GARCETTI v. RASMUSON

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Court of Appeal, Second District, Division 2, California.

Gil GARCETTI, as District Attorney, etc., Petitioner, v. The SUPERIOR COURT for the County of Los Angeles, Respondent; Kenneth Kasten RASMUSON et al., Real Parties in Interest.

No. B103020.

Decided: October 10, 1996

Gil Garcetti, District Attorney, George M. Palmer, Head Deputy District Attorney, and Brent Riggs, Deputy District Attorney, for Petitioner. No appearance for Respondent. Michael P. Judge, Public Defender, Albert J. Menaster, Melvin Higashi, David Yamada, Nancy Ramseyer, John J. Vacca and Jack T. Weedin, Deputy Public Defenders, for Real Parties in Interest.

I. INTRODUCTION AND SUMMARY

This case presents an attack on the constitutionality of the Sexually Violent Predators Act (“SVP Act”).  (Welf. & Inst.Code, § 6600 et seq.)   The issue is whether the ex post facto clause renders the SVP Act unenforceable in the case of any sex offender whose sexual assaults predate the Act's effective date.

The SVP Act mandates psychological and psychiatric evaluation of specified convicted sex offenders before release at the end of their penal terms.   If a sex offender is diagnosed with a current mental disorder that predisposes him to commit further violent sex crimes, a civil petition may be filed seeking to have him institutionalized for treatment.   If proven beyond a reasonable doubt to a jury that the sex offender is a danger to others because he has a continuing mental disorder which makes it likely that he will commit future violent sex crimes if released without treatment, the sex offender may be committed for treatment in a mental health facility.   Treatment may last as long as the mental disorder continues, but in no event longer than two years unless a further commitment petition is successfully pursued.1

The instant writ proceeding concerns civil commitment petitions filed against 15 individual sex offenders.   The ex post facto issue presented on this writ petition is identical in all 15 cases, and we therefore consider them all together.   The lead case concerns one Rasmuson, who was twice convicted of sexually molesting young boys he encountered in public places.   In 1981, he was convicted of forced oral copulation, sodomy and a lewd act on an 11–year old.   In 1987, he was convicted of a lewd act on a 3–year old.

Each sex offender demurred to the petition concerning him, raising the ex post facto issue among others.   On the basis of the pleadings, the statutory language and the legislative history, the trial court summarily opined that the SVP Act's provisions for diagnosis and treatment are “essentially and predominantly penal in nature.”   The trial court concluded that the ex post facto clause renders the SVP Act unenforceable as to all sex offenders whose crimes preceded enactment of the SVP Act, regardless of the particular circumstances, mental condition, level of dangerousness, etc., of any particular sex offender.   The trial court sustained the demurrers without leave to amend and ordered Rasmuson and the other sex offenders released.   We issued a stay precluding release pending determination of this writ petition.

 The trial court's ruling was made on demurrer, and without benefit of evidentiary facts.2  The ruling is therefore effectively a ruling that the SVP Act is facially unconstitutional as to all offenders whose crimes preceded enactment of the SVP Act (rather than unconstitutional only as applied to particular facts or to particular mental conditions.)   To declare a statute unconstitutional without regard to particular facts, a court generally must find that the statute cannot in any instance be applied in a constitutional manner.   To declare a statute wholly unconstitutional as to an entire group, a court generally must find that the statute cannot in any instance be applied in a constitutional manner to any member of that group.

 The ex post facto clause prohibits added punishment for previous crime.   The clause does not, however, prohibit civil commitment for treatment of current mental disorder.   In ruling that the SVP Act is wholly unconstitutional as violative of the ex post facto clause in all cases of prior sex crime, the trial court necessarily found that the authorized commitments could never constitute anything other than prohibited additional punishment.   The trial court necessarily found that such commitments could in no case constitute permissible civil commitment for treatment and public protection on the basis of a present mental disorder.

Such findings could not be made without factual information.   Whether the commitments authorized by the SVP Act could possibly be used to require treatment for a current mental disorder, or whether all such commitments could only invariably be a subterfuge for added punishment, is not a question which can be answered as a matter of law on demurrer.   To answer such questions, it is necessary to determine whether the psychological and psychiatric sciences are capable of diagnosing current mental disorders, whether the commitments authorized by the SVP Act can be and are based upon the existence of such disorders, etc.

 The trial court implicitly answered all such factual questions adversely to the constitutionality of the statute as if these questions of psychological and psychiatric science were questions of law that could be answered on demurrer.   The capabilities of the psychological and psychiatric sciences, however, are not and could never be defined or limited by law.   Nor could the actual usages of these sciences be determined on demurrer.   These are instead matters of fact or evidentiary conclusion to be established by evidence including, where necessary, expert opinion.   Questions regarding the validity of diagnostic techniques or the veracity of a stated diagnostic basis for an institutionalization cannot be answered as a matter of law on demurrer.

We will therefore order issuance of a writ directing the trial court to vacate the orders sustaining the ex post facto demurrers to the petitions and instead to overrule those demurrers, to vacate the order for release of the sex offenders and instead to direct their interim detention in accordance with the relevant provisions of the SVP Act pending further proceedings, and to conduct the further proceedings specified in the SVP Act in a manner not inconsistent with this opinion.

II. DISCUSSION

A. The State and Federal Ex Post Facto Clauses are Interpreted Identically;  State Law Governs Demurrer Procedure.

 The ex post facto clause of the California Constitution (Cal. Const., art. I, § 9) is interpreted identically with the ex post facto clause of the United States Constitution (U.S. Const., art. I, § 10, cl.1).   (People v. McVickers (1992) 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955;  Tapia v. Superior Court (1991) 53 Cal.3d 282, 295–296, 279 Cal.Rptr. 592, 807 P.2d 434 (Tapia ).)   In reviewing the trial court's ruling, therefore, we look interchangeably to state and federal law regarding the ex post facto clause (unless a state decision conflicts with those of the United States Supreme Court).  (Tapia, supra, 53 Cal.3d 282, 297, 279 Cal.Rptr. 592, 807 P.2d 434.)   State law controls proper demurrer procedure.

