In re Det. of Marcum

-•T:hls ,,qpinion ``iflt``tf,~mre99fj:i
at t), \J(j /W\ onA`` 12Jlt1
&``
. SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Detention of ) No. 92501-1
)
JOHN H. MARCUM. ) En Banc
)
) Filed AUG O3 2017
MADSEN, J.-In this case, we apply a provision in chapter 71.09 RCW, the
statute governing the civil commitment of sexually violent predators (SVP), 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.
1
The detainee, John Marcum, filed a petition for unconditional release, arguing that he is entitled
to a hearing because he has presented evidence of treatment-based change since his initial
commitment some 16 years ago. The State argues that Marcum is not entitled to a hearing unless
he can demonstrate treatment-based change occurring since the revocation of his less restrictive
alternative placement, which occurred some six years ago. We do not address these arguments
as resolution of the noted threshold issue is dispositive. See State v. Slert, 186 Wash. 2d 869, 880,
383 P.3d 466 (2016) ("this court has authority to reach any issue necessary to a just
disposition"); Jenkins v. Dep 't of Soc. & Health Servs., 160 Wn.2d 287,291, 157 P.3d 388
(2007) (where issue decided is dispositive, it is "unnecessary to reach or decide any other
issues").
No. 92501-1
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 oflying 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,
2
The dissent takes issue with our characterization of Marcum's time at the SCTF, see dissent at
4, but this assessment reflects the view of the State's evaluator. See infra note 4.
3
Marcum told an evaluator that he stopped taking his prescribed antidepressant medication at the
transition facility because after his dosage was increased, the side effects became intolerable.
2
No. 92501-1
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 SVP 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
3
No. 92501-1
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
4
Dr. Harrington's evaluation addressed Marcum's experience at the Pierce County LRA as
follows:
During that LRA placement Mr. Marcum demonstrated commitment and
motivation to live a prosocial life and an ability to be organized and independent
in managing aspects of his life to the extent permitted. Mr. Marcum did not
experience a recurrence of sexually deviant impulses or thoughts however, he was
not able to develop financial resources to progress to a lesser restrictive setting to
further test and strengthen risk management skills and at that time it ... seems he
did not optimize his use of available opportunities. Thus, based on circumstances
not related to concern or deterioration in sexual regulation, he was returned to
the total confinement facility in 2011 where he continues to reside.
CP at 17 (emphasis added).
4
No. 92501-1
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
5
Unlike the previous year, Marcum had developed a concrete plan for release built on the
support of family resources in Wisconsin, which involved residing independently in a trailer on a
1.5 acre tract of land where his brother and family live.
5
No. 92501-1
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 7I.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 Wash. App. 599, 601-02, 605-06, 360 P.3d 888 (2015). Marcum
sought review, which this court granted. In re Det. of Marcum, 185 Wash. 2d 1010, 367
P.3d 1083 (2016).
ANALYSIS
We review questions of statutory interpretation de novo. In re Det. of Hawkins,
169 Wash. 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
6
No. 92501-1
Det. of Martin, 163 Wash. 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 Wash. 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 7I.09.090(2)(b). Based on this failure
alone, the detainee must be granted a full hearing.
RCW 7I.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 SVP 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).
7
No. 92501-1
State v. McCuistion, 174 Wash. 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.
6
The dissent would hold that Marcum is not entitled to a full hearing because "Marcum did not
establish probable cause." Dissent at 10. But, as discussed, the threshold burden at the show
cause hearing is on the State.
8
No. 92501-1
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 Wash. 2d at 380. 7
7
As discussed above, evidence ofMarcum's continuing status as a sexually violent predator is
only half of the prima facie showing that RCW 71.09 .090(2)(b) charges the State with producing
at a show cause hearing. The fact that the detainee here initiated this proceeding by seeking an
unconditional release does not relieve the State of its threshold burden at the show cause hearing
or make the option of a less restrictive alternative placement a nonissue. The dissent asserts that
a full hearing in this circumstance-where Marcum seeks unconditional release-"would lead to
absurd ... results." Dissent at 13. Not so. As explained, a full hearing here is required under
McCuistion and that hearing will determine whether Marcum is entitled to unconditional release
(as he asserts) and will also satisfy the due process requirement of any further detention. "Under
the due process clause of the Fourteenth Amendment, an individual subject to civil commitment
9
No. 92501-1
CONCLUSION
We reiterate our holding inMcCuistion 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.
is entitled to release upon a showing that he is no longer mentally ill or dangerous." 174 Wash. 2d
at 384 (citing U.S. CONST. amend. XIV; Foucha v. Louisiana, 504 U.S. 71, 77-78, 112 S. Ct.
1780, 118 L. Ed. 2d 437 (1992)). Substantive due process requires the State to "conduct periodic
review of the patient's suitability for release." Id. at 385 (citing Jones v. United States, 463 U.S.
354,368, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983)). "At the least, due process requires that the
nature and duration of commitment bear some reasonable relation to the purpose for which the
individual is committed." Jackson v. Indiana, 406 U.S. 715, 738, 92 S. Ct. 1845, 32 L. Ed. 2d
435 (1972); see McCuistion, 174 Wash. 2d at 388.
10
No. 92501-1
WE CONCUR:
11
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
No. 92501-1
GORDON McCLOUD, J. ( concurring)-! 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
1
In re Det. ofMarcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
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 Wash. 2d 398, 434-35, 341 P.3d 953
(2015) (canon of constitutional avoidance); In re Det. of Hawkins, 169 Wash. 2d 796,
801, 238 P.3d 1175 (2010) (strict construction requirement (citing Christensen v.
Ellsworth, 162 Wash. 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
2
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
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
1
Dissent at 16-17.
3
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
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). Ifhe does not meet those criteria, then the State may
not civilly commit him. See In re Det. of Thorell, 149 Wash. 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).
4
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
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 question2 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.
2
Majority at 1 n.1.
3 Majority at 9 n.7.
5
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
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 Wash. 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.
6
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
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 to include change occurring before Marcum' s LRA revocation.
7
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
The State, the Court of Appeals majority, and the dissent disagree: they all
conclude that under RCW 71.09.090( 4)(a), the requisite change must have occurred
since the stipulated LRA revocation. In re Det. ofMarcum, 190 Wash. App. 599, 604-
05, 360 P.3d 888 (2015), review granted, 185 Wash. 2d 1010, 367 P.3d 1083 (2016).
They all assert, but without any satisfactory explanation, that the statute is plain and
unambiguous on this requirement. Id. 4
Marcum and Judge Fearing, who dissented in the Court of Appeals, contend
that the date from which change must be measured depends on the nature of the
release sought. Id. at 607 (Fearing, J., dissenting). Under their interpretation, a
4 The dissent concludes that RCW 71.09.090(4)(a) is unambiguous because it
"specifically refers to the 'last' proceeding and includes both commitment trials and LRA
revocations as possible reference points." Dissent at 15. But that begs the question
presented in this case: When must the court measure change since the last commitment
trial, and when must it measure change since the last LRA proceeding? The State just
asserts, in conclusory fashion, that the disputed phrase "since the ... last commitment trial,
or [LRA] revocation proceeding" is "plain and unambiguous." Suppl. Br. of Resp't State
of Wash. at 9. This is unpersuasive because it essentially rewrites that provision, changing
the conjunction "or" to "and." And the Court of Appeals majority employed flawed
reasoning to conclude that the statute was unambiguous. It asserted that Marcum's
interpretation could not stand because it "effectively reads the LRA language ... out of the
statute ... because any LRA revocation is always going to be later in time .... " Marcum,
190 Wash. App. at 604. Presumably, the majority meant that a petitioner would always
choose the earlier of the two possible dates from which to measure change, since this would
increase the range of relevant evidence. But, at best, this reasoning explains only why we
should not interpret the statute to grant petitioners an unlimited choice between the two
possible dates. It does not explain why we should decide that the choice is limited by
chronology as opposed to something else-for example, as in Marcum's interpretation, the
nature of the disputed issues.
