In Re The Detention Of Todd M. Place Aka Todd Mckown (Majority)

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FILED COURT OF APPEALS DIVISION Ti 2014 JUL - 1 8 : 50 STATE OF WASHINGTON IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II No. 44500 -0 -II In the Matter of the Detention of UNPUBLISHED OPINION TODD M. PLACE, a/ k/ a Todd McKown, JOHANSON, C.J. Todd McKown1 challenges the Thurston County Superior Court' s denial of his motion to vacate a stipulated order committing him as a sexually violent predator SVP). McKown argues that the order was void and, thus, his CR 60 motion was not time barred. He correctly points out that the commitment action had been initiated by the Thurston County Prosecutor without statutory authority to do so and argues that the prosecutor' s action made the order void. The trial court disagreed with McKown and denied the motion to vacate, citing the 12 -year time gap between the entry of the order and McKown' s motion. We affirm the trial court; a judgment is void only if made without subject matter jurisdiction or personal jurisdiction, and neither is the case here. 1 The petitioner' s birth name is Todd M. Place, and he was referred to as such during the original proceedings appellant, in 2000. this He now prefers opinion will refer to him to be known as as Todd McKown. McKown throughout. Out of respect for the No. 44500 -0 -II FACTS For most of Clerk' problems." s his life, McKown has been receiving treatment for " extreme behavioral Papers ( CP) at McKown has been implicated in sexual misconduct 8. ranging from voyeurism and " flashing" to forcible intercourse, and he claims to have assaulted a total of 37 offenses victims, with ages on two ranging from 3 to 50. He has been convicted of sexually violent In 1989, while in the custody of the Oregon Youth Authority, occasions. McKown absconded from an Oregon Youth Authority school with a nine -year -old student and raped him. As a result, he was convicted of first degree sexual abuse and first degree attempted Then, in Skagit County, Washington in 1995, McKown was caught fondling his 10- sodomy. year -old cousin. He admitted that he would have raped his cousin if he had not been discovered and stated to police, "` Next time I am going to turn to murder. Next time I won' t be Mr. Nice Guy. This ain' t even a quarter or a third of what I can do. Not even a tenth. I like blood, death, murder, and violence.'" CP at 9. McKown subsequently pleaded guilty to communicating with a minor for immoral purposes and was incarcerated. In 1999, McKown was due to be released from prison when the Thurston County Prosecuting Attorney' s Office contacted the Washington Attorney General' s Office to request that McKown be committed as an SVP pursuant to ch. 71. 09 RCW. As the parties now acknowledge, the Thurston County Prosecuting Attorney' s Office had no authority to make this request because McKown had citing In re not been charged or convicted in Thurston County. Det. of Martin, 163 Wn.2d 501, 506, 182 P. 3d 951 ( 2008)). CP at 45 -46 Nevertheless, the Washington Attorney General' s Office proceeded to file a petition to civilly commit McKown as an SVP. suffered In support of this petition, the State retained a psychologist who found that McKown from " Pedophilia, as well as a Depressive Personality Disorder with Borderline 2 No. 44500 -0 -II Features Personality and Avoidant Personality Features." CP at She further found that 10 -11. McKown' s condition made him " likely to engage in predatory acts of sexual violence" if he were not treated under " total confinement in a secure facility." CP at 11. Subsequently, McKown and the State stipulated to the facts concerning McKown' s deviant behaviors McKown] is stipulated a[ n stipulated and SVP], to the subject as that these facts " establish beyond a reasonable doubt that that term is defined in RCW 71. 09. 