B. The Fundamental Rule of Constitutional Statutory Construction

 The fundamental rule of constitutional statutory construction is that “[a] legislative act is presumed to be constitutional.   Unconstitutionality must be clearly shown, and doubts will be resolved in favor of its validity․  [¶] Thus, the speculative possibility of discriminatory or other invalid administration of a statute is not a ground for holding it void.”  (7 Witkin, Summary of Cal. Law (9th ed. 1988) § 58, pp. 102–103.)  “All presumptions favor the constitutionality of a statute enacted by the Legislature;  all doubts are resolved in favor of and not against the validity of the statute.   Before an act of a coordinate branch of the government can be declared invalid for the reason that it is in conflict with the Constitution, such conflict must be clear, positive, and unquestionable.”  (Varanelli v. Structural Pest Control Board (1969) 1 Cal.App.3d 217, 220, 81 Cal.Rptr. 492;  Horeczko v. State Bd. of Registration (1991) 232 Cal.App.3d 1352, 1358, 284 Cal.Rptr. 149;  see also Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1252, 48 Cal.Rptr.2d 12, 906 P.2d 1112 [all doubts resolved in favor of constitutionality;  statutes are upheld unless unconstitutionality is clear and unquestionable].)

 “[T]he presumption of constitutionality accorded to legislative acts is particularly appropriate when the Legislature has enacted a statute with the relevant constitutional prescriptions in mind.  [Citations.]  In such a case, the statute represents a considered legislative judgment as to the appropriate reach of the constitutional provision.   Although the ultimate constitutional interpretation must rest, of course, with the judiciary [citation], a focused legislative judgment on the question enjoys significant weight and deference by the courts.”  (Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 180, 172 Cal.Rptr. 487, 624 P.2d 1215 (lead opn. of Tobriner, J.) (Pacific Legal Foundation ).)

C. The Test for Unconstitutionality.

1. Introduction to the generally applicable Salerno/Yazoo test.

 A claim that a statute directly conflicts with a constitutional provision and hence is totally invalid in all circumstances is generally termed a “facial” attack on the statute.   To be successful, such an attack must show that the statute is invalid in all its potential applications.   A claim that a statute is unconstitutional only in certain situations is generally termed an “as applied” attack.   To be successful, such an attack must show that the statute is invalid in particular circumstances.

The instant attack on the SVP Act is limited to the proposition that the statute is invalid only as applied to sex offenders whose crimes preceded enactment of the Act.   Such an attack could theoretically succeed, therefore, even if the Act may constitutionally be applied to those offenders whose sex crimes postdate the statute.3  As directed to the category of those whose crimes predate the statute, however, the attack in the instant case is the functional equivalent of a facial attack—an attack seeking total invalidation of the statute as to all sex offenders within the category without regard to variance in particular circumstances.4  We must thus evaluate the trial court's ruling according to the constitutional standards for evaluation of an attack seeking statutory invalidation without regard to particular circumstances.   That methodology is set out in the law of facial invalidity.

The occasions for a legitimate declaration of facial invalidity are rare, because the general test for facial invalidity is exceedingly stringent.   If the general test applies, only a quite obviously unconstitutional statute may be declared facially invalid.   The general test does have some exceptions, but none apply to this case.

2. The Salerno/Yazoo Case Law.

United States v. Salerno (1987) 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (Salerno ) is the leading case on the generally applicable standard for adjudication of a facial attack on constitutionality.   In Salerno, the United States Supreme Court, deciding a facial attack on the Bail Reform Act of 1984, stated:  “[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.   The fact that the Bail Reform Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.”  (Salerno, supra, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100 (lead opn. of Rehnquist, C.J.), italics added.)   The Court found that Salerno had failed to satisfy his “heavy burden” of demonstrating that the Bail Reform Act was facially unconstitutional and hence totally unenforceable.   In so holding, the Court applied the long-standing general standard for evaluating facial constitutionality perhaps first enunciated in Yazoo & Mississippi Valley Railroad Co. v. Jackson Vinegar Co. (1912) 226 U.S. 217, 219–220, 33 S.Ct. 40, 40–41, 57 L.Ed. 193 (rejecting claim of facial invalidity based upon hypothetical facts which might, if they occurred, constitute constitutional violations).  (See also Keyishian v. Board of Regents (1967) 385 U.S. 589, 594, 87 S.Ct. 675, 679, 17 L.Ed.2d 629 [noting that a law “capable of constitutional application” is not facially invalid].)

Recent elaboration on the application of the Salerno/Yazoo test is contained in Ada v. Guam Society of Obstetricians and Gynecologists (1992) 506 U.S. 1011, 1012, 113 S.Ct. 633, 633–634, 121 L.Ed.2d 564 (Justice Scalia, with Chief Justice Rehnquist and Justice White concurring, dissenting from a denial of certiorari) (Ada ).  Ada discusses the distinction between a facial attack and an “as applied” attack on the constitutional validity of a statute, stating:  “The practical effect of holding a statute unconstitutional ‘as applied’ is to prevent its future application in a similar context, but not to render it utterly inoperative.   To achieve the latter result, the plaintiff must succeed in challenging the statute ‘on its face.’   Our traditional rule has been, however, that a facial challenge must be rejected unless there exists no set of circumstances in which the statute can constitutionally be applied [citing Salerno ]․  The only exception to this rule recognized in our jurisprudence is the facial challenge based upon First Amendment free-speech grounds.   We have applied to statutes restricting speech a so-called ‘overbreadth’ doctrine, rendering such a statute invalid in all its applications (i.e., facially invalid) if it is invalid in any of them.   [Citations.]”  (Ada, supra, 506 U.S. 1011, 1012, 113 S.Ct. 633, 634.)   Ada further observed that “[f]acial invalidation based on overbreadth impermissibly interferes with the state process of refining and limiting—through judicial decision or enforcement discretion—statutes that cannot be constitutionally applied in all cases covered by their language.”  (Ada, supra, 506 U.S. 1011, 1013, 113 S.Ct. 633, 634;  cf. United States v. Raines (1960) 362 U.S. 17, 21, 80 S.Ct. 519, 522–523, 4 L.Ed.2d 524 [“․ one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional ․ application of this rule frees the Court not only from unnecessary pronouncement on constitutional issues, but also from premature interpretation of statutes in areas where their constitutional application might be cloudy.”].)

