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SVP – Post-Disposition – Petition for Discharge Procedure, § 980.09(2)(a) (2006) – Timely Probable Cause Hearing, Due Process

 State v. Deryl B. Beyer, 2006 WI 2, on certification; prior history: 2001 WI App 167, cert. denied, Beyer v. Wisconsin, 537 U.S. 1210 (2003)
For Beyer: Donald T. Lang, SPD, Madison Appellate

Issue1: Whether due process was violated by delay of over 22 months between the time the first annual periodic examination report was provided to the circuit court under § 980.07 and the circuit court’s probable cause hearing under § 980.09(2)(a).


¶26      In light of the fundamental nature of a ch. 980 committee’s liberty interest and the State’s interest in holding a ch. 980 committee only for so long as he or she requires treatment, the due process requirement that the ch. 980 committee be heard at a “meaningful time” demands that the circuit court hold the probable cause hearing promptly and within a reasonable time after the  DHFS provides the circuit court with a ch. 980 committee’s annual periodic examination report and unsigned waiver form.…

¶33     We agree with the State that the circuit court and the DHFS were not responsible for the entire 22-month delay. …

¶34      However, when we review the facts, it is clear that at a minimum the State was responsible for almost nine months of delay, and likely was responsible for at least 13 months of delay. …

¶46     To summarize:  No reason appears on the record to justify the delay in the circuit court’s appointment of counsel.  The circuit court was responsible for a delay that meant the probable cause hearing could not have been held until nine to 13 months after the DHFS provided the circuit court with Beyer’s first annual periodic examination report. …

¶47      Regardless of whether the 13 months of delay were caused by the DHFS, the circuit court, the circuit court judge’s assistant, the attorney general’s office, Beyer’s attorney, or some combination of them, the delay was unreasonably long because it deprived Beyer of his due process right to be heard at a meaningful time.

Issue/Holding2: Remedy for violation of right to timely probable cause hearing on discharge petition is not discharge from commitment, ¶53. Nonetheless, “the institutional bodies of the State responsible for enforcement of ch. 980—the DHFS, the Department of Justice, and the circuit courts—should ensure prompt annual judicial review of ch. 980 committees’ continued detention, ¶56.” The SPD must promptly appoint counsel, who must exercise diligent representation, ¶60. These entities, together, “must bear substantial responsibility for ensuring prompt judicial review of the annual periodic examination reports,” ¶65. Thus, “(t)he onus is on the DHFS, the Department of Justice, the bar, and the circuit courts to act promptly on an annual periodic examination report and unsigned waiver form,” ¶62. But the costs of discharging a presumptively dangerous and untreated SVP are too high to support outright discharge for violation of this right. Rather, the remedies are similar to those enunciated in the lead opinion in State ex rel. William E. Marberry v. Macht, 2003 WI 79 (re: failure to provide timely periodic reexamination—writ of mandamus or supervisory writ to compel circuit court to take immediate action), ¶54.

¶64      … The appropriate remedy for a ch. 980 committee when a circuit court fails to take prompt action to appoint counsel or an independent examiner and hold a probable cause hearing under Wis. Stat. § 980.09(2) is to move for a writ of mandamus or a supervisory writ to compel the circuit court to take immediate action.  If counsel or an independent examiner delays the proceedings, a ch. 980 committee could move the circuit court for just and equitable relief such as an order to show cause why counsel or the independent examiner should not be discharged or why the independent examiner should not be ordered to conduct the examination promptly or provide the examination report to the circuit court immediately.

The court “recommend(s) appropriate precautionary measures to ensure that the due process violations that occurred in the present case do not occur in the future,” ¶65, but beyond exhorting everyone to do more and do better, the court offers little by way of concrete measures: DHFS should diligently adhere to statutory mandates, ¶58; the SPD must make prompt appointment, and appointed counsel must perform diligently, ¶60; circuit courts must institute “case management techniques” to ensure proper oversight, ¶59; the AG’s “Paulick letter” (nothing more, really, than a reminder to the circuit court of its duty to actually conduct probable cause review) is heartily endorsed, ¶61. In Marberry, the court had split, 3-3, on the question of remedy for a similar violation. There’s now a majority on that issue and though the context is not identical it’s close enough so that the remedy here will probably be held to apply in that situation too.A note on the line-up of Justices: 4-vote majority; 2-vote concurrence; recused, Justice Prosser. The concurrence agrees that Beyer didn’t have a timely hearing, and further agrees on the remedy, ¶68. But the concurrence goes on to complain, oddly, that “Beyer has not made a sufficient showing of state action that prejudiced him at the probable cause hearing,” id. The ensuing analysis is eccentric: it would require, for denial of speedy hearing, intentional delay by the State; the only authority for this novel proposition is the inapposite rule that it violates due process when the State intentionally delays filing a delinquency petition in order to later file an adult complaint, ¶77. The defect in this analogy simply isn’t worth discussing, except to say that intentional delay is not part of the majority’s calculus for determining denial of timely hearing.

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