8
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
petitioner seeking unconditional release must show change smce his last
commitment trial, but a petitioner seeking the reinstatement of an LRA placement
must show change since his last LRA revocation. Id. They find RCW
71.09.090(4)(a)'s plain terms ambiguous but maintain that the statute makes sense
only if it requires this "comparison between apples and apples." Id. at 623, 626-27
(Fearing, J., dissenting) ("When determining whether the detainee should no longer
be confined, a court should measure change since before he was confined, or at least
since his last commitment trial. His progress since a[n] [LRA] revocation hearing
is immaterial in determining whether he can live in the community without
endangering others.").
I agree with Marcum and Judge Fearing that RCW 71.09.090(4)(a) is
ambiguous. It is impossible to tell from the statute's plain terms, or from related
provisions, 5 when a trial court should measure change from the petitioner's last
commitment trial and when it should measure change from the petitioner's last LRA
revocation proceeding. I therefore conclude that the only way to resolve this case is
to apply relevant canons of statutory construction. Jongeward v. BNSF Ry., 174
5 Lowyv. PeaceHealth, 174 Wn.2d 769,779,280 P.3d 1078 (2012) ("Plain meaning
may be gleaned I from all that the Legislature has said in the statute and related statutes
which disclose legislative intent about the provision in question."' (quoting Dep 't of
Ecology v. Campbell & Gwinn, LLC, 146 Wash. 2d 1, 11, 43 P.3d 4 (2002))).
9
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
Wn.2d 586,600,278 P.3d 157(2012) ("[i]f a statute remains ambiguous after a plain
meaning analysis, it is appropriate to resort to interpretive aids, including canons of
construction and case law" ( citing Dep 't ofEcology v. Campbell & Gwinn, LLC, 146
Wash. 2d 1, 12, 43 P.3d 4 (2002)). 6
Three canons of statutory construction are relevant to this case. First, we
assume that the legislature does not intend absurd results. State v. Ervin, 169 Wash. 2d
815, 823-24, 239 P.3d 354 (2010) (citing State v. Vela, 100 Wash. 2d 636, 641, 673
P.2d 185 (1983)). Second, we construe ambiguous statutes to avoid constitutional
questions wherever possible. Utter, 182 Wash. 2d at 434-35. Third, we construe
chapter 71.09 RCW strictly against the State (and in favor of the detainee) because
6 When interpreting civil statutes, we may also consult the legislative history to
resolve ambiguities. Bostain v. Food Express, Inc., 159 Wash. 2d 700, 709, 153 P.3d 846
(2007). But there is no helpful legislative history in this case. The dissent discusses In re
Detention of Jones, 149 Wash. App. 16, 30, 201 P.3d 1066 (2009), arguing that when the
legislature amended RCW 71.09.090( 4)(a) in 2009, it intended to overrule Jones's holding
that a detainee petitioning for release need show change occurring only since his initial
commitment trial, and not since his latest LRA revocation proceeding. Dissent at 21-22.
(citing FINAL B. REP. ON SUBSTITUTE S.B. 5178, 61st Leg., Reg. Sess. (Wash. 2009)). But
even assuming that this is correct-something we cannot determine from the legislative
record-the petitioner in Jones was seeking conditional release to an LRA. Id. at 21. Thus,
if the 2009 amendments were intended to force such petitioners to show change occurring
since their LRA revocation hearing, this is consistent with Marcum's and Judge Fearing's
interpretation of RCW 71.09.090(4)(a). See Marcum, 190 Wash. App. at 626 (Fearing, J.,
dissenting) (arguing for an "apples and apples" interpretation, according to which a
petitioner seeking the reinstatement of an LRA must show change since the revocation of
that LRA, but a petitioner seeking unconditional release must show change occurring only
since his commitment trial).
10
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
it implicates fundamental liberty interests. In re Det. of Martin, 163 Wash. 2d 501,
508, 182 P.3d 951 (2008) (citing In re Det. ofSwanson, 115 Wash. 2d 21, 31,804 P.2d
1 (1990)).
II. Every Possible Interpretation of RCW 71.09.090's Plain Language
Results in Some Absurdity; Therefore, We Should Apply the Statute in
the Manner That Avoids a Due Process Violation
As noted above, Marcum and Judge Fearing argue that the "change" period
applicable under RCW 71. 09. 090( 4)(a) depends on the nature of the change in
custody status the petitioner seeks. They contend that RCW 71.09.090( 4)(a) permits
a hearing on LRA release if the petitioner shows "change" since the last LRA
revocation proceeding-where the court must have concluded that LRA placement
was not appropriate-and a hearing on unconditional release if the petitioner shows
"change" since the last commitment trial-where the court must have concluded that
the petitioner was an SVP (meeting both the mental illness and dangerousness
prerequisites to civil commitment).
This interpretation makes sense at first glance because since LRA placements
may be revoked for a multitude of reasons that have nothing to do with a detainee' s
SVP status, the issues resolved in an LRA revocation proceeding are different from
the issues resolved in a commitment trial. See In re Det. ofJones, 149 Wash. App. 16,
30 & n.28, 201 P.3d 1066 (2009) (distinguishing between the appropriateness of an
11
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
LRA placement, which is at issue in an LRA revocation hearing, and a detainee' s
"SVP commitment status," which is not (citing In re Det. of Bergen, 146 Wash. App.
515, 523, 533, 195 P.3d 529 (2008))); see also Marcum, 190 Wash. App. at 626
(Fearing, J., dissenting) (arguing that that the State's interpretation of RCW
71.09 .090(4) requires an apples-to-oranges comparison).
But the problem with Marcum's interpretation is that another statutory
provision, RCW 71. 09. 090( 4)(b ), prohibits the court from ordering any new trial at
all-whether on LRA placement or total release-unless the petitioner shows either
of two kinds of "change":
(i) An identified physiological change to the person, such as
paralysis, stroke, or dementia, that renders the committed person unable
to commit a sexually violent act and this change is permanent; or
(ii)A change in the person's mental condition brought about through
positive response to continuing participation in treatment which
indicates that the person meets the standard for conditional release to
a[ n J [LRA] or that the person would be safe to be at large if
unconditionally released from commitment.
RCW 71.09.090(4)(b)(i), (ii).
Under this provision, the "change" required for a full evidentiary hearing is
the same whether the petitioner seeks an LRA placement or total release: it must be
either a debilitating physiological change or a mental change "brought about through
positive response to continuing participation in treatment." RCW 71.09.090( 4)(a),
12
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
(b )(ii). If an LRA were revoked because of some failed condition that had nothing
to do with the offender's response to treatment-let's say, the loss of an approved
residence-then these prerequisites to the LRA's reinstatement are absurd.
Marcum's interpretation of the statute does not solve this problem-it just makes it
irrelevant in this case, where Marcum seeks unconditional release instead of LRA
reinstatement.
But the interpretation that the State and the dissent advance is also untenable.
Their interpretation fails to resolve a contradiction between RCW 71.09.090(4)(a)
and (b ). These two subsections erect different barriers to obtaining a release trial.
RCW 71.09.090(4)(a) provides that there can be no trial on release unless there is
evidence of change since the last commitment trial or LRA revocation proceeding.
By contrast, subsection (b) makes no mention of an LRA revocation proceeding at
all; it just provides that no evidentiary hearing or trial may be held on any type of
release unless there is expert testimony identifying change since the last commitment
trial. Attempting to reconcile these provisions, the State argues that Marcum was
required to show evidence of change since his LRA revocation in order to obtain a
new release trial (under subsection (a)), but that thereafter-at the actual release trial
itself-Marcum would be required to show change only since his last commitment
trial (under subsection (b) ). In other words, the State contends that Dr. Paul
13
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
Spizman's evaluation-which concludes that Marcum accomplished the requisite
treatment-based change before his LRA revocation-would be enough for Marcum
to prevail at a release trial but is not sufficient to gethim to that trial in the first place.
