In re the Detention of John H. Marcum , 190 Wash. App. 599 ( 2015 )

FILED
OCTOBER 13, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Detention of: )
) No. 32118-5-III
JOHN H. MARCUM, )
)
Petitioner. ) PUBLISHED OPINION
KORSMO, J. - This sexually violent predator (SVP) proceeding presents a matter
of statutory interpretation-from what benchmark must a trial judge consider whether a
detainee has demonstrated improvement due to treatment in order to obtain an evidentiary
trial for release? We conclude that the legislature has directed trial courts to measure
change from the last proceeding rather than from the original commitment.
FACTS
John Marcum, by stipulation, was committed as a sexually violent predator in
January, 2001. He made progress in treatment at the secure commitment center (SCC) on
McNeil Island until the point in 2008 that the staff recommended he be transferred to less
restrictive alternative (LRA) status. The trial court granted the transfer to LRA status in
early 2009. Mr. Marcum moved to the nearby secure community transition facility
(SCTF) in the hope that he would transition to unconditional release.
No. 32118-5-III
In re Del. ofMarcum
It appeared, however, that Mr. Marcum did not desire that goal. Unimpressed
with the wages offered, he declined to work or even to awaken on a regular morning
schedule. 1 Although he continued with his sexual deviancy treatment, he made no
progress toward transitioning, committed minor rules violations, and blamed the SCTF
for his problems. The institution allowed him two years to try to find his way before
terminating him from the LRA treatment program. The court revoked his LRA status on
March 10,2011, and returned him to his original SCC program. There he declined to
renew his participation in deviancy treatment.
In 2012, he stipulated to his continued SVP status as part of his annual review. He
did, however, obtain his own expert evaluation in anticipation of his next annual review.
His expert ultimately agreed with Mr. Marcum's personal view that he had benefited
significantly from his previous treatment and should be a candidate for release. An
evaluator for the State agreed that he had made progress and was suitable for LRA
placement rather than total confinement.
Marcum petitioned in August 2013 for a trial on whether he continued to meet the
definition of a sexually violent predator. He sought unconditional release rather than
another LRA and admitted that he had not engaged in treatment since the revocation of
the LRA. The trial court denied the request, ruling that Mr. Marcum was not entitled to
,
I He stopped taking medication for depression. I
I
2
!
I
No. 32118-5-III
In re De!. ofMarcum
an evidentiary trial since he had not made any progress after the LRA revocation and was
not then actively participating in treatment.
Mr. Marcum timely appealed to this court.
ANALYSIS
The question presented is whether the trial judge should have measured the
improvement in Mr. Marcum's condition from the time he first entered the SCC or from
the time the court last considered his condition at the time his LRA was revoked. We
conclude that the legislature has specified that this change should be measured from the
last time that the court considered the detainee's condition.
A sexually violent predator is someone "who has been convicted of or charged
I
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 II
not confined in a secure facility." RCW 71.09 .020( 18). Once a person has been I
I,
I
committed as an SVP, the State is required to conduct an annual review to determine i
whether the person remains an SVP. RCW 71.09.070. A person found to be an SVP has I,
I
I
two ways to obtain release from the commitment. One method is for the State to
authorize a detainee to file a petition for either unconditional release or transfer to an I
LRA. RCW 71.09.090(1). The basis for this petition is that the detainee has "so
changed" that he either no longer meets the definition of SVP or that an LRA is in the
best interest of the detainee. Id.
3
I
t
I
[
No. 32118-5-II1
In re Det. ofMarcum
The second method is that the detainee may petition, on the basis that he has "so
changed" that he no longer fits the SVP definition or that an LRA is in his best interest,
for unconditional release or transfer to LRA without the agreement of the State. RCW
71.09.090(2)(a). Under this method, a show cause hearing is held to determine whether
an evidentiary trial shall be held. Id. Using the annual report, the State bears the burden
of establishing by prima facie evidence that the detainee remains an SVP and that transfer
to an LRA is not in the best interest of the detainee and conditions cannot be imposed that
would protect society. RCW 71.09.090(2)(b). If the State fails to meet these burdens, an
evidentiary trial is required. RCW 71.09.090(2)(c)(i).
However, if the State presents a prima facie case, the detainee can still obtain an
evidentiary trial if probable cause exists to believe the detainee is no longer an SVP or
that an LRA is in the detainee's best interest and the public can be adequately protected.
RCW 71.09.090(2)(c)(ii). Whether or not the detainee has "so changed" is defined by
statute:
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
4
No. 32118-5-III
In re Det. o/Marcum
restrictive alternative is in the person's best interest and conditions can be
imposed to adequately protect the community.
RCW 71.09.090(4)(a).2 The underscored language, which presents the primary issue for
this appeal, was added by Laws of 2009, ch. 409, § 8.
This statute 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. The legislature clearly had that view in mind when, in 2005, it included the
"person's last commitment trial" language in the "so changed" probable cause definition.
See Laws of2005, ch. 344, § 2.3 The use of the word "last" conclusively shows that the
court was to solely measure change from the most recent court proceeding.
The 2009 amendment, adding the LRA revocation proceeding as an additional
proceeding from which change is measured, is consistent with the 2005 amendment. A
court is not required to go back to the beginning when there has been a more recent
assessment-whether at a commitment trial or an LRA revocation-from which to
measure the person's progress. In effect, these changes codify a "law of the case" type of
approach to these matters. What a court has decided on one occasion is not subject to
2 The reference to subsection (2) refers to RCW 71.09.090(2), the provision setting
out the procedure for a detainee to petition for unconditional release or transfer to LRA
status.
3 See FINAL B. REp. ON S.B. 5582, at 1, 59 th Leg., Reg. Sess. (Wash. 2005) (noting
that the amendment "requires a showing that, since the person's last commitment
proceeding," there has been a "substantial change" in the offender (emphasis added)).
5
No. 32118-5-111
In re Det. 0/ Marcum
reconsideration at the next hearing absent evidence of intervening change resulting from
treatment.
The Washington Supreme Court reviewed the "change" element when it
considered various aspects of the 2005 amendments to this statute. "Requiring change as
a prerequisite for an evidentiary hearing-a statutory requirement that pre-dated the 2005
amendments-does not offend substantive due process principles." State v. McCuistion,
174 Wn.2d 369,384,275 P.3d 1092 (2012). Once a person has been found to be an SVP,
the legislature can, without offending due process principles, properly require the SVP to
establish that he has changed sufficiently due to treatment to obtain a trial. Id. at 384-85.
His due process rights against undue confinement are satisfied by the requirement that the
State establish his SVP status annually. Id. at 386. The right of an SVP to initiate a trial
is a statutory right, not a constitutionally required one. Id. Accordingly, the legislature
can define what is required to obtain this additional benefit. 4 Id.
The argument that change should be measured from the original commitment
hearing effectively reads the LRA language (and probably the word "last" from the
commitment trial language ) out of the statute in derogation of our duty to give effect to
all language found in legislation. In re Det. o/Stout, 159 Wn.2d 357,367 n.6, 150 P.3d
4"The legislature had every right to alter a scheme that provides protections
beyond what is required by substantive due process to ensure committed persons do not
abuse the system to receive full annual evidentiary hearings every year based solely upon
a change to a single demographic factor." McQuistion, 174 Wash. 2d at 388-89.
6
No. 32118-5-III
In re Del. ofMarcum
86 (2007). This is the case because any LRA revocation is always going to be later in
time to the original (or most recent) commitment trial. The legislature easily could have
tied the LRA and commitment trial language to subsequent proceedings of the same
variety, but did not. Instead, it tied that language to the "so changed" probable cause
definition applicable to both proceedings. As noted earlier, this is entirely consistent with
the 2005 legislative intent requiring change be measured from the most recent hearing
rather than over the entire history of the commitment.
