¶ 1. Rоnald Knipfer appeals the circuit court's order denying his May 2012 petition for discharge from his commitment under Wis. Stat. ch. 980.
¶ 2. The State filed its petition to commit Knipfer under Wis. Stat. ch. 980 in 2002, and Knipfer was committed in 2003. In May 2012, Knipfer filed a petition for disсharge from his commitment. The circuit court concluded that the -pre-Daubert version of Wis. Stat. § 907.02(1) applied to Knipfer's petition. The circuit court also rejected Knipfer's constitutional challenges.
Discussion
¶ 3. In 2011, thе legislature amended Wis. Stat. § 907.02(1) to adopt the Daubert standard for expert testimony. See Alger,
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the tеstimony 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 оf the case.
Section 907.02(1) (emphasis added).
¶ 4. The Daubert standard under the amended version of Wis. Stat. § 907.02(1) first applies to "actions or special proceedings that are commenced" on the effective date of the statutе, February 1, 2011. See 2011
¶ 5. Knipfer argues that the Daubert standard in the amended version of Wis. Stat. § 907.02(1) applies to any petition for discharge filed on or after the statute's effective date. As we explained in Alger, the "operative question is . .. whеther [the discharge petition] . . . 'commenced' an 'action.'" Alger,
We ... conclude that a petition for discharge does not start a new lawsuit or legal proсess distinct from the original commitment. Instead, a discharge petition is merely a continuation of the existing lawsuit that began when the petition for commitment was filed. As a result, Wis. Stat. § 907.02(1) does not apply tо Alger's discharge petitions because, although the petitions were filed after February 1, 2011, the original commitment petition was not.
Id., ¶ 19; see also id., ¶ 11.
¶ 6. Because the State commenced its commitment actiоn against Knipfer in 2002, and Knipfer petitioned for discharge in 2012, Alger is controlling. Applying Alger, we must reject Knipfer's argument that the Daubert standard in the amended version of Wis. Stat. § 907.02(1) applies to his discharge proceeding.
¶ 7. We turn to Knipfer's constitutional arguments. Knipfer argues that, if the amended version of Wis. Stat. § 907.02(1) does not apply to him, then the statute violates his rights to equal protection and due process.
¶ 9. As discussed further below, the difference between the equal protection argument in Alger and the one here relates to the required level of scrutiny. We applied rational basis review in Alger because, we explained, the Alger petitioner did not argue that "Wis. Stat. § 907.02(1) restricts a fundamental right or discriminates against a suspect class." See Alger,
¶ 10. We apply strict scrutiny "if the legislative classification impermissibly interferes with the exercise of a fundamental right or operates to the peсuliar disadvantage of a suspect class." State v. Smet,
¶ 11. As already indicated, the petitioner in Alger also challenged Wis. Stat. § 907.02(1) on equal protection grounds. See Alger,
¶ 13. The State argues that rational basis review applies because Wis. Stat. § 907.02(1) does not interfere with a fundamental right. The State asserts that the statute is an evidentiary rule that is generally applicable. The State correctly points out thаt courts sometimes apply rational basis review even in the criminal context. See State v. Lynch,
¶ 14. Knipfer does not reply to the State's points, and his limited analysis does not pеrsuade us that we should apply strict scrutiny. While Knipfer plainly has an underlying liberty interest in the outcome of any discharge proceeding, we fail to see how the application or non-application of an evidentiary rule like Daubert
¶ 15. A recent supreme court case, Milwaukee County v. Mary F.-R.,
In evaluating prior challenges based on the differences found in Chapter 51 and Chapter 980, this court has generally refrained from deciding which level of scrutiny should apply. Post,197 Wis. 2d at 321 . However, we agree with Milwaukee County that rational basis analysis is the appropriate level of judicial scrutiny to apply to this case. We disagree with Mary F.-R.'s contention that strict scrutiny applies due to her fundamental liberty interest. While liberty is a fundamental right, Foucha v. Louisiana,504 U.S. 71 , 86 (1992), and involuntary civil commitment is a "significant deprivation of liberty," Addington v. Texas,441 U.S. 418 , 425 (1979), Mary F.-R.'s challenge relates only to the jury procedures available for initial commitment hearings under Wis. Stat. § 51.20 and not to the use of involuntary commitmеnts in general. Unlike a situation where protection for a fundamental liberty interest is interfered with impermissibly, having a six-person jury trial is not the "equivalent to having no jury trial at all." State v. Huebner,2000 WI 59 , ¶ 18, 235*571 Wis. 2d 486,611 N.W.2d 727 . There is no right to a 12-person jury in сivil proceedings such as here. Id., ¶¶ 17-19.
Id., ¶ 38.
¶ 16. A similar analysis applies here. The continuation of a Wis. Stat. ch. 980 civil commitment is a significant deprivation of liberty, but Knipfer's equal protection challengе relates only to whether the Daubert evidentiary standard applies, not to the use of ch. 980 commitments in general. And, as we suggested in Alger, being subject to the pre-Daubert standard is not the same as being deprived of a meaningful opportunity to challenge expert evidence. See Alger,
¶ 17. Indeed, the circuit court's reasoning is similar to the supreme court's reasoning in Mary F.-R. The circuit court here explained:
[CJertainly Mr. Knipfer's liberty interests are a fundamental right.... But that's not I think directly on point.... The fundamental right that Mr. Knipfer has [as relevant here] is a right to a fair hearing and proceeding and process. And nothing about the рrior evidentiary standard denied Mr. Knipfer a fair trial or hearing or proceeding and... he does not have a constitutional right to the new standards.
Knipfer's arguments do not come to grips with this reasoning.
¶ 18. Accordingly, we conclude that strict scrutiny review does not apply. And, because we already concluded in Alger that the statute survives rational basis review in this context, we reject Knipfer's equal protection challenge.
¶ 20. As far as we can discern, Knipfer at most makes one new argument under the heading of due process. Specifically, Knipfer seems to argue that, given the liberty interest at stake, the Daubert standard is necessary to ensure that Wis. Stat. ch. 980 discharge proceedings are reliable enough to satisfy due process concerns. If that is Knipfer's argument, we reject it. Even if it is true that the Daubert standard increases the reliability of discharge proceedings, this does not mean that those proceedings are unreliable without the standard. At a minimum, we would require additional legal or factual support from Knipfer in order to seriously consider this argument.
Conclusion
¶ 21. In sum, we affirm the circuit court's оrder denying Knipfer's petition for discharge from his commitment under Wis. Stat. ch. 980.
By the Court. — Order affirmed.
Notes
All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
Daubert v. Merrell Dow Pharm., Inc.,
The language in the statute does not appear verbatim in Daubert, but it is undisputed that the amended version of the statute is based on Daubert. The statutory language is similar to language in the corresponding federal rule. See Fed. R. Evid. 702.