*1
William L. Morford:
In
re
Commitment
Petitioner-Respondent,
of Wisconsin,
State
Respondent-Appellant-
William L. Morford,
Petitioner.
Supreme Court
argument
No. 01-2461. Oral
September
February
Decided
For the attorney general, Weinstein, assistant D. Warren Peggy Lautenschlager, A. whom on the brief was with attorney general. ABRAHAMSON, This is a 1. SHIRLEY S. C.J. unpublished of an decision of the court
review affirming appeals1 of the circuit court for Mil- orders County, Judge. Konkol, The circuit waukee Daniel L. granted attorney's recon- the district motion to super- placing L. Morford on its decision William sider denied L. Morford's motion vised release and William that The circuit court concluded for reconsideration. sexually and that it Morford was still violent substantially engage probable he would still was placed if not in institutional care. acts of sexual violence granted The circuit court therefore the State relief from Morford's release and ordered Morford com- custody Department Health and mitted to the (the Family department) control, care, Services setting. treatment in an institutional re- 2. Morford then moved the circuit court to consider its order of institutionalization for several including reasons, rily improper proceedings that the circuit court used statuto- give from the State relief (Wis. Morford, 01-2461, State v. unpublished slip op. No. 2002). App. Ct. Nov. *5 supervised his release. The circuit court denied appealed motion, Morford's and Morford from this order of denial. affirmed the order of the court of (Rule) § concluding court, that Wis. Stat.
806.07(l)(h) (1999-2000)2 governs reconsideration original place the circuit Morford on court's decision supervised requirements release and that 806.07(l)(h) § were satisfied.
¶ 4. The sole address in this case issue we is 806.07(l)(h) 980.08(6m) § whether Wis. Stat. or is the changing supervised for release status of an vehicle who, Morford, like individual has been determined be supervised for release but who remains awaiting placement.3 institutionalized 980.08(6m), ¶ 5. We hold that Wis. Stat. rather 806.07(1)(h), governs granting relief to the State than chapter supervised from a 980 committee's in the committee is confined an institution await when ing Any language placement on release. Castillo, in inference State v. 205 Wis. 556 (Ct. 1996), App. Williams, 2001 State v. WI N.W.2d subsequent All references to the Wisconsin Statutes are to indicated. the 1999-2000 version unless otherwise argues, part, Morford neither Wis. Stat. 806.07(1) granting provides procedure nor placement relief from a release for which the State argument. The has been made. are not convinced this not We get legislature intended that the State be able to could not have chapter release of a 980 committee relief from community supervised release but not from the awaiting an release. supervised release of individual who produces an absurd interpretation an of the statutes Such contrary purposes that is to the result 623, or State v. 155, 246 Wis. 2d 631 N.W.2d App 16, 248 Wis. 2d Sprosty, *6 2001 WI App ¶ 213, limiting application N.W.2d been released actually 980 committee who has chapter with community release into is supervised drawn.
I release, on and the supervised 6. Morford is now ¶ issues he raised order to obtain his release supervised are A determination of these issues will have no moot. effect on Morford.4 practical 7. courts decline to decide Reviewing generally ¶ do so under certain may moot issues but circumstances. it decide an may This court has held that otherwise (1) (2) if it: of great public moot issue is importance; occurs so that a definitive decision is neces- frequently (3) courts; sary guide likely again to arise and a of the court uncertainty; decision would alleviate (4) likely will be but evades repeated, appellate review because the review cannot be appellate process or even undertaken time to have a completed prac- tical effect on the parties.5 8. We conclude that the sole issue to be proposed
addressed, is, mechanism for appropriate changing supervised release status of chapter granted petition for review in this on March We case 28, 2003, April placed On the defendant 2003. was periodic pursuant subsequent release to a review. On 9, 2003, argument September we heard oral in the case. Proceeding, In re John Doe 2003 WI 2dWis. 653, 660 N.W.2d to be has been determined who
committee institutional- but who remains release excep- awaiting placement, satisfies several ized and rule. to the mootness tions chapter is an of a 980 committee The release implicates importance great public it because
issue of rights safety public of the and the both the individual. detained presented fre- recurs with some 10. The issue pub-
quency. in a time since thе fourth This is appropriate procedure for recon- case, that the lished sidering 980 committee's provide from this will arisen, and a decision has guidance circuit courts. to the *7 may likely again
¶ to arise and This is 11. issue deter- a circuit court's review. The time between evade eligible supervised person for release a is mination that may supervised being placed person's release on and the present Indeed, case.6 substantial, as in the be lag contemplates a circuit a time between statute supervised finding eligible person for release a court's supervised placement on release. actual and the Family prepares Department a Services Health and supervised plan court must that the circuit for chapter approve.7 Furthermore, a while and review supervised litigates relief, he or denial of committee may in this case—be interim —as occurred she making placed moot release, the cases on tending review. and to evade Rachel, 76-80, In re Commitment 2002 WI See ¶¶ J., concurring) (Bradley, 647 N.W.2d
254 Wis. fa placement difficulty finding appropriate (discussing the delay). sexually persons and the concomitant violent cilities for 980.08(5). Stat. Wis. 12. conclude that the issue raised this We that case we address satisfies to the moot- exceptions rule, ness therefore we address it.
