*1 of Daniel In re the Commitment Arends: Wisconsin, State Petitioner-Respondent-Petitioner,
v. Respondent-Appellant. Daniel Arends, Supreme Court September argument Oral No. 2008AP52. 15, 2010. June Decided 2010 WI 513.) (Also N.W.2d reported *2 For the petitioner-respondent-petitioner the cause was argued Christine A. Remington, assistant attor- ney general, with whom on the briefs was J.B. Van Hollen, general. attorney
For the there respondent-appellant was a brief by Leonard D. and & Kachinsky Sisson Kachinsky Law Offices, and oral Appleton, argument by D. Leonard Kachinsky. GABLEMAN, MICHAEL J. J. This case in-
volves the discharge procedure civilly as a violent person under Wis. Stat. (2005-06).1 ch. 980 Daniel was Arends civilly commit- ted in 2005 as a and person, he peti-
1All subsequent references to Wisconsin Statutes are to the 2005-06 version unless otherwise indicated. discharge in 2007. Stat. 980.09 under Wis. tioned for discharge circuit court reviewed discussing propensity reports for sexual Arends' three court denied The circuit and his treatment. violence "[t]he stating petition, does order that in a written discharge probable find exists" to conduct cause (a discharge petition). on the merits of trial appeals opinion,2 reversed, published the court of In a wrong applied concluding the circuit court entitling produced facts had and that Arends standard discharge hearing his on him to a pro- dispute on the in this case centers 2. The under 980.09—as circuit court must follow cedures a determining to hold whether in 2006—when amended hearing, court fol- the circuit and whether *3 procedures here. lowed those § requires the circuit ¶ that 980.09 conclude 3. We determining two-step process in to follow a court hearing. to hold a whether engages 980.09(1), § in circuit court ¶ 4. Under only, including petition paper its attach- review of alleges facts from which it ments, to determine whether peti- conclude that trier of fact could a reasonable as a for commitment not meet the criteria tioner does person. one is a limited This review allegations sufficiency assessing aimed at allege facts, sufficient does If the 980.09(2). proceeds to a review under the circuit requires the cir- Stat. 5. Wisconsin specific in that enumerated items court to review cuit reports including past filed and current subsection, all Arends, 162, 2d App 315 Wis. State v. 2008 WI 422. N.W.2d 980.07.3 The circuit not, however, court need they already
seek out if these items are not within the may request Nevertheless, record. it additional enumer- previously ated items not submitted, and has also discretion to conduct a aid its determina- tion. The circuit court's task is to determine whether the supporting and the additional materials before the court contain facts from which a reasonable trier of fact could conclude that the does not meet the criteria for commitment as a case, In this the circuit court reviewed the reports three record, most current in the and therefore petition appears its denial of the to have been via review under prior reports not, however, The court did review all required by
in the record as the statute. Additionally, the court denied Arends' on the grounds "probable that it found no cause" to conduct a discharge hearing, explanation but offered no of its required by rationale. Probable cause is not the standard the statute. We remand to the circuit court to make a grant determination under of whether to discharge hearing petition. Accordingly, on Arends' we appeals' affirm the court of reversal of the circuit court, modify but its instructions.
I. BACKGROUND minor, 7. While a Daniel Arends multiple sexual assaults and other unlawful acts. As
3 §980.07(6) Wisconsin requires Stat. Department of Health Services to submit an annual re-examination and treat progress report ment to the court. In reviewing addition to reports, § these requires the court to review relevant in the petition facts and in the State's response, written arguments counsel, and other supporting documents provided by or the State.
