedures that previously did not exist.  The older evaluations will most likely all be legally erroneous in these areas, and may now be challenged. 

It should be noted that the August 22, 2002, decision in People v. Hurtado, (2002) 28 Cal. 4th 1179, appears to conflict with some of the rationale used to justify the “likely to reoffend” definition and application.  In Hurtado, the California Supreme Court cites the U.S. Supreme court decision in Addison v. Texas, (1979), 441 U.S. 418, which held that a preponderance of evidence standard was constitutionally inadequate in a civil commitment proceeding.  The Hurtado Court then held the proper standard in California to be proof beyond a reasonable doubt. 

In this writer’s opinion, this conflicts with the less than 50-50 chance of reoffense prediction that the Ghilotti Court found acceptable.  That issue was a 4 to 3 split in Ghilotti, but the same Justices ruled unanimously for beyond a reasonable doubt standard in the Hurtado decision for all elements for a civil commitment proceeding, citing a long list of precedent.  This essentially placed SVPA commitments on equal footing with all other civil commitments.  To accomplish this, the Hurtado Court limited the reasonable suspicion standard to the probably cause finding, but requires proof beyond a reasonable doubt at the jury trial. 

It appears that the Ghilotti majority may have heeded the minority’s warnings of placing the Act in constitutional jeopardy when the Justices unanimously limited the lower standards to the probable cause finding only in the Hurtado decision.  That, plus the effects of the U.S. Supreme Court decision in Kansas v. Crane, (2002) 534 U.S. 407, and then followed by other States’ Acts getting in constitutional trouble.  Such as the reversal and remand for reconsideration of State Supreme Court decisions in Minnesota and Arizona, where those courts had not considered Crane.  These constitutional concerns may be responsible for the narrowing of the scope of the  SVPA by the Hurtado decision, and for the inclusion of the least restrictive alternative consideration in the Ghilotti decision.