Civil Commitments
Mental Health/Protective Services          NGI          Sexually Violent Persons
Updated: 12/16/09


Tuberculosis Treatment (§ 252.07)
Tuberculosis Treatment Commitment, § 252.07 – Generally
City of Milwaukee v. Ruby Washington, 2007 WI 104, affirming 2006 WI App 99
For Washington: Wm. Tyroler, SPD, Milwaukee Appellate; Karl Otto Rohlich, SPD, Milwaukee Mental Health
Amicus: Colleen Ball, ACLU
Issue/Holding:

¶3        We conclude that Wis. Stat. § 252.07(9)(a) authorizes confinement to a jail for a person with noninfectious tuberculosis who is at a high risk of developing infectious tuberculosis and fails to comply with a prescribed treatment regimen, provided the jail is a place where proper care and treatment will be provided and the spread of disease will be prevented, and that no less restrictive alternative exists to jail confinement. We further conclude that a circuit court may take into account the cost of placement options when determining the place of confinement under § 252.07(9), but only after determining that two or more placement options fulfill the statutory requirements of proper medical treatment and disease prevention, and that none of these options is significantly less restrictive than the other(s).

Technically, the supreme court has “affirmed” the court of appeals, because it has upheld the mandate of commitment. However, the supreme court effectively overruled the lower court in two crucial ways: the place and not merely fact of confinement must be the least restrictive alternative, ¶48; and, remedial contempt did not support Washington’s confinement, ¶68. Note, as well, not least because the court takes pains to stress it, that TB confinement procedure covers not only those with infectious TB but those who are non-infectious but at high-risk to become infectious, ¶30 n. 10. More: though the court declines to rule on whether “persons with infectious or suspect tuberculosis” may be confined to jail, ¶33 n. 14, the court goes on to all but rule to the contrary, ¶40 n. 18 [“For persons with infectious tuberculosis or with the most highly drug-resistant strains of the disease, we doubt that jail would be an appropriate placement under Wis. Stat. § 252.07(9)(a) because such a placement would almost certainly increase, not prevent, the risk of transmission of the disease”].

Tuberculosis Treatment Commitment, § 252.07 Confinement: Jail as Placement Option
City of Milwaukee v. Ruby Washington, 2007 WI 104, affirming 2006 WI App 99
For Washington: Wm. Tyroler, SPD, Milwaukee Appellate; Karl Otto Rohlich, SPD, Milwaukee Mental Health
Amicus: Colleen Ball, ACLU
Issue/Holding:
¶37      … We conclude that, together, the commonly accepted meanings of "facility" and "confined" indicate that the legislature intended jail to be a permissible placement option under Wis. Stat. § 252.07(9)(a) for persons with noninfectious tuberculosis who are noncompliant with a prescribed treatment regimen, provided that "no less restrictive alternative exists" to such placement, infra, ¶¶48-59, and that the particular jail to which a person is to be confined is a place where proper care and treatment will be provided and spread of the disease will be prevented, infra, ¶44. ...

¶39      … The statutory scheme ensures that jail is not a placement of first resort, but rather is permitted only in cases in which no less restrictive alternate placement is available. Additionally, the particular facility to which a person is to be confined, whether a penal institution or other type of facility, must be a place where proper care and treatment will be provided and spread of the disease will be prevented.

¶40      … We take these concerns seriously. Nevertheless, the legislature has provided that confinement is an option, provided all the statutory requirements have been met. [18]

¶41      While the statute's plain language and legislative history demonstrate the legislature contemplated confinement to jail as a category of placement for persons with noninfectious tuberculosis who are noncompliant with a prescribed treatment regimen, a confining court must still determine whether the particular place of confinement is "a facility where proper care and treatment will be provided and spread of the disease will be prevented." Wis. Stat. § 252.07(9)(a). If conditions at a particular jail (or other facility) are such that proper care and treatment would be unavailable, or contrary to the prevention of the spread of the disease, such a placement would not be authorized under § 252.07(9)(a). Whether a facility meets these requirements is a fact-intensive question and is addressed to the circuit court's discretion.


[18] We emphasize that this opinion applies only to persons with noninfectious tuberculosis——that is, persons who will not become infectious if they receive proper treatment and are forced to comply with a prescribed treatment regimen. For persons with infectious tuberculosis or with the most highly drug-resistant strains of the disease, we doubt that jail would be an appropriate placement under Wis. Stat. § 252.07(9)(a) because such a placement would almost certainly increase, not prevent, the risk of transmission of the disease.
Tuberculosis Treatment Commitment, § 252.07 Confinement: Least Restrictive Alternative
City of Milwaukee v. Ruby Washington, 2007 WI 104, affirming 2006 WI App 99
For Washington: Wm. Tyroler, SPD, Milwaukee Appellate; Karl Otto Rohlich, SPD, Milwaukee Mental Health
Amicus: Colleen Ball, ACLU
Issue/Holding:

¶42      Washington next argues that if jail is a permissible place of confinement under Wis. Stat. § 252.07(9), confinement to jail is not permitted whenever some less restrictive placement is available, citing "no less restrictive alternative" language in § 252.07(9)(a)3. The court of appeals construed this language to apply only to the fact of confinement and not to the place of confinement. Washington, 292 Wis. 2d 258, ¶12. The City asks us to adopt the court of appeals' interpretation. We adopt Washington's interpretation because we conclude it is more reasonable. We interpret Wis. Stat. § 252.07(9)(a)3. to require that "no less restrictive alternative" applies to the place of confinement as well as the fact of confinement.

¶48      In light of the legislature's choice to permit confinement to jail of a person with noninfectious tuberculosis who is noncompliant with a prescribed treatment regimen, we conclude that the legislature intended the "no less restrictive alternative" language to apply to the place of confinement as well as the fact of confinement. The legislature did not intend jail to be a placement of first resort for persons with tuberculosis who are noncompliant with a prescribed treatment regimen.

Tuberculosis Treatment Commitment, § 252.07 Confinement: Consideration of Costs
City of Milwaukee v. Ruby Washington, 2007 WI 104, affirming 2006 WI App 99
For Washington: Wm. Tyroler, SPD, Milwaukee Appellate; Karl Otto Rohlich, SPD, Milwaukee Mental Health
Amicus: Colleen Ball, ACLU
Issue/Holding:

¶53      We conclude that a circuit court may take into account cost when determining place of confinement under Wis. Stat. § 252.07(9). A court must first determine that the place of confinement is a facility where proper care and treatment will be provided, spread of the disease will be prevented, and that no less restrictive alternative to the proposed placement exists. Once the court has engaged in this analysis, and two or more placement options remain, a court may consider cost as a factor in making its determination. A party requesting that a court take into account the cost of various placements must offer some proof to support its assertions for the court to consider cost as a factor in placement.

Mental Health (Ch. 51)/Protective Services (Ch. 55)
Ch. 880 Guardianship Proceeding: Authority to Order Support In

Amy Z. v. Jon T., 2004 WI 73

For Jon T.: Geoffrey Dowse
Issue/Holding:

¶18. We conclude that the circuit court had the authority to order child support in the context of the Wis. Stat. ch. 880 proceeding. We do so in light of the constitutional grant of broad plenary power to the circuit courts coupled with the petition requirements under Wis. Stat. § 880.07, the lack of any statutory limitation on the circuit court's ability to address child support in the context of a ch. 880 proceeding, and a circuit court's equitable authority, apart from the divorce statutes, to act in the best interests of a child.
Emergency Detention, § 51.15(10) – Untimely Probable Cause Hearing, Lost Competency of Court to Proceed
Dane County v. Stevenson L.J., 2009 WI App 84
For Stevenson L.J.: Ruth N. Westmont
Issue/Holding: Where Stevenson L.J. was detained on an “emergency statement” in one county (Brown), then transferred to another (Dane) before a probable cause hearing, a new emergency statement in Dane County did not establish a new 72-hour time limit for a probable cause hearing; competency over the proceeding was therefore lost:
¶12      Under the County’s argument, “otherwise admitted” would mean that a person initially detained under Wis. Stat. § 51.15(5) could be held solely on the basis of a treatment director’s emergency detention statement, which would, in essence, reset the seventy-two hour clock while the patient remained involuntarily detained at the institution. If this could be done once, however, there is no reason why it could not be done two or three times, or more for that matter. Given the statute’s unambiguous intent to protect the liberty interests of individuals like Stevenson L.J. during emergency detention, § 51.15(10) cannot reasonably be construed to allow practices that would defeat that end. … Stevenson L.J.’s first detention expired when he was not given a probable cause hearing within seventy-two hours. We conclude that § 51.15(10) is not ambiguous and cannot reasonably be construed to authorize the continued detention of an individual who has not been given a probable cause hearing within the statutorily required time. Accordingly, the treatment director’s statement of emergency detention was a nullity.

¶13      Because we conclude that Wis. Stat. § 51.15(10) cannot reasonably be interpreted to authorize the continued detention of an individual who has not received the mandated probable cause hearing within seventy-two hours, we also reject the County’s additional contention that the second statement of emergency detention did not run afoul of our holdings in Getto, 175 Wis. 2d at 501-02, and Judith G., 250 Wis. 2d 817, ¶19. In each of these cases, we held that once the seventy-two hour period for holding a probable cause hearing has expired, the filing of a substantially identical successive petition for detention in an effort to set back the clock did not restore the court’s competency to proceed. See Getto, 175 Wis. 2d at 500-01, and Judith G., 250 Wis. 2d 817, ¶19. Here, contrary to the County’s argument, the fact that the treatment director’s subsequent statement of emergency detention contained additional allegations of dangerousness and was filed in a different county by a different detaining authority does not cure its defect. The statement’s shortcoming does not lie in its venue or in its content; instead, it lies in the fact that the detention it sought to execute was contrary to statutory requirements and was thus unlawful.

Meta-message: given the liberty interest at stake, Ch. 51 time limits will be strictly enforced, e.g., ¶11.
Ch. 51 Time Limits: Hearing to Review Transfer to Inpatient Status
Fond du Lac County v. Elizabeth M.P., 2003 WI App 232
For Elizabeth M.P.: Thomas K. Voss
Issue: Whether the circuit court had jurisdiction to transfer Elizabeth, who was on outpatient status under ch. 51, to inpatient status given that judicial review of the county’s transfer decision wasn’t held within 10 days, contrary to § 51.35(1)(e)3.
Holding:
¶28. Wisconsin Stat. § 51.35(1)(e) mandates that a patient transferred to a more restrictive environment receive a hearing within ten days of said transfer. Elizabeth was not provided with a hearing within ten days in violation of § 51.35(1)(e)3. The circuit court was without jurisdiction to effectuate a transfer to inpatient status. We therefore reverse the orders of the circuit court. Elizabeth shall be returned to outpatient status.
The holding is premised on a conclusion “that Elizabeth was transferred pursuant to Wis. Stat. § 51.35(1)(e)2.” This is because “§ 51.35(1)(e)1 and (1)(e)2 seem to indicate different forms of transfers” in short, her transfer would result in “a greater restriction of personal freedom.” ¶17. The court also stresses that statutory use of the term “shall” is presumptively mandatory, ¶21, especially where a loss of liberty is involved as with a civil commitment patient, ¶23.
Protective Placement
Walworth County v. Therese B., 2003 WI App 223
Issue/Holding: Procedural due process in guardianship and protective placement proceedings is governed by the analysis used in mental commitments, W.J.C. v. Vilas County, 124 Wis. 2d 238, 240, 369 N.W.2d 162 (Ct. App. 1985), which in turn adopts Mathews v. Eldridge, 424 U.S. 319 (1976):
¶11 … The Mathews test “involves balancing three factors: 1) The private interest affected by the official action, 2) the risk of erroneous deprivation of the interest through the procedures used and the probable value of additional or substitute procedural safeguards, and 3) the government’s interest.” W.J.C., 124 Wis. 2d at 240.

¶16 Our balancing of the Mathews factors leads us to conclude that permitting an examining professional to be nothing more than a conduit for the opinions of others would violate a proposed ward’s due process rights. In a guardianship and protective placement proceeding, the finder of fact might make a decision that will result in a life sentence to a nursing home. See Watts, 122 Wis. 2d at 76-77. That decision is essentially a medical question that turns on the meaning of facts interpreted by expert psychiatrists and psychologists. Parham v. J.R., 442 U.S. 584, 609 (1979). Therefore, it is crucial that the examining professional reach his or her conclusion through an independent evaluation of the proposed ward and not through a review of the opinions of other expert psychiatrists and psychologists.

¶17 This is not to say that the proposed ward’s rightful refusal to participate in the court-ordered evaluation will obstruct a guardianship and protective placement proceeding. When the proposed ward has refused to cooperate, the examining professional is still free to review all of the records that are available in reaching his or her opinion. It is well settled that an expert may rely upon reports and information provided by others: “[I]t is proper for a physician to make a diagnosis based in part upon medical evidence of which he has no personal knowledge but which he gleaned from the reports of others.” Vinicky v. Midland Mut. Cas. Ins. Co., 35 Wis. 2d 246, 254, 151 N.W.2d 77 (1967). An expert is permitted to base an opinion on hearsay if it is of a type customarily relied upon in that field in forming opinions. In the medical field, the evidence contained in treatment records is routinely relied upon by physicians to treat a patient; if it is deemed trustworthy enough to support treatment decisions, it is trustworthy enough to support a professional opinion. Id. at 254-55.

¶18 Due process requires that the examining professional, when confronted with an uncooperative individual, engage in an independent review of all of the records that are available. Due process prevents the examining professional from regurgitating the opinions of other physicians and psychologists, without independently confirming the facts those opinions are based upon.

Mental Health Commitment -- "Fifth Standard" -- Constitutionality
State v. Dennis H., 2002 WI 104, on certification
For Dennis H.: Ellen Henak, SPD Milwaukee Appellate
On-line Brief: http://www.wisspd.org/html/appellate/briefbank/briefs/010374.pdf
Issue: Whether the "fifth standard" for mental commitment, § 51.20(1)(a)2.e. (roughly: refusing treatment due to incapacity for making rational treatment decision), is constitutional.
Holding: The statute isn't vague -- the state must prove the various "elements" of this standard (which the court spells out and won't be repeated here). ¶¶19-26.
Note: the court stresses that mental illness alone doesn't equate to the fifth standard. Additionally, the court relies on ch. 980 case law (not a good omen, one would suppose, for the course of ch. 51 litigation). In particular, the court mentions that the fifth standard conditions must be evident to a "substantial probability" -- under 980 case law that phrase means "much more likely than not."
The standard isn't overbroad, because it only applies to those mentally ill individuals who are dangerous to themselves. ¶¶27-28.
Equal protection isn't violated: "There is a rational basis for distinguishing between a mentally ill person who retains the capacity to make an informed decision about medication or treatment and one who lacks such capacity. The latter is helpless, by virtue of an inability to choose medication or treatment, to avoid the harm associated with the deteriorating condition." ¶33.
Finally, there's no substantive due process problem, because there's no constitutional requirement that a commitment be based on danger of imminent physical harm (such as self-injury or suicide). ¶¶35-44.
Mental health Commitment -- Final Hearing Deadline
County of Milwaukee v. Edward S., 2001 WI App 169, PFR filed
For Edward S.: Richard D. Martin, SPD, Madison Appellate
Issue: Whether the 14-day deadline set by § 51.20(7)(c) for final hearing is extendible when delay is caused by the respondent’s own action.
Holding: The otherwise mandatory deadline for final commitment hearing is waivable when the delay is caused by the respondent -- here, firing his attorney. State ex rel. Lockman v. Gerhardstein, 107 Wis. 2d 325, 320 N.W.2d 27 (Ct. App. 1982), distinguished.)
Mental Health Commitment -- Time Limit for Probable Cause Hearing -- Computation
Dodge County v. Ryan E.M., 2002 WI App 71
For Ryan E.M.: Eileen A. Hirsch, SPD, Madison Appellate
Issue: Whether the 72-hour deadline, necessary for the court’s competency over the ch. 51 commitment proceeding, is measured from the subject’s time of detention. (“¶4. The issue in this case is whether the method of computing time set forth in Wis. Stat. § 990.001(4)(a) and (d), in which the first day is excluded, applies in the context of Wis. Stat. § 51.20(7)(a).”)
Holding: Because the probable cause deadline is expressed in § 51.20(7)(a) in terms of hours rather than days, the first-day-excluded rule of computing time under § 990.001(4)(a) and (d) is not applicable: “¶6. The preamble to Wis. Stat. § 990.001 states that the rules of construction provided in that statute must be followed unless to do so ‘would produce a result inconsistent with the manifest intent of the legislature.’ We conclude that by expressing the time requirement in terms of hours rather than days, the legislature has manifested its intent that the clock start running immediately ‘after the individual arrives at the facility,’ rather than the next day.” And, because this probable cause hearing was held 74 1/2 hours after detention, ¶3, the circuit court lost competency to proceed, ¶12.
(Note: The holding seems to apply broadly to all time-computation statutes; any deadline expressed in terms of hours begins running immediately from the triggering even. ¶¶9-10.)
Protective Placement -- County's Obligation to Find and Fund Placement
Dunn County v. Judy K., 2002 WI 87, on certification
Issue: Whether a county is required to find an fund an appropriate placement under § 55.06(9)(a).
¶28. We therefore determine that in protective placements pursuant to § 55.06(9)(a), counties must make an affirmative showing of a good faith, reasonable effort to find an appropriate placement and to secure funding to pay for an appropriate placement. Put more succinctly, the county must show it has made a good faith, reasonable effort to find and fund an appropriate placement.

¶29. The determination of what is an appropriate placement depends upon the application of all the factors outlined in § 55.06(9)(a). At the same time, the statute provides a limitation on a county's ultimate financial liability: The county may not be required to provide funding, in addition to its funds that are required to be appropriated to match state funds, in order to protectively place an individual.

¶30. The find and fund standard will help ensure that protective placements comport with the multi-factor statutory scheme, which recognizes the needs and rights of placed individuals as well as the significant role that counties play in the protective placement system. Placing the burden on the counties to show a good faith, reasonable effort to find and fund also makes sense because the counties' substantial responsibility in the protective placement system means they are the repository of much of the information and other resources pertinent to funding and placement.

Protective Placement -- Right to Hearing Before Placement Continued
County of Dunn v. Goldie H., 2001 WI 102, affirming unpublished decision of court of appeals
For Goldie H.: John E. Joyce
Issue: Whether a ch. 55 subject has a right to a hearing before the circuit court orders continuation of protective placement; and whether the circuit court must make findings of fact to support such an order.
Holding:
¶6. We hold that a person is entitled to a hearing on the record before his or her protective placement is continued, and that the circuit court must make factual findings to support the need for continuation, as required by Wis. Stat. § 55.06(1) (1999-2000). Here the circuit court did not strictly comply with these requirements. Nonetheless, we cannot help but conclude that in this case, the circuit court's review of the reports submitted to it, supplemented by a motion hearing in which the relevant issues were discussed, was sufficient to ensure that Goldie H. was being properly cared for and that her protective placement was properly continued in a facility appropriate for her needs. Consequently, we affirm the decision of the court of appeals.…

¶35. A summary hearing is not an extensive hearing. It is a brief hearing on the record. The person whose protective placement is in question need not be present. The hearing may be in court or may be held by other means, such as a telephone or video conference. A summary hearing is not an evidentiary hearing. It is an opportunity for the court to ascertain that the proper procedures have been followed to ensure a proper continuation of a protective placement, and to make factual findings required by Wis. Stat. § 55.06(1). Taking a few moments to protect the rights of our most vulnerable citizens is not an unacceptable cost to society. It is an expression of our humanity. It is a commitment that no person will be warehoused and forgotten by the legal system. We believe we can assure this objective by giving our holding prospective application because the statute already requires annual review. Our goal is to firm up the rights of protectively placed persons, not to disrupt judicial calendars.

¶43. We conclude that in this case the circuit court's review of the annual reports submitted by Joyce and the Dunn County DHS, supplemented by the motion hearing, was sufficient to ensure that Goldie H.'s protective placement was properly continued.

¶44. The circuit court did not make specific findings of fact supporting the continuation order, either in the order continuing Goldie H.'s protective placement or at the motion hearing on February 24, 2000. However, it is clear that in ordering the continuation of Goldie H.'s protective placement, the circuit court relied on information more than sufficient to make the findings based on the factors enumerated in Wis. Stat. § 55.06(2), as required by Wis. Stat. § 55.06(1). We therefore find that the court implicitly made those findings of fact. See Schneller v. St. Mary's Hosp. Med. Ctr., 162 Wis. 2d 296, 311-12, 470 N.W.2d 873 (1991).

Protective Services -- Competence of Court following Untimely Probable Cause Hearing
Kindcare, Inc. v. Judith G., 2002 WI App 36
Issue/Holding:
¶3 The issue presented by this appeal is whether the circuit court loses competence to adjudicate a person's need for protective placement if the probable-cause hearing is not held within seventy-two hours after the person was taken into custody, or whether, as the trial court determined, the seventy-two-hours clock can be reset by the simple expedient of filing a new petition for protective placement. We hold that the circuit court loses competence if the probable-cause hearing is not held within seventy-two hours after the person is first taken into custody, and that the mere filing of a new petition does not start the clock anew. Accordingly, we reverse.

....

¶18 As we have seen, WIS. STAT. § 55.06(7) prevents the detention of the subject of a protective-placement petition unless there has been a finding by clear and convincing evidence that the person 'is in need of placement,' '[e]xcept for emergency placement or temporary placement under' WIS. STAT. 55.06 (11). (Emphasis added.) Here, and unlike the situation in B.S.L., there was no compliance with the 'time limits required by [the] statute [here, § 55.06(11)(b)] ... during the first proceeding for continued detention.' See B.S.L., 115 Wis. 2d at 621, 340 N.W.2d at 570. Rather, as in Sandra D., a successive petition was filed here only to avoid the time limits. But § 55.06(11)(b) requires that '[u]pon detention ... a preliminary hearing shall be held within 72 hours ... to establish probable cause to believe the grounds for protective placement under sub. (2).' Thus, the hearing must be held within seventy-two hours of the detention, not the filing of the petition. The filing of the successive petition was a nullity because Ms. G., by then, had been in custody for more than seventy-two hours without a probable-cause hearing. See N.N., 140 Wis. 2d at 69, 409 N.W.2d at 390-391.

¶19 This comports with the legislature's intent to limit significantly the time the subject of a protective-placement petition must spend in involuntary detention without court approval. See Sandra D., 175 Wis. 2d at 500, 498 N.W.2d at 896. Timing the running of the seventy-two hours from either the filing of the initial petition or, as was done here, from the filing of a successive petition would either dilute or destroy the protection afforded by § 55.06(11)(b). See Heritage Credit Union v. Office of Credit Unions, 2001 WI App 213, ¶18, 247 Wis. 2d 589, ___, 634 N.W.2d 593, 600 ('When construing statutes we are to give them their common sense meaning to avoid unreasonable and absurd results.'). Ms. G. did nothing to delay the probable-cause hearing beyond the required seventy-two hours; thus, her continued detention beyond that period was unlawful. See County of Milwaukee v. Edward S., 2001 WI App 169, ¶¶5-11, 247 Wis. 2d 87, 90-94, 633 N.W.2d 241, 243-245 (subject of an involuntary commitment petition under WIS. STAT. ch. 51 who creates delay may not argue that hearing held beyond mandatory time limit deprived court of competence). Accordingly, we reverse.

Protective Services -- Personal Presence of Alleged Incompetent
Knight and Knight v. Milwaukee Co., 2002 WI App 194
Issue/Holding: A trial court lacks competency to enter orders with respect to an alleged incompetent, unless the g.a.l. certifies the specific reasons the person can't attend, pursuant to § 880.08(1).
Waiver of Conflict of Interest by Person Adjudicated Incompetent
Guerrero v. Cavey, 2000 WI App 203, 238 Wis.2d 449, 617 N.W.2d 849
Issue: Whether a person adjudicated incompetent may waive her attorney's conflict of interest.
Holding: Because the client's understanding of the attorney's potentially divided loyalty is a necessary component of waiver of a conflict, and because no claim is made that the circuit court erred in finding the mother to be incompetent, she was, "as a matter of law... incapable of making a knowing and voluntary waiver of the conflict of interest[.]" ¶23.
Not Guilty by Reason of Mental Disease-Defect (§ 971.17)
NGI Commitments – Standard of Review: Commitment for Institutional Care, § 971.17(3)(a)
State v. Paul A. Wilinski, 2008 WI App 170
For Wilinski: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding:
¶11      Wisconsin courts have not yet articulated the standard for reviewing a circuit court’s order for commitment under Wis. Stat. § 971.17(3)(a). The State proposes that courts should review such orders under a sufficiency of the evidence standard. Wilinski seems to concede this is the appropriate standard of review. We are also persuaded. As the State points out, our supreme court adopted the sufficiency of the evidence standard of review for orders under Wis. Stat. § 980.08(4), which provides for the supervised release of sexually violent persons. State v. Brown, 2005 WI 29, 279 Wis. 2d 102, 693 N.W.2d 715. Much like § 971.17(3)(a), the statute in Brown required the court to order institutional care if the State proved by clear and convincing evidence it was “substantially probable” the defendant would engage in acts of sexual violence if he was not institutionalized. [2] It also contained a list of factors for the court to consider nearly identical to the one in § 971.17(3)(a).

¶12      The sufficiency of the evidence test asks whether a circuit court could reasonably be convinced by evidence it has a right to believe and accept as true. Brown, 279 Wis. 2d 102, ¶40. If the evidence supports multiple reasonable inferences, we will adopt the inference the circuit court adopts. Id. When applying this standard, reviewing courts give “deference to the circuit court’s strength in determining the credibility of witnesses and in evaluating the evidence.” Id., ¶44. We “draw not only on a circuit court’s observational advantage, but also on the circuit court’s reasoning.” Id.

NGI Commitments – Commitment for Institutional Care, § 971.17(3)(a) – Sufficiency of Evidence
State v. Paul A. Wilinski, 2008 WI App 170
For Wilinski: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: NGI commitment to institutional care was supported by the evidence, in that
  • The nature of the offense itself (violent assault coupled with threat to kill) supported a finding of significant risk of harm if Wilinski were released (¶13);
  • Wilinski failed to comply with conditional release under prior NGI commitment, thereby suggesting poor prospect for treatment compliance (¶14);
  • Wilinski was dangerous when off medication and/or drinking alcohol (¶15);
  • Conditional-release services available to Wilinski within the community would be adequate for only up to one year, while there was evidence Wilinski would require daily monitoring for 27 years (¶¶6, 17);
  • In sum:
¶18      The level of certainty required by Wis. Stat. § 971.17(3)(a) is clear and convincing evidence. Although this requires certitude greater than preponderance of the evidence, absolute certainty is not required. Kuehn v. Kuehn, 11 Wis. 2d 15, 26, 29-30, 104 N.W.2d 138 (1960). As directed by § 971.17(3)(a), the court considered the nature and circumstances of Wilinski’s crime; his mental history and present mental condition; where he would live if released; and what arrangements would be available to ensure he has access to and will take necessary medication. We conclude the court could reasonably be convinced by clear and convincing evidence that Wilinski would pose a significant risk of bodily harm to himself or others if released. The court’s order is therefore supported by sufficient evidence.
Wilinski apparently had a track record of treatment non-compliance to go along with demonstrable dangerousness, so the temptation to lock him up notwithstanding (more accurately: because of) his mental illness must have been strong. (He not only violently assaulted a female acquaintance he also attacked police when they showed up.) Still, judges are in effect required to pay lip service to least restrictive alternative placement, conditional release, when feasible. (That is, if the judge can’t affirmatively find significant risk by clear and convincing evidence, then conditional release must be ordered instead of institutional care, § 971.17(3)(a).) The kicker here is support for Wilinski’s conditional release with adequate monitoring, which one doctor thought had to be in place for 27 years (¶6), along with evidence the local community didn’t have the resources for such long-term monitoring (¶8). Not hard, then, to see why the judge would be wary of ordering release. The legal question for the court of appeals was, in effect, whether placement could be cost-driven. The court certainly didn’t phrase the problem precisely that way, but the net effect of the holding is to throw costs into the placement calculus (“what arrangements would be available to ensure he has access to and will take necessary medication”). Would have been nice, then, if the court of appeals had dealt with this problem a bit more forthrightly. For example, there is authority for the idea that where the legislature hasn’t so specified, ch. 55 protective placement may not be driven by fiscal concerns D.E.R. v. La Crosse County, 155 Wis. 2d 240, 248, 455 N.W.2d 239 (1990) (with respect to [since-amended] § 55.06(9)(a) (1987-88): “The legislature has not expressly limited the county’s responsibility in ch. 55 to make placements to the least restrictive environment to funds available from state or federal sources and county matching funds,” id., at 252). This isn’t to say that the court of appeals’ analysis was wrong. To the contrary, City of Milwaukee v. Ruby Washington, 2007 WI 104, ¶¶49-53, pretty clearly suggests that costs can be factored into placement (TB commitment in that instance). It’s just that the opinion cries out for a more refined analysis on this point. It’s one thing to say, in so many words (none, really when you get down to it), that a small, strapped county can’t reasonably be expected to pour resources into decades’ worth of monitoring. Sort of a self-evident, isn’t it? But what happens when the county doesn’t want to pay for someone facing maximum exposure of, say, 5 years (or less). Then what? Would have been nice for the court to provide some sort of analytical framework, but that will apparently have to await future litigation.
NGI Procedure – Abandonment of NGI Plea and Necessity of Personal Colloquy
State v. Jennifer F. Francis, 2005 WI App 161
For Francis: Hans P. Koesser
Issue: Whether the trial court must engage the defendant in a personal colloquy before allowing an NGI plea, § 971.06(1)(d), to be abandoned.
Holding: Because an NGI plea is not a constitutional or otherwise fundamental right, a personal colloquy with the defendant isn’t a precondition to withdrawal of the plea, ¶¶15-22.
¶23      The following summary distills what, from these cases, we ascertain to be the prevailing rules.  First, defendants can withdraw their NGI pleas through counsel rather than personally. In deciding whether to withdraw a plea of NGI, counsel has no right to act contrary to the defendant’s expressed wishes, as the decision ultimately belongs to the defendant.  See People v. Blye, 43 Cal. Rptr. 231, 234-35 (Cal. Ct. App. 1965); State v. Tenace, 700 N.E.2d 899, 906 (Ohio Ct. App. 1997); >State v. Byrge, 225 Wis. 2d 702, 727, 594 N.W.2d 388 (Ct. App. 1999), aff’d, 2000 WI 101, 237 Wis. 2d 197, 614 N.W.2d 477. In the absence of an objection, however, counsel acts on the defendant’s behalf when counsel withdraws the defendant’s NGI plea and may exercise professional discretion in choosing whether or not to do so. See People v. Gaines, 375 P.2d 296, 298-99 (Cal. 1962), overruled on other grounds by People v. Morse, 388 P.2d 33 (Cal. 1964); Blye, 43 Cal. Rptr. at 233-34; see also Tenace, 700 N.E.2d at 904-06, 908 (reversing judgment of conviction because defendant objected on the record); People v. Baker, 58 Cal. Rptr. 691, 694 (Cal. Ct. App. 1967) (objection must be affirmative; the defendant cannot idly stand by and later claim that counsel acted improperly). 
The foregoing language is very broad, but it is surely relevant that Francis pleaded guilty after striking a plea bargain. It’s fair to assume that the plea bargain wrapped up all the pending issues, including the NGI plea, although this idea does not seem to have informed the result. Would a contest in Phase I have made a difference? Not according to Weber v. Israel, 730 F.2d 499, 506-08 (7th Cir. 1984) (NGI plea is affirmative defense and its withdrawal a matter of tactics by counsel; thus, no error where following guilty verdict pending NGI plea simply ignored). But that case, not cited by but nonetheless much like this one, involved extreme facts; at the other end of the scale are such cases as Mirzayance v. Hickman, 66 Fed. Appx. 676, 679-680 (9th Cir. 2003) (no link):
Weber involved the abandonment of an insanity defense, but there were tactical reasons for its abandonment. The counsel in Weber abandoned an insanity defense because the prosecution had two psychiatric reports stating that Weber was not suffering from a mental disease or defect at the time of the alleged crimes, one of which referred to Weber as "malingering," and defense counsel had no psychiatric reports to the contrary. Id. at 506-07. The decision to abandon the insanity defense in Weber also took place prior to the guilt phase. Id. at 505. Defense counsel thought that if the jury knew an insanity phase would follow, the jurors would not give the defendant as much deference on the merits. Id.

In Mirzayance's case, the insanity defense was withdrawn after the guilt phase and there was a cadre of experts ready to testify that Mirzayance was insane. Dr. Markham, Dr. Sharma, Dr. Vicary, and Dr. Blum were all prepared to testify that Mirzayance met the standard for legal insanity. See Profitt v. Waldron, 831 F.2d 1245, 1249 (5th Cir. 1987) ("We cannot baptize the decision to forego the insanity defense with the rejuvenating labels of 'tactical' or 'strategic' choice. Judges wisely defer to true tactical choices -- that is to say, to choices between alternatives that each have the potential for both benefit and loss ... we simply can see no advantage in the decision to bypass the insanity defense.") (emphasis in original); see also United States v. Span, 75 F.3d 1383, 1390 (9th Cir. 1996) ("We have a hard time seeing what kind of strategy, save an ineffective one, would lead a lawyer to deliberately omit his client's only defense, a defense that had a strong likelihood of success, and a defense that he specifically stated he had every intention of presenting.").

Not quite clear, either, how to square that Weber with this one: State v. Weber, 146 Wis.2d 817, 433 N.W.2d 583 (Ct. App. 1988), which without providing any factual background simply indicates, “For some reason, the trial court never afforded him the second phase of his trial after the jury came back with a guilty verdict on the first phase”: and as a result, the court remanded for NGI-phase trial (not, to be sure, much discussion on this point; same Ray Weber, by the way, but different case).

Nor should it be assumed that an NGI plea is merely a matter of tactics. See, e.g., State v. Bean, 171 Vt. 290, 762 A.2d 1259 (Vt. 2000) (“We join these courts and hold that the decision whether to assert an insanity defense lies with defendant, and not defense counsel. Under this rule, it was improper for defense counsel to assert an insanity defense over defendant's objection in this case.”). Indeed, Francis clearly indicates that the defendant has veto-power over the issue of withdrawal of the plea, once entered, ¶23, though it is much less clear whether a violation of that principle must be raised as ineffective assistance of counsel, with its required showings of deficient performance and prejudice.

And for an interesting permutation of the problem – challenge to pursuit of NGI plea on ground of misapprehension that the plea would support defense on lack of intent – see Morgan v. Israel, 735 F.2d 1033 (7th Cir. 1984) (denying relief, albeit with this trenchant observation: “The proposition that you can be insane yet be able to form the intent required for an utterly criminal deliberate act such as first-degree murder smacks of paradox.” But, given that the author is Judge Posner, the opinion goes on to offer a way out of the dilemma.)

Applicability of Interstate Compact on Mental Health, § 51.75. to NGI Commitment
State v. Richard A. Devore, 2004 WI App 87, PFR filed 4/21/04
For Devore: Catherine M. Canright
Issue/Holding:
¶1 Richard Devore appeals an order denying his motion to be transferred to Minnesota under the Interstate Compact on Mental Health, WIS. STAT. § 51.75. He contends the circuit court erred when it concluded that, as a matter of law, § 51.75 did not apply to individuals found not guilty by reason of mental disease or defect (NGI) in accord with WIS. STAT. § 971.17. We conclude that the circuit court correctly determined § 51.75 was inapplicable to NGI defendants like Devore and affirm the order.

...

¶6 Devore directs us to WIS. STAT. § 51.75(4)(a), which states: “Whenever … it is determined that the patient should receive aftercare or supervision, such care or supervision may be provided in a receiving state.” In § 51.75(2)(a), one definition of “Aftercare” is “conditional release,” and § 51.75(14) states that the Compact should be liberally construed to effectuate its purpose. Devore points out that he is on conditional release and should therefore be allowed to transfer to Minnesota.

¶7 However, the Compact does not define “conditional release.” Whatever it means, however, we conclude that it cannot mean conditional release of an NGI defendant because when the Compact was enacted, neither WIS. STAT. § 971.17 nor conditional release for NGI defendants existed.

...

¶10 As far as the liberal construction requirement of WIS. STAT. § 51.75(14) is concerned, WIS. STAT. § 971.17’s main objective is protecting the public, not providing treatment to alleviate a defendant’s mental illness. …

NGI Plea Precluded by Late Timing.
State v. James H. Oswald, 2000 WI App 3, 232 Wis.2d 103, 606 N.W.2d 238.
For Oswald: James L. Fullin, Jr., SPD, Madison Appellate.
Issue: Whether the trial court improperly precluded Oswald from raising an NGI plea.
NGI -- Revocation -- Timeliness of Petition
State v. George Schertz, 2002 WI App 289
For Schertz: Barbara A. Cadwell
Issue/Holding: The provision in § 971.17(3)(e) for hearing within 30 days a petition for revocation of NGI conditional release is directory, not mandatory. ¶¶7-14.
Sufficiency of Evidence, Denial of Petition for Conditional Release
State v. Thomas Wenk, 2001 WI App 268, PFR filed 10/31/01
For Wenk: Michael K. Gould, SPD, Milwaukee Appellate
Issue: Whether trial court denial of a petition for conditional release from an NGI commitment was an erroneous exercise of discretion.
Holding: Although the state expressed doubt that it had met its burden of proof, the trial court was free to disregard that view. And, although the experts recommended release upon certain conditions, the trial court was free to reject those opinions, especially given that "the reasons underlying their opinions that Wenk could be released despite [drug addiction] were either wrong or based on shaky grounds." ¶¶9-13. The trial court's concern, that the pattern of drug use when unconfined posed too great a danger, was supported by the record, and the order denying release is therefore sustained.
Go To Brief
NGI -- Conditional Release Trial -- Jury Instruction on Dangerousness
State v. Alan Adin Randall, 222 Wis. 2d 53, 586 N.W.2d 318 (Ct. App. 1998)
For Randall: Waring Fincke
Issue/Holding: The trial court properly rejected requested instruction that the State must prove "a level of present danger which cannot be managed safely in the community under any set of reasonable conditions," and instead properly gave an instruciton that the State must prove that "Randall cannot be safely discharged or released without [sic] a danger to himsel for others."
NGI -- Conditional Release Trial -- Jury Instruction on Medical Justification / Substantive Due Process
State v. Alan Adin Randall, 222 Wis. 2d 53, 586 N.W.2d 318 (Ct. App. 1998)
For Randall: Waring Fincke
Issue/Holding:
Randall proposed to ask the jury, "Is there any medical justification for the Petitioner's continued confinement at the Winnebago Mental Health Institute or any other in-patient mental health facility?" The trial court, holding that the State did not have to prove a therapeutic justification, refused to submit the requested instruction. Randall claims that the court's refusal denied him due process of law.

