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The newly-adopted Daubert standard does not apply to ch. 980 discharge proceedings if the original petition for commitment was filed before the effective date of the standard’s adoption

State v. Michael Alger, 2013 WI App 148, petition for review granted, 5/23/14, affirmed, 2015 WI 3; case activity

In this important decision addressing an issue that’s been percolating in ch. 980 cases, the court of appeals holds that the Daubert standard for expert testimony does not apply to any proceedings in a ch. 980 case if the original petition for commitment was filed before February 1, 2011, the effective date of the adoption of the Daubert standard.

In early 2011, the legislature enacted 2011 Wisconsin Act 2, which amended Wisconsin’s expert witness statute to adopt the standard for the admissibility of expert testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Before Act 2, testimony of a witness “qualified as an expert by knowledge, skill, experience, training, or education” was admissible if “scientific, technical, or other specialized knowledge” would “assist the trier of fact to understand the evidence or to determine a fact in issue[.]” Wis. Stat. § 907.02 (2009-10). Under the statute as revised by Act 2, the circuit court must also conclude that the expert’s testimony “is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.” Wis. Stat. § 907.02(1). Under the initial applicability provisions of Act 2, the new reliability standard first applies “to actions or special proceedings that are commenced on the effective date of this subsection”—that is, February 1, 2011.

Alger was committed after the state filed a ch. 980 petition against him in 2004. (¶2). Since his original commitment he has filed petitions for discharge, including one in April 2011 and another in November 2011, which the circuit court set for a merged trial. (¶¶2, 4, 6). Before trial he sought to exclude certain testimony from the state’s experts about his reoffense risk on the ground the testimony did not satisfy the newly-adopted Daubert standard for reliability. (¶¶4, 6). He argued the new standard applied because his 2011 discharge petitions “commenced” a new “action.” Alternatively, he argued, it violates equal protection to apply the new standard to ch. 980 cases filed after February 1, 2011, but not to his case. (¶¶5-6). The court of appeals agrees with the trial court that the Daubert standard doesn’t apply to Alger.

First, the court of appeals holds that Alger’s discharge petition does not “commence” a new “action”:

 ¶12       The dictionary definition of “action” applicable in this context is “a legal process; a lawsuit[.]” New Oxford American Dictionary 15 (2001); see also State v. Mattes, 175 Wis. 2d 572, 578, 499 N.W.2d 711 (Ct. App. 1993) (“A common and approved meaning for a word … may be ascertained by reference to a recognized dictionary.”). The applicable definition of “commence” is “begin; start[.]” New Oxford American Dictionary 343 (2001). Accordingly, Wis. Stat. § 907.02(1) first applies to legal processes or lawsuits begun or started on February 1, 2011. Alger’s discharge petitions do not meet this definition. The structure and language of Wis. Stat. ch. 980 demonstrate that discharge petitions are part of the committing court’s continuing administrative authority over the existing lawsuit that began when the original commitment petition was filed. Filing a discharge petition is merely another step in that existing lawsuit—it does not begin a new lawsuit or legal process.

To unpack the phrase “continuing administrative authority over [an] existing lawsuit” is to find it wanting. First, as to “continuing administrative authority,” the court cites accurately enough to the “multiple sections” of ch. 980 that provide for a potential role for the court in the regular review of a commitment order after it’s been entered (¶¶13-17); but it misses the most salient facts about those provisions. First, it is DHS, not the court, that executes the commitment order, § 980.06, so it is DHS that does the annual re-examination and progress treatment reports. Second, DHS prepares and files those reports not because the court, in the exercise of its “continuing authority,” directs it to, but because the statute requires it, § 980.07(1), (4), and (6). Third, to get actual review of the reports by the court, the committed person must take some affirmative step–e.g., make a request for appointment of counsel or an independent examiner or both, §§ 980.031(3), 980.07(1), 980.075(1) and (5), 980.08(2); or file a petition for discharge or supervised release, §§ 980.075(2)(a), 980.08(1), 980.09. (The committed person must even take affirmative steps under § 980.101, another statute cited by the court (¶18), which allows a person whose sexually violent conviction has been overturned to move to the court to vacate a commitment order based on the conviction.)

