Lead Opinion
Steven J. Burgess was involuntarily committed to a Wisconsin state mental health facility after a jury found that he was a sexually violent person as defined in Wisconsin’s Sexually Violent Person Commitment Statutes, Wis. Stat. § 980 et seq. (chapter 980). Both the Wisconsin Court of Appeals and the Supreme Court of Wisconsin affirmed the judgment ordering his commitment. After exhausting his state court remedies, he filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Wisconsin, and the district court denied relief. Burgess now appeals to this court.
What distinguishes this case from the many habeas corpus petitions this court entertains each term is that it involves one additional sovereign—Burgess is a member of a federally recognized Indian tribe. He argues that as a legal resident of an Indian reservation, the State of Wisconsin lacked jurisdiction to commit him involuntarily as a sexually violent person. He relies on Public Law 280, 67 Stat. 588 (1953), codified in part at 18 U.S.C. § 1162, 28 U.S.C. § 1360, under which Congress expressly granted Wisconsin criminal and limited civil jurisdiction over matters involving Indians. We conclude that the Supreme Court of Wisconsin’s ultimate resolution of Burgess’s jurisdictional claim was not contrary to or an unreasonable application of clearly established law as articulated by the Supreme Court of the United States, and we thus affirm the district court’s denial of the petition.
I
Burgess is an enrolled member of the Lac du Flambeau Band of Lake Superior Chippewa Indians (Lac du Flambeau), a federally-recognized Indian tribe. For most of his life, Burgess has lived on the Lac du Flambeau Reservation in Vilas County, Wisconsin; he is a legal resident of his tribal reservation land.
In February of 1995, Burgess was convicted of attempted second-degree sexual assault of a child (a crime that he committed on his reservation) in the Circuit Court for Vilas County, Wisconsin, He was subsequently incarcerated at the Oshkosh Correctional Institution, a prison facility of the State of Wisconsin. There is no question that the Wisconsin Circuit Court had jurisdiction, conferred by § 2 of Public Law 280, to try Burgess for this crime. See State v. Webster,
On November 17, 1998, the clay that Burgess was scheduled to be released from prison, the State of Wisconsin filed a petition seeking his commitment as a chapter 980 “sexually violent person.” At that lime, chapter 980 defined “sexually violent person” as:
a person who has been convicted of a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect, or illness, and who is dangerous because he or she suffers a mental disorder that makes it substantially probable that theperson will engage in acts of sexual violence.
Wis. Stat. § 980.01(7) (amended 2006). (The statute has recently been amended; the last clause now reads “that the person will engage in one or more acts of sexual violence.” Wis. Stat. § 980.01(7) (2006) (emphasis added).) Once a court or jury has determined after proper proceedings that the individual is a sexually violent person, “the court shall order the person to be committed to the custody of the [Department [of Health and Family Services] for control, care and treatment until ... the person is no longer a sexually violent person.” Wis. Stat. § 980.06.
The statute also spells out the requirements for the commitment procedures. The process begins with a probable cause hearing, to determine whether “there is probable cause to believe that the person named in the petition is a sexually violent person.” Id. § 980.04(2). At the time the state filed its chapter 980 petition in Burgess’s case, the statute provided that “[i]f the court determines after a hearing that there is probable cause to believe that the person named in the petition is a sexually violent person, the court shall order that the person be taken into custody if he or she is not in custody and shall order the person to be transferred within a reasonable time to an appropriate facility for an evaluation as to whether the person is a sexually violent person.” Id. § 980.04(3) (amended 2006). On November 19, 1998, the circuit court found probable cause that Burgess was a sexually violent person and ordered him transferred to a state mental health institution for evaluation.
Burgess requested a jury for the commitment proceeding. See id. § ; 980.05(2). At the hearing, the state bore the burden of proving beyond a reasonable doubt that he is a sexually violent person. Id. § 980.05(3)(a). At the time Burgess’s petition was pending before the circuit court, the statute also afforded him “all constitutional rights available to a defendant in a criminal proceeding,” id. § 980.05(lm). That provision has since been repealed, but we have no occasion to consider any implications of the change, as it has no effect on Burgess.
