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SVP – Post-Disposition – Discharge Petition – Probable Cause Hearing, § 980.09(2)

State v. Christopher L. Combs, 2006 WI App 137, PFR filed, 7/20/06
For Combs: Steven D. Phillips, SPD, Madison Appellate

Issue: Whether, on a petition for discharge of an SVP commitment, § 980.09(2)(b), the trial court can refuse to hold a hearing where, although the court-appointed expert concludes that the person was not sufficiently predisposed to sexual violence to meet the definition of a sexually violent person, the conclusion essentially reassesses information relied on by the experts who testified at the original commitment without any new professional research or knowledge.


¶18      Combs contends on appeal that Dr. Fields’ report establishes probable cause to believe that he is not still a sexually violent person and the circuit court erred in deciding it did not. [12] Combs acknowledges that Dr. Fields based her opinion on the same actuarial instruments that were used by the experts who testified at the commitment trial, but, he asserts, she interpreted and scored them differently than did those experts. According to Combs, the phrases “still a sexually violent person” in Wis. Stat. § 980.09(2)(a) and “no longer a sexually violent person” in § 980.09(2)(b) encompass a person who is not now sexually violent because of a different interpretation and scoring of the same actuarial instruments used by experts at the commitment trial.…

¶24      Combs argues that Pocan supports his position. He asserts that, because the focus of the statute is on whether the petitioner is presently a sexually violent person, it does not matter whether that is so because the petitioner’s condition has changed or because he never was sexually violent. …

¶27      … The precise issue presented by these facts is whether an expert’s conclusion that a person is not sexually violent, based on actuarial instruments that were used previously by other experts to evaluate the petitioner, when there is no change in the historical facts to which those instruments are applied and no change in the research or writings on how professionals are to interpret and score those instruments, establishes probable cause that a person is no longer sexually violent. Pocan did not address this issue, and we turn to it now.

¶32      We conclude the legislature did not intend that probable cause under Wis. Stat. § 980.09(2) may be established by an expert’s opinion that a person is not sexually violent without regard to whether that opinion is based on matters that were already considered by experts testifying at the commitment trial or a prior evidentiary hearing. Rather, we conclude that the legislature intended that, in order to provide a basis for probable cause to believe a person is no longer sexually violent under § 980.09(2), an expert’s opinion must depend upon something more than facts, professional knowledge, or research that was considered by an expert testifying in a prior proceeding that determined the person to be sexually violent. [17] By way of example, an opinion that a person is not sexually violent based at least in part on facts about the committed person that did not occur until after the prior adjudication would meet this standard, as would an opinion based at least in part on new professional knowledge about how to predict dangerousness. These examples are not exhaustive.

[17]  We need not address what the result would be if Dr. Fields’ opinion depended on facts or professional knowledge or research in existence at the time Combs was previously determined to be sexually violent, but which were not considered by an expert testifying at that time. Whether the legislature intended Wis. Stat. § 980.02 as a vehicle to litigate issues that could have been, but were not, litigated during the prior proceeding is an issue that is not before us.


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