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2013 amendments to 980 discharge statute apply retroactively

State v. Carter, 2017 WI App 9, petition for review granted 5/15/17; case activity (including briefs)

This case is a companion to State v. Hager, in which the court held that the amended discharge statute does not require a committed person to prove he is not dangerous in order to get a discharge trial.

Carter took a different position on appeal, asserting that the statute does place a burden on the committed person, but that (1) it is unconstitutional for this reason and (2) at any rate does not apply to him because he filed his discharge petition before the statute’s effective date. The Hager holding removes any due process problem, leaving Carter’s retroactivity argument.

Carter apparently agrees that the change in the discharge statute is procedural; procedural statutes are generally held to be retroactive unless doing so would “impair contracts or disturb vested rights.” Betthauser v. Medical Protective Co., 172 Wis. 2d 141, 147, 493 N.W.2d 40 (1992). Carter argues that he had a vested right to a discharge trial, but the court of appeals disagrees:

While we agree there is an important relationship between a petitioner’s ability to receive a discharge trial and the constitutionality of WIS. STAT. ch. 980 commitments generally, Carter’s argument fails because a committed person under ch. 980 does not have a “vested right” to a discharge trial. Richard recognized that a discharge trial is necessary only under the “appropriate circumstances,” which are defined by WIS. STAT. § 980.09(1) and (2). When the existence of a right is contingent on an uncertain future event (here, Carter’s satisfaction of the preliminary requirements under subsections (1) and (2)), and that event has not occurred prior to the enactment of a statute, there is no vested right to the application of the prior law.

(¶18 (citations omitted)).

Carter also concedes that his petition does not satisfy the new standard (though he does so on the understanding that the statute required him to carry the burden of proof, which, again, the court has held it does not). The court views this concession as dispositive, saying that “to do otherwise would require us to wholly develop an argument on Carter’s behalf, which is improper. See Industrial Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (‘[W]e will not abandon our neutrality to develop arguments.’).”

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