This doesn't make sense.7
Ultimately, it is not possible to completely resolve RCW 71.09.090(4)'s
contradictions; every literal reading of the statute results in some absurdity. Thus,
our only option is to apply the statute in the manner that avoids both absurdities and
constitutional concerns. See In re Dependency of D.L.B., 186 Wash. 2d 103, 119, 376
P.3d 1099 (2016) (court will disregard unambiguous statutory language if necessary
to avoid an absurd result (citing State v. McDougal, 120 Wash. 2d 334, 351-52, 841
P.2d 1232 (1992))); Utter, 182 Wash. 2d at 434-35 (court will construe ambiguous
statute so as to avoid constitutional questions). The outcome that Marcum seeks-
whereby Dr. Spizman's evaluation is sufficient to get him a full hearing on
unconditional release-is the only application of the statute that meets that standard.
7 The dissent speculates that because RCW 71.09.090(4)(b) specifically makes
expert testimony a prerequisite to a release trial, this statute was probably intended to limit,
rather than expand, the probable cause threshold for a full evidentiary hearing. Dissent at
15. But the dissent also acknowledges that the discrepancy between RCW 71.09.090(4)(a)
and (4)(b) creates "possible confusion." Id. at 20.
14
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
III. The State's and the Dissent's Interpretations of RCW 71.09.090( 4)(a)
Violate the Canon of Constitutional Avoidance and The Rule That We
Must Construe Ambiguous Civil Commitment Statutes in Favor of
Liberty
Substantive due process protections require that any civil commitment scheme
be narrowly tailored to serve compelling state interests. In re Pers. Restraint of
Young, 122 Wash. 2d 1, 26, 857 P.2d 989 (1993). This requirement is satisfied only
where "both initial and continued confinement are predicated on the individual's
mental abnormality and dangerousness." State v. McCuistion, 174 Wash. 2d 369, 387,
275 P.3d 1092 (2012) (collecting United State Supreme Court cases). Accordingly,
this court has already ruled that certain features of chapter 71.09 RCW, the SVP civil
commitment statute, are constitutionally required. These include the statute's
provisions for periodic review8 and its requirement that the State bear the burden of
proof on commitment criteria, both at the initial commitment trial and at any
subsequent show cause hearing under RCW 71.09.090. 9 These features are
8McCuistion, 174 Wash. 2d at 384-85 (citing Jones v. United States, 463 U.S. 354,
368, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (J. 983)).
9 In re Det. of Petersen, 145 Wash. 2d 789, 796, 42 P.3d 952 (2002) ('" [B]oth this
court and the United States Supreme Court agree that the State must bear the burden of
proof in involuntary civil commitment hearings, and, therefore, the trial court was correct
in determining that due process requires that the burden of proof remain upon the State in
the show cause hearing." (alteration in original) (quoting In re Det. of Turay, 139 Wash. 2d
379, 424, 986 P.2d 790 (J.999))).
15
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
constitutionally required because they are necessary to ensure that an individual can
always obtain release if he shows that he is no longer both mentally ill and
dangerous. Id. at 384-85.
Pursuant to the release petition provisions in RCW 71.09.090(2), Marcum
presented an expert psychological evaluation stating that he no longer meets the
definition of an SVP. CP at 58. The State argues that the court must ignore this
evidence because-even if it is true that Marcum no longer meets the definition of
an SVP-this change in his condition occurred too early in his civil commitment to
be relevant now. In other words, the State argues that it may continue to confine
Marcum, even ifhe no longer meets the constitutional criteria for civil commitment,
because he waited too long to try to prove that his treatment succeeded.
The dissent agrees with the State and concludes that this outcome poses no
constitutional concerns under this court's decision in McCuistion. Dissent at 16-19.
According to the dissent, McCuistion held that the right of a civilly committed
person to petition for release is purely statutory and therefore cannot implicate
substantive due process protections. Id. (citing McCuistion, 174 Wn.2d at 385).
This is incorrect. In McCuistion, this court rejected a constitutional challenge
to RCW 71.09.090( 4)'s change requirement, holding that "[r]equiring change as a
prerequisite for an evidentiary hearing ... does not offend substantive due process
16
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
principles." 174 Wash. 2d at 384. It reasoned that a petition for release without any
showing of "'change"' at all was just a collateral attack on the fact finder's initial
determination that the petitioner was an SVP. Id. at 386. And it concluded that such
a collateral attack must be brought in a personal restraint petition rather than a
petition for release under the SVP statute. Id. at 386 & n.6. In reaching that
conclusion, the McCuistion majority asserted, in dictum, that "[h]ad McCuistion
established probable cause to believe he had 'so changed' under the requirements of
the [SVP release petition] statute, he would have had a statutory right, not a
constitutional right, to a full evidentiary hearing." Id. at 386. But, since Mccuistion
presented no evidence of change at all, that question was not before the court. Id. at
3 7 4 ("In support of his petition for release, Mr. McCuistion submitted a declaration
from an expert stating that he had never qualified as an SVP."). 10
The McCuistion court also rejected McCuistion's facial challenge to the
"change" prerequisite, explaining that substantive due process is facially satisfied by
two other features of the SVP commitment statute: (1) the State's burden to prove
10
Moreover, as authority for its conclusion that the right to a release hearing is
purely statutory, the McCuistion majority cited only one case, Jones, 463 U.S. at 368. But
Jones does not stand for that principle. Jones addressed a different issue: whether an
insanity acquittee can be civilly committed for a term longer than the maximum sentence
for his or her crime. Id. It held that the answer is yes, but only ifhe or she remains mentally
ill and dangerous. Id.
17
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
beyond a reasonable doubt that a person is mentally ill and dangerous before
committing that person in the first place and (2) the requirement that the State
"justify continued incarceration through an annual review." Id. at 388-89 (rejecting
McCuistion's facial challenge because it "assumes that the annual review process
fails to properly identify those who are no longer mentally ill and dangerous").
By rejecting this facial due process challenge, the McCuistion court did not
hold that there are absolutely no constitutional dimensions to the SVP release
petition process. Instead, it held only that the particular petition before it failed to
show any actual violation of substantive due process protections. 11 Marcum's
petition, by contrast, demonstrates a clear constitutional problem with RCW
71.09.090(4)(a): if interpreted as the State and dissent urge, this statute can result in
the continued confinement of an individual who is not both mentally ill and
dangerous.
This result conflicts with numerous constitutional holdings on civil
commitment under chapter 71.09 RCW-the holdings that continued civil
commitment must be predicated on mental illness and dangerousness; that annual
11
McCuistion, 17 4 Wash. 2d at 3 86 (due process does not require that detainee be
permitted to collaterally attack his original civil commitment in petition for release as
opposed to personal restraint petition; thus, "change" prerequisite to release trial is
constitutional), 392 ("Mr. McCuistion fails to establish that individuals may cease to be
mentally ill or dangerous without treatment or physiological change").