...

... (B)ecause a Wisconsin insanity acquittee's continued confinement is based on both an initial determination of the cause of his or her criminal conduct, as well as a finding of continued dangerousness, and because Wisconsin's mental health institutions provide an environment designed to reduce dangerousness, no individual showing that confinement is necessary to address a particular medical treatment is required. This conclusion is also in accord with the United States Supreme Court's recent decision in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 2084 (1998) (upholding the constitutionality of Kansas's sexual predator law despite an acknowledged unavailability of effective treatment for pedophilia). In short, we conclude Randall I establishes that an insanity acquittee is afforded substantive due process by virtue of Wisconsin's entire scheme.

NGI -- Conditional Release Trial -- Sufficiency of Evidence on Dangerousness
State v. Alan Adin Randall, 222 Wis. 2d 53, 586 N.W.2d 318 (Ct. App. 1998)
For Randall: Waring Fincke
Issue/Holding: Evidence was sufficient to support the jury's verdict that Randall not be released, based largely on the cicrcumstances of his crime.

SEXUALLY VIOLENT PERSONS (also see Ch. 980 Case Outline)
SVP Commitments – Evidence – Misconduct, § 904.04(2) – Proof of, Reliance on by Expert
State v. Carl Kaminski, 2009 WI App 175
For Kaminski: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: An SVP expert may rely on the respondent’s unproven prior misconduct in deriving his or her opinion. The § 904.04(2) “preliminary relevance” requirement, State v. James E. Gray, 225 Wis.2d 39, 59-61, 590 N.W.2d 918 (1999); State v. Landrum, 191 Wis. 2d 107, 119-20, 528 N.W.2d 36, 41 (Ct. App. 1995), doesn’t apply in this context. The respondent’s prior misconduct therefore need not be proven by preponderance of the evidence.
State experts relied on several prior acts to conclude that Kaminski was uncontrollably (sexually) violent. Kaminski challenged two of these acts: an allegation of sexual assault an ALJ had determined wasn’t credible; and another alleged assault which received bare mention in a PSI but was otherwise undocumented, ¶¶5, 7. The court doesn’t say that these hearsay-based, wholly unproven allegations pass any kind of reliability threshold. Instead, the court in effect says: We don’t really care.

The court starts with the premise established by State v. Gregory J. Franklin, 2004 WI 38, ¶14, that § 904.04 analysis, including the State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998) admissibility test, simply doesn’t apply to ch. 980. But it is one thing to say that, unlike criminal procedure, SVP trials aim at the very idea of the person’s propensity for violence; quite another to say that propensity can be established through unreliable means. The court suggests that even minimal proof of propensity evidence is unnecessary “in light of the elaborate procedural protections afforded to a Wis. Stat. ch. 980 respondent,” ¶14. Those “elaborate protections” include pretrial probable cause findings, a pretrial DHFS evaluation and, ultimately, a “full trial.” It’s just that the “full trial” doesn’t require any proof of the very evidence on which the judgment will be based. Indeed, as the court baldly puts it: “To the extent that the Gray standard would prevent the admission of relevant evidence under Wis. Stat. § 904.01, its adoption would frustrate the jury’s ability to accurately assess the probability that a particular respondent will commit sexually violent acts in the future,” ¶15. Let the patented Case Summaries Translator™ work its magic on this passage: “Requiring actual proof of the basis for committing someone for life would only get in the way of the very purpose of the commitment procedure, which is to make preventive detention as easy as possible.”

Enough snark. It’s certainly true that relevance requires only a tendency to make a consequential fact more probable, § 904.01 (which seems to be the thrust of the court’s analysis, if not expressed quite that way). But that principle doesn’t make the issue of proof meaningless; to the contrary, it makes the issue perhaps one of “relevancy conditioned on fact,” § 901.04(2)—relevance would require “the introduction of evidence sufficient to support a finding of the fulfillment of the condition.” It does not mean that relevance is heedless of sufficient evidence. Ultimately, though, the question in this instance isn’t really one of substantive admissibility, conditional or otherwise; whether, that is, the jury could conclude that, because Kaminski (might or might not have) committed one or another prior assault, he was therefore uncontrollably violent. Rather, it is whether the experts could properly consider, on the flimsiest possible basis, that Kaminski had committed these acts so as to factor them into their opinion. To a large extent, that is, the court conflated rules for admissibility of expert opinion testimony with those for admissibility of the evidentiary basis for that opinion. Section 907.03 allows admissibility of an expert opinion based on hearsay, State v. Watson, 227 Wis. 2d 167, 195, 595 N.W.2d 403 (1999), but is not itself an exception to the hearsay rule, State v. Weber, 174 Wis. 2d 98, 107, 496 N.W.2d 762 (Ct. App. 1993). (Put somewhat differently: an expert must be something more than “mere transmitter” of hearsay.) Indeed, the court misleadingly cites Watson for the idea “that expert testimony regarding incidents of prior sexual assault is admissible under these rules,” ¶18. Well, yes, but not as substantive evidence that they actually occurred. Evidence of the incidents in question was rank hearsay; this didn’t disqualify their use by the testifying experts, but it sure makes their substantive admissibility hard to fathom. The question, in other words, isn’t necessarily whether the incidents were themselves substantively admissible to prove propensity—as was the issue in Franklin and Wolfe—but, rather, whether they were the type of data that experts in the field could rely on, § 907.03. Whether experts reasonably rely on data as sparsely supported as here would make a nice question, but it’s not one the court is curious enough to address. And to the extent that the court is saying it doesn’t really care about the existence of much if any proof of the underlying data, then it is unconcernedly saying that the very foundation for an SVP commitment is farcical.

SVP Commitments – Evidence – References to Post-Commitment Re-Evaluations
State v. Carl Kaminski, 2009 WI App 175
For Kaminski: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: “Infrequent references to annual re-evaluation” were not “sufficiently egregious to diminish the jury’s sense of responsibility for its verdict,” ¶¶20-24.
SVP Commitments – Evidence – References to Psychopathic Treatment Program
State v. Carl Kaminski, 2009 WI App 175
For Kaminski: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: Testimony by a state’s expert to the effect that the only treatment program for psychopaths is at Sand Ridge did not require a new trial under the theory that it implicitly suggested commitment would be in the community’s and respondent’s best interest, ¶¶25-27 (court rejecting analogy to TPR procedure):
¶27      Wisconsin Stat. ch. 980 establishes a bifurcated process, but one distinct from that contained in the TPR statutes. Under ch. 980, the fact finder determines whether the respondent is a sexually violent person. The court then enters judgment on that finding and orders the person committed. Wis. Stat. § 980.06. The decision to enter judgment upon the finding is not a discretionary one, which distinguishes ch. 980 from the TPR process. No independent consideration analogous to the “best interests” standard permeates the court’s role in a ch. 980 proceeding. In addition, the TPR statute explicitly reserves consideration of the best interests of the child for the court. In contrast, chapter 980 does not preclude consideration of the best interests of the respondent or those of society. In fact, the definition of a “sexually violent person” implicitly invokes both of these factors, see Wis. Stat. § 980.01(7), and our supreme court has recognized protection of the public as a principal purpose for committing a sexually violent person, Carpenter, 197 Wis. 2d at 271. In sum, we agree with the State’s conclusion that “the analogy between the two statutes is weak.”
SVP Commitments – Discharge Petition – Review by Circuit Court, § 980.09 (2005-06) – Generally
State v. Daniel Arends, 2008 WI App 184, PFR granted 2/10/09
For Arends: Leonard D. Kachinsky
Issue/Holding:  
¶14      Unlike the previous statutory provision, the current Wis. Stat. § 980.09 does not distinguish between petitions made with or without the approval of the DHFS secretary. Furthermore, a discharge petition no longer automatically triggers a probable cause hearing. Rather, the circuit court may review the petition without a hearing, or it may choose to hold a hearing, to determine whether a “court or jury may conclude the person’s condition has changed since the date of his or her initial commitment order so that the person does not meet the criteria for commitment as a sexually violent person.”  Sec. 980.09(1). If the court determines that a “court or jury could conclude” the person’s condition has changed, it must order an evidentiary hearing. Sec. 980.09(2). …
SVP Commitments – Discharge Petition – Review by Circuit Court, § 980.09 (2005-06) – New Statute Does Not Increase Showing Necessary for Evidentiary Hearing
State v. Daniel Arends, 2008 WI App 184, PFR granted 2/10/09
For Arends: Leonard D. Kachinsky
Issue: Whether § 980.09 (2005-06) grants the circuit court a greater “gatekeeper role” than the prior statute in ordering an evidentiary hearing on a discharge petition.
Holding:  
¶22      The State’s premise that the new statute grants the circuit court a greater role than it played in a probable cause determination runs contrary to the development of the law. Discharge proceedings play a critical role in the constitutionality of civil commitments. Courts have repeatedly confirmed this. See, e.g., Foucha, 504 U.S. at 71 (1992) (a person subject to a mental health commitment “may be held as long as he is both mentally ill and dangerous, but no longer”); Thiel, 275 Wis. 2d 421, ¶23 (“our supreme court has tied the constitutionality of Wis. Stat. ch. 980 to the availability of periodic reviews that reassess the person’s dangerousness to determine if a lesser restriction of his or her liberty is warranted”); State v. Rachel, 254 Wis. 2d 215, ¶66 (ch. 980 “passes constitutional muster” because confinement is “linked to the dangerousness of the committed person” and there are procedures for ending confinement when the person is no longer dangerous); Combs, 295 Wis. 2d 457, ¶28 (the periodic reexamination and probable cause hearing for discharge “are among the protections that the supreme court has considered significant in concluding that Wis. Stat. ch. 980 does not violate the equal protection clause or the right to due process”). By interpreting the discharge procedure in a way that appears more punitive, such that petitions would be less likely to merit an evidentiary hearing, we erode one of the key provisions that courts have relied upon to uphold the constitutionality of ch. 980. [5]

¶23      Furthermore, the State’s interpretation of the new standard ignores the plain meaning of the statutory language. The legislature could have retained “probable cause” as a standard, but instead required the showing of “a change” from which a judge or jury “may conclude” the person no longer meets the definition of a sexually violent person. Wis. Stat. § 980.09(1). The State’s interpretation would require a petitioner to “prove” that his or her condition has “actually changed” just to meet the threshold for an evidentiary hearing. The statute places no such burden on the petitioner. The circuit court’s role as gatekeeper, to weed out frivolous petitions, is not elevated by the revised statute. The revised statute’s petition review procedure, like the probable cause procedure before it, is not a substitute for the evidentiary hearing. See Kruse, 296 Wis. 2d 130, ¶31.

Shorter version: Meet the new statute, same as the old statute.

The opinion, by the way, contains a good summary of constitutional concerns with respect to the Minority Report detention that is embodied by ch. 980. So far, the courts have paid mere lip service to those concerns but perhaps there’s a limit to judicial tolerance for the seemingly inexhaustible elasticity of commitment procedure. Perhaps; at least if you read between the lines a bit.

SVP Commitments – Discharge Petition – Review by Circuit Court, § 980.09 (2005-06) – Allegations Sufficed for Evidentiary Hearing
State v. Daniel Arends, 2008 WI App 184, PFR granted 2/10/09
For Arends: Leonard D. Kachinsky
Issue/Holding:  
¶24      In his petition, Arends alleged that his condition had changed such that he no longer met the definition of a sexually violent person because (1) “the passage of time demonstrated that anti-social behavior expected under an earlier diagnosis did not occur,” (2) a lower PCL -R score showed a change in Arends’ condition, and (3) his successful progress in treatment suggested a change in his condition. [6] Arends contends that Dr. Fields’ reexamination report did not simply reinterpret data that was present when Arends was originally committed, but relied on new research and new facts about his current condition. He distinguishes his case from that of Combs, 295 Wis. 2d 457, ¶14, where we held that Combs could not challenge the original grounds for commitment by offering new interpretations of old data. See id., ¶34. Combs, though decided prior to the effective date of the new statute, speaks to the same issue that arises under the current version: a change in the petitioner’s condition since the time of initial commitment. To provide grounds to believe a person is no longer sexually violent, “an expert’s opinion must depend upon something more than facts, professional knowledge, or research that was considered by an expert testifying in a prior proceeding ....” Id., ¶32.

¶25      Here, Dr. Fields considered new observations of Arends’ behavior and interpreted the data using existing and accepted tools of the psychology profession. Her report, which was based in part on the absence of deviant sexual arousal and anti-social behavior, also incorporated new research on the topic of predicting recidivism risk for juvenile offenders as compared to adult offenders. This is sufficient for purposes of Wis. Stat. § 980.09(1) and (2). See Combs, 295 Wis. 2d 457, ¶32 (petitioner can satisfy the standard when the expert’s opinion is “based at least in part on new professional knowledge about how to predict dangerousness”). Arends is entitled to an evidentiary hearing on his discharge petition.

SVP Commitments – Competency to Stand Trial – No Due Process Right to Evaluation
State v. Ronald D. Luttrell, 2008 WI App 93
For Luttrell: Steven Prifogle, SPD, Milwaukee Trial
Issue: Whether a ch. 980 SVP respondent is entitled to § 971.14 competency evaluation.
Holding:
¶8        It is true, of course, that both Wis. Stat. § 971.13 and Wis. Stat. § 971.14 once applied to Wis. Stat. ch. 980 commitments, see Smith, 229 Wis. 2d at 726, 600 N.W.2d at 261, but that was because a specific statute, Wis. Stat. § 980.05(1m) (2003–04), required it, see Smith, 229 Wis. 2d at 726­–727, 731–732, 600 N.W.2d at 261, 263–264. … Section 980.05(1m) (2003–04), however, was repealed effective August 1, 2006 . …

¶10      Luttrell’s contention that he is entitled to a competency hearing under Wis. Stat. § 971.14 also ignores the special indicium of a civil commitment, which, per force, cannot depend on whether that person is competent. Thus, significant mental impairment is a condition to commitment under Wis. Stat. ch. 51, Wisconsin’s civil mental-commitment chapter, see Wis. Stat. § 51.20(1)(a), as it is under Wis. Stat. ch. 55, Wisconsin’s protective-placement-system chapter for persons who are unable to properly care for themselves, see Wis. Stat. § 55.001. [5] Accordingly, competency is not a prerequisite to either civil mental-commitment or civil protective-placement proceedings. … The same principle applies to Wis. Stat. ch. 980.

The court also dispatches the argument that, by failing to overturn Smith explicitly, the legislature evinced intent to keep that holding on the books, ¶8 n. 3:
… As we have seen in the main body of this opinion, Smith relied on § 980.05(1m) (2003–04) in holding that persons subject to ch. 980 proceedings are entitled to a competency hearing under Wis. Stat. § 971.14. By repealing § 980.05(1m) (2003–04), the legislature overturned case law that used § 980.05(1m) (2003–04) to give to persons subject to ch. 980 proceedings certain rights enjoyed by defendants in criminal cases even though those rights are not otherwise granted by ch. 980. Simply put, Smith’s determination that § 980.05(1m) (2003–04) engrafted § 971.14 onto ch. 980 is not applicable here because § 980.05(1m) (2003–04) is no longer on the books.
One other thing, neither here nor there. It’s generally not a good sign when, even though the issue is purely one of law and therefore an abstraction, the court starts out its overview with a recitation of the horrible albeit irrelevant details of the crime, ¶2.
SVP Commitments – Statement to Field Agent: Compelled, Inadmissible (Under Since-Repealed Statute)
State v. Charles W. Mark, 2008 WI App 44; on appeal following remand in State v. Mark, 2006 WI 78, 292 Wis. 2d 1, 718 N.W.2d 90
For Mark: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding: A parolee’s statement made under grant of immunity (per State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977)), was compelled (therefore involuntary) and inadmissible at a ch. 980 trial governed by § 980.05(1m). ¶16.
As the court of appeals held in the first go-around, 2005 WI App 62, ¶14, Evans says that the statement of someone under supervision to his field agent is compelled to choose “between answers that will incriminate them in pending or subsequent criminal prosecutions and loss of their conditional liberty as a price for exercising their right to remain silent.” The compromise is that the person is granted immunity: he must then open up or else his silence will itself be a basis for revocation. And, keeping in mind that the 5th amendment bars compelled self-incrimination, the grant of immunity in other words resolves the self-incrimination part—without the prospect of being prosecuted for the answer, the person isn’t incriminating himself. And that is indeed what the trial court ruled on remand (¶16). One slight problem, though: because the statement was compelled it isn’t admissible at a criminal trial, and further because § 980.05(1m) grants (or, rather, granted) an SVP respondent the same constitutional protections as a criminal defendant, Mark’s written statement to his parole agent under grant of immunity was no more admissible than if he had been facing a criminal charge.

Note that § 980.05(1m) was repealed as of June 6, 2006, 2005 Wis Act 434, making the impact of this holding very limited, at least with respect to the rights attaching under this statute. That doesn’t mean that there’s no potential fall-out, though. Mark argued that as a mater of constitutional law involuntary statements may not be admitted into evidence against an SVP respondent, but the court declined to reach the argument, ¶12 n. 9. The supreme court has indeed held, in excluding involuntary statements from an administrative proceeding: “As a matter of law, the coerced, involuntary confessions here extracted may not, under the circumstances, be used for any purpose,” Oddsen v. Board of FPC, 108 Wis.2d 143, 163, 321 N.W.2d 161 (1982). To be sure, the tactics used to extract Oddsen’s statement were pretty aggravated, but at least it settles the principle that the ban on evidentiary use of coerced statements isn’t limited to criminal trials.

SVP Commitments – Evidence -- Disposition Alternatives – Irrelevancy of DOC Supervision
State v. Owen Budd, 2007 WI App 245
For Budd: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: Evidence that SVP respondent would be under DOC supervision if not committed under ch. 980 properly excluded as irrelevant, ¶¶8-14 (“the fact of supervision is irrelevant to whether Budd is a sexually violent person under § 980.01(7),” ¶14).
The court in essence follows its statement in State v. Charles W. Mark, 2005 WI App 62, ¶47, affirmed 2006 WI 78, that mere fact of supervision is irrelevant, against challenge to that statement as dicta.
SVP Commitments – Evidence -- “Screening Process” for 980 Candidates
State v. Owen Budd, 2007 WI App 245
For Budd: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether the trial court erred in admitting evidence as to the “screening process” for referring SVP cases, which had the effect of informing the jury that fewer than 5% of eligible sex offenders are selected for commitment proceedings.
Holding:
¶16   We need not conclude, as Budd urges, that the DOC’s screening process for potential Wis. Stat. ch. 980 cases is irrelevant as to the determination of whether a defendant is a sexually violent person as a matter of law. The problem with the screening evidence admitted in this case is that it did not establish why Budd was selected for ch. 980 proceedings. [6] The evidence only explained that most sex offenders scheduled for release are not selected for ch. 980 proceedings, without explaining why a select few are so chosen. [7] There was no testimony as to the qualification of the ECRB or its chairman, or explanation of the evaluation process used by either. From the record, the ECRB’s process could be random, or based on irrelevant criteria. As Budd points out, all the evidence served to do in this case was to inform the jury that Budd was selected as one of the 4.5% of sex offenders recommended for ch. 980 proceedings. Without explaining why, we do not see how that information is relevant to whether Budd is a sexually violent person under our analysis in Mark. [8]

¶18   Here, the State’s expert testified that Budd was among only 4.5% of sex offenders selected for Wis. Stat. ch. 980 proceedings, stating that the chairman of the ECRB screens 75% of sex offenders out of the potential ch. 980 pool, the ECRB screens out another 50%, and that she refers only about a third of the cases she receives. The State referenced that testimony in closing to rebut the defense’s implication that Marsh was biased, stating that her recommendations are conservative. One expert testified that Budd met the criteria of a sexually violent person and three experts testified that he did not. The screening evidence did not duplicate any properly admitted evidence. This is a close case. We conclude that the impact of telling the jury that the respondent was one of only 4.5% of sex offenders selected for ch. 980 proceedings, where three of the four experts testified that the respondent did not meet the criteria of a sexually violent person, contributed to the jury’s finding that Budd is a sexually violent person. Accordingly, we reverse and remand for proceedings consistent with this opinion.


 [6] The “screening evidence” at issue is Marsh’s testimony as to the process the DOC uses to screen sex offenders scheduled for release before referring certain sex offenders to her for special evaluations. We recognize that Marsh explained the methodology she uses to select certain sex offenders for Wis. Stat. ch. 980 proceedings from the group referred to her.

 [7] Budd argues that the percentage of sex offenders referred for Wis. Stat. ch. 980 proceedings is in itself irrelevant to the issue of whether the respondent is a sexually violent person. He asserts that the outcome for other sex offenders has no bearing on whether he is a sexually violent person. However, because we conclude that the evidence presented in this case was irrelevant due to the lack of explanation as to the screening process used to refer Budd for ch. 980 proceedings, we need not reach the question of whether the percentage of sex offenders referred would ever be relevant.

 [8] The State argues that the screening evidence is admissible under Wis. Stat. § 907.02 as specialized knowledge necessary to assist the jury in understanding the expert testimony. Again, we fail to see how the mere fact that a screening process takes place, without explaining the basis for the screening, provides specialized knowledge for the jury.

Thus, the court doesn’t hold that the screening process can never be relevant, it’s just that it’s irrelevant in this particular case because it wasn’t specifically linked to Budd. Once the “experts” figure out the right mumbo-jumbo they’ll be talking up a linkage festival. Great. Still: it’s not as if the actuarials themselves are linked in any meaningful way to the particular subject; just a thought -- see, though, In the Matter of Murrell, MO SCt No. SC87804, 2/13/07 (admissibility of Static-99 and MnSOST-R upheld against argument they relect only results of group analysis and are therefore irrelevant on whether this particular respondent is likely to reoffend.
SVP Commitment – Expert Misstatement of Test for Commitment – Interest of Justice Review
State v. Barry L. Smalley, 2007 WI App 219, PFR filed 10/19/07
For Smalley: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: State SVP expert’s unobjected-to misstatement of test for measuring reoffense risk (“more likely than not” means “any chance greater than zero” rather then more than 50%) didn’t support reversal in the interest of justice:
¶10      First, Dr. Jurek’s statement was an isolated occurrence in a three-day trial. During the course of that trial, the issue of whether Smalley was “more likely than not” to reoffend was a main point of contention, and there was a great deal of testimony on it. For example, another of the state’s witnesses, also a psychologist, testified that “more likely than not” means more than 50% chance of reoffense. …

¶12      “More likely than not” is not an obscure or specialized term of art, but a commonly-used expression. It is hard to think of a clearer definition of the term than the term itself; though perhaps its expansion to “more likely to happen than not to happen” is more explicit. We find it difficult to imagine that any juror was without an understanding of the phrase’s meaning before, during or after the trial, or that any juror thought that the phrase meant something other than “more likely to happen than not to happen.” Given that Dr. Jurek is a psychologist with much experience related to Wis. Stat. ch. 980, a juror might have been willing to take his word on psychological testing, mental disorders, and the like. This does not mean, however, that the same juror would believe Dr. Jurek if he said that the phrase “more likely than not” means “any chance greater than zero” or “at all possible.” Everyone would readily agree that a person who buys a state lottery ticket has a chance greater than zero of winning the jackpot – that is, that winning the lottery, however unlikely, is possible. But no reasonable person would say that it is “more likely than not.” We simply cannot believe that Dr. Jurek’s ambiguous and confusing misstatement would convince a reasonable person to the contrary.

SVP Commitment – Test for Commitment: Risk of Offense “More Likely Than Not” = Greater Than 50%
State v. Barry L. Smalley, 2007 WI App 219, PFR filed 10/19/07
For Smalley: Donald T. Lang, SPD, Madison Appellate
Issue/Holding: “(T)he phrase ‘more likely than not’ in the statute means what it says: that an event is more likely to occur than not to occur; that is, has a greater than 50% chance of happening. Thus, in order to find Smalley a sexually violent person, the jury had to conclude that, due to a mental disorder, there was more than a 50% chance that Smalley would commit a sexually violent offense in the future,” ¶6.
SVP Commitment – Use Of Actuarials
State v. Barry L. Smalley, 2007 WI App 219, PFR filed 10/19/07
For Smalley: Donald T. Lang, SPD, Madison Appellate
Issue/Holding:
¶18      Smalley notes that the actuarial instruments fail to take an individual’s mental disorder into account, and that they therefore predict dangerousness in general, rather than dangerousness due to mental disorder. He argues that because a jury in a Wis. Stat. ch. 980 trial is required to find dangerousness due to mental disorder, a general prediction of danger is completely irrelevant to the jury’s task. [7] Irrelevant scientific evidence is, of course, not admissible, even given the “limited gatekeeper” role of the Wisconsin judge. See Green v. Smith & Nephew AHP, Inc., 2000 WI App 192, ¶21, 238 Wis. 2d 477, 617 N.W.2d 881, aff’d, 2001 WI 109, 245 Wis. 2d 772, 629 N.W.2d 727 (“expert testimony is admissible if relevant” (emphasis added)). [8]

¶20      We reject Smalley’s argument because we conclude that the actuarial instruments, though they measured dangerousness without regard to Smalley’s mental illness, were nevertheless relevant. Relevant evidence is that evidence which tends to make any fact of consequence in the proceedings more or less likely. See Michael R. B. v. State, 175 Wis. 2d 713, 724, 499 N.W.2d 641 (1993). Smalley’s dangerousness was a fact of consequence to the proceedings; it was not the only fact that needed to be shown, but evidence need not go to every facet of a party’s case in order to be relevant. It is true that ultimately, the State needed to show that Smalley was dangerous due to a mental disorder. To that end, it adduced evidence of a mental disorder and evidence that Smalley was dangerous. It also adduced testimony from its experts as to the ways in which Smalley’s alleged mental disorder made him dangerous. Evidence of dangerousness, while insufficient on its own to support a commitment, is clearly relevant to the ultimate determination that the jury must make: dangerousness due to mental disorder.

¶21      As to Smalley’s concern that the jury may have found him sexually violent solely based on his dangerousness without properly considering the required nexus between that dangerousness and his mental disorder, we note that the jury was properly instructed on this point. Juries are presumed to follow the court’s instructions. State v. Delgado, 2002 WI App 38, ¶17, 250 Wis. 2d 689, 641 N.W.2d 490. We see no reason to think that this jury did anything other than what it was required to do.

SVP Commitments – Proof of Overt Act of Dangerousness: Not Required as Matter of Equal Protection
State v. Steven C. Feldmann, 2007 WI App 35, PFR filed 3/23/07
For Feldmann: Jefren E. Olsen, SPD, Madison Appellate
Issue/Holding: The ch. 980 omission of required proof of a recent overt act of sexual violence does not violate equal protection, as compared with the ch. 51 mental health commitment requirement of proof of a recent overt act demonstrating dangerousness.
The supreme court refused to impose such requirement under ch. 980 as a matter of substantive due process, in State v. Thomas H. Bush (III), 2005 WI 103.
Likelihood of Future Sexual Violence Satisfies Substantive Due Process
State v. Scott R. Nelson, 2007 WI App 2, PFR filed 1/22/07
For Nelson: Joseph L. Sommers
Issue/Holding:
¶15      … Even under the “more likely than not” standard, there must be a strong nexus between the person’s mental disorder and that person’s level of dangerousness. Under this standard, the likelihood that the person will engage in an act of sexual violence is more than 50%. [6]

¶16      The principal purposes behind chapter 980 are “the protection of the public and the treatment of convicted sex offenders who are at a high risk to reoffend in order to reduce the likelihood that they will engage in such conduct in the future.” State v. Carpenter, 197 Wis. 2d 252, 271, 541 N.W.2d 105 (1995). We recently said in Tabor that “the legislature may modify the threshold for dangerousness so long as the applicable criteria remain relevant to ch. 980’s underlying purposes of both protecting society and providing needed treatment to persons whose mental disorder makes them dangerous.” Tabor, 282 Wis. 2d 768, ¶5. Nelson provides no persuasive explanation for why these purposes are not well served by the “more likely than not” standard. Cf. Hendricks, 521 U.S. at 360 n.3 (“[W]hen a legislature ‘undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation.’” (citation omitted)).

¶18      In sum, we discern no reason why the “more likely than not” standard is not sufficiently narrowly tailored to achieve the State’s compelling interest in protecting society by preventing acts of sexual violence through the commitment and treatment of those identified as most prone to commit such acts. Certainly none of Nelson’s substantive due process arguments persuade us beyond a reasonable doubt that chapter 980, as amended by 2003 Wis. Act 187, is unconstitutional.

Likelihood of Future Sexual Violence Satisfies Equal Protection
State v. Scott R. Nelson, 2007 WI App 2, PFR filed 1/22/07
For Nelson: Joseph L. Sommers
Issue/Holding:
¶20      … Thus, according to Nelson, Curiel stands for the proposition that equal protection exists for subjects of chapter 980 only so long as chapter 980 employs the “substantial probability” standard used in Wis. Stat. chapter 51. We disagree. …

¶22      Persons committed under chapter 980 and persons committed under chapter 51 may be similarly situated, see Post, 197 Wis. 2d at 318-19, but they are not identically situated. … It follows that the standard we discuss today must be “similar” to that in chapter 51, but need not be identical. In light of the above discussion in Post, which was reaffirmed in Burgess, we are not persuaded that chapter 980 must contain the identical “substantially probable” standard as chapter 51 in order to comport with equal protection principles. Nelson’s limited argument does not demonstrate, beyond a reasonable doubt, that chapter 980, as amended by 2003 Wis. Act 187, is unconstitutional on equal protection grounds.

Constitutionality of Ch. 980 – Absence of Proof of “Imminent” Danger
State v. Terry L. Olson, 2006 WI App 32, PFR filed 3/16
For Olson: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue: Whether ch. 980 is unconstitutional because the SVP definition of “dangerousness” is not linked to imminent risk.
Holding:
¶5       We deem Olson’s reliance on Lessard misplaced. In 2002, our own supreme court considered a challenge to Wis. Stat. ch. 51 and never so much as mentioned Lessard. See generally Dennis H., 255 Wis. 2d 359. The court stated that substantive due process did not require the State to restrict the scope of its mental health commitment statutes to individuals who are imminently physically dangerous. Id., ¶38. Dennis H. observed that the statute was designed to protect “those who are chronically mentally ill and drop out of therapy or discontinue medication, giving rise to a substantial probability of deterioration in condition to the point of inability to function independently or control thoughts or actions.” Id., ¶41. “Deterioration,” of course, can be gradual and might not result in immediate inability to function or control one’s actions. Dennis H. wholly answers the question of whether ch. 51 requires an “imminence” requirement, and we are bound by that precedent. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) (only the supreme court can overrule a supreme court decision).

¶6        If an imminence requirement is not mandated in Wis. Stat. ch. 51 commitments, it is even less appropriate for Wis. Stat. ch. 980 confinements. Our courts have recognized that ch. 980 serves two important compelling purposes: protecting the public from violent sex offenders and providing care and treatment to individuals whose mental disorders predispose them to sexual violence. Post, 197 Wis. 2d at 302-03. As a class, these individuals present a graver danger to the public than others with mental disorders. … The underlying propensity for uncontrollable violence is not confined to the immediate future but rather presents an ongoing threat to the public. Thus, the fact that the legislature did not myopically limit its view of dangerousness to the immediate future does not render the statute unconstitutionally infirm.

The result might be predictable, but the court’s rhetoric if nothing else is noteworthy. For one thing, the court rightly says that the “supreme court has had many opportunities to invalidate Wis. Stat. ch. 980” but hasn’t, and therefore must not find problematic the definition of “dangerous,” ¶11. True, no doubt. Early on, the court was somewhat hesitant about extending the reach of ch. 980 but that diffidence seems to have pretty well dissipated over time, along with restrictions to commitment. Then there is the court’s uncritical embrace of the fiction that we can refine the “science” of predicting behavior well into the future, ¶10: “What may be a ‘foreseeable’ period based on one psychiatric assessment might differ from what is reasonably predictable using different methodologies. Moreover, each case has its own facts that might influence how far into the future one can predict a likelihood of dangerous behavior. The legislature had no obligation to ignore this reality.” What “reality”? The one that says if you give your prediction a long enough time horizon you’ll be long gone before “different methodologies” cast doubt on it? ( See, e.g., State v. Henry Pocan, 2003 WI App 233.) But this just leads to the court’s observation, at the outset of the opinion, ¶1: “Our courts have recognized that, as a class, sexually violent persons pose an even greater threat to the public than ch. 51 committees. Not only have they already perpetrated acts that demonstrate their willingness to commit violent sex offenses, their existing mental disorders diminish their capacity to avoid reoffending. Those who treat ch. 980 committees must invest a great deal of time and effort in equipping these individuals with coping mechanisms that enable them to control their predatory desires. It is this propensity for sexual violence, not the precise point at which it may manifest itself, that makes the individual particularly threatening to society.” How is it that the courts dogmatically refuse to entertain a defense of diminished capacity to intend a criminal act ( State v. Repp, et al) but at the same time have no problem locking someone up forever based on a diminished capacity not to commit a criminal act? More and more, the rationale for SVP commitment is overt; it is preventive detention, dressed up in white lab coats. But we already knew that. It is just that the courts are increasingly confident that such a rationale will be upheld.
Constitutionality of Ch. 980, Proof of Recent Overt Act not Required
State v. Thomas H. Bush (III), 2005 WI 103, reversing in part and affirming on the merits, 2004 WI App 193
For Bush: Robert G. LeBell
Issue/Holding: Due process does not require proof of a recent overt act in order to support ch. 980 SVP commitment, even where the respondent has been released and reincarcerated for nonsexual behavior 21-39. (In re Albrecht, 51 P.3d 73 (Wash. 2002), not followed.)
Dangerousness, Reduced Showing -- Effective Date
State v. Shermell G. Tabor, / State v. Ronald Irvin Ryan, 2005 WI App 107
For Tabor / Ryan: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: Legislative modification of the definition of SVP “dangerousness” (2003 Wis Act 187, §§ 2, 2m, amending §§ 980.01(7) and 980.02(2)(c); reducing the necessary showing from “substantial probability” to mere likelihood of sexual violence) has an effective date of April 22, 2004; and applies to trial held after that date even if the petition preceded the date.
"substantially probable": definition, "significantly more likely than not."
State v. Harry S. Bernstein, 231 Wis.2d 392, 605 N.W.2d 555 (Ct. App. 1999).
For Bernstein: Mary E. Waitrovich, SPD, Madison Appellate.
Issue: Whether the phrase "substantially probable" in § 980.01(7) is unconstitutionally vague.
Holding: The phrase is defined with sufficient precision as "much more likely than not"; and, the trial court's definition in this case -- "significantly more than likely" -- is the equivalent. ¶12, citing State v. Curiel, 227 Wis. 2d 389, 597 N.W.2d 679 (1999)
Go to Brief
"substantial probability" of reoffending.
State v. Frank Curiel, 227 Wis.2d 389, 597 N.W.2d 697 (1999), affirming unpublished decision.
For Curiel: Jack. C. Hoag, Sedor & Hoag.
Holding: "¶3. 1) What is the proper interpretation of 'substantially probable' as the term is used in Wis. Stat. ch. 980? We hold that 'substantially probable,' construed according to its common and appropriate usage, means 'much more likely than not.'" The court of appeals had held that "substantially probable" required no definition. Though the supreme court affirms the result, it specifically disagrees with this conclusion: "We conclude that when the legislature used 'substantially probable,' it intended that the standard be read according to its common and appropriate usage: 'much more likely than not.'" ¶19. The court thus rejects both parties' arguments on this phrase's meaning (Curiel: "extreme likelihood"; state: no definition necessary). "(T)he term 'substantially probable,' when construed according to its common and appropriate usage to mean 'much more likely than not,' is not unconstitutionally vague." ¶5.
"substantial probability" of reoffending.
State v. Peter Kienitz, 227 Wis.2d 423, 597 N.W.2d 712 (1999), affirming 221 Wis.2d 275, 585 N.W.2d 609 (Ct. App. 1998).
For Kienitz: Suzanne Hagopian, Mary E. Waitrovich, SPD, Madison Appellate.
Holding: Kienitz had a 25-year criminal history, with insignificant improvement, deliberate violations of supervisory rules, and denial of need for treatment: "The circuit court was entitled to rely on this evidence in determining that it was much more likely than not that Kienitz would reoffend." ¶23. The circuit court (trial was to the court) erred in finding that Kienitz had one more assault conviction than he actually had. The supreme court in effect concludes that this error was de minimis, inasmuch as the circuit "did not rely on a specific number of offenses[.]" ¶26. Kienitz also argues that ch. 980 commitment requires expert testimony. ("In essence, Kienitz insists that a determination of dangerousness cannot be made without statistical evidence on the probability of reoffense provided by an expert, irrespective of other non-expert testimony and empirical evidence." ¶29. The court declines to reach "the broader question of whether expert testimony is required as a matter of law." ¶31. Several experts did testify. Their credibility was for the trier of fact, which had the authority to reject or accept in whole or part the testimony of any of them.
Go To Brief
Pre-petition Statements -- Self-Incrimination, Generally
State v. Charles W. Mark, 2006 WI 78, affirming 2005 WI App 62
For Mark: Glenn L. Cushing, SPD, Madison Appellate
Issue: Whether Mark’s statements to his parole officer were compelled and therefore inadmissible in his subsequent SVP trial.
Holding:
¶16      … (W)hen a defendant seeks to exclude prior statements based upon his or her Fifth Amendment privilege, he or she must first establish that the statements at issue are 1) testimonial; 2) compelled; and 3) incriminating. See id. Therefore, we reject Mark's argument that the mere fact that a statement is compelled requires it be excluded from a ch. 980 commitment trial. [7]

¶17      … (A) defendant's custody status alone is not sufficient to determine whether the statements were, in fact, compelled. …


[7] Mark relies on several authorities ( Minnesota v. Murphy, 465 U.S. 420 (1984); State ex rel. Tate v. Schwarz, 2002 WI 127, 257 Wis. 2d 40, 654 N.W.2d 438; State v. Thompson, 142 Wis. 2d 821, 419 N.W.2d 564 (Ct. App. 1987); State v. Evans, 77 Wis. 2d 225, 252 N.W.2d 664 (1977)) to argue that a compelled statement by a probationer may not be used for any evidentiary purpose in a criminal prosecution, and therefore, in a ch. 980 trial. Yet Mark misstates the holdings in those cases by suggesting that compulsion alone is sufficient to exclude a statement from a criminal prosecution. A statement must be testimonial, incriminating, and compelled to be excluded from a criminal prosecution by virtue of the Fifth Amendment.
Note: The applicability of 5th amendment analysis generally to SVP trials hinged on § 980.05(1m), which mandated that all constitutional rights available to a criminal defendant are available to a 980 respondent, ¶¶13-15—“hinged,” because that provision has been repealed, 2005 Wis Act 434. The decision oddly fails to mention this development, which greatly limits its precedential value. For a glimpse of the impact of this repeal see Justice Butler’s partial dissent, ¶¶53-61.
Pre-Petition/Arrest Statements – Self-Incrimination: Statements to Supervising Agent
State v. Charles W. Mark, 2006 WI 78, affirming 2005 WI App 62
For Mark: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding:
¶24      Examining Zanelli I in light of the United States Supreme Court's decision in Murphy, we now conclude that the language in Zanelli I sweeps too broadly in declaring that "'[t]he Fifth Amendment protects a person from compelled self-incrimination at all times. . . .'" Zanelli I, 212 Wis. 2d at 371 (citing Fencl, 109 Wis. 2d at 236).  While we agree with the Zanelli I court that the Fifth Amendment guarantee against self-incrimination extends to prearrest silence and that Wis. Stat. § 980.05(1m) gives ch. 980 respondents the same constitutional rights as criminal defendants at trial, Murphy reaffirms the general rule that the Fifth Amendment privilege must be asserted in all but "certain well-defined situations." Murphy, 465 U.S. at 429.

