"NEW SECTION.  Sec. 1   The legislature should act cautiously when constitutional jurisprudence is in doubt. The supreme court's decision to reconsider its ruling in In re Detention of McCuistion, 169 Wn.2d 633 (2010), concerning the 2005 legislative amendments to chapter 71.09 RCW leave uncertainty about whether its previous policy decisions will be upheld or struck down. The legislature encourages the courts to stay McCuistion-related proceedings until the supreme court reconsiders the constitutionality of its 2005 amendments, rather than waste vital trial court and appellate resources.
     In contrast, the supreme court in In re Detention of Hawkins, 169 Wn.2d 796 (2010), expressly invited the legislature to decide whether a polygraph test may be used at the evaluation to determine whether a person is a sexually violent predator. The legislature hereby responds to that invitation but only to the degree that the court finds such information would be useful to the judicial process.

Sec. 2   RCW 71.09.040 and 2009 c 409 s 4 are each amended to read as follows:
     (1) Upon the filing of a petition under RCW 71.09.030, the judge shall determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. If such determination is made the judge shall direct that the person be taken into custody.
     (2)(a) Within seventy-two hours after a person is taken into custody pursuant to subsection (1) of this section, the court shall provide the person with notice of, and an opportunity to appear in person at, a hearing to contest probable cause as to whether the person is a sexually violent predator.
     (b) In order to assist the person at the hearing, within twenty-four hours of service of the petition, the prosecuting agency shall provide to the person or his or her counsel a copy of all materials provided to the prosecuting agency by the referring agency pursuant to RCW 71.09.025, or obtained by the prosecuting agency pursuant to RCW 71.09.025(1) (c) and (d).
     (c) At ((this)) the hearing, the court shall (((a))) (i) verify the person's identity, and (((b))) (ii) determine whether probable cause exists to believe that the person is a sexually violent predator. ((At the probable cause hearing,))
     (d) The state may rely upon the petition and certification for determination of probable cause filed pursuant to RCW 71.09.030. The state may supplement this with additional documentary evidence or live testimony.
     (e) The person may be held in total confinement at the county jail until the trial court renders a decision after the conclusion of the seventy-two hour probable cause hearing. The county shall be entitled to reimbursement for the cost of housing and transporting the person pursuant to rules adopted by the ((secretary)) department.
     (3) At the probable cause hearing, the person shall have the following rights in addition to the rights previously specified: (a) To be represented by counsel; (b) to present evidence on his or her behalf; (c) to cross-examine witnesses who testify against him or her; and (d) to view and copy all petitions and reports in the court file. The court must permit a witness called by either party to testify by telephone. ((Because this))
     (4) The probable cause hearing is a special proceeding((,)) and therefore discovery pursuant to the civil rules shall not occur until after the hearing has been held and the court has issued its decision.
     (((4))) (5)(a) If the probable cause determination is made, the judge shall direct that the person be transferred to an appropriate facility for an evaluation as to whether the person is a sexually violent predator. The evaluation shall be conducted by a person deemed to be professionally qualified, pursuant to rules developed by the department, to conduct such an examination ((pursuant to rules developed by the department of social and health services)).
     (b) The evaluation may be ordered regardless of whether a previous evaluation was performed before filing the petition for civil commitment.
     (c) The evaluation shall be conducted pursuant to rules developed by the department. In adopting ((such)) rules pursuant to this section, the department ((of social and health services)) shall consult with the department of health and the department of corrections.
     (d) In no event shall the person be released from confinement prior to trial. A witness called by either party shall be permitted to testify by telephone.
     (6) The judge may require the person to complete any or all of the following procedures or tests if requested by the evaluator: (a) A clinical interview; (b) psychological testing; (c) plethysmograph testing; and (d) polygraph testing. The judge may order the person to complete any other procedures and tests relevant to the evaluation.