II case procedurally convoluted, This and we set forth an abbreviated version facts relevant render decision on the sole issue we address. 14. On July 31,1997, Morford was committed as violent sexually 980.06(2)(a)(l) the language Pursuant of Wis. Stat. (1993-94)8 commitment, at the time of his the circuit court determined that he be placed release. Because no halfway available, house was Mor- ford remained at the Wisconsin Resource Center (WRC), a secure Morford facility. appealed, that arguing he was entitled to be held in a less restrictive facility. The court of appeals agreed directed the cirсuit to oversee the search for an appropriate place- ment. 15. While the Department Health and Family
Services searched for a supervised release placement for Morford the circuit court reviewed the repeatedly search, status of the and Morford's case came for up two reviews. The medical and periodic psychological reports submitted these during periodic reviews suggested Morford not be might re- *8 lease. 16. At a 15, 2000, March proceeding
¶ on the supervised release the circuit court plan, expressed concern that Morford was not an candidate for supervised release. legislature supervised The removed option the release for 3223(h). 9,
the initial commitment 1999. See 1999 Wis. Act attorney May ¶ 2000, filed 17. On the district super- "motion for reconsideration of document entitled authority statutory motion no release." The cited vised for motion. as a basis the evidentiary proceed- court 18. The circuit held attorney's May
ings motion on March on the district testimony May experts 8, 2001, and heard from and suitability supervised for re- Morford's who evaluated proceedings, the the circuit At the close of lease. attorney's granted motion for reconsidera- the district Although words circuit court never used the tion. the release," of the effect of "revocation court's order was revoke Morford's circuit sought of circuit reconsideration release. Morford affirmed the orders order. The court court's attorney's granting circuit court the district denying and Morford's motion reconsidera- motion tion.
Ill question Stat. The Wis. 19. whether 806.07(l)(h) changing the vehicle for commit- status of a requires interpreta- yet has not been released tee who 806.07(l)(h) §§ statutes, of two tion 980.08(6m). question interpretation of statutes is a independently court decides of law that this benefiting appeals, from but court and court of analysis both.9 presented, examine To we decide issue 806.07(l)(h) 980.08(6m), as well both Wis. 167, 663 Cole, 12, 262 2003 WI State See N.W.2d
as thrеe have cases court that touched upon interplay between these two statutes. goal interpreting
¶ 21. Our
statutes is to dis-
give
legislature.10
cern and
effect to the intent of the
Statutory interpretation begins
language
with the
Each
statute.
word should be looked at so as not to
portion
any
superfluous.11
render
of the statute
But
single,
not
"courts must
look at
isolated sentence or
portion
language
of a sentence"
of the relevant
instead
statutory provi-
Furthermore,
of the entire statute.12
sion must be read in the context of the whole statute to
interpretation.13
avoid an
or absurd
unreasonable
Stat-
relating
subject
utes
to the same
matter should be read
together
possible.14
and harmonized when
A cardinal
interpreting
interpreta-
rule in
an
statutes
to favor
purpose
tion
fulfill
that will
of a statute over an
interpretation
objective
defeats
manifest
of an
legislative
act.15
ascertain
Thus
must
intent
language
from the
of the statute in relation to its
10Cole,
167,
(citing
Szulczewski,
262 Wis. 2d
13¶
State v.
(1998)).
495, 504,
216 Wis. 2d
574
660
N.W.2d
11
Physicians
Wis.,
86,
Landis
Ins. Co.
16,
2001 WI
¶
1,
893;
245 Wis. 2d
628 N.W.2d
Alberte v. Anew Health Care
Servs.,
7,
10,
587,
2000 WI
Wis. 2d
¶
232
context, scope, including and history, interpretations.16 of alternative consequences IV of the language first consider stat- We ¶ 806.07(l)(h), of Section which is question. part utes Judgment," pro- 806 entitled "Civil chapter Procedure — a or for reasons for relief from order judgment any vides from the operation judgment.17 relief justifying all civil and special actions applies Section 806.07 pre- where different is "except procedure proceedings, A proceeding or 980 by statute rule."18 chapter scribed 16Cole, Davis, 167, 2001 WI (citing 2d 13 State 262 Wis. 62). 13, 248 Wis. 637 N.W.2d 17 806.07(1) reads as follows: Wisconsin Stat. (1) upon judgment such terms Relief from or order. On motion (2) (3), court, may just, subject a to subs. relieve as are judgment, stipulation party legal representative a order or from following reasons: for the (a) inadvertence, neglect; Mistake, surprise, or excusable (b) Newly-discovered party to a trial evidence which entitles a new 805.15(3); under s. (c) Fraud, an misrepresentation, adverse or other misconduct party; (d) void; judgment The is
(e) satisfied, discharged; judgment has been released or (f) judgment prior judgment upon is based has been A which vacated; reversed or otherwise equitable judgment (g) longer should have It is no prospective application; or (h) operation Any justifying relief from the other reasons judgment. 18 801.01(2).