¶25      … Therefore, the mere fact that an individual is required to appear and report truthfully to his or her probation (or parole) officer is insufficient to establish compulsion.

¶27      Therefore, in a prepetition or prearrest situation, in order for an individual to effectively invoke his or her Fifth Amendment rights against self-incrimination, he or she must ordinarily assert the privilege. [8] We hereby withdraw any language in Zanelli I that conflicts with the United States Supreme Court's decision in Murphy.

Self-Incrimination: Definition
State v. Charles W. Mark, 2006 WI 78, affirming 2005 WI App 62
For Mark: Glenn L. Cushing, SPD, Madison Appellate
Issue/Holding:
¶29      In Zanelli II, the court of appeals defined "incriminating" as such "statements [that] could incriminate [one] in a pending or subsequent criminal prosecution. . . ." Zanelli II, 223 Wis. 2d at 568. Mark argues that the court of appeals' reliance on the definition of incriminating in Zanelli II is inappropriate in light of a footnote in the United States Supreme Court decision in Rhode Island v. Innis, 446 U.S. 291 (1980), which suggests a different definition, although in regard to the term "incriminating response."

¶30      … The flaw in Mark's argument is that the Innis definition of "incriminating response" necessarily contemplates the use of statements by the prosecution in a criminal trial. In such circumstances, it is reasonable to infer that any statement of the defendant that the prosecution might seek to admit would have the tendency to incriminate or inculpate the defendant. The same cannot be said in a ch. 980 civil commitment trial, where the object of the proceeding is to determine the likelihood the defendant will commit a future act of sexual violence, not to convict him of a crime. Outside of the criminal context, the rationale behind the Innis definition loses its force. Therefore, for purposes of a ch. 980 trial, we conclude that the definition of incriminating adopted by the court of appeals in Zanelli II is the appropriate one.

Marks’ admission to conduct for which he had already been convicted couldn’t subject him to future prosecution; nor could his admission to a parole violation which wasn’t criminal in nature, ¶31. Two other statements could be the basis for criminal charge, but remand is necessary to determine whether these statements were compelled, ¶33.
Admissibility of UnMirandized, Pre-Petition Statements -- Rights “At Trial,” § 980.05(1m)
State v. Joseph A. Lombard, 2004 WI 95, affirming 2003 WI App 163, 266 Wis. 2d 887, 669 N.W.2d 157
For Lombard: David R. Karpe
Issue: Whether a potential ch. 980 subject is entitled to Miranda warnings prior to a pre-petition evaluation interview.
Holding:
¶28. We conclude that Wis. Stat. § 980.05(1m) does not require that ch. 980 respondents be given Miranda warnings prior to pre-petition interviews with state evaluators.

¶37. The plain language of Wis. Stat. § 980.05(1m) contains the words "at the trial" at the beginning of the subsection. We agree with the State that, although those words did not begin the sentence referring to constitutional rights, a reasonable interpretation of the plain language of the statute leads to the conclusion that the legislature intended that such constitutional rights would apply at respondent's trial. The context also supports that conclusion. Here, Lombard gave the statements in question during the pre-petition phase of the process. Certainly, there is nothing within § 980.05(1m) to indicate that such constitutional protections must be afforded to potential respondents during the pre-petition phase, well before trial.

A ch. 980, SVP proceeding is civil; procedural rights applicable to criminal proceedings don’t apply, and so, in other jurisdictions, issues such as this tend not to arise or are made short shrift of; but in Wisconsin, by statute, § 980.05(1m), constitutional protections do apply – to give but one of many possible examples, this statute requires that a Wisconsin subject be competent during 980 proceedings, State v. Giles L. Smith, 229 Wis.2d 720, 600 N.W.2d 258 (Ct. App. 1999), but other states which don’t have this statute tend to allow incompetent subjects to be committed because the constitution doesn’t care if you have too many screws loose to assist in your own defense against commitment. But when do these statutorily granted procedural protections apply? The majority, as indicated above, says, “at trial.” An easy enough pronouncement, but it does require squaring a circle or two. A defendant has a pre-trial, for that matter pre-arrest, right to silence, and, so too therefore does a 980 subject. State v. Zanelli (Zanelli I), 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997). The court seems to agree Zanelli I “that a person subject to a pre-petition evaluation has the right to remain silent pursuant to” the statute, but then immediately turns around and says that this right doesn’t extend to pre-petition warnings, ¶¶39-40. Yet, these appear to be incompatible notions: How can the right to silence be protected without some sort of cautionary advice? The court, in effect ratifying State v. Zanelli (Zanelli II), 223 Wis. 2d 545, 589 N.W.2d 687 (Ct. App. 1998), simply says that, because Lombard had already been convicted for the underlying offenses, any statements he made during the evaluation “regarding those assaults could not be used against him in future prosecutions.” ¶42. That may or may not have been true (-- what if other, not-yet prosecuted offenses came up? --) but in any event this can only mean that there is after all no right to silence at this stage, Zanelli I notwithstanding. If this summary isn’t clear, let the dissent of the Chief Justice, pellucid as usual, take over:
¶60. A. I agree with the majority opinion that a prospective ch. 980 individual has a right to remain silent at the pre-petition examination pursuant to Wis. Stat. § 980.05(1m).12 Zanelli I established this right.13 The majority opinion adheres to Zanelli I.

¶61. B. I agree with the majority opinion that a prospective ch. 980 individual's silence during a pre-petition examination may not be used against the individual during trial.14

¶62. This case does not involve silence. Lombard spoke. The State used Lombard's speech against him at trial.

¶63. C. I disagree with the majority opinion that a prospective ch. 980 individual need not be advised that he or she has a right to remain silent and that his or her silence will not be used against him or her at trial.15

And as the Chief Justice further indicates, fn. 15, “I confess that I find it difficult to follow the reasoning of the majority opinion, much of which seems more applicable to the first two issues rather than this third issue.”

But it’s not as if this problem hasn’t stumped other courts. Illinois has a statute very similar to § 980.05(1m), which has been construed it in this somewhat odd way:

Apparently, respondent interprets section 30(c) of the Act as giving a person the right to remain silent at evaluations. We disagree. As the court stated in In re Detention of Tiney-Bey, 302 Ill. App. 3d 396, 402, 707 N.E.2d 751, 236 Ill. Dec. 624 (1999), "a respondent has the power, but not the right, to refuse to comply with an evaluation." Section 30(c) of the Act "merely addresses the practical problems that may arise because of this and does not imply a right to remain silent." Tiney-Bey, 302 Ill. App. 3d at 402.
People v. Traynoff
, 338 Ill. App. 3d 949, 962 (Ill. App. Ct., 2003).

Apparently, for Illinois courts, it is a “practical problem” that someone may want to exercise a right afforded by statute.

It’s highly unlikely ever to come up, but if for some reason the evaluation occurs while the putative subject is in the direct-appeal phase of the underlying conviction, then there would be a much more clear-cut [that is, constitutional and not merely statutory] right to silence. E.g., State ex rel. Gary Tate v. Schwarz, 2002 WI 127, ¶¶20-22. And for a discussion on the interaction of sex offender treatment programs and the 5th amendment right to silence, see here.

Admissibility of statements to probation and police officers.
State v. Ronald J. Zanelli (II), 223 Wis.2d 545, 589 N.W.2d 687 (Ct. App. 1998).
For Zanelli: Jane K. Smith.
Holding: Statements to probation officers were admissible because they merely dealt with Zanelli's background, hence could not have subjected him to prosecution. On a Miranda challenge to a 1997 statement to a police officer, the COA rejects the AG's argument that Miranda doesn't apply to a 980 proceeding (this conclusion is reached by virtue of § 980.05(1m)). However, Zanelli wasn't in custody when he made the statement, so it's not suppressible.
Antisocial Personality Disorder
Reuben Adams v. Bartow, 02-3234, 7th Cir., 6/3/03, denying habeas relief in State v. Adams, 223 Wis. 2d 60, 588 N.W.2d 336 (Ct. App. 1998)
For Adams: Samuel Arena (Foley & Lardner)
Issue: Whether the state court affirmance of Adams’ commitment unreasonably applied Kansas v. Hendricks, 521 U.S. 346 (1997) or Foucha v. Louisiana, 504 U.S. 71 (1992).
Holding:
The essence of Adams’s claim is that it is a violation of due process to civilly commit a person based solely on the fact that he is a previously convicted sex offender with APD [antisocial personality disorder)....

We reject Adams’s challenge on several grounds. First, as we will explain in more detail below, the Wisconsin appeals court’s decision to confine Adams was based on more than just that he is a convicted sex offender with APD, so the factual underpinning of Adams’s claim is erroneous. Second, the Supreme Court’s decision in Foucha was based on a specific combination of factors that is not present in this case: (1) the state, for whatever reason, had conceded that antisocial personality was not a mental disease and therefore admitted that it was confining someone who was not actually mentally ill, id. at 78-79; (2) Foucha was not afforded constitutionally adequate procedures to establish the grounds for his confinement, id. at 79; and (3) the state had not shown that Foucha was dangerous and in fact had no obligation to do so because its statute placed the burden on the individual to show that he was not dangerous, id. at 81-82. Ultimately, the general rule we take from Foucha is simply that an insanity acquittee may be held for only as long as he is still mentally ill; his dangerous propensities alone do not justify continued confinement. See United States v. Wattleton, 296 F.3d 1184, 1202 n.35 (11th Cir. 2002); United States v. Phelps, 283 F.3d 1176, 1184 (9th Cir. 2002). The Wisconsin appeals court’s decision was not an unreasonable application of this rule because there was no dispute during the state court proceedings that Adams has a mental illness—namely, APD. Moreover, even if Foucha can be read to have implied in dicta that APD standing alone is insufficient to warrant civil commitment, dicta does not qualify as “clearly established Federal law” for purposes of § 2254(d)(1). Andrade, 123 S.Ct. at 1172....

Adams’s claim that the Wisconsin appeals court unreasonably applied Hendricks is based on his belief that he is being confined solely because he is a convicted sex offender with APD, which he points out is a relatively common disorder in the male prison population....

We disagree with Adams’s characterization of the appeals court’s decision. The court found Adams eligible for confinement under Chapter 980 not only because he is a sex offender with APD but also because there was enough evidence in the trial record to establish that Adams was “substantially probable” to commit another sexually violent offense. Adams, 588 N.W.2d at 342. Specifically, the court noted evidence of “Adams’s history of sexually violent crimes, history of non-sexual crimes and antisocial behavior, failures under court-ordered supervision, denial of responsibility, refusal to participate in sexual assault treatment programs and drug/alcohol treatment programs, and his sexual offense recidivism.” Id. at 341-42. The court also noted Dr. Diamond’s testimony that Adams is “a risk and it’s highly probable that he would recommit and reoffend” and Dr. Sindberg’s testimony that “based on his evaluation of thirty-one risk factors, there was a substantial probability that [Adams] will reoffend or recommit a sexually violent act.” Id. (quotations omitted). Given this record, we cannot say that it was unreasonable for the court to find that the nature of Adams’s mental disorder was sufficient to distinguish him from the “typical recidivist convicted in an ordinary criminal case.” Crane, 534 U.S. at 413.

(The court stresses “that we are not deciding any questions regarding the facial validity of Chapter 980, nor are we deciding whether the Wisconsin Court of Appeals’ decision was an unreasonable application of Crane.” It’s not clear whether this disclaimer ought to be taken at face value. First, the court cites with approval Linehan v. Milczark, 315 F.3d 920 (8th Cir. 2003), at least for the idea that APD+ satisfies Hendricks (where the value embodied by "+" apparently doesn't have to be much if anything > 0). But Linehan did uphold the constitutionality of the Minnesota Act: “We conclude that the Minnesota Supreme Court reasonably applied the clearly established federal law when it reconsidered the constitutionality of the standard for civil commitment under the SDP Act.” Hard to believe, that is, that the favorable citation to Linehan doesn’t presage approval of the constitutionality of ch. 980 on its face. As to Crane possibly adding something to the analysis: well, the whole point of that case was to “clarify” that Hendricks didn’t quite reach as far as it seemed; hard to believe, then, that its application will add anything. This would seem to be the bottom line: you can’t commit someone merely due to antisocial personality disorder; but APD is a “mental illness” and therefore will support commitment when coupled with other evidence establishing difficulty controlling behavior. If you rejoin that this seems to conflict with Foucha, then you’d probably be right – but the court has essentially reduced the Foucha holding to dicta. True, you can only hold someone so long as s/he has a mental illness, but APD now is a mental illness; and because APD can't be treated, this case may become license to detain those with criminal propensities forever. Finally, the court expresses doubt that Foucha really does hold that APD alone isn't enough -- though given the court's conclusion that more was shown here than APD, that expression would seem to be itself dicta.)
Appellate Procedure -- Postverdict Motions -- Timeliness
State v. Thomas Treadway, 2002 WI App 195
For Treadway: Lynn E. Hackbarth
Issue: Whether postverdict motions filed more than 20 days after verdict but within 20 days of the order for commitment  were timely so as to allow appeal as matter of right.
Holding: "¶3. We conclude that, in Wis. Stat. ch. 980 proceedings, postverdict motions must be filed within twenty days of the commitment order and, therefore, Treadway, by filing his motions within twenty days of the commitment order, preserved his appeal as a matter of right."
(Note: Ch. 980 appeals come under civil rules. Some day, maybe, the legislature will get around to putting them under Rule 809.30, where they belong, but until that happy day .... Civil rules require the filing of post-trial motions within 20 days of verdict. § 805.16(3). But applying this to a 980 would result in piecemeal appeals, because you've still got a separate, dispositional phase, which would then require postdisposition motions. ¶8. Making the verdict a deadline-triggering event would "require counsel to jump through two hoops in order to preserve appellate rights," an idea the court rejects. ¶11. So far so, good. But what about bench trials? A motion for reconsideration is certainly authorized, but is it required? You tell me. See § 805.17(3). Keep in mind, too, that this is a pre-Act 9 case. Now, secure commitment automatically follows an SVP finding. § 980.06. Presumably, then, you'll now get the commitment order at or about the same time as the verdict.)
Cause for Delay in Trial.
State v. Matthew A.B., 231 Wis.2d 688, 605 N.W.2d 598 (Ct. App. 1999).
For Matthew A.B.: Mary E. Waitrovich, SPD, Madison Appellate.
Issue: Whether the trial's commencement more than 45 days after bindover was for good cause, under § 980.05(1).
Holding: The trial court's conclusion that all the "delays amounted to continuances for good cause sought by the court, by motion of the parties, or by stipulation," is not clearly erroneous. ¶¶18-22.
Go To Brief
Automatic Initial Confinement and Limitations on Supervised Release -- Double Jeopardy, Due Process, Ex Post Facto
State v. Tory L. Rachel, 2002 WI 81, on certification
For Rachel: Richard H. Hart
Issue: Whether certain amendments to ch. 980 (1999 Wis Act 9) during the pendency of Rachel's commitment petition, which severely limit his ability to seek supervised release as an alternative to institutionalization, render his proceeding unconstitutional.
Holding:
Ex Post Facto; Double Jeopardy: Although ch. 980 was previously held to be non-punitive (and therefore non-violative of ex post facto and double jeopardy), State v. Carpenter, 197 Wis. 2d 252, 541 N.W.2d 105 (1995), subsequent United States Supreme Court caselaw requires new analysis. ¶24. Whether a particular consequence is criminal or civil is in the first instance a matter of statutory construction. The statute is then examined to see if it is so punitive in intent or effect as to transform a civil remedy into a criminal penalty. (The "intents-effect" test.) ¶¶32-33. Applying this test: the legislature clearly intended a ch. 980 proceeding to be a civil commitment. Turning to the effects of the legislation, Rachel must prove by the clearest proof that as amended ch. 980 is so punitive that it overcomes this legislative intent. ¶44. Restraint isn't equivalent to punishment. And, certain safeguards exist (subject can file initial discharge petition at any time, § 980.10; Secretary of DHFS can petition for discharge at any time, § 980.09(1); director of institution may petition for subject's supervised release at any time, § 980.08(1); subject entitled to initial periodic reexamination within six months, and 12 months thereafter, § 980.07(1); committing court can order reexamination at any time, § 980.07(3). These provisions are consistent with the legislative intent to provide treatment; that most aren't under the subject's direct control doesn't make the procedure punitive. ¶48. Other factors: involuntary commitments haven't historically been considered punitive; ch. 980 doesn't contain a scienter element; traditional criminal goals such as punishment and deterrence aren't promoted (a ch. 980 subject can't control his/her behavior, hence isn't susceptible to deterrence); culpability doesn't attach. ¶¶50-53).
Due Process: The limitations on supervised release don't impose a restraint to the point of violating due process. The procedures that continue to exist for seeking release "allow for consideration of any improvement in an individual's mental health, and allow the possibility of less restrictive measures or discharge from custody if the person is less dangerous or no longer dangerous." ¶67.
(Note: The court doesn't deal with equal protection, though the court of appeals rejected such an argument, in State v. Isaac H. Williams, State v. Willie Hogan , 2001 WI App 263 (petition for review pending). Though equal protection arguments typically haven't fared any better than others, for a favorable result, see In re Detention of Brooks, 145 Wn. 275, 36 P.3d 1034 (2001) ("The equal protection clauses of the federal and state constitutions require that less restrictive alternatives (LRAs) to confinement be considered at the commitment trials of those committed under chapter 71.09 RCW, the sexually violent predator (SVP) statute, just as LRAs are considered at the trials of persons committed under chapter 71.05 RCW, the mental illness statute.").)
Automatic Initial Confinement -- Substantive Due Process and Equal Protection
State v. Isaac H. Williams, State v. Willie Hogan, 2001 WI App 263, PFR filed 11/23/01
For Williams: Donna L. Hintze, SPD, Madison Appellate
For Hogan: Donald T. Lang, SPD, Madison Appellate
Issue1: Whether the § 980.08(1) requirement that the SVP wait 18 months after initial commitment before petitioning for supervised release violates substantive due process.
Holding:
¶7. … (N)o one can be committed as a sexually violent person under chapter 980 unless he or she is a clear and present danger to others in society-shown not only by a prior conviction (or the equivalent) but also by a significant current risk to commit more crimes of sexual violence. Thus, as we pointed out in Ransdell, the initial mandatory commitment-'requiring that the person first undergo initial evaluation and initial treatment in an institutional setting before any decisions are made as to whether that person is suitable for supervised release'-directed by Wis. Stat. § 980.06, passes strict-scrutiny due-process muster. Ransdell, 2001 WI App 202 at ¶8. We also believe that adding twelve months to the time before which a person committed as a sexually violent person can formally petition for supervised release similarly survives constitutional challenge.

¶8 … Although someone committed as a sexually violent person must now wait eighteen months before formally petitioning the committing court to be placed in the community on supervised release, Wis. Stat. § 980.08(1), rather than the six-month period under the earlier version of that section, the committing court can always consider supervised release whenever the committed person seeks discharge, Wis. Stat. §§ 980.09(1)(c) and 980.09(2)(c), and the committed person may file an initial petition for discharge 'at any time.' Wis. Stat. § 980.10 (emphasis added). One of three things happens after the person files a petition for discharge:
·the person shall be discharged from custody if he or she petitions 'the committing court for discharge,' and the State does not carry its burden of 'proving by clear and convincing evidence that the petitioner is still a sexually violent person.' Wis. Stat. §§ 980.09(1)(a) and 980.09(1)(b).

·the person shall be placed on 'supervised release' if the State carries its burden of proving by clear and convincing evidence that the person is still a sexually violent person, but the court determines, applying the criteria under Wis. Stat. § 980.08(4), that the State has not proven-again, by clear and convincing evidence-'that it is still substantially probable that the person will engage in acts of sexual violence if the person is not continued in institutional care,' Wis. Stat. § 980.08(4).

·the person remains in institutional care if the State carries its dual burden of proving by clear and convincing evidence that the person is still a sexually violent person and that he or she will commit acts of sexual violence unless he or she is 'continued in institutional care.' Wis. Stat. § 980.08(4).

The Department must also 'conduct an examination' of the 'mental condition' of the committed person 'within 6 months after an initial commitment under s. 980.06.' Wis. Stat. § 980.07. The person being examined under § 980.07 must be told of his or her 'right to petition the court for discharge over the secretary's objection.' Wis. Stat. § 980.09(2)(a). Further, the committing court 'may order a reexamination of the person at any time during the period in which the person is subject to the commitment order' Wis. Stat. § 980.07(3) (emphasis added).

¶9. In light of all the safeguards and alternative methods by which a person committed under Wis. Stat. ch. 980 can obtain supervised release, we cannot say that Hogan and Williams have carried their burden of showing beyond a reasonable doubt that the marginal impediment to supervised release created by the amendment to Wis. Stat. § 980.08(1) (1997-1998) violates their right to substantive due process because § 980.08(1) now requires an additional twelve months before they may formally file a petition for supervised release.
Issue2: Whether the requirement in § 980.08(1) that the SVP wait 18 months after initial commitment before petitioning for supervised release violates equal protection.
Holding: Though a ch. 51 initial commitment order lasts 6 months, equal protection isn't violated by an 18-month ch. 980 initial commitment, because 980 commitment subjects are more dangerous as a class than ch. 51s. ¶¶13-16. Nor does the eligibility for conditional release on an NGI initial commitment violate equal protection: an NGI finding represents a mere inference of current mental illness and dangerous, while a an SVP finding represents proof beyond reasonable doubt that the person is now mentally disordered and dangerous. ¶¶17-18. (Note: This seems to split an awfully fine hair. Though the supposition of present mental illness and dangerousness in an NGI finding may be inferential, it is no less binding for that. It remains true, as a constitutional matter, that the subject is committed precisely because of this inference "that, at the time of the verdict, the defendant was still mentally ill and dangerous, and hence could be committed." On the other hand, when the subject is not presently mentally ill or danger, he or she must be released. Foucha v. Louisiana, 504 U.S. 71, 76-77 (1992). In short, inference or not, automatic NGI confinement is based on current mental illness and dangerousness. Just like SVP. Note, too, that on November 21, 2001, the court of appeals certified the very question of whether Act 9 violates due process, something that seemingly subsumes the issue reached here. State v. Tory L. Rachel, 00-0467, Dist. II.)
Automatic Secure Confinement -- Due Process and Separation of Powers
State v. Joseph A. Lombard, 2003 WI App 163, PFR granted
For Lombard: David R. Karpe
Issue/Holding: Automatic secure confinement, § 980.06 (1999 Wis. Act 9) doesn't violate due process; State v. Williams, 2001 WI App 263, 249 Wis. 2d 1, 637 N.W.2d 791, review denied, 2002 WI 111, 256 Wis. 2d 63, 650 N.W.2d 840 and State v. Rachel, 2002 WI 81, 254 Wis. 2d 215, 647 N.W.2d 762, controlling. ¶12. Nor is the separation of powers doctrine violated:
¶14. The legislature has granted circuit courts the authority in civil commitment proceedings to designate whether initial treatment is to be provided on an inpatient or outpatient basis, see Wis. Stat. § 51.20(13)(a)3, just as it previously did under Wis. Stat. § 980.06 (1997-98). This does not mean, however, that the legislature was required to delegate this determination to the courts. We agree with the State that determining dispositions in mental health commitments is similar to doing so in criminal prosecutions, which is an area of "shared powers" between the legislative, executive and judicial branches. Lombard has advanced no reason why the legislature may not "determine the scope" of a court's discretion in setting the initial disposition in a Wis. Stat. ch. 980 commitment, just as it is authorized to do with respect to a "sentencing court's discretion." See State v. Horn, 226 Wis. 2d 637, 646, 594 N.W.2d 772 (1999).
(Note: Compare, In re Detention of Thorell, Wash. S.Ct., 69574-1, 7/10/03 (No violation of equal protection that mental commitment requires consideration of less drastic alternative to secure confinement while SVP commitment doesn't: “We now conclude that differentiating between LRAs for those involuntarily committed under chapter 71.05 and the SVPA is a rational means to achieve these legitimate [legislative] objectives.”)
Automatic Secure Confinement -- Equal Protection
State v. Steven J. Burgess, 2002 WI App 264, affirmed, other grds., 2003 WI 71
For Burgess: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: Automatic secure confinement (1999 Wis Act 9) doesn't violate equal protection, in comparison to ch. 51 or NGI procedure, the issue being controlled by State v. Williams, 2001 WI App 263. ¶¶36-37.
(Accord, State v. Shawn Virlee, 2003 WI App 4, ¶12, PFR filed 1/3/03.)
Claim/Issue Preclusion -- Prior Dismissal of Petition at Trial for Insufficient Proof
State v. Kenneth Parrish, 2002 WI App 263, PFR filed 11/11/02
For Parrish: Charles B. Vetzner, SPD, Madison Appellate
Issue: Whether a 980 petition was barred because a prior petition was dismissed at trial for insufficient proof, but the respondent was subsequently returned to prison on a parole revocation for a violation not involving an act of sexual violence.
Holding:
¶22. Although Parrish's preclusion argument presents an issue of first impression in Wisconsin, other jurisdictions have considered the dynamic nature of mental health and the importance of present-time determinations in the contexts of their civil commitment laws. See In re Mental Health L.C.B., 830 P.2d 1299, 1304 (Mont. 1992); Archer v. State, 681 So. 2d 296, 299 (Fla. Dist. Ct. App. 1996); In re Katz, 638 A.2d 684, 687 (D.C. 1994). Recently, the California Court of Appeals explained why the State's petition for extension of a defendant's commitment under the Sexually Violent Person Act (SVPA), California's counterpart to ch. 980, must be based on the defendant's current condition, with particular concentration on the developments since the last commitment order:
The nature of the [SVPA] envisions a special civil commitment proceeding that is begun and then continues, changes or ends depending upon the current mental condition and dangerousness of the proposed or committed [sexually violent person].... Although the same requirements or issues are involved in alleging any 'cause' filed via petition under the Act, the actual facts or circumstances comprising that 'cause' in a subsequent petition will necessarily be different due to the addition of new facts bearing on those issues based on the sheer passage of time which may support the release or commitment of the proposed [sexually violent person].
Butler v. Superior Court, 93 Cal. Rptr. 2d 468, 474 (Ct. App. 2000) (citations omitted). While the court was not considering whether claim or issue preclusion barred the State's action, its emphasis on "the current mental condition and dangerousness," "the addition of new facts," and "the sheer passage of time" is sound and applicable here. In fact, such emphasis is all the more meaningful where a defendant is released, revoked, and returned to custody during that "sheer passage of time."

¶23. In Parrish's cases, more than a year passed between the time a trial court determined that the evidence had not established that he was a sexually violent person and the time the State filed the second ch. 980 petition. In the interim, Parrish's parole was revoked and he was returned to prison. The passage of time, the new circumstances, and the dynamic nature of his mental health and potential dangerousness allowed the State to file a new petition for his commitment. Neither claim preclusion nor issue preclusion barred Parrish's post-parole-revocation commitment trial.

The trial court wasn't required to review the record of the first trial in order to resolve issue preclusion, though under "certain circumstances" -- namely, those which are certain never to occur in nature outside of laboratory conditions -- "a careful court might want to review the first trial's record." ¶¶24-26. This issue may not in the nature of things occur with terrible frequency (principally because a favorable initial determination is required), but it undoubtedly will recur. Given the court's express reliance on California caselaw, it might be worthwhile keeping in mind the subsequently decided Turner v. Superior Court, 105 Cal. App.4th 1046 (2003)
We conclude that although the prior jury determination does not necessarily bar a subsequent SVPA petition after a new custodial term, in the subsequent proceeding the People may not relitigate the finding that the individual was not a sexually violent predator at the time of the prior release. Therefore, to establish probable cause on the subsequent petition, the district attorney must present evidence of changed circumstances affecting this factual determination.

...

Accordingly, we hold that whereas a prior jury determination that an individual is not an SVP does not necessarily bar a subsequent petition after a release and parole revocation, the jury's prior determination is relevant and therefore admissible in the later SVPA proceeding. Moreover, under collateral estoppel principles, the district attorney may not relitigate the prior jury finding with respect to the same individual. Accordingly, to establish probable cause in the subsequent proceeding, the district attorney must present evidence of a change of circumstances, i.e., that despite the fact the individual did not possess the requisite dangerousness in the earlier proceeding, the circumstances have materially changed so that he now possesses that characteristic. ...

Commencement of Action -- Personal Service
State v. David J. Wolfe, 2001 WI App 136, 240 Wis. 2d 95, 622 N.W.2d 449, PFR filed 5/18/01
For Wolfe: Ann T. Bowe
Issue: Whether the personal service requirements of civil proceedings applies to ch. 980.
Holding: " ¶48 WISCONSIN STAT. ch. 980 provides its own procedures for commencing a ch. 980 action; thus, the provisions of WIS. STAT. chs. 801 and 802 are inapplicable. In fact, as the State notes in its brief, to apply the provisions of chs. 801 and 802 would lead to absurd results."
Competency to stand trial.
State v. Giles L. Smith, 229 Wis.2d 720, 600 N.W.2d 258 (Ct. App. 1999)
For Smith: Jay E. Heit.
Holding: "We hold that the legislature, by according to persons tried under ch. 980 all of the constitutional rights available to a defendant in a criminal proceeding, thereby intended to include the right to be competent at trial.... We further hold that the procedure to afford that right should adhere to § 971.14, STATS., to the extent possible...." This holding is based on § 980.05(1m), which applies to 980s all constitutional rights available to a criminal defendant, including the "fundamental constitutional right to be competent at trial." And, as the court notes, this "right is so fundamental that an attorney in a criminal case has an affirmative obligation to raise the question (of competency) when it exists, regardless of any strategic considerations" -- an obligation now applied to 980 representation.
Conditions of Confinement: Blanket Policy of Restraint During Transport
Richard Thielman v. Leean, 2002 WI App 33
Companion case: Thielman v. Leean, 282 F.3d 478 (7th Cir. 2002)
For Thielman: Mary Kennelly
Issue/Holding:
¶1. The Department of Health and Family Services (DHFS) appeals the circuit court's order enjoining DHFS from transporting Richard Thielman and similarly committed ch. 980 patients to and from treatment facilities such as Wisconsin Resource Center (WRC) in full restraints without first making individualized determinations that restraints are needed during transport. The circuit court determined that DHFS's transportation policy for ch. 980 patients violated Wis. Stat. § 51.61(1)(i) (1999-2000). Because we conclude that § 51.61(1)(i) grants broad discretionary power to DHFS sufficient to permit its treatment facilities to transport ch. 980 patients in restraints for security reasons and because there is nothing in the language of the statute that requires treatment facilities to exercise that discretion for each individual patient, rather than on the basis of its experience with ch. 980 patients as a group and the individualized prior finding of sexual dangerousness that each ch. 980 patient has had made, we reverse the circuit court's order....

¶7. Convicted sex offenders involuntarily detained or committed under ch. 980 are subject to certain provisions under both ch. 980 and ch. 51. State v. Anthony D.B., 2000 WI 94, ¶11, 237 Wis. 2d 1, 614 N.W.2d 435. Additionally, they are entitled to patients' rights set forth in ch 51. Id. at ¶15. Wisconsin Stat. § 51.61(1)(i) governs the use of restraints on mental health patients, including ch. 980 patients during transportation to and from treating facilities. ...

¶8. DHFS argues that Wis. Stat. § 51.61(1)(i) permits the department's use of a blanket policy for transporting all ch. 980 patients in full restraints for security reasons. DHFS explains that it formulated its policy for ch. 980 patients based on prior individual determinations of dangerousness that courts have made in each case and its experience transporting ch. 980 patients that has shown the need to protect the public from danger during transports. We agree that § 51.61(1)(i) gives DHFS the authority to decide whether to use full restraints during transport and that it does not prohibit exercising this authority through a policy that covers all ch. 980 patients within its care.

(Note: the 7th Circuit, in the case cited above, held that this policy doesn’t violate the constitution. This case says that the policy doesn’t violate statutory proscription, namely, § 51.61(1)(i).)
Conditions of Confinement: WRC Policy Prohibiting Former Employees From Visiting Institution
Reuben Adams v. Macht, 2001 WI App 10, 241 Wis. 2d 28, 623 N.W.2d 215
Issue: Whether the Wisconsin Resource Center policy prohibiting former employees from visiting the institution is enforceable against a patient seeking visits from a former employee who is also the mother of his child.
Holding: The policy is reasonable and based on legitimate security concerns.
Analysis: The court pays lip service to the idea that 980 inmates are patients, not prisoners, but cases dealing with challenges to prison regulations are the first and only source of guidance sought by the court. Because review of prison regulations is so deferential, the outcome is predetermined. Visits from prior employees are counter-therapeutic, and the former employee's knowledge of security protocols increases the danger of security breaches. Does it matter that the visitor is the mother of Adams' child? Would that relationship inhibit the potential for danger? Would family visitation actually advance rehabilitation? No. The former employee blurred the appropriate boundaries between employees and inmates; she's damaged goods; staff morale suffers from such fraternization. Besides, visitation would be contrary to policy.
Conduct Disorder.
State v. Matthew A.B., 231 Wis.2d 688, 605 N.W.2d 598 (Ct. App. 1999).
For Matthew A.B.: Mary E. Waitrovich, SPD, Madison Appellate.
Issue: Whether Chapter 980 is unconstitutional as applied, because "conduct disorder" is too imprecise to satisfy due process.
Holding: The reasoning of State v. Adams, 223 Wis. 2d 60, 588 N.W.2d 336 (Ct. App. 1998) (commitment based on diagnosis of antisocial personality disorder satisfies due process) applies: a conduct disorder, when combined with evidence satisfying additional statutory criteria, may support a commitment. ¶¶29-32.
Go To Brief
Confidentiality of presentence reports.
State v. Ronald J. Zanelli (II), 223 Wis.2d 545, 589 N.W.2d 687 (Ct. App. 1998).
For Zanelli: Jane K. Smith.
Holding/Analysis: In Zanelli's 1st appeal, State v. Zanelli (I), 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997), the court remanded with instructions that the trial court exercise discretion as to whether to release otherwise confidential PSI reports. The factors to be used were relevancy of information in the PSI; availability of this info from other sources; probative value/potential prejudice; "all other relevant factors." The trial court exercised discretion in favor of disclosure, but "failed to provide the reasons for its determinations." This failure leads to "independent" review - in name only, since the court of appeals explicitly looks for a basis to uphold the trial court.
Constitutional Protections
State v. Ronald G. Sorenson, 2002 WI 78, affirming as modified, 2001 WI App 251, 248 Wis. 2d 237, 635 N.W.2d 787
For Sorenson: T. Christopher Kelly
Issue/Holding:

¶17. As a preliminary matter, we first review whether ch. 980 respondents are afforded the same constitutional protections as criminal defendants, resulting in a potential bar on offensive issue preclusion. The court of appeals regarded a ch. 980 respondent's constitutional protections as limited, primarily because of language contained in the statutes. We disagree....

