State ex rel. Wilbur Schottel, Relator v. The Honorable Larry D. Harman, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: State ex rel. Wilbur Schottel, Relator v. The Honorable Larry D. Harman, Respondent. Case Number: SC87857 Handdown Date: 12/19/2006 Appeal From: ORIGINAL PROCEEDING IN MANDAMUS Counsel for Appellant: Emmett D. Queener Counsel for Respondent: Cheryl Capenegro Nield and Charles S. Birmingham Opinion Summary: This summary is not part of the opinion of the Court. It has been prepared by the Communications Counsel for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court and should not be quoted or cited. The opinion of the Court, which may be quoted, follows the summary. Wilbur Schottel was committed as a sexually violent predator in 2000 and, in 2002, petitioned for discharge under section 632.498, RSMo, which governs the state's burden of proof as to whether a committed person's mental abnormality remains such that the person is not safe to be at large and, if released, is likely to engage in acts of sexual violence. This Court held that Schottel was entitled to a hearing on the merits of his 2002 petition for release. In the Matter of the Care and Treatment of Wilbur Schottel v. State, 159 S.W.3d 836, 84 (Mo. banc 2005) (Schottel I). At both the time Schottel filed his petition and the time of the remand, the state's burden of proof under section 632.498 was "beyond a reasonable doubt," and, under section 632.484, RSMo, an offender released from confinement was discharged fully and could not be returned to custody without new findings that the offender was a sexually violent predator. Schottel's hearing on remand resulted in a mistrial, and a retrial date was set. Before the retrial, however, the legislature amended both the state's burden of proof and the remedy for a sexually violent predator released from confinement. The 2006 version of section 632.498 changed the state's burden of proof to "clear and convincing evidence." The amendment also provided that a

sexually violent predator released under this statute would be released conditionally, as governed by the new section 632.505, RSMo, which provides that the offender remain committed to custody and be returned to confinement upon a judge's finding that the offender violated a condition of release. The trial court set Schottel's retrial in June 2006 and applied the amended version of section 632.498, which had become effective 21 days before the retrial began. This Court issued a preliminary writ of mandamus and now considers whether Schottel's retrial should apply the amended statute. WRIT QUASHED. Court en banc holds: Application of the amended section 632.498 to Schottel's retrial does not violate Missouri's prohibition against retrospective laws. Statutes are presumed to be valid and will not be found unconstitutional unless they clearly contravene a constitutional provision. Statutes also are presumed to operate prospectively unless legislative intent for retrospective application is clear from the statute's language or by necessary and unavoidable implication. A law may be found to operate retrospectively if it looks solely at a person's past conduct. Doe v. Phillips, 194 S.W.3d 833, 852 (Mo. banc 2006). Here, section 632.498, RSMo Supp. 2006, is prospective. It does not look at past conduct. Rather, the retrial hearing to determine whether Schottel can be released under this section will evaluate his current mental condition, and the jury will be asked to determine, at the time of the retrial, whether Schottel remains a sexually violent predator. If Schottel prevails at the retrial, conditions imposed on the terms of his release would limit his future conduct and would not relate to his past acts. At the time of the amendment, Schottel had no vested rights relating to release. He never had obtained release and never had been assured that any future release would be unconditional. Citation: Opinion Author: Mary R. Russell, Judge Opinion Vote: WRIT QUASHED. All concur. Opinion: This slip opinion is subject to modification until the Court has ruled on the parties' motions for rehearing, if any, and will become final only after the Court issues its mandate. To see when the Court issues its mandate, please check the docket entries for the case on Case.net.