311 terms, is civil action19 and 806.07 its may, by apply to a 980 unless a different proceeding proce- dure is statute or rule.20 We therefore prescribed by must determine whether different procedure pre- scribed 980 by chapter respect with the reconsidera- tion of determinations release. governs 23. Section 980.08 the procedure for release of a person committed under chapter 980.08(1)
980. Section
may
who
provides
petition
of a sexually
violent
and when
they
980.08(4)
do
may
so.21 Section
concerns the
factоrs
Lombard,
In
App 163,
re Commitment
2003 WI
(chapter
Wis. 2d
proceedings
N.W.2d
are
*11
civil,
criminal,
nature);
Thiel,
not
in
In re Commitment
2001
of
52,
9,
App
439,
WI
241 Wis. 2d
625
321 (refusing
N.W.2d
to
follow rule of retroactive
in
application
changes
of
the criminal
criminal).
civil,
chapter
proceedings
law because
980
are
not
20See, e.g.,
Treadway,
In re Commitment
2002
AppWI
(number
195,
467,
257 Wis. 2d
651
334
N.W.2d
peremptory challenges available in chapter
proceedings
980
governed by
procedure rules);
civil
In
Wolfe,
re Commitment of
2001
App
WI
246 Wis. 2d
committing modify by authorizing supervised court to its order elapsed release if at least 18 months have the since initial order or elapsed commitment was entered at least 6 months have petition since the most recent release was denied or the most in to release an deciding consider whether may court and burden of proof required prevent individual the released.22 Section being violent from sexually person 980.08(5) Finally, the governs placement process.23 under which controls the circumstances release be revoked and may an individual's supervised revocation may proceedings. who initiate such was The director of recent order for revoked. person may petition facility placed at the is file a the which person's any at time. on the behalf this subsection 980.08(4) provides, part, in that: Wisconsin Stat. petition proves by grant clear shall the unless the state Thе court convincing person sexually violent evidence that the is still and substantially person person probable that the and that it is still engage person if is continued in sexual the not will acts of violence n ininstitutional care. subsection, making In under this decision consider, may of enumera- without limitation because the court tion, the the behavior that was the nature and circumstances 980.02(2)(a), petition the allegation in under s. the the basis of condition, history person's present and mental where mental person support person live, himself or herself will will how arrangements person has what are available ensure including necessary treatment, participate access to will using antiandrogen pharmacological chemical treatment an antiandrogen person sex equivalent of if the is a serious child an offender. 980.08(5) provides, part, that: Wisconsin Stat. If the court finds that department. department release, notify shall *12 county department of county under s. in the the 51.42 and 980.105, person, s. shall of determined under residence the as services, any, plan if prepare treatment and that identifies the community. plan person The shall will receive in the that the counseling, need, any, supervision, person's the if for address services, medication, services, community vo- support residential services, drug and or other abuse treatment. cational alcohol 24. The in key sentences 980.08(6m),24 for of the case, purposes present gov- of read erning revocation release as supervised follows: department alleges person the that a released has If rule, any safety violated condition or or that the others of revoked, requires supervised that release be he or she 980.08(6m) entirety Wisconsin Stat. in its as reads follows: supervised places person order An for release the custody department. department the and control of the The shall control, arrange persоn for care and treatment of the in the least requirements person manner restrictive consistent with the of the plan supervised approved by and in accordance with the for release (5). person supervised subject the court sub. A on release is by to the conditions set court the and to the rules of the department. placed person supervised by Before on is release the section, notify municipal court under this the court shall so the police department county and department alleges sheriff... .If person rule, any that a released has violated condition or or that the safety requires supervised revoked, others that release be he or of may custody she department. be taken into under the rules of department showing probable The shall submit a statement cause petition supervised and a detention revoke the for order committing regional release to the court and the officeof the stаte public responsible handling county defender for cases in the where committing within is located after hours the deten- tion, excluding Saturdays, Sundays legal holidays. The court petition days, shall hearing hear the within 30 unless the or time by person. Pending deadline is waived the detained the revocation hearing, department may person jail detain or in a 51.15(2). hospital, facility by specified center s. state has the proving convincing any burden clear and evidence that rule or of violated, safety condition release has been or that the others requires supervised that be release revoked. the court determines If any hearing violated, that rule or condition been release has after safety requires
or that others release be revoked, may it revoke the order order person placed that the released be in an institution discharged until the commitment under s. from again placed 980.09 or until release under this section, added). (emphasis *13 custody depart- the may taken into rules the be of proving by the clear ... The state has burden ment. of convincing any that rule or condition and evidence of violated, or safety been that the others release has of be the court requires supervised that release revoked. If hearing any that rule or condition determines after violated, safety been or that the others release has revoked, may be it requires supervised that release the and order that supervised revoke order release person placed in an institu- the released be commitment person discharged until the the tion from again placed supervised or under s. 980.09 until section, added). (emphasis this release under §of are 25. These sentences key readings. If we read the first to at least two susceptible "released" modi- grammatically, adjective sentence only to the first clause applies the noun fying "person" clause of the and not the second the sentence sentence, disjunctive is logically separated which must words, allege "or." In other department (1) has any that a released violated person either prove (2) of others rule, safety or or that condition The second that release be revoked. requires this read- quoted supports grammatical sentence above 980.08(6m) gov- reading, Under this ing. 980 committees who are erns not those only awaiting place- who are released but also those actually uses the release. The last sentence ment on read, as and therefore can be released phrase person case, did to mean that in this court if department may revoke (1) has released alleges proves either (2) rule, or that a released condition any violated this of others. Under safety person jeopardizes *14 980.08(6m) § Wis. reading, governs only those 980 chapter committees who are released actually release. seeming 26. This in ambiguity key the sen- ¶ 980.08(6m) § tences of Wis. Stat. is not resolved by at the looking subsection as a whole or the in subsection the context of 980. Indeed chapter 980 chapter has other conflicting For language. instance, Wis. Stat. 980.08(6m) § and other in provisions chapter use the word "custody" inconsistently. 27. use word "custody"
chapter § is In particularly problematic. 980.06, a person is who deemed violent he sexually "shall com- mitted to the of custody department the for control, care After and treatment." a committed individual found be release, to for an order release, for supervised according § to 980.08(6m), "places the in the person custody and control of the Further, department." under if 980.08(6m), the "de- partment alleges that released person has violated any rule, condition or that of safety others requires revoked, be supervised he or she be taken may into under custody the rules of the department." Read literally, provisions these make little sense, they since thrice place the committed individual in the of custody department without ever having removed actually him from the department's custody. This is just one example which is less than clear on its face. in mind Keeping linguistic shortfalls of
§ 980.08(6m), we examine how the court appeals has interpreted to aid our own interpretive process. 29. Three cases appeals are relevant. In Castillo,
State
(Ct.