¶19. Wisconsin Stat. § 980.05(1m) unambiguously provides ch. 980 respondents with the same constitutional protections afforded to criminal defendants... The court of appeals, however, questioned the scope of these constitutional protections in light of an apparent conflict or ambiguity caused by a more specific statute, Wis. Stat. § 980.05(4)....

¶20. Our review of the statutes, however, does not result in any finding of conflict or ambiguity between these subsections. A plain reading of subsection (4) reveals that this section simply dismisses the state's ability to prove mental disorder with a judgment of conviction or evidence of the respondent committing a sexual offense. This statute instead contemplates that the state must put forth expert evidence showing the respondent's mental disorder. Thus, because we find that subsection (4) does not create any conflict or ambiguity with subsection (1m), we conclude that ch. 980 respondents are afforded the same constitutional protections as criminal defendants.

Counsel -- Effective Assistance -- Appeal
State ex rel. Ruven Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, reconsideration denied 2002 WI 12, reversing unpublished court of appeals order
For Seibert: Gregory P. Seibold; amicus brief: Howard B. Eisenberg, Dean, Marquette Law School
Issue/Holding:
¶1. This case presents two issues. The first issue is whether an indigent sexually violent person, as defined by Wis. Stat. Chapter 980 (1999-2000), is constitutionally entitled to assistance of counsel in bringing his or her first appeal as of right from a denial of his or her petition for supervised release. Because due process and equal protection concerns are implicated, we rule that an indigent sexually violent person is constitutionally entitled to assistance of counsel in bringing a first appeal as of right from a denial of his or her petition for supervised release. ¶2. The second issue is whether there is ineffective assistance of counsel where appellate counsel filed an appeal from a petition for supervised release one day late. On the unique facts of this case, we find that there was ineffective assistance of counsel where the notice of appeal for the denial of the petition for supervised release was filed one day late in circuit court. Moreover, we find that under the United States Supreme Court's decisions in Douglas v. California, 372 U.S. 353 (1963), Anders v. California, 386 U.S. 738 (1967), and their progeny, the court of appeals cannot conduct an independent review for error where the individual lacks requested representation, whether that representation encompasses briefing on the merits or an Anders brief. Accordingly, we remand Seibert's cause to the court of appeals with instructions to appoint new appellate counsel who may submit either a brief on the merits or an Anders brief.
Analysis: As the quote suggests, this is a straight-forward application of Anders to 980 appeals. Filing a late NOA is necessarily both deficient performance and presumptively prejudicial. (The record unequivocally establishes that Seibert instructed his attorney to file an appeal, so an evidentiary hearing on that question wasn’t necessary.) That 980 is civil doesn’t preclude assistance-of-counsel analysis, because equal protection and due process grant an indigent defendant the same procedural rights as a solvent one. ¶¶10-12. Of course, a 980 respondent isn’t a criminal defendant, and to draw parallels would highlight the incarcerative purpose of 980 litigation. Instead, the court merely alludes to § 980.05. (“An alleged sexually violent person, subject to commitment under Chapter 980, is not a criminal defendant. However, such a person has the same constitutional rights as a criminal defendant at trial.” ¶12, as amended on reconsideration.) Does this pronouncement conflict with a recent court of appeals’ observation that “(t)his section does not grant all constitutional rights available to a criminal defendant to an individual in a Wis. Stat. ch. 980 proceeding”? State v. Thiel, 2001 WI App 52, 241 Wis. 2d 439, 625 N.W.2d 321, ¶26.) Also worth noting: The court assumes that a no-merit report may be filed in a 980 appeal. (Though no real explanation is provided, the conclusion is undoubtedly correct despite at least one holding to the contrary, In re Matter of Leon G., ¶7 (Ariz. 2001), reaffirmed on remand from Supreme Court, In Matter of Leon G., ¶1 n. 1.) No-merit procedure applies only to direct appeals, but that includes post-judgment activity, such as this petition for supervised release. However, the civil (45-90 day) deadline applies, whether or not the appeal is no-merit. Seibert, ¶20 n.8 (“as the law currently stands, § 808.04 governs Chapter 980 appeals, and counsel for an individual committed under chapter 980 who wishes to appeal as a matter of right may either file a brief on the merits or an Anders brief.”).
Counsel -- Ineffective Assistance -- Failure to Obtain Expert -- Lack of Prejudice
State v. Kenneth Parrish, 2002 WI App 263, PFR filed 11/11/02
For Parrish: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding: The trial court's rejection of respondent's post-commitment proffer of an expert, in support of a claim that trial counsel was ineffective for not securing an expert, is sustained, due in particular to the trial court's conclusion that the proffered expert would not have altered the outcome: "that judge, by virtue of having been the fact finder at trial, is in the best position to consider whether additional information would have altered his or her commitment decision." ¶¶37-42.
Counsel -- Waiver Standards
State v. Dennis R. Thiel (III), 2001 WI App 32, 241 Wis. 2d 465, 626 N.W.2d 26
For Thiel: John D. Lubarsky, SPD, Madison Appellate
Issue: Whether the standard for waiver of right to counsel in a criminal proceeding applies to Ch. 980.
Holding: "... (B)ecause WIS. STAT. § 980.09(2) guarantees the right to counsel at the probable cause hearing, the same standards and procedures for resolving right to counsel issues in a criminal context should apply to the § 980.09(2)(a) probable cause hearing." ¶12. 
Analysis: Thiel, already committed as an SVP, petitioned for discharge after a § 980.07 reexamination. He ended up representing himself. The court of appeals determines that the standards for validity of waiver of counsel in a criminal case, State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), apply to Ch. 980, because: 1) constitutional rights of a criminal defendant are incorporated into Ch. 980 proceedings. ¶15; patient's rights in Ch. 51 civil commitments -- which includes Klessig standards for waiver of counsel -- also apply to Ch. 980. ¶¶16-18. The trial court didn't conduct an adequate colloquy, and the matter is therefore remanded for an evidentiary hearing at which the state will be required to prove by clear and convincing evidence that the presumption of nonwaiver should be overcome. ¶¶19-20.
(Interstate) Detainer Act – Return on Untried Criminal Charge, Ultimate SVP Commitment
State ex rel. Frederick Lee Pharm v. Bartow, 2005 WI App 215
For Pharm: Roisin H. Bell (Pro Bono)
Issue/Holding: Wisconsin ’s acquisition of ch. 980 jurisdiction over Pharm wasn’t undermined by the fact that he was returned to this state pursuant to an Interstate Detainer Act agreement to dispose of an untried Wisconsin criminal charge, at least given Pharm’s status as a parolee in the sending state, ¶¶15-25.
Discipline: Living Unit Reassignment
Edwin C. West v. Macht, 2000 WI App 134, 237 Wis. 2d 265, 614 N.W.2d 34
Issue: Whether living unit reassignment of a Ch. 980 subject was made in retaliation for his exercise of his constitutional right to petition on grievances.
Holding: A commitment subject has a protected interest against being punished for exercising first amendment rights, ¶15; however, those rights may be validly restricted if "reasonably related to legitimate therapeutic and institutional interests." ¶17. Because the institution established reasonable rules regulating the conduct that West sought to exercise, and because he failed to follow those rules, the discipline impose by the institution -- reassignment to a high management unit -- was valid and not retaliatory. ¶20-23.
Discovery Violation -- Waiver
State v. Eric Pletz, 2000 WI App 221, 239 Wis.2d 49, 619 N.W.2d 97
For Pletz: Michael J. Backes
Issue: Whether the state's pretrial failure to disclose that its witness used the RRASOR screening instrument to evaluate Pletz violated his discovery rights.
Holding: Pletz waived any discovery objection by not promptly objecting, given that he was provided this information before the witness testified. ¶26. Moreover, there was no violation in any event: The scientific study which alerted the witness to the RRASOR wasn't published until after the discovery process, and wasn't applied by the witness to Pletz until shortly before the witness testified. "The challenged information was new, and the State disclosed the information to Pletz as soon as it discovered it." ¶¶24-25. (The court further notes that the appropriate remedy for a disclosure violation would have been an adjournment. ¶26 n. 3.)
Equal Protection – Confidentiality, Contrasted with Ch. 51
State v. Steven J. Burgess>, 2003 WI 71, affirming 2002 WI App 264, 258 Wis. 2d 548, 654 N.W.2d 81
For Burgess: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶33. Although persons committed under chapter 980 are similarly situated to those committed under chapter 51, there is a rational basis for the legislature's distinction with respect to the confidentiality of proceedings under the two chapters. In Post, we noted that "[d]ifferences in difficulty of diagnosis, degree of dangerousness, and intrusiveness of treatment [have been] found by the [U.S.] Supreme Court to be sufficient justifications for differential treatment...." Post, 197 Wis.2d at 322. In evaluating and comparing the legislative schemes of chapters 51 and 980, we have held that:
The legislature has determined that, as a class, persons predisposed to sexual violence are more likely to pose a higher level of danger to the community than do other classes of mentally ill or mentally disabled persons. This heightened level of dangerousness and the unique treatment needs of sexually violent persons justify distinct legislative approaches to further the compelling governmental purpose of protection of the public.
Id. at 322-23. Accordingly, we conclude that Burgess's right to equal protection was not violated due to differences in confidentiality between chapter 980 proceedings and proceedings under chapter 51.
Equal Protection.
State v. Frank Curiel, 227 Wis.2d 389, 597 N.W.2d 697 (1999), affirming unpublished decision.
For Curiel: Jack. C. Hoag, Sedor & Hoag.
Holding: "¶4. Is a person's right to equal protection violated where a finding of dangerousness under Wis. Stat. ch. 980 does not require that the risk that the person will engage in sexual violence is to a degree of 'extreme likelihood?' We hold that the standards for dangerousness under ch. 980 do not violate equal protection." This argument is based on a comparison between ch. 51 & ch. 980 commitments, the claim being that ch. 51 requires "extreme likelihood" of danger. However, the court rejects that assumption. "Substantial probability" (of danger) in ch. 51 has the same meaning as "substantial probability" (of sexual violence) in ch. 980 - much more likely than not - and therefore no equal protection problem arises. ¶47.
Evaluation -- Prosecutorial Meddling in Process
State v. Jonathan Bell, 2006 WI App 30
For Bell: Leonard D. Kachinsky
Issue: Whether intervention of the local prosecutor to obtain a second DOC evaluation, which resulted in a referral for SVP commitment after the first DOC evaluation determined insufficient likelihood of reoffending, violated ch. 980 or due process.
Holding:
¶11      Our supreme court defined the scope of the district attorney’s authority in Byers. …

¶12      Our supreme court held that pursuant to Wis. Stat. § 980.02(1), a request from the agency with jurisdiction, in that case the DOC, and a subsequent decision by the DOJ not to file are prerequisites to a district attorney’s authority to file a Wis. Stat. ch. 980 petition. …

¶15     The threshold decision of whether a petition should be filed remains in the experienced and able hands of the agency with jurisdiction and outside of the political process.  A district attorney may contact the agency to seek clarification of the Wis. Stat. ch. 980 evaluator’s determination, to correct factual mistakes, to provide new or additional information, or to ask for a second opinion with a different evaluator.  However, as the trial court recognized, the agency can independently exercise its judgment and choose to ignore the district attorney’s efforts or to decline the district attorney’s request for a second evaluation if the agency determines that these efforts and requests are improperly politically motivated.  Further, even if the agency accepts an invitation to obtain a second evaluation, the agency can thereafter refer the case to the DOJ for commitment proceedings or it can adhere to its original decision not to request that the DOJ file a petition.

Evidence -- Actuarial Instruments
State v. Bernard G. Tainter, 2002 WI App 296, PFR filed 12/23/02
For Tainter: Jack E. Schairer, SPD, Madison Appellate
Issue/Holding: The trial court properly exercised discretion in admitting into evidence actuarial instruments (by determining that they were of the type commonly relied on by experts to assess sex offender risk; and by allowing Tainter to cross-examine on the instruments). ¶20. In Wisconsin, trial courts have a limited "gatekeeper" function regarding expert testimony; if the evidence is relevant and the witness qualified as an expert, reliability is for the jury. ¶¶21-22.
Evidence -- Disposition Alternatives – Criminal Justice System Supervision Irrelevant
State v. Charles W. Mark, 2006 WI 78, affirming 2005 WI App 62, 2005 WI App 62, PFR granted
For Mark: Glenn L. Cushing, SPD, Madison Appellate
Issue: Whether evidence of probation supervision was relevant to future dangerousness, and therefore should have been admitted into evidence.
Issue:
¶41      … (T)he plain language of Wis. Stat. § 980.01(7) makes the existence of a mental disorder—not any extrinsic factors—the first step in determining dangerousness and the substantial probability of the person engaging in future acts of sexual violence. Therefore, we affirm the decision of the court of appeals, upholding the circuit court’s exclusion of the conditions of Mark’s probation supervision from his chapter 980 trial because, under the terms of § 980.01(7), such evidence was irrelevant in determining whether he was a "sexually violent person."
The court thus adopts both State v. Lombard (Lombard II), 2004 WI App 52 (upholding trial court’s refusal to answer jury’s question whether Lombard would remain under supervision even if on finding not sexually violent because irrelevant to whether he was sexually violent person), and State v. Thiel, 2004 WI App 140 (recommendation of supervised release, on post-commitment petition, not relevant to “black-and-white determination” of whether will commit acts of sexual violence). The effect is also to adopt the court of appeals holding in this case, 2005 WI App 62, ¶47, “that evidence that a ch. 980 respondent will be on probation or parole if not adjudicated and committed as a sexually violent person is not relevant to the determination whether the respondent is a sexually violent person as defined in Wis. Stat. § 980.01(7); nor are the rules of any such probation or parole relevant to that determination.”
Evidence -- Hearsay: Letters from DSM-IV Committee
State v. Eric Pletz, 2000 WI App 221, 239 Wis.2d 49, 619 N.W.2d 97
For Pletz: Michael J. Backes
Issue: Whether letters from DSM-IV committee members, regarding the impact of an assault on a diagnosis of pedophilia, were properly admitted.
Holding: A basis for an expert opinion, otherwise hearsay, is admissible if of "a type reasonably relied upon by experts in the particular field.... The letters relied on here, although authored by members of the DSM-IV committee, are isolated opinions given in response to hypothetical questions. Therefore, we conclude that the letters do not satisfy the standard enunciated above, and therefore should not have been admitted. However, we conclude that admission of the two letters constituted harmless error." ¶29.
Analysis: The court's harmless error analysis is just plain wrong:
¶30 The standard of review under which we determine harmless error 'is not whether some harm has resulted but, rather, whether the appellate court in its independent determination can conclude there is sufficient evidence, other than the purportedly inadmissible evidence, that would convict the defendant beyond a reasonable doubt.' State v. Van Straten, 140 Wis. 2d 306, 318-19, 409 N.W.2d 448 (Ct. App. 1987). There is sufficient evidence in the record here to sustain the jury's determination that Pletz is a sexually violent person, even without the inadmissible letters.
This is a long-discredited test. It has been settled, for more than 15 years, that the harmless error test is whether there is a reasonable possibility that the error contributed to the conviction. State v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222 (1985). The conviction must be reversed unless the court is certain that the error did not influence the jury. Id. at 541-42. The state, as the beneficiary of the error bears the burden of proof. Id., at 547 n. 11. At least, that's supposed to be the test. But now the court of appeals has dusted off the prior, much more lax test, thereby failing its duty of rigorous analysis: "(E)ven if the letters were excluded, the jury would still have been able to find that Pletz was a sexually violent person beyond a reasonable doubt." ¶32. But that only inverts the proper question, whether the state can show beyond reasonable doubt that the error did not contribute to the verdict. All in all, there is no reason to think that the court's result is reliable, that Pletz had either a fair trial or fair appeal.
Evidence -- Jail Credit Not Relevant
State v. Shawn Virlee, 2003 WI App 4, PFR filed 1/3/03
For Virlee: Jack E. Schairer
Issue/Holding: Barring introduction of the post-petition grant of sentence credit was proper: this evidence "would have been irrelevant to whether the State filed its petition within ninety days of Virlee's release and would have confused the jury on this issue." ¶19.
Evidence -- Juvenile Adjudication.
State v. Matthew A.B., 231 Wis.2d 688, 605 N.W.2d 598 (Ct. App. 1999).
For Matthew A.B.: Mary E. Waitrovich, SPD, Madison Appellate.
Issue: Whether a juvenile adjudication is admissible in a Ch.980 proceeding, § 938.35(1) notwithstanding.
Holding: A juvenile adjudication is admissible.
Analysis: § 938.35(1) expressly prohibits admissibility of a juvenile court disposition except for certain enumerated exceptions which don't include Ch. 980 proceedings. However, according to the court of appeals, "numerous provisions in Ch. 980 indicate that delinquency adjudications are admissible." Although repeal of legislation "by implication" is disfavored, such a repeal will be found "when the conflicting provisions are 'so contrary to or irreconcilable with' one another that only one of the provisions may remain in force." The court discerns such a conflict here. And, because giving effect to § 938.35(1) "would render large portions of Chapter 980 meaningless" and would be an absurdity, "the common sense meaning of these statutory provisions dictates that delinquency adjudications are admissible in Chapter 980 proceedings.... Therefore, to the extent that § 938.35(1) prohibits the admission of delinquency adjudications in Chapter 980 proceedings, we conclude that § 938.35(1) is repealed by implication." ¶¶22-28.
Go To Brief
Evidence -- Misconduct, § 904.04(2)
State v. Gregory J. Franklin, 2004 WI 38, affirming unpublished decision of court of appeals
For Franklin: Patrick M. Donnelly, SPD, Madison Appellate
Issue/Holding:
¶16. In order to be admissible in a ch. 980 proceeding, all evidence must be relevant and that relevance must not be outweighed by the danger of unfair prejudice. Wis. Stat. § 904.01; Wis. Stat. § 904.03; State v. Wolfe, 2001 WI App 136, ¶39, 246 Wis. 2d 233, 631 N.W.2d 240. It is that dual test the circuit court must have applied in order to have appropriately exercised its discretion in admitting this evidence.
Applying this test, the court deems admissible the following non-sexually related items: “1) his adult criminal record for battery, thefts, and obstruction; (2) conduct reports from the department of corrections; (3) pre-sentence investigation reports; (4) evidence of his probation and parole violations; and (5) references to his juvenile record. He does not object to the admission of his prior adult criminal record of sexually related conduct.” ¶17.

The challenged evidence showed “uncontrollable” criminal behavior, and institutional misconduct, but not necessarily of a sexual nature, ¶18, spelled out in more detail in the concurrence, ¶ 36.For example, “many of the [126!] conduct reports were related to hygiene problems and abnormal behavior related to the defendant’s [sic] schizophrenia.” ¶39. How is that sort of evidence relevant to a 980 trial? Because, according to the majority, the expert used this information in deriving his “diagnosis that Franklin has a mental disorder that features uncontrolled, aggressive conduct.” ¶22. But, “uncontrolled, aggressive conduct” isn’t a 980 issue, uncontrolled sexually violent conduct is. How do you get from poor hygiene to sexual aggression? This is how the majority squares the circle:

¶22. … Franklin has a long history of repeatedly being out-of-control, commencing with his juvenile court adjudications, continuing in his adult criminal conduct and in his failure to conform his behavior to established rules when on probation, parole or when within a correctional institution.12 Other courts have noted past uncontrolled behavior is relevant to whether a person will exhibit uncontrolled behavior in the future. See Wolfe, 246 Wis. 2d 233, ¶37.13 As the United States Supreme Court has explained, "[p]revious instances of violent behavior are an important indicator of future violent tendencies." Kansas v. Hendricks, 521 U.S. 346, 357-58 (1997) (quoting Heller v. Doe, 509 U.S. 312, 323 (1993)). Here, even though all of the past examples of uncontrolled conduct did not relate to sexual acts, they were relevant to Franklin's diagnoses of paraphilia and of schizophrenia, as both experts used this evidence to support their opinions. Additionally, as the record in this case shows, the standard risk assessment for sexual offenders takes into account all past violations of the law in attempting to evaluate the probability of future sexually assaultive behavior.14 However, those violations that are sexually related are weighted more heavily in the assessment. Both experts testified that they used these risk assessment tools. We agree that the evidence is relevant.
In the first place, the concurrence points out that the state’s expert “never suggested that any of the defendant's nonsexual behavior related to a predisposition to sexually violent behavior,” nor drew “any conclusions at trial suggesting that the defendant's prior nonsexual misconduct made it more likely that he would commit acts of sexual violence in the future.” ¶48. But that’s a fact-specific problem; what if the concurrence's reading of the record is simply wrong. That would still leave the second point, the idea that prior non-sexual uncontrollability supports the idea of future sexual uncontrollability makes the constitutionality of ch. 980 “tenuous,” in the view of the dissent. ¶61. The majority’s quotes on this idea are, the concurrence says, taken out of context. ¶¶57-60. What this dispute drives at is nothing less than the fundamental nature and purpose of a 980 proceeding. Is it to provide treatment for someone with a demonstrable mental illness, or simply to provide preventative detention for someone with a demonstrable penchant for criminal behavior? Looks more and more like the latter.

The majority further suggests that the evidence was relevant precisely because it was relied on. ¶20 n. 11. However, as the concurrence says, “Expert witnesses are allowed to base their testimony on evidence that is otherwise inadmissible and not properly considered by the jury.” ¶43. The court of appeals recently put it this way, in the context of reliance on hearsay, Walworth County v. Therese B., 2003 WI App 223, ¶9: “although WIS. STAT. § 907.03 allows an expert to base an opinion on hearsay, it does not transform the hearsay into admissible evidence. State v. Watson, 227 Wis. 2d 167, 198, 595 N.W.2d 403 (1999).” Reliance by the expert, then, simply doesn’t bootstrap admissibility.

Evidence -- Other Crimes
State v. David J. Wolfe, 2001 WI App 136, 240 Wis. 2d 95, 622 N.W.2d 449, PFR filed 5/18/01
For Wolfe: Ann T. Bowe
Issue: Whether evidence of the respondent's arson adjudication, and institutional violations and misconduct while at an adolescent treatment center were admissible under § 904.04.
Holding:
¶37 Diagnoses of a mental disorder and dangerousness are directly foretold through past conduct. The jury needed to consider evidence of relevant past conduct to determine whether Wolfe had a mental disorder which predisposed him to commit acts of sexual violence and whether there was a substantial probability that he would commit acts of sexual violence in the future.…

¶38 The use of an individual’s conduct and behavioral history and their effect on treatment is suitable in a WIS. STAT. ch. 980 commitment case. See State v. Adams, 223 Wis. 2d 60, 73, 588 N.W.2d 336 (Ct. App. 1998), review denied, 225 Wis. 2d 488, 594 N.W.2d 382 (Wis. Apr. 6, 1999) (No. 96-3136).

¶40 At trial, evidence was presented regarding Wolfe’s arson adjudication, his institutional rule violations and misconduct while at Norris, and his inability to participate in treatment programs. Clinical psychologist Michael Caldwell testified that Wolfe suffers from pedophilia and a personality disorder with antisocial features. A personality disorder is exhibited by a pervasive pattern of disregard for the rights of others, failure to comply with rules, irresponsibility and lack of remorse. The arson adjudication and institutional misconduct were presented to establish Wolfe’s diagnosed mental disorder, his dangerousness, and his risk of reoffending. This evidence had the tendency to make the statutory elements of a WIS. STAT. ch. 980 commitment more probable than not, State v. Sullivan, 216 Wis. 2d 768, 786, 576 N.W.2d 30 (1998), and thus was relevant. See WIS. STAT. § 904.01.

Expert -- Right to, Re-exam
State v. Dennis R. Thiel (III), 2001 WI App 32, 241 Wis. 2d 465, 626 N.W.2d 26
For Thiel: John D. Lubarsky, SPD, Madison Appellate
Issue: Whether the trial court properly exercised discretion in refusing the indigent's request for an independent expert on a § 980.07(1) (1997-98) reexamination.
Holding:
¶25 The first use of the word 'may' in WIS. STAT. § 980.07(1) ('the person who has been committed may retain ....') affords Thiel the option of requesting a second expert. Thus, it is within Thiel's discretion whether to ask for an independent examination. However, if Thiel is indigent, as he alleged, and requests assistance from the court to obtain the second examination, the second use of the word 'may' in § 980.07(1) is not discretionary, but mandatory. The second use of 'may' does not offer the discretion to refuse such a request, but instead the latter "may" simply endows the circuit court with the authority to honor Thiel's request. The new language of the statute, obligating the court to appoint an expert upon an indigent patient's request, demonstrates that the legislature intended for the latter 'may' to be mandatory. Thiel's § 980.07(1) request for the appointment of an expert was erroneously denied.
Analysis: The holding seems self-explanatory: all SPD Ch. 980 clients are entitled, because they are by definition indigent, to mandatory appointment of an expert upon request. The more interesting question is how to square this case with State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811, which holds, ¶15, that the SVP has to request the expert at the time of reexam or the right is waived. Thiel's reexam "was held on May 4, 1999"; he didn't request an independent expert until he wrote a letter to the court on August 9, 1999. ¶3. But Thayer  has doubtful validity on this point. The right to an expert attaches when the person is "the subject of the petition." § 980.03(3) (which is cross-referenced in § 980.07(1)). And the person doesn't become a "subject of the (supervised release) petition" unless and until s/he refuses to waive the right to file a petition, something that at least arguably doesn't occur until after the department's examination has been prepared and filed with the court. § 980.09(2). In other words, the right to an independent examination hasn't even attached "(a)t the time of the reexamination," if that temporal limitation is taken literally, and it would therefore work an absurd result to impose a literal construction. The right attaches when you go to court, after the examination has been filed, and refuse to waive. That said, it still wouldn't be clear what temporal limitation might apply. Thiel certainly made his request for an independent expert after that point, and the court held it viable, without discussing the problem. (Denial of counsel possibly entered into it.) Thayer was given counsel, and apparently never requested an expert, which might explain the different result, if not the reasoning. The lesson, certainly, is to make the request as soon as possible.
Involuntary Medication
State v. Anthony D.B., 2000 WI 94, 237 Wis. 2d 1, 614 N.W.2d 435, affirming unpublished decision of court of appeals
For Anthony D.B.: Ellen Henak, SPD, Milwaukee Appellate
Issue: Whether a circuit court has authority, on a Ch. 980 commitment, to order involuntary medication.
Holding: "Because those individuals committed under ch. 980 are defined as 'patients' in Wis. Stat. § 51.61(1), we hold that the statutory provision in § 51.61(1)(g), authorizing a court to order medication regardless of the patient's consent, along with the relevant provisions of Wis. Stat. § 51.20, apply."
Analysis: The court again stresses treatment as the underlying purpose of Ch. 980. ¶12. Individuals committed under 980 are entitled to § 51.61 patients' rights, including the right to a hearing on competency to refuse medication. ¶¶13-14. "Section 51.61 provides patients with the right to make informed decisions regarding medication, except in those circumstances where, following a constitutionally sufficient procedure, the patient is determined to be not competent to refuse medication. Under these circumstances, § 51.61 (1)(g) authorizes orders for involuntary administration of medication for individuals committed under ch. 980." ¶15. Patients have a due process right to regular review of involuntary medication. ¶¶27. Though the statutes don't explicitly provide for such review in 980 cases, the court carves out review as part of the periodic review of the commitment under § 980.07. ¶31. Three points are essential to review. 1) Compliance with § 51.20(5) (right to counsel; open hearing with option to request closed hearing; rights to silence and present and cross-examine witnesses; but no jury trial); 2) right to petition the court for review of the medication order; 3) expiration of the medication order unless it receives periodic review. ¶¶32-34.
Go to Brief
Issue Preclusion -- Attack on Qualifying Conviction
State v. Ronald G. Sorenson, 2002 WI 78, affirming as modified, 2001 WI App 251, 248 Wis. 2d 237, 635 N.W.2d 787
For Sorenson: T. Christopher Kelly
Issue: Whether, given the constitutional protections afforded Ch. 980 respondents, issue preclusion applies so as to prevent Sorenson from attacking the reliability of his qualifying conviction with evidence that the complainant subsequently recanted.
Holding:
¶22. We recognize the application of issue preclusion in this context is an important issue. However, we conclude that we should not reach a determination on this question at this time because the issue has not been fully briefed by the State. Instead, we conclude that, even if the doctrine would generally apply, application of the doctrine may be fundamentally unfair for Sorenson under the factors for restricting the application of the doctrine under Michelle T. v. Crozier, 173 Wis. 2d 681, 495 N.W.2d 327 (1993).

¶24. Here, we are presented with recantation evidence that was newly discovered after trial. Sorenson sought a new criminal trial based on this evidence in a post-conviction motion. In Wisconsin, recantation evidence is reviewed on such motions under the test set forth in McCallum. The circuit court never reached a final determination on the post-conviction motion. Instead, after the court heard testimony from L.S., the parties reached a settlement, resulting in a reduction in Sorenson's 17-year sentence to a 10-year sentence and in his almost immediate release on parole. The record contains almost no evidence identifying the content or the background of L.S.'s recantation testimony.

¶25. We conclude that, if the recantation evidence satisfies the test in McCallum, any application of issue preclusion to exclude this evidence from Sorenson's ch. 980 trial would be fundamentally unfair to Sorenson under the fifth standard set forth in Michelle T. Fundamental unfairness results because Sorenson, assuming the recantation meets the McCallum test, has a due process interest in gaining admission at trial of this newly discovered evidence to ensure accurate expert opinions on his mental disorder and future dangerousness in his ch. 980 trial. In this case, the experts' opinions reveal that they were based heavily on the fact that Sorenson committed the underlying crime.

¶26. We conclude that remand is required for the circuit court to make a determination on the credibility of the recantation evidence pursuant to McCallum....

(This opinion raises as many questions as it answers, but this one sticks out: Does the trial court have the authority to make a credibility determination on what is, in effect, an issue of threshold admissibility? In other words, is the court supposed to determine merely whether the recantation could reasonably be believed by the jury, or may the court makes its own determination and thereby prevent the jury from hearing the evidence? Besides, why is the stringent McCallum test -- which deals, after all, with plea-withdrawal -- even transferable to this context? The court specifically agrees that Sorenson isn't seeking to invalidate his conviction, ¶¶34-38; the policies that favor a very stringent test and that informed McCallum therefore wouldn't seem to apply.)
Jurisdiction -- Qualifying Conviction for Act Committed by Native American on Reservation
State v. Steven J. Burgess, 2003 WI 71, affirming 2002 WI App 264; habeas relief denied, Steven J. Burgess v. Watters, 7th Cir No. 05-1633, 11/2/06
For Burgess: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether ch. 980 jurisdiction attaches to Native Americans who: are members of a tribe, residents of the tribe's reservation, and commit the acts involved in the qualifying conviction on the reservation.
Holding: State laws are generally inapplicable to tribal Indians on an Indian reservation except where Congress has expressly so provided. All Indian country in Wisconsin, except for the Menominee Tribe, is subject to PL-280, which does not grant “general civil regulatory power over Indian reservations.” Chapter 980 proceedings aren’t easily categorized, falling squarely within neither the criminal/prohibitory nor civil/regulatory labels. But the primary purpose of Ch. 980 is protection of the public, and the conduct addressed by commitments is prohibited; therefore the state may enforce the procedure within Indian reservations. ¶¶11-21.
Jury Instructions -- Consequences of Discharge
State v. Joseph A. Lombard, 2004 WI App 52, PFR filed 3/19/04
For Lombard: David Karpe
Issue: Whether, in response to a jury question during deliberations in this SVP discharge trial, the trial court was obligated to instruct that if Lombard were discharged he would still be subject to 40 years of probation / parole supervision on the underlying offense.
Holding:

¶13. We are not persuaded by Lombard's argument. Lombard acknowledges there is no requirement in the case law or statutes that the court must instruct the jury on the consequences of discharge. In contrast, for example, Wis. Stat. § 971.165(2) requires the court to instruct the jury that if it finds a defendant not guilty by reason of insanity, the defendant will be placed in an appropriate institution unless the court determines the defendant would not pose a danger to himself/herself or others if released under conditions imposed by the court. In Lombard's reply brief, he points out that, prior to the enactment of § 971.165(2), the court in State v. Shoffner, 31 Wis. 2d 412, 428-29, 143 N.W.2d 458 (1966), expressed a preference for juries to be informed that a defendant would not be released upon a finding of not guilty by reason of insanity. … To the extent Lombard is asking this court to express a preference that a jury hearing a petition for discharge under ch. 980 be given an instruction regarding the consequences of its verdict, similar to the preference expressed in Shoffner, that request is more appropriately addressed to the supreme court.

 

 

¶15. Because there is no case law or statutory requirement that the court advise a jury in a proceeding under ch. 980 of the consequences of a discharge, the court did not apply an incorrect standard of law. Therefore, the issue is whether the court made a reasonable decision based on the relevant facts. We conclude that it did.

Jury Instructions -- Consequences of Discharge
State v. Joseph A. Lombard, 2004 WI App 52, PFR filed 3/19/04
For Lombard: David Karpe
Issue: Whether the trial court erroneously refused to answer a jury question during deliberations about certain testimony, except to tell the jury to rely on its memory.
Holding:

¶26. Because there was no stipulation on this fact, an analysis of the court's response to the jury's question must begin with the evidence presented to the jury. "When, during its deliberations, a jury poses a question regarding testimony that has been presented, the jury has a right to have that testimony read to it, subject to the discretion of the trial judge to limit the reading." Kohlhoff, 85 Wis. 2d at 159. Although a court may, in the exercise of its discretion, choose to summarize the testimony instead of having the transcript of the testimony read when a jury requests clarification of the testimony, the supreme court has advised that the better practice is to restrict such clarification to a reading of the testimony. Id. at 160.

¶29. We conclude the trial court did not erroneously exercise its discretion in answering the second inquiry of the jury as it did. Lombard did not ask the court to read any portion of the trial testimony. He did ask the court to instruct the jury that the telephone call occurred at Fox Lake, but there was no evidence that had been presented to the jury that directly and unambiguously established that fact, and there was no stipulation from the State that the court should so instruct the jury. The trial court therefore acted reasonably in declining to give this instruction and instead instructing the jurors to "rely on [their] notes and [their] collective memory."

Jury Instructions -- Acts of Sexual Violence
State v. John Lee Laxton, 2002 WI 82, affirming unpublished court of appeals decision
(Affirmed on other grounds, habeas review, John L. Laxton v. Bartow, No. 04-3988, 8/31/05)
For Laxton: Margaret A. Maroney, SPD, Madison Appellate
On-line Brief: http://www.wisspd.org/html/appellate/briefbank/briefs/993164SC.pdf
Issue: Whether the trial court adequately instructed the jury on "acts of sexual violence."
Holding:
¶28. ... The court instructed the jury, in part: "Acts of sexual violence means acts which constitute sexually violent offenses. Acts of window peeping or exposure of the penis, absent any other behavior toward another person, do not alone constitute sexually violent offenses under chapter 980." Laxton claims that this instruction is erroneous because the jury should have been instructed that acts of exhibitionism and voyeurism are not sexually violent. According to Laxton, "absent any other behavior toward another person" is an impermissibly vague jury instruction. Laxton therefore asks this court to exercise discretion under Wis. Stat. § 751.06 and grant a new trial.

¶29. We do not find Laxton's arguments persuasive. The circuit court is afforded great latitude when giving jury instructions. State v. Pletz, 2000 WI App 221, ¶17, 239 Wis. 2d 49, 619 N.W.2d 97. Only if the jury instructions, as a whole, misled the jury or communicated an incorrect statement of law will we reverse and order a new trial. Fischer v. Ganju, 168 Wis. 2d 834, 849, 485 N.W.2d 10 (1992). "If the overall meaning communicated by the instructions was a correct statement of the law, no grounds for reversal exist." Id. at 850. Laxton's complaint is based on one sentence in the jury instructions relating to acts of exhibitionism and voyeurism, and ignores the fact that the circuit court specifically instructed the jury: "Acts of sexual violence means acts which constitute sexually violent offenses." Furthermore, the instructions given were virtually identical to the Wisconsin pattern jury instruction, Wis JI--Criminal 2502. We conclude, therefore, that the overall meaning communicated by the instructions given in this case correctly stated the law regarding "acts of sexual violence" and "sexually violent offenses." The instructions did not mislead the jury or communicate an incorrect statement of the law. Accordingly, we decline to grant a new trial. The real controversy was fully and fairly tried.

Jury Instructions -- Serious Difficulty Controlling Behavior
State v. John Lee Laxton, 2002 WI 82, affirming unpublished court of appeals decision
(Affirmed on habeas review, John L. Laxton v. Bartow, No. 04-3988, 8/31/05)
For Laxton: Margaret A. Maroney, SPD, Madison Appellate
On-line Brief
On-line cert. petition
Issue: Whether the jury instructions adequately conveyed the requirement of mental disorder causing serious difficulty in controlling behavior.
Holding: Though Laxton waived objection on this ground, ¶26, the court reviews the issue in its discretion:
¶27. We reject Laxton's argument that the circuit court's instructions to the jury denied him due process of law. We have already concluded that Wis. Stat. ch. 980 satisfies due process requirements because proof that a person is sexually violent necessarily and implicitly includes proof that the person's mental disorder involves serious difficulty in controlling his or her behavior. Here, the jury instructions virtually tracked the definitions of "mental disorder" and "sexually violent person" in Wis. Stat. § 980.01. The circuit court instructed the jury, in part:

The second fact that must be established is that the respondent has a mental disorder. Mental disorder means a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to engage in acts of sexual violence.

