Summary judgment in favor of discharge isn’t an available option under § 980.09.
¶18 Applying the principles governing statutory interpretation to Wis. Stat. § 980.09, it is clear that the legislature explicitly prescribed a different procedure from those outlined in Wis. Stat. chs. 801 to 847, and that summary judgment is not available in discharge proceedings. Section 980.09(2) gives a trial court two options when confronted with a petition for discharge. Subsection (2) first states that the trial court “shall” deny the petition “[i]f the court determines that the petition does not contain facts from which a court or jury may conclude that the person does not meet the criteria for commitment.” Sec. 980.09(2). If the trial court determines that facts do exist from which a court or jury could find that the petitioner no longer meets the criteria for commitment, “the court shall set the matter for hearing.” Id. By stating that the court “shall” set the matter for a hearing, the legislature has precluded a court from exercising any other options that might otherwise be available, including summary judgment. The unambiguous and clear understanding of § 980.09(2) is that a trial court is limited to these two options when faced with a petition for discharge. See Arends II, 2010 WI 46, ¶43 (“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.”).
Further detailing by court of discharge procedure follows, more or less a variation on the theme captured by the blockquote. Discharge simply isn’t permitted absent a § 980.09(3) hearing, therefore summary judgment-based discharge simply isn’t supported by the statutory scheme. A court may denyor granthearing on the person’s petition, and that’s it. “We hold that the language of § 980.09(2) explicitly prescribes the only two procedures a trial court can exercise when confronted with a petition for discharge,” ¶23.
After filing a discharge petition, Allison was examined by two experts, one hired by the state, the other court-appointed. Both agreed that Allison no longer meets the criteria for commitment. If the State has any contrary evidence, it’s a well-guarded secret. Given this apparent absence of controversy as to need for continuing commitment, the trial court granted summary judgment in favor of discharge. As just seen, this grant is now reversed. But: the State bears the burden of proof, by clear and convincing evidence, that the person in fact meets the criteria for commitment, § 980.09(3), so what is the point of a hearing? This is in effect a harmless error question:
¶30 We will not speculate as to the possible strength or weakness of the State’s case. Wisconsin Stat. § 980.09(3) exists for the sole purpose of requiring the State to present its case in opposition to a petition for discharge. Not allowing the State the opportunity to cross-examine Allison’s witnesses and present its case is not harmless error. There is more than a reasonable possibility that the court’s failure to allow the State an opportunity to cross-examine Allison’s witnesses and present its case contributed to its decision to grant Allison’s motion for summary judgment. See Beauchaine, 297 Wis. 2d 70, ¶152. This error has undermined our confidence in the outcome of the case. See Tykila S., 246 Wis. 2d 1, ¶28. Because the State was denied an opportunity to cross-examine Allison’s witnesses and present its case in opposition of Allison’s petition for discharge, we hold that the trial court’s grant of Allison’s motion for summary judgment was not harmless error.