3. The California Test for Facial Unconstitutionality.

California's test for facial unconstitutionality is the same.   The leading case is Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 172 Cal.Rptr. 487, 624 P.2d 1215.  Pacific Legal Foundation concerned a contention that a statute regulating labor relations between the state and its employees conflicted on its face with the merit provisions of the civil service system embodied in the state Constitution.   In Pacific Legal Foundation, Justice Tobriner wrote that the statute's attackers bore a “heavy burden in attempting to demonstrate that [the statute] is unconstitutional on its face.”  (Pacific Legal Foundation, supra, 29 Cal.3d 168, 180, 172 Cal.Rptr. 487, 624 P.2d 1215, caption 2.) The opinion stated that “[i]n evaluating petitioners' contentions we must bear in mind that petitioners' instant challenge pertains to the constitutionality of the statute on its face.   To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute, or as to particular terms of employment to which employees and employer may possibly agree.   Rather, petitioners must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.”  (Pacific Legal Foundation, supra, 29 Cal.3d 168, 180–181, 172 Cal.Rptr. 487, 624 P.2d 1215, italics in original.)   The court then rejected the facial challenge.  (See also In re Marriage of Siller (1986) 187 Cal.App.3d 36, 48–49, 231 Cal.Rptr. 757 [the rules set forth in Pacific Legal Foundation are “formidable rules insulating a statute from facial attack”;  if an appellate court can conceive of a situation in which a statute could be applied constitutionally, the statute will be upheld;  unless the statute presents a “present total conflict with constitutional provisions,” any overbreadth is cured through “case-by-case analysis of the fact situations to which the statute is applied.”].)

4. Exceptions to the Salerno/Yazoo test

 The Salerno/Yazoo test has several exceptions, but no such exception applies to the present issue of ex post facto law.5

 Perhaps the best known exception to the Salerno/Yazoo test is the “overbreadth” doctrine mentioned by Chief Justice Rehnquist in Salerno (Salerno, supra, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100), and by Justice Scalia in Ada.  (Ada, supra, 506 U.S. 1011, 1012, 113 S.Ct. 633, 633–634.)   This overbreadth doctrine applies to facial attacks based on the freedom of speech, freedom of the press, freedom of assembly, etc., clauses of the First Amendment.   The objective is to prohibit laws which “chill” the exercise of these freedoms.   Obviously, no “chilling” test applies to our question of whether the SVP Act violates the ex post facto clause.

 What might be termed another exception to the Salerno/ Yazoo test or possibly a corollary or special application of the “overbreadth” doctrine is the “prior restraint” doctrine which protects the exercise of several First Amendment rights.  (See, e.g., Lovell v. City of Griffin (1938) 303 U.S. 444, 451, 58 S.Ct. 666, 668–669, 82 L.Ed. 949 [First Amendment case finding invalid on its face an ordinance prohibiting distribution of circulars without permission of city manager], and Kunz v. People of State of New York (1951) 340 U.S. 290, 293–295, 71 S.Ct. 312, 314–316, 95 L.Ed. 280 [First Amendment case finding invalid on its face as a prior restraint an ordinance giving a city official discretionary power to control in advance the right to speak on religious matters on the streets of New York].)   Obviously, the “prior restraint” test, designed to avoid impingement on exercise of legitimate rights, does not apply to the question of whether the SVP Act violates the ex post facto clause.

 Another exception to the Salerno/Yazoo test applies to evaluation of facial attacks based on the establishment clause of the First Amendment.6  In establishment clause cases, the United States Supreme Court has applied the test first enunciated in Lemon v. Kurtzman (1971) 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (Lemon ).   The three-pronged Lemon test inquires whether a statute lacks a “secular legislative purpose,” whether its primary effect is to advance or inhibit religion, and whether it results in “excessive government entanglement with religion.”  (Lemon, supra, 403 U.S. 602, 612–613, 91 S.Ct. 2105, 2111–2112).   The Lemon “secular purpose” or “primary effect” tests, while quite different from the Salerno/Yazoo test, do not apply to the question of whether the SVP Act facially violates the ex post facto clause.

Another exception to the Salerno/Yazoo test applies to facial due process attacks on statutes that criminalize specified conduct on the grounds that these statutes are vague and uncertain.  (See, e.g., Lanzetta v. New Jersey (1939) 306 U.S. 451, 452–458, 59 S.Ct. 618, 618–621, 83 L.Ed. 888 [due process case finding invalid on its face as vague and uncertain a penal statute punishing a “member of a gang” not engaged “in any lawful occupation” as a “gangster,” and reversing conviction].)   No such exception is applicable to a claim of ex post facto invalidity.

A final area in which debate is currently in progress regarding whether the Salerno/Yazoo or a different test applies concerns facial attacks on abortion statutes.  (Compare Justice Scalia's dissent from denial of certiorari in Ada, supra, 506 U.S. 1011, 113 S.Ct. 633, with Justice O'Connor's concurring opinion denying a stay in Fargo Women's Health Organization v. Schafer (1993) 507 U.S. 1013, 113 S.Ct. 1668, 123 L.Ed.2d 285 (Fargo ).)   In Ada, Justice Scalia contends that the Salerno test applies to a facial attack on an abortion statute.  (Ada, supra, 506 U.S. 1011, 113 S.Ct. 633.) In Fargo, Justice O'Connor contends that such facial attacks should be evaluated according to an “undue burden” standard.  (Fargo, supra, 507 U.S. 1013, 1014, 113 S.Ct. 1668, 1669.)   Whatever standard may properly apply to evaluation of a facial attack on an abortion statute, no “undue burden” standard applies to evaluation of the facial validity of the SVP Act as against an ex post facto attack.

