In the Matter of the Detention of JOHN H. MARCUM.
case, we apply a provision in chapter 71.09 RCW, the statute
governing the civil commitment of sexually violent predators
(S VP), in the context of a detainee's petition for
unconditional release. While the parties argue competing
interpretations concerning how a detainee's
treatment-based change is to be assessed, we resolve this
case on the threshold issue concerning the burden placed on
the State by chapter 71.09 RCW at the ensuing show cause
hearing. Because the State here failed to meet its
threshold burden at the show cause hearing as set forth in
RCW 71.09.090(2)(b) (discussed below), we reverse the Court
of Appeals and hold that detainee John Marcum is entitled to
a full evidentiary hearing.
has been civilly committed as an SVP for more than 15 years.
In 1989, Marcum was convicted of one count of indecent
liberties against a child under the age of 14 and two counts
of first degree child molestation. While he was on community
placement for those offenses, Marcum committed second degree
child molestation. He was convicted of that offense in 1994
and sentenced to 89 months of incarceration. Just before his
scheduled release in January 2000, the State petitioned to
have Marcum civilly committed as an SVP.
stipulated to commitment as an SVP in January 2001. He
resided at the Special Commitment Center (SCC), where he
participated in sexual deviancy treatment. In January 2009,
he was transferred to a less restrictive alternative (LRA) at
the Pierce County Secure Community Transition Facility
(transition facility or SCTF), where he remained for
approximately two years.
transition facility, Marcum battled depression and his
behavior deteriorated, although not in a way directly related
to sexual offending. Marcum consistently participated in sex
offender treatment, but he refused to work (objecting that
wages were too low or that he could do only sedentary jobs),
developed a habit of lying in bed until late in the day,
refused to exercise, and traded stamps for cigarettes in
violation of transition facility rules. Because of these
behaviors, Marcum's treating psychologist, Dr. Vincent
Gollogly, determined that he could no longer provide Marcum
with sex offender treatment therapy. Accordingly, the
Department of Corrections submitted a recommendation to the
superior court that Marcum's LRA release be revoked. The
reasons given all pertained to Marcum's refusal to work
and generally negative attitude, and not to any sexual
2011, Marcum stipulated to the revocation of his LRA release.
The court granted the revocation on the ground that the LRA
placement was conditioned on Marcum's participating in
treatment with Dr. Gollogly, and since Dr. Gollogly was no
longer willing to treat Marcum, this condition could not be
satisfied. After returning to total confinement at the SCC,
Marcum did not participate in further sexual offender
year later, the superior court entered an "Agreed Order
on Annual Review." Clerk's Papers (CP) at 13. The
order found that Marcum continued to meet the definition of
an S VP and that any LRA placement was not appropriate.
However, it also contained a provision noting that
"Respondent did not present his own evidence at this
time" and that "entry of this order does not
prevent him from obtaining such evidence in the future or
from petitioning the court, at any time, for conditional or
unconditional release." Id. at 14.
for an Unconditional Release Trial
August 2013, Marcum filed a "Petition For An
Unconditional Release Trial Pursuant To RCW 71.09.090 Annual
Review Hearing." Id. at 29. He attached a
report by Dr. Paul Spizman, a former SCC employee. Dr.
Spizman's evaluation reviewed in detail Marcum's
history of treatment, including the two years he spent at the
transition facility, and the evolution in his sexual thinking
and behavior. Regarding Marcum's experience at the
transition facility, Dr. Spizman noted that while Marcum
"may have fallen back into some negative behaviors[, ]
... he did not actually fall back into the use of sexualized
coping . . . [and] it appears he is able to effectively
manage himself well enough to avoid the stepping back into
the sexual elements of his offending cycle."
Id. at 71. Because of the gains Marcum made in
treatment over his many years in civil commitment, Dr.
