In this follow-up to the recent decision in State v. Alger, 2013 WI App 148, ___ Wis. 2d ___, ___ N.W.2d ___, the court of appeals rejects two constitutional challenges to the legislation that limits the newly-adopted Daubert standard for the admission of expert testimony to ch. 980 cases commenced on or after the date the standard took effect.
As explained in our post on Alger, when 2011 Wisconsin Act 2 adopted the Daubert standard, it specified that the new standard applied to actions commenced on or after February 1, 2011, the Act’s effective date. Alger, who had originally been committed in 2004, argued that the petition for discharge he filed in April 2011 “commenced” a new “action” and therefore the Daubert standard applied. Knipfer, first committed in 2002, made the same argument with respect to the discharge petition he filed in 2012. (¶2). The court of appeals rejected Alger’s argument, so its decision in that case controls here and requires rejection of Knipfer’s argument, too. (¶6). But the court also addresses two constitutional issues not addressed by Alger.
First, Knipfer argues that if the Daubert standard doesn’t apply him, then Act 2’s applicability provision violates equal protection. While Alger made a similar equal protection claim, the decision in that case applied rational basis scrutiny because the court concluded Alger wasn’t arguing for strict scrutiny. Alger, ¶25. Knipfer expressly argues for the application of strict scrutiny because his liberty is at stake. (¶¶9-10, 12). The court rejects his argument, relying on Milwaukee County v. Mary F.-R., 2013 WI 92, __ Wis. 2d __, 839 N.W.2d 581, which addressed the issue of whether the legislature violated the equal protection clause by providing for six-person, non-unanimous juries under§ 51.20 while twelve-person, unanimous juries are required under ch. 980. (¶15). Mary F.-R. applied rational basis review, rejecting an argument that the underlying liberty interest required strict scrutiny of the different jury procedures:
….While liberty is a fundamental right, Foucha v. Louisiana, 504 U.S. 71, 86 (1992), and involuntary civil commitment is a “significant deprivation of liberty,” Addington v. Texas, 441 U.S. 418, 425 (1979), Mary F.-R.’s challenge relates only to the jury procedures available for initial commitment hearings under Wis. Stat. § 51.20 and not to the use of involuntary commitments in general. Unlike a situation where protection for a fundamental liberty interest is interfered with impermissibly, having a six-person jury trial is not the “equivalent to having no jury trial at all.” State v. Huebner, 2000 WI 59, ¶18, 235 Wis. 2d 486, 611 N.W.2d 727. There is no right to a 12-person jury in civil proceedings such as here. Id., ¶¶17-19.
Mary F.-R., ¶38. The court of appeals says this holding requires rejection of Knipfer’s strict scrutiny claim:
¶16 A similar analysis applies here. The continuation of a Wis. Stat. ch. 980 civil commitment is a significant deprivation of liberty, but Knipfer’s equal protection challenge relates only to whether the Daubert evidentiary standard applies, not to the use of ch. 980 commitments in general. And, as we suggested in Alger, being subject to the pre-Daubert standard is not the same as being deprived of a meaningful opportunity to challenge expert evidence. See Alger, 2013 WI App 148, __ Wis. 2d __, ¶22. Finally, there is no stand-alone right to the application of the Daubert standard.
Knipfer also argues that given the liberty interest at stake at a discharge hearing, due process requires the application of the evidentiary standard that ensures a more accurate and reliable outcome. (¶20). The court rejects this claim, too: “Even if it is true that the Daubert standard increases the reliability of discharge proceedings, this does not mean that those proceedings are unreliable without the standard. At a minimum, we would require additional legal or factual support from Knipfer in order to seriously consider this argument.” (¶20).
The reliance on Mary F.-R. is interesting. The supreme court did conclude that rational basis was the applicable level of scrutiny, but it went on to hold that ch. 51 respondents are not similarly situated to ch. 980 respondents because “[a]t every step of the involuntary commitment process, individuals subject to Chapter 980 are subject to greater liberty restrictions than individuals subject to Wis. Stat. § 51.20.” Id., ¶48 (emphasis added). Thus, the legislature decided to provide added protection to ch. 980 respondents by giving them the right to a unanimous 12 person jury. Id., ¶60.
Even if the greater loss of liberty suffered by ch. 980 respondents doesn’t automatically require strict scrutiny, it bears on the question of whether there is a rational basis for allowing the use of the Daubert standard only in ch. 980 cases filed after February 1, 2011. Remember, under Alger and now Knipfer, it isn’t just the commitment trial in pre-Act 2 cases that is affected; in cases filed before Act 2, all future proceedings for discharge or supervised release will be governed by the current rule, not by Daubert. As both Alger and Knipfer point out, reading Act 2’s initial applicability date the way the court of appeals does in their cases means that a discharge proceeding in their cases that occurs 10 or 20 (or more) years hence will be subject to the old version of § 907.02, while a discharge proceeding for a post-Act 2 case will have the benefit of the more stringent Daubert standard, even though both proceedings are addressing the very same question of whether the respondent is still a sexually violent person, and thus whether the indefinite and severe restriction on their liberty will continue. The closing paragraph of our post on Alger criticized the court’s unfair treatment of Alger’s argument on this point, so we won’t repeat it here; suffice it to say, in neither that case nor this one does the court undertake to elucidate “any reasonably conceivable state of facts that could provide a rational basis for the classification” that Act 2 creates based on the arbitrary filing date of the ch. 980 petition (to quote the standard from Mary F.-R., ¶52, citing F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313 (1993)).