The legislative choice is reasonable and avoids waste of resources. Mr. Marcum's
reading results in a perpetual entitlement to an evidentiary trial every year once sufficient
change to justify the first request has been shown. It also reduces the incentive to
participate in additional training once a detainee has progressed sufficiently to justify a
triaL Perhaps the second or third or fourth jury will find sufficient that which previous
juries rejected.
Mr. Marcum had the chance in 2008 to seek a trial, but opted instead to go with an
LRA rather than release. Having failed at the LRA, he does not now obtain a "do over"
by using the same initial evidence of change to obtain a new commitment trial. He made
his choice then and wisely sought the halfWay step toward release. The unsuccessful
LRA does not demonstrate that Mr. Marcum now is ready for release.
The 2009 amendment did not create an ambiguity or show legislative intent to
alter the obligations of the trial judge. The legislature has expressed quite clearly that an
7
No. 321IS-5-III
In re Det. ofMarcum
SVP who desires to initiate a hearing on the basis that his condition has improved
through treatment must show that he has made significant improvement since the last
time a court formally looked at the case other than at the annual show cause hearing.
That was the intent of the legislature in 2005 and the addition of the LRA language in
2009 did not alter that intent or create an ambiguity. The 2009 amendment simply
recognized that an LRA revocation might be the most recent occasion at which a court
was assessing the detainee and allowed judges to work from that point.
As in many endeavors, change wrought by treatment is incremental. It might not
take much change to push an SVP from one side of the continuum to the other. 5 There is
nothing wrong in directing that a judge measure change from the last time the judge did
so. All the measurements ultimately involve the same end point-whether the detainee
no longer is an SVP due to treatment. RCW 71.09.090(4)(a). This simplifies the judge's
workload and creates an incentive for the SVP to continue with treatment.
This is a classic case of improvement to a point, and then a failure to progress.
Because of that failure to show progress since the LRA was revoked, and the refusal
5 Thus, a detainee's improvement since the original commitment is always going
to be considered in the sense that it helps determine whether or not the detainee remains
an SVP or is ready for an LRA. The trial judge simply does not have to go back to the
beginning and reweigh evidence anew, but merely looks to see what has changed since
the last review, taking the detainee's status at the last review as a given.
I
I
S f
No. 32118-5-II1
In re Det. ofMarcum
thereafter to participate in treatment, the trial court correctly determined that Mr. Marcum
was not entitled to a new commitment trial. There was no error.
Affirmed.
f}(MSfl;o,p
,ICONCUR:
Brown, A.C,J.
9
No. 32118-5-III
FEARfNG, J. (dissenting) - John Marcum's appeal addresses the circumstances
under which one confined as a sexually violent predator may gain a trial on the question
of whether he should be unconditionally released from confinement. We review two
discrete statutory provisions covering those circumstances.
RCW 71.09.090(4)(a) requires one confined as a sexually violent person to show a
substantial change in his mental condition "since the person's last commitment trial, or
less restrictive alternative revocation proceeding" in order to gain an evidentiary trial
toward release from civil commitment. This appeal asks whether John Marcum, a
commitment detainee, is entitled to an evidentiary hearing when he shows change since
his initial commitment but not since revocation of his less restrictive alternative
placement. This question entails a detailed and deft analysis ofRCW 71.09.090 and the
sexually violent predator act as a whole.
RCW 71.09.090(4)(b )(ii) demands that one confined as a sexually violent person
establish a "positive response to continuing participation in treatment" in order to receive
an evidentiary hearing toward release from civil commitment. This appeal also asks
whether John Marcum is entitled to the evidentiary hearing when he engaged in treatment
No. 32118-5-111
In re Det. ofMarcum
for many years, but then refused treatment because he believed he had benefited to the
extent possible by past treatment and an expert confirms that belief.
The State of Washington answers both questions in the negative and seeks to deny
John Marcum an evidentiary hearing on his request for unconditional release. 1 answer
both questions in the affirmative because numerous canons of statutory construction
compel this answer. These principles include reading a statute in harmony with other
provisions of the same act, reviewing a statute's history including amendments, avoiding
unreasonable results in the application of the statute, and eluding unconstitutional
consequences following from the statute. The State's reading ofRCW 71.09.090(4)
could impound a cured sexually violent predator for the remainder of his life, an
unconstitutional and unreasonable outcome. The predator's dreadful acts may merit a
lifetime of confinement, but the law justifiably restrains us from exacting continuous
retribution.
1 conclude that the court measures the detainee's change in condition from the last
restrictive alternative placement revocation only when the detainee again seeks an
alternative placement. The court should measure change from the last commitment trial
if the detainee seeks unconditional release. 1 conclude that the detainee need not show
continuing participation in treatment through the date of his release hearing as long as he
shows a positive response to earlier continuing treatment. These conclusions are the only
reasonable and constitutional readings ofRCW 71.09.090(4). 1 would grant John
2
No. 32118-5-111
In re Det. ofMarcum
Marcum a trial on the question of whether he should remain confined and remand to the
superior court for such a trial.
The highest of governmental values-public safety and individualliberty-clash
in the setting of Washington's sexually violent predator statutes. On the one hand, the
State wishes to prevent rapes, child molestations, and other horrific and violent acts. No
State official wishes the release to the public of one convicted of sexual violence with the
result that the released detainee terrorizes, assaults, and permanently harms yet another
victim. On the other hand, America is the land of the free, and prized constitutional
protections of liberty demand that one unlikely to commit a violent sexual crime not be
confined by the government. No state official wishes to encage an individual
independent of his or her past history beyond the time demanded by his or her crimes and
the time needed to treat the individual for violent predilections.
FACTS
The facts in a sexually violent predator confinement case typically begin with the
detainee's unearthly criminal history. John Marcum is now fifty years old. In 1988, John
Marcum took indecent liberties with one young boy and molested another. In 1993 and
1994, Marcum molested a third young boy. Marcum was in his twenties when he
committed the three crimes. Marcum later admitted to sexual contact with eighteen other
underage victims.
Psychologists diagnosed John Marcum with pedophilia, personality disorder with
3
No. 32118-5-III
In re Det. ofMarcum
narcissistic and passive aggressive traits, and alcohol abuse and dependence. Pedophilia
is a sexual attraction to and preference for children. A personality disorder is a pervasive
and inflexible pattern of interacting with the world that causes impairment in a social or
occupational setting. A personality disorder leads to one persistently hurting others or
oneself. Narcissism entails a limited outlook or concern for one's own activities or
needs. Passive aggressive behavior involves expression of negative feelings, resentment,
and aggression in an unassertive passive way, as through procrastination and
stubbornness.
In January 2001, John Marcum stipulated, under chapter 71.09 RCW, to civil
commitment as a sexually violent predator. The Department of Social and Health
Services (DSHS) detained John Marcum at its Secure Commitment Center (SCC)
complex on South Puget Sound's McNeil Island, where Marcum engaged in sexual
deviancy treatment.
While confined to SCC's total confinement facility, John Marcum unfailingly
participated in treatment. Annual reviews for 2002 to 2008 described Marcum as
progressing in managing his sexual deviancy. On July 14,2008, the SCC's senior
clinical team recommended that Marcum be transferred to a less restrictive alternative at
the Pierce County Secure Community Transition Facility (SCTF) also within the McNeil
Island SCC complex. "Transition" refers to the goal oftransitioning to unconditional
release. On January 30, 2009, the trial court reassigned Marcum to the SCTF.
4
No. 32118-5-III
In re Det. ofMarcum
John Marcum floundered during his SCTF placement. Marcum's community
transition team instructed him to rise at a reasonable hour in the morning, exercise, and
work at the facility. Marcum refused. He rejected work at the SCTF because the facility
paid a wage less than minimum wage and the facility would deduct a portion of the
wages for the cost of his care. Residents of the SCC only receive $1 to $3 per hour for
work performed while in the sexual deviancy program.