Spizman concluded that he was no longer diagnosable as having
pedophilia and no longer met the definition of an SVP.
response, the State's relied on the annual report (dated
April 15, 2013) of its evaluator, Dr. Regina Harrington. The
annual report concluded that Marcum "continues to meet
the definition of a[n] [SVP and] . . . continues to [be]
suitable for a [LRA] community placement, " and also
acknowledged that Marcum "has reached [the] maximum
benefit from inpatient treatment." Id. at 24,
Dr. Harrington's evaluation also described changes in
Marcum's attitude about release since his previous annual
review. The evaluation contained a detailed description of
Marcum's release plan, which included plans for work,
minimal and supervised contact with the two children in
Marcum's extended family (a niece and nephew), and
participation in Alcoholics Anonymous and sex offender
show cause hearing addressing Marcum's petition for
release, the State first contended that it met its threshold
burden by showing that Marcum continued to be an SVP as
supported by Dr. Harrington's evaluation. The State
contended that based on the SVP showing alone, the
State had met its statutory burden. The State then addressed
Marcum's probable cause argument, which was based on Dr.
Spizman's evaluation. The State did not challenge the
factual basis for any conclusion in Dr. Spizman's
evaluation. Instead, it argued only that those conclusions
were irrelevant because they all pertained to changes in
Marcum's mental condition that occurred before his LRA
revocation. In other words, the State argued that Dr. Spizman
failed to address whether Marcum's condition had changed
through treatment after Marcum's LRA revocation.
attorney initially argued that the State had not met its
prima facie showing. Alternatively, she contended that the
State's position concerning Marcum's probable cause
showing was absurd and constitutionally problematic because
Marcum had taken all of the treatment courses that the SCC
offered, he had received maximum benefits as acknowledged by
the State's evaluators, and the benefits of such
treatments showed in Marcum's daily life.
trial court ultimately agreed with the State and denied
Marcum's petition for a trial, noting in part that Marcum
could not show changed mental condition "through
positive response to continuing participation in
treatment" because he had not engaged in treatment for
two years. Id. at 76-77.
of Appeals Decision
appealed, arguing that the superior court's denial of a
release trial violated both statutory and constitutional
protections. The State argued, as it had in the trial court,
that Marcum could not meet a statutory prerequisite to
release under RCW 71.09.090(4)-change through continuing
participation in treatment-because he had not participated in
treatment since he stipulated to the revocation of his LRA
Court of Appeals affirmed the superior court in a divided
opinion, concluding that under RCW 71.09.090(4)(a), a
detainee cannot obtain an evidentiary hearing unless he can
show that he has changed since the last proceeding
resulting in civil commitment. In re Det. of Marcum,
190 Wn.App. 599, 601-02, 605-06, 360 P.3d 888 (2015). Marcum
sought review, which this court granted. In re Det. of
Marcum, 185 Wn.2d 1010, 367 P.3d 1083 (2016).
review questions of statutory interpretation de novo. In
re Det. of Hawkins, 169 Wn.2d 796, 800, 238 P.3d 1175
(2010). And, as we have previously held, "[S]tatutes
that involve a deprivation of liberty must be strictly
construed." Id. at 801; see also In re Det.
of Martin, 163 Wn.2d 501, 508, 182 P.3d 951 (2008) (we
strictly construe statutes curtailing civil liberties).
"As civil commitment is a 'massive curtailment of
liberty, ' we must narrowly construe the [civil
commitment statutes]." Hawkins, 169 Wn.2d at
801 (citation omitted) (quoting Humphrey v. Cady,
405 U.S. 504, 509, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972)).
Accordingly, we hold that granting civilly committed detainee
Marcum a full trial is required by RCW 71.09.090. This is
because the State failed to make the initial prima facie
showing imposed on it at the show cause hearing. The
State's burden is expressly set forth in RCW
71.09.090(2)(b). Based on this failure alone, the detainee
must be granted a full hearing.
71.09.090(2)(b) provides in relevant part:
At the show cause hearing, the prosecuting 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 may rely exclusively upon the annual
report prepared pursuant to RCW 71.09.070.