020." matter jurisdiction and the personal CP jurisdiction at of 11. the They further court. Finally, they stipulated to an order declaring McKown an SVP and committing him to the custody of the Department of Social and Health Services for treatment and counseling in a secure facility. The trial court entered the stipulated order on November 20, 2000. McKown has never challenged these findings of fact or conclusions of law on the merits. Rather, in 2012, McKown moved to dismiss his stipulated order of commitment on two theories. First, he argued that the Thurston County Prosecuting Attorney' s Office lacked authority under the SVP statute to have the Attorney General' s Office initiate the proceeding against him, and that he was entitled to relief under CR 60( b)( 5), ( 11), and ( c). Second, McKown argued that the trial court lacked subject matter jurisdiction to hear the SVP proceeding, but he later abandoned that argument. After hearing oral argument, the trial court denied McKown' s motion, holding that the aspect of CR 60 that does not permit motions like this brought beyond a lengthy period of time applies and that the 12 years in the interim is too long for the Court to grant the motion to dismiss under CR 60, considering it' s not a subject matter jurisdiction issue. No. 44500 -0 -II Report of Proceedings at 22. The trial court noted that while there might have been procedural defects in the way the SVP proceeding was initiated, 12 years after the fact was too late to rectify those defects. McKown the trial appealed court' s denial, raising only one issue on appeal he argued that the 2000 stipulated order was void and could be vacated under CR(60)( b) at any time. ANALYSIS I. STANDARD OF REVIEW This court reviews a trial court' s decision on a motion to vacate a judgment for abuse of discretion. Haller Herridge, 169 Wn. App. v. Wallis, 89 Wn.2d 539, 543, 573 P. 2d 1302 ( 1978); App. 290, 296, 279 P. 3d 956 ( 2012); 195, 199, 272 P. 3d 903 ( 2012); In re Marriage of In re Marriage of Newlon, 167 Wn. Barr v. MacGugan, 119 Wn. App. 43, 46, 78 P. 3d 660 A trial court abuses its discretion if its decision is manifestly unreasonable or based on 2003). " untenable grounds or untenable reasons." In re Marriage of Littlefield, 133 Wn.2d 39, 46 -47, 940 P. 2d 1362 ( 1997). II. VOIDNESS Although 12 years passed between McKown' s commitment and his motion to vacate, McKown correctly argues that a void judgment is not subject to a time bar and may be vacated at any time. whether court In this lacks re Marriage of Leslie, 112 Wn.2d 612, 618, 772 P. 2d 1013 ( 1989). stipulated order was void. subject matter jurisdiction, we reject jurisdiction McKown' The issue is As we discuss below, a judgment is void if the issuing or personal jurisdiction. s argument and affirm the trial Because the superior court had court. No. 44500 -0 -II A. UNTIMELY RELIEF FROM A JUDGMENT CR 60( b) that provides a motion to vacate must be made " within a reasonable time." But as the courts have consistently recognized, a motion to vacate a void judgment under CR 60( b)( 5) is an exception to the reasonable time In Leslie, the trial court entered a requirement. default judgment in favor of the respondent, awarding expenses that the respondent had not 112 Wn.2d requested. the and that court denied the eight years Wn.2d at was ' of time." The petitioner moved for relief from the default eight years later motion. not reversed, relief not requested lapse 614. 617 ( quoting In Supreme Court the at time a reasonable re that the complaint and original that at We affirmed the denial, holding 616 -17. contemplated as Marriage of Leslie, holding in the Leslie, 112 Wn.2d noted at judgment void by CR 60( b)( 5). ' 50 Wn. App. could 1061 ( 1988)). The to the extent it provided was judgments Leslie, 112 be vacated " irrespective of Leslie, 112 Wn.2d at 618 ( citing John Hancock Mut. Life Ins. Co. v. Gooley, 196 Wash. 357, 370, 83 P. 2d 221 ( 1938)). Similarly, in Allstate Insurance Co: v. Khani, 75 Wn. App. 317, 320, 877 P. 2d 724 1994), the appellant was not properly served and subsequently the court entered a default judgment against him. The trial court denied his motion to vacate, noting that the appellant had waited for over four years before doing anything about [ the default] or taking any action to have it set aside. ' Allstate, 75 Wn. App. 322. at Another division of this court reversed, holding that the judgment was void because service had been improper, depriving the lower 2 The Supreme Court held that the trial court' s order was made without "jurisdiction," but did not 617. In any event, Leslie specify what kind of jurisdiction was lacking. Leslie, 112 Wn.2d at decided before the Supreme Court clarified in Marley v. Dep' t of Labor & Industries, 125 was Wn.2d 533, 541, 886 P. 2d 189 ( 1994), that a judgment could only be void for lack of personal jurisdiction or subject matter jurisdiction. 5 No. 44500 -0 -II court of personal jurisdiction. Allstate, 75 Wn. App. at 324 ( citing In re Marriage ofMarkowski, App. 633, 635 -36, 50 Wn. Under the Leslie rule, the appellant was then 749 P. 2d 754 ( 1988)). entitled to relief regardless of the passage of time. If the Thurston County stipulated order was indeed void, then the . 