Thornon Talley, who is committed as a sexually violent person under Wis. Stat. ch. 980, filed a petition for discharge from that commitment in 2012. The circuit court denied the petition without a hearing. The supreme court now unanimously upholds that denial, essentially because Talley did not show any meaningful change in his condition since his previous discharge trial (also in 2012).
First, an important caveat: this decision is about the old version of the discharge statute, which was amended in 2013, after Talley’s petition was denied. So its significance is a bit unclear. The statutory language at issue here required a court to grant a discharge trial if a petition or other record items “contain facts from which a [fact finder] may conclude the person does not meet the criteria for commitment.” Wis. Stat. § 980.09(2) (2011-12). That, in combination with another provision requiring that the petition allege facts that could show “the person’s condition has changed” has led the courts to the test articulated in State v. Arends, 2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 513: a petitioner must show something new since the last time he had a trial (either his original commitment or a previous discharge trial) and this new fact or facts must be something that could support a conclusion that he no longer meets the criteria for commitment. (There are three such criteria but these cases almost always involve a dispute about whether the person remains more likely than not to commit another sex offense, i.e. is “dangerous.”)
So Talley proffers three new facts, taken from an expert report he submitted: that since his previous trial, he has been “socializing more with peers,” he “joined a fitness group,” and “more members of his family  recently began communicating with him.” (¶29). The court of appeals, as we discussed in our prior post, held that these facts did not amount to a “significant change” and so did not merit a trial. Talley petitioned, noting that the statute does not require a “significant” change, just a change.
The entire supreme court agrees that these facts don’t get Talley a trial, though the justices disagree on just how to characterize the way they fall short. The majority criticizes the court of appeals use of “significant” and also rejects the notion that the “facts” referred to in the statute must be “material” or “of consequence.” (¶¶37-38). In the majority’s view, the work that these non-statutory terms might do is already taken care of by the statute’s requirement that the “facts” be the sort from which a fact finder “could conclude” the person is not dangerous. Justice Abrahamson, joined by Justice A.W. Bradley, concurs but would hold that the statute really means “material” or “relevant” facts, though it does not use those terms. (¶¶47-54).
This dispute is academic, or perhaps aesthetic. Axiomatically, facts which lend support to one side or the other in litigation are “material” and “relevant.” A more significant issue gives rise to Justice Abrahamson’s other criticism of the majority: that it seems to place weight on the fact that the new facts alleged by Talley didn’t alter the expert’s conclusion about his dangerousness (the same expert had testified for him in the prior discharge trial):
A fact-finder is not bound by the psychologist’s ultimate conclusion or overall risk assessment or the last jury’s verdict; a fact-finder is bound by the “facts.” True, the psychologist’s unchanged conclusion may be probative of whether the petitioner still meets the commitment criteria. But, to the extent that the majority opinion can be interpreted as requiring a change in the psychologist’s conclusions in order for a court to rule in favor of a discharge hearing, the opinion goes too far.
A second concurrence by Justice Ziegler, joined by Justice Gableman, echos this concern and asserts that the two justices join the majority only if it is not understood to require a changed expert opinion to get a trial. (¶59). Justice Ziegler is also concerned the majority opinion could be read to “weigh evidence unfavorable to Talley as part of its inquiry.” (¶62). This would be contrary to Arends, which expressly disavowed such weighing: “the standard is not whether the evidence more heavily favors the petitioner, but whether the enumerated items contain facts that would allow a factfinder to grant relief for the petitioner.”
As we said, this case is about the old statute. For a gloss on the new one, which replaces “could conclude” with “would likely conclude,” see the recent court of appeals decision in State v. Hager. That court rejected the state’s argument that this change overrules Arends and requires the “weighing” of unfavorable evidence. The state has petitioned, though, so stay tuned.