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Name: People v. McKee
Case #: S162823
Court: CA Supreme Court
District CalSup
Opinion Date: 01/28/2010

Prop. 83’s amendments to the SVPA allowing indefinite commitments do not violate due process or ex post facto principles. But, since it appears SVPs are similarly situated to other groups subject to civil commitments for equal protection purposes, the People must justify why SVPs can be subject to disparate treatment. Appellant made a due process, ex post facto, and equal protection challenge to changes to the SVPA which made commitments indefinite instead of for renewable two-year terms, and switched the party carrying the burden of proof to justify continued commitment. He argued due process was violated by shifting the burden to him to prove he is no longer an SVP, especially given that he lacks access to mental health experts to make his case. The court held the statutory scheme complies with due process. The burden of proof at the initial commitment was on the state. U.S. Supreme Court precedent allowed shifting the burden to petitioner to the preponderance of evidence standard in a functionally equivalent civil commitment scenario. (Jones v. U.S. (1983) 463 U.S. 354.) And while the applicable statute does not expressly provide for appointment of an expert for the petitioner, it will be construed to provide for such an appointment so as to not run afoul of due process. The court also rejected appellant’s claim that the change in the law constitutes increased punishment in violation of the ex post facto clause because the objectives of the act are not punitive. Nothing in Prop. 83 changed the focus of the SVPA, which is treatment of the individual so as to protect him and the public. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138.) As to the equal protection argument, the court found there were common features making SVPs and both MDOs and NGIs similarly situated. When the state makes the terms of commitment or recommitment substantially less favorable for one group than for another, it must give some justification for this differential treatment. The state had not satisfied its burden of showing that SVPs are more dangerous and so should be treated differently. The assertions cited in the ballot initiative that sex offenders are more likely to reoffend are not the same as facts, and they alone do not justify treating SVPs differently. The case was remanded for an evidentiary hearing to determine whether SVPs do in fact pose a greater risk than MDOs such that differential treatment would be justified.