4 between 13 and 18 result, years ages he spent facilities. As he ap- and correctional treatment juvenile release, consequent and his birthday his 18th proached him as a violent "sexually to commit petitioned the State A concluded that jury § 980.02. under Wis. Stat. person" sexually commitment as a Arends met the criteria for Circuit Washington County and the violent person, Arends ordered Court, Kingsland Ziegler, Judge, Annette of Health custody Department committed to 2005. The January Depart- Services ("Department") care at Sand then him to institutional ment committed ("Sand Ridge").4 Treatment Center Secure Ridge 27, 2007, June Arends' on Upon request, counsel as well as a then-Judge Ziegler appointed him. On Sheila Fields —to examine psychologist —Dr. 2007, used the standardized form 27, Arends August to file a petition provided by Department5 form, his commitment. On discharge from Ridge Department, "Sand is a secure According to the Mauston, Wisconsin], special providing facility in treatment persons ized treatment services Index, Ridge persons law." Sand Wisconsin's 2010). (last June visited http://dhs.wisconsin.gov/SandRidge/ 980.075(1m) Department requires Stat. Wisconsin form for a "standardized develop and make available states, request "I discharge." The standardized form be 980.075 and 980.09 my pursuant from commitment my commitment changed since initial my cause condition has for commitment as a longer I no meet the criteria and this, following "The facts provides, it person." After they provided are two boxes petitioners support my petition," informa check, along space under each for additional can with states, longer mental disorder or "I no have a tion. The first box (attach additional sheet my changed has because mental disorder needed)." states, likely longer "I no ’more box am if second (attach because an act of sexual violence than not’ to commit needed)." if additional sheet *5 Arends checked the "I box that states am no longer 'more than not' to likely commit an act of sexual violence."6 that, Below in the space designated he explanation, "See typed: the attached report of Dr. Shiela [sic] Fields." No other documents or facts were included or alleged of his support petition. 9. The Washington County Court, Circuit with Fiorenza,
John A. now Judge, reviewed the presiding, three most current in its reports consideration of Arends' It reviewed Dr. Fields' report,7 a 2007 annual Re-examination Dr. Report8 by Schmitt, William and a 2007 annual Treatment Progress from Sand Report9 Ridge. In her Dr. report, Fields concluded "to a
reasonable degree professional that certainty" Arends was "not more than likely to sexually
6 person In order to be and remain committed as a person, the State prove things: must three (1) person adjudicated has been to have committed a (2) offense; person has a mental disorder predisposes person violence; to acts of sexual (3) likely is more than not to commit another violent sexual 980.01(7), offense. 980.02(2), §§ See Wis. Stat. 980.05(3)(a). person initially A ordinarily committed will not be able challenge requirement one, to presumably why which is the standardized discharge petition allows the seek ing discharge challenge requirements two and three. 7Whenever Department's re-examined examiner, a right retain, has the or have the court 980.07(1). appoint, independent an examiner. Wis. Stat. reports prepared Re-examination are by an examiner appointed by the Department "at least once each 12 months." 980.07(1). Wis. Stat. progress reports Treatment prepared are concurrently
with yearly reports by re-examination professional who treats a committed Wis. Stat. indicated in his Re-examination Dr. Schmitt reoffend." *6 confidently opinion Report offer an as that he could high posed medium, risk of low, a or Arends to whether opinion an to a Thus, he unable to offer reoffense. was professional certainty degree "as to reasonable likely [was] than not' to Mr. Arends 'more whether sexually offense." The Treat- another violent commit Progress Report Ridge was, as its title from Sand ment report, suggests, not an examination of a treatment sexually propensity reoffend. There- current to Arends' opinion as to whether Arends was fore, it contained no sexually likely reoffend.10 more than not to September ¶ 26, 2007, the circuit court On 11. denying petition. The Arends' a written order issued entirety, order, in its stated as follows: court, [Arends'] has reviewed [sic] matter, 27, in August filed on 2007 the above Progress Report from Sand as well as a Treatment Center, Report a Ridge Treatment Re-examination Schmitt, 9, August Ph.D. filed on from Dr. both William filed 2007, from Dr. Sheila Fields report as well as a 27, August 2007. to con- probable find cause exists
The court does not Therefore, the Petition hearing duct a on the Petition. denied, hearing. Discharge hereby is without appeals appealed, ¶ and the court of 12. Arends App Arends, 184, 1, 315 reversed. State v. WI appeals The court of first 162, 2d 762 N.W.2d422. Wis. "extensively Chapter revised" 980 was noted that hearing mandatory "probable replacing cause" 2006, a might contain possible report such a While it is propensity current regarding petitioner's conclusions act, in this case no such conclusion commit a report. was contained in the discharge petition each at
on with the court's using ¶¶ Id., discretion a new standard. 13-14. The appeals "prob court of concluded that removal of the language higher able cause" did not create a or standard prove shift the burden to the he or she is longer person, suggested by no as appeals Id., Rather, State. 22. the court of focused on language statute concluded that Arends' petition, report particular, and Dr. Fields' contained jury judge "facts from which conclude his changed." Id., Thus, condition is appeals the court of holding remanded, reversed and that the circuit granted evidentiary court should have Arends an hear ing discharge petition. on his Id.11
II. STANDARDOF REVIEW requires interpret apply ¶ 13. This case us to and § interpretation application Wis. Stat. 980.09. The and question of a statute is a of law that novo, we review de benefitting analysis previous but from the courts. Direct, Pra, ¶76, Star Inc. v. Dal 2009 18, WI 319 274, Wis. 2d 767 N.W.2d898.
