A person committed as a sexually violent person under ch. 980 does not have a due process right to have the state prove at a discharge hearing that he is still a sexually violent person, so the clear and convincing evidence standard under § 980.09(3) is not facially unconstitutional.
At an initial commitment trial under ch. 980 the state has the burden of proving beyond a reasonable doubt that the person is a sexually violent person, § 980.05(3)(a). But when a person already committed files a petition for discharge and is given an evidentiary hearing on the petition, the state’s burden is lower, as it only has to prove the person still meets the criteria for commitment, § 980.09(3). The court of appeals holds the lower burden is valid, relying on Addington v. Texas, 441 U.S. 418 (1979), which validated the middle-level burden for general civil commitment statutes.
Though Addington didn’t involve a sexually violent person commitment, which carries greater liberty restrictions than the usual civil commitment, sexually violent persons “are deemed more dangerous as a class;” thus, as courts in other states have concluded, the balance Addington struck between the rights of the individual and the legitimate concerns of the state in civil commitments more generally is essentially the same as the balance to be struck for sexually violent person commitments. (¶¶24-25). Further, while Addington addressed the appropriate burden for the initial commitment proceeding, not continuation of an existing commitment, “if the lower burden is sufficient to satisfy due process at an initial commitment, it surely is sufficient for continuing a commitment.” (¶29). Finally, the higher initial burden of beyond a reasonable doubt doesn’t up the due-process ante for discharge decisions:
¶30 …. If anything, the case law supports the opposite conclusion, namely, that the higher standard at initial commitments decreases the need for more stringent procedural protections in subsequent proceedings. See [State v.] Post, 197 Wis. 2d [279,] 326 [, 541 N.W.2d 115 (1995)] (“The increased likelihood of accurate initial 980 commitment decisions [given all of the procedural protections] reduces the need for some of the recommitment procedures that act as a safety net in chapter 51.”). …
The court stresses that Talley makes only a due process challenge, not an equal protection challenge. (¶19). But the court’s own comments about the greater dangerousness of sex offenders and the decreased need for a higher standard in subsequent proceedings foreshadow the likely fate of an equal protection argument.
Also, note that the state argued Talley forfeited his facial challenge by failing to raise the issue before his discharge trial, but the court rejects forfeiture on the strength of State v. Bush, 2005 WI 103, ¶17, 283 Wis. 2d 90, 699 N.W.2d 80 (“a facial [constitutional] challenge is a matter of subject matter jurisdiction and cannot be waived”). (¶¶8-13). The court also rejects the state’s claim that Bush has been undermined by Milwaukee County v. Mary F.-R., 2013 WI 92, ¶¶31-34, 70-77, 351 Wis. 2d 273, 839 N.W.2d 581, where the majority declined to revisit Bush but three concurring justices disputed whether Bush stood for the proposition that facial challenges can’t be forfeited. (¶¶14-16). As the court of appeals rightly stresses, “we are bound by Bush and the Mary F.-R. majority, not by the Mary F.-R. concurrence. We see nothing in the majority opinion in Mary F.-R. that modifies Bush or that otherwise supports the State’s forfeiture argument here.” (¶16).