Although counsel were asked to brief the matter, no applicable exception to the Salerno/Yazoo test has been cited, and our independent research has found none.   We accordingly apply the Salerno/Yazoo test in reviewing the trial court ruling that the SVP Act is wholly incapable of constitutional application to any sex offender whose crime was committed before the effective date of the Act.7

D. The Law of Demurrers

 A demurrer can be sustained without leave only if fatal defects appear on the face of the pleading, or if fatal defects are identified by taking judicial notice of facts outside the pleading.  (See, e.g., Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58;  Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 808, fn. 4, 50 Cal.Rptr.2d 736, 5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 942–947, pp. 377–382.)   No other extrinsic evidence may be considered.  (See, generally, Weil & Brown, Civil Procedure Before Trial (Rutter 1995) ¶ 7:8.)   On demurrer, the court must assume the truth of the facts pleaded, and consider whether those facts state a cause of action on which relief can be granted.   (Weil & Brown, Civil Procedure Before Trial (Rutter 1995) ¶ 7:39.)   The sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action.   The question is not whether the facts pleaded are in fact true.   (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604, 176 Cal.Rptr. 824;  Weil & Brown, Civil Procedure Before Trial (Rutter 1995) ¶ 7:44.)   The court's anticipation that the pleader (plaintiff or petitioner) may have difficulties in proving the facts pleaded is of no relevance in ruling on a demurrer.  (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214, 197 Cal.Rptr. 783, 673 P.2d 660;  Weil & Brown, Civil Procedure Before Trial (Rutter 1995) ¶ 7:45.1.)

The 15 petitions which began this case in the trial court each pleaded that the sex offender in question had been diagnosed as suffering from a present mental disorder that predisposed him to commit future violent sex crimes, and that his commitment for treatment was consequently being sought pursuant to the SVP Act.   For purposes of demurrer, the trial court was obliged to accept the pleaded facts as true.   The trial court could not properly summarily conclude on demurrer, as it did, that the petitions were filed as part of a vindicative subterfuge to obtain added punishment and that the facts pleaded were untrue.

The sex offenders urge that cases exist in which the facial invalidity (or facial validity) of a statute has been adjudicated on demurrer or on demurrer-like motion.   However, such a determination can properly be made on such a motion only if the pleaded facts conclusively show a conflict with (or a lack of conflict with) the constitution.   An example of such facial conflict might be a law extending sentences for previous crimes.   In the instant case, as developed in the next section, there is no conflict between the SVP Act and the ex post facto clause if the psychological and psychiatric sciences can be and are used to identify current mental disorders for treatment.   Whether the psychological and psychiatric sciences can be (in at least some cases) so used, and whether they are in fact so used, are factual questions that cannot be answered on demurrer.

E. Ex Post Facto Law.

1. Background.

In the almost two centuries since the first judicial pronouncement of the original meaning of the ex post facto clause in Calder v. Bull (1798) 3 U.S. (3 Dall.) 386, 390–392, 1 L.Ed. 648 (Calder ), application of the ex post facto clause has occasionally drifted away from its original purpose.8  Some cases distorted the ex post facto clause to outlaw any statutory change seen to remove a “substantial protection” or which “alters the situation of a party to his disadvantage.”  (Collins v. Youngblood (1990) 497 U.S. 37, 44, 50, 110 S.Ct. 2715, 2720, 2723, 111 L.Ed.2d 30 (Collins ).)  Collins corrected that drift and restored the ex post facto clause to its original meaning.

Long before Collins, the United States Supreme Court restated the Calder formulation in Beazell v. Ohio (1925) 269 U.S. 167, 169–170, 46 S.Ct. 68, 68–69, 70 L.Ed. 216, identifying three categories of enactment prohibited by the ex post facto clause:  1) any statute which punishes as a crime a previous act which was not criminal when done, 2) any statute which makes more burdensome the punishment for a crime after its commission, and 3) any statute which deprives one charged with a crime of any defense which was available according to law at the time the act was committed.   In Collins, the court stated that “[t]he Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause:  Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.”  (Collins, supra, 497 U.S. 37, 43, 110 S.Ct. 2715, 2719.)   The court further stated that “[t]he Beazell definition, then, is faithful to the use of the term ‘ex post facto’ at the time the Constitution was adopted.”  (Collins, supra, 497 U.S. 37, 44, 110 S.Ct. 2715, 2720.)   The “substantial protection” and “alteration of law to disadvantage” corruptions which had crept into ex post facto jurisprudence were excised.  (Collins, supra, 497 U.S. 37, 44–50, 110 S.Ct. 2715, 2720–2723.)

2. The McVickers Case.

People v. McVickers (1992) 4 Cal.4th 81, 13 Cal.Rptr.2d 850, 840 P.2d 955 (McVickers ) was decided by the California Supreme Court shortly after the United States Supreme Court decided Collins.  McVickers involved a statute requiring a convicted sex offender to submit to a blood test for evidence of AIDS.   The defendant claimed the statute was an invalid ex post facto law in the case of any defendant whose offense predated the statute.   The basis for defendant's claim was the proposition that “the testing and disclosure provisions of [the new statute] disadvantage him in violation of the ex post facto clause,” in view of the added “burden” imposed upon him by the testing requirement.   The California Supreme Court construed this as a claim “that appears to be based on the now-defunct ‘substantial protection’ analysis” and stated “[t]o the extent that defendant relies, as he does, on pre-Collins cases, he is unpersuasive.   Under Collins ․ the ex post facto clause prohibits not just a burden but a more burdensome punishment.   Thus, at issue in the present case is the meaning of the word ‘punishment’ as used in the second Collins category.”  (McVickers, supra, 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955, italics in original.)   Just as in McVickers, the issue in the case now being decided is the meaning of the term “punishment” as used in the second Collins category.

3. The Trial Court's Misapplication of Tapia.

In the instant case, the trial court cited Tapia v. Superior Court (1991) 53 Cal.3d 282, 288, 279 Cal.Rptr. 592, 807 P.2d 434 (Tapia ) as support for what the trial court termed its “conclusion,” stated near the end of its 31–page opinion, that subjecting the sex offenders to the SVP Act “clearly constitutes a more burdensome consequence to the defendants.”   This “more burdensome consequence” theory appears to be precisely the erroneous pre-Collins theory rejected by Collins and described as “now-defunct” by McVickers.  Tapia contains no support for a finding of unconstitutionality on this basis.9  Tapia at page 288, 279 Cal.Rptr. 592, 807 P.2d 434 simply restates the three ex post facto categories set forth in Calder and Beazell and approved in Collins, and then observes that such laws change “the legal consequences of an act completed before [the law's] effective date.”   With specific reference to the “elimination of a substantial protection” theory, Tapia itself states that “the United States Supreme Court has repudiated that analysis.”  (Tapia, supra, 53 Cal.3d 282, 292, 279 Cal.Rptr. 592, 807 P.2d 434.)   The California Supreme Court in McVickers interpreted such an “added burden” argument as one “that appears to be based on the now-defunct “substantial protection” analysis.”  (McVickers, supra, 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955.)   The trial court's “more burdensome consequence” decision here thus appears expressly based upon a “defunct” pre-Collins analysis.   The true issue, to which we now return, is whether the SVP Act prescribes added punishment for past crime.

