(1) Does [the 2013 Wis. Act 84] change in [Wis. Stat. § 980.09(2)] authorize the circuit court to weigh the evidence [to determine whether to hold a discharge trial], overruling State v. Arends, 2010 WI 46, ¶¶40-43, 325 Wis. 2d 1, 784 N.W.2d 513; (2) If the court is allowed to weigh the evidence, how is such a weighing accomplished, and, specifically, what factors should the court consider when predicting whether the factfinder would likely conclude the person no longer meets the criteria for commitment; (3) If the statute allows the court to weigh the evidence and consider the credibility of the competing psychological reports at this stage where the petitioner bears the burden of establishing a change in his or her condition, is the statute unconstitutional because it misallocates the burden of proof; and (4) Does the change in the statute apply retroactively to a petition for discharge filed before the revised statute’s effective date.
A person committed under Wis. Stat. ch. 980 has the right to petition for discharge from commitment “at any time.” Wis. Stat. § 980.09(1). For some time before December of 2013, the statute required the court to grant a jury trial on such a petition if, on consideration of the petition, other documents in the record, and the arguments of counsel, it concluded that “facts exist from which a court or jury could conclude the person does not meet criteria for commitment.” See, e.g., Wis. Stat. §980.09(2) (2009-10). A substantial body of decisions further specified the ground rules: a petitioner was required to show some change, either in himself or in the professional knowledge regarding mental disorder or likelihood of reoffense, since his most recent trial, State v. Ermers; and if the petition “contain[ed] facts” supporting discharge, the court was not permitted to “weigh” evidence disfavoring discharge–it had to grant a trial. Arends, 325 Wis. 2d 1, ¶40.
With the passage of 2013 Wis. Act 84, the legislature amended the statute, essentially by altering the phrase “could conclude” (or “may conclude”) to “would likely conclude.” § 23. Pretty simple, right? Well, no. First, in Hager’s case, the state argues that this change of phrase amounts to a legislative overruling of Arends and requires the court to “weigh” the evidence supporting discharge against any which might support continued commitment. (p.5). While seeing “potential merit” in both the state’s and Hager’s views on the matter, the court wonders just how this weighing might work in a second issue composed of ten sub-issues:
At the hearing in which the paper record is considered, can the court take testimony? Regardless, does the court decide the credibility of the experts? Is the person petitioning for discharge allowed to attack the foundation for and validity of an unfavorable expert’s report? Can this attack be accomplished without cross-examination? What factors or standard should the court use to predict the findings a factfinder would make? Is the court to consider the competing experts’ prior performance in evaluating likelihood of a sexually violent person’s reoffense? How do the evaluations of the experts differ from the determinations made at a Daubert hearing? If the petition requests a trial to the court, how does a pretrial hearing differ from a trial? Importantly, is the circuit court’s determination deemed a finding of fact to which this court would give deference, or a conclusion of law to be reviewed de novo? As applied in the Hager case, how should this court review the circuit court’s determination that Allen’s report outweighs Wakefield’s report?
As to the third issue, Hager and Carter both argue that requiring a committed person to convince a judge that he is likely to win at trial before he can have a trial amounts to a denial of due process. Hager argues that the constitution requires the state to carry the burden to show dangerousness and that the “weighing” advocated by the state shifts that burden to the defendant. Carter similarly argues that the new § 980.09(2) will make it nearly impossible to get a discharge trial and will thus eviscerate the periodic review that renders the overall ch. 980 scheme constitutional.
Carter’s case also raises a final issue: regardless of what the new § 980.09(2) means, should it apply to him when he filed his discharge petition before it went into effect? As the certification notes, the usual rule is that procedural statutes have retroactive application to cases “in the pipeline,” but not where they “disturb vested rights” or impose an undue burden on a party, which Carter submits retroactive application of the “would likely” standard would do. (p. 9).
Clearly the resolution of these issues will be of great importance to anyone with a pending or contemplated discharge petition. More broadly–for those still clinging to the antiquated view that the government shouldn’t be able to indefinitely confine a person without showing some reason for doing so–these cases provide yet another opportunity for the state’s high court to make good on its word in the 20-year-old case of State v. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995). There, the court upheld the constitutionality of ch. 980 based upon the statutory scheme’s “stringent procedural safeguards.” Id. at 326. Since that time, of course, the legislature has weakened or outright eliminated many of those safeguards, but the court has nevertheless upheld the law. Will the court ever say “enough is enough”? Stay tuned.