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Defense win: amendment to 980 discharge standard doesn’t authorize “weighing”

State v. David Hager, Jr., 2017 WI App 8, petition for review granted 5/15/17; reversed 4/19/18; case activity (including briefs)

This is the first (likely) published case to construe the 2013 amendments to the ch. 980 discharge petition standard. The court of appeals holds that while the legislature required a committed person seeking a discharge trial to meet a higher burden of production, it did not permit courts to deny a trial based on an assessment that the evidence as a whole favors the state.

The state has been trying to convince the courts for some time that, even if a committed person comes to court with new evidence that he does not meet the criteria for commitment, the court can deny him a trial if it finds other evidence supporting continued commitment more persuasive.

The problem: there is no statutory support for this claim.

Thus held our supreme court in State v. Arends, 2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 513. The state argued that a then-recent amendment, which removed the mandatory “probable cause” hearing on discharge petitions, required the petitioner to prove he was not a sexually violent person in order to receive a trial at which the state would try to prove that he was. (?!) Id., ¶¶35-37.

The court rejected this argument, noting the clear language of the statute, which required a trial where “facts exist from which a court or jury could conclude the person does not meet criteria for commitment.” Wis. Stat. § 980.09(2) (2007-08):

We take the standard delineated in the statute at face value. It contains neither the phrase “probable cause” nor the phrase “preponderance of the evidence,” both of which are common terms of art that the legislature could have employed….

We reject the State’s argument that the circuit court may weigh evidence favoring the petitioner directly against evidence disfavoring the petitioner. This is impermissible because the standard is not whether the evidence more heavily favors the petitioner, but whether the enumerated items contain facts that would allow a factfinder to grant relief for the petitioner. If the enumerated items do contain such facts, the presence of evidence unfavorable to the petitioner — a re-examination report reaching a conclusion that the petitioner was still more likely than not to sexually reoffend, for example — does not negate the favorable facts upon which a trier of fact might reasonably rely.

Id., ¶¶37-40.

The legislature again amended the statute in 2013; the main change being that the person is entitled to a discharge trial if the record “contains facts from which a court of jury would likely conclude” (as opposed to the old “could conclude”) the person no longer meets the criteria. § 980.09(2) (2015-16). Despite this amendment also having nothing to do with weighing (as before, it says nothing about “preponderance of the evidence” or any sort of burden of proof), the state once again claims the legislature has adopted its preferred test. The court:

We do not agree. WISCONSIN STAT. § 980.09(2) still asks whether the “record,” as defined under subsection (2), contains such facts as would justify holding a discharge trial. If the circuit court determines the record does contain facts from which a court or jury would likely conclude the person no longer meets the criteria for commitment, the court must set the matter for a discharge trial. Again, this language does not clearly direct the circuit court to “weigh” anything, at least not to an extent greater than it did when Arends was decided. Instead, the court must determine whether the facts in the record favorable to the petitioner… establish a reasonable likelihood of success at an ensuing discharge trial.


Hager also argued that if the statute were construed as the state wishes, it would violate due process, since it would require the committed person to carry the burden of persuasion in order to have a chance to be freed from commitment. Hager argued that this is forbidden by, e.g., Foucha v. Louisiana, 504 U.S. 71, 80 (1992). The court, having found the plain statutory language does not establish such a burden, does not need to address the constitutional issue. (¶44).

The state has never made any argument that Hager is not entitled to a trial if its “weighing” regime is not adopted, and the court of appeals has no trouble determining that his petition clears the bar:

Wakefield’s expert report in support of Hager’s petition opined that Hager was no longer more likely than not to commit a future act of sexual violence. To support her opinion, she cited her application of two actuarial risk instruments, the Static-99R and the MATS-1, that the experts at Hager’s initial commitment trial did not consider. In addition, Wakefield opined that certain facts and dynamic factors, including Hager’s advancing age and reduced sexual deviance following treatment (which was verified in part by physiological testing), reduced Hager’s risk below the minimum threshold necessary for continued commitment. Wakefield’s report, and anticipated testimony consistent therewith, constituted relevant, probative evidence from which a factfinder “would likely conclude” that Hager no longer qualifies as a “sexually violent person.” We therefore remand for the circuit court to hold a discharge trial in accordance with WIS. STAT. § 980.09(3) through (5).


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