4. The McVickers Analysis.

The California Supreme Court in McVickers stated that “[t]he proper inquiry is whether the mandatory AIDS test makes defendant's punishment more burdensome and thus falls within the Collins prohibition.   The Court of Appeal held that it did, stating that ‘The loss of significant rights as the result of a criminal conviction has long been considered “punishment” for ex post facto purposes.’   Focusing its analysis solely on the statute's effect on defendant and not on the statute's purpose, it struck the order for blood testing as violative of the ex post facto clause.”  (McVickers, supra, 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955.)   In McVickers, the California Supreme Court disapproved the Court of Appeal's analysis because the Court of Appeal had focused solely on the effect on the individual and had disregarded the legislative purpose.10

After noting that “[c]riteria for deciding whether or not legislation is punitive have yet to be developed” (McVickers, supra, 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955), the California Supreme Court surveys a number of factors bearing on the determination.  McVickers notes that the original inspiration for the ex post facto clause arose out of the “excesses of colonial rulers ‘stimulated by ambition or personal resentment and vindictive malice,’ ” and cites Trop v. Dulles (1958) 356 U.S. 86, 96, 78 S.Ct. 590, 595–596, 2 L.Ed.2d 630, which stated that “[i]n deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute ․ a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose.”  McVickers observes that modern ex post facto jurisprudence inquires into legislative purpose, stating that “[b]oth purpose and effect must be examined” and reiterating that “the proper inquiry is not whether the [AIDS blood] test is a burden on defendant, but whether it makes more burdensome the punishment for his crime.”  (McVickers, supra, 4 Cal.4th 81, 85–87, 13 Cal.Rptr.2d 850, 840 P.2d 955.)   In the course of this analysis the court notes with approval cases holding that “confinement of a person acquitted of a crime because of insanity is generally not punishment in the ex post facto context because its purposes are treatment of the individual and protection of society,” that a new statute “requiring registration of sex offenders did not violate the ban on ex post facto legislation,” and that a new statute eliminating the possibility of setting aside a conviction of child abuse did not violate the ex post facto clause because “[e]ven though the statute had ‘both penal and nonpenal effects' its purpose, according to the legislative history, was nonpenal.”  (McVickers, supra, 4 Cal.4th 81, 86–87, 13 Cal.Rptr.2d 850, 840 P.2d 955.)   Finding that the AIDS test called for in McVickers had a “legitimate purpose other than punishment” and that “the statute's purpose was not to punish for past crimes,” the court upheld the statute.

McVickers illustrates the factors that merit consideration.   It also shows that the law in this area is in a state of development.   These considerations counsel against a quick conclusion on demurrer that a statute cannot be applied in a constitutional manner in any case.

5. The Trial Court's Reliance on the pre-Collins Gibson case.

Instead of applying the McVickers criteria to the question of whether the pleadings here stated a constitutional cause of action, the trial court instead relied heavily on the pre-Collins case of People v. Gibson (1988) 204 Cal.App.3d 1425, 252 Cal.Rptr. 56 (Gibson ).11  In Gibson, the court stated “[t]wo critical elements must be present for a statute to violate the ex post facto clause:  (1) it must be a criminal or penal law which applies to events occurring prior to its effective date, and (2) it must substantially disadvantage the offender.”  (Gibson, supra, 204 Cal.App.3d 1425, 1431, 252 Cal.Rptr. 56.)  Gibson hence appears expressly to apply the pre-Collins “alteration of situation to disadvantage” analysis jettisoned by the United States Supreme Court in Collins and described as “now-defunct” by the California Supreme Court in McVickers.

The court in Gibson also considered whether the institutionalization authorized by the statute there in question was penal or therapeutic.   The Gibson court noted that “[r]espondent is, however, correct that a necessary determination is whether the statutes imprison appellant as a criminal or require compulsory treatment in involuntary confinement as a sick person.”   (Gibson, supra, 204 Cal.App.3d 1425, 1432, 252 Cal.Rptr. 56.)  Gibson thus expressly recognized that institutionalization as a “sick person” is not punishment.   Although Gibson went on to decide that the institutionalization there involved was penal and in violation of the ex post facto clause, Gibson does not disclose the precise standard of constitutional adjudication being applied (neither Salerno/Yazoo nor any other adjudicatory standard is mentioned).   Nor does Gibson explain how the court made its seemingly factual determination that proceedings under the statute necessarily did not constitute treatment.  Gibson instead simply states the conclusion without apparent reference to evidentiary fact.   The explanation may nevertheless be that Gibson was decided after trial, and hence presumably in light of a complete evidentiary record.  (Gibson, supra, 204 Cal.App.3d 1425, 1429–1432, 252 Cal.Rptr. 56).   The ruling now under review, by contrast, was made on demurrer with no evidentiary record.

Gibson also contains language which might be read to support the proposition that if the purpose of a statute is to protect the public, which Gibson opined to be “the same purpose for imposing imprisonment for criminal conduct,” then the statute is necessarily penal for ex post facto purposes.   In finding an ex post facto violation, Gibson found it noteworthy that “[t]he primary purpose of the legislation is to protect the public” and that “the sole purpose is not treatment for the safety of the person committed.”  (Gibson, supra, 204 Cal.App.3d 1425, 1433, 252 Cal.Rptr. 56.)   If Gibson's proposition, however, is that there is no legitimate purpose in protecting the public from violent sexual attacks apart from punishing an offender, that proposition is simply wrong.   Saving potential future victims from the pain and trauma—and possibly the death or disability—caused by an attack, saving a potential victim's parents, family or friends from the grief and trauma caused by an attack, and avoiding the costs and losses such an attack can impose on victims individually, on their friends and families, and on society generally, are fundamental governmental objectives.   Provision for the common safety is perhaps the core reason why the institution of government was first invented.   Nothing in the course of history has eliminated the maintenance of public safety as a core function of government.   To the extent Gibson is read to hold that such efforts have no legitimacy apart from punishment, Gibson is inconsistent with a large body of case law, including the approval in McVickers of a case finding that confinement of the insane for “protection of society” is “not punishment.”   It also conflicts with McVickers' teaching that it is error to focus “solely on the statute's effect on defendant and not on the statute's purpose,” in that it defines statutory purpose solely by evaluating the effect on the offender.   It also conflicts with the statement of the United States Supreme Court in Trop that a statute is “nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose.”  (McVickers, supra, 4 Cal.4th 81, 85–87, 13 Cal.Rptr.2d 850, 840 P.2d 955.) 12