In short, the committing court is not required to read the required annual reports, much less take any action on them, and they will sit moldering in the court file till Kingdom come unless and until the committed person triggers the court to act. Indeed, § 980.075(2)(b) says that if the person does not file a timely petition for discharge or supervised release after the filing of the annual reports, the commitment “remains in effect without review by the court.” The single exception to the need for action by the committed person is a provision allowing a court to order reexamination of the person at any time, § 980.07(3) and (6m). If a court has ever ordered such reexamination sua sponte it would be news to On Point, so that single provision pales in comparison to the overarching structure of all the other post-commitment review provisions, which establishes that if the committed person takes no action there is no review at all by the court, much less any “continuing administrative authority.”

As for the discharge proceeding being “a continuation of the existing lawsuit” (¶19), that conclusion cannot be reconciled with the fact that the original commitment order is a final, appealable order, § 980.038(4). To be a final, appealable order, the original commitment must dispose of all matters in litigation, § 808.03(1). That in turn means the “lawsuit” is over and doesn’t “continue to exist.” (Indeed, Alger had a direct appeal from his 2005 commitment order, which was summarily affirmed. If his discharge petitions are “a continuation of an existing lawsuit,” one must wonder whether the court of appeals had  jurisdiction to hear the appeal of what must have been a non-final commitment order.) The court’s decision doesn’t acknowledge or address this inconsistency. Nor does it address the case law holding that because of the dynamic nature of both a person’s mental health and his or her need for commitment, the focus of a ch. 980 proceeding is always the current mental condition of the person. State v. Parrish, 2002 WI App 263, ¶¶20-21, 258 Wis. 2d 521, 654 N.W.2d 273. That is why a committed person seeking discharge must point to new facts or research not previously considered in order to get an evidentiary hearing. State v. Combs, 2006 WI App 137, ¶32 295 Wis. 2d 457, 720 N.W.2d 684; State v. Kruse, 2006 WI App 179, ¶35, 296 Wis. 2d 130, 722 N.W.2d 742. The “singular significance of the present-time focus” (as Parrish puts it) of any particular ch. 980 commitment proceeding contradicts the notion that post-commitment proceedings are “a continuation of an existing lawsuit.”

Second, the court concludes the application of one standard for expert testimony in older cases and a more stringent standard in newer cases doesn’t violate equal protection:

 ¶27       The legislature’s decision to make Wis. Stat. § 902.07(1) applicable only to actions commenced on or after February 1, 2011, survives rational basis review. As Alger acknowledges, short of making § 902.07(1) fully retroactive, the legislature “had to choose some date for the enactment to take effect.” Alger further concedes:

It was arguably rational for the legislature to have chosen not to make the revision applicable to actions that were pending on the legislation’s effective date. The legislature could well have concluded that “midstream” changes to the procedures and standards for admitting expert testimony could wreak havoc on pending litigation. Cases which were on appeal, or in which trials were already underway, could have already had testimony admitted under the more lenient version of the statute. Litigants in cases that had not yet gone to trial might have nonetheless retained and prepared experts and developed their trial strategies based on the pre-Daubert standard. Thus, the state arguably had a legitimate interest in preventing the revised statute from applying to pending cases.

This concession is fatal to Alger’s equal protection argument because we have already determined that Alger’s case was pending on the new statute’s effective date. We therefore reject Alger’s claim that the statute violates his right to equal protection.

This is an unfair statement of Alger’s argument, which–in passages the court leaves out–clearly states that the concerns that justify distinguishing between new cases and pending cases “are not present here” and that no legitimate state interest is served by the disparate treatment of someone subject to original ch. 980 proceedings initiated by the state on a date after adoption of the Daubert standard and discharge proceedings initiated on the very same date by a previously committed person who files a petition under § 980.09. After all, as set out at length above, until Alger (or someone like him) files a discharge petition, there’s nothing pending in the case, so there’s no need to worry about how a change in the standard affects the litigants’ preparation; as Alger’s brief-in-chief (at 19) puts it, “[t]he experts and litigants would already be employing that standard in cases where the petition for commitment was filed after the statute’s effective date.” But as we’ve already seen, the court of appeals treats ch. 980 proceedings as “pending” in perpetuity, so this argument can gain no traction. Perhaps a higher court will have a different view.

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