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Defenses – Claim/Issue Preclusion — Prior Dismissal — SVP Proceeding

State v. Kenneth Parrish, 2002 WI App 263, PFR filed 11/11/02
For Parrish: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether a 980 petition was barred because a prior petition was dismissed at trial for insufficient proof, but the respondent was subsequently returned to prison on a parole revocation for a violation not involving an act of sexual violence.

Holding:

¶22. Although Parrish’s preclusion argument presents an issue of first impression in Wisconsin, other jurisdictions have considered the dynamic nature of mental health and the importance of present-time determinations in the contexts of their civil commitment laws. See In re Mental Health L.C.B., 830 P.2d 1299, 1304 (Mont. 1992); Archer v. State, 681 So. 2d 296, 299 (Fla. Dist. Ct. App. 1996); In re Katz, 638 A.2d 684, 687 (D.C. 1994). Recently, the California Court of Appeals explained why the State’s petition for extension of a defendant’s commitment under the Sexually Violent Person Act (SVPA), California’s counterpart to ch. 980, must be based on the defendant’s current condition, with particular concentration on the developments since the last commitment order:

The nature of the [SVPA] envisions a special civil commitment proceeding that is begun and then continues, changes or ends depending upon the current mental condition and dangerousness of the proposed or committed [sexually violent person]…. Although the same requirements or issues are involved in alleging any ’cause’ filed via petition under the Act, the actual facts or circumstances comprising that ’cause’ in a subsequent petition will necessarily be different due to the addition of new facts bearing on those issues based on the sheer passage of time which may support the release or commitment of the proposed [sexually violent person].

Butler v. Superior Court, 93 Cal. Rptr. 2d 468, 474 (Ct. App. 2000) (citations omitted). While the court was not considering whether claim or issue preclusion barred the State’s action, its emphasis on “the current mental condition and dangerousness,” “the addition of new facts,” and “the sheer passage of time” is sound and applicable here. In fact, such emphasis is all the more meaningful where a defendant is released, revoked, and returned to custody during that “sheer passage of time.”

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

The trial court wasn’t required to review the record of the first trial in order to resolve issue preclusion:

¶25                        Under certain circumstances, a trial court might need to review the record of a previous ch. 980 trial and, no doubt, consider an offer of proof from a defendant challenging a petition on the basis of issue preclusion.  For example, where a second petition is filed on the heels of a trial resulting in the dismissal of the first petition and where, a defendant alleges, a parole revocation was nothing more than a ruse to re-incarcerate and regain a chance for ch. 980 commitment, a careful court might want to review the first trial’s record.  Here, however, the trial court was not required to do so because the issue, quite obviously, had changed.

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