The third fact that must be established is that the respondent is dangerous to others because he has a mental disorder which creates a substantial probability that he will engage in acts of sexual violence. A substantial probability means much more likely than not.

By concluding that Laxton has a mental disorder and that his mental disorder creates a substantial probability that he will engage in acts of sexual violence, the jury had to conclude that Laxton's mental disorder involved serious difficulty for him in controlling his behavior. This nexus between the mental disorder and the level of dangerousness distinguishes Laxton as a dangerous sexual offender who has serious difficulty controlling his behavior, from the dangerous but typical recidivist. We conclude, therefore, that the jury was properly instructed and that the jury instructions did not violate substantive due process.

(Accord, State v. Shawn Virlee, 2003 WI App 4, ¶8, PFR filed 1/3/03.)
Jury Instructions -- Serious Difficulty Controlling Behavior
State v. Joseph A. Lombard, 2003 WI App 163, PFR granted
For Lombard: David R. Karpe
Issue/Holding: Lombard wasn't entitled to a separate, lack-of-control instruction, to the effect that his "mental disorder must impair his volitional or emotional control to the degree that he cannot control his behavior"; State v. Laxton, 2002 WI 82, 254 Wis. 2d 185, 647 N.W.2d 784, cert. denied, 123 S. Ct. 870 (2003), controlling. ¶9.
(Note: Although this issue seems definitively decided in Wisconsin, there is a split of authority in other jurisdictions. Two recent cases, though rejecting idea of separate instruction, canvass this split. In re Detention of Thorell, 69574-1, 7/10/03, dissent in separate file, here; and People v. Williams, S107266 (8/21/03), collecting, fn. 8, cases.)
Jury Instructions -- Serious Difficulty Controlling Behavior
State v. Bernard G. Tainter, 2002 WI App 296, PFR filed 12/23/02
For Tainter: Jack E. Schairer, SPD, Madison Appellate
Issue/Holding: Specific instruction on necessity of finding respondent's serious difficulty controlling behavior not required. State v. Laxton, 2002 WI 82 controlling. ¶9.
Jury Instructions -- "Substantial Probability"
State v. Richard A. Brown (II), 2002 WI App 260, PFR filed 10/22/02
For Brown: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: Trial court's instructional "definition that substantial probability means considerably more likely to occur than not to occur" complied with case law definition and, though offered during closing argument, didn't undermine the defense. ¶¶9-15.
Jury Instructions -- Substantive Due Process
State v. Bernard G. Tainter, 2002 WI App 296, PFR filed 12/23/02
For Tainter: Jack E. Schairer, SPD, Madison Appellate
Issue/Holding: The pattern instruction -- JI-Crim 2502 -- didn't violate substantive due process. State v. Laxton, 2002 WI 82 controlling. ¶10.
(Accord, State v. Shawn Virlee, 2003 WI App 4, ¶10, PFR filed 1/3/03.)
Jury Instructions -- Volitional Control
State v. Steven J. Burgess, 2002 WI App 264, PFR granted 1/14/03
For Burgess: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: The issue on instructions re: serious difficulty controlling behavior is the same as, and therefore controlled by, State v. Laxton, 2002 WI 82. ¶29.
Jury Selection -- Failure to Strike Juror -- Reviewability
State v. Richard A. Brown (II), 2002 WI App 260, PFR filed 10/22/02
For Brown: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶16. Brown next argues that the trial court erred in failing to strike a prospective juror for cause and that he was prejudiced by being forced to use one of his peremptory strikes to remove him. Although a few years ago, when the parties first briefed this issue, a more thorough analysis would have been required, we now need do no more than recognize that, under the supreme court's recent decision in State v. Lindell, 2001 WI 108, 245 Wis. 2d 689, 629 N.W.2d 223 (overruling State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997)), Brown's argument fails.

¶17. Brown used a peremptory strike to remove the prospective juror he challenged. He does not argue that any biased jurors actually served on the jury in his case. Thus, under Lindell, even if the trial court erred in failing to strike the prospective juror, Brown "received that which he was entitled to under state law when he used a peremptory challenge." Id. at ¶131. He was tried by a fair and impartial jury and is not entitled to a new trial. See id. at ¶¶90-91, 113, 118.

Jury Selection -- Number of Peremptory Challenges
State v. Thomas Treadway, 2002 WI App 195
For Treadway: Lynn E. Hackbarth
Issue: Whether a respondent is entitled to the number of peremptory challenges prescribed by § 972.03, because of the potential for life-long custody.
Holding: Because an SVP respondent is entitled to periodic review, the analogy to a life sentence fails, and peremptory challenges are regulated by § 805.08(3) (three challenges, plus one if additional jurors are to be selected).
Automatic Secure Confinement -- Due Process and Separation of Powers
State v. Joseph A. Lombard, 2003 WI App 163, PFR granted
For Lombard: David R. Karpe
Issue/Holding: An instruction to the effect that commitment continues "until such time as the person is no longer a sexually violent person" was a warranted curative instruction addressing testimony by Lombard's expert that commitment would last his lifetime. ¶18.
Jury Waiver -- Advisal of Right to Jury Unanimity
State v. Kerby G. Denman, 2001 WI App 96, 243 Wis. 2d 14, 626 N.W.2d 296.
For Denman: Glenn L. Cushing, SPD, Madison Appellate
Issue: Whether a Ch. 980 respondent’s jury waiver requires advice of the right to a unanimous verdict.
Holding: The court “look(s) to WIS. STAT. § 980.05(2), rather than the case law governing the waiver of a the constitutional right to a jury trial in criminal cases, to determine whether Denman’s waiver was valid,” ¶11; because that section “does not require the court to engage in any particular procedure,” it “does not require that a respondent be advised by the court that a jury verdict must be unanimous in order for the withdrawal of his or her request for a jury trial to be valid,” ¶12.
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Necessity of Objection to Insufficient Proof
State v. Dennis R. Thiel (I), 2000 WI 67, 235 Wis. 2d 823, 612 N.W.2d 94, on certification from court of appeals
For Thiel: John D. Lubarsky, SPD, Madison Appellate
Issue: Whether the ch. 980 respondent waived his objection to insufficient proof by absence of objection.
Holding: "(T)he subject of a commitment petition under ch. 980 is not required to voice an objection to the allegations contained in the petition.... Thus, Thiel's failure to object to the admission of exhibits does not relieve the State of its statutorily defined burden to prove that its petition was filed within 90 days of his release." ¶28.
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Petition Filed by DA without Prior DOC Request or DOJ Action

State v. Harris D. Byers, 2003 WI 86, reversing unpublished opinion of court of appeals

For Byers: Jack E. Schairer & Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶26. A review of the placement of the provisions, together with the legislative history, reflects an intent to create a step-by-step process that must be followed before a district attorney has authority to file a petition. Under this step-by-step process, the initial step is that the agency with jurisdiction evaluates the person to be released to determine whether the person may meet the criteria for commitment as a sexually violent person. If the agency determines that the person may meet the criteria, the agency requests that the DOJ file a petition. The DOJ can then file a petition or coordinate with one of the appropriate district attorneys regarding filing a petition. Alternatively, the DOJ can determine that a filing is not warranted despite the agency request, in which case one of the appropriate district attorneys can then file the petition on his or her own….

¶43. In sum, we conclude that, under § 980.02(1), a request from the agency with jurisdiction and a subsequent decision by the DOJ not to file are prerequisites to a district attorney's authority to file a Chapter 980 petition. Because those prerequisites were not met in this case, we determine that the petition was not properly filed. Accordingly, we reverse the court of appeals and remand the matter to the circuit court for dismissal of the petition.

(Simple enough: ch. 980 doesn’t accommodate a “free radical” actor – the DA can’t work as an “unpaired electron” and simply file a petition on his or her own. Instead, DOC/DOJ perform what the court terms a gatekeeper function:)

¶38. We recognize that the step-by-step process elevates the role of the agency with jurisdiction in determining when a Chapter 980 petition can be filed. There are several policy reasons that support having the agency with jurisdiction serve as such a gatekeeper.

¶39. First, the agency with jurisdiction has the person under its supervision, care, and custody. Accordingly, it has the most comprehensive information regarding the person's status under Chapter 980. Second, not only does the agency with jurisdiction have a significant amount of information regarding the person, but it also has a significant amount of knowledge and expertise with supervising and dealing with the type of offenders that are potentially subject to Chapter 980 petitions.

¶40. Third, the agency with jurisdiction has the most recent contact with the person, whereas the district attorney of the county of conviction will likely have lost personal contact during the years of confinement. The district attorney of the county of intended residence may have had no prior contact with the person. Fourth, a gatekeeper role for the agency with jurisdiction facilitates creating a consistent and coordinated process for filing Chapter 980 petitions.

¶41. Fifth, there is a benefit to having a central screening process to conserve scarce resources because Chapter 980 cases can be complex and can result in significant treatment costs. Sixth, the use of the independent expertise of the agency with jurisdiction can be a tool for ensuring that the decision to file a Chapter 980 petition is insulated from local pressures.

Petition Filed under Criminal Case Number
State v. Frederick L. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163
For Pharm: Jack E. Schairer
Issue: Whether filing the petition with a criminal case number deprived the court of competency to proceed.
Holding: "As long as the court conducting the proceedings follows the rules of civil procedure ..., it is immaterial whether the petition is filed with a civil or criminal case number, or whether a judge currently assigned to the civil or criminal branch presides over the proceedings." ¶24.
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Petition -- Timeliness -- Post-Petition Grant of Jail Credit Not Affecting
State v. Shawn Virlee, 2003 WI App 4, PFR filed 1/3/03
For Virlee: Jack E. Schairer
Issue: Whether post-petition grant of jail credit deprived the court of competency to proceed, where the petition was filed within 90 days of the pre-grant release date, but would be untimely when calculated against the post-grant date.
Holding:
¶17. Virlee claims the court lost its competency to proceed with his commitment proceeding when it retroactively granted him sentence credit that placed his mandatory release date prior to the petition's filing date. We disagree. Under Wis. Stat. § 980.02(2)(ag), the State must file its petition within ninety days of release or discharge for it to be timely. By filing four days before Virlee's scheduled release from prison, the State did just that. The court did not lose jurisdiction because it modified Virlee's sentence after the petition was filed.

¶18. Our conclusion is supported by State v. Carpenter, 197 Wis. 2d 252, 541 N.W.2d 105 (1995). ... (T)he court noted the State's petition was filed within ninety days of Carpenter's actual discharge from prison. Id. Similarly, we conclude the trial court's subsequent modification of Virlee's sentence does not change the fact the State filed the petition within ninety days of his actual release from prison.

Petition -- Timeliness -- Calculation of Release Date on Concurrent Sentences
State v. Thomas Treadway, 2002 WI App 195
For Treadway: Lynn E. Hackbarth
Issue: Whether the state's petition was timely, where the respondent had already completed his sentence on the qualifying conviction but was serving concurrent sentences with the controlling sentence a non-qualifying conviction.
Holding: State v. Keith, 216 Wis. 2d 61, 573 N.W.2d 888 (Ct. App. 1997) (petition timely filed where respondent serving consecutive sentences) extended to concurrent sentences:
¶17. ... (I)f the State were required to file its Wis. Stat. ch. 980 petition within ninety days of the conclusion of a sentence for a sexually violent offense, despite the fact that the subject of the petition still could be serving additional time in an unbroken string of sentences, the petition could not accurately address the defendant's circumstances, mental condition, and treatment needs at the time of scheduled release. Discharge or release could be many months or, as in this case, many years away.
¶18. Moreover, in some cases, concurrent sentences, or concurrent and consecutive sentences, interlace, and some are further complicated by sentences after revocation. In such circumstances, the State easily could miscalculate the discharge or release date for the last sexually violent offense among the offenses not deemed sexually violent and miss the opportunity to seek Wis. Stat. ch. 980 commitment. Under such circumstances, both of ch. 980's "twin objectives"-the protection of the public and the treatment needs of the offender-would be disserved by precluding a court's consideration of commitment. See Keith, 216 Wis. 2d at 72; see also Grobarchik v. State, 102 Wis. 2d 461, 468, 307 N.W.2d 170 (1981) ("As employed in the language of the criminal law, a sentence of imprisonment is a term of incarceration or supervision on parole which continues until the defendant is finally discharged."). Thus, we conclude that because the State's petition was filed within ninety days of Treadway's release from a sentence for an offense that had not been deemed a sexually violent offense, which was being served concurrently with a shorter sentence imposed for a sexually violent offense, the petition was timely.
Placement Options.
State v. Derek Miller, 229 Wis. 2d 567, 600 N.W.2d 224 (Ct. App. 1999), petition for review dismissed as improvidently granted, State v. Derek Miller, 2000 WI 44, 234 Wis. 2d 687, 610 N.W.2d 484
For Miller: Ellen Henak, SPD, Milwaukee Appellate.
Miller argues that three placement options exist after a Ch. 980 finding of sexually violent person: secure-facility; non-secure facility; supervised release. The court of appeals rejects the argument: "The trial court correctly interpreted the placement options available for sexually violent persons listed in § 980.06(2)(b) to be limited to two--institutional care in a secure mental health unit or facility, or supervised release. As a consequence, the trial court properly exercised its discretion when it placed Miller in a secure mental health unit or facility."
The court also rejects the argument that the trial court was obligated to provide least restrictive placement: "we note that § 980.06(2)(b) does not obligate the trial court to decide the least restrictive placement; that obligation has been placed on the Department. 'The department shall arrange for control, care and treatment of the person in the least restrictive manner.... in accordance with the court's commitment order.' Section 980.06(2)(b), STATS. (emphasis added). Therefore, the trial court was under no obligation to commit Miller to the least restrictive placement."
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Discharge Petition – Probable Cause Hearing, § 980.09(2) (2001-02)
State v. Robert L. Kruse, 2006 WI App 179, PFR filed 9/11/06
For Kruse: Donald T. Lang, SPD, Madison Appellate
Issue/Holding1:
¶2 We agree with Kruse that at a probable cause hearing under Wis. Stat. §980.09(2)(a), the role of the circuit court is to determine whether there is plausible testimony or evidence that, if believed, would establish probable cause that the petitioner is no longer a sexually violent person. The circuit court erred because it did not make this determination but instead decided which of the two conflicting reports was more persuasive. However, we also conclude that under State v. Combs, 2006 WI App 137, No. 2005AP859, the re-examination report on which Kruse relies does not establish probable cause because it is not based, even in part, on facts, professional knowledge, or research that was not considered at his commitment trial. Therefore, we affirm.

¶30 We conclude that we are bound by our conclusion in Fowler that the probable cause determination under Wis. Stat. §980.09(2)(a) is the same as the probable cause determination in a preliminary examination in a criminal proceeding. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997). From this it follows that the role of the circuit court is as established in Dunn, 121 Wis. 2d at 397-98. That is, in assessing one or more re-examination reports at a hearing under §980.09(2)(a), the circuit court is to determine whether there is a plausible expert opinion that, if believed, would establish probable cause to believe a person is no longer a sexually violent person within the meaning of the statute. If there are two reports with conflicting opinions on this point, the court does not decide which it finds the more persuasive.

¶32 In this case the circuit court decided which of the two conflicting reports was more persuasive; it did not determine whether there was a plausible expert opinion that, if believed, would establish probable cause to believe a person is no longer a sexually violent person within the meaning of the statute. We conclude this was an error. Dr. Fields’ report contained her qualifications and her opinions about Kruse, the latter which were supported with reference to her professional knowledge and experience and information about Kruse she had obtained from identifiable sources. There is no question that her opinions were plausible.

Issue/Holding2:
¶35 We have recently resolved the same issue the parties debate here.[13] In State v. Combs, 2006 WI App 137, No. 2005AP859, we held that the legislature intended that, in order to provide a basis for probable cause to believe a committed person is no longer sexually violent under Wis. Stat. §908.09(2), “an expert’s opinion must depend upon something more than facts, professional knowledge, or research that was considered by an expert testifying in a prior proceeding that determined the person to be sexually violent.” Id., ¶32 (footnote omitted). We rejected the proposition that the legislature intended that probable cause may be established by an expert’s opinion “without regard to whether that opinion is based on matters that were already considered by experts testifying at the commitment trial or a prior evidentiary hearing.” Id.

¶41 Dr. Fields’ report does take into account events and information that occurred since the commitment trial, but her opinion that Kruse is not a sexually violent person does not depend upon them. She expressly states that it is “unlikely” that treatment had “significantly reduced reoffending risks.” While she observed that, based on her interview with Kruse, it “appear[ed]” he showed some increased insight and remorse, and his behavior with female staff had “seemingly improved over the past year,” she does not indicate that her opinion that he is not a sexually violent person is based in any part on these apparent improvements.

Discharge Petition – Probable Cause Hearing, § 980.09(2)
State v. Christopher L. Combs, 2006 WI App 137, PFR filed, 7/20/06
For Combs: Steven D. Phillips, SPD, Madison Appellate
Issue: Whether, on a petition for discharge of an SVP commitment, § 980.09(2)(b), the trial court can refuse to hold a hearing where, although the court-appointed expert concludes that the person was not sufficiently predisposed to sexual violence to meet the definition of a sexually violent person, the conclusion essentially reassesses information relied on by the experts who testified at the original commitment without any new professional research or knowledge.
Holding:
¶18      Combs contends on appeal that Dr. Fields’ report establishes probable cause to believe that he is not still a sexually violent person and the circuit court erred in deciding it did not. [12] Combs acknowledges that Dr. Fields based her opinion on the same actuarial instruments that were used by the experts who testified at the commitment trial, but, he asserts, she interpreted and scored them differently than did those experts. According to Combs, the phrases “still a sexually violent person” in Wis. Stat. § 980.09(2)(a) and “no longer a sexually violent person” in § 980.09(2)(b) encompass a person who is not now sexually violent because of a different interpretation and scoring of the same actuarial instruments used by experts at the commitment trial.

¶24      Combs argues that Pocan supports his position. He asserts that, because the focus of the statute is on whether the petitioner is presently a sexually violent person, it does not matter whether that is so because the petitioner’s condition has changed or because he never was sexually violent. …

¶27      … The precise issue presented by these facts is whether an expert’s conclusion that a person is not sexually violent, based on actuarial instruments that were used previously by other experts to evaluate the petitioner, when there is no change in the historical facts to which those instruments are applied and no change in the research or writings on how professionals are to interpret and score those instruments, establishes probable cause that a person is no longer sexually violent. Pocan did not address this issue, and we turn to it now.

¶32      We conclude the legislature did not intend that probable cause under Wis. Stat. § 980.09(2) may be established by an expert’s opinion that a person is not sexually violent without regard to whether that opinion is based on matters that were already considered by experts testifying at the commitment trial or a prior evidentiary hearing. Rather, we conclude that the legislature intended that, in order to provide a basis for probable cause to believe a person is no longer sexually violent under § 980.09(2), an expert’s opinion must depend upon something more than facts, professional knowledge, or research that was considered by an expert testifying in a prior proceeding that determined the person to be sexually violent. [17] By way of example, an opinion that a person is not sexually violent based at least in part on facts about the committed person that did not occur until after the prior adjudication would meet this standard, as would an opinion based at least in part on new professional knowledge about how to predict dangerousness. These examples are not exhaustive.


[17]  We need not address what the result would be if Dr. Fields’ opinion depended on facts or professional knowledge or research in existence at the time Combs was previously determined to be sexually violent, but which were not considered by an expert testifying at that time. Whether the legislature intended Wis. Stat. § 980.02 as a vehicle to litigate issues that could have been, but were not, litigated during the prior proceeding is an issue that is not before us.
Post-Commitment: Petition for Discharge Procedure – Probable Cause Hearing / Full Evidentiary Hearing
State v. Dennis R. Thiel, 2004 WI App 140, PFR filed 7/16/04
For Thiel: Suzanne L. Hagopian
Issue: Whether an examiner’s recommendation of supervised release established probable cause that Thiel was no longer a sexually violent person and therefore supported a full evidentiary hearing on release, pursuant to § 980.09(2).
Holding:
¶15. Thiel's claim falls under Wis. Stat. § 980.09(2), which sets forth the procedural posture for a committed individual's petition for discharge without the approval of the secretary of the Department of Health and Human Services.3

¶16. The question before the circuit court at a Wis. Stat. § 980.09(2)(a) probable cause hearing is whether probable cause exists to establish that the individual seeking discharge is no longer a sexually violent person. … Accordingly, there is probable cause to believe the petitioner is no longer a sexually violent person if facts exist establishing probable cause to believe the individual no longer has a mental disorder as defined in Wis. Stat. ch. 980 or is no longer dangerous because, although he or she has the mental disorder, the mental disorder no longer makes it substantially probable that he or she will engage in acts of sexual violence. See §§  980.01(7), 980.09(2)(a).

¶17. By the plain language of the statute, the question at the probable cause hearing is not whether the individual is substantially probable to engage in acts of sexual violence if placed on supervised release or even if discharged from commitment; the statute draws no such distinction. Rather, the question at the probable cause stage is simply whether it is substantially probable that the person will engage in acts of sexual violence without regard to any specific restrictions, supervision or time frame. It is a black-and-white determination-it is either substantially probable that the person will engage in acts of sexual violence or it is not.

¶21. Thus, contrary to Thiel's assertions, probable cause to believe a person is no longer a "sexually violent person" is not satisfied by a recommendation of supervised release without more. Accordingly, while Thiel may be correct that Dr. Kotkin's recommendation of supervised release gives rise to the reasonable inference that Dr. Kotkin believed Thiel was not substantially probable to reoffend if placed on supervised release, Dr. Kotkin's recommendation was not relevant to the question before the court and does not, standing alone, supply the probable cause necessary to warrant a full evidentiary hearing on the matter.

So, you can get an evidentiary hearing on discharge only if there’s PC you’re no longer SVP. [Or, if the art of the witchcraft becomes refined enough to show that you never were SVP, State v. Henry Pocan, 2003 WI App 233.] Then and only then are you entitled to supervised release, if the State proves at the hearing that you are indeed still SVP, ¶20. Would seem to make supervised release a highly elusive, if not quite illusory, remedy at least under discharge procedure of § 980.09. But the outcome might be different under § 908.08, which regulates petitions for supervised release, and which makes the placement of the commitment, institutional care vs. supervised release, highly relevant. The court goes on to uphold the constitutionality of the release procedure, ¶¶22-30, stressing that § 980.08 allows someone unable to proceed under § 980.09 “the opportunity to pursue a less restrictive alternative to commitment.”)
Petition for Discharge Procedure – Timely Probable Cause Hearing, Due Process Right to & Remedy for Violation of
State v. Deryl B. Beyer, 2006 WI 2, on certification; prior history: 2001 WI App 167, cert. denied, Beyer v. Wisconsin, 537 U.S. 1210 (2003)
For Beyer: Donald T. Lang, SPD, Madison Appellate
Issue1: Whether due process was violated by delay of over 22 months between the time the first annual periodic examination report was provided to the circuit court under § 980.07 and the circuit court's probable cause hearing under § 980.09(2)(a).
Holding1:
¶26      In light of the fundamental nature of a ch. 980 committee's liberty interest and the State's interest in holding a ch. 980 committee only for so long as he or she requires treatment, the due process requirement that the ch. 980 committee be heard at a "meaningful time" demands that the circuit court hold the probable cause hearing promptly and within a reasonable time after the  DHFS provides the circuit court with a ch. 980 committee's annual periodic examination report and unsigned waiver form.

¶33     We agree with the State that the circuit court and the DHFS were not responsible for the entire 22-month delay. …

¶34      However, when we review the facts, it is clear that at a minimum the State was responsible for almost nine months of delay, and likely was responsible for at least 13 months of delay. …

¶46     To summarize:  No reason appears on the record to justify the delay in the circuit court's appointment of counsel.  The circuit court was responsible for a delay that meant the probable cause hearing could not have been held until nine to 13 months after the DHFS provided the circuit court with Beyer's first annual periodic examination report. …

¶47      Regardless of whether the 13 months of delay were caused by the DHFS, the circuit court, the circuit court judge's assistant, the attorney general's office, Beyer's attorney, or some combination of them, the delay was unreasonably long because it deprived Beyer of his due process right to be heard at a meaningful time.

Issue/Holding2: Remedy for violation of right to timely probable cause hearing on discharge petition is not discharge from commitment, ¶53. Nonetheless, “the institutional bodies of the State responsible for enforcement of ch. 980—the DHFS, the Department of Justice, and the circuit courts—should ensure prompt annual judicial review of ch. 980 committees' continued detention, ¶56.” The SPD must promptly appoint counsel, who must exercise diligent representation, ¶60. These entities, together, “must bear substantial responsibility for ensuring prompt judicial review of the annual periodic examination reports,” ¶65. Thus, “(t)he onus is on the DHFS, the Department of Justice, the bar, and the circuit courts to act promptly on an annual periodic examination report and unsigned waiver form,” ¶62. But the costs of discharging a presumptively dangerous and untreated SVP are too high to support outright discharge for violation of this right. Rather, the remedies are similar to those enunciated in the lead opinion in State ex rel. William E. Marberry v. Macht, 2003 WI 79 (re: failure to provide timely periodic reexamination—writ of mandamus or supervisory writ to compel circuit court to take immediate action), ¶54.
¶64      … The appropriate remedy for a ch. 980 committee when a circuit court fails to take prompt action to appoint counsel or an independent examiner and hold a probable cause hearing under Wis. Stat. § 980.09(2) is to move for a writ of mandamus or a supervisory writ to compel the circuit court to take immediate action.  If counsel or an independent examiner delays the proceedings, a ch. 980 committee could move the circuit court for just and equitable relief such as an order to show cause why counsel or the independent examiner should not be discharged or why the independent examiner should not be ordered to conduct the examination promptly or provide the examination report to the circuit court immediately.
The court “recommend(s) appropriate precautionary measures to ensure that the due process violations that occurred in the present case do not occur in the future,” ¶65, but beyond exhorting everyone to do more and do better, the court offers little by way of concrete measures: DHFS should diligently adhere to statutory mandates, ¶58; the SPD must make prompt appointment, and appointed counsel must perform diligently, ¶60; circuit courts must institute “case management techniques” to ensure proper oversight, ¶59; the AG’s “Paulick letter” (nothing more, really, than a reminder to the circuit court of its duty to actually conduct probable cause review) is heartily endorsed, ¶61. In Marberry, the court had split, 3-3, on the question of remedy for a similar violation. There’s now a majority on that issue and though the context is not identical it’s close enough so that the remedy here will probably be held to apply in that situation too.

A note on the line-up of Justices: 4-vote majority; 2-vote concurrence; recused, Justice Prosser. The concurrence agrees that Beyer didn’t have a timely hearing, and further agrees on the remedy, ¶68. But the concurrence goes on to complain, oddly, that “Beyer has not made a sufficient showing of state action that prejudiced him at the probable cause hearing,” id. The ensuing analysis is eccentric: it would require, for denial of speedy hearing, intentional delay by the State; the only authority for this novel proposition is the inapposite rule that it violates due process when the State intentionally delays filing a delinquency petition in order to later file an adult complaint, ¶77. The defect in this analogy simply isn’t worth discussing, except to say that intentional delay is not part of the majority’s calculus for determining denial of timely hearing.

Discharge Procedure – Probable Cause Determination, § 980.09(2), Generally
State v. Robert M. Fowler, 2005 WI App 41, PFR filed 3/9/05
For Fowler: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding:
¶9 In State v. Paulick, 213 Wis. 2d 432, 570 N.W.2d 626 (Ct. App. 1997), this court … concluded that § 980.09(2)(a) “does not contemplate an evidentiary-type hearing like that provided in [WIS. STAT.] § 980.09(2)(b). Rather, the probable cause hearing is a paper review of the reexamination report(s) with argument that provides an opportunity for the committing court to weed out frivolous petitions ….” Paulick, 213 Wis. 2d at 438-39.

¶10 More recently, in State v. Thiel, 2004 WI App 140, 275 Wis. 2d 421, 685 N.W.2d 890, we held that “probable cause to believe a person is no longer a ‘sexually violent person’ is not satisfied by a recommendation of supervised release without more.” Id., ¶21. We explained that while a recommendation for supervised release may give rise to a reasonable inference that the committed person was not substantially probable to re-offend if placed on supervised release, such a recommendation was not relevant to the question before the court and did not, standing alone, supply the probable cause necessary to warrant a full evidentiary hearing on the matter. Id.

Discharge Procedure – Probable Cause Determination, § 980.09(2), Insufficient Showing on Particular Facts
State v. Robert M. Fowler, 2005 WI App 41, PFR filed 3/9/05
For Fowler: Randall E. Paulson, SPD, Milwaukee Appellate
Issue/Holding:
¶30 Dr. Harasymiw’s report concludes that Fowler still is a sexually violent person. This was sufficient to support the trial court’s conclusion that it was substantially probable that Fowler would engage in acts of sexual violence. …

¶31 … Although Dr. Maskel disagreed with certain conclusions, she did not recommend discharge. Rather, she indicated that given Fowler’s improvement with treatment, “supervised release (outpatient) setting, given that there is sufficient structure to the program” would be appropriate.

¶32 In Thiel, we held that supervision and restrictions were not the appropriate issues to be considering at the probable cause stage. 275 Wis. 2d 421, ¶17. Rather, we concluded that the question at the probable cause stage was black and white: is it substantially probable that the person will engage in acts of sexual violence or is it not. Id. Applying this rule to the review standard, we must conclude that the trial court did not err in denying Fowler’s request for a discharge hearing. Our review demonstrates that the trial court had “substantial ground for the exercise of judgment” and competent evidence exists in the record for the trial court’s decision. Dr. Harasymiw’s assessment failed to provide probable cause for this court to conclude that the facts warrant a hearing on whether Fowler is still a sexually violent person. Accordingly, we affirm.

Read broadly, this result could have significant ramifications for post-commitment procedure. But to whose benefit? Keep in mind that the court explicitly borrows the probable cause standard from bindover procedure, ¶11. Importantly, probable cause is little more than a rubber stamp. State v. Anthony M. Cotton, 2003 WI App 154, ¶12 (“A defendant may be bound over for trial when the evidence presented at the preliminary hearing is sufficient to support a reasonable inference that the defendant probably committed a felony. State v. Dunn, 121 Wis. 2d 389, 393, 359 N.W.2d 151 (1984). All that is needed is a believable or plausible account of the defendant's commission of a felony. Id. at 398.”). In other words, when there are competing, plausible inferences, one supporting probable cause and the other not, the court has no choice but to bind over. What does that mean in the present context? A Dunn-type regime is beneficial to an SVP: where one expert supports release and another doesn’t, you take the inference in favor of probable cause and pass to the next stage. Nothing in Fowler is inconsistent with that approach. Instead, the beneficial impact of Dunn doesn’t quite come into play because: under State v. Thiel, 2004 WI App 140, you need a recommendation for discharge to get beyond the § 908.09(2) petition stage; and, in this case, there was no such recommendation, ¶31. You’re left, then, with a decent argument that under a Dunn-type regime, the court must find probable cause where there’s at least one expert favoring discharge, even in the face of opposition. Dunno where, or how often, you’ll get a favorable expert but that’s a different problem. For now, we’re simply putting the best face on a nominally adverse decision.
Discharge Petition -- Probable Cause Hearing
State v. Henry Pocan, 2003 WI App 233
For Pocan: Margaret A. Maroney, SPD, Madison Appellate
Issue/Holding: Pocan established probable cause for a discharge hearing where the psychologist conducting the reevaluation and using actuarial tables unavailable at the time of original commitment found no substantial probability of reoffending:
¶11. The State argues that Wis. Stat. ch. 980 thus requires the court to focus on progress or improvement in Pocan's condition. The psychologist stated that, based on new diagnostic tools, she could not conclude that Pocan would reoffend sexually. However, the State argues the psychologist's report contains no evidence that there was an improvement in Pocan's condition. Instead, the State maintains Pocan is merely arguing that he was never a sexually violent person in the first place, instead of establishing that he is not "still" a sexually violent person.

¶12. We agree that progress in treatment is one way of showing that a person is not still a sexually violent person. However, we conclude that is not the only way. A new diagnosis would be another way of proving someone is not still a sexually violent person. A new diagnosis need not attack the original finding that an individual was a sexually violent person. Rather, a new diagnosis focuses on the present. The present diagnosis would be evidence of whether an individual is still a sexually violent person.

¶13. The circuit court found Pocan to be a sexually violent person when it committed him in 1998. He now argues new diagnostic tools show that he is not a sexually violent person. If the court finds Pocan is not sexually violent now, that means he is not still a sexually violent person.

¶14. Pocan asks that we remand for a probable cause hearing. The State agrees that this is the best course if we do not affirm the court's denial of the petition. We also agree that remand is necessary here. At the hearing, the circuit court should proceed under Wis. Stat. § 980.09 and determine whether facts exist that warrant a trial on whether Pocan is still a sexually violent person.

(Great. Pocan, apparently, never should have been committed; the interpretive art of the witchcraft has now improved to the point where it can be said experts wrongly divined their throwing of bones the first time around. But this doesn’t mean that Pocan was never an SVP. Rather, it means that he’s not still an SVP. Sure. Nothing’s changed but the dark art of the actuarials, but that somehow means it’s the subject who’s changed. Talk about your legal fictions.)

To like effect, also see, In re Detention of Andre Young, Wash. App. No. 51468-7-I, 3/22/04 ("Because the actuarial risk assessment evidence Young presented, diagnostic tools that were not available when he was committed in 1991, makes a prima facie showing that he is no longer an SVP, we reverse and remand for an evidentiary hearing on the issue."); State v. Elmore, Wash. SCT No. 79208-9, 10/18/07 (expert's "report that ... new data from the ... clinical file and other sources" supported a changed opinion required full hearing, given that court may not weigh evidence at screening stage).

Discharge Petition
State v. Ray A. Schiller, 2003 WI App 195
For Schiller: Jack E. Schairer, SPD, Madison Appellate
Issue/Holding: Schiller's § 980.08 petition for supervised release (by default, a § 980.09 petition for discharge), did not establish probable cause to go forward.
¶9. The issue is whether the trial court erroneously denied Schiller a jury trial on the issue of discharge when it found no probable cause to establish that he was no longer a sexually violent person. We conclude that Dr. Lytton's report and testimony do not rise to the level of probable cause and therefore the trial court did not err when it found no probable cause to establish that Schiller was no longer a sexually violent person. In other words, probable cause that a detainee is no longer a sexually violent person is not demonstrated by an expert's conclusion that a detainee has the ability to control his or her behavior.

¶10. Although Dr. Lytton's report expresses her opinion that Schiller "has Pedophilia" and her opinion that this diagnosis "predisposes him to commit sex offenses against children," she nonetheless seems to misinterpret the phrase "serious difficulty in controlling behavior" as this phrase has been used by our courts. Dr. Lytton's testimony appears to equate "serious difficulty in controlling behavior" with a person's inability to make choices....

¶11. However, a "serious difficulty in controlling behavior" is not about whether a person has the ability to make choices....

¶12. The Crane Court further indicated that we must not only consider whether the person has the ability to make choices, but the degree to which those choices are driven by a mental disorder: [S]erious difficulty in controlling behavior ... when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. Id. at 413.

¶13. Furthermore, the Crane Court went on to hold that pedophilia is a mental disorder that by definition includes a diagnosis of lack of control....

Post-Commitment: Petition for Discharge Procedure – Delay in Implementing Remand Order of Appellate Court
State v. Dennis R. Thiel, 2004 WI App 140, PFR filed 7/16/04
For Thiel: Suzanne L. Hagopian
Issue/Holding:
¶27. We now turn to the second issue on appeal-that being, whether Thiel's due process rights were violated because the circuit court failed to initiate proceedings following remand by this court and therefore nothing occurred until Thiel initiated proceedings by writing to the court nearly ten months later. The State argues that Wis. Stat. § 808.08 controls. … The State contends that subsec. (3) applies in this case.5 Subsections (1) and (2), by stating, "the judge shall" and "the trial court ... shall" respectively, clearly place the duty on the trial court to initiate the action ordered on remand. Subsection (3), however, uses different language. It states, "any party may ... make appropriate motion for further proceedings." Thus, by its plain language, subsec. (3) places the onus on the parties to move the circuit court to conduct the further proceedings ordered on remand. The circuit court has no obligation to initiate proceedings or to place the case on its schedule or take any action until a party asks it to do so.

¶29. Thiel also suggests that it would be unfair to place the burden on him to move the court for further proceedings under Wis. Stat. § 808.08(3) because he is an involuntary commitment patient. Thiel, however, was represented by counsel in his previous appeal. After remittitur, it was his appellate counsel's responsibility to contact the circuit court on his behalf and request that the court conduct further proceedings consistent with our decision. We also note that, as demonstrated by his numerous letters to the circuit court that are a part of the appellate record, Thiel was perfectly capable of contacting the circuit court himself. Indeed, in one letter to the court, Thiel explicitly referred to our previous decision and asked the court to conduct the evidentiary hearing we ordered and to appoint an expert for him.

Post-Disposition -- Failure to Obtain Residential Placement on Court Order for Supervised Release
State v. Shawn D. Schulpius, 2006 WI 1, affirming, 2004 WI App 39
For Schulpius: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding1: Failure to place Schulpius on court-ordered supervised release did not “shock the conscience,” hence did not violate substantive due process, where the failure occurred despite good-faith, substantial efforts to comply with the order, ¶31.
Issue/Holding2: Failure to place Schulpius on court-ordered supervised release violated procedural due process.
¶38      … Although the state has a compelling interest in protecting the public from sexually violent persons, [9] the private interests at stake, freedom from physical restraint, [10] is equally critical. The risk of erroneous deprivation of an individual's liberty is unacceptably heightened by the state's failure to abide by procedures established to ensure the preservation of fundamental rights.