While confined in the SCTF, John Marcum, after expending his savings, traded
stamps for cigarettes in violation of facility rules. In a thinking exercise report, Marcum
faulted the SCTF for his poor transitioning to a less restrictive facility. Marcum's
behavioral problems stemmed from failure to take antidepressant medications.
On February 13,2011 and as a result of John Marcum's intransigence, SCTF's Dr.
Vincent Gollogly terminated Marcum's sexual deviancy treatment. Gollogly wrote: "I do
not believe I can help him any further, due to his attitude, frustration and irritability
regarding his transitional programming at the SCTF." Clerk's Papers (CP) at 122-23.
Despite his lack of cooperation with regard to nontreatment behavior, Marcum continued
to participate in treatment at the SCTF.
On March 10,2011, the State petitioned the trial court to revoke Marcum's less
restrictive alternative placement. The trial court granted the State's motion, and Marcum
returned to the total confinement treatment center within the SCC complex. Marcum
thereafter refused further treatment.
5
No. 32118-5-III
In re Det. ofMarcum
DSHS must annually review the mental health condition of a resident at the see
and determine whether continued confinement is warranted. John Marcum stipulated to
continued confinement in 2012. Nevertheless, Marcum's 2012 annual review noted that,
since arriving at the see, he successfully developed tactics learned in treatment to
manage his "deviant arousal, substance abuse, and the cycle that had led to his sexual
offending." ep at 45. The review declared that Marcum had gained maximum benefit
from inpatient treatment. Upon the annual review, the trial court concluded, nonetheless,
that DSHS's 2012 annual report provided prima facie evidence that Marcum's condition
continued to meet the statutory definition of a sexually violent predator and a less
restrictive alternative placement was not appropriate. The 2012 agreed order on annual
review also read: "[Marcum] did not present his own evidence at this time, but 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." ep at 14. In
December 2012, in preparation for his next annual review, Marcum obtained such
evidence.
On December 13,2012, Dr. Paul Spizman evaluated and prepared a thorough
report concerning John Marcum. In the report, Dr. Spizman detailed Marcum's progress
at the see since his 2001 confinement as the result of extensive treatment. The
improvement included adjustments in masturbation habits, changes in sexual preferences,
avoidance of children during outings, and participation in Alcoholics Anonymous. When
6
No. 32118~5~III
In re Det. ofMarcum
Spizman interviewed Marcum, Marcum accepted responsibility for failure during his
SCTF less restrictive placement.
Paul Spizman penned, in his December 2012 evaluation, that John Marcum
reported no struggles with thoughts or fantasies of children since 2003. Dr. Spizman
wrote about Marcum's pedophilia:
Mr. Marcum has made notable gains in learning to control his sexual
orientation toward children, via his efforts in treatment. This has been
demonstrated not only in his report, but also in physiological testing. Thus,
I am identifying this disorder as existing in his history, but this is not a
current diagnosis for him.
CP at 58. According to Spizman, physiological tests showed Marcum was no longer
sexually attracted to children and thus Marcum should no longer be diagnosed with
pedophilia. Marcum also no longer suffered from a personality disorder, according to
Spizman.
In December 2012, Paul Spizman calculated Marcum's risk ofreoffending by
using an actuarial assessment tool, and he estimated the risk of Marcum engaging in a
predatory act of sexual violence within the next ten years at 18.2 to 29.6 percent.
Spizman concluded:
As such, it is my professional opinion that Mr. Marcum has so
changed, via his efforts in treatment, in conjunction with various other
factors, that he no longer meets the definition of a Sexually Violent
Predator.
CP at 74.
7
No. 32118-5-III
In re Det. ofMarcum
On April 15,2013, on behalf ofDSHS, Regina Harrington completed John
Marcum's annual confinement review. Dr. Harrington noted that, from February 2012
through March 2013, Marcum rejected sexual offender treatment. Harrington wrote:
"Though not involved in formal treatment activities, Mr. Marcum continued to verbalize
benefit from sexual offender treatment already completed, as he did previously, noting a
variety of day to day decisions reflecting treatment knowledge and interventions." CP at
21. Harrington opined that Marcum's failure in his less restrictive alternative placement
was "based on circumstances not related to concern or deterioration in sexual regulation."
CP at 17.
Dr. Regina Harrington wrote concerning John Marcum:
Despite the challenge, adversity and disappointment from more
recent experiences when living at the SCTF and subsequent revocation,
overall Mr. Marcum has not seemed to regress to a less functional manner
of coping. Though challenged by resentment and bitterness, he still
verbalizes commitment to treatment principles. His mood has apparently
remained stable and his overall his sense of well being seems somewhat
improved. Though it seems he did not consistently apply constructive or
optimal strategies for his deteriorating attitude while at the SCTF, presently
he seemingly is maintaining constructive conduct and self-regulation.
Presently, Mr. Marcum is not taking the opportunity to engage in treatment
discussion about his actions, listen to criticism, acknowledge his faults and
make appropriate changes so he can become a better person. On the other
hand, he is not demonstrating an overall deterioration of attitude,
perspective and self-regulation. He has continued to demonstrate long-term
sobriety, albeit largely in a controlled setting, but nevertheless while having
access to controlled substances. In the community he was proactive in
taking steps to ensure he obtained community support for maintaining his
sobriety but his ability to manage this risk independently with increased
access to substances does remain untested. Most important, he is
8
No. 32118-5-III
In re Det. ofMarcum
describing sexual functioning similar to what he reported prior to and while
at the SCTF when collateral treatment observations and polygraphs all
suggested constructive sexual regulation without sexually deviant urges.
CP at 23.
Regina Harrington continued:
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 based on what is observed of his current functioning and functioning
while at the SCTF on conditional release. Further, ifhe were to continue to
do well and demonstrated sustained success with sexual self-management
while living independently under a conditional release, it could be possible
he would not meet statutory criteria as a sexually violent predator. Thus, in
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.
CP at 23.
Despite John Marcum's earlier refusal to work, Regina Harrington noted in her
2013 review:
Nevertheless, Mr. Marcum appears to function well in other life
domains afforded by institutional life. He consistently meets institutional
standards for residential life and maintains employment in a more selective
job. Work evaluations continue to describe him as a dependable worker
with a good attitude, who is always on time and gives notice if he needs
time off, who knows his job and pays attention to details, who is always
cooperative with supervisors, takes direction and criticism well, who will
take charge if asked, who is respectful to staff and peers in area and overall
is "among the best." ... After return from the SCTF in 2011, he earned
back level 4 privileges, the highest for non treatment residents, which he
maintains. In February he was moved to the residential unit for residents
9
No. 32118-5-III
In re Det. ofMarcum
with the lowest management/supervision needs. There have been no formal
behavioral violations affecting level privileges or other negative behavioral
reports.
CP at 20.
Dr. Harrington wrote:
Using the actuarial tool STATIC99R, static (unchanging) risk factors
in Mr. Marcum's sexual offense history and background presently generate
a score of 4 which places him in a moderately high risk category for sexual
reoffense relative to a very large group sample of sexual offenders. Group
reoffense rates for a subsample selected as higher risk offenders who have
this score, were approximately 30% over ten years and actuarial reoffense
estimates are generally considered underestimates of actual sexual offense
risk over a lifetime, in part because of unreported or unprosecuted offenses,
because research base rates represent time limited estimates often just based
on convictions, and because this tool only incorporates some of the primary
risk factors for reoffense in its formula. However, important to note,
actuarial calculations periodically decline in accordance with an observed
statistical decline in sexual offending for aging offenders with a large
decline observed in the group with oldest offenders, from 60 years and
beyond.
CP at 17.
Dr. Harrington concluded:
It is my professional opinion Mr. Marcum continues to meet the
definition of a sexually violent predator because his present mental
condition still includes the predisposition for sexually violent behavior
which renders him more likely than not to sexually re-offend if he were
unconditionally released to the community without continued treatment and
supervision. 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.
CP at 24.