III. DISCUSSION identify procedures ¶ 14. Our task is to the estab by legislature lished the for courts to determine 11 appeals The court of remanding stated that it was for an Arends, evidentiary hearing under Wis. Stat. 162, 2d Wis. it later petition Given concluded that alleged purposes facts "sufficient for of Wis. Stat. and id., (2)," 25, hearing we assume the court meant a under 980.09(3) (what opinion this refers to as "discharge hearing"). on a grant discharge hearing petition whether under Wis. Stat. 980.0912 as amended discharge therefore, centers on the text of the analysis, 2006. Our Dane statute. See State ex rel. Kalal v. Circuit Court for 44, 633, 2d 681 N.W.2d 2004 WI 271 Wis. County, provides Wisconsin Stat. 980.09 as follows: discharge. person peti- 980.09 Petition for A committed committing any at time. The tion the court for court deny petition hearing under this without a unless shall section alleges jury may petition facts from which the court or person's changed condition since the date of his or conclude has person her initial commitment order so that the does not meet person. criteria as a for commitment (2) petition days may within 30 and hold The court shall review the hearing if it contains facts from which the court or determine jury may person conclude that the does not meet criteria for determining commitment as a In under this might subsection whether facts exist that warrant such a conclu- sion, past reports the court shall consider current or filed 980.07, relevant facts in the and in the state's written s. counsel, any supporting response, arguments of documentation provided person or the state. If the court determines that jury may a court does not contain facts from which commitment, the criteria for concludethat the doesnot meet deny the court shall If the court determines that facts jury does not exist from which a court or could conclude meet criteria commitment the court shall set the matter for hearing. (3) days shall hold a within 90 of the determi- jury nation that the contains facts from which the court or *8 person not meet the criteria for conclude that the does sexually person. commitment as a violent The state has the burden proving by convincing person that the meets of clear and evidence sexually person. the criteria for commitment as violent (4) jury If the state has not met its the court or is satisfied that (3), discharged proof burden of under sub. the shall be jury custody department. If the court or is satisfied from the (3), proof that the has met its burden of under sub. the court state (4) modify may proceed whether to under s. 980.08 to determine by authorizing supervised petitioner's existing commitment order release.
9 discussing general begin by briefly statu We tory Chapter for the civil commitment of scheme in sexually persons. give an overview of We then violent statutory provi prior and current versions of discharge. governing petitions this, After we sions analyze by specific procedures established 980.09(2), Finally, respectively. we case, conclud examine the circuit court's actions ing this proper follow the that the circuit court did not proper procedures apply the standard of law in its denial of Arends' Chapter Generally
A. Under Civil Commitment sexually ¶ 15. If the State wishes to commit a alleging file a that the offender, violent person it must "sexually person." trial, is a violent At the State beyond proving, doubt, a reasonable has burden of (1) adjudicated person: that has been to have (2) sexually offense;13 has a mental committed a violent predisposes person to acts of sexual disorder (3) likely violence; and is more than not to commit another violent sexual offense. See Wis. Stat. 980.05(3)(a). 980.01(7), 980.02(2), §§ If the trier of fact person finds, so the court must commit the to the custody Department, place which turn must person person into institutional care until the is no longer sexually violent Stat. 980.06. Wis. ¶ 16. A committed must be re-examined by professional a mental health "at least once each 12
13By referring adjudication that one has committed a sexually offense, violent we mean to summarize the statute's sexually requirements that the has "convicted of a been offense,... adjudicated delinquent for a violent offense, guilty responsible or... not found of or disease, insanity or mental offense reason of defect, or illness ...." Wis. Stat. *9 person right months," at time which has the to also independent be examined an examiner. Wis. Stat. 980.07(1). person wishing A17. to secure his or options. person may her release has two The file a petition supervised may release, for which he or she do frequently every no more than 12 months. Wis. Stat. Alternatively, person may 980.08. a committed file a petition discharge, any for which he or she do at time. Wis. Stat. The latter is what Arends did in this case. Discharge Generally
B. Petitions for Chapter ¶ 18. 2006,14 was amended in among changes provisions were revisions to the governing discharge petitions. prior version of the petition statute allowed a committed discharge ways. in three First, 19. a committed could file a dis
charge petition secretary at time with the of the 980.09(1)(a) Department's authorization. Wis. Stat. (2003-04). proceeding If fashion, this the court was required discharge hearing. to hold a Id. securing discharge 20. A second avenue for was objections secretary over the of the 980.09(2)(a) (2003-04).