(Emphasis added.) Concerning the show cause hearing
requirements in this context, this court has explained:
The purpose of the show cause hearing is to determine whether
the individual is entitled to an evidentiary hearing. [RCW
71.09.090(2)(a).] At the show cause hearing, the State bears
the burden to present prima facie evidence that the
individual continues to meet the definition of an S VP
and that conditional release to a less restrictive
alternative would be inappropriate. RCW 71.09.090(2)(b). The
court must order an evidentiary hearing if the
State fails to meet its burden or, alternatively, the
individual establishes probable cause to believe his
"condition has so changed" that he no longer meets
the definition of an SVP or that conditional release to a
less restrictive alternative would be appropriate. RCW
State v. McCuistion, 174 Wn.2d 369, 380, 275 P.3d
1092 (2012) (emphasis added). Restated, the State's prima
facie burden at the show cause hearing is twofold. It
must show that the detainee is still a sexually
violent predator and that conditional release to a
less restrictive alternative is not appropriate. If the State
fails to make this two-prong showing a full hearing is
required. Further, as noted above, in making the
required showing the State may rely solely on the annual
report, and here it did so.
noted, the State relied on the April 15, 2013 Special
Commitment Center Annual Review (2013 report) conducted by
evaluator Dr. Regina Harrington. The 2013 report stated:
[T]he purpose of this report is to evaluate whether Mr.
Marcum's condition has changed to the extent he no longer
meets the definition of a Sexually Violent Predator or
whether conditional release to a less restrictive alternative
(LRA) is in his best interest and conditions could be imposed
to adequately protect the community. Therefore this annual
examination assesses his current functioning, significant
treatment progress and change, and readiness for a less
restrictive or unconditional community placement, rather than
gathering historical information already presented in
previous Court proceedings.
CP at 16. After discussing Marcum's progress, the 2013
It continues to be the opinion of this evaluator Mr. Marcum
has reached maximum benefit from inpatient treatment and
a higher management setting is not in his best
interest as it does not further his adaption to
community life and does not appear necessary for community
safety. . . . [I]n the opinion of this evaluator, it
would be preferable to facilitate a conditional release
optimizing opportunity for independent living with
supervision and treatment to support risk management and
likelihood of a successful community transition for Mr.
Id. at 23 (emphasis added). The "higher
management setting" referenced in the above passage
clearly refers to the Special Commitment Center, at which
Marcum is now detained. The 2013 report concludes by
[Marcum's] civil commitment, according to [RCW]
71.09.060, was to continue . . . until his condition has
changed such that he no longer meets the definition of a
sexually violent predator or conditional release to
a less restrictive alternative is in his best interest. . . .
It is my professional opinion Mr. Marcum continues to meet
the definition of a sexually violent predator. .. . However,
it is my professional opinion he continues to [be] suitable
for a less restrictive alternative community placement and a
higher management total confinement setting is not in his
best interest and is not needed for community safety.
Id. at 24 (emphasis added).
be seen, while the State's evidence does make the
required first prong prima facie showing of continuing status
as a sexually violent predator, it fails the second prong
showing-that conditional release to a less restrictive
alternative would not be appropriate. The
State's proffered evidence, the 2013 report, shows just
the opposite. Because the State has failed to make the
requisite two-pronged threshold showing at the show cause
hearing, the court was required to order a full trial.
McCuistion, 174 Wn.2d at 380.
reiterate our holding in McCuistion concerning the
State's threshold burden at a show cause hearing
concerning a civilly committed detainee. The purpose of the
show cause hearing is to determine whether the detainee is
entitled to an evidentiary hearing. Under RCW
71.09.090(2)(b), the State bears the burden at the show cause
hearing to present prima facie evidence that the detainee
continues to meet the definition of a sexually violent
predator and that conditional release to a less
restrictive alternative would be inappropriate. If the State
fails to meet this threshold burden, the court must
order an evidentiary hearing. Here, the State did not meet
its burden and the court did not order the required hearing.
Those failings are determinative of this case. We reverse the
Court of Appeals and remand for further proceedings
consistent with this opinion.