10
No. 32118-5-II1
In re Det. ofMarcum
John Marcum seeks release to live with his family in Wisconsin. Family members
know of Marcum's prior molestation of children and insist they will monitor him.
Nevertheless, children, ages 10 and 12, would live next door. I
I
PROCEDURE
I!
On August 7, 2013, John Marcum petitioned, pursuant to RCW 71.09.090, for a
trial on whether he continued to meet the statutory definition of a sexually violent I!
predator. Marcum did not seek release to a less restrictive alternative, but only requested
unconditional release from confinement. Marcum relied solely on the evaluation by Paul
I
Spizman. i
I
At a show cause hearing, John Marcum contended that he substantially changed
I
since his 2001 confinement and his change was to be measured beginning with that
I
confinement. Marcum maintained that denial of a trial would unconstitutionally detain f
him since he had undergone all treatment courses that the SCC offered and he had gained
maximum benefits. Marcum also contended that, despite his refusal to participate in
I
l
t
treatment during the last two years, the State could not preclude his release because he
t
internalized prior treatment.
I i
The State resisted John Marcum's unconditional release. The State argued that
t
~
RCW 71.09.090 requires that Marcum show a substantial change in his condition since
ft
the trial court revoked the less restrictive alternative placement in 2011. The State
I (
additionally argued that Marcum could not show the requirement of "continuing !
I
11 I
I
;
No. 32118-5-III
In re Del. ofMarcum
participation" under RCW 71.09.090(4)(b)(ii).
The trial court accepted the State's position as to whether change is measured
from John Marcum's date of commitment in 2001 or the revocation of his placement at
the SCTF in 20 II. The trial court ruled that the State had met its burden that John
Marcum remained a sexually violent predator and Marcum failed to fulfill his burden to
present evidence of a change since the revocation of the less restrictive alternative
placement. Thus, the trial court denied Marcum an evidentiary trial. The lower court
entered findings of fact, which included:
3. [Marcum] continues to suffer from Pedophilia.
4. [Marcum] has not engaged in treatment for over two years.
5. [Marcum's] mental condition has not changed since he was
determined to have a mental abnormality and/or personality disorder which
renders him likely to engage in predatory acts of sexual violence if not
confined.
6. [Marcum's] condition has not changed in this review period such
that it would be in his best interest or the interest of community safety to
release him to a less restrictive alternative.
CP at 76-77.
LA W AND ANALYSIS
This court must interpret RCW 71.09.090 subsection (4)(a) to assess when the
measurement of substantial change in the detainee's mental health condition begins and
subsection (4)(b )(ii) for what constitutes a "positive response to continuing participation"
in treatment. I first review the background to the statute and Washington's civil
commitment scheme for sexually violent predators to assist in interpreting the two
12
No. 32118-5-III
In re Det. ofMarcum
statutory provisions. Later I focus on the two statutory provisions in RCW 71.09.090(4)
in question and apply canons of statutory interpretation.
Chapter 71.09 RCW - Sexually Violent Predators
Washington's Legislature adopted the community protection act of 1990 in
response to citizens' concerns that state law failed to protect communities from sexually
violent offenders. See GOVERNOR'S TASK FORCE ON CMTY. PROT., DEP'T OF Soc. &
HEALTH SERVS., FINAL REpORT I-I (1989). Washington's act was the first in the nation
addressing sexually violent offenders. The act contained sweeping changes in the law
concerning sex offenders. The impetus for the act was the murder of a Seattle woman by
a sexual offender on work release and the violent sexual attack on a young Tacoma boy.
GOVERNOR'S TASK FORCE ON CMTY. PROT. at I-I. During the drafting of the act,
Westley Allan Dodd kidnapped, raped, and murdered three young boys in Vancouver.
The community protection act contains fourteen sections dealing with such topics
as registration of sex offenders, crime victims' compensation, background checks,
reduction in good time credits, and increased penalties for sex offenders. LAWS OF 1990,
ch. 3, §§ 1001-1013, codified at RCW 71.09, is entitled "Civil Commitment" and is the
part of the act we address on this appeal. A legislative finding supporting the disclosure
of information regarding sex offenders by public agencies to the public reads:
The legislature finds that sex offenders pose a high risk of engaging
in sex offenses even after being released from incarceration or commitment
and that protection of the public from sex offenders is a paramount
13
No. 32118-5-III
In re Det. ofMarcum
governmental interest.
LAWS OF 1990, ch. 3, § 116; see RCW 4.24.550.
To protect the public, the State may constitutionally confine dangerous individuals
who suffer from mental illnesses or disorders even if the mental condition is untreatable.
Kansas v. Hendricks, 521 U.S. 346, 390, 117 S. Ct. 2072, 1381. Ed. 2d 501 (1997); In re
Det. ofGaff, 90 Wash. App. 834, 845,954 P.2d 943 (1998). Therefore, RCW 71.09.060
authorizes the State of Washington to involuntarily commit a person determined to be a
"sexually violent predator" after he or she serves a sentence for a crime. The previous
involuntary confinement system managed only short term treatment of persons with
serious mental disorders, with the intent of quickly returning the confined persons to the
community. The legislature enacted extensive findings concerning the need to
involuntarily commit violent sexual offenders for long term treatment. Among those
findings, the legislature declared:
In contrast to persons appropriate for civil commitment under
chapter 71.05 RCW, sexually violent predators generally have antisocial
personality features which are unamenable to existing mental illness
treatment modalities and those features render them likely to engage in
sexually violent behavior. . .. The legislature further finds that the
prognosis for curing sexually violent offenders is poor, the treatment needs
of this population are very long term, and the treatment modalities for this
population are very different than the traditional treatment modalities.
Former RCW 71.09.010 (1990).
14
No. 32118-5-III
In re Det. ofMarcum
The Washington Supreme Court has upheld the sexually violent predator civil
commitment scheme against a substantive due process challenge based on the
legislature's honest recognition of the difficulties inherent in treating those afflicted with
the mental abnormalities causing the sex predator condition. In re Pers. Restraint of
Young, 122 Wash. 2d 1,31,857 P.2d 989 (1993). The commitment proceeding focuses not
on the criminal culpability of past actions but on treating sexually violent persons for a
current abnormality and protecting society from the sexually violent acts associated with
that abnormality. Young, 122 Wash. 2d at 21.
A "sexually violent predator" is someone "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." RCW
71.09.020( 18). The term "personality disorder" is defined as "an enduring pattern of
inner experience and behavior that deviates markedly from the expectations of the
individual's culture, is pervasive and inflexible, has onset in adolescence or early
adulthood, is stable over time and leads to distress or impairment." RCW 71.09.020(9).
The community protection act defines the term "mental abnormality" as "a congenital or
acquired condition affecting the emotional or volitional capacity which predisposes the
person to the commission of criminal sexual acts." RCW 71.09.020(8). "Predatory" acts
are those directed at strangers or individuals groomed by the offender for the purpose of
victimization. RCW 71.09.020(10).
15
No. 32118-5-III
In re Det. ofMarcum
When a person's sentence for a sexually violent offense has expired or is about to
expire, the State may file a petition alleging the person to be a sexually violent predator.
RCW 71.09.025; .030. When the petition is filed, ajudge must determine ex parte if
"probable cause exists to believe that the person named in the petition is a sexually
violent predator." RCW 71.09.040. If the court finds probable cause, DSHS assumes
custody of the person and transfers him or her to a facility for evaluation. Within forty-
five days, the trial court must conduct a trial to determine if the person is a sexually
violent predator. RCW 71.09.050. Either party, or the court, may demand ajury trial.
The burden is on the State to prove, beyond a reasonable doubt, that the detainee is a
sexually violent predator. RCW 71.09.060( 1). If so, he or she is remanded to DSHS
custody and committed to a facility "for control, care, and treatment" until safe to be at
large. RCW 71.09.060(1). The statute limits treatment centers to mental health facilities
located within correctional institutions. RCW 71.09.060(3); RCW 10.77.220. To date,
DSHS has confined sexually violent predators at the Special Commitment Center on
McNeil Island.