Department. Stat. Wis. Com- persons given option during mitted were this their § 980.07, annual examination under and were deemed they affirmatively to file a unless right waived their to do so. Id. Once the was required probable filed, the court was to conduct "a statute, 2005 Wis. Act 434 created the revised which August became effective *10 that facts exist whether to determine hearing
cause still a is person on whether hearing a warrant Id. If probable exist, cause did person." hearing. discharge conduct a to required the court was 980.09(2)(b) (2003-04). for could file person a committed Finally, secretary Department's of the from discharge apart Stat. 980.10 at time. Wis. any or disapproval approval (2003-04).15 filed an un- had previously If the person secretary's objections, over the successful petition con- "unless the petition deny petition court could that court could find which a upon facts tainted] a hearing had so changed of the person condition Id. the petition If the court found that was warranted." a cause hear- facts, probable it ordered contained such hearing was discharge a to determine whether ing Id. If the person filed an had not previously warranted. secretary's objections, over petition unsuccessful (2003-04) very § 980.10 is language in Wis. Stat. provided: in the current statute. It language to the similar 980.09, person procedures a under s. In addition to the time, committing discharge if may petition at but court for discharge petition person previously filed a without a has determined, upon secretary's approval review and the court either person's petition following hearing, a that the of the person, a that the was still was frivolous or deny any subsequent petition under this then the shall upon hearing facts unless the contains section without a person had the condition of the so which a court could find that changed hearing If the court finds that that a was warranted. warranted, probable hearing hearing the court shall set a cause is 980.09(2)(a) proceedings under and continue in accordance with s. 980.09(2)(b), previously appropriate. If has not filed s. if secretary's approval, discharge the court without the probable hearing with s. cause in accordance shall set a 980.09(2)(a) 980.09(2)(b), proceedings if under s. and continue appropriate. the court was required to conduct a probable cause determine whether a discharge hearing was Id. warranted. 22. The legislature made substantial changes
the discharge procedures 2006. One significant was the change elimination of petitions filed with or without approval secretary of the Department. Under statute, current a committed person may simply petition for at any time, and a stan- dard procedure now applies to every petition. Wis. Stat. A second notable change was the elimina- tion of the language requiring "probable cause hear- *11 Instead, ing." as we below, discuss the legislature re- placed a mandatory probable cause with a hearing two-step process similarly aimed at out merit- weeding less and unsupported petitions, while still a protecting petitioner's access to a discharge hearing. 980.09(1)—
C. Wis. § Stat. of Sufficiency the Petition 23. To examine the procedure ¶ by established 980.09(1),16 § we with the begin text of the statute:
A may petition committing court for discharge at time. The deny court shall petition under this section without a unless the petition alleges facts from jury may which the court or person's conclude the changed condition has since the date of or her his initial commitment order so that the person does not meet the criteria for commitment as a sexually violent 16 The first block of text § Wis. Stat. 980.09 is not "(2)." However,
numbered. the second block is labeled thusWe "(1)." refer to the first block text as subsection 980.09(1) Initially, focuses ¶ we observe granting petition, a only and not on denial of on hearing. step, discharge initial review then, is an This (described step petition; additional an of the 980.09(2)) a required to obtain a is hearing. 980.09(1) paper review is 25. Review only petition attachments.17 and its court reports supporting not be or evidence Additional specifies stage. further The statute this at considered just legal allege con- not facts, must that the longer merely "I am no states A which clusions. any supporting person" facts without enough. allegations Conclusory alone are fail. must review is to in a court's task 26. The alleged are those "from facts determine whether person's jury may conclude the court or which changed her initial of his or since the date has condition meet the does not so that commitment order person." as a for commitment criteria looks to what here 27. The standard allegations jury "may in the from the conclude" pass review, the court Thus, in order trier of fact could that a reasonable determine must alleged in the and its from the facts conclude *12 petitioner meet does not that attachments sexually person. as a violent commitment criteria for petitioner support Allegations relief for sufficient to petitioner necessarily no to show that have would statutory require- longer the three one or more of meets person being under a ments for peti- form in the standardized As reflected 17 says "petition," when this subsection understand that We petition. attached to the necessarily includes documents it 14 allegations likely challenge tion, the will most requirement that a committed have a mental predisposes disorder that him or her to acts sexual violence, that the committed is more and/or likely than not to commit another violent sexual of- supra fense. See notes 5-6. 980.09(1), pro- 28. The then, standard under very ensuring
vides a limited review aimed at is, is sufficient—that whether relief for the petitioner possible allegations is based on the factual in petition. purpose The clear of such a to review is unsupported petitions, weed out meritless and which is especially important light proviso of the statute's petitions discharge may any be filed at time.
