Link to Missouri Supreme Court Opinion
The Supreme Court of Missouri, in regards to the procedures for committing sexually violent predators, addressed the effect of the Department of Corrections (DOC) providing a psychological analysis to the Attorney General and the sexual predator multidisciplinary review team that was performed by a psychologist without a license in Missouri. The Supreme Court of Missouri came to several conclusions. First, the Supreme Court of Missouri held that the failure of the state to follow the procedural requirements of Section 632.483 of the Missouri Revised Statutes, the procedures for notifying the Attorney General of a potential sexually violent predator, constitutes a legal error and is not a jurisdictional defect that deprives a court of its subject matter authority to hear a case. Second, a properly prepared end-of-confinement report by a Missouri-licensed psychologist is not a condition precedent to the Attorney General’s right to file a petition seeking to have an individual declared a sexually violent predator (SVP) or for a court’s authority to hear a case on the issue. Third, the error was waived by not raising the issue for three years during which time the trial court entertained various other motions. Fourth, even if the error was not waived, failure of the DOC’s psychological assessment to be performed by a psychologist licensed by Missouri was not prejudicial for a series of reasons: the psychologist was licensed in the state of Texas and was licensed in the state of Missouri several months after issuance of the assessment; despite the error in the formation of the report, the multi-disciplinary committee’s recommendation was that the individual was not a SVP; the Attorney General has discretionary authority to seek someone declared a SVP whatever the contents of the DOC’s psychological assessment or multidisciplinary committee report; and the initial psychological assessment by the DOC is not the psychological assessment used when a trial court determines whether an individual is a sexually violent predator.
Richard Closser was first convicted of sexual abuse in 1990.[2] In 1997, he received two more convictions for sexual molestation and sexual misconduct.[3] Closser, while in prison, refused to participate in the Missouri Sexual Offendor Treatment Program.[4] Shortly before Mr. Closser’s release from prison, the DOC identified him as a potential SVP and, per Section 632.483 of the Missouri Revised Statutes, submitted to the Attorney General and a multidisciplinary review team Closser’s name, identifying factors, anticipated future residence, offense history, documentation of institutional adjustment and treatment, and an end-of-confinement report determining whether he was a SVP.[5] The psychologist who prepared the report was not licensed to practice in the state of Missouri as required by Section 632.483 of the Missouri Revised Statutes. [6] The psychologist was licensed to practice by the state of Texas and was licensed by the state of Missouri several months after issuance of the report.[7]
The multidisciplinary committee determined that Closser did not meet the definition of a SVP.[8] After the multidisciplinary committee made its assessment, a prosecutor’s review committee examined the assessment of the multidisciplinary committee and the DOC’s documentation and determined Closser did meet the definition of a SVP.[9] Both committee assessments were provided to the Attorney General’s Office, along with the DOC documentation. [10] The Attorney General’s Office, pursuant to its discretion under Section 632.486 of the Missouri Revised Statutes, determined that Closser was a SVP and filed a petition seeking him declared and committed as a SVP.[11]
After the petition was filed, the trial court detained Closser and a probable cause hearing was held within seventy two hours as required.[12] Following the hearing, the trial court determined that there was probable cause to believe Closser was a SVP.[13] Both the multidisciplinary committee’s findings and the DOC psychological assessment were available to the trial court during its probable cause determination.[14]
The trial court entertained a series of continuances and other motions over a period of three years.[15] During this time, Closser underwent a new psychological evaluation, which determined he was a SVP.[16] In May 2008, three years after the probable cause hearing, Closser’s counsel raised the issue that the state failed to follow the proper statutory requirements of Section 632.483 of the Missouri Revised Statutes as the DOC psychological assessment was not conducted by a psychologist licensed in Missouri.[17] Closser’s counsel argued that the defect deprived the trial court of jurisdiction to hear the case.[18] The trial court agreed and dismissed the case. The Supreme Court of Missouri took the case on appeal.[19]
II. Legal Background
The Supreme Court of Missouri made its previously issued preliminary writ of prohibition permanent based on a series of holdings. None of the facts in the case were in dispute so all questions were questions of law that were reviewed de novo.