Prior to his hearing, Burgess filed a host of motions. Most relevant to this appeal, he moved to dismiss the state’s petition on the ground that the circuit court lacked jurisdiction to conduct involuntary civil commitment proceedings against enrolled tribal members. His position, essentially, was that a chapter 980 proceeding falls into the cracks between the jurisdiction conferred by the criminal and civil provisions of Public Law 280. He acknowledged that the federal statute grants Wisconsin broad criminal jurisdiction over offenses committed by Indians both within the state and on their reservation land, but he argued that this was not a criminal proceeding. The grant of civil jurisdiction in § 4 of Public Law 280, codified at 28 U.S.C. § 1360(a), is limited to private, civil litigation involving tribal members in state court and does not give the state general civil regulatory authority over reservation Indians; Burgess’s position was that the involuntary commitment process more resembled a regulatory action than a suit in tort or contract.
After receiving Burgess’s motion, the circuit court wrote a letter to the Lac du Flambeau tribal court asking whether it could handle Burgess’s commitment proceeding. That court declined jurisdiction, indicating that it was not in a position to hear Burgess’s case because the tribe at that time had no laws or ordinances calling for the indefinite commitment of sexually violent persons. As a result, the circuit court denied Burgess’s motion based on its understanding that the state was allowed
At the hearing, both sides presented expert testimony about Burgess’s mental condition and the likelihood of recidivism. The jury found Burgess to be a sexually violent person. On August 10, 2000, the circuit court entered a judgment indefinitely committing Burgess to the Wisconsin Department of Health and Family Services. Burgess filed a number of post-judgment motions, including a motion for a new trial or relief from judgment based in part on his jurisdictional objection, but the circuit court denied these motions.
Burgess appealed. Among the issues he raised before the Wisconsin Court of Appeals was his argument that the state court lacked jurisdiction to conduct chapter 980 proceedings against enrolled tribal members, particularly where the underlying offense was committed on reservation land. The court of appeals affirmed. It agreed with Burgess that chapter 980 was not a criminal or punitive law, and therefore that the circuit court did not have criminal jurisdiction over Burgess’s case. In re the Commitment of Steven J. Burgess,
Burgess then turned to the state supreme court, which affirmed the judgment of the court of appeals on different grounds. The supreme court reasoned that the circuit court had jurisdiction to conduct Burgess’s chapter 980 proceedings under Public Law 280’s broad grant of criminal jurisdiction because the underlying conduct at issue, sexually violent behavior, was prohibited by state criminal law. The supreme court also concluded that Burgess’s commitment proceeding was somehow ancillary to the circuit court’s general criminal jurisdiction over tribal members because the “civil proceedings under chapter 980 are enveloped on both sides by criminal conduct.” In re the Commitment of Steven J. Burgess,.
