*1 In re the Commitment D. Shawn Schulpius: Petitioner-Respondent,
State Wisconsin,
v. Respondent-Appellant.† D. Shawn Schulpius, Appeals Court of argument No. January 02-1056. Oral 2004. February Decided AppWI (Also 369.) reported in 678 N.W.2d granted † Petition to review 4-20-04.
On behalf of the the respondent-appellant, cause Henak, of Ellen on was submitted the briefs assistant state defender of public Milwaukee. There was oral Ellen argument by Henak.
On behalf the the petitioner-respondent, cause A. Peggy Lautenschlager, was submitted the brief Weinstein, general, and Warren D. attorney assistant argument by Warren attorney There was oral general. D. Weinstein. Wedemeyer, Schudson, EJ., and JJ. Fine
Before Schulpius appeals ¶ D. from FINE, J. Shawn denying the Trial motion to "Enforce the order his 1999 and for Order October Court's Decision directing released from the Order" that he be Final "sexually custody he committed as which was (Uppercasing person" under Stat. ch. 980. violent Wis. omitted.) encompassing presented issue is whether The properly Schulpius, was committed under ch. 980 who dangerous from offender, be released as a sex must responsible government agen- commitment because comply subsequent trial-court orders did not cies directing community placed in that he be under though supervised release, trial court even deter- hearing at most recent court mined likely substantially if from his is to re-offend released confinement —either under out- right. hold that he is entitled to such release. We Accordingly, we affirm.
I. history byzan- procedural in this case is 2. The length gives it we it out in some because tine and set brief, In was found to be a needed context. "sexually person" violent as that term defined Wis. custody ch. committed to the secure was Family of Health and Services for of the immediately, in-patient however, Almost treatment. *4 that directed either trial court issued series orders County, both, or Milwaukee supervised plan Schulpius prepare a on treat years, community. Schulpius When, in after several custody, being detained secure trial was still rights Schulpius's constitutional were court ruled that violated and ordered his immediate release. Subse- quently, Schulpius however, the trial court found that longer was no suitable for release because of dangerous history his tially mental condition. The has essen- phases,
two which we discuss turn.
A. Phase One. Schulpius, In December of 1991, then one eighteen, pled guilty week short to and was convicted first-degree four-year-old boy sexual assault of a for 948.02(1) baby-sitting. § whom he was See Wis. Stat. (1991-92). Schulpius, previously who had been waived stayed to adult court for prison crime, was sentenced to a years put probation term of five and was years. Schulpius's probation five was later revoked pornographic tapes he because had incest-related video magazines possession, repeatedly and comply in his did not probation. Schulpius
with the rules of his previously stayed five-year started to serve his term. In shortly Schulpius October of before was to be petition seeking released, the State filed a his commit- sexually ment under ch. Wis. 980 as a violent person. baby-sitting ¶ 4. The sexual assault of the four- year-old boy Schulpius was not the first time had sexually Schulpius's history assaulted a child. of deviant criminality psychological sexual was related in a assess- support ment submitted to the trial court in of the petition. State's October 1995 Wis. Stat. ch. 980 What psychologist Schulpius's characterized as "first group of sex offenses" started when was began molesting step-sister (approxi- fourteen. "He mately age his time), weekly 6 at the aton least a once basis year apprehended. for six months to a before he was Mr. fondling per- describes his offense as *5 step.-sister." forming result, As a sex on his oral facility Sehulpius placed where, at a mental-health was Sehulpius according psychological assessment, approximately of individual three months "received therapy Nevertheless, months some six treatment." re-assaulting step-sister "began Sehulpius his later, having fondling again including him, her her, fondle rubbing penis performing her and his oral sex on During Sehulpius legs." time, this also her between one[-]year[-]old half-brother." "fondled his relapse psy- Sehulpius explained ¶ to the his psychological telling chologist, in her her, as recounted providers" at assessment, that "the treatment facility he was sent after his mental-health apprehension to which sexually assaulting six-year-old his
for prepared step-sister to deal with his sex "were Sehulpius also claimed that his offenses in treatment." one-year-old was, half-brother as also assault on his impulsive reported psychological assessment, "an in the changing baby's diaper. Sehulpius was act" while began Sehulpius fifteen, he as- was 6. When neighborhood saulting girls and, also, in one of his his approximately biological then eleven sisters, who was assaulting sexually his or twelve. He also resumed Sehulpius younger step-sister. was then sent to another psychological facility The assessment for treatment. petition support October, 1995, of the submitted recounts: may the treatment have been
[Sehulpius] reports that re-offending, but he prevent him from was effective apply himself at that time too immature to times, at setting. reports cooperated He he treatment mainly putting up cooper- a front of but this involved writing very lengthy answers to ating, example out cramming but them with useless assignments, his information, might so that he working avoid on his disclosing offenses or information.