18
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
review must be afforded to ensure that those commitment criteria are satisfied; and
that the State, not the detainee, bears the burden of proof to justify continued civil
commitment. Foucha, 504 U.S. at 77; McCuistion, 174 Wash. 2d at 387; In re Det. of
Petersen, 145 Wash. 2d 789, 795-96, 42 P.3d 952 (2002). Thus, the State's and the
dissent's interpretations of RCW 71.09.090(4)(a) present serious constitutional
problems. Under both the rule of strict construction applicable to chapter 71.09
RCW and the canon of constitutional avoidance, we must reject these interpretations
if possible. Martin, 163 Wash. 2d at 508 (citing Swanson, 115 Wash. 2d at 31 ); Utter,
182 Wash. 2d at 434-35.
IV. Marcum's Petition for Release Was Not a Prohibited "Collateral
Attack"
Although it reads far too much into McCuistion's dictum on substantive due
process, the dissent is correct about another aspect of the McCuistion decision: that
decision did hold that individuals committed under chapter 71. 09 RCW may not use
petitions for release to "collaterally attack" prior adjudications of their SVP status.
174 Wash. 2d at 386; dissent at 16-17 (citing McCuistion, 174 Wash. 2d at 385). But the
dissent errs by concluding that Marcum's petition violated this rule. The dissent
asserts that Marcum "stipulated" to his SVP status at the 2011 LRA revocation
proceeding and concludes that Marcum's SVP status-Le., his mental illness and
19
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
dangerousness-was therefore determined at that proceeding. Dissent at 16. This
is incorrect.
Marcum did not stipulate to his SVP status at the 2011 revocation hearing. He
stipulated only that his LRA placement-at which he was depressed and lethargic-
should be revoked. And, as noted above, the court made only one finding at the
revocation hearing that was related to Marcum's SVP status: the finding that he was,
as of the time of the revocation order, "civilly committed as a[n] ... SVP." CP at
133. That finding is not tantamount to a review ofMarcum's SVP status, and it does
not constitute a determination that he continues to meet the statutory definition of an
SVP. 12
12
The dissent appears to read such a requirement into RCW 71.09.098(5), (6), and
(8), which govern revocation and modification of a civilly committed person's conditional
release. Dissent at 16-1 7. But none of these statutes contains any requirement that the trial
court inquire into SVP status at an LRA revocation hearing. Instead, they provide that the
State bears the burden of proving a violation of the conditional release terms or a need for
modification, RCW 71.09.098(5); that if the State meets that burden and the issue is
revocation, the court must then consider several factors, including "[t]he nature of the
condition that was violated . . . in the context of the person's criminal history and
underlying mental conditions," RCW 71.09.098(6)(i). The clear purpose of these
requirements is to ensure that the trial court carefully consider whether a revocation is
justified in a contested case. The dissent is correct that after an LRA placement is revoked
pursuant to these rules, RCW 71.09 .098(8) provides that the "person whose conditional
release has been revoked shall be remanded to the custody of the secretary for control, care,
and treatment in a total confinement facility as designated in RCW 71.09 .060(1 )," the basic
commitment procedure subsection requiring a determination beyond a reasonable doubt
that "the person is an SVP." See dissent at 17. But, as explained above, that determination
did not occur in Marcum's case: instead, the trial court found only that he was currently
"civilly committed as a[ n] ... SVP." CP at 13 3. The dissent asserts that this must have
20
InreDet. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
Nevertheless, the dissent treats the 2011 order revoking Marcum's LRA
placement as if it were a final, binding determination of his SVP status. This
approach conflicts with the record. And it is particularly odd since the dissent agrees
that Marcum need not show evidence of change since the last annual review-a
proceeding at which a detainee's SVP status is actually reviewed and determined.
McCuistion, 174 Wash. 2d at 388 (due process and RCW 71.09.070 require annual
review determining whether detainee continues to meet commitment criteria).
Because Marcum's SVP status was not determined in the 2011 LRA
revocation proceeding, his petition for unconditional release-even though based on
evidence of change predating that proceeding-was not a prohibited collateral
attack.
V. Applying RCW 71.09.090(4)(a) in the Way That Marcum Advocates Is
the Only Way To Avoid Absurd Results and Constitutional Concerns
For the reasons given above, I do not entirely agree with Marcum's
interpretation of RCW 71.09.090(4)(a). His "apples and apples" theory does not
been a full adjudication of Marcum' s SVP status because it would be "absurd" to suggest
that the trial court "would continue to detain an individual who is no longer an SVP."
Dissent at 18. I respectfully disagree where, as here, the stipulating party expressly
preserves the issue of unconditional release. See supra p. 3 (citing CP at 132). The dissent
effectively holds that when the Department seeks to revoke an LRA placement, the
responding party must immediately either litigate their current SVP status or forever waive
the right to do so. I see no support for such a rule in chapter 71.09 RCW.
21
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
account for the fact that RCW 71.09.090(4)(b) makes the exact same kind of
"change" a prerequisite to trials on both LRA reinstatement and unconditional
release. Nevertheless, the outcome that Marcum seeks in this case-an application
of the statute that allows him a release trial based on evidence of change occurring
before his LRA revocation proceeding-makes sense. It does not conflict with any
of the statute's plain terms, it does not result in any absurdity, and it does not raise
due process concerns. Thus, it is the best available approximation of our
legislature's intent.
I therefore agree with the majority that Marcum is entitled to a hearing on
unconditional release. I would go further, however, and also hold that under RCW
71. 09. 090( 4 )(a), any petitioner is entitled to a full evidentiary hearing on
unconditional release if he presents evidence of "change"-as defined in RCW
71.09.090(4)(b)-since the last proceeding at which his SVP status was actually
adjudicated and determined.
CONCLUSION
Ultimately, there is no way to interpret RCW 71.09.090(4)'s plain terms that
does not result in some absurdity. Faced with a choice between imperfect
interpretations, we must choose the one that does not raise due process concerns.
This is consistent with the rule that ambiguous civil commitment statutes must be
22
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
construed in favor of liberty and with the canon of constitutional avoidance.
Hawkins, 169 Wash. 2d at 801; Utter, 182 Wash. 2d at 434-35.
The State's and the dissent's interpretations of RCW 71.09.090( 4)(a) pose
serious constitutional problems. The only way to avoid these problems is to apply
that ambiguous statute in the manner that Marcum advocates: to permit him to
petition for unconditional release on the basis of change that occurred before his
LRA revocation. I therefore concur in the majority's decision to reverse the Court
of Appeals and remand for a full hearing on unconditional release.
23
In re Det. of Marcum (John), No. 92501-1
(Gordon McCloud, J., concurring)
~j,
(I
24
In re Det. ofMarcum, No. 92501-1
(Yu, J., dissenting)
No. 92501-1
YU, J. (dissenting)-When a sexually violent predator (SVP) petitions for
unconditional release without the State's authorization, the person is entitled to a
full evidentiary hearing "only when evidence exists, since the person's last
commitment trial, or less restrictive alternative revocation proceeding, of a
substantial change in the person's physical or mental condition such that" the
person is no longer an SVP. RCW 71.09.090(4)(a). Our legislature has indicated
that a qualifying change in the person's mental condition must have been "brought
about through positive response to continuing participation in treatment." RCW
71.09.090(4)(b )(ii).
Nevertheless, the majority concludes that a full hearing is required in this
case because the State allegedly failed to meet one half of its two-part prima facie
burden. While the majority's reading of the statutory language is correct, the
inquiry does not end there. In fact, RCW 71.09.090 contains additional safeguards
to protect against the very result the majority now embraces: that a petitioner
In re Det. of Marcum, No. 92501-1
(Yu, J., dissenting)
seeking unconditional release may receive a full evidentiary hearing on that issue
based solely on the fact that they may qualify for conditional release. By resting
on an isolated section of the statute, the majority disregards the rest of the statute in
favor of a swift resolution. For these reasons, I respectfully dissent.