found on two release, filed a the State Before Castillo's assault.27 *15 him petition 980 to commit as Wis. Stat. sexually person.28 to acknowl- Castillo offerеd violent petition allegations edge contained within that right if the to a trial and to waive his true were facility.29 community-based placed department him in difficulty department experienced in ¶ 31. The reopen placing and and moved to the order Castillo placed modify in a secure to be it to allow Castillo granted facility.30 the State's motion The appeals placed at The court Castillo the WRC.31 the State and concluded that the circuit court reversed 980.06(2)(d) legislature The renumbered Wis. 3223(1). 980.08(6m) 9, § in 1999. See 1999 Wis. Act Castillo, 556 N.W.2d State 205 Wis. 1996) (Ct. original). (emphasis in App. 27Id. at 603. Id. at 604-05.
29 Id.
30 Id. at 605-06.
31 Id. at 606. agreement plea by requesting
breached its with Castillo the modification32and allowed Castillo to his withdraw plea.33 precursor 32. The to Wis. Stat. directly appeals
was not at issue before the court of 806.07(1) opin- Castillo and is not mentioned appeals ion. The issue before the court of was whether plea agreement the State had breached the and whether plea Castillo should have been allowed to withdraw his admitting allegations supporting petition sexually person. question commit him as a violent The statutory authority of what the State use to could proceedings regard initiate revocation with to an indi- yet secondary vidual who had not been released awas only issue to be if reached Castillo were not allowed to plea. withdraw his appeals
¶ 33. The court of concluded in Castillo comply the State was not relieved of its burden to plea agreement merely finding with the because an appropriate placement proved difficult. The court of appeals' language dealing key with the sentences we conclusory, explanation address was brief, and without analysis statutory language. parties' or full expended briefs in Castillo little issue, effort this appeals' the court of followed suit. The court of *16 language relating applicability to the of Wis. Stat. 980.08(6m) necessary was dicta not to the in decision the case.34
32Id. аt 608. 33 at Id 611. 34 For see, discussions of dictum, e.g., Wisconsin's views on Picotte, 42, State v. n.16, 261 2003 WI 249, 60-61 2d ¶¶ 661 (reviewing N.W.2d 381 dictum); two of lines cases on v. State Leitner, 77, n.16, 449, 2002 WI 22 253 Wis. 2d 646 341 N.W.2d
318 for petition this court granted Although Castillo, briefed the Wis. parties none of the in review 980.08(6m) for petition in this court. issue Stat. as improvidently dismissed ultimately review was of no mention court made this granted, the case.35 in of disposing much of founda 35. Castillo does not provide 806.07(1)(h) ap for that Wis. concluding tion has The court case. to the plies present times, three but Castillo dicta followed seemingly built not or strengthened cases have subsequent its Castillo's weak foundation. upon Williams, 155, 246 v. In State App 2001 WI committee 623, a 980 722, 631 Wis. 2d N.W.2d the State's granting court's order a circuit challenged order prior granting for relief from motion release. Without for supervised committee's petition whether underlying question addressing Sartin, n.7, 449 47, 2d 60 546 N.W.2d State v. (same); 200 Wis. (1996) ("dictum opinion goes in a court's is a statement necessary and is broader than facts the case beyond the it"; before of the issues thе determination not essential 370, 386 Koput, 142 Wis. 2d State v. controlling); not dictum is (it (1988) a court inappropriate not for n.12, 804 is 418 N.W.2d opinions on the basis Supreme Court statements evaluate Cos., v. Home Ins. Nicholson dicta); they constitute whether (1987) (disapproving 581, 602, 327 2d 405 N.W.2d 137 Wis. & Indus. Fire Cas. in Radlein v. reducing clause discussion Co., Am. dicta); (1984), as 874 Ins. 2d 345 N.W.2d 117 Wis. Shannon, 560, 565, 356 Wis. 2d Family Mut. Ins. Co. 120 (1984) doctrine generally accepted (adopting the N.W.2d the court question to the before not addressed that "a statement dictum, binding on the and not necessary its decision" Dyken, 95 Wis. 2d 290 N.W.2d Reiter v. court); (1980) (same). (1997). Castillo, 570 N.W.2d State v. 213 Wis. *17 806.07(1)
§ was an grant mechanism to relief from the of a sex offender, the court of appeals concluded that the "new evidence" that the State provided justify to the relief not new was 806.07(1). § In making decision, its the Castillo, did not cite much appeals justify less or explain § reliance its on 806.07 for case. the Williams case came State v. 37. After ¶ Sprosty, 231, 2001 WI App 16, 480, 248 Wis. 2d in 213, N.W.2d which the court of appeals assumed, 806.07(1) discussion, without that Wis. Stat. could be grant usеd to State relief from a release. The court of on appeals focused whether "extraordinary circumstances" were present justify statute's use in that case. particular Again, court of did appeals Castillo Williams for the proposition at not cite or
issue.36 It did not
explain
justify its reliance on
in
806.07
a chapter 980 case.