¶ 29. This standard is similar to that used in civil to cases decide a motion to dismiss for to a failure state upon granted claim which relief can be under Wis. Stat. 802.06(2)(a)(6). reviewing When such a a motion, analogously only alleged court considers the facts in the complaint attachments, and its and must assume that alleged Volkswagen all those facts are true. Peterson v. Am., Inc., ¶¶ 61, 15-16, 2005 WI 281 Wis. 2d of N.W.2d grants only 61. A court such a motion when "no granted can relief be set of facts that a plaintiff prove support allegations." can of his or her Watts, v. 506, 512, Watts Wis. 2d 405 N.W.2d 303 (1987). In sum, establishes limited sufficiency requires
review of the It engage paper only circuit in a review of petition and its attachments determine whether the petition alleges from facts which reasonable trier of longer fact could conclude is no allege If facts, it does not such the court *13 are the alleged, If such facts deny must a then review court proceeds 980.09(2)— D. Stat. Wis. Sufficiency The of Evidence as fol- provides Stat. Wisconsin lows: days and within 30 shall review court if contains facts
may hearing to determine it hold a jury or conclude that from court which for commitment as not meet the criteria person does determining under this person. In sexually violent might such facts exist that warrant subsection whether conclusion, any or court shall consider current 980.07, s. facts in filed under relevant past reports response, arguments petition and the state's written counsel, supporting provided documentation any of and determines that by the or the state. If the court not contain facts from which a does not meet the jury may that the does or conclude commitment, deny the the court shall criteria for from determines that facts exist petition. If the court person does jury or could conclude the which a court commitment set the court shall not meet criteria for hearing. matter level contains a second of 32. Section is entitled to a before review 980.09(1), only where the petition Unlike hearing. reviewed, the court in this step its are and attachments following all items: to examine required is (1) re-examination past reports current and filed under Stat. reports Wis. progress treatment 980.07; (2) in the State's in the relevant facts response; written
(3) arguments counsel; of and (4) any supporting documentation the provided by the State. 33. Some confusion arose at oral argument as to the how circuit court can fulfill its to con- obligation all sider these items when of them may some not be available or otherwise within the record before the court. The reading most reasonable of this is statute that the must all court review the items in enumerated 980.09(2) § that are in the at record the time of re- not, therefore, view.18 The circuit court need seek out evidence not however, before it. It currently may, order of of the in production enumerated items not record, required but is not to do The so. statute this supports interpretation the court granting discretion at this to stage separate hearing, hold distinct from and to prior any discharge hearing.19 980.09(2) Thus, § review under is items specific statute, listed if available or so requested by court. 34. The central dispute parties between the is 980.09(2). § standard established § The Department provide reports must all 980.07 to the when they §
court are created. Wis. Stat. The other (the petition response, arguments counsel, items and and documents) supplemental originate parties. from the § Wisconsin Stat. "hearing" 980.09 uses the term hearing describe two The optional distinct events. first is an under the circuit when hold deter mining grant discharge hearing. whether 980.09(3)-(4) discharge hearing The under required is before a person may To discharged. confusion, be avoid we 980.09(3)-(4) refer to the "discharge under aas hearing" optional hearing and the under as simply "hearing." argues legislature The that when State "probable hearing" mandatory from cause