Schulpius facility left the treatment when he was group seventeen and entered a home. heWhen lost one part-time jobs, babysit of his two he "offered to for a young woman friend's son." The child was the four- year-old boy Schulpius whom assaulted in the waiver- ultimately to-adult-court criminal case that resulted in imprisonment following pro- his the revocation of his bation. Following
¶ 7. June Wis. Stat. ch. 980 Schulpius trial, bench the trial court found that was a sexually person. §§ (trial), violent See Wis. Stat. 980.05 980.01(7) (1995-96) (definition "sexually per- violent son").1 pre-dispositional-investigation report pre- A was pared by psychology Dennis M. Doren, Ph.D., director services at the Mendota Mental Health forensic/adult investigation, Institute. In the course of Dr. Doren's Schulpius phrased by had, admitted to him that he as sexually Doren, Dr. assaulted others for which he "was prosecuted (involving reportedly never about 20 differ- mostly advantage ent least[,] victims at where he 'took person')." reviewing possible placements of the After facilities, treatment as well as what Dr. Doren Schulpius's "relatively characterized as then ear- new improve nest efforts to himself and learn how to avoid violent WISCONSIN Stat. person" as including § 980.01(7) (1995-96) "a person who has been convicted of defined "sexually a sexually violent dangerous offense . .. and who is because he or she suffers from a mental disorder that makes it substan tially probable person engage will in acts of sexual 980.01(7) violence." This is also the today. § definition (2001-02). "Sexually violent offense" was defined to include 948.02(1). 980.01(6)(a) (1995-96). § violations of § Wis. It 980.01(6)(a) (2001-02). today. § does so Doren concluded acts," Dr. sexual violent committing in the available what was that, reality given needs, should be community Schulpius's Dr. Doren facility. treatment at secure committed for explained: that Mr.
Ultimately, this examiner believes community for his currently positive intentions has re- prefers the idea of never adjustment, and much he The situation into which committing a sex crime. however, released, simply seems too insuffi- would be supervisory resources to in its educational and cient time to ensure commu- effectively for him at this work circumstances, with nity safety. Under the above listed learning develop a new life stress of the enormous him, inadequately developed ways unfamiliar to date) (i.e., effect to to address treatment new skills *7 face, and he would with emotional difficulties stress, on his act as he felt at the time based freedom to Schulpius examiner that Mr. likely it too to this seems circumstances) (like go analogous people in would other would, for coping/behavior. This patterns to old back (including of testing limits his Schulpius, include Mr. rules, "red personal his own supervised release set From this offense recidivism. flags") and actual sexual community is the risk to the perspective, examiner's recommend that Mr. great at this time to simply too Chapter to his treatment relevant Schulpius receive his community setting. a 980 commitment within that his recommendation Doren, however, tinctured Dr. a with facility committed to secure Schulpius least, at on based, it was part acknowledgment lack of alternatives." apparent "the recom- Dr. Doren's The trial court followed ordered and, July mendation mental [i]n care ... secure to institutional "committed §§ 980.06 or Wis. facility" pursuant health unit Stat. (1995-96). and 980.065 The trial court, however, con- cluded that was more suitable for supervisory if there was an re- appropriate community source, and, in a "supplemental order" issued on August 8, 1996, started the mechanism to find one:
At the hearing, commitment I found that two particular things required were respect (1) [Schulpius's] placement: significant level of su- pervision, such as is available in residential treatment (2) "half-way or a setting; house" access to an appropriate sexual assault program. treatment I also [Schulpius's] found that neither circumstances [n]or protection community required prison of the level security, by which I intended to placement indicate that in a secure mental facility necessary. health was not I ordered institutional in a placement only care secure because the record did support a commitment order any facility" any "supervised "other or to release" which necessary would have assured the residential supervision and treatment programming. findings
I made Depart- these in order to assist ment in complying statutory requirement with the control, arrange it "shall care and treatment of the person in the least restrictive manner consistent with requirements person of the and in accordance with 980.06(2)(b), the court's commitment order." Sec. Stats. [(1995-96)].2 980.06(2)(b) (1995-96), § Under Wis. the trial court's "order "specify of commitment" could either institutional care facility... a secure mental health unit or release." *8 By 9, 3223h, legislature § 1999 Wis. Act changed the law to "supervised 29, eliminate the option, release" effective October (2001-02) 9, Thus, § § 1999. 1999 Act 9323(2)(ag). Wis. 980.06 provides: "A commitment order under this section shall specify person placed that be in institutional care." We upheld the automatic initial-commitment to institutional care Ransdell, 202, 5-10, in State App v. 2001 WI 2d 247 Wis. ¶¶ added.) (Footnote ordered the Depart- The trial court if: ment to determine
(cid:127) facility "anywhere in Wisconsin" there was reasonably expected could placement
"where months" for the next four within necessary "supervi- provide him with the would treatment"; sion and access (cid:127) available, to draft either a placement was such "why the or a statement of
