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SCOW to take up new ch. 980 discharge trial standard

State v. David Hager, 2015AP330, and State v. Howard Carter, 2015AP1311, petitions for review granted 5/15/17, review of published court of appeals decisions (Hager) (Carter); case activity (Hager) (Carter) (including briefs)

We’ve posted on these cases a few times. The first time was when the court of appeals certified them (together) to the supreme court. The supreme court refused that certification, so the court of appeals decided them (separately), as we discussed here and here.

Both cases concern the 2013 amendments to Wis. Stat. § 980.09(2), which previously directed the circuit court to hold a discharge trial if facts existed from which a factfinder “could conclude” the committed person is no longer dangerous. After the change, a trial is to be held where facts exists from which a factfinder “would likely conclude” the same thing.

From this simple change in wording, the state has extrapolated a “weighing” regime–meaning that the circuit court can deny a discharge trial if it decides the evidence as a whole still favors commitment. Besides having very little to do with the actual language of the statute, the state’s view of the law would raise a host of practical problems, as the court of appeals noted in its certification:

At the hearing in which the paper record is considered, can the court take testimony? Regardless, does the court decide the credibility of the experts? Is the person petitioning for discharge allowed to attack the foundation for and validity of an unfavorable expert’s report? Can this attack be accomplished without cross-examination? What factors or standard should the court use to predict the findings a factfinder would make? Is the court to consider the competing experts’ prior performance in evaluating  likelihood of a sexually violent person’s reoffense? How do the evaluations of the experts differ from the determinations made at a Daubert hearing? If the petition requests a trial to the court, how does a pretrial hearing differ from a trial? Importantly, is the circuit court’s determination deemed a finding of fact to which this court would give deference, or a conclusion of law to be reviewed de novo? As applied in the Hager case, how should this court review the circuit court’s determination that Allen’s report outweighs Wakefield’s report?

(p. 6).

It would also, Hager argued, be unconsitutional, as it would place the burden of proof on the committed person, rather than the state. For this and other reasons, the court of appeals concluded that the new statute does not permit weighing, and granted Hager a trial.

Carter took a mixed position in the court of appeals, agreeing with the state that “weighing” is in the statute, but agreeing with Hager that this makes the statute unconstitutional. He also argued that the statutory change, which occurred after he filed his discharge petition, should not apply “retroactively” to him. The court of appeals rejected the retroactivity argument, and also the “weighing” test, but concluded Carter had not made any argument that his petition satisfied the test articulated in Hager. It thus affirmed the denial of his discharge trial.

The supreme court apparently intends to hear both cases on the same day. Will the court be able to speak with one voice, and articulate a clear and workable test, as it did for the predecessor statute in State v. Arends, 2010 WI 46, ¶¶40-43, 325 Wis. 2d 1, 784 N.W.2d 513? Stay tuned.

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