12 -year interim between the entry of the order and McKown' s motion to vacate is no more relevant than the 8interim in Leslie year is the whether or year interim in Allstate. the 4 - committing McKown order was Accordingly, the determinative question void or not. We turn to the issue of voidness now. B. VOIDNESS Voidness is The Supreme Court has made clear that " a court enters a a narrow concept. void order only when it lacks personal jurisdiction or subject matter jurisdiction over the claim." Marley v. Dep' t of Labor & Indus., 125 Wn.2d 533, 541, 886 P. 2d 189 ( 1994). McKown does not argue that the court lacked either personal jurisdiction over the party or subject matter jurisdiction that the over superior support of error of this the claim court taken. stipulated to both but lacked " authority, statutory theory, he cites law from " power to Commonwealth, 181 indeed, he Dike make v. or rather raises the alternate theory otherwise." Br. of Appellant Dike, 75 Wn.2d 1, 7, 448 P. 2d 490 ( 1968) ( the order or rulings complained of') ( Va. 520, 536, 25 S. E. 2d 352 ( 1943)). at 9. In differentiating quoting Robertson v. His reliance on Dike is not well The Supreme Court clarified in Marley that the authority to enter an order is not in itself part of the test for voidness, but merely " a subset of subject matter jurisdiction, adopted by this court are to account only two for the ways that unique qualities of contempt orders." a judgment can be void and thus personal jurisdiction and lack of subject matter jurisdiction. 6 125 Wn.2d exempt at 540. That is, there from the time bar: lack of No. 44500 -0 -II At no point did McKown allege that the superior court lacked personal jurisdiction to enter the order committing him and nothing in the record suggests that the court lacked personal jurisdiction. Furthermore, arguments prior to this McKown voluntarily abandoned his subject matter jurisdiction appeal. But even if he did not, the procedural defects he asserts did not deprive the court of subject matter jurisdiction. As our Supreme Court tells us, the " authority to enter a given order" Wn.2d at is something Indeed, 539. filing prosecutor' s " our quite different from subject matter jurisdiction. Marley, 125 Supreme Court has held on similar facts to this casethat the authority" was not a of matter subject matter jurisdiction; rather, the appellant' s subject matter jurisdiction and venue arguments were " irrelevant to the question" of whether the prosecutor 16. This is because type of case such as when had authority to initiate subject matter an SVP proceeding. Martin, 163 Wn.2d at 515- jurisdiction that is, the inherent authority to hear a particular is a broad concept that will be found absent " only in ` compelling circumstances, it is explicitly limited by the Legislature or Congress. "' In re Marriage of Kelly, 85 Wn. App. 785, 790, 934 P. 2d 1218 ( quoting In re Marriage ofMajor, 71 Wn. App. 531, 534, 859 P. 2d 1262 ( 1993)), review legislature limited subject the prosecutor lacked authority to denied, 133 Wn.2d 1014 ( 1997). matter bring jurisdiction in this the case case. McKown does not argue that Rather, he argues that the a very different proposition from the court lacking authority to hear the case. The superior court erred when it entered the order committing McKown at the behest of a prosecutor that had no McKown had timely authority to initiate the proceeding. challenged his commitment, 7 See Martin, 163 Wn.2d he may have been entitled to at relief. 516. If He did No. 44500 -0 -II not; to he waited relief court 12 years. only if the lacked Absent any superior court' s personal jurisdiction briefing that judgment or the delay was not subject matter was reasonable, merely erroneous, jurisdiction. 3 McKown is entitled but void that is, if the McKown did not prove the absence of personal jurisdiction or subject matter jurisdiction, but rather proved something different: ruled the absence of filing that this showing was authority. not enough to The trial court did not abuse its discretion when it overcome the CR 60 time bar. We affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. 3 McKown argued to the trial court that his delay was reasonable because he had obtained new counsel. The superior court disagreed and McKown did not raise the issue on appeal. 8

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