FACTUAL AND PROCEDURAL HISTORY
Between 1989 and 1994, petitioner John H. Marcum was convicted of
several sexually violent offenses against young boys, including one count of
indecent liberties against a child, two counts of first degree child molestation, and
one count of second degree child molestation. Marcum has admitted to sexually
assaulting 21 boys between the ages of 5 and 13. Marcum has also admitted that
he "preferred young boys for sexual partners, dated women to gain access to their
children, groomed victims and their family members and chose the child who was
an 'outcast' and the 'lowest in the family pecking order."' Clerk's Papers (CP) at
16. Marcum has been diagnosed with pedophilia and a mixed personality disorder,
mental abnormalities that make him likely to engage in predatory acts of sexual
violence against young boys.
Prior to Marcum's scheduled release from prison in January 2000, the
Department of Corrections asked Dr. Carla Van Dam to conduct a psychological
evaluation of Marcum for possible civil commitment as an SVP. Dr. Van Dam
concluded that Marcum met the criteria for involuntary treatment and was likely to
2
In re Det. of Marcum, No. 92501-1
(Yu, J., dissenting)
commit future predatory acts of sexual violence if not confined to a secure facility.
The State then petitioned to commit Marcum as an SVP to the custody of the
Department of Social and Health Services in a secure facility. Marcum stipulated
to commitment and began sex offender treatment in total confinement at the
Special Commitment Center (SCC).
Marcum's "success in treatment [was] tempered by his on-going passive-
aggressive tendencies, his apparent pride in what he refers to as his 'Walla Walla
glare' used to intimidate others, and his own acknowledgement that he is 'a great
manipulator."' Id. at 112. However, he did progress to the point that, in 2009, the
SCC recommended that Marcum be transitioned to a less restrictive alternative
(LRA) placement at the Pierce County Secure Community Transition Facility
(SCTF). As a condition of his LRA placement and in accordance with RCW
71.09.092, Marcum was ordered (and agreed) to engage in sexual deviancy
treatment with Dr. Vincent Gollogly and to comply with Dr. Gollogly's treatment
plan. Id. at 85, 88-89. Marcum violated this condition.
When Marcum first entered the SCTF, he anticipated a "relatively quick
transition," planning to get a job within about six months and to be released within
a year or two. Id. at 52. However, Marcum "had not anticipated the nature and
extent of difficulties that he would encounter at the SCTF ," which quickly led him
to "become impatient, with low morale and low motivation." Id. at 43. Marcum
3
In re Det. o.f Marcum, No. 92501-1
(Yu, J., dissenting)
found that the lack of structure at the SCTF made it difficult to "keep himself
busy" and reverted to behaviors "that reflected his maladaptive life cycle, such as
isolating, not speaking his mind, or poor hygiene." Id. Although staff
recommended positive activities that Marcum could engage in, "he was handling
stressors by driving others away and isolating." Id. at 48.
The majority brushes aside Marcum's deteriorating behavior as
"not ... directly related to sexual offending." Majority at 2. To the contrary, Dr.
Gollogly noted that Marcum's "loneliness and feelings of rejection were
significant risk factors during his offending," CP at 65, and Marcum's behavior at
the SCTF was consistent with the first three steps of his "sexual assault cycle":
becoming depressed, isolating himself, and refusing to open up to new people, id.
at 97.
Marcum also refused work opportunities at the SCTF because he felt the pay
was too low and the deductions for the cost of his care were too high. Id. at 50.
Because Marcum did not take advantage of available work opportunities, he ran
out of money and started borrowing or trading cigarettes with other SCTF
residents, even after repeated warnings that this was against the rules. Id. at 123.
Marcum's problems at the SCTF increased over time, to the point where he
"could not progress in treatment due to a poor attitude, frustration, and irritability
regarding his transitional programming." Id. at 43. Marcum received several
4
In re Det. of Marcum, No. 92501-1
(Yu, J., dissenting)
warnings regarding his lack of motivation and minimal cooperation with treatment,
and was specifically "warned that if he did not apply himself and improve his
situation, the Senior Clinical Team would be unable to consider him for a step
down LRA and recommend that he be returned to the main SCC facility for
minimal cooperation with supervision and treatment expectations." Id. at 122.
However, he failed to make further progress and when asked to reflect on his poor
transitioning, Marcum blamed the SCTF program. Id. at 123.
Approximately two years into Marcum's placement at the SCTF, Dr.
Gollogly terminated Marcum's treatment, stating, "At this time, I do not believe I
can help him any further, due to his attitude, frustration and irritability regarding
his transitional programming at the SCTF." Id. The order for Marcum's LRA
placement explicitly provided that if Dr. Gollogly terminated Marcum's treatment,
Marcum would "immediately be apprehended and taken into custody until such
time as a hearing can be scheduled to determine ... whether [Marcum's LRA]
should be revoked." Id. at 93. Accordingly, Marcum was returned to total
confinement and, in March 2011, the State moved to revoke Marcum's LRA.
In response, Marcum stated that he "wishe[ d] to be revoked from this current
[LRA] placement." Id. at 131 (boldface omitted). His attorney certified that he
had spoken with Marcum about "potential alternatives to revocation" pursuant to
RCW 71.09.098, which allows for either revocation or modification ofLRA
5
In re Det. of Marcum, No. 92501-1
(Yu, J., dissenting)
placements. Id. at 130. Marcum's attorney explored the possibility of alternative
treatment providers or a different placement, but did not find any. Id. at 130-31.
In May 2011, the court accepted Marcum's stipulation, revoked Marcum's LRA
placement, and ordered that he remain in total confinement at the SCC. Id. at 135.
Marcum did not participate in any further sex offender treatment at the SCC
because he refused to be placed in "phase 2 of the program." Id. at 55.
At his annual review in May 2012, Marcum stipulated to his continuing
commitment at the SCC and the court made an express finding that his "condition
remains such that he continues to meet the statutory definition of a sexually violent
predator." Id. at 14. As required by RCW 71.09.090(2)(a), the order continuing
Marcum's commitment did "not prevent him from obtaining such evidence [of a
qualifying change in his condition] in the future or from petitioning the court, at
any time, for conditional or unconditional release." Id. at 14.
For Marcum's next annual review in May 2013, Dr. Regina Harrington
submitted a report. Dr. Harrington noted that "there was no apparent indication of
a deterioration in [Marcum' s] sexual regulation, though there has been no
corroborating data regarding this assertion" because he had refused to participate in
sex offender treatment. Id. at 17. Marcum reported to Dr. Harrington that while he
had "some hopefulness about possible release ... he cannot really imagine living
freely in the community." Id. at 22. Dr. Harrington ultimately concluded that
6
In re Det. ofMarcum, No. 92501-1
(Yu, J., dissenting)
Marcum continued to meet the statutory definition of an SVP, but had "reached
maximum benefit from inpatient treatment" and would likely benefit from a
conditional release to an LRA. Id. at 23. For whatever reasons, unknown to us,
Marcum did not seek conditional release to an LRA.
Rather, Marcum then petitioned for unconditional release, supported by an
expert evaluation by Dr. Paul Spizman, who opined that Marcum no longer met the
definition of an SVP. Id. at 74. Dr. Spizman's report stated that Marcum would be
interested in attending sex offender treatment if he were unconditionally released,
but acknowledged that Marcum had not engaged in any sex offender treatment
since his LRA had been revoked. Id. at 44. While Marcum outlined a plan for
unconditional release, including where he would live and how he would cope with
future challenges, he did not in any way indicate that he was seeking or would be
willing to enter any kind of LRA placement.
The trial court found that Marcum "has not engaged in treatment for over
two years," and therefore concluded that Marcum had not established probable
cause to believe that
[h]is mental condition has so changed through positive response to
continuing participation in treatment such that he no longer meets the
definition of a sexually violent predator; or release to a less restrictive
alternative is in his best interest, and conditions can be imposed that
would adequately protect the community.
7
In re Det. of Marcum, No. 92501-1
(Yu, J., dissenting)
Id. at 76-77. The court thus ordered Marcum's continuing commitment at the
sec.