The trial court's ruling appears to have been heavily influenced by its reading of Gibson as containing the proposition that protecting the public from violent sexual attacks is not a legitimate governmental purpose separate from punishing an offender.   The trial court stated, for example, that it was “clear” that “public safety, not treatment, is the Legislature's predominant goal,” and that it was “crystal clear” that “public safety through incapacitation was the Legislature's aim,” and that the “Legislature's overwhelming concern was to protect the public against further sexually violent crime.”   This perception of the Legislature's objectives does not support the conclusion that the SVP Act violates the ex post facto clause.   To the contrary, it suggests the validity of the SVP Act, since it states a legitimate, non-penal purpose.

 The SVP Act does not authorize institutionalization based on past criminal conduct.   Instead, a current mental disorder creating a predisposition to violent sex crime is the only authorized basis for current institutionalization.   An institutionalization based on current mental disorder is not punishment, as even Gibson recognized.  (Gibson, supra, 204 Cal.App.3d 1425, 1432, 252 Cal.Rptr. 56 [necessary to distinguish between imprisonment as a criminal versus treatment as a sick person].)   Other courts which have recently considered this issue have reached the same conclusion.   (In re Young (1993) 122 Wash.2d 1, 857 P.2d 989, 998 [civil commitment goals of incapacitation and treatment are distinct from punishment;  protecting innocent potential victims is a legitimate and vital governmental purpose];  State v. Carpenter (1995) 197 Wis.2d 252, 541 N.W.2d 105, 113 [statute aimed at protecting the public by providing treatment to sex offenders who are at high risk of reoffending based on mental disorder does not provide for punishment, but rather regulation of a present situation];  see also Matter of Care and Treatment of Hendricks (1996) 259 Kan. 246, 912 P.2d 129, 151–153, cert. granted (1996) 518 U.S. 1004, 116 S.Ct. 2522, 135 L.Ed.2d 1047—[three justices noting lack of ex post facto violation because “protection of society from those rendered sexually dangerous by a mental ailment and the treatment of such people” are “permissible goals”].)

6. The Trial Court's Reliance on the pre-Collins Valenzuela Case.

The trial court finally relied heavily on another pre-Collins case, In re Valenzuela (1969) 275 Cal.App.2d 483, 79 Cal.Rptr. 760 (Valenzuela ).   Valenzuela was a 1960's juvenile case from the days in which few procedural protections were afforded to juveniles.   The SVP Act is, by contrast, replete with procedural protections.   More to the point, the court in Valenzuela clearly stated that Valenzuela's “history gives reason to suspect that he is an emotionally disturbed, compulsive sex offender, hence a danger to society.   A well-conceived body of laws would permit an inquiry with a view to his hospitalization and restraint under civil law before—not after—he commits a new sex crime.   Such a statutory arrangement is constitutionally permissible when accompanied by appropriate safeguards.”  (Valenzuela, supra, 275 Cal.App.2d 483, 488, 79 Cal.Rptr. 760.)  Valenzuela is hardly authority for the proposition that the SVP Act violates the ex post facto clause.

7. Summary.

The trial court's ruling should not have been based on Gibson, which predates Collins and hence has little precedential value.   Nor should it have been based on Valenzuela, which also predates Collins, which involved circumstances of lack of procedural protection not involved here, and which by its own words does not support a summary finding of unconstitutionality in any event.   Nor should the ruling have been based on the proposition that the statute is constitutionally invalid because the legislative purpose is prevention of future violent sexual attacks, or because the legislation creates “a more burdensome consequence” for certain sex offenders.   Instead, presented on demurrer was simply the question of whether the SVP Act could be constitutionally applied to any theoretical sex offender whose crimes predate the Act.   As noted in Valenzuela itself, a properly structured and implemented statute could be constitutionally applied.  (Valenzuela, supra, 275 Cal.App.2d at 488, 79 Cal.Rptr. 760.)

III. THE ISSUE IN PERSPECTIVE.

A final consideration of the necessary implications of the trial court's ruling will place the ex post facto issue in perspective while illustrating the sound reasons behind the Salerno/Yazoo test for adjudicating facial attacks on statutory constitutionality.   The lead case of the 15 cases in issue here concerns Rasmuson, convicted as noted above of sexual assaults on two young boys on two separate occasions.   We will thus consider the necessary implications of the trial court's ruling in the case of a hypothetical convicted child molester.

A statute may not be found wholly invalid unless “no set of circumstances exists” in which the statute could ever be validly applied.   The trial court's declaration of total invalidity in all cases of sex offenders whose crimes predate the statute thus necessarily includes the proposition that a hypothetical child molester whose crimes predate the statute, once he completes his most recent sentence, enjoys a privilege which immunizes him from institutionalization and treatment, even if it can be determined beyond a reasonable doubt that he has a continuing mental disorder rendering it highly likely that he will violently sexually attack children if released without further treatment.   An affirmance of the trial court's ruling would affirm the proposition that the Constitution, by way of the ex post facto clause, was intended to preclude the institutionalization and treatment of such a hypothetical child molester at the end of his penal term, no matter how seriously mentally disordered he may still be, no matter what diagnostic tools or techniques may be available, no matter how clear his diagnosis of mental illness may be, no matter how great the danger may be that he will commit violent sexual attacks on children after his release without further treatment, no matter what level of diagnostic and predictive power the psychological and psychiatric sciences may have, no matter what therapeutic treatment may be available (and regardless of its effectiveness), and even if the hypothetical child molester's mental disorder causes him to have and even to announce an unwavering determination to attack the first child unfortunate enough to cross his path after his release.13  This is what facial invalidity means:  “no set of circumstances exists under which the Act would be valid.”   (Salerno, supra, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100;  see also Pacific Legal Foundation, supra, 29 Cal.3d 168, 180, 172 Cal.Rptr. 487, 624 P.2d 1215.)   Such a ruling would reflect a distorted conception of the original intent of the ex post facto clause.