Wilbur Schottel ("Relator") seeks discharge from confinement as a sexually violent predator ("SVP") pursuant to section 632.498, RSMo 2000. He asks this Court to prohibit the Respondent from applying section 632.498, RSMo Supp. 2006, the amended version of the statute that became effective in June 2006, to his original petition for release filed in

1. This Court holds that section 632.498, RSMo Supp. 2006, applies to Relator's case. The preliminary writ of

mandamus previously issued in this matter is quashed. Background Relator was committed as a SVP in 2000 and filed a petition seeking discharge in 2002.(FN1) Section 632.498(FN2) ensures that a SVP is not committed indefinitely, as it provides for annual review of a SVP's mental condition for determination of whether further commitment as a SVP is warranted. In the Matter of the Care and Treatment of Wilbur Schottel v. State, 159 S.W.3d 836, 845 (Mo. banc 2005) (hereinafter "Schottel I"),(FN3) held that Relator was entitled to a hearing on the merits of his 2002 petition for release under section 632.498, RSMo 2000. Schottel I indicated that the burden of proof at the hearing on remand would be on the State "'to prove beyond a reasonable doubt that [Relator's] mental abnormality remains such that [he] is not safe to be at large and if released is likely to engage in acts of sexual violence.'" Schottel I, 159 S.W.3d at 845-46 (quoting section 632.498, RSMo Supp. 2004, emphasis added). The burden of proof in the version of section 632.498 in effect at the time of remand, RSMo Supp. 2004, was the same burden as found in section 632.498, RSMo 2000, the version in effect at the time Relator filed his petition. Schottel I, 159 S.W.3d at 846 n.9. The hearing on remand resulted in a mistrial and a retrial date was set. Before the retrial, however, section 632.498 was amended in 2006 to change the State's burden of proof and the remedy for a SVP released from confinement.

Amendments to section 632.498 Under the amended statute, the State now bears the burden "to prove by clear and convincing evidence that the committed person's mental abnormality remains such that the person is not safe to be at large and if released is likely to engage in acts of sexual violence." Section 632.498 (emphasis added). The amended statute adds a new provision that any SVP released will be "conditionally released as provided in section 632.505[, RSMo Supp. 2006]."(FN4) Until this conditional release provision was included in section 632.498, an offender released from commitment was fully discharged and could not be returned to custody without new findings that the offender was a SVP. See section 632.484, RSMo 2000. An offender released under the amended version of section 632.498 remains committed to custody and can be returned to confinement upon a finding by a judge that a release condition was violated. Section 632.505. The amended version of section 632.498 became effective June 5, 2006,(FN5) and the State requested that the amended statute be applied to Relator's retrial set for June 26, 2006. Relator urged the court to apply the prior section 632.498, RSMo 2000, the version of the statute in effect at the time he filed his petition for release. The court held that the amended statute would apply, meaning that (1) the State's burden would be to prove by clear and convincing evidence, not beyond a reasonable doubt, that Relator's mental abnormality remained such that he was unsafe to be released; and (2) Relator would be conditionally released if the State failed to meet this burden. Relator now seeks relief from this Court. A preliminary writ was issued, and this Court now considers whether Relator's retrial should apply the amended version of section 632.498. Is application of the amended statute prohibited? Relator contends that applying the amended version of section 632.498 violates the prohibition against

