Sexually violent predator commitment proceedings: a proposal for rules of procedure.

• Author: Polin, Richard L.
• Position: Florida law

For the past two years, the State of Florida has pursued the involuntary civil commitment of sexually violent predators.(1) Pursuant to the sexually violent predators act, involuntary civil commitment can be pursued for individuals who have a prior conviction for a sexually violent offense, and who "suffer[ ] from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment."(2) At the time was drafted, approximately 15 cases have progressed to a commitment trial under the sexually violent predators act, with a few additional cases resulting in commitments due to stipulated final judgments. Based upon the experiences of the past two years, the need for specially tailored rules of procedure, designed for sexually violent predator commitment proceedings, has become clear. This article will address the areas in which the need for such rules of procedure exists.

Statutory Background

Approximately one year prior to the expiration of an incarcerative sentence being served with the Florida Department of Corrections, the inmate whose release is impending is evaluated to determine whether commitment proceedings under the sexually violent predators act should proceed.(3) The evaluation is conducted by a "multidisciplinary team" established by the Department of Children and Families. This team must include, but is not limited to, two licensed psychiatrists or psychologists, or one of each.(4) The evaluation includes a review of extensive documentation, and must include an offer of at least one "personal interview" by a mental health expert on the multidisciplinary team.(5) The multidisciplinary team must then make its recommendation, and the Department of Children and Family Services must submit its recommendation, including the written report of the multidisciplinary team, to the office of the state attorney, which has the ultimate responsibility for determining whether to file the commitment petition.(6) Upon receipt of the written assessment and recommendation from the multidisciplinary team and the Department of Children and Families, the state attorney determines whether to file the commitment petition.(7) The recommendations of the multidisciplinary team and the Department of Children and Families are not binding on the state attorney.(8) Once the commitment petition is filed, the trial court must review the petition, in an ex parte proceeding, to determine whether there is probable cause to believe that the named respondent is a sexually violent predator.(9) Within 30 days of that determination of probable cause, the commitment trial, which may be a jury trial, shall be conducted, subject to continuance upon request of either party and a showing of good cause, or by the court, on its own motion, in the interests of justice, when the named respondent will not be substantially prejudiced.(10)

The commitment proceedings are civil proceedings.(11) F.S. [sections] 394.9155(1) (1999) further provides that "[t]he Florida Rules of Civil Procedure apply unless otherwise specified in this part." The experiences of the past two years lead to the conclusion that the Rules of Civil Procedure are not always well suited for the unique nature of sexually violent predator commitment proceedings, and a compelling need exists for the implementation of comprehensive rules specifically tailored for these cases. Florida's Second and Fourth district courts of appeal have, in several of the appellate court cases thus far resolved under the commitment act, expressly called for the designation of an appropriate rules committee to fashion rules of procedure for cases arising under the sexually violent predators act.(12) The following discussion focuses on several of the areas that need to be addressed through newly implemented rules of procedure.

Service of Process

Service of process, under the Rules of Civil Procedure, is generally effected through the service of a summons which, in part, advises the responding party that a lawsuit has been filed and that the failure to file a written response to the attached complaint or summons within 20 days may result in the responding party's loss of the case by default.(13) It is hard to imagine that anyone will lose a commitment case by default, and it can reasonably be expected that if a respondent fails to file a written response to the state's commitment petition, the state will still have to prove at trial that commitment is needed. The Wisconsin Supreme Court, addressing that state's sexually violent persons commitment act, recently held that the act does not even afford the responding party the opportunity, let alone obligation, to file an answer and affirmative defenses.(14) Florida's Fourth District Court of Appeal has further held, in Meadows v. Krischer, 1999 WL 1037986, 24 Fla. L. Weekly D2576 (Fla. 4th DCA 2000), that the absence of a standard civil summons did not deprive the court of jurisdiction over the respondent, Meadows, where the state did serve Meadows with a copy of the commitment petition and a warrant for his detention under the act.(15) Furthermore, the 20-day time period provided for responding to a complaint or petition is a time frame that is inconsistent with the act's expectation of a trial within 30 days of the initial ex parte determination of the existence of probable cause--a determination that typically is made on the day that the petition is filed, and often prior to service of process on the respondent. An appropriate rule of procedure would specify what documentation should be served on the named respondent. It would further specify whether there is any obligation to file a written answer or affirmative defenses and, if so, what pleadings the respondent must file and in what time period.

Contents of Commitment Petition

Commitment petitions filed by the state have taken two distinct forms. Some have essentially been minimalist pleadings, simply alleging the basic elements of the cause of action: that the named respondent is over 18; that the respondent has a prior qualifying conviction; that the respondent has a mental abnormality or personality disorder, and such mental condition makes it likely that the person will commit further sexually violent offenses if not committed pursuant to the act. Such minimalist pleadings are consistent with Fla. R. Civ. P. 1.110(b) and have been recognized as adequate by the Fourth District Court of Appeal.(16)

The second type of commitment petition that has been filed in many cases contains a detailed history of the respondent's criminal convictions, including the underlying facts of the sexually violent nature of those prior convictions, and further contains a detailed narrative of the respondent's mental health problems based, in large part, on the written assessments from the members of the multidisciplinary team. While such details are clearly above and beyond the minimal pleading requirements under Rule 1.110(b), they serve a distinct purpose: At the time of filing the commitment petition, the state must satisfy the trial court that probable cause exists. Thus, while the details are not needed to satisfy the pleading requirements for a complaint or a petition, they are needed to make the initial showing of probable cause. It is the author's belief...