The dissection of the Ghilotti decision by paragraph which follows was originally prepared around May 1, 2002, shortly following the April 25, 2002, decision. The paragraph references are original numbering taken from the versuslaw.com printout of the case.1

This case arose when the Department of Mental Health ("DMH") psychologists ("Evaluators") concluded that Mr. Ghilotti no longer met the statutory criteria for commitment. Up to this point in time, California never released anyone from this program, with the exception of those few who were released in pine boxes due to death from old age, and Ghilotti's pending release infuriated the DMH, who in turn received help from Governor Davis who along with the Attorney General pressured the Marin County District Attorney to intervene. The government lost in the lower courts', where it was ruled the DMH did not have the power to overturn the psychologists' findings. The California Supreme Court took up the case amid vast political pressure, but upheld the lower courts' conclusions that DMH administrators did not have the power to override professional evaluations. However, in its zeal to help the government retain Ghilotti in custody, the Court opened a completely new method of attack through challenging the evaluations for legal error in the superior court. In this case, whether the correct "substantial danger" legal standard was applied. In their zeal to help the government, the justices also inadvertently opened the same door to the defendant. 

When the Supreme Court authorized the superior courts to review the evaluations for legal error, the justices defined legal error as an inaccurate understanding of the statutory scheme. This appears to open the door for defendants to bring a number of as applied challenges to an otherwise valid statute. However, the decision also allows the court to send the evaluations back to the evaluators to either redo or correct. Presumably this process could be repeated until the government obtained the reports they desired, which would be an abuse of the intent of the law. 

It should be noted that on August 22, 2002, the California Supreme Court decried People v. Hurtado, (2002) 28 Cal. 4th 1179, which appears to limit the lower proof thresholds announced in Ghilotti to the probable cause stage of the proceedings only. Some of the Ghilotti minority opinions' constitutional concerns have been effectively dealt with in Hurtado, a unanimous decision. For instance, paragraph 154 of the Ghilotti concurring opinion discusses the problem of creating a double standard, one for evaluators, and another for juries, creating jury instruction problems. 

Hurtado deals with this concern holding that a reasonable suspicion standard is only for a probable cause finding. The same issue must then be proven beyond a reasonable doubt before the jury at trial. These cases should be considered together, as Hurtado limits Ghilotti, and requires the victims relationship and predatory act elements now be proven beyond a reasonable doubt to the jury. 

1-7 Case Information, title, etc. 

8. Opinion starts here. 

9-17. Background information. 17. Lists §6601 criteria (Welfare & Institutions Code. 

18. Makes evaluator's conclusions legally erroneous if it stems from a conclusion that although the person presents a serious and well-founded risk of offense if free without conditions, the evaluator cannot say the risk if over 50%. (This is yet another rejection of a strictly numerical approach, yet the way applied here opens the door for much abuse and constitutional challenge.) 

19. This adds a judicial evaluation for legal error requirement if requested by a party. (Previous case law allows the defendant to question the legal sufficiency at the probably cause hearing. People v. Poe, (1999) 88 Cal.Rptr. 2d 437, 440-441; In re Parker, (1998) 71 Cal.Rptr.2d 167.) Ghilotti now requires the trial court judge to make an independent determination at the behest of the appropriate party. 

20. This paragraph affirms what we have known since Crane: this is all new law! 

21-38. Ghilotti's case history up to time the California Supreme Court granted review. 

39. States review granted on one narrow issue: "Whether subdivision (d) of Section 6601 allows the filing of a petition. . .without the concurrence of two designated mental health evaluators?" 

40-41. The court justifies their expansion of issues. Footnote 6. Lists the new questions to be decided. 

44. Discussion begins here. 

45-56. Overview of the SVPA 

57. B. Issues presented begins here. 

58. Issue of two evaluations begin here. 

59-77. Discussion concluding that two evaluators are required. Fn. 7. Removes the legislative intent of "Independent" evaluators. Now they can use DMH employees for the first set of evaluations. 

78. Second issue begins here: May and should the superior court review the evaluators' reports to determine whether they are infected with legal error? 

80. States that the statute does not allow the evaluators utter free rein. 

82. Concludes that the judiciary does have the power to review for legal error. 

83. When question of legal error arises the superior court must address it. 

84-86. Presents analogy to CRC commitment procedures. (This is an interesting switch since when equal protection claims have been raised in the past, the court has held the SVPA to be unique by itself.) Fn.8. States neither party is entitled to an evidentiary hearing on the accuracy of the evaluations. (What then is the probable cause hearing for? And what do they mean by accuracy?)(This is yet another small thing that makes application of the Act appear to be punitive rather than civil.) 