In
present case,
the court
of appeals
806.07(1)
determined that Wis. Stat.
to the
applied
facts of
case,
but again its
no
opinion provides
806.07(1)
further
assistance
whether
analyzing
should apply at all.
Again
court of
cited no
appeals
case
support
its conclusion.
Its
opinion
this
is,
issue
like the
in the
opinions
cases,
other three
brief
conclusory,
without
citation to
any
prior cases.
39. The court of appeals'
is somewhat
reasoning
different
in the
case, however,
present
and requires
additional
case,
consideration.
In this
the court of
relied on
the label
attorney
district
circuit court placed on the
proceeding
conclude that
Sprosty
Williams,
State
court did cite
2001 WI App
155, 246
review,
Wis. 2d
631 N.W.2d
for the standard of
Sprosty,
however. State v.
App
2001 WI
480,
stated that rather than a supervised reconsideration release, even supervised to revoke Morford's motion nor the circuit attorney the district neither though including Wis. authority, any statutory court cited 806.07(1)(h) 980.08(6m), §or the justifying proceed § 980.08(6m) § reasoned that The court ing. appeals a a because proceeding such govern could not 980.08(6m) been would have have § proceeding and Family of Health Department brought by that recognized of appeals Services. the district by attorney. in this case was brought motion attorney at the the district It looked label therefore "recon motion, namely on the circuit court placed further sideration," explanation and concluded without held in accor in were question that "the proceedings 980.08(6m)."37 § § 806.07 rather than dance with appeals’ decision of the court of portion The relevant states as follows: pro- hearing a below as revocation
Morford mischaracterizes 980.08, pursuant § than ceeding, Wis. Stat. rather held reconsideration, pursuant to hearing held the State's motion on Morford, First, by not § DHFS did as admitted Wis. Stat. 806.07. release, procedure supervised petition to revoke his file a process. required § See State and due both VanBronkhorst, 7-8, App 247 Wis. ¶¶ 2001 WI Second, May the State filed motion N.W.2d Third, supervised entitled, release." "motion for reconsideration evidentiary hearing finally, this held on at the outset of pro- parties they matter, were informed the that the trial court ] ceeding [ motion for reconsideration on the "State's Thus, proceedings in that the release." we conclude § than question with 806.07 rather were held in accordance 980.08(6m). statutorily Accordingly, was autho- the trial court granting release. Morford's rized to review the order urges ¶ 40. The State us to withdraw the dicta (and any Castillo reliance thereon Williams and Sprosty) vehicle for the State to pending seek relief from a 980 committee's release is under Wis. Stat. 806.07.38The State us that courts reminds and the court of power have no to disavow Castillo's reliance on 806.07(1)(h).39 Only may this court do so.40 urges
¶ 41. The State tous hold that Wis. Stat. § 980.08(6m), 806.07(1)(h), applies not and the State *19 chapter seeks relief from a supervised 980 of committee's status yet release when the committee has not supervised been on released release. State asks this Department Family court to hold the that of Health and may petition supervised Services for revocation of re 980.08(6m) § lease be whenever it subject supervised lieves that a iswho the of a (whether release decision or not the individual re- 01-2461, (Wis. Morford, State v. unpublished op., No. slip 9¶ 2002). App. Ct. Nov. 806.07(1)(h) argues § The State nevertheless should be available one last time in this case because Castillo dictated ,not its use. We need decide this issue because it is moot. Cook, (1997) Cook v. 166, 189, 560 208 Wis. 2d N.W.2d 246 ("If the of court, is to be a unitary it speak must with a unified voice. If the and statutes were constitution interpreted to overrule, allow it to modify or language withdraw decisions, from its prior published its unified voice would fractured, become threatening principles the predictability, of certainty finality by upon relied litigants, counsel and the courts."). 40Id, ("[O]nly supreme court, the highest court in the state, power overrule, has the modify to or language withdraw published from a opinion of appeals."). the court of release) any supervised violates condition on leased safety rule or of others. threatens agree Wisconsin Stat. 42. with the State. We 980.08(6m) granting § the State suited for is better supervised chapter re committee's relief from a 806.07(1)(h), regardless of than whether lease actually placed chapter on committee has been ap supervised that the court of release. We conclude 980.08(6m). interpretation peals erred in We its reasons. reach this conclusion for several explained previously, First, the text as we 980.08(6m) support to can read Stat. be Wis. awaiting if a 980 committee is notion that placement release and continues be may petition facility, department held in a secure release. for revocation a determination provides a Second, 980,com- releasing chapter comprehensive for scheme revoking super release and mittees on By effectively occupying the field on release. vised legislature sought preclude subject, implicitly procedural provided the one like short-cuts *20 980.08(6m) 806.07(1)(h). § Interpreting § as Wis. Stat. pending placement governing chapter 980 committees legislature's supports supervised intent release proce comprehensive, uniform, and fair to a establish spirit of оr intention release. "The dure govern or technical over the literal the statute should meaning language of used."41 806.07(1)(h) § using to Third, 45. Wis. Stat. presents grant relief from the State Fitchburg, City Town 112 Wis. Madison of (1983). 