A. Jurisdiction
The Supreme Court of Missouri first addressed the issue of jurisdiction and relied on the reasoning of two earlier Supreme Court of Missouri cases, In re Marriage of Hendrix from 2006 and J.C.W. v. Wyciskalla from 2009.[20] The central premise of the court’s ruling is derived from Hendrix: “courts of this state should confine their discussions of circuit court jurisdiction to constitutionally recognized doctrines of personal and subject matter jurisdiction.”[21] As J.C.W. reasoned, “it would rob[ ] the concept of subject matter jurisdiction of the clarity the constitution provides were any error in following a statute considered to deprive a court of jurisdiction to decide a case.”[22] The court compared the instant case to Hendrix where, during a marriage dissolution case, a trial court decision to proceed on a stipulated record rather than a live evidentiary hearing violated the dissolution statute’s requirement of a hearing.[23] As in Hendrix, where “the label jurisdiction defect has no application to mere legal error,” the court has jurisdiction according to settled constitutional doctrine, and the departure from the statute was a mere legal error.[24]
B. Condition Precedent
The Supreme Court of Missouri then addressed the issue of whether the proper preparation of an end-of-confinement report by a Missouri licensed psychologist is a condition precedent to the Attorney General’s right to file a petition seeking to have an individual declared a SVP or for a court’s authority to hear a case on the issue.[25] The court noted the issue is one of statutory interpretation.[26] Relying on State ex. rel. Fischer v. Brooks, even though the statute used the word “shall,” the court found that the use of the word does not render compliance with the statute mandatory when the legislature has not proscribed a sanction for non-compliance.[27] As stipulated by State v. Teer, “[d]epending on context, ‘shall’ may prescribe mandatory duty . . . but it may be only directory.”[28] As it is the DOC’s statutory notice and not the contents of the end-of-confinement report that initiates the Attorney General’s process of whether a petition will be filed, the submittal of a proper end-of-confinement report is not a condition precedent for the Attorney General’s powers.[29] Also, as the end-of-confinement report does not even have to be filed with court, it is not a condition precedent for the court’s exercise of its authority.[30] The Supreme Court of Missouri further noted that “an error in transmitting the person’s address or various identifying factors, an error as to offense history, or a failure to include some piece of documentation regarding treatment, in submitting the initial notice to the attorney general, does not deprive a court of authority to proceed.”[31] As the procedures of Section 632.483.2 of the Missouri Revised Statutes are not conditions precedent, a failure to follow the procedures is an issue of legal error.[32]
C. Waiver of Error
As failure to follow the procedures of Section 632.483.2 of the Missouri Revised Statutes are an issue of legal error, failure of the end-of-confinement report to be prepared by a psychologist licensed in Missouri is subject to waiver.[33] The Missouri Supreme Court held that as the Appellant did not raise the issue for three years, during which time the trial court entertained various other motions, the Appellant waived the legal error.[34]
D. Prejudicial Error
The Supreme Court of Missouri went further and held that, even if the legal error had not been waived by the Appellant, failure to have the end-of-confinement report prepared by a psychologist licensed in Missouri was not prejudicial.[35] The court noted a number of reasons why the error was not prejudicial. Some reasons were specific to the facts of the case and some reasons apply to any petition against a SVP.[36] The reasons specific to the case were that the psychologist was licensed in the state of Texas; the psychologist was licensed in the state of Missouri several months after issuance of the assessment; and despite the error in the formation of the report, the multi-disciplinary committee’s recommendation was that the individual was not a SVP.[37] The reasons that apply to any petition filed against a SVP, and would make any error in following the procedures of Section 632.483 of the Missouri Revised Statutes, are that the Attorney General has discretionary authority to seek someone declared a SVP whatever the contents of the DOC’s psychological assessment or multidisciplinary committee report and the initial psychological assessment by the DOC is not the psychological assessment used when a trial court determines whether an individual is a SVP.[38] As such, even if the legal error was not waived, failure to follow to have the end-of-confinement report prepared by a psychologist licensed in Missouri was not prejudicial.[39]
III. Commentary
In State v. Parkinson, the Supreme Court of Missouri foreclosed the possibility of relief for departures of procedure prior to the Attorney General filing a petition to have an individual identified and committed as a SVP. In Parkinson, the Supreme Court of Missouri went beyond the procedural posture of the case. The court could have merely held that departures from statutory law do not deprive a court of its subject matter authority. However, the court also considered whether the requirements of Section 632.483 of the Missouri Revised Statutes were conditions precedent for the Attorney General’s and courts’ authority, whether the error of the instant case was waived, and whether the error in the instant case was prejudicial.
When determining whether the failure to use a psychologist licensed in Missouri to prepare the end-of-confinement report was a condition precedent the court foreclosed the possibility of any pre-petitions requirement of Section 632.483 of the Missouri Revised Statutes being a condition precedent for the Attorney General’s or courts’ authority. As for the Attorney General’s authority, “not the content of the end-of-confinement report or the information in any of the other supporting documents provided with it,[ ] begins the process of determining whether a petition will be filed in the first instance.”[40] As to the courts’ authority, “Section 532.483 does not require that end-of-confinement report even be filed with the court, much less that it is essential or is absence disposative.”[41] This is also true of the other requirements of Section 532.483 of the Missouri Revised Statutes. As such, all procedural defects of Section 532.483 of the Missouri Revised Statutes are legal errors. After ruling that all procedural defects of Section 532.483 of the Missouri Revised Statutes are legal errors, the Supreme Court of Missouri ruled that all such legal errors are not prejudicial. “Neither a positive recommendation on the report nor by the multidisciplinary[ or the prosecutor’s committee] is essential even to the Attorney General’s decision to proceed with the filing of a petition.”[42] As the Attorney General has discretionary authority as to whether to file a petition, regardless of the contents of any pre-filing requirement, in State v. Parkinson the Supreme Court of Missouri foreclosed the possibility of relief for departures of procedure prior to the Attorney General’s filing of a petition to have an individual identified and committed as a SVP.
- Sean Alan Smith
[1] State v. Parkinson, 280 S.W.3d 70, (Mo. 2009) (en banc).
[2] Id. at 72.
[3] Id.
[4] Id.
[5] Id. 73-74.
[6] Id. at 74.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id. at 76.
[17] Id. at 74.
[18] Id.
[19] Id.
[20] Id. at 75.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id. at 75.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id. at 77.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] Id. at 76.
[41] Id.
[42] Id. at 77.