¶39      We therefore conclude that Schulpius's continued placement in secure confinement for an extended period after the circuit court had repeatedly ordered he be placed on supervised release, violated his right to procedural due process. However, release, either outright or supervised, is not an appropriate remedy for Schulpius at this time, where his substantive due process rights were not violated, but where there was a violation of procedural due process. …

Post-Disposition -- Failure to Obtain Residential Placement on Court Order for Supervised Release
State v. Shawn D. Schulpius, 2006 WI 1, affirming, 2004 WI App 39
For Schulpius: Ellen Henak, SPD, Milwaukee Appellate
Issue1: Whether, as previously held in State v. Sprosty, 227 Wis. 2d 316, 595 N.W.2d 692 (1999), DHFS may be ordered to create an appropriate facility for SVPs authorized for supervised release.
Holding1:
¶42      In Sprosty, this court determined that a circuit court has the authority under Wis. Stat. § 980.08(5) to order the DHFS to create appropriate services and facilities to accommodate an order for supervised release, and that the DHFS has the financial burden of paying for such programs and facilities in accord with Wis. Stat. § 980.12. [11] Sprosty, 227 Wis. 2d 316 at 320, 336-37. In Sprosty, this court stated that "a circuit court has the authority under Wis. Stat. § 980.08(5) to order a county, through DHFS, to create whatever programs or facilities are necessary to accommodate an order for supervised release." Id. at 331. That language is not inconsistent with our holding here, as it is the county's responsibility to work with the DHFS to prepare a plan that identifies treatment and services that an individual on supervised release will receive in the community. See Wis.  Stat. § 980.08(5).

¶43      We conclude that the Sprosty decision is still valid, and enables a circuit court to fashion a remedy in an appropriate situation. However, we determine that issuing such an order is inappropriate at this time, under these circumstances. …

(Discussion of efforts by DHFS and legislature follows.)
Issue/Holding2: Question of what remedy, if any, is available to SVP denied expeditious placement under order for supervised release left open, ¶51.
Prediction of Future Dangerousness of Juveniles.
State v. Matthew A.B., 231 Wis.2d 688, 605 N.W.2d 598 (Ct. App. 1999).
For Matthew A.B.: Mary E. Waitrovich, SPD, Madison Appellate.
Issue: Whether a prediction of future dangerousness may be made of a juvenile in a Ch. 980 proceeding.
Holding: The trial court had a reasonable basis to predict Matthew's future dangerousness, though he was a juvenile.
Analysis: The state's experts assessed Matthew's dangerousness by using the "Doren criteria," which were developed through research involving adults. Moreover, Matthew adduced evidence "that juveniles have a lower propensity to reoffend in sexual violence situations." Nonetheless, the court of appeals advances three reasons for finding no violation of due process. 1) The state's experts acknowledged the limitations of the Doren research, and discounted its applicability to juveniles. 2) Flaws in the Doren criteria would go only to weight not admissibility. 3) Matthew's future dangerousness was based on all the evidence , such as his history, not just the Doren criteria. ¶¶33-35.
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Pretrial discovery - expert's report.
State v. Tory L. Rachel, 224 Wis.2d 571, 591 N.W.2d 920 (Ct. App. 1999).
For Rachel: Donald T. Lang, SPD, Madison Appellate.
Holding:
Tory L. Rachel appeals a nonfinal order of the trial court ruling that the findings and conclusions of a court-appointed expert are subject to discovery in a ch. 980, STATS., proceeding. Because the rules of civil procedure, chs. 801 to 847, STATS., govern procedure in ch. 980 proceedings, § 804.01, STATS., applies in this case. Under that section, the report of an expert is not discoverable unless that expert will be called as a witness at trial. See § 804.01(2)(d). Here, it was not clear whether Rachel would call the expert at trial. Thus, the trial court's order allowing discovery was erroneous. We reverse and remand.
The court explicitly rejects the idea "that the criminal rules of discovery should apply." "(W)hen the legislature intended for criminal safeguards to apply to ch. 980 proceedings it said so. It has not said so with regard to rules of procedure."
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Pretrial Release
State v. Shawn Virlee, 2003 WI App 4, PFR filed 1/3/03
For Virlee: Jack E. Schairer
Issue: Whether ch. 980 violates due process and/or equal protection because it doesn't allow for pretrial release.
Holding:
¶14. We decline to address Virlee's due process and equal protection arguments because he fails to establish, and we do not see, how the statute's lack of a provision for pretrial release affects the trial court's judgment. Virlee's appeal challenges his commitment. He does not argue that his inability to be released pending his trial somehow rendered the jury's verdict or the court's order of commitment improper. Even if we were to conclude Virlee had a right to be released before trial, the error would be harmless because it has no bearing on whether he is sexually violent. See Whitty v. State, 34 Wis. 2d 278, 289, 149 N.W.2d 557 (1967) (violation of right to reasonable bail subject to harmless error test because it does not affect issue of defendant's guilt or innocence). Further, although it is unclear whether Virlee challenges the removal of the least restrictive placement language from ch. 980 in the context of pretrial release or post-trial commitment, our supreme court has already determined the legislature's removal of this provision does not violate due process. See State v. Rachel, 2002 WI 81, 66, 254 Wis. 2d 215, 647 N.W.2d 762.
Probable Cause Hearing -- Bindover sufficiency.
State v. John J. Watson, 227 Wis.2d 167, 595 N.W.2d 403 (1999), reversing unpublished decision.
For Watson: Richard D. Martin, SPD, Milwaukee Appellate.
Holding: For fact-specific reasons, the state established probable cause to proceed with this 980 case; bindover is established by more than reliance on inadmissible hearsay.
Probable Cause Hearing -- Timeliness.
State v. Deryl B. Beyer, 2001 WI App 167, PFR filed
For Beyer: Jack E. Schairer, SPD, Madison Appellate
Issue1: Whether the trial court lost competence because the 72-hour time limit for a probable cause hearing, imposed by § 980.04(2), had passed.
Holding: Although the statutory time limit uses the term “shall,” it is directory rather than mandatory. “¶11. Under Wis. Stat. § 980.02(2), the State has only one ninety-day window of opportunity to petition for commitment. See Brissette, 230 Wis. 2d at 85; see also State v. Thomas, 2000 WI App 162, ¶13, 238 Wis. 2d 216, 617 N.W.2d 230. If the circuit court were to lose competence whenever the seventy-two-hour time limit is not met, in many cases the subjects of Wis. Stat. ch. 980 petitions could avoid that ninety-day window by making last-minute requests for judicial substitution. This would be a particularly likely scenario where the state has not filed a petition early in the ninety-day time window. Many offenders who are otherwise proper candidates for ch. 980 commitment would avoid treatment and remain a danger to the public simply by requesting a judicial substitution. The legislature could not have intended this result, and we therefore conclude that the seventy-two-hour limit in Wis. Stat. § 980.04(2) is directory.”
Issue2: Whether delay of approximately two months in holding the probable cause hearing violated due process.
Holding: Though the statutory time limit of 72 hours for holding a probable cause hearing is merely directory, it may not be extended “indefinitely.” Instead, any delay is bounded by considerations of due process. ¶¶13-14. Due process was satisfied here, the court stressing: “¶16. We caution that the length of delay that we have deemed permissible in Beyer's case will not necessarily be reasonable in all Wis. Stat. ch. 980 cases. Beyer's situation is extraordinary in that he made his request for judicial substitution at the last minute. The trial court found that ‘the substitution request was filed at approximately 5:00 p.m. on the 12th day of October, 1998, after normal business hours ....’ Such a strategy is particularly ill-advised in counties, as here, where only one circuit court judge sits.”
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Probable Cause Hearing -- Timeliness.
State v. Fredrick J. Brissette, 230 Wis.2d 82, 601 N.W.2d 678 (Ct. App. 1999).
For Brissette: John D, Lubarsky, SPD, Madison Appellate.
Issue: Whether failure to hold a probable cause hearing within 72 hours of the filing of a Ch. 980 petition causes the court to lose competency to proceed.
Holding: The 72-hour requirement for conducting the probable cause hearing does not begin running if the subject is in custody pursuant to independent process, but begins running only upon detention pursuant to Ch. 980 process; measured thusly, Brissette's hearing was timely.
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Probable Cause Hearing -- Timeliness.
State v. Matthew A.B., 231 Wis.2d 688, 605 N.W.2d 598 (Ct. App. 1999).
For Matthew A.B.: Mary E. Waitrovich, SPD, Madison Appellate.
Issue: Whether the probable cause hearing was held within 72 hours of filing of the Ch. 980 petition, as required by § 980.04(2).
Holding: The trial court's finding that the hearing was held within 72 hours of filing, exclusive of the weekend, is not clearly erroneous. (Underlying question of whether a violation would deprive the trial court of competency held open.) ¶¶15-17.
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Proof Respondent Within 90 Days Discharge/Release
State v. James Lalor, 2003 WI App 68, PFR filed 4/15/03
For Lalor: T. Christopher Kelly
Issue/Holding: Where the state, in a case tried before the decision in State v. Thiel, 2000 WI 67, ¶1, 235 Wis. 2d 823, 612 N.W.2d 94 (Thiel I), failed to prove that Lalor was within ninety days of release when the petition was filed, the remedy under State v. Thiel, 2001 WI App 52, ¶30-31, 241 Wis. 2d 439, 625 N.W.2d 321 (Thiel II), “is to remand for an evidentiary hearing limited to the issue of whether the State can prove beyond a reasonable doubt that Lalor was within ninety days of his release at the time the petition was filed.” ¶35.
Proof Respondent Within 90 Days Discharge/Release
State v. Richard A. Brown (II), 2002 WI App 260, PFR filed 10/22/02
For Brown: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: Failure to instruct on the proof requirement that the petition was filed within 90 days of the respondent's release is subject to the harmless error rule. And, because documentation in the trial record indisputably establishes that proof, the commitment is affirmed. (State v. Thiel (I), 2000 WI 67, extended from bench to jury trials. ¶¶18-22.)
Proof Respondent within 90 Days of Discharge/Release
State v. Kirby G. Denman, 2001 WI App 96, 243 Wis. 2d 14, 626 N.W.2d 296
For Denman: Glenn L. Cushing, SPD, Madison Appellate
Issue: Whether the state’s failure to prove that Denman was within 90 days of release or discharge requires dismissal of the petition.
Holding: "¶16 Following our decision in Thiel, 2001 WI App 52, 241 Wis. 2d 439, 625 N.W.2d 321, we remand this matter to the trial court for an evidentiary hearing at which the State will have the opportunity to attempt to prove Denman was within ninety days of release."
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Proof Respondent within 90 Days of Discharge/Release
State v. Dennis R. Thiel (I), 2000 WI 67, 235 Wis. 2d 823, 612 N.W.2d 94, on certification from court of appeals
For Thiel: John D. Lubarsky, SPD, Madison Appellate
Issue1: Whether the state must prove in a Ch. 980 commitment proceeding that the respondent is within 90 days of release or discharge.
Holding: "We determine that in a commitment trial pursuant to Wis. Stat. ch. 980, the State must prove beyond a reasonable doubt that the subject of the petition is within 90 days of release or discharge from a sentence imposed on the basis of a sexually violent offense." ¶1.
Analysis: § 980.02(2) mandates that certain allegations be raised by the commitment petition, including that "(t)he person is within 90 days of discharge or release on parole," etc. And, § 980.05(3) requires that at trial "the petitioner has the burden of proving the allegations in the petition beyond a reasonable doubt." Does this make the within-90 days allegation a necessary element of proof? Yes: "The words of the statutes clearly and unambiguously set forth the State's burden in proving this specific allegation." ¶19. Moreover, an LRB drafting-file analysis supports this conclusion. ¶21. (Note that JI Crim No. 2502 (2000), release No. 39, now requires a finding that respondent within 90 days of release/discharge when petition filed.)
Issue2: Whether the state adequately proved at trial that the ch. 980 respondent was within 90 days of discharge or release.
Holding: Due to ambiguities and inconsistencies in exhibits setting forth Thiel's mandatory release date, the state failed to satisfy its burden of proving this element. ¶¶29-34.
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Proof Respondent within 90 Days of Discharge/Release -- retroactivity of requirement
State v. Dennis R. Thiel (II), 2001 WI App 52, 241 Wis. 2d 439, 625 N.W.2d 321
For Thiel: John D. Lubarsky, SPD, Madison Appellate
Issue: Whether the proof requirement that the respondent is within 90 days of discharge or release when the petition is filed has retroactive application.
Holding:
¶1.... We conclude that the requirement that the State must prove beyond a reasonable doubt that a WIS. STAT. ch. 980 (1997-98) detainee is within ninety days of release shall be applied retroactively, and Thiel shall receive the benefit of retroactive application....

¶19 However, we do not apply it retroactively to all detainees under WIS. STAT. ch. 980. Rather, it is applicable to Thiel and to all cases on direct appeal that have not been finalized as of the date of the release of Thiel, June 23, 2000. ...

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Proof Respondent within 90 Days of Discharge/Release -- remedy for insufficient proof
State v. Dennis R. Thiel (II), 2001 WI App 52, 241 Wis. 2d 439, 625 N.W.2d 321
For Thiel: John D. Lubarsky, SPD, Madison Appellate
Issue: Whether, when the trial lacks proof of the respondent being within 90 days of release or discharge when the Ch. 980 petition was filed, the matter may be remanded to the circuit court for an evidentiary hearing to determine if the deficient proof can be supplied.
Holding: The case is remanded to give the state the opportunity to present competent evidence regarding Thiel's release date. ¶30.
Proof Respondent within 90 Days of Release/Discharge
State v. Deryl B. Beyer, 2001 WI App 167, PFR filed
For Beyer: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether the state failed to prove the element that he was within 90 days of release or discharge when the petition was filed; and, if so, what remedy should be afforded.
Holding: Under controlling precedent, the state must prove the “within 90 days” element, failing which the is remanded to the trial court to give the state the opportunity to prove it. ¶¶19-22. Because the appellate court isn’t a fact-finding court, and because “Beyer and the State dispute a date that is crucial to an analysis of whether the State satisfied the ninety-day element,” the matter is remanded for further proceedings “at which the State may attempt to prove beyond a reasonable doubt that it filed the commitment petition within ninety days of Beyer’s release.”
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Qualifying Placement, § 980.02(2)(ag) – Secure Facility, Juvenile Adjudication
State v. Tremaine Y., 2005 WI App 56, PFR filed 3/4/05
For Tremaine: Robert W. Peterson, Samantha Jeanne Humes, SPD, Milwaukee Trial
Issue: Whether a ch. 980 petition is supported against a juvenile who was not placed in a secured correctional facility following the original adjudication on the qualifying sexually violent offense but was subsequently placed in such a facility as a result of additional offense.
Holding: By analogy to State v. Keith, 216 Wis. 2d 61, 573 N.W.2d 888 (Ct. App. 1997) (petition timely filed where adult respondent serving consecutive sentences), Tremaine’s continuous custody in the juvenile system, eventuating in secure placement, establishes ch. 980 jurisdiction, ¶13.
¶14 We recognize that criminal sentencing concepts are foreign to juvenile proceedings. See State v. Wolfe, 2001 WI App 136, ¶15, 246 Wis. 2d 233, 631 N.W.2d 240. Nonetheless, the twin purposes of WIS. STAT. ch. 980 apply equally to juvenile offenders. We conclude that the risk of reoffense and the protection of the public are best served by applying a WIS. STAT. § 980.02(2)(ag) analysis to a juvenile’s placement circumstances pending release rather than to a juvenile’s placement under the original disposition. Tremaine’s original disposition in case no. 97-JV-XXX could not have formed a basis for a ch. 980 petition; however, his subsequent placement in a secured correctional facility, which was based at least in part on the sexually violent offense in case no. 97-JV-XXX, is sufficient to support the State’s petition.
Translated: We got you coming and going. If the set-up isn’t clear enough, here’s more background detail. Ch. 980 requires an underlying, qualifying offense and a petition filed within 90 days of release from a qualifying facility. All you need to know further is that Tremaine’s qualifying adjudication occurred in 1998 when he was 11, and although that dispositional order kept getting extended his later transfer to a qualifying institution was on account of non-qualifying conduct. (Also of note: because of his age, he could not have been placed in a 980-qualifying facility under his qualifying adjudication.) You can see, then, Tremaine’s argument: a petition must stand on two legs or not at all, and this petition only has one. But, the court of appeals says, it’s his argument that doesn’t have legs. The interesting thing about the court’s treatment is its rather blithe amalgamation of Keith and Wolfe and then its enlistment of the resulting, ad hoc rationale to service of the 980 cause. Briefly: Keith says that you treat consecutive adult sentences as one continuous sentence, so that release on a nominally non-qualifying sentence imposed consecutive to a qualifying sentence supports ch. 980 jurisdiction; and Wolfe says (¶¶14-15) that where you’ve got separate juvenile adjudications, one qualifying and one not, a 980 petition is supported upon release for the qualifying offense even though time remains on the non-qualifying offense, because unlike adult sentences juvenile dispositions can’t be imposed consecutively. In other words, under Keith it doesn’t matter which sentence comes where because they’re regarded as indistinct, and under Wolfe it very much matters which disposition comes where because each is necessarily distinct from the other. And this brings Tremaine’s point even more sharply into focus: if juvenile dispositions are, as caselaw clearly indicates, to be given separate effect, then it follows that his last placement was not on account of the qualifying offense, and he therefore falls outside 980 eligibility. But ch. 980 is a great leveler, and all points of distinction must give way to “(t)he risk that a sex offender may re-offend.”
Qualifying Predicate Offense
State v. Aaron K. Gibbs, 2001 WI App 83, 242 Wis. 2d 640, 625 N.W.2d 666
For Gibbs: Donna L. Hintze, SPD, Madison Appellate
Issue: Whether a delinquency adjudication under former Wis. Stat. Ch. 48 (1993-94) supports a Ch. 980 petition.
Holding:
¶7 The question is whether in 1997 the circuit court had the authority under the 1997-98 version of WIS. STAT. ch. 980 to proceed on a sexual predator petition against an individual who was adjudicated under the old juvenile code. The 1997-98 version of ch. 980 refers to the recreated and newly numbered juvenile code (WIS. STAT. ch. 938) and makes no reference to the 1993-94 juvenile code (WIS. STAT. ch. 48 (1993-94)). In substance, however, the references in both versions of ch. 980 are the same. Both the 1993-94 version and the 1997-98 version of ch. 980 refer to an individual adjudicated delinquent on the basis of a sexually violent offense or from a commitment order that was entered as a result of a sexually violent offense. The substance of ch. 980 authority is unchanged despite the renumbering of the juvenile code. This independently demonstrates circuit court authority under ch. 980 to proceed on a sexual predator petition....

¶11 Just as in Irish, here there is confusion due to the recreation of a statute. The revision of WIS. STAT. ch. 980, specifically WIS. STAT. § 980.02(2)(ag), replaced the reference to an adjudication of delinquency under WIS. STAT. § 48.34 (1993-94) with a reference to WIS. STAT. § 938.34. See 1995 Wis. Act 77, § 695. Gibbs would like us to believe that the legislature intended to exclude those who were adjudicated delinquent under WIS. STAT. § 48.34 (1993-94) from potential commitment under ch. 980. We believe no such thing. Instead, we believe that the lack of reference to WIS. STAT. ch. 48 (1993-94) was an inadvertent oversight. A renumbered statute without a change in substance does not exempt a defendant from ch. 980. The reference in § 980.02(2)(ag) to § 938.34 incorporates the former WIS. STAT. § 48.34 (1993-94), the predecessor to § 938.34....

¶16 Our interpretation that the incorporation of the delinquency adjudication statute in WIS. STAT. § 980.02(2)(ag) is an incorporation of the substance of the adjudication process, rather than merely a numerical designation, avoids an absurd result. Andrade represents a persuasive and reasonable approach to the interpretation of a statutory reference in one statute to another statute. We agree with Andrade that 'the number of a particular section is simply a shorthand means of describing or designating the substance of [that section].' Andrade, 190 Cal. Rptr. at 740. With this decision, we abide by the spirit and the purpose of WIS. STAT. ch. 980. As noted earlier, the applicability section, WIS. STAT. § 980.13, demonstrates that the legislature intended ch. 980 to be applied to sexually violent persons who had been adjudicated delinquent for offenses prior to or after June 2, 1994. Therefore, it is no stretch to hold that ch. 980 applies to persons adjudicated delinquent under both the former WIS. STAT. § 48.34 (1993-94) as well as the present WIS. STAT. § 938.34.

Repealed Statute as Predicate Offense
State v. Frederick L. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163 
For Pharm: Jack E. Schairer 
Issue: Whether conviction under the since-repealed statute of indecent behavior with a child may serve as a predicate offense for a Ch. 980 commitment.
Holding: "(T)he legislature clearly intended to include, within the definition of 'sexually violent offense,' the conduct prohibited under a previous version of a statute enumerated in Wis. Stat. § 980.01(6), as long as the conduct prohibited under the predecessor statutes remains prohibited under the current enumerated statute." ¶19. Because the conduct Pharm was convicted of under a repealed statute, indecent behavior with a child, § 944.13 (1973-74), remains prohibited under current statutes, he was convicted of a 980-eligible offense. Id. 
Go To Brief
Right to independent expert
State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811
For Thayer: Jane K. Smith
Issue: Whether the commitment subject has a right to present an independent medical report at a petition for discharge probable cause hearing, § 980.09(2)(a).
Holding:  Although a Ch. 980 patient does have the right submit an independent medical report to the court, ¶¶6-13, Wis Stat.. § 980.07(1) requires that the expert be requested or retained at the time of reexamination. ¶15.
Analysis: The issue arises in the context of an ineffective assistance challenge to counsel's failure to present an independent medical report at the probable cause hearing. The court seems to hold that, given the requirement that the patient must assert the right to an expert at the time of the reexamination, coupled with his failure to do so, counsel's belief that he was prohibited from presenting and evidence was reasonable. To the extent that the court thereby binds counsel to the patient's failure to assert a right, the holding is extremely problematic: the patient certainly has the right to counsel at this stage, and it is hard to believe that an uncounsleed waiver of the right to present evidence without an accompanying waiver of the right to counsel can be countenanced.
Burden of persuasion, petition for discharge probable cause hearing
State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811
For Thayer: Jane K. Smith
Issue: Whether the trial court improperly assigned the burden of persuasion to the inmate at the § 980.09(2)(a) probable cause hearing.
Holding: The burden of persuasion is assigned to neither party at a § 908.09(2)(a) hearing, the purpose of which is simply to conduct a paper review to determine whether a full evidentiary hearing is necessary. The trial court did not assign the burden of persuasion to the inmate. ¶¶16-19. 
Right to full evidentiary hearing after "paper review"
State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811
For Thayer: Jane K. Smith
Issue: Whether the patient was entitled to a full evidentiary hearing on release following the reexamination probable cause "paper review." 
Holding:
¶26 A full evidentiary hearing was unwarranted. The only evidence before the trial court indicated that the grounds for Thayer's original WIS. STAT. ch. 980 commitment remained current and relevant, that Thayer continued to display dangerous and sexually inappropriate behavior while involved in treatment programs, that he still had important treatment issues to address and that he was still likely to engage in future sexual violence. The report did not present any facts that would warrant a full evidentiary hearing pursuant to WIS. STAT. § 980.09(2)(b).
Right to counsel, timing of appointment
State v. Glenn Allen Thayer, 2001 WI App 51, 241 Wis. 2d 417, 626 N.W.2d 811
For Thayer: Jane K. Smith
Issue: Whether the lateness of counsel's appointment, six days before the paper review probable cause hearing, violated due process.
Holding: Construing Thayer's argument to raise a contention that due to lateness of the appointment, counsel "had insufficient time to prepare for the probable cause hearing," ¶35, the court accepts the attorney's assertion that he didn't need additional time to prepare for the hearing, and concludes that Thayer therefore wasn't prejudiced by the "timing of the appointment." ¶37. 
Analysis: The court says that "there is no specific statutory time established to appoint counsel for an indigent ch. 980 patient. Counsel must simply be appointed as soon as possible." ¶32. The court isn't explicit as to what triggers the right to counsel, but broadly hints that the right attaches whenever the person becomes a "subject of the petition." Id., quoting, § 980.03(2)(a). "Petition" can mean the person's petition, and Thayer, as the court notes, "effectively" was petitioning for discharge. ¶33. The court's discussion on this critical point is elliptical, but this may be what the court means: § 980.09(2)(a) says that if the person doesn't affirmatively waive the right to petition, the court shall set a probable cause hearing; Thayer didn't waive his right to petition for discharge; he therefore "was effectively petitioning the court for discharge on that date." Id. "¶33 By failing to waive his right to petition for discharge on August 15, 1998, Thayer was effectively petitioning the court for discharge on that date." The department's examination was dated August 24, 1998, ¶23, so we can infer that 8/15/98 was probably the date of the reexam. The statute indicates that the waiver form must be given to the person at the time of the § 908.07(1) exam. If, then, the court's apparent holding is taken literally, two rights are simultaneously triggered: the right to an independent expert (waived if not affirmatively asserted) and to a petition and therefore to counsel (self-effectuating unless affirmatively waived). Which means that at the very time Thayer is held to waiver of an independent expert (discussed separately above), he was entitled to representation by counsel. The argument therefore could be -- but doesn't appear to have been made -- that Thayer's waiver of the expert wasn't effective because it was made without advice of counsel to which he was then entitled.
Re-examination time limit -- Initial Re-exam

State ex rel. William E. Marberry v. Macht, 2003 WI 79, reversing 2002 WI App 133, 254 Wis. 2d 690, 648 N.W.2d 522; prior history: appeal following remand, after grant of certification vacated

For Marberry: Donald T. Lang, SPD, Madison Appellate

Issue/Holding:

¶19. As we have noted, Chapter 980 is a civil commitment statute with dual objectives: protection of the public and treatment of persons with dangerous mental disorders. Untimely periodic reexamination frustrates the treatment objective and may keep persons who are no longer a danger to the public in institutionalized care longer than necessary.

 

¶20. In this regard, the failure to comply with the time limits for periodic reexamination has substantial consequences for the committed person. The initial and periodic reexaminations determine the committed person's appropriateness for continued institutional care, supervised release, or discharge. As the court of appeals observed, the "committed person's liberty hinges upon this initial reexamination." Marberry, 254 Wis. 2d 690, ¶27.

 

¶21. The weight of these considerations leads us to conclude, as did the court of appeals, that the time limits for periodic reexamination in Wis. Stat. § 980.07(1) are mandatory. This conclusion, however, does not necessarily require release and discharge from commitment as a remedy for noncompliance with the statutory mandate.

(The court agrees unanimously that Marberry is not entitled to release despite violation of the mandatory time limit for periodic reexamination, but splits 3-3 on the remedy for this violation. As a result, “neither the lead opinion nor the concurring opinion establishes precedent on this issue.” ¶37 n. 1. Lead opinion’s remedy: “a writ of mandamus to compel an initial or periodic reexamination, backed up by contempt, with a fine or jail as a sanction.” ¶27. The concurrence expressly rejects this approach and would instead “would hold this case open for two years so that DHFS can report to the legislature and the public every six months on the status of its compliance.” ¶58. See also Jackson v. State, 802 So.2d 1213, 1218 (Fla. App. 2002) (remedy for violation of review procedures is mandamus to compel compliance, not release).

Re-examination time limit.
State v. William E. Marberry, 231 Wis.2d 581, 605 N.W.2d 612 (Ct. App. 1999); subsequent history: State ex rel. William E. Marberry v. Macht, 2003 WI 79.
For Marberry: Donald T. Lang, SPD, Madison Appellate.
Issue: Whether DHFS failure to conduct a mental condition examination within six months of initial commitment under Ch. 980 causes loss of jurisdiction over the subject.
Holding: The six-month period for re-examination under § 980.07(1) doesn't begin running until the court has conducted a dispositional hearing and issued an initial commitment order. Because nothing in the record indicates that the DHFS did not re-examine Marberry within six months of entry of the relevant order, jurisdiction was retained.
Analysis: DHFS is required, under § 980.07, to conduct a re-exam within six months of a § 980.06 initial commitment. Marberry went to trial in 1996, and the trial court found him to be sexually violent and issued an "Initial Commitment Order, and Order for Predisposition Investigation." The dispositional hearing wasn't conducted until 1998, and the court ordered Mayday committed to a secure facility in July 1998. Marberry argues that the commitment must be vacated because the re-exam didn't occur within six months of the 1996 order. Despite the title of that 1996 order, the "initial commitment" may not occur until completion of the dispositional hearing. ¶14. The six-month limitation period is therefore measured against the 7/98 commitment order and, because "nothing in the record indicates" a failure to re-examine within six months of that date, the court rejects Marberry's argument. The court also rejects the possibility that no time limit attends the completion of a predisposition examination, the court says that by statute it should be "held as soon as practicable after the judgment." ¶16, quoting § 980.06(2)(a). This right is enforceable by trial-level motion or, in the exceptional case, petition to the court of appeals for supervisory writ. Id.
Relief from Civil Judgment, § 806.07
State v. Larry J. Sprosty, 2001 WI App 231, PFR filed
For Sprosty: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether the trial court erroneously exercised discretion in granting the state’s motion to vacate an SVP order for supervised release entered, but not implemented, almost four years earlier.
Holding: Under § 806.07(1)(h), there is no deadline for relieving a party from a judgment or order, so long as “extraordinary circumstances” are shown. ¶17. The circuit court didn’t erroneously exercise discretion, in concluding that a new incident showed that Sprosty was a risk to reoffend. It doesn’t matter that this new behavior (propositioning a 17-year-old) wasn’t itself criminal; it’s enough that Sprosty offered to have sexual contact with a minor. ¶¶18-25.
Analysis: While waiting for his supervised release plan to be put into effect, Sprosty was placed in a jail. He propositioned a cellmate for consensual sex. Nothing came of it. However, the cellmate was -- unknown to Sprosty -- 17 years old. Force was neither used or even suggested. The court seems to assume that this incident made Sprosty a risk to reoffend, but doesn’t quite get around to explaining why. Indeed, the entire crux of the matter seems to be the arbitrary (under these facts, anyway) characteristic of age: “We cannot conclude that the trial court improperly exercised its discretion because it considered the safety of children above all other factors.” ¶ 22. See also ¶ 24 (“Sprosty offered to have sexual contact with a minor, the very behavior for which he was adjudicated to be a sexually violent person”). Here’s the problem: not only did Sprosty indisputably not know that his cellmate was in fact not quite legally an adult, but the only reasonable assumption he would have made was that he was indeed an adult. This was, after all an adult jail. Why does the fact that Sprosty propositioned someone he reasonably assumed was an adult for purely consensual sex make him likely to commit an act of sexual violence? The court doesn’t bother to explain. Is the result, then, mere homophobia?
Go To Brief
Remedy for Insufficient Proof
State v. Dennis R. Thiel (I), 2000 WI 67, 235 Wis. 2d 823, 612 N.W.2d 94, on certification from court of appeals
For Thiel: John D. Lubarsky, SPD, Madison Appellate
Issue: What is the appropriate remedy for the state's failure to prove the element of being within-90 days of release.
Holding: "In light of the significant remedy issues... the more prudent course is to remand the cause to the court of appeals and direct the court to address the issue of the appropriate remedy." ¶37.
Analysis: Having ruled that (a) the state must prove the subject was within 90 days of discharge or release, and (b) the state adduced insufficient proof of that fact, the court identifies "significant remedy issues" that potentially inhibit grant of outright relief. These include retroactive application and "whether the court may remand the narrow issue involving proof of the 90-day requirement, as is done in other civil cases with respect to specific issues such as the appropriate measure of damages." ¶36. The first concern seems strained: this case is on direct appeal, not collateral review, and the question of retroactivity shouldn't arise. (In theory it could; the court could hold that the rule is purely prospective, so that it doesn't even apply to cases currently pending on direct appeal. But such a conclusion is so rare that its possibility hardly seems worth mention.) Of course, this "new" rule might be denied retroactive application, but this shouldn't be the case to resolve that point. The other concern -- limited remand for additional proof, as might occur in other civil cases -- seems more substantial. Keep in mind, though, that "All constitutional rights available to a defendant in a criminal proceeding are available to the person." § 980.05(1m). One of these is the due process right to adequate proof of all necessary elements. State ex rel. McCaffrey v. Shanks, 124 Wis.2d 216, 238, 369 N.W.2d 743 (Ct. App. 1985) ("A state conviction on evidence which does not support a finding of guilt beyond a reasonable doubt violates fourteenth amendment due process..."). And, of course, failure of proof creates a double jeopardy bar to further proceedings on the same charge.
Go To Brief
"Serious Difficulty Controlling Behavior"
State v. Ray A. Schiller, 2003 WI App 195
For Schiller: Jack E. Schairer, SPD, Madison Appellate
Issue/Holding:
¶11. However, a "serious difficulty in controlling behavior" is not about whether a person has the ability to make choices....

¶12. The Crane Court further indicated that we must not only consider whether the person has the ability to make choices, but the degree to which those choices are driven by a mental disorder: [S]erious difficulty in controlling behavior ... when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. Id. at 413.

¶13. Furthermore, the Crane Court went on to hold that pedophilia is a mental disorder that by definition includes a diagnosis of lack of control....

Special Verdicts -- Equal Protection
State v. Jesse J. Madison, 2004 WI App 46, PFR filed 3/12/04
For Madison: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding:
¶5. Alternatively, Madison argues that he has a constitutional right, on equal protections grounds, to a special verdict. See Wis. Const. art. I, § 1. This equal protection argument stems from an alleged disparate application of special verdicts, under Wis. Stat. § 805.12(1), in Wis. Stat. chs. 51 and 980 cases. Persons committed under ch. 980 and those committed under ch. 51 are similarly situated for an equal protection analysis. State v. Post, 197 Wis. 2d 279, 318-19, 541 N.W.2d 115 (1995).3

¶6. Madison notes that while Wisconsin's jury instructions provide a general verdict for a Wis. Stat. ch. 980 commitment, Wis JI-Criminal 2503, a special verdict is provided for Wis. Stat. ch. 51 commitments, Wis JI-Civil 7050. From this fact alone, Madison claims ch. 980 respondents are "systematically depriv[ed] of special verdicts" and that this constitutes an equal protection violation. Furthermore, because we previously observed that "it is much more difficult to commit a person under [chapter] 980 than it is to commit someone under chapter 51," State v. Williams, 2001 WI App 263, ¶14, 249 Wis. 2d 1, 637 N.W.2d 791, Madison claims that it is inconsistent to submit general verdicts in ch. 980 cases because they make it easier for a jury to return a verdict in favor of commitment. Therefore, given this disparity, Madison argues he was denied equal protection.

¶7. We reject the equal protection argument for two reasons. First, Madison has not provided any evidence of his allegation that ch. 980 respondents are routinely deprived of special verdicts. Second, he has not provided any evidence or authority to support the otherwise speculative proposition that general verdicts are more likely to result in commitments than special verdicts.


3   In State v. Post, 197 Wis. 2d 279, 328-29, 541 N.W.2d 115 (1995), the supreme court concluded there was a denial of equal protection where Wis. Stat. ch. 51 respondents had a right to a jury trial at a discharge hearing while Wis. Stat. ch. 980 respondents did not.
Special Verdicts -- Trial Court Discretion

State v. Jesse J. Madison, 2004 WI App 46, PFR filed 3/12/04

For Madison: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding:
 

¶3. Madison first claims that he has a statutory right to a special verdict under Wis. Stat. § 805.12(1). See State v. Rachel, 224 Wis. 2d 571, 575, 591 N.W.2d 920 (Ct. App. 1999) (Wis. Stat. ch. 980 proceedings are civil in nature and, therefore, the rules of civil procedure apply). Section 805.12(1) states, "Unless it orders otherwise, the court shall direct the jury to return a special verdict." Because special verdicts are "the rule and not the exception" in civil cases, Madison argues the trial court erred by giving a general verdict. See Milwaukee & Suburban Transp. Corp. v. Milwaukee County, 82 Wis. 2d 420, 450, 263 N.W.2d 503 (1978). We disagree.

 

¶4. In A.E. v. State, 163 Wis. 2d 270, 275, 471 N.W.2d 519 (Ct. App. 1991), we held that the opening phrase of Wis. Stat. § 805.12(1), "Unless it orders otherwise," gives the trial court broad discretion to determine the form of the verdict and that it is not per se improper to submit a general verdict. Thus, although the statutes suggest the trial court submit a special verdict to the jury, it remains within the trial court's discretion whether to submit a special or general verdict.2 Therefore, we reject Madison's argument that, under § 805.12(1), the trial court must submit a special verdict.

2    In his reply brief, Madison argues the trial court failed to exercise its discretion in determining the form of the verdict. We will not address arguments raised for the first time in reply briefs. State v. Chu, 2002 WI App 98, ¶42 n.5, 253 Wis. 2d 666, 643 N.W.2d 878.

(The opinion is, in the first instance, less than enlightening: all it says about the underlying merits is that “Madison requested the court to submit a special verdict to the jury, such as those used in Wis. Stat. ch. 51 commitments.” ¶2. Swell, but just what are those instructions? The court doesn’t say. Perhaps it simply doesn’t matter: whatever Madison might have requested he wasn’t going to get, no matter what. That’s discretion for you. The ch. 51 instructions are in Wis JI—Civil No. 7050. Take a look at them. This issue should not be allowed to fall away, the court’s dismissive treatment notwithstanding. More precisely, because of its dismissive treatment: The Judicial Council Committee’s Note says that § 805.12(1) “is based on a recognition that in Wisconsin practice, the special verdict is the rule and not the exception.” A party desiring the use of a general verdict should be required to make an appropriate motion.” This decision turns that clear directive on its head. 980s either are, or aren’t civil. Courts want to say that 980s are civil for purposes of diminished constitutional protections, but not quite civil when civil rules stand between the State and commitment. This case exemplifies that trend pretty well. The court’s statement that a trial judge has “broad discretion” with respect to special verdicts quite ignores the Judicial Council’s Note and, therefore, the very thrust of the statute. Moreover, keeping with its overall theme, the court can’t be bothered to say exactly what might inform that discretion. Again: the only way this issue can be brought to a head is if it is renewed until it is fairly resolved. The court also employs a bit of sleight of hand: A.E. did say that a general verdict isn’t per se improper, but that statement, strictly speaking, was dicta, inasmuch as the instruction in that case did not involve a general verdict. 163 Wis.2d at 276 (“we are not convinced that this was a general verdict”).)