Sec. 3   RCW 71.09.090 and 2010 1st sp.s. c 28 s 2 are each amended to read as follows:
     (1) If the secretary determines that the person's condition has so changed that either: (a) The person no longer meets the definition of a sexually violent predator; or (b) conditional release to a less restrictive alternative is in the best interest of the person and conditions can be imposed that adequately protect the community, the secretary shall authorize the person to petition the court for conditional release to a less restrictive alternative or unconditional discharge. The petition shall be filed with the court and served upon the prosecuting agency responsible for the initial commitment. The court, upon receipt of the petition for conditional release to a less restrictive alternative or unconditional discharge, shall within forty-five days order a hearing.
     (2)(a) Nothing contained in this chapter shall prohibit the person from otherwise petitioning the court for conditional release to a less restrictive alternative or unconditional discharge without the secretary's approval. The secretary shall provide the committed person with an annual written notice of the person's right to petition the court for conditional release to a less restrictive alternative or unconditional discharge over the secretary's objection. The notice shall contain a waiver of rights. The secretary shall file the notice and waiver form and the ((annual)) report prepared pursuant to RCW 71.09.070 with the court. If the person does not affirmatively waive the right to petition, the court shall set a show cause hearing to determine whether probable cause exists to warrant a hearing on whether the person's condition has so changed that: (i) He or she no longer meets the definition of a sexually violent predator; or (ii) conditional release to a proposed less restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the community.
     (b) The committed person shall have a right to have an attorney represent him or her at the show cause hearing, which may be conducted solely on the basis of affidavits or declarations, but the person is not entitled to be present at the show cause hearing. At the show cause hearing, the prosecuting ((attorney or attorney general)) agency shall present prima facie evidence establishing that the committed person continues to meet the definition of a sexually violent predator and that a less restrictive alternative is not in the best interest of the person and conditions cannot be imposed that adequately protect the community. In making this showing, the ((state)) prosecuting agency may rely exclusively upon the ((annual)) report prepared pursuant to RCW 71.09.070. The committed person may present responsive affidavits or declarations to which the state may reply.
     (c) If the court at the show cause hearing determines that either: (i) The ((state)) prosecuting agency has failed to present prima facie evidence that the committed person continues to meet the definition of a sexually violent predator and that no proposed less restrictive alternative is in the best interest of the person and conditions cannot be imposed that would adequately protect the community; or (ii) probable cause exists to believe that the person's condition has so changed since the person's last commitment trial that: (A) The person no longer meets the definition of a sexually violent predator; or (B) release to a proposed less restrictive alternative would be in the best interest of the person and conditions can be imposed that would adequately protect the community, then the court shall set a hearing on either or both issues.
     (d) If the court has not previously considered the issue of release to a less restrictive alternative, either through a trial on the merits or through the procedures set forth in RCW 71.09.094(1), the court shall consider whether release to a less restrictive alternative would be in the best interests of the person and conditions can be imposed that would adequately protect the community, without considering whether the person's condition has changed. The court may not find probable cause for a trial addressing less restrictive alternatives unless a proposed less restrictive alternative placement meeting the conditions of RCW 71.09.092 is presented to the court at the show cause hearing.
     (3)(a) At the hearing resulting from subsection (1) or (2) of this section, the committed person shall be entitled to be present and to the benefit of all constitutional protections that were afforded to the person at the initial commitment proceeding. The prosecuting agency shall represent the state and shall have a right to a jury trial and to have the committed person evaluated by experts chosen by the state. The department is responsible for the cost of one expert or professional person to conduct an evaluation on the prosecuting agency's behalf. The committed person shall also have the right to a jury trial and the right to have experts evaluate him or her on his or her behalf and the court shall appoint an expert if the person is indigent and requests an appointment. Evaluations pursuant to this section shall be subject to all requirements specified in RCW 71.09.040.
     (b) Whenever any person is subjected to an evaluation under (a) of this subsection, the department is responsible for the cost of one expert or professional person conducting an evaluation on the person's behalf. When the person wishes to be evaluated by a qualified expert or professional person of his or her own choice, such expert or professional person must be permitted to have reasonable access to the person for the purpose of such evaluation, as well as to all relevant medical and psychological records and reports. In the case of a person who is indigent, the court shall, upon the person's request, assist the person in obtaining an expert or professional person to perform an evaluation or participate in the hearing on the person's behalf. Nothing in this chapter precludes the person from paying for additional expert services at his or her own expense.
     (c) If the issue at the hearing is whether the person should be unconditionally discharged, the burden of proof shall be upon the ((state)) prosecuting agency to prove beyond a reasonable doubt that the committed person's condition remains such that the person continues to meet the definition of a sexually violent predator. Evidence of the prior commitment trial and disposition is admissible. The recommitment proceeding shall otherwise proceed as set forth in RCW 71.09.050 and 71.09.060.
     (d) If the issue at the hearing is whether the person should be conditionally released to a less restrictive alternative, the burden of proof at the hearing shall be upon the ((state)) prosecuting agency to prove beyond a reasonable doubt that conditional release to any proposed less restrictive alternative either:
     (i) Is not in the best interest of the committed person; or
     (ii) Does not include conditions that would adequately protect the community.
     (e) Evidence of the prior commitment trial and disposition is admissible in any proceeding under this subsection.
     (4)(a) Probable cause exists to believe that a person's condition has "so changed," under subsection (2) of this section, only when evidence exists, since the person's last commitment trial, or less restrictive alternative revocation proceeding, of a substantial change in the person's physical or mental condition such that the person either no longer meets the definition of a sexually violent predator or that a conditional release to a less restrictive alternative is in the person's best interest and conditions can be imposed to adequately protect the community.
     (b) A new trial proceeding under subsection (3) of this section may be ordered, or a trial proceeding may be held, only when there is current evidence from a licensed professional of one of the following and the evidence presents a change in condition since the person's last commitment trial proceeding:
     (i) An identified physiological change to the person, such as paralysis, stroke, or dementia, that renders the committed person unable to commit a sexually violent act and this change is permanent; or
     (ii) A change in the person's mental condition brought about through positive response to continuing participation in treatment which indicates that the person meets the standard for conditional release to a less restrictive alternative or that the person would be safe to be at large if unconditionally released from commitment.
     (c) For purposes of this section, a change in a single demographic factor, without more, does not establish probable cause for a new trial proceeding under subsection (3) of this section. As used in this section, a single demographic factor includes, but is not limited to, a change in the chronological age, marital status, or gender of the committed person.
     (5) The jurisdiction of the court over a person civilly committed pursuant to this chapter continues until such time as the person is unconditionally discharged.

NEW SECTION.  Sec. 4   This act applies to all individuals currently committed or awaiting commitment under chapter 71.09 RCW either on, before, or after the effective date of this section, whether confined in a secure facility or on conditional release.

NEW SECTION.  Sec. 5   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 6   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately."