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SVP – Pretrial – Petition Filed by DA without Prior DOC Request or DOJ Action

State v. Harris D. Byers, 2003 WI 86, reversing unpublished opinion of court of appeals
For Byers: Jack E. Schairer & Jefren E. Olsen, SPD, Madison Appellate


¶26. A review of the placement of the provisions, together with the legislative history, reflects an intent to create a step-by-step process that must be followed before a district attorney has authority to file a petition. Under this step-by-step process, the initial step is that the agency with jurisdiction evaluates the person to be released to determine whether the person may meet the criteria for commitment as a sexually violent person. If the agency determines that the person may meet the criteria, the agency requests that the DOJ file a petition. The DOJ can then file a petition or coordinate with one of the appropriate district attorneys regarding filing a petition. Alternatively, the DOJ can determine that a filing is not warranted despite the agency request, in which case one of the appropriate district attorneys can then file the petition on his or her own….

¶43. In sum, we conclude that, under § 980.02(1), a request from the agency with jurisdiction and a subsequent decision by the DOJ not to file are prerequisites to a district attorney’s authority to file a Chapter 980 petition. Because those prerequisites were not met in this case, we determine that the petition was not properly filed. Accordingly, we reverse the court of appeals and remand the matter to the circuit court for dismissal of the petition.

Simple enough: ch. 980 doesn’t accommodate a “free radical” actor – the DA can’t work as an “unpaired electron” and simply file a petition on his or her own. Instead, DOC/DOJ perform what the court terms a gatekeeper function:

¶38. We recognize that the step-by-step process elevates the role of the agency with jurisdiction in determining when a Chapter 980 petition can be filed. There are several policy reasons that support having the agency with jurisdiction serve as such a gatekeeper.

¶39. First, the agency with jurisdiction has the person under its supervision, care, and custody. Accordingly, it has the most comprehensive information regarding the person’s status under Chapter 980. Second, not only does the agency with jurisdiction have a significant amount of information regarding the person, but it also has a significant amount of knowledge and expertise with supervising and dealing with the type of offenders that are potentially subject to Chapter 980 petitions.

¶40. Third, the agency with jurisdiction has the most recent contact with the person, whereas the district attorney of the county of conviction will likely have lost personal contact during the years of confinement. The district attorney of the county of intended residence may have had no prior contact with the person. Fourth, a gatekeeper role for the agency with jurisdiction facilitates creating a consistent and coordinated process for filing Chapter 980 petitions.

¶41. Fifth, there is a benefit to having a central screening process to conserve scarce resources because Chapter 980 cases can be complex and can result in significant treatment costs. Sixth, the use of the independent expertise of the agency with jurisdiction can be a tool for ensuring that the decision to file a Chapter 980 petition is insulated from local pressures.


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