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Serial Litigation Bar (Escalona-Naranjo): Applicable to SVP Commitments

State v. Thomas H. Bush (II), 2004 WI App 193, reversed in part, 2005 WI 103
For Bush: Robert G. LeBell

Issue: Whether Bush, on appeal from denial of petition for release from SVP commitment, § 980.09(2), is procedurally barred from challenging the constitutionality of his underlying commitment because he could have raised such challenge in a prior appeal.


¶13. Similarly, the reasoning of Escalona-Naranjo should apply to a petition for release under Wis. Stat. § 980.09(2). ……

¶18. We need finality in litigation. While an individual committed under ch. 980 is entitled to petition for release and regular review of his commitment, it is undesirable to allow the individual to “raise some constitutional issues on appeal and strategically wait to raise other constitutional issues a few years later” when those later issues were known from the outset. See Escalona-Naranjo, 185 Wis. 2d at 185-86.

¶19. In much the same way as a prisoner challenging his sentence, Bush is attempting to argue his commitment is “in violation of the U.S. constitution or the constitution or laws of this state ….” See Wis. Stat. § 974.06(1); see also Escalona-Naranjo, 185 Wis. 2d at 179-180. He does not challenge the factual basis of or procedures underlying the denial of his petition for release.4 Like a revoked parolee filing multiple writs, Bush had an opportunity to “raise all claims of which he … [was] aware in the original [petition].” See Macemon, 216 Wis. 2d at 343. Bush’s constitutional challenges to ch. 980 could have and should have been raised in previous appeals and we therefore decline to address them further.

The supreme court subsequently reached the merits; in effect, the court held that a serial litigation bar doesn’t apply where a facial challenge is raised. But the court holds open the possibility of a serial-litigation bar in other contexts. The following criticism applies to the court of appeals’ reasoning. Start at the beginning, with a reminder that State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), encomium to finality and all, is nothing more or less than construction of a statute, § 974.06, which explicitly requires that all grounds available for relief be raised on direct appeal; see also State v. Anou Lo, 2003 WI 107. (Well, not quite “explicitly,” though that’s about the way the court saw it. Reason to doubt that construction might be advanced, but it simply can’t be doubted that the court engaged in statutory construction.) Where, then, is the statute articulating a legislative intent in favor of ch. 980 finality? The court identifies none. There is none. Instead, the court uses a sleight of hand analogy: Escalona-Naranjo applies on certiorari challenges to probation / parole revocations, State ex rel. Macemon v. Christie, 216 Wis. 2d 337, 342, 576 N.W.2d 84 (Ct. App. 1998), which are – like ch. 980 and for that matter § 974.06 proceedings – civil. Therefore …

¶13 … Any constitutional challenge to the statutory commitment scheme should be raised in appeal of the initial commitment. A denial of the petition for release is similar to probation revocation in that the initial proceedings-either the initial commitment or the underlying criminal action-are not the subject matter in controversy. When probation is revoked, there can be no challenge to the underlying conviction; appellate review is limited to the sentencing after revocation. See State v. Drake, 184 Wis. 2d 396, 399, 515 N.W.2d 923 (Ct. App. 1994). When a petition for release is filed, the only factual issue in controversy is whether, at the time of the petition, the committee remains sexually violent, not whether the initial commitment was appropriate.

But the analogy simply overlooks a crucial fact: certiorari challenge to revocation is a common law procedure, State ex rel. Johnson v. Cady, 50 Wis. 2d 546, 185 N.W.2d 306 (1971). It’s judge-made, not legislative, which leaves quite a bit of room for judicial construction. In short, the court has posited two inapplicable lines of cases, under inapt statutory and common law procedure, to support the desired result: This might be well and good if Bush were raising some common law challenge, or if ch. 980 had some statute linguistically similar to § 974.06. Instead, the courts have consistently placed ch. 980 under civil appeal rules, e.g. State v. John R. Brunette, 212 Wis. 2d 139, 567 N.W.2d 647 (Ct. App. 1997) (notice of appeal deadline controlled by § 808.04(1), therefore can’t be extended); State v. Thomas Treadway, 2002 WI App 195 (civil rules require filing of post-verdict motions within 20 days of commitment order), which means that you can mount what is in effect a collateral attack under § 806.07. And one such ground is where the judgment is void – which at least arguably obtains if it were obtained on an unconstitutional premise. See, e.g., Neylan v. Vorwald, 124 Wis. 2d 85, 95, 368 N.W.2d 648 (1985) (judgments entered contrary to due process are void). Now it may well be that a court could construe § 806.07 to hold finality as a trump card; or that Bush’s particular arguments don’t come within that statute. Such a construction, though, would require attention to the text and history of that particular statute, an exercise this court assiduously avoids.

Nor is that all. The court’s introduction of finality into this context is a bit mechanical, not to say dogmatic. The “science” underlying SVP commitments is constantly evolving (to put it euphemistically). See, e.g., State v. Henry Pocan, 2003 WI App 233 ¶11 (at release hearing, “The psychologist stated that, based on new diagnostic tools, she could not conclude that Pocan would reoffend sexually”). The “tools” are subject to change and when they do, the very basis for the underlying commitment changes, which makes the commitment something of a moving target, not static like a conviction. It might be argued, of course, that this is what release hearings are for, but that misses the point: ch. 980 is unique, not analogous either to criminal convictions or revocations; simply asserting “finality” without analysis is – especially considering that the stakes include life-long commitment – much too facile. It’s hard to believe that some agenda doesn’t inform the result. The recurring problems of placing released “patients” in the community are well-known (see James Allen’s case, above, and this has led to increased concern that if placement can’t be found, State v. Shawn D. Schulpius, 2004 WI App 39, PFR granted. Is it possible that the court means to impede such attacks on arbitrary procedural grounds?

And, finally, some procedural ambiguity which the court doesn’t flesh out. Bush, as the court notes, had his commitment overturned on direct appeal. After retrial and re-commitment he appealed again and won again. Although the second appeal resulted in a very narrow remedy (retrial limited to whether Bush was within 90 says of release when commitment petition filed), the fact is that the court of appeals did vacate the judgment in the process of remanding. Bush lost yet again on remand, but this apparently occurred while the release petition was being tried. (The court of appeals is silent on the timing; CCAP says that Bush lost the remand hearing at a pretrial conference on 3/24/03 and that the jury trial on release started the next day.) What this means is that in a real sense Bush was still in direct-appeal mode relative to his original commitment, at the time he launched this attack. And, of course, if that’s so, then the serial litigation bar – designed to inhibit collateral attack – is at least arguably misplaced.


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