IfDSHS determines that the detainee's mental condition has changed such that
conditional release to a less restrictive alternative is in the best interest of the person and
the conditions imposed protect the community, DSHS may transfer the detainee to a less
restrictive alternative placement, on approval by the trial court. RCW 71.09.090(1); .092.
The detainee may, on his or her own initiative, seek relocation to the less restrictive
16
No. 32118-5-III
In re Del. ofMarcum
alternative. RCW 71.09.090(2)(a). The trial court may revoke placement in a less
restrictive alternative if the detainee violates conditions of the conditional release or
needs additional care, monitoring, treatment, or supervision. RCW 71.09.098.
Because a civil commitment is indefinite, the due process requirement that a
detainee be mentally ill and dangerous is ongoing. In re Det. ofMoore, 167 Wash. 2d 113,
125 n.3, 216 P.3d 1015 (2009); In re Del. ofMitchell, 160 Wash. App. 669, 677, 249 P.3d
662 (2011). Stated differently, a detainee has a constitutional right to liberty if he or she
no longer poses a substantial danger to the public. Foucha v. Louisiana, 504 U.S. 71, 77,
112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992). Therefore, under Washington law, any
detainee must be examined annually to determine his or her mental condition and
whether he or she continues to meet the standard for commitment. RCW 71.09.070; In re
Del. ofAmbers, 160 Wn.2d 543,548, 158 P.3d 1144 (2007). DSHS must provide the
results of the examination to the trial court that conducted the original commitment
hearing, the detainee, and the prosecuting attorney. RCW 71.09.070; Ambers, 160 Wash. 2d
at 548. In addition, the detainee may obtain an additional examination at state expense.
RCW 71.09.070.
IfDSHS determines that a detainee is no longer mentally ill or dangerous, the
secretary must authorize him to petition for release. RCW 71.09 .090( 1); Ambers, 160
Wash. 2d at 548. A detainee may also petition the court directly without the approval of
DSHS. RCW 71.09.090(2)(a). Upon filing such a petition, a show cause hearing is held,
17
No. 32118-5-III
In re Det. ofMarcum
at which time the petitioning detainee has the right to be represented by appointed
counsel, but not the right to be present. RCW 71.09.090(2)(b). The purpose of the show
cause hearing is to assess whether a full evidentiary trial is necessary to justify continued
civil commitment. In re Det. ofReimer, 146 Wash. App. 179, 188, 190 P.3d 74 (2008).
This appeal concerns whether John Marcum is entitled to a full evidentiary hearing.
The standard of proof at the show cause hearing is "probable cause." RCW
71.09.090(2), (4)(a); State v. McCuistion, 174 Wn.2d 369,382,275 P.3d 1092 (2012),
cert. denied, 133 S. Ct. 1460 (2013). Under the probable cause standard, a court must
assume the truth of the evidence presented by the detainee. McCuistion, 174 Wash. 2d at
382. The trial court may not weigh and measure asserted facts against potentially
competing ones. McCuistion, 174 Wash. 2d at 382. The trial court must determine whether
the asserted evidence, if believed, is sufficient to establish the proposition its proponent
intends to prove. McCuistion, 174 Wash. 2d at 382. This appeals court reviews de novo
whether evidence meets the probable cause standard. Ambers, 160 Wash. 2d at 557. Thus,
the show cause hearing parallels a summary judgment motion hearing in civil suits.
The State of Washington bears the initial burden at the show cause hearing to
show probable cause that the detainee continues to meet the statutory definition of a
sexually violent predator. RCW 71.09.090(2)(b)-(d). If the State does not present this
prima facie evidence, probable cause exists to believe that continued confinement is not
warranted and the matter must be scheduled for a full evidentiary hearing at trial. In re
18
No. 32ll8-5-III
In. re Det. ofMarcum
Det. ofReimer, 146 Wash. App. at 188 (2008). If the State satisfies its burden, a new trial
may still be ordered if the detainee's proof establishes probable cause that his or her
condition has substantially changed such that the person no longer meets the definition of
a sexually violent predator. RCW 71.09.090(2)(c)(ii); Reimer, 146 Wash. App. at 188.
The trial court measures change either from the date of the last commitment trial or the
last less restrictive alternative revocation proceeding. RCW 71.09.090(4)(a). This appeal
asks, in part, from what date is change measured when the detainee seeks unconditional
release because he no longer meets the definition of a sexually violent predator. The
detainee must show he had a "positive response to continuing participation in treatment."
RCW 71.09.090(4)(b)(ii). This appeal also questions whether the detainee must engage
in treatment through the time of his petition for release.
If the court, during the show cause hearing, finds probable cause that the detainee
is no longer dangerous, the trial court must convene a full evidentiary hearing. RCW
71.09.090(2)(c). Either party may demand a jury trial for the full hearing. RCW
71.09.090(1). At the evidentiary trial, the State must prove that the detainee continues to
meet the sexually violent person definition beyond a reasonable doubt. RCW
71.09.090(3)(a), (c); Ambers, 160 Wash. 2d at 548-49; In re Det. ofCherry, 166 Wash. App.
70, 76, 271 P.3d 259 (2012).
The law recognizes that the State cannot reduce all risk of repeat sexually violent
behavior before releasing a sexually violent person. One may not remain confined
19
No. 32118-5-III
In re Det. ofMarcum
because he or she poses some risk to the community. In re Det. ofAmbers, 160 Wash. 2d at
551-52 (2007). Research concludes that sexually violent predilections cannot be cured
but must be managed over a lifetime. Motivated offenders can learn through treatment
and supervision to identify, change and manage their offending behaviors, identify and 1
i
control the internal stimuli and external circumstances which promote these offenses, and i
I
thereby decrease their risk of offending. I
I
Findings ofFact
The trial court in this appeal entered six findings of fact, four to which John
I,
!
I
!
i!
Marcum assigns error. Since the trial court does not weigh the evidence at a show cause @
iI
hearing, I consider the findings superfluous and do not rely on the findings.
I
Again, the show cause hearing is in the nature of a summary judgment motion
hearing. A trial court does not enter findings of fact in response to a summary judgment
motion. Oltman v. Holland Am. Line USA, Inc., 163 Wash. 2d 236, 249 n.l0, 178 P.3d 981 f
(2008); Hemenway v. Miller, 116 Wn.2d 725,731,807 P.2d 863 (1991); Chelan County I
i
Deputy Sheriffs' Ass'n v. County ofChelan, 109 Wash. 2d 282, 294 n.6, 745 P.2d 1 (1987). i
The sexually violent predator statute, chapter 71.09 RCW, is civil in nature, and the
summary judgment civil rule can apply to a confinement proceeding. In re Det. of I i
Cherry, 166 Wash. App. at 74 (2011). Marcum understandably and cautiously assigned I
t
errors to some of the findings, but an assignment was not necessary. I
fj:
f
1
,
I;
20 l
f
I
t
I
No. 321IS-5-II1
I
In re Det. ofMarcum
RCW 71. 09. 090(4) (a) - Measurement ofChange I
,I
I return to the first of the two specific issues on appeal. To gain an evidentiary I
hearing on whether he may be released from civil commitment, a sexually violent person Il
must show probable cause at a preliminary hearing. The controlling statute, RCW I
!
71.09.090(4)(a), describes "probable cause" in this setting as:
(a) Probable cause exists to believe that a person's condition has "so
changed," under subsection (2) of this section, only when evidence exists, I ~
since the person's last commitment trial, or less restrictive alternative
revocation proceeding, ofa substantial change in the person's physical or
Ii
mental condition such that the person either no longer meets the definition l
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.
Ir
,
(Emphasis added.)
t
The critical language in RCW 71.09.090(4)(a) declares: "only when evidence I
f
exists, since the person's last commitment trial, or less restrictive alternative revocation
I
f
proceeding, of a substantial change in the person's physical or mental condition."
