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SVP: Discharge Petition

State v. Charles M. Ermers, Jr., 2011 WI App 113 (recommended for publication); for Ermers: Steven D. Phillips, SPD, Madison Appellate; case activity

A ch. 980 discharge hearing requires that the petitioner allege “facts from which the court or jury may conclude the person’s condition has changed since the date of his or her initial commitment order so that the person does not meet the criteria for commitment as a sexually violent person,” § 980.09. Ermers’ diagnosed disorders (pedophilia, ASPD) haven’t changed since initial commitment, but he supports his discharge petition with an expert’s assessment that, due to changes in a key actuarial instrument (Static-99), Ermers should be placed in a lower risk category than originally thought, and no longer meets the standard for sexually violent recidivism. The State argues that this isn’t enough for a discharge hearing, because “the change in the mental disorder cannot be the result of a change in professional knowledge or research, but must be the result of a change in the person himself or herself,” ¶14. The court rejects that argument, and holds that a hearing is required: “We conclude that the ‘change’ referred to includes not only a change in the person himself or herself, but also a change in the professional knowledge and research used to evaluate a person’s mental disorder or dangerousness, if the change is such that a fact-finder could conclude the person does not meet the criteria for a sexually violent person,” ¶16.

Discussed by court: State v. Pocan, 2003 WI App 233, 267 Wis. 2d 953, 671 N.W.2d 860 (discharge hearing required based on new actuarial tables rather than improvement in Pocan’s mental condition; decided under prior iteration of § 980.09), State v. Arends, 2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 513 (screening process for hearing explained, but current issue not reached), and State v. Richard, 2011 WI App 66 (change in actuarial scoring alone, without any association with Richard’s specific condition, didn’t support discharge hearing; decided under current version of § 980.09). Court’s rationale worth quoting at length:

¶30      The purpose of Wis. Stat. ch. 980 as evident in its text is to commit a person who meets the requirements of a sexually violent person to the custody of the department “for control, care and treatment until such time as the person is no longer a sexually violent person.”  § 980.06.  The annual re-examinations and reports required by § 980.07, including the availability of another examiner upon the request of the committed person, § 980.07(1), and the procedures for a discharge hearing all underscore that the purpose of ch. 980 is to confine persons only as long as they meet the statutory criteria for being sexually violent.

¶31      In view of this purpose, we conclude that the only reasonable construction of the “condition has changed” language in Wis. Stat. § 980.09(1) is that it encompasses all the changes that, a fact-finder could determine, result in the person not meeting the criteria for commitment as a sexually violent person.  Specifically, this language includes not only a change in the person himself or herself, but also a change in the professional knowledge or research used to evaluate a person’s mental disorder or dangerousness, if the change is such that a fact-finder could conclude the person does not meet the criteria for commitment.  Expert opinions are typically relied upon by fact-finders at the initial commitment hearing in deciding that a person’s mental disorder and degree of dangerousness meet the statutory criteria.  These opinions are based on the professional knowledge and research available at the time.[13] We see no rationale for interpreting § 980.09(1) to prevent a committed person from obtaining a discharge hearing based on a change in that knowledge or research when, in the opinion of an expert, that change results in the person not meeting the criteria for commitment.

¶34      In summary, we interpret the phrase “the person’s condition has changed since the date of his or her initial commitment order so that the person does not meet the criteria for commitment as a sexually violent person” in Wis. Stat. § 980.09(1) as follows: the phrase includes not only a change in the person himself or herself, but also a change in the professional knowledge and research used to evaluate a person’s mental disorder or dangerousness, if the change is such that a fact-finder could conclude the person does not meet the criteria for a sexually violent person.  Put in the context of the inquiry under § 980.09(1), the circuit court may not deny a discharge petition without a hearing if the petition alleges facts from which a fact-finder could determine that, as a result of any one of those changes, the person does not meet the criteria for a sexually violent person.

The court importantly adds that discharge procedure keeps the ch. 980 commitment regime constitutional, ¶32. The State’s pinched construction, if implemented, would “present serious constitutional concerns,” ¶33. On the other hand, the court explicitly limits the impact: “change” does not include mere reconsideration of the trial testimony. Here, the expert relies on information not considered at trial and, in contrast to Richard, links the new information to Ermer’s specific condition, ¶¶36-37.

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