Marcum appealed, arguing that the change in his mental condition should be
measured from the time of his original commitment, not from the time of his LRA
revocation. The Court of Appeals affirmed in a split, published opinion. In re Det.
of Marcum, 190 Wash. App. 599, 606, 360 P.3d 888 (2015). We granted Marcum's
petition for review. In re Det. of Marcum, 185 Wash. 2d 1010, 367 P.3d 1083 (2016).
STANDARD OF REVIEW
We review questions of statutory interpretation de novo. In re Det. of
Martin, 163 Wash. 2d 501,506, 182 P.3d 951 (2008). We look to the plain language
and if it is unambiguous, our inquiry ends. State v. Evans, 177 Wash. 2d 186, 192,
298 P.3d 724 (2013). Our chief purpose in statutory interpretation is "to determine
and give effect to the intent of the legislature." 1 State v. Sweany, 174 Wash. 2d 909,
914,281 P.3d 305 (2012).
The primary intent behind the statutes governing SVPs, chapter 71.09 RCW,
is to ensure public safety. In re Pers. Restraint of Young, 122 Wash. 2d 1, 10, 857
P.2d 989 (1993). To effect this purpose, an SVP who petitions for unconditional
1
Contrary to Marcum's assertion, while the SVP statutes are subject to strict
interpretation, we have never applied the rule of lenity, a rule of construction applicable in some
criminal cases, to chapter 71.09 RCW, a civil commitment scheme. See Pet. for Review at 6
(citing In re Det. of Hawkins, 169 Wash. 2d 796,801,238 P.3d 1175 (2010)).
8
In re Det. of Marcum, No. 92501-1
(Yu, J., dissenting)
release without the State's authorization has a threshold burden of establishing
probable cause to believe that the person is no longer an SVP. RCW
71.09.090(2)(a)(i). "A trial court's determination as to whether evidence.
establishes probable cause is subject to de novo review." State v. McCuistion, 174
Wash. 2d 369,382,275 P.3d 1092 (2012).
ANALYSIS
At the outset, it must be noted that the majority resolves this case in a
manner that neither party requested or briefed, and that the Court of Appeals did
not address, a point the majority readily acknowledges. Majority at 1 n.1. We
should resolve this case on the question posed to us by the parties and so clearly
articulated by the Court of Appeals: When an SVP petitions for an evidentiary trial
for release, from what benchmark must a trial judge consider whether the SVP has
demonstrated improvement due to treatment? Is it measured from the date of the
SVP's original commitment trial or from the more recent date of an LRA
revocation proceeding?
We have been asked to decide whether Marcum is entitled to an
unconditional release trial even though he refused to participate in sex offender
treatment after his LRA was revoked and the State's expert concluded on annual
review that Marcum remained an SVP. By statute, where an SVP petitions for
unconditional release without the State's authorization, the person must establish
9
In re Det. of Marcum, No. 92501-1
(Yu, J., dissenting)
probable cause to believe that due to continuing participation in treatment, the
person's mental condition has changed "since the person's last commitment trial,
or less restrictive alternative revocation proceeding." RCW 71.09.090( 4)(a). As a
matter of law, an SVP cannot meet this burden ifhe or she has admittedly refused
to participate in treatment since being returned to total confinement after an LRA
revocation. This result is consistent with the statute's plain language and the
legislature's intent, and is neither absurd nor unconstitutional. I would therefore
affirm that Marcum did not establish probable cause and was not entitled to an
unconditional release trial.
A. STATUTORY FRAMEWORK
An SVP is a person who has been "convicted of or charged with a crime of
sexual violence" and who suffers from "a mental abnormality or personality
disorder which makes the person likely to engage in predatory acts of sexual
violence if not confined in a secure facility." RCW 71.09.020(18). After a person
is initially found to be an SVP, the State performs annual reviews to determine
whether the person continues to be an SVP, as required to satisfy "[s]ubstantive
due process." McCuistion, 174 Wash. 2d at 385 (citing Jones v. United States, 463
U.S. 354,368, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983)); see also RCW
71.09.070(1). If the State determines at its annual review that the person's
condition has so changed that he or she is no longer an SVP, then it must authorize
10
In re Det. of Marcum, No. 92501-1
(Yu, J., dissenting)
the person to petition for unconditional release and the court must set a full
hearing. RCW 71.09.090(1).
If the State does not authorize a petition for unconditional release, the SVP
still has a statutory right to file such a petition. RCW 71.09.090(2)(a). Before
ordering a full evidentiary hearing, however, the court must determine that there is
probable cause to believe unconditional release is justified because the person is no
longer an SVP. RCW 71.09.090(2)(a). Probable cause is established if the State
fails to produce evidence that the person remains an SVP, or if the person produces
evidence that, if believed, would be sufficient to prove he or she is no longer an
SVP. McCuistion, 174 Wash. 2d at 380.
However, the initial determination of SVP status need not be relitigated each
time an SVP petitions for unconditional release. Rather, the initial determination
that a person is an SVP is treated as a "verity," and suitability for unconditional
release "necessarily requires a showing of change." Id. at 385. Where a person
alleges a change in his or her mental (as opposed to physiological) condition, the
legislature has specified that the change must have been "brought about through
positive response to continuing participation in treatment." RCW
71.09.090(4)(b)(ii). This change must have occurred "since the person's last
commitment trial, or [LRA] revocation proceeding." RCW 71.09.090(4)(a).
11
In re Det. of Marcum, No. 92501-1
(Yu, J., dissenting)
The majority holds that in every petition, the State must first make a prima
facie showing both that the petitioner continues to meet the definition of an SVP
and that conditional release to an LRA is not appropriate. Majority at 7. The
majority is correct in its reading ofRCW 71.09.090(2)(b), and the State does not
dispute that it carries a two-part prima facie burden. Suppl. Br. of Resp't State of
Wash. at 5. Nevertheless, the inquiry does not end there.
The purpose of the show cause hearing is to provide the court with an
opportunity "to determine whether probable cause exists to warrant a hearing on
whether the person's condition has so changed" as it relates either to the person's
status as an SVP or to whether conditional release to an LRA would be
appropriate. RCW 7I.09.090(2)(a). If the court finds probable cause as to one or
both of these issues-either because the State failed to meet its prima facie burden
or because the petitioner presented sufficient evidence of probable cause-the
court "shall set a hearing on either or both issues." RCW 71.09.090(2)(c).
However, "[t]he court may not find probable cause for a trial addressing less
restrictive alternatives unless a proposed less restrictive alternative placement
meeting the conditions ofRCW 71.09.092 is presented to the court at the show
cause hearing." RCW 7I.09.090(2)(d).
The record reveals that no such proposed LRA placement was before the
court at the show cause hearing. Thus, the court could not find probable cause for
12
In re Det. of Marcum, No. 92501-1
(Yu, J., dissenting)
a trial addressing LRAs even if the State failed to meet this part of its prima facie
burden. 2 Instead, the court could order a trial only on the issue of whether Marcum
continued to meet the definition of an SVP. Because the State clearly met its
prima facie burden on this point, Marcum was required to present evidence of
probable cause that his condition had so changed that he no longer met the
definition of an SVP. The issue before the trial court was whether Marcum had
met this burden. As it happens, this is the issue briefed and argued by the parties
and properly before this court.
It is undisputed that Marcum refused to participate in any sex offender
treatment after his LRA was revoked. Without any participation in treatment, an
SVP certainly cannot demonstrate a change "brought about through positive
response to continuing participation in treatment." 3 RCW 71.09.090( 4)(b )(ii)
(emphasis added); see also McCuistion, 174 Wash. 2d at 390. However, Marcum
contends that this does not matter because the trial court should have used
2
The majority seemingly agrees, noting that the issue at trial shall be to "determine
whether Marcum is entitled to unconditional release (as he asserts)." Majority at 9 n.7. Yet this
trial for unconditional release stems entirely from the fact that Marcum may qualify for
conditional release to an LRA. Under the majority's reasoning, a petitioner may force the State
to relitigate the question of unconditional release over and over again, even when the court does
not find probable cause to believe that the petitioner qualifies for unconditional release.
