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SVP Commitment: Claim/Issue Preclusion – Prior Dismissal of Petition at Trial for Insufficient Proof

State v. Kenneth Parrish, 2002 WI App 263, PFR filed 11/11/02
For Parrish: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether a 980 petition was barred because a prior petition was dismissed at trial for insufficient proof, but the respondent was subsequently returned to prison on a parole revocation for a violation not involving an act of sexual violence.

¶22. Although Parrish’s preclusion argument presents an issue of first impression in Wisconsin, other jurisdictions have considered the dynamic nature of mental health and the importance of present-time determinations in the contexts of their civil commitment laws. See In re Mental Health L.C.B., 830 P.2d 1299, 1304 (Mont. 1992); Archer v. State, 681 So. 2d 296, 299 (Fla. Dist. Ct. App. 1996); In re Katz, 638 A.2d 684, 687 (D.C. 1994). Recently, the California Court of Appeals explained why the State’s petition for extension of a defendant’s commitment under the Sexually Violent Person Act (SVPA), California’s counterpart to ch. 980, must be based on the defendant’s current condition, with particular concentration on the developments since the last commitment order:

The nature of the [SVPA] envisions a special civil commitment proceeding that is begun and then continues, changes or ends depending upon the current mental condition and dangerousness of the proposed or committed [sexually violent person]…. Although the same requirements or issues are involved in alleging any ’cause’ filed via petition under the Act, the actual facts or circumstances comprising that ’cause’ in a subsequent petition will necessarily be different due to the addition of new facts bearing on those issues based on the sheer passage of time which may support the release or commitment of the proposed [sexually violent person].

Butler v. Superior Court, 93 Cal. Rptr. 2d 468, 474 (Ct. App. 2000) (citations omitted). While the court was not considering whether claim or issue preclusion barred the State’s action, its emphasis on “the current mental condition and dangerousness,” “the addition of new facts,” and “the sheer passage of time” is sound and applicable here. In fact, such emphasis is all the more meaningful where a defendant is released, revoked, and returned to custody during that “sheer passage of time.”¶23. In Parrish’s cases, more than a year passed between the time a trial court determined that the evidence had not established that he was a sexually violent person and the time the State filed the second ch. 980 petition. In the interim, Parrish’s parole was revoked and he was returned to prison. The passage of time, the new circumstances, and the dynamic nature of his mental health and potential dangerousness allowed the State to file a new petition for his commitment. Neither claim preclusion nor issue preclusion barred Parrish’s post-parole-revocation commitment trial.

The trial court wasn’t required to review the record of the first trial in order to resolve issue preclusion, though under “certain circumstances” — namely, those which are certain never to occur in nature outside of laboratory conditions — “a careful court might want to review the first trial’s record.” ¶¶24-26. This issue may not in the nature of things occur with terrible frequency (principally because a favorable initial determination is required), but it undoubtedly will recur. Given the court’s express reliance on California caselaw, it might be worthwhile keeping in mind the subsequently decided Turner v. Superior Court, 105 Cal. App.4th 1046 (2003):

We conclude that although the prior jury determination does not necessarily bar a subsequent SVPA petition after a new custodial term, in the subsequent proceeding the People may not relitigate the finding that the individual was not a sexually violent predator at the time of the prior release. Therefore, to establish probable cause on the subsequent petition, the district attorney must present evidence of changed circumstances affecting this factual determination….

Accordingly, we hold that whereas a prior jury determination that an individual is not an SVP does not necessarily bar a subsequent petition after a release and parole revocation, the jury’s prior determination is relevant and therefore admissible in the later SVPA proceeding. Moreover, under collateral estoppel principles, the district attorney may not relitigate the prior jury finding with respect to the same individual. Accordingly, to establish probable cause in the subsequent proceeding, the district attorney must present evidence of a change of circumstances, i.e., that despite the fact the individual did not possess the requisite dangerousness in the earlier proceeding, the circumstances have materially changed so that he now possesses that characteristic. …

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