(Emphasis added). The phrases "last commitment trial" and "less restrictive alternative
l
f
f
i
revocation proceeding" are in the disjunctive. Presumably the adjective "last" modifies f
l
both "commitment trial" and "less restrictive alternative revocation proceeding."
An ambiguity appears in the critical language ofRCW 71.09.090. In order to gain
an evidentiary hearing on his petition for unconditional release, the sexually violent
I
f
1
predator must show a substantial change, but from what date? The statute gives two f
!
t
r
21
No. 32118-5-III
In re Det. ofMarcum
options, either the date of the last commitment trial or the date of the proceeding to
revoke a less restrictive alternative placement. I assume that, if the sexually violent
person can show change from the date of a revocation hearing, he can show a change
since the last commitment trial. As the last commitment trial was likely further in the
past, a detainee will usually wish to measure change from the trial because the longer
expanse of time will necessarily encompass more change.
John Marcum argues that Dr. Paul Spizman's evaluation presents prima facie
evidence that Marcum changed through treatment since his civil commitment trial in
2001, satisfying RCW 71.09.090(4). The State argues RCW 71.09.090(4)(a) requires
Marcum show a change in his condition following the less restrictive alternative
revocation in 2011. Marcum admits he cannot show substantial change since the
revocation.
I must interpret a statute in such a way as to give effect to all language used,
rendering no part superfluous. In re Det. ofAmbers, 160 Wash. 2d at 552 (2007); State v.
Young, 125 Wn.2d 688,696,888 P.2d 142 (1995). Thus, I may not hold that the detainee
may always choose the last commitment trial as the inauguration date for change. I must
give meaning to the language "or less restrictive alternative revocation proceeding." The
revocation of a less restrictive alternative placement must in some instances be the date
from which a court measures change.
I give the phrase "or less restrictive alternative revocation proceeding" effect by
22
No. 32118-5-111
In re Det. ofMarcum
concluding that the beginning date for change is the revocation proceeding when the
detainee petitions for another less restrictive alternative placement. Otherwise, if the
detainee seeks unconditional release, the trial court should measure change beginning
with the last commitment trial. Since John Marcum seeks unconditional release, the trial
court erred and should have measured change since 2001.
1 review the meaning of a statute de novo, as an issue of law. State v. Johnson,
132 Wash. App. 400, 406, 132 P.3d 737 (2006). The court's duty in statutory interpretation
is to discern and implement the legislature's intent. Lowy v. PeaceHealth, 174 Wash. 2d
769, 779, 280 P.3d 1078 (2012). When the plain language of a statute is unambiguous
and legislative intent is apparent, we will not construe the statute otherwise. Lowy, 174
Wash. 2d at 779. Plain meaning may be gleaned from all that the legislature has said in the
statute and related statutes which disclose legislative intent about the provision in
question. Lowy, 174 Wash. 2d at 779; Dep 't ofEcology v. Campbell & Gwinn, LLC, 146
Wash. 2d 1, 11,43 P.3d 4 (2002).
1 consider three principles of statutory construction dispositive. First, in
construing statutes, the court may examine the provision at issue, other provisions of the
same act, and related statutes. In re Bankr. Petition of Wieber, 182 Wn.2d 919,925,347
P.3d 41 (2015); Dep't ofEcology v. Campbell & Gwinn, LLC, 146 Wash. 2d at 10-12. 1
may examine the context of the statute in which that provision is found, related
provisions, and the statutory scheme as a whole. Lake v. Woodcreek Homeowners Ass 'n,
23
No. 32118-5-II1
In re Del. ofMarcum
169 Wn.2d 516,526,243 P.3d 1283 (2010); State v. Engel, 166 Wn.2d 572,578,210
P.3d 1007 (2009). Second, because civil commitment statutes involve a deprivation of
liberty, they should be construed strictly. In re Del. ofSwanson, 115 Wn.2d 21,27, 804
P.2d 1 (1990); In re Det. ofC W, 147 Wn.2d 259,272,53 P.3d 979 (2002). Third, if a
statute's interpretation may render it unconstitutional, courts should adopt, if possible, a
construction upholding its constitutionality. In re Det. ofAmbers, 160 Wash. 2d at 553, n.4
(2007); C W, 147 Wash. 2d at 277. All three principles of construction encourage the
adoption of John Marcum's reading ofRCW 71.09.090(4)(a). The history behind RCW
71.09.090(4)(a) also advances this conclusion.
Many passages in RCW 71.09.090 distinguish between a petition for
unconditional release, on the one hand, and a petition for conditional release or placement
in a less restrictive alternative, on the other hand. RCW 71.09.090(1) directs DSHS to
authorize a petition by the detainee when "either: (a) The person no longer meets the
definition of a sexually violent predator; or (b) conditional release to a less restrictive
alternative is in the best interest of the person and conditions can be imposed that
adequately protect the community." RCW 71.09.090(2)(a) allows the detainee to
petition, without approval from DSHS, for either unconditional release or release to the
alternate placement.
RCW 71.09.090(2)(c) directs the trial court, upon a petition by the detainee, to
conduct a show cause hearing as to whether probable cause exists that the person is no
24
No. 3211S-5-II1
In re Det. ofMarcum
longer a sexually violent predator or can be housed in a less restrictive alternative. RCW
71.09.090(3)(c) and (d) create distinct burdens of proof depending on whether the
detainee seeks unconditional release or conditional placement. RCW 71.09.090(4)(b)
directs the trial court to grant an evidentiary hearing only on testimony from a licensed
professional and evidence of a "change in condition since the person's last commitment
trial proceeding." Unlike subsection (4)(a), subsection (4)(b) makes no mention ofa
prior "less restrictive alternative revocation proceeding."
RCW 71.09.090(4)(a)'s distinction between measuring change beginning with the
last commitment trial versus the last less restrictive alternative revocation proceeding
becomes reasonable if a detainee petitioning for a less restrictive alternative placement
must measure change from the last revocation proceeding, whereas a detainee petitioning
for unconditional release must measure change from the last commitment trial. A
petition for unconditional release serves a different purpose than a petition for a less
restrictive alternative placement. Reading RCW 71.09.090(4)(a) as I do allows a
comparison between apples and apples and between oranges and oranges, rather than a
comparison between apples and oranges. 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 less restrictive alternative
revocation hearing is immaterial in determining whether he can live in the community
without endangering others.
25
No. 32118-5-III
In re Det. ofMarcum
Two of this court's decisions emphasize the difference between a conditional
release trial and an unconditional release trial: In re.Detention ofJones, 149 Wn. App.
16,201 P.3d 1066 (2009) and In re Detention ofBergen, 146 Wash. App. 515,195 P.3d
529 (2008). Unlike in a conditional release trial, the detainee in an unconditional release
trial contests his commitment criteria. Bergen, 146 Wash. App. at 533. Thus, the
detainee's change since commitment should control.
The State's reading ofRCW 71.09.090( 4)(a) also conflicts with other sections of
the community protection act. For example, RCW 71.09.060(1) demands a sexually
violent predator be placed in DSHS custody "until such time as ... the person's condition
has so changed that the person no longer meets the definition of a sexually violent
predator." This language demands release of a person when he or she is no longer a
sexually violent predator, regardless of the lack of change since a less restrictive
alternative revocation proceeding.
The State's interpretation ofRCW 71.09.090(4)(a) not only fails to distinguish
between the two different types of petitions but also could render the statute
unconstitutional. The State argues that any change in Marcum's condition must have
occurred after his most re~ent adjudication, whether that was a less restrictive alternative
hearing or full sexually violent predator trial. Nevertheless, a previously adjudicated
predator could transition to a less restrictive alternative when he or she no longer satisfies
the statutory definition of a sexually violent predator. In the alternative, the predator
26
No. 32118-5-111
In re Det. ofMarcum
could improve during the less restrictive alternative placement such that he no longer fits
the definition. The alternate placement could then be terminated for reasons other than
treatment failure. Because of the revocation, this detainee would be unable to show
additional improvement since the last revocation proceeding since he had already
improved to the point of no longer being a sexually violent predator before any
revocation. Because of this anomaly, a detainee may never seek a less restrictive
alternative placement since he will be penalized by the placement ifhe later seeks to gain
unconditional release.
