State v. Daniel Arends, 2008 WI App 184, PFR granted 2/10/09
For Arends: Leonard D. Kachinsky
Issue: Whether § 980.09 (2005-06) grants the circuit court a greater “gatekeeper role” than the prior statute in ordering an evidentiary hearing on a discharge petition.
¶22 The State’s premise that the new statute grants the circuit court a greater role than it played in a probable cause determination runs contrary to the development of the law. Discharge proceedings play a critical role in the constitutionality of civil commitments. Courts have repeatedly confirmed this. See, e.g.,Foucha, 504 U.S. at 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”);Thiel, 275 Wis. 2d 421, ¶23 (“our supreme court has tied the constitutionality of Wis. Stat. ch. 980 to the availability of periodic reviews that reassess the person’s dangerousness to determine if a lesser restriction of his or her liberty is warranted”); State v. Rachel, 254 Wis. 2d 215, ¶66 (ch. 980 “passes constitutional muster” because confinement is “linked to the dangerousness of the committed person” and there are procedures for ending confinement when the person is no longer dangerous); Combs, 295 Wis. 2d 457, ¶28 (the periodic reexamination and probable cause hearing for discharge “are among the protections that the supreme court has considered significant in concluding that Wis. Stat. ch. 980 does not violate the equal protection clause or the right to due process”). By interpreting the discharge procedure in a way that appears more punitive, such that petitions would be less likely to merit an evidentiary hearing, we erode one of the key provisions that courts have relied upon to uphold the constitutionality of ch. 980. 
¶23 Furthermore, the State’s interpretation of the new standard ignores the plain meaning of the statutory language. The legislature could have retained “probable cause” as a standard, but instead required the showing of “a change” from which a judge or jury “may conclude” the person no longer meets the definition of a sexually violent person. Wis. Stat. § 980.09(1). The State’s interpretation would require a petitioner to “prove” that his or her condition has “actually changed” just to meet the threshold for an evidentiary hearing. The statute places no such burden on the petitioner. The circuit court’s role as gatekeeper, to weed out frivolous petitions, is not elevated by the revised statute. The revised statute’s petition review procedure, like the probable cause procedure before it, is not a substitute for the evidentiary hearing. SeeKruse, 296 Wis. 2d 130, ¶31.
Shorter version: Meet the new statute, same as the old statute.