McCLOUD, J. (concurring).
with the majority that John Marcum is entitled to a full
hearing on his petition for unconditional release, I write
separately, however, because I do not agree with the
majority's interpretation of the sexually violent
predator (SVP) commitment statutes, chapter 71.09 RCW, at
issue here. The majority holds that Marcum is entitled to a
hearing on unconditional release because the
State's evidence supported conditional release
to a less restrictive alternative (LRA) placement. But this
approach is illogical, conflicts with the statute's plain
language, and avoids the question squarely presented in this
case: whether Marcum's evidence demonstrated the kind of
treatment-based change that entitles a petitioner to a
hearing on unconditional release. I would reach that
question, and I would hold that the answer is yes.
commitment statute at issue here is ambiguous and must
therefore be construed so as to avoid a due process
violation. U.S. Const, amend. XIV. Here, that means
construing the statute to require a full hearing at which the
State bears the burden to justify continued civil commitment
when an individual presents credible evidence of
treatment-based change making him or her safe for release to
the community. Consistent with substantive due process
protections, with the canon of constitutional avoidance, and
with the rule that our SVP commitment statutes must be
strictly construed in favor of liberty, I conclude that
Marcum is entitled to a full evidentiary hearing on his
petition for release. Foucha v. Louisiana, 504 U.S.
71, 77, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) (due process
requirements); Utter ex rel. State v. Bldg. Indus.
Ass'n of Wash., 182 Wn.2d 398, 434-35, 341 P.3d 953
(2015) (canon of constitutional avoidance); In re Det. of
Hawkins, 169 Wn.2d 796, 801, 238 P.3d 1175 (2010)
(strict construction requirement (citing Christensen v.
Ellsworth, 162 Wn.2d 365, 373, 173 P.3d 228 (2007))). I
therefore concur in the majority's decision to reverse
the Court of Appeals and remand for a full hearing on
dissent notes, Marcum has committed numerous sexual offenses
against young boys. He has been convicted of four such
offenses arising from three separate incidents, but has
admitted to victimizing 21 children over a five-year period
beginning when Marcum was 23 years old. Marcum's last
conviction occurred in 1994 and resulted in a sentence of 89
months of incarceration. Just before his scheduled release
date in January 2000, the State successfully petitioned to
have Marcum civilly committed to the Special Commitment
Center (SCC) as an SVP. Thus, at this point Marcum has been
civilly committed as an SVP for more than 16 years.
2011, after he stopped taking his prescribed antidepressant
medication and his behavior deteriorated sharply, Marcum
stipulated to the revocation of his LRA placement.
Marcum's attorney attached a "Certificate" to
the stipulation motion stating that "Mr. Marcum's
attitude towards his current placement has deteriorated to
the point where nothing will change his mind including
changing treatment providers and/or changing current
placements. Mr. Marcum had directed this writer to report to
the Court that he wishes to be revoked." Clerk's
Papers (CP) at 131 (boldface omitted). The Certificate also
noted Marcum's request "that this matter be set for
hearing and/or trial on the issue of unconditional release at
a later date." Id., at 132.
to the assertion in the dissent,  this stipulation did not
result in any finding or conclusion that Marcum continued to
meet the definition of an SVP. Instead, the court order
revoking Marcum's LRA placement just noted the
uncontested fact that Marcum was, at the time of the
revocation order, "civilly committed as a[n] . . .
SVP." Id. at 133. One year later, the superior
court entered an "Agreed Order on Annual Review."
Id. at 13. This order stated that Marcum continued
to meet the definition of an SVP-a prerequisite to civil
commitment as a sex offender. But the order also contained a
provision stating that Marcum "did not present his own
evidence at this time" and that "entry of this
order does not prevent him from obtaining such evidence in
the future or from petitioning the court, at any time, for
conditional or unconditional release." Id. at
invoked that provision roughly one year later, in August
2013, when he petitioned the court for a trial on
unconditional release. This time, he submitted his own expert
evaluation opining that due to his successful participation
in sex offender treatment, Marcum no longer fit the
definition of an SVP. Thus, there was conflicting evidence
before the court as to whether Marcum actually continued to
"suffer from a mental abnormality or personality
disorder which makes [him] likely to engage in predatory acts
of sexual violence if not confined in a secure
facility." RCW 71.09.020(18). If he does not meet those
criteria, then the State may not civilly commit him. See
In re Del of Thorell, 149 Wn.2d 724, 731-32, 72 P.3d 708
(2003) (citing Kansas v. Crane, 534 U.S. 407, 413,
122 S.Ct. 867, 151 L.Ed.2d 856 (2002) (SVP statute satisfies
due process only if commitment is predicated on proof of
mental illness and dangerousness)); RCW 71.09.060(1).