Under the hypothetical above, one who is no longer a sexually violent predator
remains confined against his will. Thus, the State's elucidation ofRCW 71.09.090(4)(a)
leads to an unreasonable and unjust end. Courts give statutes a rational, sensible
construction. State v. Thomas, 121 Wash. 2d 504, 512, 851 P.2d 673 (1993); In re Marriage
ofKinnan, 131 Wash. App. 738, 751, 129 P.3d 807 (2006). Statutes should receive a
sensible construction so as to avoid unjust or absurd consequences. State ex reI. Thorp v.
Devin, 26 Wash. 2d 333, 173 P .2d 994 (1946); Whitehead v. Dep't ofSoc. & Health Servs.,
92 Wash. 2d 265, 269,595 P.2d 926 (1979).
Civil commitment is a massive deprivation of liberty. State v. McCuistion, 174
Wash. 2d at 387 (2012). The sexually violent predator civil commitment scheme comports
with substantive due process because it does not permit continued involuntary
commitment of a person who is no longer mentally ill and dangerous. State v.
27
No. 32118-5-III
In re Det. ofMarcum
McCuistion, 174 Wash. 2d at 388. If a detainee provides new evidence establishing
probable cause that he is not currently a sexually violent predator, due process requires a
trial on the merits. State v. McCuistion, 174 Wash. 2d at 384 (2012); In re Det. of Ward,
125 Wash. App. 381, 386, 104 P.3d 747 (2005). Once the original basis for the detainee's
commitment no longer exists, continuing confinement would be unconstitutional. In re
Det. ofAmbers, 160 Wash. 2d at 553 nA (2007). Current dangerousness is a bedrock
principle underlying the commitment scheme. In re Det. ofPaschke, 121 Wash. App. 614,
622,90 P.3d 74 (2004). The State's reading of chapter 71.09 RCW violates this
constitutional imperative. The State may require a change in the sexually violent person
but, if the change sufficiently reduces the risk of recidivism, the State may not demand
that change occur only during a limited measure of time.
Our hypothetical becomes reality in John Marcum's case. According to Dr. Paul
Spizman, John Marcum is no longer a sexually violent predator. Nevertheless, because
Marcum sat in the SCFT for two years and then lost his less restrictive alternative
privileges, the State seeks to retain custody of him because of a lack of change since the
revocation.
Under the State's reading ofRCW 71.09.090(4)(a), a detainee may also face a
more stringent standard for release at the show cause hearing than is required for release
at the initial commitment trial. In a footnote, our state high court has noted the precarious
constitutional footing behind a rule that would require a more stringent standard imposed
28
No. 32ll8-5-III
In re Det. 0/ Marcum
on the sexually violent person from one hearing to the next. In re Det. 0/Ambers, 160
Wash. 2d at 553 nA (2007).
The history behind the community protection act, in general, and RCW
71.09.090(4)(a), in specific, supports a reading that the trial court measures change from
the time of the last less restrictive alternative revocation hearing only when the detainee
again seeks a less restrictive alternative placement. The language of the 1990 act that
created RCW 71.09.090 allowed the detainee a show cause hearing annually to determine
if his "condition has so changed that he or she is safe to be at large." LAWS OF 1990, ch.
3, § 1009(2). The language did not mention the date from which change was measured.
Presumably a court gauged change, under the act's original language, from the date of
initial confinement. The language did not mention a petition for a less restrictive
alternative placement. In 1990, RCW 71.09.090 had only two subsections.
In In re Personal Restraint o/Young, 122 Wash. 2d 1, 857 P.2d 989 (1993), the state
Supreme Court held that the basic scheme of the sexually violent predator statute was
constitutional. Nevertheless, it agreed with the petitioners that the statute violated equal
protection because it did not require consideration of less restrictive alternative placement
as a substitute to total confinement as did the mental health statutes, chapter 71.05 RCW.
The court held that the jury must consider a less restrictive alternative as an option to
total confinement, if the defendant so requests. Although Young dealt with an initial
placement trial, the reasoning behind the decision applies equally to the annual review of
29
No. 32l1S-5-III
In re Det. ofMarcum
a detainee. Upon the annual review, the detainee has a constitutional right to seek a less
restrictive alternative.
In 1995 and in response to Young, the Washington Legislature amended the
sexually violent predator statute. In addition to addressing other concerns raised by
Young, amendments to RCW 71.09.090 allowed the confined person to be released to a
less restrictive alternative under limited circumstances. The legislature altered RCW
7l.09.090 to allow a petition "for conditional release to a less restrictive alternative or
unconditional discharge." LAWS OF 1995, ch. 216, § 9. In other words, the legislature
amended the act to comply with constitutional demands. The 1995 law also removed the
language "safe to be at large" and substituted "safe to be conditionally released to a less
restrictive alternative or unconditionally discharged." LAWS OF 1995, ch. 216, § 9. The
amendment still did not mention when to begin measuring the change of the detainee's
mental condition.
In 2005, the legislature altered RCW 71.09.090 again. The amendment added
subsection (4) to the statute. LAWS OF 2005 ch. 344, § 2. Nevertheless, subsection (4)
included no mention as to ever measuring change beginning at the last less restrictive
alternative revocation proceeding. As of the 2005 amendment, RCW 71.09.090(4) read:
(a) 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 proceeding, ofa 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
30
No. 32118-5-III
In re Det. ofMarcum
conditional release to a less restrictive alternative is in the person's best
interest and conditions can be imposed to adequately protect the
community.
(Emphasis added.)
A 2009 amendment inserted the language "or less restrictive alternative revocation
proceeding" in front of "of a substantial change" such that the statute contains its present
form. LAWS OF 2009 ch. 409, § 8. Since the statute added this language only after the
detainee gained the option to seek a less restrictive alternative placement, reason suggests
that the inserted language applies to a petition seeking the less restrictive alternative
placement. This holds true even though the inserted language appeared in an amendment
four years after the detainee gained the option. The 2009 amendment is an awkward and
tardy adjustment to modify the 2005 amendment adding the option of a petition for a less
restrictive alternative placement.
RCW 7I. 09. 090(4) (b) (ii) - Positive Response to Continuing Participation in Treatment
I next address the "positive response to continuing participation" language of
RCW 71.09.090(4)(b)(ii). The State argues John Marcum cannot show "continuous
participation" under RCW 71.09.090(4)(b)(ii) because Marcum ceased participating in
treatment following the 2011 revocation of his least restrictive alternative placement.
RCW 71.09.090(4) declares:
(b) A new trial proceeding under subsection (3) of this section may
be ordered, or a trial proceeding may be held, only when there is current
evidence from a licensed professional of one of the following and the
31
No. 32118-5-111
In re Det. ofMarcum
evidence presents a change in condition since the person's last commitment
trial proceeding:
(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 less
restrictive alternative or that the person would be safe to be at large if
unconditionally released from commitment.
(Emphasis added.) Since John Marcum claims no physiological change, I focus on
subsection (b )(ii).
"Continuing" is the key word in subsection (b )(ii), and the lay dictionary defines
"continuing" as "continuous, constant." WEBSTER'S THIRD NEW INTERNATIONAL
DICTIONARY 493 (1993). Taken literally, the statute could mean the confined person
must engage in treatment twenty-four hours a day, three hundred sixty-five days a year
from the date of commitment until the final day of trial on his petition for release.
Nevertheless, courts interpret the statute reasonably and without absurd consequences.