3
We therefore need not address Marcum's argument that the Court of Appeals
improperly weighed the evidence on appeal. Dr. Spizman's report, even if believed, would not
be sufficient to show that Marcum's mental condition changed since his LRA revocation due to
continuing participation in treatment. See McCuistion, 174 Wash. 2d at 382.
13
In re Det. o.f Marcum, No. 92501~1
(Yu, J., dissenting)
Marcum's 2001 commitment trial as a reference point for measuring change, rather
than his 2011 LRA revocation.
B. PROOF OF CHANGE WAS CORRECTLY MEASURED SINCE MARCUM' S LAST LRA
REVOCATION PROCEEDING
Marcum contends that the date from which the court must measure change
depends on the nature of the relief he seeks. He argues that a person seeking an
LRA placement must show change since the last LRA revocation, while a person
seeking unconditional release may meet his or her burden by showing change since
the initial commitment. The State, meanwhile, contends that change must be
measured from the most recent commitment proceeding or LRA revocation,
whichever is later. This court should agree with the State's interpretation because
it is supported by the statute's plain language and legislative history, and does not
lead to absurd or unconstitutional results.
1. Plain language
RCW 71.09.090(4)(a) provides, in its entirety:
Probable cause exists to believe that a person's condition has "so
changed," under subsection (2) of this section, only when evidence
exists, since the person's last commitment trial, or less restrictive
alternative revocation proceeding, of a substantial change in the
person's physical or mental condition such that the person either no
longer meets the definition of a sexually violent predator or that a
conditional release to a less restrictive alternative is in the person's
best interest and conditions can be imposed to adequately protect the
community.
14
In re Det. of Marcum, No. 92501-1
(Yu, J., dissenting)
(Emphasis added.) The State's interpretation of the statute is clearly supported by
this plain language, which specifically refers to the "last" proceeding and includes
both commitment trials and LRA revocations as possible reference points.
Marcum, meanwhile, points to RCW 71.09.090(4)(b), which refers to "change"
since the SVP's "last commitment trial proceeding," and contends that this
language supersedes RCW 71.09.090(4)(a), precluding the trial court from using
Marcum' s LRA revocation as a reference point.
A plain language inquiry does require us to consider the statutory language
in context, but RCW 71.09.090(4)(a) and (4)(b) address different aspects of the
probable cause standard. RCW 71.09.090(4)(a) defines the probable cause
standard. RCW 71. 09. 090( 4 )(b) limits, rather than expands, the circumstances
under which an individual can demonstrate probable cause by requiring that the
evidence come from a "licensed professional" and that the evidence show either a
permanent "identified physiological change" or a change in "mental condition
brought about through positive response to continuing participation in treatment."
Marcum's reading does not account for this statutory structure. 4
Marcum also contends that even though nothing in the statutory language
says so, we must interpret the statute as requiring courts to determine the
appropriate reference point depending on the type of relief requested because LRA
4
It also does not account for the legislative history, discussed further below.
15
In re Det. ofMarcum, No. 92501-1
(Yu, J., dissenting)
revocation '"involves a separate inquiry and a different showing"' than that
required for initial civil commitment. Pet'r's Suppl. Br. at 10 (quoting In re Det. of
Bergen, 146 Wash. App. 515,530, 195 P.3d 529 (2008)). This argument ignores the
context in which LRA revocations are conducted, and Marcum has not shown that
we must adopt his interpretation in order to avoid absurd results.
A person's SVP status, which requires that the "person must be both
mentally ill and dangerous," is the source of the State's authority to civilly commit
the person in accordance with chapter 71.09 RCW. Young, 122 Wash. 2d at 27
(footnote omitted). LRA placement is less restrictive than total confinement, but it
is still a form of civil commitment. RCW 71.09 .020(16). Thus, LRA placement is
allowed only for individuals who are SVPs but can be conditionally released to a
less restrictive setting while serving the person's best interests and adequately
protecting the community. RCW 71.09.090(3)(d). Similarly, LRA revocation is
allowed only for individuals who remain SVPs and whose LRA placement
conditions did not adequately advance their treatment or protect the public. RCW
71.09.098(5), (6), (8).
By stipulating to his LRA revocation and return to total confinement,
Marcum necessarily stipulated that he remained an SVP subject to civil
commitment as of that time. CP at 133. The trial court understood this, noting that
the LRA revocation hearing "was the last point in time where the Court had an
16
In re Det. of Marcum, No. 92501-1
(Yu, J., dissenting)
opportunity to evaluate [Marcum's] mental condition and his engagement in
treatment." Verbatim Report of Proceedings (Nov. 22, 2013) at 25. Ignoring this
and measuring Marcum's change from his initial commitment proceeding would
run contrary to the statutory structure and our own precedent. See McCuistion, 17 4
Wash. 2d at 3 85 (noting that the court should avoid "an endless cycle of review and
rereview").
The concurrence disagrees, suggesting that Marcum' s stipulation to revoke
his LRA "did not result in any finding or conclusion that Marcum continued to
meet the definition of an SVP." Concurrence at 3; see id. at 20. At the revocation
hearing, the court found that Marcum "is involuntarily civilly committed as a
sexual violent predator (SVP), as that term is defined in RCW 71.09.020(18)." CP
at 133. This finding did more than simply note J\1arcum's commitment status, as
the concurrence suggests; it reaffirmed that Marcum continued to meet the
definition of an SVP, which is "a prerequisite to civil commitment as a sex
offender." Concurrence at 3-4.
The concurrence argues that the trial court need not inquire into the SVP
status of an individual at an LRA revocation hearing. Concurrence at 20 n.12. But
the statute detailing the revocation process contradicts this argument. An
individual whose conditional release has been revoked must be remanded to total
confinement as designated in RCW 71.09.060(1). RCW 71.09.098(8). The court
17
In re Det. of Marcum, No. 92501-1
(Yu, J., dissenting)
had no authority to order that Marcum "remain confined at the Special
Commitment Center (SCC) on McNeil Island for care, control and treatment," CP
at 13 5, unless it first found that Marcum continued to meet the definition of an
SVP. The suggestion that the trial court would continue to detain an individual
who is no longer an SVP is absurd and not supported by the record. Marcum never
challenged whether he was still an SVP at the time of his 2011 self-imposed
revocation and did not raise this issue on appeal. Rather, the concurrence invents
the question in order reach its desired result.
Moreover, while Marcum contends that the issue of his LRA violations was
unrelated to the issue of whether he remained an SVP, this argument overlooks the
purpose of LRA placement conditions and the specific nature ofMarcum's
violations. All LRA placements necessarily come with both statutory and court-
ordered conditions "to ensure compliance with treatment and to protect the
community" from the danger that the person still poses as an SVP. RCW
71.09.096(2). The conditions Marcum violated here (treatment with a certified sex
offender treatment provider and compliance with the provider's treatment plan)
were statutorily required and explicitly included in the order releasing him to the
SCTF. CP at 88-89; RCW 71.09.092(1), (2), (4).
Thus, Marcum's violations were directly related to his continued SVP status,
even though they did not come in the form of sexually reoffending. Marcum failed
18
In re Det. o,f Marcum, No. 92501-1
(Yu, J., dissenting)
to comply with the treatment deemed necessary by both the court and the
legislature to ensure that he would not reoffend if he were someday released into
the community with regular access to his preferred victims. 5 Using Marcum's
LRA revocation as the reference point for assessing probable cause is therefore not
absurd at all. It simply recognizes that in 2011, Marcum was an SVP who was not
able to comply with the steps necessary to advance his treatment and protect the
public, and requires him to show change due to continuing participation in
treatment since that time.
