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Person committed under ch. 980 is entitled to appointment of counsel, independent examiner before court reviews discharge petition

State v. Bradley M. Jones, 2013 WI App 151; case activity

¶1        …. Wisconsin Stat. § 980.07 (2011-12) mandates annual reexamination of persons committed to secure treatment facilities as sexually violent persons. Following the Department of Health Services’ annual reexamination, Bradley M. Jones requested and was denied appointment of an independent examiner and counsel prior to review of his petition for discharge. Under the applicable statutes, committed individuals are entitled to retain, or have the court appoint, an independent examiner at the time of the annual reexamination and counsel when the reexamination and treatment progress reports are filed with the circuit court—before the circuit court proceeds to review the petition for discharge. Because the circuit court did not address Jones’s request for appointment of an independent examiner and counsel before reviewing and denying his petition for discharge, we reverse and remand for further proceedings.

Jones filed a discharge petition using a standard form, checking the box that said “I am no longer ‘more likely than not’ to commit an act of sexual violence because…” and then stating additional facts would be provided by appointed counsel and an independent examiner. (¶3). Four days later, before it had even considered whether to appoint counsel or an independent examiner, the circuit court denied the petition for failing to state sufficient facts. (¶4). The court of appeals holds the applicable statutes clearly required the court to appoint counsel and an independent examiner before reviewing Jones’s petition.

Under Wis. Stat. § 980.07 DHS must conduct an annual reexamination of a person committed under ch. 980 and submit reports of the reexamination to the circuit court. Under § 980.075, DHS’s annual report triggers the committed person’s right to counsel. The statute explicitly mandates referral of indigent persons to the SPD for appointment of counsel before proceeding under the statute governing review of the person’s discharge petition. As the court of appeals succinctly (and aptly) notes, in defending the circuit court’s decision in this case “[t]he State ignores Wis. Stat. § 980.075.” (¶7).

The court of appeals also roundly rejects the state’s argument that § 980.03(2) only provides for the right to counsel “at any hearing” and the “paper review” of a discharge petition, State v. Arends, 2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 513, is not a “hearing”:

¶10      …. § 980.075(5)[] prohibits the circuit court from proceeding on a reexamination discharge petition under § 980.09 before referring the matter for an indigency determination and appointment of counsel. Notably, the § 980.075(5) prohibition refers to § 980.09 in its entirety and emphasizes that the referral is to happen as soon as circumstances permit; it does not authorize the circuit court to wait until after the paper review has taken place. There is no indication that the general provision of the right to counsel “at any hearing” serves as a limitation on the unequivocal requirement that counsel be provided before the circuit court proceeds to review a petition for discharge submitted in conjunction with an annual reexamination. Thus, when the legislature took away the obligatory hearing on every discharge petition, it extended the right to counsel from the onset for discharge petitions filed in conjunction with the annual reexamination.

 Likewise, the person’s right to an independent examiner does not depend on the outcome of the paper review:

¶13      …. Wisconsin Stat. § 980.07(1) states that the committed person may retain or have the court appoint an independent examiner “[a]t the time of a reexamination,” and Wis. Stat. § 980.031(3) requires the circuit court to appoint, upon request, an independent examiner to perform an examination of the individual’s mental condition. That the independent examiner is also to participate at trial or a hearing involving testimony does not limit his or her initial role in examining the committed person “at the time of a reexamination.” The committed person does not have to wait until his or her petition has passed the paper review; indeed, the independent examiner is meant to help assess the petitioner’s readiness for discharge and gather facts to support the petition, if appropriate. See Wis. Stat. § 980.075(4)(a) (“The petitioner may use experts or professional persons to support his or her petition.”); Arends, 325 Wis. 2d 1, ¶25 & n.17 (paper review is of the petition and its attachments).

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