Standard of review -- Sufficiency of Evidence
State v. Steven J. Burgess, 2002 WI App 264, granted 1/14/03
For Burgess: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶23. In determining whether the evidence in a Wis. Stat. ch. 980 commitment is sufficient to sustain the jury's verdict, we view the evidence in the light most favorable to commitment. State v. Kienitz, 227 Wis. 2d 423, 434, 597 N.W.2d 712 (1999). We will not overturn the verdict unless the evidence is so insufficient in probative value and force that no reasonable trier of fact could have found the person to be sexually violent beyond a reasonable doubt. Id. In addition, the jury is sole judge of credibility; it weighs the evidence and resolves any conflicts. Id. at 435.
Standard of Review
State v. Frank Curiel, 227 Wis.2d 389, 597 N.W.2d 697 (1999), affirming unpublished decision.
For Curiel: Jack. C. Hoag, Sedor & Hoag.
Holding: "¶6. .... We hold that appellate court review of challenges to the sufficiency of the evidence in ch. 980 proceedings should be that standard applied in criminal cases." Curiel argues that the standard should be a mixed question of law and fact. The court holds that, while this is a civil proceeding, "it shares many of the procedural and constitutional features present in criminal prosecutions." The need for "clarity" supports use of the criminal standard of review.
Stipulation for Supervised Release -- Enforceability 
State v. August T. Krueger, 2001 WI App 76, 242 Wis. 2d 793, 626 N.W.2d 83
For Krueger: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether due process requires enforcement of a stipulation approved by the trial court, under which the state agrees to the 980 petitioner's supervised release and the petitioner agrees to forego jury trial scheduled on his discharge petition. And, if so, whether difficulty implementing a supervised release plan bars specific performance of the stipulation.
Holding: By giving up a jury trial and ancillary rights on his petition for discharge in exchange for supervised release, Krueger effectively relieved the state of its burden of proving him still sexually dangerous, therefore this agreement "was akin to a plea agreement." ¶56. Though  terms of the release could not be implemented as originally anticipated, release was not an impossibility: the trial court had discretion to amend the plan to include release in other counties or to order DHFS to create facilities and services; therefore, the agreement is subject to specific performance. ¶¶59-64.
Analysis: The facts are fairly complex, but can be boiled down to these: Krueger, an incarcerated SVP patient, filed a discharge petition after getting favorable evaluations. The trial court performed a "paper review" and found probable cause to hold a discharge hearing. Krueger requested a jury trial. He then worked out a stipulation with the prosecutor under which Krueger would give up his right to seek discharge in exchange for supervised release. The trial court approved the agreement after extensive colloquies. ¶¶14-21.But in light of community objections Krueger suddenly found himself without a workable release plan. ¶¶26-37. The prosecutor first convinced the trial court to vacate the stipulation and proceed to jury on the issue of discharge, and then successfully moved the court to reconsider its now long-ago ruling of probable cause to hold a discharge hearing. So, Krueger went very suddenly from agreed-upon release to life-long incarceration. As the court of appeals points out, review of this situation requires synthesis of two key Wis. Stat. Ch. 980 cases: State v. Castillo, 205 Wis. 2d 599, 556 N.W.2d 425 (Ct. App. 1996), appeal dismissed as improvidently granted, State v. Castillo, 213 Wis. 2d 488, 570 N.W.2d 44 (1997); and State v. Sprosty, 227 Wis. 2d 316, 595 N.W.2d 692 (1999). Castillo says that a 980 release-agreement is like a plea agreement, but that (presumed) inability to implement the release means that the remedy is return to the status quo ante, rather than specific performance. Sprosty says that the trial court has broader authority to implement release than the court perhaps thought in Castillo. In short, just because release isn't feasible in one community doesn't mean that an alternative can't be found; Sprosty expands the relief for a Castillo violation.
Go To Brief
Substantial probability test.
State v. Paul Matek, 223 Wis.2d 611, 589 N.W.2d 441 (Ct. App. 1998).
For Matek: Russell Bohach.
Holding/Analysis: Pattern instruction Wis JI-Crim 2502 (1998) adequately conveys the elements necessary to a finding of "sexually violent person": 1) conviction of sexually violent offense; 2) mental disorder; 3) danger due to substantial probability of reoffending. The pattern instruction conveys these elements, including the requirement of a present mental disorder and the likelihood of future sexual violence. (Note: no objection was made to the instruction, and the court reviews for plain error, which "is reserved for [denial of] a basic constitutional right." But is plain error, § 901.03(4), the appropriate means to review instructional error? It does make a difference, because an "interest-of-justice" theory is less onerous than plain error - the issue wasn't fully tried, without regard to probability of different result on retrial. E.g., State v. Harp, 161 Wis. 2d 773, 469 N.W.2d 210 (Ct. App. 1991).)
Substantial Probability Test.
State v. Matthew A.B., 231 Wis.2d 688, 605 N.W.2d 598 (Ct. App. 1999).
For Matthew A.B.: Mary E. Waitrovich, SPD, Madison Appellate.
Issue: Whether the trial court's reliance on Wis JI-Criminal 2502 was proper, because it fails to define the phrase "substantial probability."
Holding: The issue is controlled by State v. Curiel, 227 Wis. 2d 389, 597 N.W.2d 697 (Ct. App. 1999); the jury instructions fully and fairly informed the trial court of the applicable law," and reliance on 2502 was proper. ¶¶36-37. (Note: Curiel was subsequently affirmed, State v. Curiel, 227 Wis. 2d 389, 597 N.W.2d 697 (1999).)
Go To Brief
Substantive Due Process -- Constitutionality of ch. 980 -- Necessity for Jury Finding of Mental Disorder Causing Serious Difficulty Controlling Behavior
State v. John Lee Laxton, 2002 WI 82, affirming unpublished court of appeals decision
(Affirmed on habeas review, John L. Laxton v. Bartow, No. 04-3988, 8/31/05)
For Laxton: Margaret A. Maroney, SPD, Madison Appellate
On-line Brief: http://www.wisspd.org/html/appellate/briefbank/briefs/993164SC.pdf
Issue: Whether ch. 980 is unconstitutional by failing to adequately narrow the class of commitment subjects to those with serious difficulty controlling dangerous behavior.
Holding: SVP commitment doesn't require separate finding of serious difficulty controlling behavior; the overall scheme imposes the necessary nexus:
¶22. Wisconsin ch. 980 satisfies this due process requirement because the statute requires a nexus between the mental disorder and the individual's dangerousness. Proof of this nexus necessarily and implicitly involves proof that the person's mental disorder involves serious difficulty for the person to control his or her behavior. The definition of a sexually violent person requires, in part, that the individual is "dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence." Wis. Stat. § 980.01(7) (emphasis added). As we recognized in Post, these statutory requirements do not sweep too broadly. The nexus--linking a mental disorder with dangerousness by requiring that the mental disorder predispose the individual to engage in acts of sexual violence--narrowly tailors the scope of ch. 980 to those most dangerous sexual offenders whose mental condition predisposes them to re-offend.

¶23. We conclude that the same nexus between the mental disorder and the substantial probability that the person will engage in acts of sexual violence, necessarily and implicitly requires proof that the person's mental disorder involves serious difficulty for such person in controlling his or her behavior. It is settled law that "substantially probable" means "much more likely than not." State v. Curiel, 227 Wis. 2d 389, 406, 597 N.W.2d 697 (1999). Thus, proof that due to a mental disorder it is substantially probable that the person will engage in acts of sexual violence necessarily and implicitly includes proof that such person's mental disorder involves serious difficulty in controlling his or her sexually dangerous behavior. Chapter 980, therefore, satisfies due process requirements. Proof that a person is sexually violent necessarily and implicitly includes proof that the person's mental disorder includes serious difficulty in controlling his or her behavior, and this requisite proof distinguishes a dangerous sexual offender who has serious difficulty controlling his or her behavior from a dangerous but typical recidivist. chapter 980 is narrowly tailored to meet compelling state interests.

Substantive Due Process -- Automatic SVP commitment to secure confinement
State v. Ronald Ransdell, 2001 WI App 202, PFR filed 8/27/01
For Ransdell: Ellen Henak, SPD, Milwaukee Appellate
Issue: Whether the automatic initial commitment to institutional care provision, § 980.06, on its face violates substantive due process.
Holding: A person challenging the constitutionality of a statute must show its infirmity beyond reasonable doubt; a statute restricting liberty implicates a “strict-scrutiny” test. ¶5. Applying this test, § 980.06 does not violate due process: requiring that a commitment subject first undergo evaluation and treatment in an institutional setting before a decision is made as to supervised release is a reasonable legislative policy determination; and, “there are many safeguards against arbitrary confinement” (such as, various options for petitioning for release or discharge). ¶¶7-9.
(Note: The court relies heavily on the automatic-commitment procedure for NGI defendants, § 971.17(1) (1981-82), upheld by State v. Field, 118 Wis. 2d 269, 279-82, 347 N.W.2d 365 (1984). ¶8. But this merely begs the question of whether NGI and SVP procedure are really comparable. As the Supreme Court has indicated, "insanity acquittees constitute a special class that should be treated differently from other candidates for treatment," Jones v. United States, 463 U.S. 354, 370 (1983). Field, for that matter, is premised in significant part on the idea that an insanity acquittee has necessarily committed a criminal act, itself “indicative of dangerousness.” 118 Wis. 2d at 279. Same can’t be said for an SVP subject, whose commitment is premised on a “predisposition” not actual commission of a crime. Then, too, Field stresses that automatic commitment ensures “a thorough and accurate evaluation,” 118 Wis. 2d at 281, something that will necessarily precede an SVP petition. Finally, an NGI acquittee is eligible for immediate conditional release, making the court’s reliance on the case somewhat odd. Neither side, incidentally, even cited Field in the briefs.)
Go to Brief
Substantive Due Process -- Need to Make Express Finding of Inability to Control Behavior
State v. James Lalor, 2003 WI App 68, PFR filed 4/15/03
For Lalor: T. Christopher Kelly
Issue/Holding: Fact-finder need not make express finding of serious difficulty controlling behavior. ¶¶ 26-30.
Supervised Release Determination, Standard of Review on Appeal
State v. Richard A. Brown, 2005 WI 29, reversing 2004 WI App 33, 269 Wis. 2d 750, 767 N.W.2d 555
For Brown: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶8. The issue presented by the parties in the instant case is whether a circuit court's denial of a chapter 980 petition for supervised release should be classified as a determination of a question of law or as an exercise of circuit court discretion. …

¶38. We next look to State v. Curiel, 227 Wis. 2d 389, 597 N.W.2d 697 (1999), a chapter 980 case, for the sufficiency of evidence standard of review. …

¶42 … [T]he Curiel standard of independent review of the circuit court's decision on the basis of the sufficiency of evidence, rather than a review for erroneous exercise of discretion, is appropriate in the instant case.

¶44. The sufficiency of evidence standard of independent appellate review gives deference to the circuit court's strength in determining the credibility of witnesses and in evaluating the evidence and recognizes the evaluative aspects involved in a circuit court's denial of a petition for supervised release. Circuit courts are better able than appellate courts to determine the credibility of witnesses and evaluate the evidence. In making a determination about the sufficiency of evidence, a reviewing court may draw not only on a circuit court's observational advantage, but also on the circuit court's reasoning.

Don’t let the somewhat clipped quotes above mislead you: this is a very important case on standard of review. Granted, SOR is technical and primarily for appellate specialists to fret about, but … it’s not merely recurrent, it underlies every appeal and typically determines the outcome. The court itself revisits and casts doubt on a number of cases [which it terms “a cross-pollenated [sic] mish-mash”]: “the efficacy of Seibert, Keding, Cook, and Wenk as precedential or persuasive authority that the standard of review in the instant case is erroneous exercise of discretion is limited.” The court doesn’t explicitly overrule any of these cases, nor is that the likely effect. Rather, the court indicates that any given SOR case can’t be simplistically applied beyond its immediate context (which the court criticizes the court of appeals for doing, ¶30). The lesson of this case probably reduces to the following formulation: Context, which is to say statutory text and legislative intent, matters; the statute in this instance places a burden of proof on the State, and whether or not a litigant has met its burden of proof is reviewed paradigmatically as a question of law rather than discretion, ¶29. So it is here. Along the way, the court suggests that when the statute imposes on the circuit court a “subjectively” determined decision (by, for example, requiring that the court be “satisfied” as to some matter), then the decision is “inherently discretionary,” ¶28, which is of course reviewed deferentially. And where in distinction, as in this instance, the statute explicitly lays out a burden of proof, from which the court’s decision automatically flows, then review of whether the evidence has met that burden is something of a mix: non-deferential as to the ultimate conclusion, after giving weight to trial-level credibility determinations, etc. In effect, you take the facts as found by the trial court and then determine whether they satisfy the burden of proof. This methodology, the court says, “fosters consistency and uniformity in circuit court decision making,” ¶45. One wonders if it doesn’t also express a bit of concern that, given essentially unfettered and unreviewable discretion, circuit court decision making in the SVP context would be nothing so much as a rubber stamp.
Supervised Release Determination, Sufficiency of Evidence
State v. Richard A. Brown, 2005 WI 29, reversing 2004 WI App 33, 269 Wis. 2d 750, 767 N.W.2d 555
For Brown: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: Where the only witness at Brown’s supervised release hearing was an expert who supported release, and the evidence indisputably showed favorable response to treatment, the State failed to meet its burden of proof that Brown should not be released, ¶¶62-94.
A highly fact-specific result, of course, which probably hinges on the favorable standard of review; the court of appeals, by contrast, upheld non-release under a fully deferential review-regime. In short, it’s probably unwise to try to generalize; about all you can say is that there were factors both favorable and unfavorable to release, the court reviewed everything and, “Simply put, we conclude as a matter of law that the circuit court's order denying Brown's petition for supervised release is not supported by evidence sufficient to meet the clear and convincing evidence standard,” ¶93.

One curiosity bears mention. After the opinion was released, it was modified, to add a new footnote 31, at ¶84. Indeed, this footnote can't even be found in the publicly posted opinion files; you'll have to access it through a commercial service, e.g., 2005 Wisc. LEXIS 139. Here, in full, is the footnote text:

Actuarial Risk Assessment tests (ARAs) estimate "'risk' of recidivism . . . based on aggregate or group data." Eric S. Janus & Robert A. Prentky, Forensic Use of Actuarial Risk Assessment With Sex Offender: Accuracy, Admissibility and Accountability, 40 Am. Crim. L. Rev. 1443, 1476 (2003). In other words, "the actuarial assessment tells us the empirically measured rate of recidivism among a group of sex offenders who share a set of characteristics with the subject of the evaluation." Id.

A user of this tool must understand that the ARAs scales "must be interpreted as reporting risk without consideration of treatment or state-of-the-art supervision." Id. at 1481.

In his report, Dr. Warner opined that one of the ARAs, the MnSOST-R, indicated that the offenders in the sample group comprising the actuarial assessment who scored above a threshold number re-offended 70% of the time within six years of release from a secure setting. The other two ARAs, also administered upon Brown's initial commitment, measured lower re-offense rates (21.1% and 40%) for their sample groups.

Dr. Warner's testimony cannot, however, be summarized to state that Brown has a 70% chance for re-offending (or a 21.1% or a 40% chance). The actuarial does not refer specifically to Brown or any other individual to whom the ARAs might be administered. Id. at 1477. Professor Janus and Dr. Prentky highlighted this very problem in using ARAs in sex offender cases:

We urge courts to control the language used to describe the statistical evidence. Both research and commonsense suggest that the way in which risk is communicated affects the way in which it is understood. Since risk is inherently a group characteristic, risk assessments should be ascribed to the relevant group, not to the individual defendant.

. . . .

Courts should exclude testimony that directly ascribes a risk to the defendant.

Id. at 1495-96.
Is this new material non-substantive, as suggested by its sua sponte inclusion after decisional release? The text itself reads as if weightier than that. But to add to the mystery, as ¶84 indicates, Warner himself testified that the actuarials were limited to the initial commitment determination, and "were of no use in evaluating his current risk of reoffense"; similarly, the circuit court appeared to disdain reliance on the actuarials, id. In other words, the footnote is literally unnecessary. Why, that is, bother discussing instruments that weren't even used in the event? The purpose must be didactic, to sound a note of alarm -- but alarm about what, exactly?

Taking the footnote at face value, the court's intent seems perfectly clear: the court does not want actuarial instruments misused so as to reduce to a misleadingly precise percentage a given individual's chance of re-offending. Actuarials reflect group data, and group data are not in and of themsleves a ground to detain a particular individual. But it is not merely the misuse of group data that appears to trouble the court, it is the very attempt to give a mathematically precise assessment: thus, the court quotes with approval, and therefore adopts, the Janus-Prentky view that "testimony that directly ascribes a risk to the defendant" should be excluded. And if that's not obvious enough, the court helpfully illustrates: an expert simply can't say that the respondent has X "chance for re-offending."

In other words, the ch. 980 practitioner must now be exquisitely sensitive to the limits in using ARAs (actuarial risk assessment instruments). To be sure, this does not portend the end of ARAs. To the contrary. It simply means that limits are imposed on their use. And that, in turn, means at a minimum that the practitioner would be well-advised to obtain and closely review the cited Janus-Prentky article. No attempt will be made to summarize that article here, except to say that it views ARAs as equal if not superior to clinical judgments in making risk-assessment of SVPs; "in the real world of SVP cases," the article says, "it is incoherent to ignore ARA." 40 Am. Crim. L.Rev., at 1493. And improvident to ignore the way ARAs are used -- or ought to be used, which you will find usefully discussed in the article.

Sufficiency of Evidence -- Different Expert Opinions
State v. Joseph A. Lombard, 2003 WI App 163, affirmed, other grounds, 2004 WI 95
For Lombard: David R. Karpe
Issue/Holding: Evidence sufficient to support commitment though only one state's expert supported commitment against three defense experts:
¶21 ... The State's expert, a psychologist who evaluated Lombard for the purpose of determining whether proceedings under Wis. Stat. ch. 980 should be instituted, diagnosed Lombard with sexual sadism, a mental disorder which the expert testified rendered Lombard dangerous and substantially likely to reoffend within the meaning of ch. 980. Lombard does not argue that this testimony was inherently incredible or incredible as a matter of law. Accordingly, the jury had a right to believe and accept the State's expert's testimony and opinions as true, even if Lombard presented conflicting testimony from other experts. See State v. Kienitz, 227 Wis. 2d 423, 438-41, 597 N.W.2d 712 (1999).
Sufficiency of Evidence -- Actuarial Data
State v. James Lalor, 2003 WI App 68, PFR filed 4/15/03
For Lalor: T. Christopher Kelly
Issue/Holding: Evidence based on actuarial instruments (RRASOR; PCL-R; MnSOST-R; V-RAG), to the effect that of people with similar scores about 50% reoffend within five years and 70% within ten years, supports finding of substantial likelihood to engage in sexual violence. ¶¶15-25.
Sufficiency of Evidence -- Volitional Capacity
State v. Kenneth Parrish, 2002 WI App 263, PFR filed 11/11/02
For Parrish: Charles B. Vetzner, SPD, Madison Appellate
Issue/Holding: Although evidence of volitional impairment is required and in this bench trial the trial court erred in commenting to the contrary, ¶35, the court in fact found the existence of such evidence, ¶36.
Sufficiency of Evidence
State v. Thomas Treadway, 2002 WI App 195
For Treadway: Lynn E. Hackbarth
Issue/Holding: The evidence was sufficient, where a qualified psychologist testified that respondent had two disorders (paraphilia and personality disorder).
Sufficiency of Evidence
State v. Eric Pletz, 2000 WI App 221, 239 Wis.2d 49, 619 N.W.2d 97
For Pletz: Michael J. Backes
Issue: Whether the evidence was sufficient to support a finding that the 980 subject suffered from a qualifying mental disorder, given that the experts split on the issue.
Holding: "¶15 Pletz argues that the two psychologists who testified on his behalf offered more credible testimony, and that neither one diagnosed Pletz as suffering from pedophilia or any other mental disorder which would satisfy the definition of a sexually violent person. The fact that this case presented a 'battle of the experts' does not alter our conclusion that the jury was presented with sufficient evidence to support the verdict it reached. The jury assessed the credibility of the expert witnesses and reached a conclusion adverse to Pletz. The testimony presented by the State's witnesses is sufficient to uphold the jury's verdict despite the fact that the defense presented testimony from expert witnesses who disagreed."
Sufficiency of Evidence -- Actuarial Instruments
State v. Steven J. Burgess, 2003 WI 71, affirming 2002 WI App 264, 258 Wis. 2d 548, 654 N.W.2d 81
For Burgess: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
 

¶25. Burgess challenges his commitment based on the use of actuarial instruments in his chapter 980 commitment proceeding because they did not take into account his mental health. Consequently, Burgess contends that the instruments are irrelevant for chapter 980 proceedings because there must be a nexus between an offender's mental disorder and the probability of committing sexually violent acts in the future. Although actuarial instruments were utilized by expert witnesses for both the State and Burgess, there was sufficient evidence, aside from the actuarial data, for the jury to reasonably find that there is a substantial probability that Burgess will reoffend due to his mental disorders. Accordingly, the use of actuarial data in Burgess's chapter 980 proceedings does not affect our decision. …

Sufficiency of evidence.
State v. Paul Matek, 223 Wis.2d 611, 589 N.W.2d 441 (Ct. App. 1998).
For Matek: Russell Bohach.
Holding: Evidence to support ch. 980 SVP verdict sustained: the diagnosis took into account Matek's refusal to participate in treatment, and therefore the verdict "was not based solely on his prior bad acts."
Sufficiency of Evidence -- Difficulty Controlling Behavior
State v. Steven J. Burgess, 2003 WI 71, affirming 2002 WI App 264, 258 Wis. 2d 548, 654 N.W.2d 81
For Burgess: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether the evidence was sufficient, where the state's expert conceded that respondent could conform his conduct to requirements of the law.
Holding:
¶29. Nevertheless, Burgess claims that the expert testimony presented at trial, specifically that of Dr. Fields, established that he is able to control his behavior. Consequently, Burgess contends that the State did not prove that he cannot control his behavior due to his mental disorders as required for commitment under chapter 980. Burgess points to testimony of Dr. Fields, where she agreed that Burgess might be able to conform his conduct to the requirements of the law and that there was not "anything in the record indicating he doesn't know the difference between right and wrong." However, there is a critical difference between potentially being able to conform one's conduct to the requirements of law (i.e. knowing right from wrong) and actually doing so. Even though Dr. Fields thought that Burgess might know right from wrong and might be able to abide by the law, she ultimately concluded that Burgess would not in fact conform his behavior to the law. Specifically, Dr. Fields concluded that "Burgess' mental disorders create a substantial probability that he will commit a sexually violent act" in the future.
Sufficiency of evidence - pedophilia.
State v. Ronald J. Zanelli (II), 223 Wis.2d 545, 589 N.W.2d 687 (Ct. App. 1998).
For Zanelli: Jane K. Smith.
Holding/Analysis: Second time's not the charm for Zanelli, who won his 1st appeal, State v. Zanelli (I), 212 Wis. 2d 358, 569 N.W.2d 301 (Ct. App. 1997). The evidence was sufficient to establish his pedophilia. The state's expert witnesses testified that Zanelli suffers from pedophilia, based on his contact with young boys over a long period of time. Zanelli argues that DSM-IV requires "literal compliance" with three distinct factors, while the experts testified that "flexibility" is in order. This is enough to sustain the verdict.
Zanelli makes a related argument: the right to notice requires proof of all the DSM-IV criteria for pedophilia (or, for that matter, any particular mental disorder relied on for commitment). "This simply recasts the argument we have already rejected." The statute contains an objective standard, the definition of mental disorder, and any questions about the experts' opinions go to weight, not notice.
Sufficiency of evidence.
State v. Frank Curiel, 227 Wis.2d 389, 597 N.W.2d 697 (1999), affirming unpublished decision.
For Curiel: Jack. C. Hoag, Sedor & Hoag.
Issue/Holding: "¶7 Is the verdict of the court supported by the evidence? We hold that the evidence adduced at trial was sufficient to support the commitment of the defendant under Wis. Stat. ch. 980." The testimony of a single expert witness that Curiel was much more likely than not to reoffend suffices to uphold the commitment (even though that witness did not personally interview Curiel). ¶60.
Petition for Supervised Release, § 980.08(4), Generally
State v. Richard A. Brown, 2005 WI 29, reversing 2004 WI App 33, 269 Wis. 2d 750, 767 N.W.2d 555
For Brown: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶11. According to Wis. Stat. § 980.08(4), the circuit court starts in the position of having to grant a petition for supervised release. The circuit court does not have to grant the petition if the State proves by clear and convincing evidence that the person is still a sexually violent person and that it is substantially probable that the person will engage in acts of sexual violence if the person is not continued in institutional care. "Substantially probable" means "much more likely than not."5 The statute also sets forth four factors a circuit court may consider, along with other factors, in making its determination.

¶12. Thus, if the circuit court decides that the State has failed to meet its burden, the circuit court does not have any option: It "shall" grant Brown's petition for supervised release. If the circuit court decides, however, that the evidence is sufficient to prove the State's case by clear and convincing evidence, then the circuit court must deny Brown's petition.

Supervised Release -- Procedure –- Appointment of Expert for Subject, §§ 980.08(3)-(4)
State v. Dennis Thiel, 2004 WI App 225
For Thiel: Suzanne L. Hagopian, SPD, Madison Appellate
Issue1: Whether the court must appoint an examiner for the subject under § 980.08(3) when it has already appointed one under § 980.08(4).
Holding:
¶17. The parties agree that the language of Wis. Stat. § 980.08(3) requires the circuit court to appoint an examiner for the court, and we concur. Unlike the examiner for the court, Thiel's examiner reports directly to him or, as in this case, his attorney, and his examiner's opinions are not discoverable unless the examiner is called to testify. See State v. Rachel, 224 Wis. 2d 571, 575-76, 591 N.W.2d 920 (Ct. App. 1999). Also, a petitioner's examiner participates in the proceeding "on the person's behalf." Wis. Stat. § 980.03(4). Because the two examiners clearly serve different purposes, we conclude that the appointment of Thiel's examiner under § 980.03(4) did not satisfy the mandate of § 980.08(3); therefore, the circuit court erred when it refused to appoint an examiner for the court.
Issue2: Whether an indigent commitment subject seeking supervised release is entitled to an examiner of choice under § 980.08(4).
Holding:
¶23. We conclude that the plain language of Wis. Stat. § 980.03(4) affords Thiel the right to a "qualified and available expert or professional person" who will be appointed by the court and paid for by the county. The court's refusal to adopt Thiel's broad reading of the right to an expert of choice was a proper interpretation of the statute.
The court rejects, ¶¶21-22, an equal protection argument based on the rights of NGI and ch. 51 commitment subjects to examiner-of-choice. Ch. 980 may share “fundamental similarities” with those other commitment procedures but it “ultimately is unique and distinct from other civil commitment chapters.” The critical distinction in this instance is that 980 procedure requires the expert to give the report directly to the examiner (or to counsel), but in the other commitment procedures the expert files the report directly with the court.
Issue3: Whether the trial court erroneously exercised discretion in appointing under § 980.08(4) an expert unqualified with respect to a critical instrument (PCL-R).
Holding:
¶28. Sand Ridge, an agency of the Wisconsin Department of Health and Family Services, revised the scoring threshold for the PCL-R test while Thiel was pursuing discharge and supervised release. Sand Ridge's new scoring policy and its consequences for Thiel are clearly key issues in his supervised release proceeding. Yet, on appeal, the State argues that Thiel does not require the benefit of an expert who is certified in the PCL-R test. We must disagree. Dr. Kotkin's lack of PCL-R training and certification in the PCL-R evaluation tool is directly related to his "technical and scientific expertise" in the "precise question" of this case. See Tanner, 228 Wis. 2d at 370. In particular, the circuit court should have considered Dr. Kotkin's competence to comment on the significance of the revised scoring threshold implemented by Sand Ridge. Because there is no record evidence that the court exercised its discretion in this regard, we remand the matter with instructions for the court to appoint a qualified expert for Thiel under Wis. Stat. § 980.03(4).
Supervised Release -- Revocation -- Notice: Vague Condition
State v. Ervin Burris, 2004 WI 91, affirming 2002 WI App 262, 258 Wis. 2d. 454, 654 N.W.2d 866
For Burris: Joseph L. Sommers
Issue: Whether a condition of supervised release, that Burris “avoid all conduct … that is not in the best interest of the public’s welfare or your rehabilitation” provided adequate notice that obtaining a prescription for Viagra would subject him to revocation.
Holding:
¶53. Like a probation condition, a rule regulating the conduct of a sexually violent person on supervised release satisfies the procedural due process requirement of adequate notice if it is sufficiently precise for the probationer to know what conduct is required or prohibited. State v. Lo, 228 Wis. 2d 531, 535, 599 N.W.2d 659 (Ct. App. 1999). In the context of criminal statutes, we have stated that "when the alleged conduct of a defendant plainly falls in the prohibited zone, the defendant may not base a constitutional vagueness challenge on hypothetical facts." State v. Pittman, 174 Wis. 2d 255, 277, 496 N.W.2d 74 (1993) (citing State v. Courtney, 74 Wis. 2d 705, 713, 247 N.W.2d 714 (1976)). We find the logic of this principle to apply with equal force in a challenge to the rules and conditions of supervised release under Wis. Stat. ch. 980.

¶54. Burris does not allege that he was unaware that his actions were prohibited. Judge Welker found that it was Burris's deceptive actions, and not the Viagra prescription per se, that violated Rule 1. Burris obtained the prescription without discussing the matter with his supervising agent or anyone else in authority….

¶56. We agree with the court of appeals that Burris's conduct fell squarely within the prohibited zone of Rule 1. Burris cannot complain that Rule 1 is vague by arguing that he did not know what was prohibited because his own actions and reactions point to a contrary conclusion. Burris is therefore prohibited from challenging the rule on vagueness grounds because he himself was aware that, as a sexually violent person, his secretive conduct regarding his sex life was conduct not in the best interest of the public welfare or his rehabilitation.

(Other alleged procedural defects are raised, ¶¶57-63, but don’t merit discussion.)

Supervised Release -- Revocation -- Consideration of Alternatives to Revocation
State v. Ervin Burris, 2004 WI 91, affirming 2002 WI App 262, 258 Wis. 2d. 454, 654 N.W.2d 866
For Burris: Joseph L. Sommers
Issue: Whether, on revocation of supervised release of a sexually violent person, § 980.06(2)(d) (1997-98),  the circuit “court must, for any reason, expressly consider alternatives to revocation before revoking supervised release when the court determines that the safety of others requires revocation, or when the safety of others requires a person's commitment to a secure facility.” (¶20)
Holding: Constitutional argument:
¶22. An alleged sexually violent person, subject to commitment under Chapter 980, is not a criminal defendant but has the same constitutional rights as a criminal defendant at trial. State ex rel. Seibert v. Macht, 2001 WI 67, ¶12, 244 Wis. 2d 378, 627 N.W.2d 881, as revised in State ex rel. Seibert v. Macht, 2002 WI 12, ¶2, 249 Wis. 2d 702, 639 N.W.2d 707; Wis. Stat. § 980.05(1m). Moreover, the court of appeals has concluded that procedural due process protections afforded to persons in probation and parole revocation proceedings also apply in supervised release revocation proceedings under Chapter 980. See State v. VanBronkhorst, 2001 WI App 190, ¶9, 247 Wis. 2d 247, 633 N.W.2d 236.

¶23. Burris asserts that due process protections afforded in probation and parole revocation proceedings include a requirement that the decision-maker consider alternatives to revocation. For this proposition, he points to Plotkin. This, however, is where his analysis breaks down.

¶30. In Plotkin, this court adopted these standards for probation revocation, not as a requirement of due process but as a prescription of good policy.11 Thus, reasoning by analogy, we conclude that due process does not require that a court expressly consider and reject alternatives to revocation before revoking a sexually violent person's supervised release when the court determines that the public safety requires the person's commitment to a secure facility.

Statutory argument:
¶33. Under the former statute applicable in this case, the court was directed to commit a sexually violent person to the custody of DHFS for control, care, and treatment until such time as the person "is no longer a sexually violent person." § 980.06(1). An order for commitment was to specify either institutional care or supervised release. § 980.06(2)(b). DHFS was directed to "arrange for control, care and treatment of the person in the least restrictive manner consistent with the requirements of the person and in accordance with the court's commitment order." Id. (emphasis added).

¶40. The statute does not state explicitly what the court must consider. We think it is self-evident, however, that when the court determines, on the evidence after a hearing, that "the safety of others requires that supervised release be revoked," the court has found that there is clear and convincing evidence that it has no alternative but to revoke to assure the safety of others. Put another way, the court has found that the safety of others requires the person's commitment to a secure facility because supervised release will not be adequate.

¶41. The dictionary definition of the word "require" contains such phrases as: "To have as a requisite," "To call for as obligatory," "To impose an obligation on; compel." The American Heritage Dictionary of the English Language 1533 (3d ed. 1992). If the court finds that the safety of others compels that supervised release be revoked, the court need not provide an explicit statement why alternatives to incarceration were considered but not selected. If the court ever has question about the need to revoke on this ground, it can find that the state has not satisfied its burden of proof, or it can proactively explore alternatives to revocation.

¶44. As noted, the statute also provides that if "the court determines after hearing that any rule or condition of release has been violated . . . it may revoke the order for supervised release and order that the released person be placed in an appropriate institution." Wis. Stat. § 980.06(2)(d) (emphasis added). Here again, the statute does not state explicitly what the court must consider or what the court must explain. However, given the wide range of potential rule violations, including the failure to pay fines and restitution, we expect courts will recognize that revocation of supervised release based upon violation of one or more conditions or rules is likely to receive much closer scrutiny than revocation based on a finding that "the safety of others requires" revocation. In such a case, a court should explore alternatives or fully explain why some step short of revocation would not be adequate.

¶45 … When supervised release is revoked on the basis of the violation of a rule or condition of release, the court should explain its decision and square that decision with the treatment-oriented purposes of the law.

(The Chief Justice explains the decision’s sub-text:
¶110. The record in the present case demonstrates that the real basis for the circuit court's decision to revoke supervised release was that placement in this half-way house was not suitable for any chapter 980 committee. The clear inference from the record is that a different placement might have been satisfactory for Burris and for public safety. But, as the circuit court was well aware, the State has had great difficulty in finding or establishing placements for chapter 980 individuals.40)
Supervised Release -- Revocation -- Sufficienfy of Evidence
State v. Ervin Burris, 2004 WI 91, affirming 2002 WI App 262, 258 Wis. 2d. 454, 654 N.W.2d 866
For Burris: Joseph L. Sommers
Issue/Holding:
¶73. Judge Welker found that Burris disregarded the rules of his supervised release in order to satisfy his compulsive urges. Burris consumed alcohol, a drug that lowers inhibitions. He abused the privileges provided to him in order to meet a married woman and have sex with her, in derogation not only of the rules and conditions of his supervised release but also in direct contradiction of his supervising agent's warning not to contact the woman. Without the permission of his supervising agent, Burris secretly sought out a drug designed to enhance his sex life. Upon discovery of this secret, Burris became angry and refused to accept the prescription, demonstrating that he knew his conduct was improper.

¶74. The court concluded that these repeated violations of the rules of his supervised release involving sex and alcohol demonstrated that written rules and conditions and verbal admonitions were inadequate to protect the public. While these major transgressions did not specifically injure others through violence, they demonstrated that Burris was unable to conform his conduct to the rules and conditions of supervised release when he sought to satisfy his physical urges. In addition, Burris was not meaningfully participating in his sex offender treatment. Hence, Burris had become a clear risk to the community. The court determined there was no option short of revocation that would ameliorate the risk to the community because the serious nature of written rules, the verbal warnings, and the importance of treatment were lost on Burris. We conclude that the evidence supports Judge Welker's conclusion that the safety of others required that his supervised release be revoked.

