In re Det. of Marcum, 92501-1

Background

John Marcum, civilly committed as a sexually violent predator (SVP) since 2001 after multiple child‑sexual‑offense convictions, was placed in a less restrictive alternative (LRA) in 2009 but had the LRA revoked in 2011 after treatment/behavior problems; he thereafter refused further sex‑offender treatment.
In August 2013 Marcum petitioned for unconditional release, submitting an expert report (Dr. Spizman) concluding he no longer met the SVP definition based on treatment gains mostly predating the 2011 revocation.
The State relied on the 2013 annual report (Dr. Harrington), which concluded Marcum still met the SVP definition but had reached ‘‘maximum benefit’’ from inpatient treatment and might be suitable for conditional release to an LRA.
At the show‑cause hearing the State relied on RCW 71.09.090(2)(b) prima facie evidence (the annual report); the trial court denied Marcum a trial, concluding Marcum had not shown change through continuing participation in treatment after the LRA revocation.
The Court of Appeals affirmed (holding change must be measured since the last commitment trial or LRA revocation, and Marcum failed to show post‑revocation treatment‑based change). The Washington Supreme Court granted review.
The Supreme Court reversed the Court of Appeals and remanded for a full evidentiary hearing because the State failed its two‑part prima facie burden at the show‑cause hearing under RCW 71.09.090(2)(b).

Issues

Issue	Marcum's Argument	State's Argument	Held
What burden does the State bear at the show‑cause hearing under RCW 71.09.090(2)(b)?	The State must present prima facie evidence both that the detainee remains an SVP and that conditional release to an LRA is inappropriate.	State conceded the two‑part prima facie burden but argued its annual report satisfied it.	Court: State must show (1) detainee continues to meet SVP definition and (2) LRA would be inappropriate; if it fails either prong, a full evidentiary hearing is required.
Was the State's annual report sufficient to meet the two‑part prima facie showing?	Marcum argued the annual report did not show that conditional release was inappropriate and thus failed the second prong.	State argued the report established continued SVP status and satisfied the threshold.	Court: The 2013 annual report actually supported conditional release suitability; thus the State failed the second prong and the court erred in denying a full hearing.
When must ‘‘change’’ be measured for purposes of RCW 71.09.090(4)(a) (since what proceeding)?	Marcum (and concurrence) argued that for unconditional release the relevant comparison is to the last commitment trial (not an intervening LRA revocation), and treatment‑based change predating an LRA revocation can trigger a hearing.	State (and dissent) argued change must be measured from the most recent proceeding (commitment trial or LRA revocation), so Marcum’s pre‑revocation changes are irrelevant.	Majority avoided deciding this timing issue (decided on State’s failure at show‑cause). Concurrence would adopt Marcum’s reading to avoid due‑process problems. Dissent would measure from the last LRA revocation and would affirm denial.
Was Marcum’s petition a forbidden collateral attack on prior determinations?	Marcum said his 2011 stipulation to revoke LRA did not constitute an adjudication of continued SVP status and he preserved the right to seek unconditional release.	State and dissent viewed the revocation as the last proceeding assessing his condition; Marcum’s petition attempted to relitigate settled issues.	Court: Majority rejected the collateral‑attack rationale as dispositive here because State failed its prima facie burden; concurrence also rejects treating the 2011 stipulation as a full SVP adjudication; dissent disagrees.

Key Cases Cited

State v. McCuistion, 174 Wn.2d 369 (Wash. 2012) (explains show‑cause purpose and State's prima facie burden under RCW 71.09.090)
In re Det. of Hawkins, 169 Wn.2d 796 (Wash. 2011) (statutes curtailing liberty must be strictly construed)
In re Det. of Martin, 163 Wn.2d 501 (Wash. 2008) (civil commitment statutes construed narrowly in favor of liberty)
Foucha v. Louisiana, 504 U.S. 71 (U.S. 1992) (continued confinement requires current mental illness or dangerousness)
Jones v. United States, 463 U.S. 354 (U.S. 1983) (periodic review required for continued civil commitment)
Jackson v. Indiana, 406 U.S. 715 (U.S. 1972) (duration and nature of commitment must reasonably relate to purpose)
In re Det. of Thorell, 149 Wn.2d 724 (Wash. 2003) (commitment predicated on mental illness and dangerousness)
In re Det. of Petersen, 145 Wn.2d 789 (Wash. 2002) (State bears burden at show‑cause and commitment proceedings)