Enactments such as the SVP Act do pose concerns which merit careful consideration.   The trial court properly recognized serious questions about the capabilities of the psychological and psychiatric sciences.   Skepticism, however, cannot be translated directly into supposed factual findings.   A factual ruling must be based on fact, either admitted or agreed, or developed through evidence.   Only factual inquiry can reveal whether the psychological and psychiatric evaluations called for by the SVP Act are capable of identifying current mental disorders for which institutionalization for treatment would be constitutionally permissible.   Scientific evidence is often received to resolve such questions.  (See, e.g., People v. McDonald (1984) 37 Cal.3d 351, 361–377, 208 Cal.Rptr. 236, 690 P.2d 709 [allowing evidence on psychological factors that affect eyewitness testimony;  inapplicability of Kelly–Frye rule to psychiatric testimony of “reconstitution of a past state of mind or the prediction of future dangerousness”];  Conservatorship of Isaac O. (1987) 190 Cal.App.3d 50, 235 Cal.Rptr. 133 [determination based on psychiatric testimony that person was “gravely disabled as a result of mental disorder,” affirmed];  In re Cheryl H. (1984) 153 Cal.App.3d 1098, 1118, 200 Cal.Rptr. 789 [psychiatrist is expert in function of human mind;  law has accordingly allowed psychiatrists to testify “about various aspects of the mental condition of people they have examined,” from “testamentary capacity of a decedent to the criminal responsibility of a murderer”];  People v. Phillips (1981) 122 Cal.App.3d 69, 86–87, 175 Cal.Rptr. 703 [psychiatric testimony on “Munchausen syndrome by proxy”].)   Prior to that factual inquiry, the possibility of constitutional application in at least some cases cannot be foreclosed.   Unless an exception to the Salerno/Yazoo test applies, it is error to declare a statute invalid so long as a possibility of constitutional application in some cases remains open.

The necessary implications of the trial court's ruling illustrate the reasons for what Justice Rehnquist termed in Salerno and Justice Tobriner termed in Pacific Legal Foundation the “heavy burden” which must be met to sustain a facial challenge.   Viewed in light of this “heavy burden,” it is clear that the trial court's ruling summarily declaring the SVP Act invalid on demurrer was error.

IV. DISPOSITION

Let a peremptory writ of mandate issue directing the respondent court to vacate its orders of May 31, June 12 and June 14, 1996, sustaining demurrers to each of the 15 petitions and ordering the release of the 15 sex offenders in question, to enter a new order overruling each of the 15 demurrers insofar as they are based on the ex post facto clause, to direct the interim detention of the 15 sex offenders in accordance with the relevant provisions of the Act pending further proceedings, and to conduct the further proceedings specified in the Act in a manner not inconsistent with this opinion.

FOOTNOTES

1.   The statute contains numerous other procedural and substantive provisions not necessary to detail here.

2.   The trial court's 31–page ruling is nevertheless replete with what can only be characterized as factual findings, opinions or assumptions.   The ruling states that “it is abundantly clear that the mental disorder diagnosis largely depends upon defendants' prior criminal history ․ and must refer to ‘personality disorders' which are characterological in nature rather than major mental disorders.”   The ruling finds that “the term ‘diagnosed mental disorder’ is so definitionally vague in the statute that the fact-finder's determination inevitably must rest upon the only tangible objective proof available in such cases, that is, defendant's past commission of sex offenses.”   The ruling expressly purports to rely on evidence in stating that “[f]urther evidence of penal, non-therapeutic intent and effect emerges from the fact that the types of disorders involved in the commission of violent sexual offenses are among the most difficult to treat.”   The ruling makes further references to purported evidence in noting “the documented inaccuracy of predicting future criminal behavior of the type required in order to find a defendant a [sexually violent predator]” and “the voluminous studies in law and mental health in the last 25 years showing that the false positive predictions of violence exceed true positive predictions of violence and that false negative predictions also occur.”   Frequent reliance is placed on the expert factual opinions of a Dr. Wettstein as expressed in a law review article.   Other examples abound.This ruling was made on demurrer.   Factual findings are not permissible on demurrer (Colm v. Francis (1916) 30 Cal.App. 742, 752, 159 P. 237).   Neither side presented evidence on which factual findings could be made.

3.   However, the trial court implied a finding that the SVP Act is invalid because the psychological and psychiatric sciences are incapable of identifying and treating sexually violent predators.   If correct, this argument would appear equally applicable to cases of sex offenders whose crimes postdate the effective date of the SVP Act. Different constitutional provisions would be implicated, but the criticism is the same.   Yet the existence of valid statutes providing for civil commitment based on a diagnosis of present mental disorder, rather than based on any past crime, is the essential reason for the existence of the Mental Health Department of the Los Angeles Superior Court, where the ruling under review was made.

4.   If the statute were written to apply only to sex offenders whose crimes predate its enactment, the current attack would clearly be a classic, all-inclusive, facial attack.   The fact that the Act covers an additional group whose crimes postdate enactment of the statute does not alter the constitutional methodology applicable to those whose crimes predate the enactment.

5.   Although each exception to the Salerno/Yazoo test involves a complex area of constitutional law which could support extended discussion, no more than a cursory review of these areas is needed to determine that no such exception applies to the instant case.