Courts give statutes a rational, sensible construction. State v. Thomas, 121 Wash. 2d at 512
(1993).
The statute may impliedly demand treatment through the date of petitioning for
release. But such a demand is not express. In reading the statute as a whole, I interpret
the statute to require continuing treatment to the extent that the detainee no longer fits
within the definition of a "sexually violent predator." I need not and do not decide any
32
No. 32118-5-111
In re Det. ofMarcum
minimum time needed for treatment.
I reach my interpretation, in part, because another interpretation could lead to the
unconstitutionality of the statute. Were "continuous participation" interpreted to require
no break in treatment, a break would prevent the release of someone who is no longer a
sexually violent predator. Again, civil commitment is a massive deprivation of liberty.
State v. McCuistion, 174 Wash. 2d at 387 (2012). An individual subject to a civil
commitment is entitled to release on a showing that he is no longer mentally ill or
dangerous. Foucha v. Louisiana, 504 U.S. at 77-78 (1992); State v. McCuistion, 174
Wash. 2d at 385 (2012). The State may require continuous treatment until the sexually
violent person no longer presents a danger, but the State may not demand unlimited and
unending treatment.
In In re Detention ofAmbers, 160 Wash. 2d at 557 (2007), the high court considered
the test to be "whether Ambers met his burden of demonstrating that his condition has so
changed due to a continuing course of treatment." The Supreme Court did not state that
Kevin Ambers needed to prove treatment was continuing up until the date he petitioned
for a less restrictive alternative placement or up until the date of trial. The court held that
Ambers met his burden because a licensed psychologist opined that Ambers change of
mental condition was brought about through positive responses to continuing
participation in treatment that indicated he no longer meets the criteria of a sexually
violent predator.
33
No. 3211S-5-III
In re Det. ofMarcum
The Washington Legislature anticipates that the confined person will engage in
long-term, not short-lived, treatment, based on the legislature's belief that a sexually
violent person's illness is chronic. In passing its 2005 amendments to the community
protection act, the legislature declared: "the mental abnormalities and personality
disorders that make a person subject to commitment under chapter 71.09 RCW are severe
and chronic and do not remit due solely to advancing age or changes in other
demographic factors." LAWS OF 2005, ch. 344, § 1. The legislature also stated that
persons committed as sexually violent predators "generally require prolonged treatment
in a secure facility followed by intensive community supervision in the cases where
positive treatment gains are sufficient for community safety." LAWS OF 2005, ch. 344, §
1. To the extent that untreated individuals present a significant risk of reoffending, the
State has an interest in protecting public safety by restricting evidentiary hearings to
those who have participated in treatment. State v. McCuistion, 174 Wash. 2d at 395 (2012).
Nevertheless, the law does not impose a specific minimum time for treatment. Nor does
science establish a minimum time needed for treatment.
John Marcum underwent treatment for eleven years. His expert opines that, as a
result of extensive participation in treatment, he no longer meets the criteria for being a
sexually violent predator.
RCW 71.09.090(4)(b)(ii) requires a "positive response to continuing participation
in treatment," rather than simply "continuing participation in treatment." The State's
34
No. 32118-5-111
In re Det. ofMarcum
argument ignores the language preceding "continuous participation." The entire
language could be read to focus on the response to treatment rather than the amount of
treatment. Once the detainee positively responds to continuing treatment, it is immaterial
whether treatment continues. The purpose of the community protection act is to promote
treatment based change, not to demand unending treatment. Because the legislature may
constitutionally demand treatment of a sexually violent person as a means of addressing
an underlying mental condition, change in that condition is more important than the
length of treatment.
Evidentiary Trial
Courts review de novo whether evidence presented at a show cause hearing meets
the probable cause standard. In re Det. ofAmbers, 160 Wash. 2d at 557 (2007); In re Det.
ofPetersen, 145 Wash. 2d 789, 799,42 P.3d 952 (2002). Therefore, despite being a
member of a reviewing court, I may decide whether John Marcum satisfied the
requirements for a full evidentiary hearing. In In re Detention ofElmore, 162 Wash. 2d 27,
39, 168 P.3d 1285 (2007), our high court reversed the trial court's denial of a full
evidentiary hearing and remanded for the evidentiary hearing rather than another show
cause hearing.
During my earlier review of the sexually violent predator statutes, 1 examined the
burdens of proof that each side holds at a show cause hearing. The State must present
some evidence that the detainee still meets the definition of a sexually violent predator.
35
No. 32118-5-III
In re Det. ofMarcum
If the State meets its burden, the detainee must present facts which, if believed, warrant
further proceedings. In re Det. ofPetersen, 145 Wash. 2d at 798-99. RCW
71.09.090( 4 )(b)(ii) requires a showing by a licensed professional that the petitioner's
condition has changed due to a positive response to a continuing course of treatment,
such that he no longer meets the initial commitment criteria. In re Det. ofAmbers, 160
Wash. 2d at 557.
A trial court may not weigh the evidence in determining whether probable cause
exists. In re Det. ofElmore, 162 Wash. 2d at 37 (2007). A trial standard of proof has no
application to probable cause determinations. In re Det. ofPetersen, 145 Wash. 2d at 797.
If the court determines that probable cause exists, the court must set a full hearing under
RCW 71.09.090(3), at which the parties may present all the evidence and the fact finder
may weigh the evidence and resolve any disputes. Elmore, 162 Wash. 2d at 37. I would not
free John Marcum from civil commitment, but allow him a trial on the question of
whether the State must release him.
John Marcum argues that the State failed to establish a prima facie case that his
mental condition makes him likely to reoffend. Marcum claims that the State's expert,
Regina Harrington, opined that Marcum has only a thirty percent recidivism risk. In
reply, the State contends that Dr. Harrington relied on dynamic factors to conclude that
Marcum would likely engage in predatory acts if released. Typically a court addresses
whether the State establishes a prima facie case, before determining whether the detainee
36
No. 32118-5-III
In re Del. ofMarcum
presents sufficient evidence. RCW 71.09 .090(2)(b)-(d); In re Del. ofReimer, 146 Wn.
App. at 188 (2008). I see no need to follow this order of proof in this appeal, since
Marcum readily satisfies his burden.
The State of Washington wishes this court to accept Regina Harrington's opinions,
rather than Paul Spizman's opinions. Nevertheless, this court commits error by trusting
one expert's conclusions over another's conclusions. In re Del. ofElmore, 162 Wash. 2d at
37 (2007). The court may not weigh the credibility of an expert opinion. In re Del. of
Jacobson, 120 Wash. App. 770, 781, 86 P.3d 1202 (2004). On remand, at the time of the
evidentiary trial, the trier of fact need not believe Dr. Spizman's testimony over Dr.
Harrington's. Nonetheless, John Marcum has presented sufficient evidence of change
following his last commitment trial to warrant a full evidentiary hearing on whether he
continues to meet the statutory definition of a sexually violent predator. I note that the
State has used Paul Spizman as its expert witness in the past. In re Del. ofBergen, 146
Wash. App. 515, 522,195 P.3d 529 (2008).
The State impliedly claims that Paul Spizman's opinions are conclusory in nature.
Conclusory statements cannot establish probable cause, so a court must look beyond an
expert's stated conclusions to determine if they are supported by sufficient facts. In re
Del. ofJacobson, 120 Wash. App. at 780. I find Spizman's conclusions to be specific,
based upon a thorough review of John Marcum's background, and meticulously
buttressed in a lengthy report. Some ofSpizman's findings are supported by the State's
37
No. 32118-5-III
In re Del. ofMarcum
own evidence, as the 2012 annual review declared that Marcum had gained maximum
benefit from inpatient treatment.
I would reverse the trial court's denial of John Marcum's show cause motion. I
would remand to the trial court for an evidentiary hearing, pursuant to RCW 71.09.090,
on the question of Marcum's continued confinement as a sexually violent predator.
Therefore, I respectfully dissent.
38