85. Also gives court authority to provide legal oversight of an administrative determination which involved the exercise of discretion or judgment subject to statutory standards, and which as a legal effect on proceedings properly before the court. 

87. Judicial power to review for statutory legal error. (What about constitutional error?) 

88. No sua sponte duty of court to examine report. 

90. This paragraph reads new procedures into the statute that previously did not exist. (This is judicial activism to keep from releasing an SVP who should have been released under the plain language of the act.) 

91. This requires evaluators' reports to be attached to petition. (This is normally done anyway.) Also gives defendant standing to bring pleading challenging the petition's validity on grounds that one or more of the supposedly concurring reports are infected by legal error. (This whole scheme lets them keep submitting reports and new evaluators until they finally get two that say what they want. Witch hunt tactics!) Fn.9. Rejects using mandamus to challenge evaluators' reports. (This appears to stop the prosecution from filing appeals such as in Ghilotti in the future at this stage. However, the defendant can file a habeas corpus. See In re Kirk (1999) 88 C.R. 2d 648, and others.) 

92. Limits legal error to inaccurate understanding of the statutory criteria. 

93. Judicial review at this stage does not extend to matters of debatable professional judgment within an evaluator's expertise. 

94. Sets forth procedure for court if error found. 

95. If the court finds material legal error in an evaluator's report, the court shall provide the evaluator opportunity promptly either to correct the report or to prepare a new report. Fn.10. Essentially says that since there was no prior guidance the normal presumption against legal error does not apply. (Since they set new standards here, it is inferred that most evaluations will be legally insufficient, and need redoing.) 

96. Summarizes the present confusion. 

99-100 Conclusions of issue of judicial review for legal error. 

101. Third issue begins here: 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 appropriate treatment and custody." (§6601(d))? 

102. Summary of decision to this point and statement to now provide guidance as follows. 

102-123 Discussion of definitions of "likely." (Six pages of lingual perversion of the common meaning!) 

121. The requisite likelihood of reoffense is thus a separate determination which does not inevitably flow from one's history of violent sex offenses and a predisposing mental disorder. (This supports my contention that they cannot base their evaluations only on old history. It is also supported by a good deal of other case law.) Fn.12. (The majority talking about the minority.) Justice Moreno argues that a high likelihood of reoffense is necessary in order to distinguish committable offenders from other dangerous recidivists. (He and Justice Werdegar further quote this out of Crane, but the majority reads it differently.) "We agree that the two elements are distinct, but we view their relationship differently. In the first place, it is a particular form of dangerous mental disorder, not a particular degree of dangerousness, that "(next they quote Crane out of context) "distinguish[es] a dangerous sexual offender subject to civil commitment 'from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings.'" (They use this quote out of context when considering Crane incorporated this from Foucha, where an equal protection violation was found for a similar scheme because no other commitment law does it this way.) They then state: "A sex offender who lacks a qualifying mental disorder cannot be committed no matter how high his or her risk of offense." (This is helpful but not new because Foucha disallows the use of the historical diagnosis of a mental disorder. When they do not have a current diagnosis based on anything but history--a paper review of history that they attempt to pass-off as current. Therefore, their evaluations are legally erroneous because they have no current mental disorder. First missing element.) "On the other hand, the SVPA requires both a qualifying mental disorder and a 'liklihood' of reoffense, and the one does not predetermine the other." (This further enhances their similar statement in paragraph 121. However, here they continue by saying voluntary treatment is a factor. If there is no qualifying mental disorder, or if dangerousness does not flow from one's history, then it appears their evaluations are also legally erroneous in this area. Second missing element! Crane also added a third element "serious inability to control behavior," and the context dictates present behavior not future predictions. The Ghilotti majority has tried to usher this element back into their "likely to reoffend" element. The U.S. Supreme Court recently vacated two more state cases, Arizona and Minnesota, over this issue. There is a definite third element that California attempts to ignore, and that is some showing of a serious inability to control behavior other than deriving that from the mental disorder itself and basing recidivism predictions on that mental disorder. This is what Crane says, and the dissent reminds them of this. The majority's approach attempts to make the two separate elements one in the same to save the statute.) 

124. Conclusion of what "likely" now means in §6601(d). 

125. Rationalization of their new definition of "likely." Fn.13. More of the same. 

126. Ghilotti and his amici curiae contend that other jurisdictions require a better than even chance of reoffense. Fn.14. Lists several of these. (It should be noted that the U.S. Supreme Court has recently vacated and remanded the Minnesota and Arizona cases pursuant to Crane.) 

