State v. Hager (In Re Commitment of Hager), 911 N.W.2d 17

Background

Two consolidated Chapter 980 discharge petitions: Hager and Carter, both civilly committed as sexually violent persons; both petitions were denied at circuit court and appealed.
In Hager, petitioner attached a report using newer actuarial tools (Static-99R, MATS-1); circuit court denied and court of appeals reversed, ordering a discharge trial under its reading of Wis. Stat. § 980.09(2).
In Carter, petitioner filed his petition just before 2013 Act 84; his counsel did not contest retroactive application of Act 84; circuit court denied and court of appeals affirmed.
Central statutory text: Wis. Stat. § 980.09(2) (as amended by 2013 Act 84) instructs the court to determine whether the record shows the person’s condition has "sufficiently changed such that a court or jury would likely conclude" the person no longer meets commitment criteria, and permits the court to "consider the record."
Key legal questions: (1) whether § 980.09(2) limits courts to considering only evidence favorable to petitioner or instead permits consideration of the whole record; (2) whether courts may weigh evidence at the production stage; (3) whether § 980.09(2) is facially unconstitutional under due process; (4) whether Act 84 applies retroactively to Carter and whether counsel was ineffective for not challenging that.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope of record court may consider under § 980.09(2)	Hager/Carter: court may consider only portions of record favorable to discharge	State: court may consider the record broadly, including adverse material	Court: § 980.09(2) permits consideration of the entire record (favorable and unfavorable) when deciding whether petitioner met burden of production
Whether circuit courts may weigh evidence at production stage	Hager/Carter: courts must not weigh; court of appeals read statute to limit to favorable facts only	State: Act 84 does not require weighing; argued either way below but conceded no weighing at SCOTW level	Court: courts may carefully examine but must not weigh evidence; weighing would shift burden of persuasion and raise due process concerns
Facial due process challenge to § 980.09(2) (burden shift)	Carter: Act 84 shifts burden of persuasion to petitioner, risking unconstitutional preventive detention	State: only rational-basis scrutiny; procedural rule regulating production burden is permissible	Court: applies rational basis; § 980.09(2) is procedural and does not violate substantive or procedural due process because it imposes only a burden of production, not persuasion, and is rationally related to public safety and resource interests
Retroactivity of Act 84 and ineffective assistance claim	Carter: Act 84 should not apply to petition filed before publication; counsel ineffective for not contesting retroactivity	State: Act 84 is procedural and applies retroactively; counsel’s failure not deficient	Court: Act 84 is procedural, contains no anti-retroactivity language, none of the retroactivity exceptions apply; Act 84 applies retroactively; counsel not ineffective for failing to raise a meritless challenge

Key Cases Cited

State v. Arends, 325 Wis. 2d 1 (construed § 980.09(2) pre-Act 84; courts may consider record but may not weigh at production stage)
State v. Combs, 295 Wis. 2d 457 (court of appeals rule: petitioner must present "something more" than previously considered facts; new research or facts can support a discharge trial)
Addington v. Texas, 441 U.S. 418 (substantive due process requires State bear burden of persuasion at commitment/discharge trial)
Foucha v. Louisiana, 504 U.S. 71 (principle that liberty restraint must be linked to dangerousness)
Trinity Petroleum, Inc. v. Scott Oil Co., 302 Wis. 2d 299 (tests for retroactivity: examine statute text; procedural vs. substantive; exceptions to retroactivity)
State ex rel. Marberry v. Macht, 262 Wis. 2d 720 (public protection is a legitimate interest supporting Chapter 980 procedures)