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On 980 discharge standard, SCOW replaces COA rule with … nothing?

State v. David Hager, Jr. and State v. Howard Carter, 2018 WI 40, 4/19/18, reversing (Hager) and affirming (Carter) published court of appeals decisions, 2015AP330 & 2015AP1311, case activity (Hager) (Carter)

With these consolidated cases our supreme court maintains its perfect record for the term: it has decided every single criminal/commitment case as the state has requested. It does so here with splintered opinions that fail to generate a holding. The result is that we have no binding precedent on the 2013 amendments to Wis. Stat. § 980.09–the standard a committed person must meet to receive a discharge trial. Or do we? It’s basically anybody’s guess. Hang on.

Hager and Carter both had their petitions for discharge denied in the circuit court without trial. Both appealed and their cases were consolidated in the court of appeals.  Though the issues in the cases differed somewhat, they all concerned the meaning of 2013 Wis. Act. 84. That law changed language in Wis. Stat. § 980.09: basically, while the statute had previously said a committed person was entitled to a discharge trial if “facts exist from which a court or jury could conclude the person does not meet criteria for commitment”  the new version requires a trial if “the record contains facts from which a court or jury would likely conclude” the same thing. (If a trial is granted, the state has the burden to show continued commitment is necessary by clear and convincing evidence).

That court of appeals first certified the cases to the supreme court, but the supreme court rejected the certification. The court of appeals had joint oral argument and issued two published decisions. In each, it concluded that the new statutory language raised the committed person’s burden of production, but did not impose a burden of persuasion–that is, a court considering whether to order a trial should not “weigh” the evidence for and against the discharge petition. Both Hager and Carter had contended that putting a burden on the committed person to show he should be released would violate Due Process. (SCOTUS has held that the constitution requires the state, rather than the committee, to carry the burden on dangerousness by clear and convincing evidence). The court held that Hager’s petition entitled him to a discharge trial and that Carter’s did not.

The state petitioned and the supreme court now agreed to take the case. The state abandoned its prior arguments that the statute required “weighing” and instead contended the court of appeals had erred by forbidding circuit courts to even “consider” evidence unfavorable to the petition.

A three-justice plurality now embraces the state’s characterization of the court of appeals’ decision, along with its requested remedy. The lead opinion holds the court of appeals erred when it concluded “that circuit courts are limited to considering only the items in the record favorable to the petitioner.” However, it the opinion also forswears “weighing”: its formulation, repeated three times in the opinion, is that courts must “carefully examine, but not weigh, those portions of the record they deem helpful to their consideration of the petition.” (¶¶4, 30, 33). The majority says a reading contrary to its own–one that would permit “weighing”–would violate due process. (¶31).

So once the court has “carefully examined” the record, how does it decide whether to grant a trial? The lead opinion doesn’t say. It says only what a court can’t do–“weigh” the evidence or “accept one version of facts, [and] reject another”–not what it can or must do. How one “considers” conflicting evidence without “weighing” is left a mystery.

But perhaps it doesn’t matter–since again, the lead opinion commands the votes of only three justices. Next we have a two-justice concurrence, which takes the opposite position on “weighing,” saying that the statute now requires it. It seeks to avoid a Due Process problem by arguing that requiring a petitioner to convince a court that a favorable verdict is “likely” is not the same thing as requiring the petitioner to carry a burden of proof. The implication, never quite made explicit, is that the statute doesn’t require a person to show he’s more likely than not to win at trial (e.g., has a better than 50 percent chance) but only to show some lesser probability. What probability? Again, we are left guessing.

But perhaps it doesn’t matter, as the concurrence represents the view of only two justices. There’s also a two-justice dissent, which argues the majority’s test is just “weighing” by another name. The dissent asks rhetorically how the command of the statute–to decide what a factfinder “would likely” conclude–can mean anything other than imposing a burden of persuasion on the petitioner. And, if the statute does impose this burden, the dissent says it’s “constitutionally suspect.”

So, dear reader, what’s the law? The rule of Marks v. United States, 430 U.S. 188 (1977) is that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” As is often the case, this rule is impossible to apply here. The lead says the statute doesn’t allow weighing, and the concurrence says it does. There’s no “narrower grounds” between the two, they’re just in conflict. So, there seems to be no binding holding.

And anyway, as explained here, Wisconsin courts don’t follow Marks in interpreting SCOW precedent. Rather, they look to find a majority of justices for any particular proposition. If there is none, there’s no holding on that issue. And again, that seems to be the case here regarding the meaning of the statute.

But does one count dissents? It has been suggested one might. Then things get truly weird. Now we have a four-justice majority (the concurrence plus the dissent) for the proposition that the amended statute requires “weighing.” But we also have a five-justice majority (lead plus dissent) that such weighing is at least “constitutionally suspect.” So, we’ve got majorities for the two propositions that would lead to striking down the statute. Hmm.

One further complication–what is the precedential value of the court of appeals’ decisions below? After all, where a COA opinion is reversed (rather than overruled by a later case), the law is that “holdings not specifically reversed on appeal retain precedential value.” State v. Delebreau, 2014 WI App 21, ¶14, 352 Wis. 2d 647, 843 N.W.2d 441. Which holdings of the court of appeals have been “specifically reversed” here (and by what)?

In sum, as we said up top, and as it was in 2013, the standard for discharge trial is once again anybody’s guess. Happy litigating.

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