Procedure clarified for handling discharge petitions under recently amended § 908.09 :
¶3 We conclude that § 980.09 requires the circuit court to follow a two-step process in determining whether to hold a discharge hearing.
¶4 Under § 980.09(1), the circuit court engages in a paper review of the petition only, including its attachments, to determine whether it alleges facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. This review is a limited one aimed at assessing the sufficiency of the allegations in the petition. If the petition does allege sufficient facts, the circuit court proceeds to a review under § 980.09(2).
¶5 Wisconsin Stat. § 980.09(2) requires the circuit court to review specific items enumerated in that subsection, including all past and current reports filed under § 980.07. The circuit court need not, however, seek out these items if they are not already within the record. Nevertheless, it may request additional enumerated items not previously submitted, and also has the discretion to conduct a hearing to aid in its determination. The circuit court’s task is to determine whether the petition and the additional supporting materials before the court contain any facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person.
Someone committed under ch. 980 can petition for discharge from the commitment at any time. The circuit court screens the petition to determine if a discharge trial must be set. If the petitioner no longer has the requisite “mental disorder” or no longer is more likely than not to reoffend, then he’s entitled to discharge from the commitment. Although you’d never know it from the opinion, these are constitutional commands, a point that contrastingly informed the court of appeals decision, 2008 WI App 184, ¶18: “To meet constitutional muster, a state must discharge a person who is not both mentally ill and dangerous. See Foucha v. Louisiana, 504 U.S. 71, 71 (1992) (a person subject to a mental health commitment ‘may be held as long as he is both mentally ill and dangerous, but no longer’).” The omission might or might matter, but if nothing else it is exceptionally glaring. Slowly but surely procedural protections have been stripped from SVP procedure — where once a respondent had virtually all the protections of a criminal defendant, today there are virtually none. Whether causal or not, this erosion has coincided with increasing assuredness that greasing the slide to lifelong involuntary detention doesn’t make the process any less “civil” in nature or more susceptible to attack as de facto penalty. But that is because the entire “civil” edifice is now held together by the detainee’s right to seek discharge and the state’s concomitant responsibility to afford vigorous review. This point, too, earned recognition from the court of appeals, id.:
However, the State asserts, at the reexamination stage “there is a need to avoid the public expense of a discharge trial when the evidence is unlikely to demonstrate that a person is no longer an appropriate subject for commitment. And so long as there is a periodic review, due process is satisfied.” While we would generally agree, we emphasize that meaningful periodic review has kept the commitment scheme constitutionally sound. See Rachel, 254 Wis. 2d 215, ¶48 n.5 (when considering the methods by which a committed person can gain discharge, agencies and individuals charged with monitoring the treatment and institutionalization of sexually violent persons are given the “benefit of the assumption” that they will carry out their duties in good faith).
This doesn’t mean that the supreme court necessarily has abandoned the idea of meaningful review, it’s just that its failure to pay even lip service to what should be a constitutional imperative as a guide to statutory construction is a bit unsettling. In any event, keep in mind that the supreme court decision does not address, let alone modify, the language quoted immediately above which therefore remains binding, see this post. (The supreme court did modify the lower court opinion with respect to both the precise way § 980.09(2) applies and, therefore, with the nature of the mandate [remand for further “hearing” under that subsection as opposed to a discharge hearing under subs. (3)].)
The court stresses that § 980.09(1) supports “very limited review,” the “clear purpose” of which “is to weed out meritless and unsupported petitions, which is especially important in light of the statute’s proviso that petitions for discharge may be filed at any time,” ¶28. (A notion wholly consistent, by the way, with that of constitutionally mandated meaningful review.) Things get a bit woollier at the second step, which is therefore quoted at some length:
¶32 Section 980.09(2) contains a second level of review before a petitioner is entitled to a discharge hearing. Unlike § 980.09(1), where only the petition and its attachments are reviewed, the court in this step is required to examine all of the following items:
(1) any current and past re-examination reports or treatment progress reports filed under Wis. Stat. § 980.07;
(2) relevant facts in the petition and in the State’s written response;
(3) arguments of counsel; and
(4) any supporting documentation provided by the person or the State.
¶33 Some confusion arose at oral argument as to how the circuit court can fulfill its obligation to consider all these items when some of them may not be available or otherwise within the record before the court. The most reasonable reading of this statute is that the court must review all the items enumerated in § 980.09(2) that are in the record at the time of review. The circuit court need not, therefore, seek out evidence not currently before it. It may, however, order the production of any of the enumerated items not in the record, but is not required to do so. The statute supports this interpretation in granting the court the discretion at this stage to hold a separate hearing, distinct from and prior to any discharge hearing. Thus, review under § 980.09(2) is of the specific items listed in the statute, if available or so requested by the court.
The court stresses that even at this more intensive level of scrutiny review is “limited” as with subsection (1), ¶38. The purpose is to determine whether there are “facts that could support relief for the petitioner at a discharge hearing.” More particularly: the circuit court may not weigh the evidence; nor does the burden shift to the petitioner, ¶¶40, 41.
¶43 To conclude, Wis. Stat. § 980.09(2) establishes a limited review of the sufficiency of the evidence. The court is required to review the items specifically enumerated if available, and may order those items to be produced and/or conduct a hearing at its discretion. The circuit court must determine whether the enumerated items contain any facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. If any facts support a finding in favor of the petitioner, the court must order a discharge hearing on the petition; if no such facts exist, the court must deny the petition.
Finally, the court remands to give the circuit court another kick at the screening cat, ¶48. Why not remand for a discharge hearing, which was plainly warranted on the petition? Most likely because ch. 980 really is a different breed of cat.