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State v. Thornon F. Talley, 2013AP950, petition granted 6/15/2016

Review of an unpublished summary court of appeals order; case activity (including briefs)

Issues (from petition for review):

1. Was the Petitioner entitled to an evidentiary hearing on his petition for discharge from Chapter 980 commitment which included information that the Petitioner had terminated sexual acting out and where a psychologist reported improvement in an important area of functioning?

2. Should this case be remanded to the circuit court for a review that meets the requirements of § 980.09(2), namely, that the circuit court review all previous evaluations of a Chapter 980 Respondent?

A person committed under Wis. Stat. ch. 980 can petition for discharge at any time. But in order to get a trial as to whether his detention should be continued, his petition or the record must contain (under the old version of the statute at issue here) “facts from which a court or jury could conclude the person does not meet criteria for commitment.” Wis. Stat. § 980.09(2) (2011-12). Though the statute contains no further limitations on what sorts of “facts” must be presented, the appellate courts have created an additional rule: they must be facts that are new since the petitioner’s last trial (whether original commitment or previous discharge trial). The courts have identified two categories of changes that may constitute these new facts: “a change in the person himself [or] a change in the professional knowledge and research used to evaluate a person’s mental disorder or dangerousness.” State v. Ermers, 2011 WI App 113, ¶1, 336 Wis. 2d 451, 802 N.W.2d 540.

Talley submits that he is entitled to a discharge trial based on two changes in himself: that, within the past year (unlike in previous years) he had no incidents of sexual acting out; and that a psychologist reported “recent progress” in social and emotional functioning. The court of appeals rejected these changes as not “significant,” without explaining (1) why they are not significant or (2) where, in the statute, it finds the requirement that a petitioner show “significant changes” (hint: it’s not in there). Hence the first issue for the supreme court, in Talley’s words:

A petitioner’s expert’s opinion may be insufficient to entitle the petitioner to a discharge hearing if the expert’s opinion was not based on any changes in the petitioner’s behavior since the initial commitment hearing, but if there are any changes, is it really appropriate to deny a detainee a full release hearing?

As to the second issue, while Talley was litigating this petition in the circuit court, he was simultaneously appealing the denial of a previous petition. As a result, some of the documents that § 980.09(2) directs the circuit court to examine when considering a discharge petition–notably, prior expert reports–were not in the circuit court file, but were instead at the court of appeals. In State v. Arends, 2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 51, the court stated that

The most reasonable reading of this statute is that the court must review all the items enumerated in § 980.09(2) that are in the record at the time of review. The circuit court need not, therefore, seek out evidence not currently before it. It may, however, order the production of any of the 14 enumerated items not in the record, but is not required to do so.

Again per the petition:

This seems to say that if the record is in the appellate courts, circuit courts are excused from compliance with Wis. Stat. § 980.09(2). How far is the Court willing to go with this? Suppose the only available records are the petition for discharge itself? Does that suffice? When must or should a circuit court request a part of a record on appeal? Do Dane County judges have a special responsibility because the appellate record is located three blocks away from the Dane County Courthouse? This is an important question, because so many Chapter 980 proceedings originate in Dane County. See § 980.02(5) (department of justice may file commitment petition in Dane County regardless of detainee’s residence, place offense committed or place of detention).

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