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Local governments can intervene in ch. 980 supervised release proceedings

State v. Michael McGee, 2017 WI App 39; case activity (including briefs)

This is an important decision for the few, the happy few, who represent persons committed under ch. 980 in seeking supervised release. The court of appeals holds that the municipalities in which a committed person may be placed have the right to intervene in supervised release proceeding. It also holds that if the circuit court and Department of Health Services fail to adhere strictly to the statutory requirements governing supervised release planning, the supervised release order is invalid.

After McGee was adjudged suitable for supervised release in 2013 DHS started looking for a place in Racine, McGee’s county of residence and therefore the default location for him to be placed unless there is “good cause” to look elsewhere, § 980.08(4)(cm). DHS couldn’t find anything because of local sex offender residency restrictions, so the parties stipulated to, and the circuit court found, good cause to search outside Racine. (¶¶5-6).

DHS found a residence in the Town of Wheatland, in Kenosha County, but shortly before McGee was to be placed there, 2015 Wis. Act 156 took effect. Act 156 effected a limited abrogation of local sex offender residency restrictions by saying those restrictions can’t be enforced against a person under supervised release, § 980.135; thus, local ordinances could no longer be a basis for “good cause” to look at placements outside the county of residence. (¶7). Act 156 also created new requirements for supervised release planning.

Kenosha and Wheatland didn’t want McGee in their backyard, so they moved to intervene, arguing that the court needed to do another “good cause” determination in light of Act 156 and that DHS hadn’t followed other requirements for release planning imposed by the Act. The circuit court let Kenosha intervene, but not Wheatland. After an evidentiary hearing it rejected Kenosha’s challenges to the release order, concluding there was good cause to look outside Racine even under Act 156 and that the supervised release plan was appropriate. (¶¶8-10). Wheatland appealed the order denying intervention, Kenosha appealed the granting of the release order, and McGee cross-appealed the circuit court’s order allowing Kenosha to intervene.

Intervention. The court of appeals affirms the circuit court’s decision allowing Kenosha to intervene and reverses the decision denying Wheatland’s motion to intervene. It holds that both local governments meet the criteria under § 803.09(1) for intervention in the supervised release proceeding, based on: their substantial interest in the well-being of their residents; and on the fact that provisions in § 980.08(4) mandate certain municipal officials receive notice of and have the opportunity to consult about a potential placement in its community, which creates an interest in having a meaningful opportunity to be involved in McGee’s placement process. (¶24). The summary order in Wheatland’s appeal (2016AP1068) adopts the reasoning of the decision in Kenosha’s case.

One of the criteria under § 803.09(1) is whether the existing parties adequately represent the intervenor’s interest. The court’s cursory discussion doesn’t address this criterion, so the court doesn’t engage the argument that the state, the party prosecuting the ch. 980 proceeding, has the same public protection interests as the local governments and therefore adequately represents their interests. In any event, the court’s conclusion means every ch. 980 supervised release proceeding now faces the prospect of becoming “fruitlessly complex or unending,” a potential militating against intervention, Helgeland v. Wisconsin Municipalities, 2008 WI 9, ¶44, 307 Wis. 2d 1, 745 N.W.2d 1 (and another factor the court doesn’t discuss), as local governments who oppose sex offender placements now have an absolute right to intervene and demand a hearing. Community placement in ch. 980 cases is already “a difficult and thankless task,” as the court observes, (¶1) and the wide-open intervention authorized here will only exacerbate that situation.

The release order. The circuit court erroneously exercised its discretion in ordering McGee be placed in Wheatland. First, the record doesn’t support a finding of “good cause” in light of Act 156 because testimony by DHS employees doesn’t show they did enough to find a placement in Racine once local ordinances were abrogated. (¶12). In addition, the court and DHS failed to comply with the supervised release planning requirements under § 980.08(4) by failing to give “[a]ll known and affected Kenosha County entities”—in particular, the county § 51.42 board, the local law enforcement agency with jurisdiction over the placement, and the county victim/witness coordinator—”a seat at the planning table in the preparation of the supervised release plan for McGee.” (¶¶14-15). Instead, these entities weren’t notified until after the placement order was signed. (¶¶16-17).

The court also rejects DHS’s interpretation of the statute’s requirements as requiring consultation with the locals only as to the place of residence generally, for any ch. 980 offender, rather than consultation as to the specific person to be placed. (¶18). Says the court:

¶19 By statute, DHS is required to “consult with local law enforcement.” Wis. Stat. § 980.08(4)(em). Consult means “to ask advice of” or “seek the opinion of.” Consult, Webster’s Third New International Dictionary (3d ed. 1993); see also Consult, Dicitionary.com, Random House Dictionary (2017), http://www.dictionary.com/browse/consult (last visited Apr. 24, 2017). Section 980.08(4)(em), as well as § 980.08(4)(d) and (e), require more than a formalistic general report on the physical residence slated for placement. Instead, the statute contemplates that DHS will work with local law enforcement and the county entities and seek advice about a proposed placement of a particular sexually violent person in order to draft the supervised release plan. See § 980.08(4)(f). The statute requires that DHS and the circuit court furnish Kenosha County and others with information pertaining to the specific sexually violent person slated for release. See § 980.08(4)(cm), (d), (f), [and] (g) (referencing “the person” or “the individual”).

Finally, DHS erred by failing to include information in the supervised release plan that a one-year-old boy was living next door to the proposed placement. DHS concluded it didn’t need to include that information because McGee isn’t a serious child sex offender under § 980.01(4m), as he’s never been convicted of child sexual assault. However, McGee’s parole was revoked in part based on alleged sexual contact with a child, so the fact the proposed placement was next to a child is relevant to whether the supervised release plan adequately meets the treatment needs of the individual and the safety needs of the community as required by § 980.08(4)(g). (¶¶20-21).

The upshot: If you are representing a person in a supervised release proceeding, ride herd on DHS and the circuit court to ensure they fulfill their duties to notify “all the known and affected” local entities and give them “a seat at the planning table”; and don’t let DHS omit relevant information from the release plan, lest the failures of others sabotage your client’s prospect for release. Be prepared to call as witnesses at the supervised release hearing all the various actors from DHS and the local entities so you can create a complete record of who was at the planning table, what information they provided, and what advice and opinions they offered on the placement (all the while reminding the circuit court it is “ultimate arbiter” of whether to grant supervised release (¶21)). If that requires hours of testimony over multiple days, so be it; under this decision a circuit court’s release order is invalid if it’s not issued in strict compliance with the statute and based on consideration of every relevant fact. Leave no stone unturned. Remember: community placement under ch. 980 is “a difficult and thankless task.”

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