Marcum also argues that the State's interpretation must be rejected because
it could allow the State to unconstitutionally keep a person in total confinement,
even if the person is no longer an SVP. 6 This argument ignores the difference
between the minimal requirements to satisfy substantive due process and the extra
protections that the legislature has chosen to grant by statute. "Substantive due
process requires only that the State conduct periodic review of the patient's
5
It is also worth noting that even when the State proves that an SVP violated an LRA
placement condition, the LRA placement is not automatically revoked. Rather, the court must
consider whether the placement should be revoked or whether its conditions can be modified
depending on the person's condition and history, the nature of the violation, and the potential
danger to the public. RCW 71.09.098(6)-(7). Even though Marcum stipulated to revoking his
LRA, his counsel's declaration clearly states that he looked into possible modifications of the
LRA conditions and did not find any that would be suitable. CP at 130-31.
6
Notably, Marcum's interpretation may raise a constitutional issue of its own by ignoring
the fact that a person whose LRA has been revoked remains an SVP. This could implicitly
authorize the State to revoke a person's LRA and return the person to total confinement, even if
the person is no longer an SVP.
19
In re Det. of Marcum, No. 92501-1
(Yu, J., dissenting)
suitability for release." McCuistion, 174 Wash. 2d at 385. This requirement is met
by the annual review process. Id. at 385-86. Meanwhile, "[a] committed person's
statutory right to show his condition has 'so changed' provides additional
safeguards that go beyond the requirements of substantive due process." Id. at 385
(emphasis added). The State does not act unconstitutionally by declining to
provide more robust statutory rights than due process requires.
The State's interpretation is thus supported by the plain language of the
relevant statutes, while Marcum's is not, and Marcum has not shown that the
State's interpretation leads to absurd or unconstitutional results.
2. Legislative history
Importantly, any possible confusion caused by the different language in
RCW 71.09.090(4)(a) and (4)(b) can be resolved by considering legislative history,
which clearly indicates that Marcum's interpretation is not what the legislature
intended. As the more recently amended subsection addressing the specific issue
presented here, RCW 71. 09. 090( 4)(a) must control, and it plainly provides that the
appropriate reference point is the most recent commitment trial or LRA revocation,
whichever is later.
The language Marcum relies on from RCW 71.09.090(4)(b) was amended in
2005, in response to In re Detention of Young, 120 Wash. App. 753, 86 P.3d 810
(2004 ), which concerned the nature, rather than the timing, of change that must be
20
In re Det. ofMarcum, No. 92501-1
(Yu, J., dissenting)
shown to establish probable cause. In 2002, Young sought release at his annual
show cause hearing on the basis that he was 61 years old and was statistically
unlikely to reoffend. Id. at 755-56. Young relied on actuarial studies linking age
to recidivism and showing that SVPs over the age of 60 posed almost no risk of
reoffending. Id. at 760-61. At that time, the statute did not define what sorts of
changes were required under the probable cause standard. Id. at 757. As a result,
the Court of Appeals held that the actuarial studies sufficed to show probable cause
that Young had so changed as a result of his age that a new commitment trial was
warranted. Id. at 763. In response to Young, the legislature amended RCW
71.09 .090(4 )(b) to require "current evidence from a licensed professional" of
"change in the person's mental condition brought about through positive response
to continuing participation in treatment." RCW 71.09.090(4)(b)(ii); see FINALB.
REP. ON S.B. 5582, 59th Leg., Reg. Sess. (Wash. 2005).
Meanwhile, the relevant language in RCW 71.09.090(4)(a) was revised
more recently, in 2009, and specifically addresses the appropriate time from which
to measure change by adding LRA revocation proceedings as a possible reference
point. LAWS OF 2009, ch. 409, § 8(2)(d). This amendment came shortly after In re
Detention of Jones, 149 Wash. App. 16,201 P.3d 1066 (2009), which Marcum relies
on to support his argument. Jones, a committed SVP, petitioned for conditional
release to a second LRA after having his first LRA revoked. Id. at 21. Jones relied
21
In re Det. of Marcum, No. 92501-1
(Yu, J., dissenting)
on a report espousing the progress he had made through treatment since his initial
commitment trial. Id. at 30. At that time, RCW 71.09.090(4)(a) measured a
person's change in condition from only the last commitment trial proceeding. Id.
The State argued that the term '"commitment trial proceeding"' included the
petitioner's LRA revocation proceeding, but the Court of Appeals rejected the
State's "broad construction" of the statute. Id. Although Jones is not discussed in
the final bill report for the 2009 amendments, the statute's added language
contrasted against the court's opinion in Jones cannot be ignored. FINALE. REP.
ON SUBSTITUTE S.B. 5718, 61st Leg., Reg. Sess. (Wash. 2009); compare Jones, 149
Wash. App. at 30 ("[A]n LRA revocation hearing cannot be considered a
'commitment trial proceeding."'), with RCW 71.09.090( 4)(a) ("Probable cause
exists to believe that a person's condition has 'so changed' ... when evidence
exists, since the person's last commitment trial, or less restrictive alternative
revocation proceeding, of a substantial change .... ").
I agree with the Court of Appeals that RCW 71.09.090(4)(a) now "directs
the trial court.to measure 'change' from the last time it had to assess the person's
condition-whether at a commitment hearing or a subsequent LRA revocation."
Marcum, 190 Wash. App. at 603. The alternative holding Marcum advocates would
elevate the earlier, less specifically applicable language in RCW 71.09.090(4)(b)
above the more recent, more specifically applicable language in RCW
22
In re Det. o.f Marcum, No. 92501-1
(Yu, J., dissenting)
71.09.090(4)(a) and result in courts engaging in the same sort of repetitious review
of evidence that existed under Jones, which the legislature rejected.
Therefore, the plain language and legislative history support the conclusions
reached by the trial court and Court of Appeals, which do not lead to absurd or
unconstitutional results. The trial court at Marcum's LRA revocation proceeding
determined that Marcum continued to meet the statutory definition of an SVP, and
the LRA revocation proceeding was the appropriate reference point from which to
measure change. To obtain a new trial for unconditional release without
collaterally attacking his LRA revocation, Marcum needed to show probable cause
that his condition had so changed due to continuing participation in treatment since
the LRA revocation hearing that he no longer met the statutory definition of an
SVP. Marcum did not make this showing as a matter of law.
CONCLUSION
The majority embarks on a surprising analytical expedition, deftly avoiding
the issues briefed by the parties so that it may resolve this case without delving too
far into the SVP statutory provisions. Nevertheless, general disdain for civil
commitments is no reason to disregard the legislature's intent. By reading RCW
71.09.090(2)(c) in isolation, the court does remarkable damage to the rest of the
statute-and to the parties as well. Either the State is burdened with perpetual
23
In re Det. ofMarcum, No. 92501-1
(Yu, J., dissenting)
relitigation of settled issues, or Marcum is burdened with an LRA he never
requested.
There is no doubt that Marcum made progress through treatment since his
initial commitment. However, Marcum continued to meet the definition of an SVP
when his LRA was revoked for violations of its conditions. Because Marcum
petitioned for unconditional release, probable cause required evidence that
.Marcum' s condition had so changed since his LRA revocation due to continuing
participation in treatment that he no longer fit the statutory definition of an SVP.
The trial court found no such evidence; nevertheless, the majority holds that the
court must order a full trial for unconditional release on the sole basis that Marcum
may qualify for conditional release to an LRA. For all the above reasons, I would
affirm the Court of Appeals and hold that Marcum is not entitled to an evidentiary
trial.
24
In re Det. of Marcum, No. 92501-1
(Yu, J., dissenting)
25