retrospective laws in article I, section 13 of the Missouri Constitution.(FN6) This Court reviews Relator's constitutional claims de novo. Doe v. Phillips, 194 S.W.3d 833, 841 (Mo. banc 2006). Statutes are presumed to be valid and will not be found unconstitutional unless they clearly contravene a constitutional provision. Id. Because retrospective laws are barred, the Court presumes that statutes operate prospectively unless legislative intent for retrospective application is clear from the statute's language or by necessary and unavoidable implication. State Bd. of Registration for the Healing Arts v. Boston, 72 S.W.3d 260, 263 (Mo. App. 2002). The prohibition against retrospective laws prevents laws that "impair vested rights acquired under existing laws," but "no one has a vested right that the law will remain unchanged." Doe, 194 S.W.3d at 850, 851 (internal citations omitted). "[A] vested right 'must be something more than a mere expectation based upon an anticipated continuance of existing law.'" Id. at 852 (quoting Fisher v. Reorganized Sch. Dist., 567 S.W.2d 647, 649 (Mo. banc 1978)). A law is not retrospective simply "because it relates to prior facts or transactions but does not change their legal effect, or because some of the requisites for its action are drawn from a time antecedent to its passage, or because it fixes the status of an entity for the purpose of its operation." Jerry-Russell Bliss, Inc. v. Hazardous Waste Mgmt. Comm'n, 702 S.W.2d 77, 81 (Mo. banc 1985). A retrospective law is: "[O]ne which creates a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past. It must give to something already done a different effect from that which it had when it transpired." Doe, 194 S.W.3d at 850 (quoting Squaw Creek Drainage Dist. v. Turney, 138 S.W. 12, 16 (Mo. 1911)). In Doe, appellants argued that the affirmative obligation for them to register as sex offenders based solely on pleas and convictions preceding the effective date of "Megan's Law"(FN7) violated the prohibition against retrospective laws. Id. at 838. Doe found that application of the registration requirement operated retrospectively insofar as it looked "solely at [appellant's] past conduct" and used that past conduct "not merely as a basis for future decision-making by the [S]tate," but to require appellants to fulfill a new obligation and duty based solely on pre-act offenses. Id. at 852. Doe is distinguishable from Relator's complaints about the amended version of section 632.498. Unlike the requirements at issue in Doe, section 632.498 does not look at past conduct. The retrial hearing to determine whether

Relator can be released under section 632.498 will evaluate his current condition. The jury will be tasked with determining if, at the time of the retrial, Relator remains a SVP. Contrary to Relator's assertions, the amendments to section 632.498 are prospective in nature, not retrospective. Further, contrary to Relator's arguments, application of the amended version of section 632.498 to his retrial is not prohibited because it would impose conditions on his release if he prevails on retrial. Imposition of conditions on the terms of Relator's release would relate to future acts, not those in the past, and would limit his future conduct. Relator's contention that he had a vested right in the availability of unconditional release because he filed his petition under the former version of the statute is without merit. Relator had no vested right that the law would remain unchanged. At the time the law was amended, Relator had never obtained release or been assured any future release would be unconditional. Conclusion Application of the amended section 632.498 to Relator's retrial does not violate Missouri's prohibition against retrospective laws. The preliminary writ of mandamus previously issued in this matter is quashed. All concur. Footnotes: FN1.The history of Relator's case leading to confinement is explained in In the Matter of the Care and Treatment of Wilbur Schottel v. State, 159 S.W.3d 836, 838-39 (Mo. banc 2005). FN2.Where otherwise unspecified, statutory references to section 632.498 are to RSMo Supp. 2006, the most recent version of that statute. FN3.Schottel I describes the processes for periodic examinations of a SVP's mental condition. 159 S.W.3d at

1. It explains that if an annual review by the department of mental health concludes that a SVP does not qualify for

release, then the SVP petitions for release, as Schottel did. After the petition for release is filed, the court holds a

preliminary probable cause hearing. At this hearing it determines if probable cause exists to believe that the SVP's mental abnormality has so changed that the SVP is safe to be at large and will not engage in acts of sexual violence. If probable cause exists, the SVP is entitled to a second hearing, wherein the State has the burden of proof. FN4.All references to section 632.505 are to RSMo Supp. 2006. Section 632.505.1 states that "[t]he primary purpose of conditional release is to provide outpatient treatment and monitoring to prevent the person's condition from deteriorating to the degree that the person would need to be returned to a secure facility designated by the director of the department of mental health." FN5.The amendatory law had an emergency clause. FN6.Article I, section 13 states that "no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation . . . can be enacted." FN7.The sex offender registration provisions found in sections 589.400 to 589.425, RSMo Supp. 2005, are popularly known as "Megan's Law." Separate Opinion: 240 None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.