6.   Some might term this a rule of substantive law, but in any event it displaces the Salerno/Yazoo test.

7.   One commentator has criticized the Salerno/Yazoo test.   (Dorf, Facial Challenges to State and Federal Statutes (1993–94) 46 Stan. L.R. 235, 239.)   According to Professor Dorf's article, “[i]f Salerno really set forth the governing standard, however, litigants would rarely bring facial challenges.   In the as-applied challenge, if the statute in question cannot be constitutionally applied to the litigant, then she will prevail without having to show that no set of circumstances exists under which the statute could be constitutionally applied to someone else.   On the other hand, if the litigant loses her as-applied challenge, she will also lose her facial challenge under Salerno because the statute is constitutional in at least one circumstance․  Under Salerno, a litigant bringing a facial rather than an as-applied challenge gains nothing.”   The article both misses and illustrates the point of the Salerno/Yazoo test.   The article mistakenly assumes that an as-applied challenge is invariably easier to present than a facial challenge, when quite often the reverse is true.   If a litigant can obtain a quick ruling of facial invalidity on motion (similar to what the sex offenders attempted here on demurrer), that litigant will be spared the burden of presenting evidence of actual or possible applications of the statute.   The opportunity for facial attack can consequently have significant practical value in litigation.   It remains true, however, that such a facial attack will be successful only if it is clear that “no set of circumstances exists” in which the statute could be validly applied.   The fact that a meritorious facial challenge may be available only rarely is no indication that the Salerno/Yazoo test is not a proper constitutional standard.   Nor is it a reason to loosen the standards for adjudication of constitutionality to allow a statute to be more easily summarily invalidated on motion even though the statute can be constitutionally applied in some circumstances.

8.   The concept of ex post facto laws was earlier mentioned in 1798 in The Federalist No. 44 (J. Madison).   Its meaning was not expounded there, however, but rather treated as well understood.

9.   Tapia, of course, could not contain any basis for ex post facto invalidation on the “more burdensome” grounds unless the California Supreme Court chose to construct a state ex post facto jurisprudence at odds with federal ex post facto law.   To the contrary, however, Tapia itself found that, after Collins, “there is no reason not to return to the original understanding of the scope of the rule against ex post facto laws expressed in both federal and state Constitutions.”  (Tapia, supra, 53 Cal.3d 282, 297, 279 Cal.Rptr. 592, 807 P.2d 434.)  Tapia states that “[w]hile we unquestionably have the power to interpret a provision of the state Constitution differently than its federal counterpart ․, neither the language nor the history of the state ex post facto clause supports a different interpretation.”  (Tapia, supra, 53 Cal.3d 282, 295, 279 Cal.Rptr. 592, 807 P.2d 434).   In McVickers, the California Supreme Court cited Tapia for the proposition that the ex post facto clause of the California Constitution “is to be analyzed identically” to the federal ex post facto clause.  (McVickers, supra, 4 Cal.4th 81, 84, 13 Cal.Rptr.2d 850, 840 P.2d 955).   Clearly, there is nothing in Tapia which could lend support to the trial court's conclusion that the SVP Act is invalid because it “clearly constitutes a more burdensome consequence to the defendants.”

10.   The practice of focusing solely on the effect on an offender in order to characterize a statute has repeatedly been rejected, both by California courts and by the United States Supreme Court.   A recent example is Baldwin v. Department of Motor Vehicles (1995) 35 Cal.App.4th 1630, 1642, 42 Cal.Rptr.2d 422 (Justice Chin, writing for the Court of Appeal) (Baldwin ).  Baldwin concerned revocation of a driver's license following multiple drunk driving convictions.   In finding that the revocation did not constitute additional punishment for double jeopardy purposes, the court stated:  “․ revocation of Baldwin's license does not constitute punishment under the double jeopardy clause simply because, as Baldwin asserts, it may constitute a severe personal and economic hardship.  ‘․ [W]hether a sanction constitutes punishment is not determined from the [offender's] perspective, as even remedial sanctions carry the “sting of punishment.”  [Citations.]’  (Kurth Ranch, supra, 511 U.S. at p. ––––, fn. 14, 114 S.Ct. at p. 1945, fn. 14, 128 L.Ed.2d at p. 777.)   Rather, we must make this determination by evaluating ‘․ the purposes actually served by the sanction in question․’  (Halper, supra, 490 U.S. at p. 447, fn. 7, 109 S.Ct. at p. 1901, fn. 7, 104 L.Ed.2d at p. 501;  see also Ellis, supra, 230 Cal.App.3d at p. 1562, 282 Cal.Rptr. 93.)   Having determined that the purpose of section 13352 is to protect the public, we reject Baldwin's double jeopardy challenge.”   (Baldwin, supra, 35 Cal.App.4th 1630, 1642, 42 Cal.Rptr.2d 422, italics added.)Baldwin thus cites United States Supreme Court authority for the proposition that “the purposes actually served” determine whether remedial sanctions constitute punishment, something which—in the instant case—will require factual inquiry.

11.   The trial court, in relying on Gibson, noted that it “has consistently been followed, most recently in People v. Washington (1996) 44 Cal.App.4th 162, 51 Cal.Rptr.2d 618.”   After the trial court's decision, Washington was ordered depublished, and therefore may not be relied upon.  (Cal. Rules of Court, rule 977.)

12.   Many cases identify protection of the public as a legitimate governmental interest.  (See, e.g., Conservatorship of Hofferber (1980) 28 Cal.3d 161, 174, 182, 183, 167 Cal.Rptr. 854, 616 P.2d 836 [state may adopt procedure for isolating, treating, and restraining dangerous persons;  society's interest in protecting itself “continues so long as continuing dangerousness can be shown;” “Statutes that focus on a continuing dangerous condition, though, are not retroactive simply because they employ pre-statute conduct as evidence of the ongoing dangerousness,” italics in original;  “Protection of individuals against danger is among the most fundamental of state interests.”];  Jones v. United States (1983) 463 U.S. 354, 368, 103 S.Ct. 3043, 3051–3052, 77 L.Ed.2d 694 [purpose of commitment following an insanity acquittal is to treat the individual's mental illness and protect him and society from his potential dangerousness];  Addington v. Texas (1979) 441 U.S. 418, 426, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323 [state has authority under police power “to protect the community from the dangerous tendencies of some who are mentally ill”.].)

13.   One might well ponder why anyone crafting a constitution would ever intend a constitutional interpretation that so exalted the liberty interests of hypothetical dangerously mentally ill child molesters over the safety of children.   The need to search in order to conjure such an intent by itself suggests that the trial court's ruling was the product of drift away from the original purpose of the ex post facto clause, rather than an application of its original intent to current circumstances.   Whether the psychological and psychiatric sciences can in fact identify sex offenders prone to re-offend raises questions quite apart from that of facial ex post facto invalidity, questions not presently involved in this proceeding but which will likely be considered in due course.

ZEBROWSKI, Associate Justice.

BOREN, P.J., and FUKUTO, J., concur.

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