332 N.W.2d far more tortuous than interpretive reading issues 980.08(6m) § governing present as case. Individuals under committed 980 are entitled to due chapter pro- cess protections notice, such as reasonable to right counsel, right silent, to remain right present witnesses, and cross-examine and the use the height- ened burden of proof clear and evidence. convincing 806.07(l)(h) Section does not these provide protections. 46. To assure due process, the concurrence 806.07(l)(h) reads into § Wis. Stat. the constitutional protections under provided chapter 980. This court would have to perform interpre
tive backbends to retrofit the protections afforded by 806.07(1)(h). § Wis. Stat. chapter 980 onto If we must choose between the due applying protections process 806.07(1)(h) under chapter § 980 to or inter 980.08(6m) preting § as applying to chapter com awaiting mittees under placement it release, is not a difficult choice. We see no reason to tack the protections afforded by 980 onto chapter 806.07(1)(h) § when readily available to 806.07(1)(h) to the apply present Using § case. need lessly complicates granting the State relief from chapter 980 committee's supervised release. Fourth, engraft attempting 806.07(1)
onto Wis. Stat. would pose legal problems requiring litigation. future For example, a circuit court 806.07(1)(h) makes different findings §§ 980.08(6m). Under 806.07(1)(h), a circuit court must find extraordinary circumstances in order to relieve an party from order or judgment. 980.08(6m), Under a circuit court must find that released person has any violated condition or rule or that safety others requires that supervised release be revoked. *21 of Furthermore, different standards appel 49. under the two sections. may implicated be late review 806.07(1)(h) § of review under Wis. Stat. The standаrd for discretion. The standard exercise of is erroneous 980.08(6m), however, is, to according review under on brief, whether complex depending more State's or of a rule alleges revocation a violation request safety that the alleges condition release of revocation. requires of others erroneous clearly that the State asserts factual determination of review applies
standard violated. When a rule or condition was of whether grounds public safety, on is initiated revocation standard unresolved questions are of a circuit court powers review and the appellate For according purposes to the State: presented, determination review, is a circuit court's appellate or a of fact or law safety question of others about finding fact and law? After mixed question re- of supervised revocation requires of others safety modify discretion to lease, a circuit court havе does than revoke it?42 release rather can be avoided problems 51. These and other 980.08(6m) to chapter entirely applying Wis. under supervised awaiting placement 980 committees economy judicial favors Applying release. of law. clarity body lends to this court or district Fifth, allowing motion their own attorney proceedings to initiate 806.07(1)(h) relief the State grant using it because is inappropriate from issues, Petitioner- see Brief of of these For a discussion at 16-30. Respondent *22 important gate-keeping
circumvents the function of the Department Family of Health and Services.43 In Wis. 980.08(6m), legislature placed the initial solely decision seek revocation in the hands of the department. department integral part
¶ 53. The is an procedural protections provided chapter to a 980 com- chapter department in mittee Wis. Stat. 980. The is charged "custody sexually with the and control" of person, chapter violent whether the 980 committee is legis- institutionalized or on rеlease.44 The department being lature thus views the as the best position to evaluate the various risks and benefits of placing a committed individual revoking supervised release. department
¶ 54.
It
is the
that has sufficient
experience dealing
sexually
persons,
with
violent
as
experience
particular
well as
with the
individual who
dispassionate,
has been committed,
sound,
to make a
regarding
person's
and unbiased decision
a committed
980.08(6m)
provides
condition. Wisconsin Stat.
no
procedure
initiating
revocation other than
department,
nothing
suggests
980
legislature
doing
envisioned another method for
so.
The court of
recognized
in this case
that who
initiates
"revocation" proceedings
important
is
may
because it
Morford,
State v.
implicate
process
rights.
due
01-2461,
No.
(Wis.
unpublished
2002)
op.
slip
App.
at
9¶
Ct.
Nov.
("DHFS did not file a petition
supervised release,
to revoke his
a procedure
required by
both
process.”).
due
VanBronkhorst,
See also Statе
App
7-8,
WI
¶¶
Wis. 2d
¶
806.07(1)(h),
§
980.08(6m),
governs
§
rather
than
Stat.
