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SVP (Ch. 980) Supervised Release: Challenge to Conditions, Ripeness – Validity, Condition Abide by Correctional Facility Rules

State v. Dennis R. Thiel, 2012 WI App 48 (recommended for publication); for Thiel: Jeffrey W. Jensen; case activity

SVP (Ch. 980) Supervised Release – Challenge to Conditions: Ripeness 

Thiel’s challenge to 2 conditions of his supervised release from a ch. 980 commitment are ripe for review (the conditions relate to possible detention in a correctional facility and administration of polygraphs):

¶7        The State argues that Thiel’s claims are not ripe for review because no circumstances have arisen where Rules 13 and 16 were sought to be enforced.  The two fundamental considerations in a ripeness analysis are “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”  Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).  As to the first consideration, we hold that Thiel’s claims are fit for judicial review.  Thiel is not challenging how Rules 13 and 16 would be applied to him—he is instead arguing that the State has no statutory authority to impose these rules.  “[A] purely legal claim is presumptively ripe for judicial review because it does not require a developed factual record.”  Harris v. Mexican Specialty Foods, Inc., 564 F. 3d 1301, 1308 (11th Cir. 2009) (discussing the difference between ripeness standards for “facial” constitutional challenges and “as-applied” challenges).  Thiel’s claims are ready for review as we are able to decide the merits of these two rules without additional factual development.  See Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 581 (1985).

¶8        Regarding the second consideration, assuming arguendo that the restraints are unlawful, Thiel would be forced to subject himself to an illegal action before he could challenge the rules.  A party need not wait for actual harm to occur for a claim to be ripe.  Nebraska Public Power Dist. v. MidAmerican Energy Co., 234 F. 3d 1032, 1038 (8th Cir. 2000).  As Thiel is required to comply with the rules of his supervised release plan, he has a right to challenge those rules.

SVP (Ch. 980) Supervised Release – Conditions 

The court upholds a release condition that Thiel abide by rules of any correctional facility in which he may be confined:

¶10      Wisconsin Stat. § 980.08(7)(a) and (b) provide that if a person on supervised release has violated any condition or rule of a supervised release plan, or if DHS believes a person on supervised release poses a threat to the safety of others, DHS may detain the person. Section 980.08(7)(c) expressly provides that detention may be “in a jail or a [mental health] facility described under
s. 980.065.”  Section 980.08(7) thus expressly gives DHS the authority to place a person on supervised release in jail in the event a rules violation occurs.  While Rule 13 does not give DHS the power to detain Thiel in prison solely for a rules violation, it does require Thiel to abide by all rules of the prison should he find himself detained there for other reasons (e.g., pending proceedings involving revocation of extended supervision or parole).

The court also upholds a condition that Thiel submit to polygraph examinations as directed by DHS (Thiel objected on the narrow ground that the exams are to be administered at Sand Ridge, some distance from his home, hence isn’t “least restrictive” within §  980.08(6m)):

¶12      We see no erroneous exercise of discretion on the part of the circuit court.  Wisconsin Stat. § 51.375(2) permits DHS to administer lie detector tests to sex offenders placed in the community.  The use of lie detector tests to treat sex offenders does not violate due process.  Wilson v. Watters, 348 F. Supp. 2d 1031, 1036 (W.D. Wis. 2004).  Wisconsin Admin. Code § DHS 98.31(2)(a) (Feb. 2012) provides that a DHS agent must provide notice to a sex offender before administering a lie detector test.  The notice must include the “[d]ate, time, and location of the scheduled test.”  Sec. DHS 98.31(2)(b).  Where the test will occur is a discretionary decision for DHS to make and for a court to approve.  The reason DHS requested that the lie detector test be given at Sand Ridge instead of a location closer to Thiel’s home is because the State’s polygraph expert is located at Sand Ridge.  As the circuit court’s decision to approve this course of action was a reasoned and reasonable determination, we affirm its discretionary decision.

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