Wis. Stat. § 980.09
Wis. Stat. § 980.09
Sub. (1) is shown as renumbered from s. 980.09 (intro.) by the legislative reference bureau under s. 13.92(1) (bm) 2.
Persons committed under ch. 980 must be afforded the right to request a jury for discharge hearings under this section. State v. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995), 94-2356. Progress in treatment is one way of showing that a person is not still a sexually violent person under [former] sub. (2) (a). A new diagnosis is another. A new diagnosis need not attack the original finding that an individual was sexually violent, but focuses on the present and is evidence of whether an individual is still a sexually violent person. State v. Pocan, 2003 WI App 233, 267 Wis. 2d 953, 671 N.W.2d 680, 02-3342. Under sub. (1), the circuit court engages in a paper review of the petition only, including its attachments, to determine whether it alleges facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. This review is a limited one aimed at assessing the sufficiency of the allegations in the petition. If the petition does allege sufficient facts, the circuit court proceeds to a review under sub. (2). State v. Arends, 2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 513, 08-0052. Sub. (2) requires the circuit court to review specific items enumerated in that subsection. The court need not seek out items not already within the record. Nevertheless, it may request additional enumerated items not previously submitted, and also has the discretion to conduct a hearing to aid in its determination. The court's task is to determine whether the petition and the additional supporting materials before it contain facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. State v. Arends, 2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 513, 08-0052. Sub. (2) explicitly prescribes a different procedure than that for summary judgment set forth in s. 802.08. As such, summary judgment is not available in discharge proceedings under this section. The state's burden of proof is implicated only during a hearing under sub. (3). When a trial court granted summary judgment prior to a hearing under sub. (3), no one could say with any certainty whether the state possessed enough evidence to meet its burden of proof. State v. Allison, 2010 WI App 103, 329 Wis. 2d 129, 789 N.W.2d 120, 09-1232. A research paper is not sufficient evidence to demonstrate that a sex offender's condition has changed. New actuarial research, absent a psychological examination, is not enough to demonstrate that an offender is no longer a sexually violent person. State v. Richard, 2011 WI App 66, 333 Wis. 2d 708, 799 N.W.2d 509, 10-1188. The only reasonable construction of the "condition has changed" in sub. (1) is that it encompasses all the changes that a fact finder could determine result in the person not meeting the criteria for commitment as a sexually violent person. This language includes not only a change in the person himself or herself, but also a change in the professional knowledge or research used to evaluate a person's mental disorder or dangerousness if the change is such that a fact finder could conclude the person does not meet the criteria for commitment. The circuit court may not deny a discharge petition without a hearing if the petition alleges facts from which a fact finder could determine that, as a result of any one of those changes, the person does not meet the criteria for a sexually violent person. State v. Ermers, 2011 WI App 113, 336 Wis. 2d 451, 802 N.W.2d 540, 10-2634. When determining whether to hold a hearing on a petition for discharge, the circuit court must determine whether the petitioner has set forth new evidence, not considered by a prior trier of fact, from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. An expert's opinion that is not based on some new fact, new professional knowledge, or new research is not sufficient for a new discharge hearing under sub. (2). A doctor's further reflection on past scoring of a test is not sufficient for a new discharge hearing because it is not new professional knowledge or research about how to predict dangerousness. State v. Schulpius, 2012 WI App 134, 345 Wis. 2d 351, 825 N.W.2d 311, 11-2565. A petition alleging a change in a sexually violent person's status based upon a change in the research or writings on how professionals are to interpret and score actuarial instruments is sufficient for a petitioner to receive a discharge hearing, if it is properly supported by a psychological evaluation applying the new research. State v. Richard, 2014 WI App 28, 353 Wis. 2d 219, 844 N.W.2d 370, 12-2748. The clear and convincing evidence standard under sub. (3) satisfies due process at a ch. 980 discharge trial. State v. Talley, 2015 WI App 4, 359 Wis. 2d 522, 859 N.W.2d 155, 13-0492. The petitioner's socializing more with peers, joining a fitness group, and increased communication from family members were not changes from which a factfinder could determine that the petitioner was no longer a sexually violent person. These facts, which resulted in no change to the evaluating psychologist's ultimate conclusion or overall risk assessment, were not enough to satisfy the statutory threshold for a discharge hearing set forth in sub. (2), 2011 stats. State v. Talley, 2017 WI 21, 373 Wis. 2d 610, 891 N.W.2d 390, 13-0950. Sub. (4) (d), (e), and (em) requires more than a formalistic general report on the physical residence slated for placement. The statute contemplates that the Department of Health Services will work with local law enforcement and the county entities and seek advice about a proposed placement of a particular sexually violent person in order to draft the supervised release plan. State v. McGee, 2017 WI App 39, 376 Wis. 2d 413, 899 N.W.2d 396, 16-1082. This section vests in the county of intended placement an interest in supervised release proceedings as a matter of right; the county has the absolute right to be a party to the action. The county also has a substantial interest in the well-being of the residents and property located within its boundaries. Those interests would be impaired if a court denied intervention. State v. McGee, 2017 WI App 39, 376 Wis. 2d 413, 899 N.W.2d 396, 16-1082. Sub. (2) allows a circuit court to consider the entire record not just the facts favorable to the petitioner when determining whether the statutory criteria for a discharge trial have been met. A circuit court may carefully examine those portions of the record the court considers helpful to its consideration of the petition, which may include facts both favorable and unfavorable to the petitioner. State v. Hager, 2018 WI 40, 381 Wis. 2d 74, 911 N.W.2d 17, 15-0330. 2013 Wis. Act 84 increased the burden of production under sub. (2) necessary for a committed individual to receive a discharge trial. The burden of production is a procedural matter that does not implicate a committed person's fundamental right to freedom from bodily restraint and does not violate the right to due process. State v. Hager, 2018 WI 40, 381 Wis. 2d 74, 911 N.W.2d 17, 15-0330. The state is not required to present expert testimony in order to meet its burden of proof on the question of future dangerousness in discharge proceedings under this chapter. State v. Stephenson, 2019 WI App 63, 389 Wis. 2d 322, 935 N.W.2d 842, 18-2104.