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State v. Edwin Clarence West, No. 2009AP1579, review granted 1/11/11

decision below: unpublished; for West: Ellen Henak, SPD. Milwaukee Appellate; case activity

Issue (formulated by On Point):

Whether, as a matter of statutory construction, due process and equal protection, the burden of proof on a § 980.08(4)(cg) petition for supervised release of a sexually violent release is on the State.

A technical issue, but one significant to ch. 980 practice. The issue was decided adversely in State v. Rachel, 2010 WI App 60, a decision for which review wasn’t sought.

More: The court posts this description of the case:

Specifically, West’s petition raises the following issue: Does 2005 Wis. Act 434 § 118 (codified at Wisconsin Statutes § 980.08(4)(cg)) shift the burden of proof at a supervised release hearing under Chapter 980 to the civilly-committed respondent?

Prior to the effective date of the new legislation on Aug. 1, 2006, the statutory presumption was to grant a petition for supervised release, and the state clearly bore the burden to show that release was not warranted. West argues that the new statute, which does not explicitly assign the burden of proof, should be similarly interpreted to place the burden on the state. Among other things, he urges that the supervised release provision should be treated like a criminal statute under the rule of lenity and be given a narrow construction in favor of the person whose liberty is at stake. In addition, West argues that the statute as modified cannot be interpreted to shift the burden of proof to the committed person because such a shift would violate constitutional due process and equal protection rights.

West notes that only approximately 20 of the 350 people committed under Chapter 980 are on supervised release.  Thus, he contends that resolution of the statutory interpretation and constitutional issues will have a statewide impact on a significant number of individuals. From Milwaukee County.

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