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.

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 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 – 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 Hog