127. Court rejects Ghilotti's argument. 

128. More rationale to lower the threshold risk standard. Fn.15. Contains some interesting arguments presented by the amici curiae, but which the court rejected. (These rejections are based on statutory language, they have avoided the Crane constitutional issues. The concurring opinion points this out in discussion where he dissents this issue at 150 to 159. The concurring/dissenting opinion does same double talk but essentially dissents from the application of the new "likely," at 178 to 184.) 

129-132. A sub issue comes up here" Does the meaning of §6601(d) require treatment to be in custody, or can treatment be as outpatient? 

133. States that the statute appears to contemplate that the need for treatment and the need for custody are not always one and the same. (This rhetoric is probably to head off constitutional problems with there being no least restrictive alternative presently considered. This is a constitutional challenge presently being successfully raised in other states. This is also something that is not being considered in current evaluations.) 

134-136 Discusses evaluation analysis protocol and community treatment. 

137. Conclusion of incarceration versus community treatment issue. This essentially holds that community treatment must be considered. (All previous evaluations will be deficient in this area.) 

138. Statutory justification of conclusion. Fn.16. States the Legislative intent of confinement for "only as long as the[ir] disorder persists. Also constitutionally the statute must require both a mental disorder and resulting dangerousness. (Both 138 and Fn.16., they avoid the Crane/Foucha dicta which require present dangerousness not recidivism predictions. This was the problem with the substantive due process and the Kansas statute as written and applied. They skirted around the edges and avoided this issue.) 

139. Cites authorities to support above conclusion. These all support community treatment. 

140. Discusses community treatment factors and will person voluntarily seek treatment. (Fails to consider fact that CDC now requires treatment for all sex offender parolees--it is mandatory already.) 

141. The statute doesn't require treatment program participation in order to be eligible for release, but failure to do so would be a sign that person would not be prepared to control his dangerousness by voluntary means if released. (Also see dissent at 184, where this is expanded upon.) 

142-143. Conclusion and instructions for Ghilotti's case to lower courts. 

148. Concurring opinion begins. 

149. Agrees with majority on need for two evaluations, and court may review for legal error. 

150. Believes "likely" should have normal definition, not the weak definition the majority adopted. 

151. Cites dictionary definitions. 

152. Compares to other states that use traditional definition of "likely." (This other state usage is cited as being in Fn.13., this is a typo in this printing as it is actually in Fn. 14.) 

153. Calls into question that majority opinion effectively nullifies a key provision of the Act. 

154. Points out problem with non-standard definition of "likely" creating double standard, one for evaluators, and another for juries, creating jury instruction problems. (We must look at this closely.) 

156. Points out problem with new interpretation. (It is what I would call the use of the once dangerous always dangerous approach. This was shot down by Crane and Foucha.) 

157. Points out problem with low risk threshold and high evidentiary standard. (I see a constitutional issue here.) 

158. Legislative intent used words "extremely dangerous." Majority lowers that to "substantial danger." Goes on to state that Legislature has now mandated life sentences. (This infers the punitive application of the Act to catch old cases who didn't qualify for the new longer sentences.) Last sentence is a good quote: "The drafters of the SVPA knew that and thus narrowly tailored the law to those who were extremely dangerous, not merely by virtue of their past deeds, but because, in their present state, they were actually likely to reoffend." (This is more in line with what Crane holds.) 

159. States that majority opinion places statute at renewed constitutional hazard.

162. Concurring and dissenting opinion begins here. Moreno joined by Brown. 

163. Agrees with majority on two evaluator requirement. 

164. Does not join majority opinion on issue of judges' authority to review legal sufficiency of evaluations on grounds that the issue was not properly before the court. 

165. Agrees with majority that "likely" does not mean "more likely than not." 

166-177. Discussion of judicial review for legal sufficiency. 

178-184. Discussion of "likely." 

179. (This paragraph is double talk!) Adopts majority's "likely," then ends with: "The risk of reoffense must be sufficiently high however, to distinguish SVP's from the general population of convicted sex offenders." (This is from Crane, slightly modifies, but does not harmonize with low threshold of "likely.") 

180. Quotes Kansas v. Hendricks. 

181. Quotes Crane where Crane brings the Kennedy minority opinion from Hendricks into the Crane majority opinion. (They omit this little detail that this is actually new law.) Continues quoting more Crane. 

182. States "The Act, therefore, requires not just a risk of offense, but a high risk of offense." (This goes against their's and the majority's earlier low threshold definition of "likely.") 

183. Embraces the majority's "serious and well-founded risk," as long as it meets Crane. (How can it with their low definition of "likely?") 

184. Expands on the majority's discussion on refusal treatment showing a person is unwilling to control his dangerousness through voluntary treatment. Adding that a totality of circumstances may show other problems.