980
chapter
to the State
from
relief
granting
the
is
release when
committee
committee's
on super
in an
awaiting placement
confined
institution
in State v.
or inference
Any language
release.
vised
(Ct.
Castillo,
App.
425
599,
Wis. 2d
556 N.W.2d
205
Williams,
2d
155, 246
1996), State v.
App
2001 WI
Wis.
623, or State v.
App
2001
Sprosty,
722,
WI
631 N.W.2d
480,
213,
limiting
2d
231,
16, 248 Wis.
636 N.W.2d
¶
980.08(6m)
in which a
§
to situations
application
into
released
actually
980
has
been
committee
release, withdrawn.
is
community
declared.
By
Rights
Court. —
I
(concurring).
CROOKS,
J.
57. N. PATRICK
I
agree
because
majority only
with the
concur
however,
I
separately,
us is moot. write
issue before
806.07(l)(h) was
Stat.
I conclude that Wis.
beсause
person's super-
consider a
here to
used appropriately
not
yet
has
as
person
when that
vised release status
at
authority to
apparently has
rescind
A circuit court
under Wis.
its
and decision
part
least
order
806.07(l)(h)
adequate notice.
parties
both
have
long
as
as
767,
Abram,
113,
2, 255
App
WI
Gittel v.
case).
(will
N.W.2d 661
contest
distinguish
been released. I
not
would
overrule
State
III),
Sprosty (Sprosty
App v.
2001 WI
248 Wis. 2d
Brown,
636 N.W.2d
2d 716,
State
215 Wis.
(Ct.
1997),
App.
Castillo,
persons that are contained within Wis. Stat. ch. 980 are 806.07(1)(h) applicable when Wis. Stat. is Here, used. majority attorneys however, robs local district judges necessary super aof tool for review a extraordinary vised release order where circumstances protection public requires exist and swift action. Although majority Castillo, overrules I accurately points would not do since so, Castillo out 980.08(6m) only that Wis. Stat. refers to released persons. Castillo, 205 2dWis. at 609. To hold that sec. 980.08(6m) applicable persons yet who have not ignores plain language been released of the statute. super- Thus, sec. cannot be used where regard vised release order is reviewed in to a *24 who continues to be institutionalized, nor can it be used by attorney judge a district a or who is concerned for public's safety. the reasoning
¶ applicable in 60. The Brown is also to appeals Brown, this In case. the court observed that 801.01(2) § provided Wis. Stat. that Wis. Stat. chs. apply proceedings, 801-847 to all civil unless otherwise Brown, indicated statute. at 215 Wis. 2d 721. Wis- statutory language consin Stat. ch. 980 not does contain mandating procedure that other than Wis. Stat. 806.07(l)(h) § be used in circumstances such those as presented proceeding A here. under ch. 980 is a civil proceeding language and does not contain to the con- 806.07(l)(h) that be Thus, may I am sec. satisfied trary. as the one we are reviewing in such proceedings used here. III, in the court of Moreover, 61. Sprosty
¶ (h) 806.07(1) § Stat. could be used determined that Wis. III, ch. 248 Wis. in 980 proceedings. Sprosty Wis. Stat. 2. I with the conclu appeals' agree ¶ court extraordinary that the that circum sion requirement under sec. granted be before relief is present stances 806.07(1)(h) the sufficiently guards against haphazard Id., of this 16. provision. use to Morford's Wis. proceedings, 62. With respect 806.07(l)(h) used review to appropriately
Stat. was After relief the release order. and from grant the circuit court evidentiary hearings, conducting that new evidence presented found that State Morford violent sexually that was still demonstrated The circuit court Wis. Stat. ch. person. applied to its decision as whether rendering standards 806.07(l)(h), motion, should be State's sec. pursuant granted. to Wis. Stat. Further, according 980.08(6m), clear proof burden Stat. evidence. Where Wis. convincing
and 806.07(1)(h) an and relief from grant is used review that, I release, conclude order granting 980.08(6m), the State must prove with sec. consistent evidence that rule convincing any clear "by violated, safety or that the has been condition release be revoked." requires of others 980.08(6m). The applied deciding evidence burden convincing clear motion here. State's has concluded that In this court past, safeguards ch. sufficient provides
committing sexually persons violent and does not vio process rights. late due Post, In State v. 279, Wis. 2d (1995), 293-94, 541 N.W.2d115 we held that ch. 980 did process guarantees not violate the substantive due the United States and Wisconsin Constitutions.1 We rejected respondents' arguments finding that a of a required by mental disorder, as ch. 980, was not nar rowly comply scrutiny. tailored to with strict Id. at 307. only We concluded 980, that ch. drafted, as ensures that dangerous predators predispositions sexual with sexually persons. reoffend are committed as violent Id. legiti Moreover, we concluded that treatment awas goal rejected mate under ch. 980. Id. at 311. We also respondents' argumеnts that ch. 980's definition of dangerousness was unconstitutional. Id. at 312. We Legislature's stated that the Wisconsin framework for discerning predisposed whether a was to commit sexually constitutionally violent acts was sound. Id. at Finally, 312-13. comported we concluded that ch. 980 process regarding with due concerns of nature and duration of commitment. Id. at 316.
¶ 65.
In
Rachel,
State v.
