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SCOW: Daubert standard doesn’t apply to ch. 980 discharge proceedings where the original commitment petition was filed before Daubert standard was adopted

State v. Michael Alger & State v. Ronald Knipfer, 2015 WI 3, 1/20/15, affirming two published court of appeals decisions,: Alger, 2013 WI App 148; Knipfer, 2014 WI App 9; majority opinion by Justice Ziegler; case activity: Alger; Knipfer

The supreme court holds that the Daubert standard for expert testimony does not apply to discharge proceedings in a ch. 980 case if the original petition for commitment was filed before the effective date of the adoption of the Daubert standard. The court also holds there are no due process or equal protection problems in applying one evidentiary standard to cases in which the original petition was filed before the effective date and a different evidentiary standard to cases filed after that date.

In 2011 Wisconsin Act 2, the legislature amended § 907.02 and adopted the standard for the admissibility of expert testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Under the initial applicability provisions of Act 2, the new admissibility standard first applied “to actions or special proceedings that are commenced on the effective date of this subsection [February 1, 2011].” Both Alger and Knipfer were committed based on ch. 980 petitions filed long before February 1, 2011. (¶¶5, 13). Both filed petitions for discharge after February 1, 2011, and during the discharge proceedings sought to exclude certain testimony from the state’s experts about reoffense risk on the ground the testimony did not satisfy the newly-adopted Daubert standard for reliability. (¶¶7-8, 15-16). The supreme court, like the circuit court and court of appeals, rejects the claim that a petition for discharge “commenced” a new “action” or “special proceeding.”

Citing some black-letter definitions of “action” (e.g., “action” “refer[s] to an entire proceeding, not to one or more parts within a proceeding,” State ex rel. Henderson v. Raemisch, 2010 WI App 114, ¶22, 329 Wis. 2d 109, 790 N.W.2d 242 (¶28)) and “special proceeding” (“[a] proceeding that can be commenced independently of a pending action and from which a final order may be appealed immediately,” Black’s Law Dictionary 1398 (10th ed. 2014); a proceeding “occurring entirely outside the underlying action[,]” Wellens v. Kahl Ins. Agency, Inc., 145 Wis. 2d 66, 69, 426 N.W.2d 41 (Ct. App. 1988), and Ryder v. Society Ins., 211 Wis. 2d 617, 619, 565 N.W.2d 277 (Ct. App. 1997) (¶29)), and providing some examples of proceedings that are not special proceedings (in particular, a motion for post conviction relief, which “is a part of the original criminal action,” and “is not a separate proceeding,” § 974.06(2) (¶30)), the court says:

¶31  In light of the foregoing definitions and examples, Alger’s and Knipfer’s Chapter 980 discharge petitions do not “commence” an “action” or a “special proceeding” because the discharge petitions could not exist without the initial commitments and are “a part of” the initial commitments. Hence, even though the requests for discharge are seeking relief from commitments, the requests are necessarily dependent on and tethered to the original commitments. A discharge petition does not “start” or “begin” an “action” or a “special proceeding” but rather, it is more akin to a motion within an existing matter. A discharge proceeding is “incident to an existing action” and does not stand alone or exist “entirely outside the original action.” See Ryder, 211 Wis. 2d at 619; Wellens, 145 Wis. 2d at 69. Instead, Alger’s and Knipfer’s discharge petitions are a part of the “entire controversy at issue,” the underlying Chapter 980 commitments. See Henderson, 329 Wis. 2d 109, ¶23. The analogy between a Chapter 980 discharge petition and a motion for postconviction relief is particularly apt as each seeks relief from a final order without directly challenging the final order. See Wis. Stat. § 974.06(1), (2); Wis. Stat. § 980.09(1). A Chapter 980 discharge petition, like a motion for postconviction relief, does not “commence” an “action” or a “special proceeding.”

Actually, § 974.06 motions are particularly inapt here. Those motions do challenge the “final order”—i.e., the original judgment of conviction—though not on direct appeal, and on grounds limited to jurisdictional or constitutional claims not raised on direct appeal, State v. Escalona-Naranjo, 185 Wis. 2d 168, 176-77, 517 N.W.2d 157 (1994). And the fact that § 974.06 motions are “part of the original criminal action” has been decreed by the legislature in § 974.06(2). By contrast, nothing in § 980.09 says that discharge proceedings are part of the original commitment action. The legislature certainly could have made that declaration, just as it did in § 974.06, if that was its intent.

Further, while the discharge proceeding is “necessarily tied” to the underlying commitment proceeding in the sense the first could never occur without the second, that does not mean, as the majority concludes, that the discharge proceeding is part of an “ongoing process.” (¶32). Instead, as carefully demonstrated by the dissent (Justice Abrahamson, joined by Justice Bradley), the majority fails to apply the very definition of “special proceeding” it adopts, and actually applying the definition shows ch. 980 discharge proceedings are in fact special proceedings that can be commenced independently of a pending action and from which a final order can be appealed immediately. (¶¶68-83). As for the circuit court’s continuing “administrative authority” over the case during the period of commitment, which the majority also cites in support of its conclusion (¶34), this notion adds nothing to the analysis for the reasons discussed in our post on the court of appeals’ decision in Alger.

The dissent also agrees with Alger and Knipfer about the obvious absurdity of having different evidentiary standards applied to old ch. 980 cases “many, many years into the future” even though the persons in those cases are “similarly situated” to those in post-Daubert cases. (¶93). The majority dismisses this concern, saying that “[t]he reality is” that the expert testimony being challenged “may be admissible regardless of which standard applies.” (¶37). (Why, then, would the legislature go to the bother of amending § 907.02? And why would the state put up such a fuss about application of the Daubert standard to discharge proceedings?) Which brings us to the next issue:

The majority rejects the claim that allowing the use of the pre-Daubert standard far into the future in cases like theirs violates equal protection and due process because of the disparate treatment of someone subject to an original ch. 980 proceeding initiated by the state on a date after adoption of the Daubert standard and discharge proceedings initiated on the very same date by a previously committed person who files a petition under § 980.09. To address this argument, the court first has to address whether the standard of review is strict scrutiny or rationale basis. Following State v. Mary F.-R., 2013 WI 92, 351 Wis. 2d 273, 839 N.W.2d 581, the court holds that the rational basis test applies:

¶44  Like in Mary F.-R., rational basis review applies in the present cases because the challenged legislation does not implicate the fundamental right to freedom from bodily restraint and there is no fundamental right to a particular evidentiary standard.  Like Mary F.-R., Knipfer does not challenge “the use of involuntary commitments in general.” Id. Instead, Knipfer challenges the unavailability of the Daubert evidentiary standard in his Chapter 980 discharge petition trial. Knipfer has no constitutional right to have the Daubert evidentiary standard apply. Brown v. Watters, 599 F.3d 602, 616 (7th Cir. 2010).  …

With rational basis as the standard, the next step is easy:

¶56  …[T]he legislature’s decision to apply the Daubert evidentiary standard to “actions” or “special proceedings” “commenced” on or after February 1, 2011, is rationally related to achieving … legitimate governmental interests. The legislature could have rationally believed that retroactively applying a new rule of evidence to pending litigation would be unfair to litigants, waste judicial resources, and disrupt that litigation by resulting in motions, appeals, and retrials. See Martin v. Richards, 192 Wis. 2d 156, 201, 531 N.W.2d 70 (1995) (explaining that “retroactive legislation presents unique constitutional problems in that it often unsettles important rights” and may result in “unfairness”).

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