removed gatekeep- to elevate the court's statute, it intended give ing discretion to make limited and courts more role (which credibility not do courts could determinations standard). probable standard, the old cause under higher probable cause, reasons, be must than the State (which convincing is evidence lower than clear but must meet at the hear- the state the burden 980.09(3)). preponderance ing It recommends a *15 it is standard, maintains that the of evidence and the changed petitioner's prove has and to he or she burden longer a is no
¶ standard, that the 36. Arends counters new though "probable cause," is its terms called rejects essentially He that the the same. the notion to or statute creates a shifts him that the burden preponderance standard, neither of
of the evidence argues, the lan- which, can be found in statute's he guage. in the stat- take the standard delineated We phrase "prob- It contains neither the
ute at face value. phrase "preponderance of evi- cause" nor the able that dence," which are common terms of art both of legislature employed. The circuit court's could have according statute, is determine whether task, arguments before court contain the documents jury court or conclude that "facts from which the does not meet the criteria commitment person."20 as 980.09(2) actually standard with three Section states the iterations, using phrase "could slightly different sometimes conclude," using "may conclude" and other such sometimes minor, word-choice non-substantive variances. 38. As with review under 980.09(1), review 980.09(1)
here is a limited one. While tests whether allegations the petition and its attachments could relief, § support tests whether the record in toto, all including reports, petition and any written response, arguments counsel, and any other docu- ments submitted, contain facts that could relief support for the petitioner at a discharge hearing. Essentially, review under ensures that the claims in the petition are supported with actual facts. 39. This is not to say the court must take
every document a party submits at face value. The court's determination that a court or jury could con- clude the petitioner's favor must be based on facts which upon a trier of fact could For reasonably rely. if example, the evidence shows the expert is not quali- fied to make a psychological determination, or that expert's report was based on a misunderstanding misapplication of the proper definition of a sexually violent person, the court must deny the with- out a discharge hearing despite stated report's conclusions.21
21
examples
Other
can he found in prior
Although
case law.
these cases
applied
"probable
standard,
all
the old
cause"
their
results would be the same under the new standard. See State v.
Kruse,
App 179,
130,
2006 WI
296 Wis. 2d
shifts The statute focuses for commitment. the criteria meets" conclude that a trier of fact could on whether petitioner commitment." meet the criteria for "does not change prove petitioner status not need to The does discharge hearing; entitled to a in order to be only provide that he or she evidence need requirements meet the for commitment. does not prescribed by is ¶ 42. The standard a motion action to decide that used in a civil similar to under Wis. Stat. the close of evidence to dismiss at 805.14(4). likewise tests 805.14 standard to because, although he would be safe it concluded insufficient release, he was still a supervised it also concluded place on person). 980.09(1), support examining we noted when As necessarily have petitioner, for the evidence would relief three one more of the petitioner does not meet show that being a statutory requirements under Wis. Stat.
20 whether the record contains any evidence that would relief for the plaintiff. See Am. Family Mut. Ins. support Co. v. Dobrzynski, Wis. 2d 624-25, 277 N.W.2d (1979). 980.09(2) 43. conclude, To Wis. Stat. estab- lishes a limited review of the sufficiency of the evidence. The court is required to review the items specifically enumerated if available, and order those items to be produced conduct a at its discretion. and/or The circuit court must determine whether the enumer- ated items contain any facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment aas sexually violent If any facts support in finding favor of the petitioner, the court must order a discharge hearing on the petition; if exist, no such facts the court must deny the petition.
