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In re Detention of Marcum

Supreme Court of Washington, En Banc

August 3, 2017

In the Matter of the Detention of JOHN H. MARCUM.

          MADSEN, J.

         In this 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.[1] 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.

         FACTS

         Marcum 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.

         Marcum 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.

         At the transition facility, Marcum battled depression and his behavior deteriorated, although not in a way directly related to sexual offending.[2] 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.[3] 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 misconduct.

         In May 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 treatment.

         One 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.

         Petition for an Unconditional Release Trial

         In 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.

         In 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, 23.[4] 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 counseling.[5]

         At the 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.

         Marcum's 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.

         The 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.

         Court of Appeals Decision

         Marcum 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 placement.

         The 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).

         ANALYSIS

         We 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.

         RCW 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 71.09.090(1).

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.[6] Further, as noted above, in making the required showing the State may rely solely on the annual report, and here it did so.

         As 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 report states:

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. Marcum.

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 observing:

[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).

         As can 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.[7]

         CONCLUSION

         We 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.

          GORDON McCLOUD, J. (concurring).

         I agree 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.

         The SVP 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 unconditional release.

         FACTS

         As the 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.

         In May 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.

         Contrary to the assertion in the dissent, [1] 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 14.

         Marcum 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).

         ANALYSIS

         The 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.

         The majority declines to reach this question[2] and instead holds that Marcum is entitled to an evidentiary hearing on unconditional release[3] 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.

         But I 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.

         I. The 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

         RCW 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 case.

         As 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.

         I do 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 ...


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