Burgess then filed this petition for a writ of habeas corpus. See 28 U.S.C. § 2254. The district court adopted a magistrate judge’s recommendation to deny Burgess’s petition on February 14, 2005. Although the distinct court believed that Burgess had presented a strong argument that the Supreme Court of Wisconsin erred in determining that the state had jurisdiction to commit him under chapter 980, it held that the state court’s ruling was nonetheless not contrary to or an unreasonable application of clearly established precedent from the Supreme Court of the United States. The district court further opined that in cases such as this, where reasonable jurists can debate whether a particular state court ruling is contrary to federal law, it is up to the
II
On appeal, Burgess makes a number of powerful arguments concerning general principles of tribal sovereignty and the extent of Congress’s grant of jurisdiction to the states over the affairs of reservation Indians. As interesting as the merits of Burgess’s jurisdictional arguments are, because he filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA), 28 U.S.C. § 2254, its standard of review governs this case. See Gomez v. Berge,
Under AEDPA, a state court’s decision is “contrary to” clearly established federal law “when the court reaehe[s] a conclusion ‘opposite to that reached by [the Supreme] Court on a question of law’ or confront[s] ‘faets that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result, different from [its] precedent.’ ” Laxton v, Bartow,
Within AEDPA’s framework, we review the district court’s decision to deny Burgess’s habeas petition de novo. See Horton v. Litscker,
Ill
As a general matter, Indian tribes “retain attributes of sovereignty over both their members and their territory”; “tribal sovereignty is dependent on, and subordinate to, only the Federal government, not the States.” California v. Cabazon Band of Mission Indians,
Section 4 of Public Law 280 addresses civil cases, conferring upon the listed states “jurisdiction over civil causes of action between Indians or to which Indians are parties ... to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within Indian country as they have elsewhere within the State.” 28 U.S.C. § 1360(a). The Act’s grant of civil jurisdiction, however, is more restricted than its grant of criminal jurisdiction. Cabazon,
The Supreme Court has also emphasized that Public Law 280 "plainly was not intended to effect total assimilation of Indian tribes into mainstream American society,” recognizing that “a grant to States of general civil regulatory power over Indian reservations would result in the destruction of tribal institutions and values.” Cabazon,
IV
Although the Supreme Court of Wisconsin correctly identified Bryan and Cabazon as the governing Supreme Court precedents, more than a correct citation is needed to avoid a decision “contrary to” clearly established federal law. As we noted earlier, a state court decision is “contrary to” a decision of the Supreme Court of the United States if, on materially indistinguishable facts, it comes out the opposite way. AEDPA in effect draws a line between decisions that are flatly inconsistent with earlier precedents of the Supreme Court, and decisions that, while not inconsistent in this literal sense, unreasonably apply the Court’s decisions. In the present case, it makes little difference in the end whether we analyze the state court’s decision under the “contrary to” part of AEDPA or under the “unreasonable application” part. One way or the other, the question at the end of the day is whether a writ of habeas corpus may issue. We therefore discuss the Supreme Court of Wisconsin’s application of federal precedents with both parts of AEDPA in mind.
The first task is to see whether chapter 980 of the Wisconsin statutes should be classified as criminal or civil. The Wisconsin court held that chapter 980 is more criminal than civil for purposes of Public Law 280 because the underlying conduct addressed by chapter 980, sexually violent behavior, is contrary to Wisconsin’s public policy; it is not conduct that the state generally permits subject to regulation. The state supreme court further reasoned that chapter 980 is more accurately characterized as criminal because “only individuals who have been convicted of certain crimes—‘sexually violent offenses,’ may be committed pursuant to chapter 980” and “the primary purpose of chapter 980 is to protect the public from future acts of sexual violence.” In re Burgess,
Rather than confronting this rationale directly, Burgess devotes the bulk of his opening brief in this court to a discussion of the decisions of the Supreme Court of Wisconsin in County of Vilas v. Chapman,
The problem with Burgess’s argument is that it does not address the basis on which the state court ultimately ruled. Rather than relying on Chairman or Webster, the state supreme court held that Congress, through Public Law 280, explicitly granted the state jurisdiction over Burgess’s commitment proceeding. Under the circumstances, neither Chapman nor Webster is before us, and we have no occasion to decide whether one or the other runs afoul of applicable Supreme Court precedent. Because the Supreme Court of Wisconsin relied on Cabazon, it is with that decision that we begin our analysis.