E. Application to Arends' Petition In the bar, case at the circuit court denied Arends' petition without a discharge hearing, and re- viewed three documents to aid its decision: Dr. Fields' report, Dr. Schmitt's Re-examination and the Report, Treatment Progress from Report Sand Ridge. The circuit court did not state whether it was denying the (2). petition under it Because considered (Dr. evidence outside of the petition and its attachment Fields' it report), appears the circuit court's denial was issued after a analysis. 45. The record indicates that the circuit
did not consider all of the items it was required to consider under Arends was 2005, and was re-examined as required 980.07 *18 appeal us on The record before 2006, and 2007. Report Treatment and
contains a Re-examination Progress years.23 Report The circuit of those for each only the that it considered order reflects court's written report. along court, reports The Dr. Fields' with 2007 reports past current or did consider all therefore, not §by § required 980.07 as filed under circuit court denied ¶ Furthermore, 46. grounds discharge that on Arends' "probable hold a did not exist to cause" explanation hearing. its deci- It no further offered today probable opinion cause is clarifies that Our sion. proper under this new statute. standard not court must ¶ that a circuit It is axiomatic 47. reasoning sufficient to facilitate of its create a record appellate Proceeding, 2003 WI In re John Doe review.See ("[O]ursystem 653, 660 260 30, 57, 260 Wis. 2d N.W.2d judge's [for justice basis that there be some of decision] demands review."). the circuit to facilitate Had set forth reasoning, might explained able to have been its we proper applied standard, even it determine whether is, name. As it we cannot. if under a different Though the evidence this able to review 48. to remand to ourselves, we choose instead case opportunity may an that it have circuit court so 980.09(2)24 following conduct a review under procedures applying the standards we announce and Tadych, today. 2d rel. v. 31 Wis. See State ex Skibinski (1966) (noting that when a 189, 199, 142 838 N.W.2d filed the old reports filed in 2005 were two first re statute, person's provided which that commitment, months of examination had to occur within six (2003-04). See Wis. Stat. because is satisfied are confident We report supports his alleges that Dr. Fields' Arends' findings circuit court fails to make of fact and conclu may law, this court either sions of review evidence carry the circuit itself or remand to task). court to out that remand, 49. On the circuit court must consider 980.09(2), including all the items enumerated all (Re-examination reports Reports 980.07 Progress Reports) Treatment that have been filed since beginning of Arends' commitment.25 The court *19 produced, order additional enumerated items to be hearing hold a to aid its The determination. circuit determine court must whether the record before it contains facts from which a reasonable trier of fact could that Arends conclude does not meet the criteria sexually a for commitment as ¶ 50. If the court concludes that such facts are present, discharge hearing the court must order a on petition. petition If the court denies Arends' with- discharge hearing, a it out must create a record of its appellate rationale sufficient to facilitate review. longer likely assertion that he is no more than not to reoffend, in and Dr. Fields does fact reach this conclusion in her report. 980.09(1) review, §
Additionally, separate while is a level of explaining we do not believe a trial court need issue an order its requirements rationale if a satisfies 980.09(1). needlessly judges, § who This would burden trial 980.09(1) cases, would, many proceed seamlessly § in from a 980.09(2) parties. § review to a review without notice to the any conducting of a appellate Because a review (either grant § dis- determination or denial of a charge hearing) necessarily petition well as would review as attachments, approach appellate its neither hinders review this rights of parties. nor affects the also consider documents filed court should such petition. with the court since Arends filed this IV CONCLUSION requires conclude that 980.09 the cir- 51. We determining two-step process in cuit court to follow a discharge hearing. whether to hold 980.09(1), engages ¶ 52. Under the circuit court only, including paper in a review of the its alleges attachments, it facts from to determine whether a reasonable trier of fact could conclude that the which petitioner does not meet the criteria for commitment as person. This is a limited one review assessing sufficiency allegations at aimed allege facts, If does sufficient proceeds the circuit court to a review under requires ¶ 53. Stat. the cir- Wisconsin specific cuit court to enumerated in that review items including past reports subsection, all and current filed not, however, The circuit 980.07. court need seek they already out if these items are within the record. may request Nevertheless, it additional enumerated previously submitted, and items not also has the discre- tion to conduct a to aid its determination. The circuit court's task is to determine whether the *20 supporting and the additional materials before the court contain facts from which a reasonable trier of fact could conclude that the the does not meet criteria for commitment as a
¶ case, In this the circuit court reviewed the reports record, three most current in the and therefore petition appears its denial of the to have been via review not, however, under did review prior reports by required all in the record as the statute. Additionally, petition the court denied Arends' on the grounds "probable it that found no cause" to conduct a discharge hearing, explanation but offered no of its required rationale. Probable cause is not the standard the circuit court make statute. We remand to 980.09(2) grant of whether to determination discharge hearing petition. Accordingly, on Arends' we appeals' court, of the circuit affirm the court of reversal modify its instructions. but
By appeals the Court.—The decision of court of affirmed, modified, and as the cause is modified remanded to the circuit court.