WI
Wis. 2d
647 N.W.2d
that,
we held
as amended,
comport
Wis. Stat. ch. 980 continued to
with substan
process requirements.
tive due
simply
that,
We noted
sexually
person's
because
violent
access to
release was curtailed, ch. 980 did not violate due
process.
Id.,
66. We concluded that the intent of ch.
proceedings
980 was satisfied where
could be initiated
Post,
1 In State v.
279, 293-94,
197 Wis. 2d
to whether dangerousness determine with the level physical vidual was commensurate confinement Id. imposed. Laxton, 82, 23, In WI 66. State v. ¶
¶ ch. 185, 647 we held that Wis. Stat. Wis. 2d N.W.2d because, due process requirements 980 satisfied in the that individual should be finding an implicit a he or sexually committed as violent because person dangerous, disorder and is is the she has mental in con difficulty that the individual has presumption ch. his or her behavior. Because 980 distin trolling recidivists, and between in individuals guishes general, makes substantially probable whose mental disorder it behavior, in that the violent engage sexually will and, tailored narrowly we concluded that ch. 980 is thus, due Id. comports process. with I am that process requires 67. satisfied due
¶ in Stat. ch. remain embodied Wis. protections 806.07(1)(h) used to when Wis. Stat. applicable from an order and, grant relief perhaps, provide review VanBronkhorst, 2001 WI State ing release. 7, 247 Sexually N.W.2d 236. Wis. App right violent have a to due persons process protections in Id. The court of proceedings. ch. 980 revocation that, stated revocation VanBronkhorst are under ch. violent proceedings sexually persons due as those process protections entitled to same Id., Simply 9. parolees probationers. afforded to 806.07(1)(h) review grant sec. is used to because release, not an it does relief from order should be without sexually persons follow that violent 980. afforded ch. protections ch. protections Applying 806.07(1)(h) provides appropriate 980 to Wis. Stat. sexually and to violent person protection public respect public safety, as well. With safety allows the court to consider the determining person's supervised others when whether a safety release should be revoked. Those same consider- simply ations should not be discarded because sec. 806.07(l)(h) is used to review order. Sexually persons protected violent are also
under this framework. Wisconsin Stat. ch. 980 affords multiple protections sexually persons, to violent which 806.07(1)(h) applicable § will remain when Wis. Stat. is § rights per used. Wisconsin Stat. 980.03 outlines the petition against sons have when the State a files ch. 980 example, 980.03(1), person them. For guaranteed under sec. is hearing.
reasonable notice of the Further, appeals the court of has held that when court acts on pursuant 806.07(1), parties its own motion to sec. must given opportunity be notice and be afforded the to be App heard. In Abram, Gittel v. WI Wis. 2d N.W.2d the court of sponte, court, allowed a sua to initiate consideration 806.07(1). § Id. In case, Morford's a motion was brought by the State, after the circuit court seemed to suggest necessary. that a review was § 980.03(2), person 70. Under Wis. Stat. has right right counsel,2 to to silent,3 remain right present to and cross-examine witnesses,4 and the right hearing to reporter.5 have the recorded a court 980.03(4) provides that when a is re- Section quired undergo to an examination under Wis. Stat. ch. 980.08(2)(a). § 2 Wis. Stat. 980.08(2) (b).
3 Wis. Stat. 980.08(2)(c). 4 Wis. Stat. 980.08(2)(d). Wis. Stat. 980, he or is she allowed to hire his or her own to expert 980.03(4) conduct an examination. Section further pro- vides that will county for a court pay appointed expert indigent persons. 71. Considerations of due process require
sexually violent persons must be afforded the same 806.07(1) (h) when protections used, as would be when applicable Wis. Stat. ch. 980 is used for a review of a supervised release order or status. 72. The majority needlessly binds the hands of
district and attorneys circuit all judges, vests in the power hands of the Department Health and Family Services. Both district attorneys should judges be permitted use Wis. Stat. § 806.07(l)(h), when necessary where extraordinary exist, circumstances to consider prior supervised re- lease By orders. the burden on placing DHFS entirely, majority accepts risk that sexually violent still persons, others, who pose danger will be released because DHFS did not move for review of the person's violent continuing tendencies, as occurred *28 here. 73. In summary, I conclude that Wis. Stat. 806.07(1)(h) for the provided authority circuit court's
consideration of its prior Here, release order. 806.07(1)(h) sec. was used tо appropriately review Morford's release grant status to relief from the circuit court's order. previous Where such statutory used, however, section is the af protections forded by Wis. Stat. ch. 980 to a person previously found to be violent are still sexually order to applicable, the satisfy requirements of due Such process. protec tions were afforded to. Morford this case. These include the to protections right have reasonable notice of the hearing, counsel, to right right remain present right wit- and cross-examine
silent, hearing right recorded a court nesses, reporter, to have proof heightened burden the use of the convincing evidence. of clear and precedent, than follow established Rather doing so, majority, and, in case, it out in this tosses judges attorneys and supervised local district robs necessary order for review of a tool protec- extraordinary exist, and circumstances where requires public action. swift tion respectfully foregoing I reasons, 75. For concur. Justices JON E to state that I am authorized join this D. and PATIENCE ROGGENSACK
WILCOX concurrence.