State contends that Marcum's expert evaluation
doesn't matter. It argues that RCW 71.09.090(4)(a) bars
the trial court from granting an evidentiary hearing on a
petition for unconditional release unless the petitioner
presents evidence of treatment-based change since the
later of two proceedings: either the last commitment
trial or the last LRA revocation proceeding. Thus, the State
concludes that Marcum's expert evaluation was
irrelevant-even though it opined that he was no longer an
SVP-because it identified treatment-based changes that all
occurred before Marcum's LRA revocation (the
most recent proceeding). Marcum disagrees; he argues that his
expert declaration demonstrates exactly the kind of
treatment-based change required to trigger an evidentiary
hearing on unconditional release.
majority declines to reach this question and instead holds
that Marcum is entitled to an evidentiary hearing on
unconditional release because the State considers him
eligible for conditional release to an LRA. I agree with the
dissent that this approach is untenable, both because it
depends on an incomplete reading of the SVP commitment
statute and because it ignores the question framed by the
parties and the Court of Appeals. Dissent at 1-2, 9, 12-13.
respectfully disagree with the rest of the analysis in the
dissent. That analysis can result in the continued civil
commitment of a person who, thanks to participation in sex
offender treatment, is no longer both mentally ill and
dangerous. That unconstitutional outcome is inconsistent with
the SVP commitment statutes at issue here; indeed, it is the
very outcome those statutes were designed to prevent.
Thorell, 149 Wn.2d at 731-32 (citing Crane,
534 U.S. at 413); U.S. Const, amend. XIV.
Statutory Provision at Issue In This Case, RCW
71.09.090(4)(a), Is Ambiguous; We Must Therefore Interpret It
According to Relevant Canons of Statutory Construction
71.09.090(4)(a) defines the "probable cause"
necessary to trigger a full evidentiary hearing on an SVP
detainee's petition for release. It provides that a full
hearing is required "when evidence exists, since the
person's last commitment trial, or [LRA] revocation
proceeding, of a substantial change in the person's
physical or mental condition . . . ." RCW
71.09.090(4)(a). Thus, RCW 71.09.090(4)(a) gives two dates
from which a petitioner's treatment-based change can be
measured-the date of the petitioner's last commitment
trial and the date of the petitioner's last LRA
revocation proceeding (if any occurred)-but it does not
explain how to determine which date applies in any given
noted above, the majority has declined to answer that
question. It holds that because the State's evidence at
the show cause hearing indicated that an LRA placement was
appropriate, Marcum is entitled to a "full trial."
Majority at 9. The majority acknowledges that Marcum neither
sought nor proposed an LRA placement but concludes that this
is irrelevant: 'The fact that the detainee here . . .
[sought] an unconditional release does not... make the
option of an LRA a nonissue." Majority at 9 n.7
(emphasis added). This conclusion conflicts with the plain
language of the SVP commitment statute, which-as the dissent
points out-prohibits the trial court from granting a trial on
LRA release unless '"a proposed [LRA] placement
meeting the conditions of RCW 71.09.092 is presented to the
court at the show cause hearing.'" Dissent at 12
(quoting RCW 71.09.090(2)(d)). In this case, nobody presented
an adequate LRA proposal at the show cause hearing. Contrary
to the majority's reasoning, that makes release to
another LRA placement a "nonissue" (not grounds for
an evidentiary hearing). Majority at 9 n.7.
agree with the majority's holding, however, that Marcum
is entitled to an evidentiary hearing on
unconditional release. I agree with that holding
because I conclude that the "change" triggering
such a hearing under RCW 71.09.090(4)(a) must be interpreted