Cabazon is more helpful for distinguishing between civil and criminal cases for purposes of Public Law 280 than it is for drawing the line between civil cases that the state may entertain and those it may not. The characterization of a state law as “criminal” or “civil” for purposes of the federal jurisdictional statute is a question of federal law: the question is which state proceedings, however labeled, did Congress mean to permit the states to conduct with respect to their Native American populations. Cf. Taylor v. United States,
With respect, we cannot agree with the Supreme Court of Wisconsin that chapter 980 qualifies as a “criminal” statute. If it is, indeed, a criminal statute, serious consequences would follow in other areas of the law. A person like Burgess who already has been convicted and punished for certain behavior would be able to plead double jeopardy, for example. Criminal procedure rules of constitutional dimension would have to be respected during the proceeding. But the Supreme Court of the United States has squarely rejected this characterization for a law materially identical to Wisconsin’s, in Kansas v. Hendricks,
Other decisions, including some from Wisconsin itself, have also rejected the argument that statutes like chapter 980 create criminal offenses. See, e,g., Seling v. Young, 531 U.S. 250,
The state court noted that chapter 980 is actually aimed at prohibiting “conduct” that violates Wisconsin’s public policy. That alone, however, cannot be enough; exactly the same thing could have been said about the Kansas statute at issue in Hendricks. Without question, the past commission of a sexual assault is “conduct” that offends state public policy and for which there are criminal penalties. See Wis. St. §§ 940.225, 948.02. Chapter 980, however, has been described by the Supreme Court of Wisconsin as a future-oriented statute that is “primarily intended to protect the public and to provide concentrated treatment to convicted sexually violent persons.” Carpenter,
We are also unpersuaded by the proposition that a law like chapter 980 should be regarded as criminal for purposes of Public Law 280 because, as the Wisconsin Supreme Court put it, it is “enveloped on both sides” by criminal conduct. In re Burgess,
In the final analysis, if this case turned solely on the question whether clearly established federal law would permit a characterization of chapter 980 as criminal, we would need to reverse. It does not, however. Public Law 280 also permits the designated states to exercise certain forms of civil jurisdiction over Indians. The Supreme Court of Wisconsin squarely addressed this alternate ground and held that “even if chapter 980 is strictly construed as a ‘civil’ law in its entirety, it is civil/adjudicatory rather than civil/regulatory, and therefore falls within PL-280’s grant of civil jurisdiction to the State.” In re Burgess,
V
In upholding the state’s power to treat Burgess’s case under the civil jurisdiction permitted by federal law, the state supreme court relied on the Supreme Court’s decision in Bryan. In that case, the Court considered whether § 4 of Public Law 280 gave states the power to tax reservation Indians under specified conditions. In concluding that the state lacked this power, the Court reasoned that § 4 was primarily intended “to redress the lack of adequate Indian forums for resolving private legal disputes between reservation Indians, and between Indians and other private citizens,” not to “confer general state civil regulatory authority over reservation Indians.” Bryan,
Although it is clear that a state does not have the power to tax reservations under Public Law 280’s limited grant of civil jurisdiction, the Supreme Court has not had much to say about how to determine whether a law seeks to adjudicate private rights, and thus falls within the bounds of § 4 of Public Law 280, or is a regulatory scheme. This court has questioned whether a state would have jurisdiction involuntarily to commit an enrolled tribal member, but we did not need to deeide the issue. See United States v. Teller,
In United States v. Teller, we recognized that the question whether a reservation Indian could be subject to involuntary civil commitment was “an open question of some difficulty.”
Burgess’s view, however, is not the only reasonable interpretation. Indeed, at least one other court has rejected the argument that civil actions to which the state is a party automatically fall outside Public Law 280’s limited grant of civil authority. See Doe v. Mann,
VI
The Wisconsin Supreme Court’s determination that Public Law 280 conferred jurisdiction on the State of Wisconsin to commit Burgess under applicable state law was not contrary to or an unreasonable application of clearly established federal law. We therefore AFFIRM the district court’s judgment denying Burgess’s petition for a writ of habeas corpus.
Concurrence Opinion
concurring in the judgment.
In my view, the Supreme Court of Wisconsin reached a reasonable result when it determined that, for purposes of section 2 of Public Law 280, 67 Stat. 588 (1953), the commitment procedure under the Wisconsin Sexually Violent Persons Commitment Statutes, Wis. Stat. § 980 et seq. (chapter 980), is criminal in nature.