Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 80144-4
Title of Case: In re Det. of Smith
File Date: 06/12/2008
Oral Argument Date:
SOURCE OF APPEAL
Appeal from Snohomish County Superior Court
Honorable George N Bowden
COUNSEL OF RECORD
Counsel for Petitioner(s)
Thomas Michael Kummerow
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3635
Counsel for Respondent(s)
Todd Richard Bowers
800 5th Ave Ste 2000
Seattle, WA, 98104-3188
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Detention of KIM NO. 8 0 1 4 4 - 4
Filed June 12, 2008
PER CURIAM -- We held in In re Detention of Elmore, 162 Wn.2d 27, 36,
168 P.3d 1285 (2007), that a 2005 amendment to the sexually violent predator act was
not retroactive. Because the facts here are substantially the same as those in Elmore,
we grant Kim Smith's petition for review and reverse the Court of Appeals.
The trial court committed Smith as a sexually violent predator in 2002.
Following Smith's annual show cause hearing in 2004, the court granted Smith an
evidentiary hearing to determine whether he should be released based on an expert's
opinion that Smith's advancing age rendered him no longer likely to commit future
acts of sexual violence. The trial court based its ruling on the Court of Appeals'
then-recent decision in In re Detention of Young, 120 Wn. App. 753, 86 P.3d 810
(2004), which held that advancing age alone could justify an evidentiary hearing. Just
before trial in 2005, the legislature amended RCW 71.09.090 to provide that
advancing age alone does not justify a hearing to determine eligibility for release.
Based on the amendment, the trial court granted the State's motion to vacate the order
No. 80144-4 Page 2
granting Smith an evidentiary hearing.
The Court of Appeals affirmed, issuing its decision after we granted review
in Elmore but before we filed that decision. In light of our decision in Elmore, the
2005 amendment cannot retroactively be applied to deny Smith an evidentiary hearing
on whether his advancing age renders him no longer likely to commit acts of sexual
We reverse the Court of Appeals and remand to the trial court for
proceedings consistent with this opinion.