(“Major transgressions”? The Chief Justice points out that “Burris never obtained any Viagra, nor did he ever obtain the prescription.” Instead, a prescription slip was delivered to the house and he refused it. ¶91 n. 13. And he had what the Chief characterizes as “a consensual one-night sexual encounter … Indeed the circuit court declared that Burris would benefit from a normal sexual relationship with an adult woman.” Id. Is it, then, that his singular sexual encounter was with “a married woman” that the majority finds so alarming? Otherwise, “married” is a gratuitous descriptor.)
Supervised release - "least restrictive" placement.
State v. Larry J. Sprosty, 227 Wis.2d 316, 595 N.W.2d 692 (1999), afffirming and remanding 221 Wis.2d 401, 585 N.W.2d 637 (Ct. App. 1998).
For Sprosty: T. Christopher Kelley, Thomas, Kelly, Habermehl & Mays.
Issue/Holding:
¶3 We conclude that a circuit court, in its discretion, may consider the availability of facilities to house or to treat a sexual predator under Wis. Stat. § 980.08(4). However, any such consideration must be in keeping with the purpose of providing the "least restrictive" means to accomplish the treatment of the person while also protecting the public. We further conclude that once a circuit court has made a finding and ordered supervised release under § 980.08(4), it is required to order a treatment plan under § 980.08(5) and to ensure that the person is placed on supervised release in accordance with the plan. In some cases, the creation of facilities and services to provide the requisite treatment and to protect the public while a person is on supervised release in the community may be necessary, for which DHFS is responsible. Wis. Stat. § 980.12(1). In this case, the circuit court granted the petition for supervised release, but failed to order Sprosty's release. This was in error. Accordingly, we remand the matter to the circuit court for a determination consistent with this opinion.
Supervised Release -- Hearing -- Expert's Report
State v. Richard A. Brown III, 2004 WI App 33, reversed on other grounds, 2005 WI 29
For Brown: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether, at a § 980.08 supervised release hearing, an expert’s report filed under § 980.08(3) may be introduced into evidence, though hearsay and though the author does not testify.
Holding:
¶14. …. Generally, where a party secures the services of a psychologist or other professional in support of an action, that party knows that the professional will be subject to scrutiny through the adversarial process. But where, as we see in Wis. Stat. § 980.08(3), the court "shall appoint" a professional to "furnish a written report" providing guidance for the court's consideration of the ultimate issue, it would be absurd to conclude that admissibility was not "provided ... by statute." Wis. Stat. § 908.02; see State ex rel. Sielen v. Circuit Court for Milwaukee County, 176 Wis. 2d 101, 109, 499 N.W.2d 657, 660 (1993) (court should interpret a statute to avoid an absurd result). The report and its author, of course, still may be subjected to adversarial testing (and here, as Brown concedes, he could have called Dr. Kotkin as a witness). But the fact that a party may decline to call a witness should not deprive the court of the very advice the statute required it to obtain. Accordingly, we conclude that Dr. Kotkin's report was admissible hearsay "as provided ... by statute," under §§ 908.02 and 980.08(3).
Despite reversing on other grounds, the supreme court says that it “need not and do[es] not address the hearsay and confrontation issues” raised by this problem, ¶59, and under a quirk in Wisconsin caselaw, the court of appeals' holding quoted above is therefore arguably left intact. See State v. Gary M.B., 2003 WI App 72, ¶13, affirmed on other grounds (but of course!), 2004 WI 33 (court of appeals' holding in a case reversed by the supreme court on other grounds, so that holding is neither “overruled, withdrawn, or modified,” continues to bind the court of appeals). The supreme court concurrence in Brown would reach the hearsay issue, ¶¶95-101, and goes on to make what ought to be the commonsensical point that the rules of evidence apply to all proceedings, discrete and inapplicable exceptions aside. (“Ought,” because the court of appeals and three dissenting supreme court justices disagree, seemingly taking the view that ch. 980 is one big exception to the rules of evidence.) This is obviously worrisome, because the votes may not be there to overrule the court of appeals’ hearsay holding, besides which it remains a holding and viable unless and until overruled. Still, there is a confrontation argument to be made, even if the report of a non-testifying witness is deemed admissible hearsay. Of course, there is a genuine question as to whether the right of confrontation exists in the 980 context, which is, after all, civil (given that confrontation within the 6th amendment is a criminal-trial right). Putting aside issue of a due process right to cross-examination, there is an explicit grant of statutory right to "cross-examine witnesses" at any 980 hearing, § 980.03(2)(c), and there is at least an argument to be made that the right of cross-examination is synonomous with confrontation. (The argument is even clearer with respect to the trial of a petition, because of the explicit grant of all criminal constitutional rights to a respondent, § 980.05(1).) Neither the supreme court concurrence nor dissent in Brown discuss confrontation. The court of appeals explicitly says that it was not addressing confrontation, though it gratuitously goes on to say, “Brown ignores the obvious: he concedes that he could have called Dr. Kotkin as a witness, thus assuring confrontation.” 2004 WI App 33, ¶14 n. 6. If the court wasn’t addressing the issue, then there’s obviously no holding. To the extent that the court is saying that the possibility you can call an adverse witness satisfies confrontation (or, to say the same thing, cross-examination), then a couple of (related) points should be made: 1) the court of appeals’ decision was issued before Crawford v. Washington, which for that reason alone suggests the need for reexamination (so to speak, in the 980 context); and, 2) there is already authority for the idea that under Crawford you can’t impose on the defendant the burden of producing a non-testifying witness, State v. Cox, 876 So.2d 932, 938-39 (La. App. 3d Cir. 2004):
Finally, the State contends that Defendant waived his right to object to the introduction of the Sykes statement because the court had offered him the right to subpoena Sykes as a witness. This begs the issue. Calling Sykes as a witness, in and of itself, would hardly render the statement admissible. Defendant should not be required to call Mrs. Sykes as a witness simply to facilitate the State's introduction of evidence against the Defendant. Moreover, there could be a whole host of reasons why Defendant would not want to call Mrs. Sykes as a witness. Simply stated, if the State needed to have Mrs. Sykes' testimony to enable the State to introduce the statement into evidence, the State could have called Mrs. Sykes as a witness.
And, Bratton v. State, TX App No. 05-03-01773-CR, 2/28/05:
… Although the record does not reflect why neither the State nor Bratton called Curl and Ward to testify, the State argues that Bratton chose not to call them as a matter of trial strategy. And, because he chose not to call them as a matter of trial strategy, he cannot complain he was denied his right to confront them. However, the State provides no authority for this contention, and we find nothing in Crawford or elsewhere suggesting that a defendant waives his right to confront a witness whose testimonial statement was admitted into evidence by failing to call him as a witness at trial. See Tex. R. App. P. 38.1(h); see also State v. Cox, 876 So.2d 932 (La. Ct. App. 2004) (specifically rejecting this argument and noting that if State needed to have witness's testimonial statement admitted into evidence, State could have called witness to testify). In fact, as the party seeking to admit Curl's and Ward's statements, it was the State's burden to show their statements were admissible, that is, that Curl and Ward were unavailable and that Bratton had been afforded a prior opportunity to cross-examine them. See Crawford, 124 S. Ct. at 1374; Snowden v. State, 846 A.2d 36, 47 n.31 (Md. Ct. Spec. App. 2004) (State did not satisfy Crawford foundational requirements where it failed to show declarant of testimonial hearsay unavailable to testify), aff'd, 2005 WL 275752 (Md. 2005); see also Davis v. State, 872 S.W.2d 743, 749 (Tex. Crim. App. 1994) (op. on reh'g) (proponent of statement against penal interest bears burden of showing its admissibility); Meador v. State, 812 S.W.2d 330, 333 (Tex. Crim. App. 1991) (same-co-conspirator's statement). By the State's own admission though, Curl and Ward were available to testify, and nothing in the record suggests, nor does the State contend, that Bratton was afforded a prior opportunity to cross-examine them. As such, the statements were inadmissible, and the trial court erred in not excluding them. See Crawford, 124 S. Ct. at 1364-65.
And what if "confrontation" (as delimited by the 6th amendment) is deemed inapplicable? The court's analysis remains seriously problematic even as a purely statutory matter. As noted, § 980.03(2)(c) says that “at any hearing under this chapter” the SVP has the right to “cross-examine witnesses.” Maybe you could say that Kotkin wasn’t a witness because he didn’t testify, but that exalts form over substance; once his report was admitted into evidence he was a witness. He testified via written word, yet he couldn’t be cross-examined: why doesn’t this violate the plain terms of the statute? Sure, he could have been produced by Brown and then cross-examined, but that sort of eradicates a fundamental notion of cross-examination, doesn’t it? And what of the idea trumpeted by the decision that the court appoints the expert who then files his/her report? This procedure seems largely borrowed from NGI procedure, § 971.16(3), and an NGI report is not admissible hearsay. Nor is there anything in the text of § 980.03(2)(c) that says the report is admissible hearsay; the court of appeals simply begs the question by asserting that this statute “provide(s)” admissibility. Note, too, how the court characterizes the purpose of the appointment, as “providing guidance for the court's consideration of the ultimate issue.” Maybe – but neither that language, nor anything approximating it, appears on the face of the statute. Consider that § 980.08 (petition for supervised release) and § 980.09 (petition for discharge) are interconnected, see, e.g., State v. Isaac H. Williams, State v. Willie Hogan, 2001 WI App 263. More particularly, a petition for supervised release is by default a petition for discharge without secretary’s approval, State v. Ray A. Schiller, 2003 WI App 195, ¶2. And, a petition for discharge triggers a non-evidentiary, paper review, id., n. 3. So, if you’re looking for one possible purpose to filing the report, there it is.

Supervised Release -- Reconsideration -- Procedure
State v. William L. Morford, 2004 WI 5, on review of unpublished decision
For Morford: Lynn E. Hackbarth
Issue/Holding:
¶41 The State urges us to hold that Wis. Stat. § 980.08(6m), not § 806.07(1)(h), applies and the State seeks relief from a chapter 980 committee's status of supervised release when the committee has not yet been released on supervised release. The State asks this court to hold that the Department of Health and Family Services may petition for revocation of supervised release under Wis. Stat. § 980.08(6m) whenever it believes that a person who is the subject of a supervised release decision (whether or not the individual is released on supervised release) violates any condition or rule or threatens the safety of others.

¶42 We agree with the State. Wisconsin Stat. § 980.08(6m) is better suited for granting the State relief from a chapter 980 committee's supervised release than § 806.07(1)(h), regardless of whether the chapter 980 committee has actually been placed on supervised release. We conclude that the court of appeals erred in its interpretation of § 980.08(6m). We reach this conclusion for several reasons.

...

¶55 Allowing a circuit court to initiate proceedings on its own motion, as it in effect did here, or allowing a district attorney to initiate proceedings, as happened here, is contrary to the intent of the legislature, subjugates the authority of the department to the will of a circuit court or district attorney and vitiates an important safeguard the legislature provided for sex offenders.

¶56 For all of these reasons, we hold that Wis. Stat. § 980.08(6m), rather than § 806.07(1)(h), governs granting relief to the State from a chapter 980 committee's supervised release when the committee is confined in an institution awaiting placement on supervised release. Any language or inference in State v. Castillo, 205 Wis. 2d 599, 556 N.W.2d 425 (Ct. App. 1996), State v. Williams, 2001 WI App 155, 246 Wis. 2d 722, 631 N.W.2d 623, or State v. Sprosty, 2001 WI App 231, ¶16, 248 Wis. 2d 480, 636 N.W.2d 213, limiting the application of § 980.08(6m) to situations in which a chapter 980 committee has actually been released into the community under supervised release, is withdrawn.

But see State v. Shawn D. Schulpius, 2006 WI 1 (State obtained recission of supervised release order by reconsideration motion under § 806.07 which, as Morford subsequently held, cannot support such a request. However, the court holds the challenge waived, because Schulpius sought to enforce the original order for supervised release rather than appeal the reconsideration order).

Supervised Release -- Reconsideration -- Newly Discovered Evidence -- Assessment of Pre-Existing Information
State v. Daniel Williams, 2001 WI App 155
For Williams: Adrienne M. Moore, SPD, Racine Trial
Issue: Whether the grant of a petition for supervised release (§ 980.08) can be vacated on the basis of a periodic re-examination report (§ 980.07) which is a mere assessment of the same information utilized during the supervised release proceeding.
Holding: A motion for relief from judgment, § 980.07, may be based on newly discovered evidence, § 805.13, ¶11; but:
¶16. There is absolutely no new information contained in the periodic re-examination report. The report is simply Dal Cerro's assessment of pre-existing information, the same information utilized by Lytton [expert at § 980.08 proceeding]. Merely recycling and reformulating existing information into a new format does not generate new evidence. Newly discovered evidence does not include a ‘new appreciation of the importance of evidence previously known but not used.’ State v. Fosnow, 2001 WI App 2, ¶9, 240 Wis. 2d 699, 624 N.W.2d 883 (citation omitted).

¶17. Our holding here is supported by a recent case, State v. Slagoski, 2001 WI App 112, where we held that the existence of a postsentencing contradictory psychiatric report, based on old information, does not constitute a new factor for purposes of sentence modification. Id. at ¶11. As we stated in Slagoski, a contradictory report merely confirms that mental health professionals will sometimes disagree on matters of diagnosis. Id. The State has failed to differentiate the psychiatric evidence available at the time of Lytton's report from Dal Cerro's report. Dal Cerro's report was nothing more than the newly opined importance of existing evidence.

(Note: The court goes on to also find a lack of diligence stressing WRC’s refusal to cooperate with the expert on the release petition:
¶21. The State and WRC staff seem to forget that at a hearing for supervised release, the burden of proof lies with them, not Williams. Williams does not have to prove that he is cured; the State must prove that Williams continues to be a sexually violent person and that it is substantially probable that he will engage in acts of sexual violence if he is not continued in institutional care. Wis. Stat. § 980.08(4). The refusal of WRC to cooperate with the independent evaluation by Lytton perhaps frustrated the State's objectives. In any event, if WRC wanted the trial court to be aware of Dal Cerro's opinion, WRC staff should have cooperated with Lytton. Again, the test to determine if evidence is newly discovered is not what counsel knows or is aware of, but what the client, here WRC, is or should be aware of. Kocinski, 147 Wis. 2d at 744. At the time of Lytton's evaluation, WRC had in its possession all of the information contained in Dal Cerro's report. It cannot slide this information in the back door after it refused to contribute to Lytton's § 980.08 evaluation. Wisconsin Stat. § 805.15(3) cannot be used as a cure for inadequate preparation. Kocinski, 147 Wis. 2d at 744.)
Supervised Release -- Revocation -- Consideration of Aleternatives to Revocation
State v. Ervin Burris, 2002 WI App 262, PFR granted 1/14/03
For Burris: Joseph L. Sommers
Issue: Whether the trial court is required to consider alternatives to revocation after finding that revocation is required for the safety of others.
Holding:
¶22 The applicable subsection of WIS. STAT. ch. 980 reads, in pertinent part:
If the court determines after hearing that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked, it may revoke the order for supervised release and order that the released person be placed in an appropriate institution until the person is discharged from the commitment under s. 980.09 or until again placed on supervised release under s. 980.08.
WIS. STAT. § 980.06(2)(d). Under this statute, a circuit court must first determine whether any rule or condition of release has been violated or whether the safety of others requires revocation. If either of these conditions is met, the circuit court "may" revoke an order for supervised release. However, upon a finding that the safety of others requires revocation, the plain language of the statute removes any discretion from the circuit court. Simply stated, it is irrational to require consideration of alternatives to revocation after a court has found that the safety of others requires revocation. Moreover, a review of the record here reveals that the circuit court found that the safety of others required Burris's revocation.

¶24 Burris's argument that the circuit court was required to consider alternatives to revocation is based on Plotkin, 63 Wis. 2d 535.

¶25 However, Plotkin was decided based on a statute giving the circuit court the discretion to revoke probation. See Plotkin, 63 Wis. 2d at 542. As explained above, the circuit court has no such discretion when it finds that the safety of the public requires that supervised release be revoked. See WIS. STAT. § 980.06(2)(d).

(Note: The court of appeals previously certified the issue of whether the revocation court must consider ATRs, with the supreme court splitting 3-3. State v. Keding, 2002 WI 86. But, according to Burris, the present question is narrower: "Here, we need not address whether a circuit court is ever required to consider alternatives to revocation. Rather, we need only address whether the court must consider alternatives after finding that revocation is required for the safety of others." ¶20. The distinction turns on the idea that the "safety of others" basis for revocation (as distinct from violation of a rule) altogether removes discretion to continue release. But this begs the question of whether revocation may be based on "mere" dangerousness (i.e., uncoupled to a rule violation). Besides, it is quite a stretch to say that a statute that seemingly both mandates ("requires") and permits ("may") revocation employs (self-contradictory) "plain language" removing discretion.)
Supervised Release -- Revocation -- Consideration of Alternatives to Revocation
State v. Lenny P. Keding, 2002 WI 86, on certification
For Keding: Margaret A. Maroney, SPD, Madison Appellate
On-line (COA) Brief: http://www.wisspd.org/html/appellate/briefbank/briefs/001700.pdf
Issue: Whether the trial court is required to consider alternatives to revocation before revoking a ch. 980 supervised release.
Holding: The court splits 3-3, leaving this issue unresolved. However, a majority concludes that the circuit court in fact considered ATRs, and the revocation order is therefore affirmed. ¶18 ("because the record reflects that the court inquired about the alternatives to revocation, and was advised that there were none"). And, although the question might be close, the decision to revoke is upheld under deferential review: a pyschotherapist offered an opinion that Keding was "slipping," and "at risk to re-offend." ¶21.
Supervised Release -- Revocation -- Uncharged Rule Violation -- Right to Notice
State v. Keith Alan VanBronkhorst, 2001 WI App 190
For VanBronkhorst: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether revocation of supervised release from a ch. 980 commitment was properly based on an uncharged rule violation.
Holding:
¶9 … “(P)rocedural due process protections afforded in probation or parole revocation proceedings apply to supervised release revocation proceedings under ch. 980. “…

¶15. Notice to comply with due process requirements must be given sufficiently in advance of scheduled court proceedings so that a defendant will have a reasonable opportunity to prepare. In re Gault, 387 U.S. 1, 33-34 (1967). There is no principle of due process more important or firmly established than notice of the specific charge so that the accused can prepare a defense. Cole v. Arkansas , 333 U.S.196, 201 (1948). The purpose of the petition for revocation is to inform the person on supervised release of the alleged violations so he or she can prepare a defense.

¶16. Here, VanBronkhorst was charged with violating Rules 1, 17, 36, and 37. Further, the petition specified only one incident: contact with a seven-year-old. However, the circuit court based the revocation upon a Rule 15(i) violation involving an adult and another child and upon the grounds of public safety. VanBronkhorst was not given notice of those specific charges or a factual basis. When the State asked the court to find a Rule 15(i) violation, the hearing had concluded. VanBronkhorst's chance to present, let alone prepare a defense, was lost. “…

¶25. The only violation that was properly noticed and proved was a Rule 37 violation. Rule 37 required VanBronkhorst to remain mute and leave any situation immediately when a juvenile initiates a conversation with him. The circuit court found that there was a minimal violation of that rule. However, the court did not determine whether that violation alone merited revocation.

¶26. Because the circuit court did not rule whether the violation of Rule 37 warranted revocation of VanBronkhorst's supervised release, we remand with directions to determine whether VanBronkhorst's violation of Rule 37 was itself sufficient to revoke supervised release.

Go To Brief
Supervised Release -- Revocation -- Time to Prepare
State v. Ervin Burris, 2002 WI App 262, PFR granted 1/14/03
For Burris: Joseph L. Sommers
Issue/Holding: Receipt of notice nine days before the hearing of an additional ground for revocation gave adequate time to prepare a defense to that allegation. ¶¶11-13.
Supervised Release -- Revocation -- Vagueness of Condition
State v. Ervin Burris, 2002 WI App 262, PFR granted 1/14/03
For Burris: Joseph L. Sommers
Issue: Whether a condition of supervised release proscribing "all conduct ... not in the best interest of the public's welfare or your rehabilitation" provided adequate notice that obtaining a Viagra prescription without informing the agent would be ground for revocation.
Holding:
¶5 "The concept of vagueness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication." State v. Courtney, 74 Wis. 2d 705, 709, 247 N.W.2d 714 (1976) (footnote omitted). We must determine whether the rule "read as a whole [is] so indefinite and vague that an ordinary person could not be cognizant of and alerted to the type of conduct, either active or passive, that is prohibited." Id. at 710 (quoting State v. Woodington, 31 Wis. 2d 151, 181, 142 N.W.2d 810 (1966)). This court will not hear a vagueness challenge from one whose conduct is clearly within the prohibited zone. See Courtney, 74 Wis. 2d at 713 ("Where conduct is clearly within the prohibited zone, the defendant will not be heard to hypothesize other factual situations which might raise a question as to the applicability of the statute or regulation.").

¶6 We acknowledge that the language of Rule 1 is broad, but Burris's challenge fails because his behavior so plainly falls within the language of the rule. Burris had a history of thirty serious sex offenses, including first-degree sexual assault of a nine-year-old child. Burris was found to be a sexually violent person under WIS. STAT. ch. 980. We conclude that an ordinary person would have been cognizant that obtaining a prescription for a sexual-performance-enhancing drug would not be in the public's or in Burris&'s best interest.

Supervised Release -- Revocation -- Vagueness of Notice
State v. Ervin Burris, 2002 WI App 262, PFR granted 1/14/03
For Burris: Joseph L. Sommers
Issue: Whether Burris received adequate notice of an allegation in support of revocation, namely the identity of the woman with whom he had intimate relations in violation of a condition of release.
Holding: Because actual notice satisfies due process, and because Burris's attorney discovered the name of the woman prior to the revocation hearing, the omission of her name in the revocation petition did not violate due process. ¶¶8-10
Supervised Release -- "Treatability"
State v. Reuven Seibert, 220 Wis. 2d 308, 582 N.W.2d 745 (Ct. App. 1998)
For Seibert: Jane Krueger Smith
Issue/Holding: "(W)hether the proceeding is one under the initial ch. 980 commitment or a later petition for supervised release under § 980.08, there is no constitutional or statutory requirement that the State prove the person is treatable."
Timeliness of Petition
State v. David J. Wolfe, 2001 WI App 136, 240 Wis. 2d 95, 622 N.W.2d 449, PFR filed 5/18/01
For Wolfe: Ann T. Bowe
Issue: Whether the SVP petition was untimely because, though filed within 90 days of expiration of a sexually violent (juvenile) offense, the respondent was still subject to secure placement under an independent juvenile adjudication.
Holding: "¶10 … We read § 980.02(2)(ag) to say that a ch. 980 petition should be filed within ninety days of discharge from a sexually violent offense delinquency adjudication if the person was placed in a secure correctional facility on the basis of that offense."
Analysis: An SVP petition must be filed within 90 days of discharge or release. Wolfe's petition was filed two days before his scheduled release from a sexually violent offense juvenile disposition. He was, at the time, in a secure juvenile institution. He was also being held on a separate juvenile adjudication for a non-sexually violent offense. He argues that the petition was premature, analogizing to the rule in adult cases that consecutive sentences are treated as one continuous offense. See State v. Keith, 216 Wis. 2d 61, 573 N.W.2d 888 (Ct. App. 1997). The court rejects the analogy; there's no provision for consecutive dispositions in the juvenile code. ¶¶14-15.
Timeliness of Petition
State v. Wilbert L. Thomas, 2000 WI App 162, 238 Wis. 2d 216, 617 N.W.2d 230
For Thomas: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether a ch. 980 petition may be filed after the respondent's discharge date on the sexually violent offense sentence.
Holding: "(A)n offender cannot be detained beyond his or her maximum discharge date in order to file a ch. 980 petition." ¶1.
Analysis: To make a long story short, Thomas' 980 petition was filed several days after his maximum discharge date on the underlying offense, while Thomas was being detained pending litigation on a prior, ultimately dismissed petition. By statute the petition "shall" be filed within 90 days of release or discharge. § 980.02(2)(ag). The state argues that this time limit is merely directory, not mandatory, but the court rejects that argument, analogizing to State ex rel. Lockman v. Gerhardstein, 107 Wis. 2d 325, 320 N.W.2d 27 (Ct. App. 1982) (ch. 51, mental commitment; deprivation of liberty supports mandatory time limit). ¶¶9-12. The court finds further support in State v. Thiel (I), 2000 WI 67, 235 Wis. 2d 823, 612 N.W.2d 94 (proof-requirement that respondent within 90 days of release or discharge when petition filed). ¶13. And, the court deems Thomas' continued detention, past discharge, ineffective in terms of extending the deadline, because there is no authority to keep someone "criminally detained" past discharge. ¶16. Finally, the court analogizes to State ex rel. Olson v. Litscher, 2000 WI App 61, 233 Wis. 2d 685, 608 N.W.2d 425 ("a person must be released on his or her mandatory release date"), for the idea that upon discharge date DOC's authority over the person ceases, so "that an inmate cannot be held beyond his or her discharge date while the State pursues a Wis. Stat. Ch. 980 commitment."
Go To Brief
Timeliness of Petition Filed on MR Date
State v. Frederick L. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163
For Pharm: Jack E. Schairer
Issue: Whether a petition filed on the respondent's mandatory release date is timely.
Holding: Although "(f)ailure to comply with the ninety-day time limit contained in Wis. Stat. § 980.02(2)(ag) affects the trial court's competency to proceed," a petition filed on the respondent's MR date is timely. ¶11.
Analysis: § 980.02(2)(ag) requires that the petition be filed "within 90 days of discharge or release, on parole or otherwise, from a sentence that was imposed for a conviction for a sexually violent offense." The prosecutor filed Pharm's petition on his MR date. Was he "within 90 days of release" on the very day he should have been released? Ordinarily, time limits are computed by excluding the first day and including the last; but this particular time limit isn't "conventional," so the usual methodology must be inverted; thus the date ninety days before release is excluded, and the 90th day included. ¶¶11-15. The court doesn't square its unconventional approach with the plain meaning of the statute which, after all, says, "within" and not "on" or "after" an identifiable event. On top of that, "releases from prison shall be on the Tuesday or Wednesday preceding the release date," § 302.11(6). In other words, Pharm was entitled to "release" before his MR date; and the petition was, quite probably, therefore filed after his "release" date. In this regard, State v. Wilbert L. Thomas, 2000 WI App 162, 238 Wis. 2d 216, 617 N.W.2d 230, says unequivocally that an inmate must be released from custody on his/her release or discharge date, and that a petition filed after that date is untimely, even if DOC (wrongly) retains custody. In other words, § 302.11(6) operates to require release before the (nominal) mandatory release date, and a petition filed on the MR date is necessarily untimely. (Pharm does not, by the way, discuss this problem and therefore doesn't control it.) Remember, too, that State v. Dennis R. Thiel (I), 2000 WI 67, 235 Wis. 2d 823, 612 N.W.2d 94, requires proof that the petition was filed within 90 days of release or discharge date -- the § 302.11(6) issue should, in an appropriate case, be raised as a factual, trial-level issue if it fails as a challenge to the court's competency. All that said, Pharm was certainly entitled to release "on" his MR date, and it strains the plain wording of the statute to say that the very day someone is supposed to be released is a day merely "within" some specified number of days of his release.
Go To Brief
Trial Procedure -- Closed Proceeding
State v. Steven J. Burgess, 2002 WI App 264, PFR granted 1/14/03
For Burgess: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding: There is neither a statutory nor constitutional basis for closing 980 proceedings. Although a 980 respondent is considered a "patient" under § 51.61(1), the right to a closed proceeding is not within the rights enumerated in that section. ¶33. Nor does the failure to afford such a right to a 980 respondent violate equal protection:
¶34. In addition, we determine the legislature's failure to afford these same rights to persons committed under Wis. Stat. chs. 980 and 51 does not violate equal protection. Equal protection does not require that all persons be dealt with identically, but does require that any distinction have some relevance to the purpose for which the classification is made. Williams, 2001 WI App 263 at ¶11. In comparing ch. 980 to other involuntary commitment schemes, we apply a "strict scrutiny" standard without deciding that its application is required. Id. This standard requires the State to prove the classification is necessary to promote a compelling government interest. Id. Burgess argues denying confidentiality does not advance ch. 980's goals of treatment and protection of the public. We disagree.

¶35. We determine there are compelling interests in affording closed hearings to persons committed under Wis. Stat. ch. 51, but not to those under Wis. Stat. ch. 980. These interests are the privacy of persons committed under ch. 51 and ch. 980's goal of protecting the public. Closed proceedings under ch. 51 advance the privacy interests of those being committed. The actions of persons committed under ch. 51 are often not criminal, not necessarily a matter of public record, nor always violent toward others. Persons undergoing ch. 980 commitments are convicted violent sex offenders. The legislature has concluded sexually violent persons are more dangerous than those committed under ch. 51. Williams, 2001 WI App 263 at ¶13. By allowing open commitment proceedings, the legislature advances ch. 980's goal of protecting the public by allowing it access to information about dangerous persons. Equal protection does not require confidentiality for persons committed under ch. 980.

(For a discussion of diminished confidentiality rights of NGI subjects -- civilly committed but for underlying criminal conduct -- see In re Mental Condition of Billy Jo W., 182 Wis.2d 616, 514 N.W.2d 707 (1994).)
Venue -- County of Predicate Offense
State v. Bernard G. Tainter, 2002 WI App 296, PFR filed 12/23/02
Issue/Holding:
¶14. Wisconsin Const. art. I, § 7, grants criminal defendants the right to a trial "by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law." Tainter claims this provision conflicts with Wis. Stat. § 980.02(4) and (5), which allow the commitment trial to be held in the county where the person committed the predicate offense, the county where the person is to reside upon discharge, the county where the person is incarcerated, or Dane County. Tainter argues his right under Wis. Stat. § 980.05(1m) should trump § 980.02(4) and (5) and we should grant him a new trial. We disagree.

¶15. We determine the language of the two statutes and the constitution shows the legislature did not intend to extend a defendant's right to trial in the county where the crime was committed to persons being tried under Wis. Stat. ch. 980. While the legislature intended to afford individuals in ch. 980 proceedings the constitutional rights afforded to criminal defendants, its enactment of a statute specifically addressing venue reveals its intent not to extend a criminal defendant's right to trial in the county of the offense. Subsections 980.02(4) and (5) specifically deal with venue, while § 980.05(1m) is a general statute addressing constitutional rights. Where a general statute conflicts with a specific statute, the specific statute prevails. State v. Smith, 106 Wis. 2d 151, 159, 316 N.W.2d 124 (Ct. App. 1982).

Venue -- Habeas Challenge to Commitment
State ex rel Edwin C. West v. Bartow, 2002 WI App 42
For West: Leonard D. Kachinsky
Issue: Whether the court had discretion to order change of venue from Winnebago (county of current SVP confinement) to Milwaukee (county of commitment), on habeas challenge to the commitment.
Holding: Venue was proper in Winnebago under § 801.50(4)(b) (where petitioner is being restrained); the trial court’s transfer mistakenly relied on § 801.50(4)(a) (where petitioner was convicted or sentenced, if seeking relief from conviction or sentence). ¶¶5-6. Nonetheless, a proper result will be sustained even if based on the wrong reason. ¶7. Transfer of venue is discretionary under § 801.52, “in the interest of justice or for the convenience of the parties or witnesses.” In transferring venue, the trial court stressed that Milwaukee has “all of the documents, regarding the judgment that’s being attacked”; this is enough to satisfy the § 801.52 standard for exercising discretion. ¶¶9-10.
Waiver of Issue of Prosecutor's Authority
State v. Frederick L. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163
For Pharm: Jack E. Schairer
Issue: Whether Pharm waived objection to the prosecutor's authorization to file a Ch. 980 petition.
Holding: Pharm's failure to object to the prosecutor's filing the petition without going through the Department of Justice under §§ 990.015 and 980.02(1) waived the issue. ¶9.
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Waiver of jury by respondent following withdrawal of request for jury by state.
State v. Harry S. Bernstein, 231 Wis.2d 392, 605 N.W.2d 555 (Ct. App. 1999).
For Bernstein: Mary E. Waitrovich, SPD, Madison Appellate.
Issue: After the state requests then withdraws a request for jury in a Ch. 980 proceeding, must trial to the court be premised on the respondent's personal consent to this withdrawal?
Holding: Under § 980.05(2) the respondent's consent to the state's withdrawn assertion of jury trial need not be personal, but may be made through counsel.
Analysis: The state requested, then withdrew, a request for SVP jury trial. Bernstein didn't personally, on the record, consent to this withdrawal (i.e., waive his right to jury). § 980.05(2) allows a request for jury to be withdrawn "if the 2 persons who did not make the request consent to the withdrawal." Bernstein argues that the adequacy of his consent to withdrawal of the jury must be judged under the standards set by § 972.02(1), namely personal waiver on the record. ¶7. He relies on § 980.05(1m)'s absorption of all constitutional rights available to a defendant in a criminal proceeding. The court rejects this claim, holding that as the more specific provision, § 980.05(2) governs the procedure for effectuating an attempt to withdraw a request for jury trial under Ch. 980. ¶8. This leaves the question of whether Bernstein did, under the facts, consent as required by this statute. The court says yes: § 980.05(2), unlike § 972.02(1), doesn't require the litigant's "statement in open court"; and, "it is generally accepted that an attorney acts on behalf of his or her client." ¶9. "We therefore conclude that Bernstein's consent to the withdrawal of the State's request for a jury trial need not be in the form of a statement made personally by him to the court." Id. Bernstein was present when his counsel consented to the withdrawal on the record, and was given the opportunity to address the court on the subject. This satisfied the consent requirement. ¶10. (The court seems to hold open the possibility that a more rigorous inquiry is necessary where the respondent him or herself is the one withdrawing the request. ¶11.)
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Witnesses -- Lay Expert -- Probation/Parole Officer
State v. Thomas Treadway, 2002 WI App 195
For Treadway: Lynn E. Hackbarth
Issue: Whether a probation and parole agent was properly allowed to give an opinion regarding the likelihood of the respondent reoffending.
Holding:
¶29. The fact that Kittman was not a psychologist or mental health specialist did not preclude his testimony. Under Wis. Stat. § 907.02 (1997-98), relevant experience, education, and/or training may qualify a witness to testify as an expert. See State v. Hollingsworth, 160 Wis. 2d 883, 895-96, 467 N.W.2d 555 (Ct. App. 1991); see also Tanner v. Shoupe, 228 Wis. 2d 357, 373-75, 596 N.W.2d 805 (Ct. App. 1999). At the time of Treadway's trial, Kittman was actively supervising about thirty-five released sex offenders and monitoring approximately fifty incarcerated sex offenders. He had been employed full-time in the specialized sex-offender unit for three years during which he had supervised hundreds of sex offenders. Clearly, central to Kittman's professional responsibility was the ability to assess whether those he was supervising would reoffend. Prepared by both training and experience to assess Treadway, he was qualified to render an opinion on whether Treadway would reoffend. See Wis. Stat. § 907.04 (1997-98) ("Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.").
¶30. Additionally, the fact that Kittman did not provide the nexus to any mental disorder did not render his testimony inadmissible. In Post, the supreme court clarified that the "key to the constitutionality of the definition of mental disorder in chapter 980 is that it requires a nexus-persons will not fall within chapter 980's reach unless they are diagnosed with a disorder that has the specific effect of predisposing them to engage in acts of sexual violence." Post, 197 Wis. 2d at 306. Certainly, however, the supreme court was not requiring that testimony about an offender's history, and testimony relating that history to a diagnosed mental disorder, come from a single witness. See State v. Zanelli, 223 Wis. 2d 545, 555-56, 589 N.W.2d 687 (Ct. App. 1998) (Wisconsin Stat. § 980.05(3)(a) "does not confine expert testimony to any specific standard; it does not mandate the type or character of relevant evidence the State may choose to meet its burden of proof.").
¶31. Here, Kittman's assessment of Treadway's risk of reoffending was relevant to Treadway's "dangerousness" under Wis. Stat. ch. 980, see Wis. Stat. § 980.02(2)(c) (1997-98), and his testimony about Treadway's history, as well as his opinion that Treadway's risk of reoffending was very high, logically connected to the additional evidence the State introduced through the testimony of Dr. Fields. See State v. Pharr, 115 Wis. 2d 334, 346, 340 N.W.2d 498 (1983) ("`[A]ny fact which tends to prove a material issue is relevant, even though it is only a link in the chain of facts which must be proved to make the proposition at issue appear more or less probable.'").
Witnesses -- Expert -- Qualifications
State v. Larry J. Sprosty, 2001 WI App 231, PFR filed
For Sprosty: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether the trial court erred in refusing to qualify a social worker as an expert in this Ch. 980 supervised release proceeding.
Holding: Because the witness had “expertise with respect to treating sex offenders … she was qualified to give her opinion on the ultimate issue.” ¶29. The error, however, was harmless: The witness was allowed to testify to all but the ultimate opinion, and another witness was allowed to give an ultimate opinion in Sprosty’s favor. ¶30.
(Note: The social worker’s qualifications are mentioned only in passing, namely that “she provides treatment for sexual offenders and prepared the treatment plan for Sprosty to be implemented upon his release.” ¶11. The harmless error analysis is wrong on its face: “because Sprosty has not demonstrated that there is a reasonable possibility that the error contributed to the circuit court’s decision, we conclude the error was harmless[.]” ¶ 30. This exactly inverts the burden, which is, instead, that the state show beyond reasonable doubt that the error didn’t contribute to the result.)
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Witnesses -- Psychologist: Licensure
State v. Larry J. Sprosty, 2001 WI App 231, PFR filed
For Sprosty: Jack E. Schairer, SPD, Madison Appellate
Issue: Whether a psychologist must be licensed in Wisconsin to provide expert opinion in a Ch. 980 proceeding.
Holding: No: “the standard for determining the admissibility of expert testimony in this case is the general one, namely, whether it will be helpful to the trier of fact, so long as the expert is qualified by knowledge, skill, experience, training, or education. See Wis. Stat. § 907.02. Further, the determination whether an expert is qualified to testify is within the circuit court's discretion.” ¶27.
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Substantial probability test.
State v. Ronald J. Zanelli (II), 223 Wis.2d 545, 589 N.W.2d 687 (Ct. App. 1998).
For Zanelli: Jane K. Smith.
Holding: Zanelli was not entitled to a jury instruction defining "substantial probability."
Substantial probability test.
State v. William E. Marberry, 231 Wis.2d 581, 605 N.W.2d 612 (Ct. App. 1999).
For Marberry: Donald T. Lang, SPD, Madison Appellate.
Issue: Whether the trial court, sitting as trier fact, is required to spell out its definition of the element "substantial probability" of re-offending.
Holding: It is sufficient for a court to state its ultimate conclusion. ¶¶19-23.