¶ ZIEGLER, J., 55. ANNETTE KINGSLAND did participate. (dissenting). ¶ PROSSER, J. I re- 56. DAVID T. majority opinion's analysis spectfully dissent from the of statute. reads: 57. Wisconsin Stat. committing person may petition
A committed discharge any deny time. The court shall court for at petition under this section without a unless jury petition alleges which the court or facts from person's changed condition has since may conclude the the date his or her initial commitment order so does not meet the criteria commitment as added.) person. (Emphasis import 58. The of this subsection is that petition allege jury must from which the court or a facts changed person's condition has since conclude person does not meet his or her commitment so that the more. If the the criteria for commitment allege facts, must dismissed fails to such be flip it is deficient on its face. The side of this because proposition facially sufficient should is that a hearing. normally lead to a reads: 59. Wisconsin Stat. [1] The court shall review the *21 petition within 30 days may hearing and hold a to determine if it contains jury may or conclude that facts from which the court not meet criteria for commitment person the does the as a [2] In determining might subsection whether facts exist that warrant this conclusion, the consider current such a court shall 980.07, past reports filed under s. relevant facts in response, argu and in the petition the state's written counsel, any supporting ments of and documentation provided the person or the state. [3] If the court petition contain determines that the does not facts jury may from a court or conclude that which commitment, person does not meet the criteria for court shall deny petition. [4] If the court determines jury that facts from court or could exist which a person conclude the does not meet criteria for commit hearing. ment the court shall set the matter for (2) 60. Subsection shall provides court review within 30 The court be days. may uncertain of the In sufficiency about addi- petition. tion, may state challenge sufficiency on the facts or on the In alleged law. either event, may hearing court hold a to determine whether the petition contains facts "from which the court or jury may conclude that the does not meet the criteria for as a sexually commitment violent per- son." Wis. Stat. "If the court determines that facts jury exist from which a court or could conclude the does not meet criteria for commitment added). shall set the matter hearing." (emphasis Id. (2) 61. Subsection to be somewhat am- appears biguous. The first sentence reiterates that the court shall review the hold a determine if it contains petition] appropriate [the "facts." The third sentence of the subsection also refers to facts in the
¶ contrast, In the second sentence asks 62. requires the court to examine facts exist" and "whether petition in the state's facts in the and written "relevant arguments supporting response, counsel, of and person provided the or the state."1 documentation specifically refer the does not to The fourth sentence light petition; that exist." In it refers to "facts phrase that exist" to sentence, I read the "facts second consideration of facts that come out in the court's mean testimony, argument subsequent to submissions, irrespective petition, of whether those "facts" were the alleged petition. in the optional hearing peti-
¶ 63. The to evaluate the strengthen petitioner's may case for a dis- tion charge hearing. enumerated The consideration of items (2), including argument, also in sentence of the second may support the facially question here is a 64. The real whether successfully petition rebutted in the
sufficient can be hearing optional of or in the court's consideration other including argument. matters, testimony argument optional If at the 65. or items out- or the consideration of enumerated requires the court to consider The second sentence also Wisconsin "any past reports current or filed under s. 980.07." requires person that a committed be reexamined Stat. 980.07 person to determine whether the "at least once each months for the court to consider whether progress has made sufficient or dis placed supervised should he on release person reexamination, At the time of charged." Stat. Wis. appoint retain or have the court an exam person "the ... 980.031(3)." If the is unable provided iner as under s. report from the state's petition reference in his a favorable examiner, unlikely allege own is examiner his no jury conclude that "facts" from which a could longer the criteria for commitment. meets disregard petition persuades a
side the the court to effectively facially petition, sufficient is statutory right jury to a trial. denied his my facially peti- Thus, view, in sufficient requires discharge hearing tion under Wis. Stat. shows that unless state "facts" alleged cannot be substantiated or allegations are deficient as matter *23 law. facially
¶ case, In 67. this Arends' was report sufficient because of the favorable of Dr. Sheila nothing petition. I Fields attached to the see negates sufficiency record that the facial invalidates Thus, I of the "fact"of Dr. Shields' favorable evaluation. perceive legal remanding no basis for the case for sufficiency reconsideration of the Wis. Stat. hearing.2 Arends is entitled to a my reading incorrect, If of the statute is 980.09(2) legislature clarify should Wis. Stat. so that its intent is clear. foregoing respectfully reasons, 69. For I
dissent. point, At this the court would bound to consider —at a be reconsideration under Wis. Stat. or a dis charge hearing under Wis. Stat. current most —the majority opinion. information described in 51 of the