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SVP – Trial – Special Verdicts – Equal Protection

State v. Jesse J. Madison, 2004 WI App 46, PFR filed 3/12/04
For Madison: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding:

¶5. Alternatively, Madison argues that he has a constitutional right, on equal protections grounds, to a special verdict. See Wis. Const. art. I, § 1. This equal protection argument stems from an alleged disparate application of special verdicts, under Wis. Stat. § 805.12(1), in Wis. Stat. chs. 51 and 980 cases. Persons committed under ch. 980 and those committed under ch. 51 are similarly situated for an equal protection analysis. State v. Post, 197 Wis. 2d 279, 318-19, 541 N.W.2d 115 (1995).3¶6. Madison notes that while Wisconsin’s jury instructions provide a general verdict for a Wis. Stat. ch. 980 commitment, Wis JI-Criminal 2503, a special verdict is provided for Wis. Stat. ch. 51 commitments, Wis JI-Civil 7050. From this fact alone, Madison claims ch. 980 respondents are “systematically depriv[ed] of special verdicts” and that this constitutes an equal protection violation. Furthermore, because we previously observed that “it is much more difficult to commit a person under [chapter] 980 than it is to commit someone under chapter 51,” State v. Williams, 2001 WI App 263, ¶14, 249 Wis. 2d 1, 637 N.W.2d 791, Madison claims that it is inconsistent to submit general verdicts in ch. 980 cases because they make it easier for a jury to return a verdict in favor of commitment. Therefore, given this disparity, Madison argues he was denied equal protection.

¶7. We reject the equal protection argument for two reasons. First, Madison has not provided any evidence of his allegation that ch. 980 respondents are routinely deprived of special verdicts. Second, he has not provided any evidence or authority to support the otherwise speculative proposition that general verdicts are more likely to result in commitments than special verdicts.


3   In State v. Post, 197 Wis. 2d 279, 328-29, 541 N.W.2d 115 (1995), the supreme court concluded there was a denial of equal protection where Wis. Stat. ch. 51 respondents had a right to a jury trial at a discharge hearing while Wis. Stat. ch. 980 respondents did not.

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