placement plan placement Department believes such made." should not be to explain the Department The trial court also directed not available or not consid- such is why, placement "[i]f "the for Schulpius, ered appropriate" placement a less restrictive provide unable presently the trial court commitment secure-custody [than for" re- Schulpius's July appropriate 31] ordered on The court further explained: trial quirements. any plans to create description include a This should subjects living Chapter 980 for provide or in a secure mental require do not confinement who facility. 'half-way place- other such health If house' or parolees are not prison ments available to inmates subjects, I like to know Chapter 980 would available to why this is case. the time for the an order Following extending Supervisor a Forensic Services
Department's response, court on to the trial reported the Department was placement that no appropriate October County in Milwaukee either available Williams, 871, 874-877, 613, 619-624, and State v. 634 N.W.2d 1, 8-19, 7-20, 2d 637 N.W.2d App 249 Wis. 2001 WI ¶¶ 796-801. *9 facility Depart-
elsewhere in no Wisconsin because accept Schulpius, given ment contacted would his his- tory cooperate of recidivism and his failure to with attempts supervisor earlier to treat him. The told the "department's trial court that the recommendation for point Mr. at this is that he should work on developing adequate relapse prevention plan facility, "[i]n treatment staff1 at the secure and that this way hopefully, presents he would reduce the risk he at community placement this time in a and would be accepted placement into a residential in the future." (1995-96) § required ¶ 10. Wisconsin 980.07 periodically that the examine the "mental person condition" of a who "has been committed under discharged s. 980.06 and has not been under s. 980.09." The initial examination must be made "within 6 months again after an initial commitment under s. 980.06 and purpose thereafter at once least each 12 months for the determining person of whether the has made sufficient progress to be entitled to transfer to a less restrictive facility, supervised discharge." to release or (1995-96).3 980.07(1) § January Depart- In § 980.07-report ment submitted its court, trial opined although Schulpius accept- made "has progress yet date," able he "has not examined his begun offenses in of effective terms intervention or develop work needed to and master those interven- report, signed by psychologist tions." The a licensed Director," with the title of "Clinical concluded: re-evaluations WISCONSIN Stat. required by § 980.07(1) (2001-02) that section are is similar and states "for the purpose determining person whether the made progress has sufficient person for the court to consider placed whether should be discharged." release or certainty, degree professional [T]o a reasonable Schulpius remains opinion that Mr. it examiner's is this *10 by Chapter 980 of sexually person as defined a violent understanding of- His of his the Wisconsin Statutes. specific identified incomplete, he has fenses acts of sexual vio- prevent additional interventions yet unidentified lence, he not mastered those as has a Hence, opinion, examiner's it is this interventions. certainty, that effec- degree professional reasonable only provided within a secure treatment can tive facility time. health as this mental report, Schulpius Despite ¶ 11. the unfavorable 980.09(2) § discharge sought under Wis. Stat. today, per- (1995-96), permitted, permits a and which seek dis- ch. 980 to son committed under Wis. Stat. Department's approval charge secre- without probable- tary. held a 26,1997, the trial court On March hearing Schulpius At the at which testified. cause hearing's court entered an order conclusion, the trial finding "probable that cause exists to believe Chap- Schulpius, person respondent a committed under sexually Stats., is still a violent ter 980 Wisconsin person." 980.09(2) § days
¶ 12. Two after the Wis. sought hearing, Schulpius probable-cause an order sixty days, put Department "compelling" to, within provide placement a "in which would him residential significant supervision and access to sexual level of programs." July 15, 1997, the On treatment assault Schulpius's hearing and, motion, held a on trial court according record, entries in the ordered to the docket [Schulpius's] plan Department prepare "to supervised An order" was filed that release." "amended pro day 7-31-96," directed, "nunc tunc and [o]n care: ... committed to institutional "be provided sec. supervised under as [(1995-96)]." 980.06(2)(c)[,](d), Stats. Department again, find could not Once Schulpius. facility appropriate In a take that would August 1997, the court dated to the trial
letter placed if were indicated that program: a tailor-made release, he needed [prepared by Dr. investigation Pre-dispositional The appropriate and adequate that an indicates Doren] community would serve in the which plan treatment [sic] and the communities Schulpius's Mr. needs both half-way place- house would include protection need for community on in the placement followed ment of- long term sex monitoring, intensive electr[on]ic experienced qualified fender treatment by a Sex Offender high supervision risk provider, *11 through the De- Program agent Supervision Intensive of Corrections. partment omitted.)
(Acronyms that indicated The létter pre- lawyer supported Dr. Doren's and his plan analysis, of dispositional-investigation that "a but currently magnitude in Shawn available not is this county Milwaukee, Schulpius's residence," was of which County have "the breadth did not Milwaukee because necessary appropriately depth and to of resources and adequately supervise Sexually aas Shawn August court 12, 1997, the trial Person." On Violent Schulpius's supervised orally A release. written ordered August 18, 1997. entered on order was just August than is more 18,1997, order 14. The frustration pages, trial court's reveals the and it six fiscally approach perceived to driven was a it with what dealing ch. 980: committed under Wis. those with the lack of order allowed
My initial commitment outcome, secure requiring control resources to placement only immediately because there was no alternative, expressing available the expectation that the department subsequently arrange would for a placement. reasonable I non-secure now determine that this dilemma incorrect, resolution of the resources was original and I amend the super- order to an order for placement. vised I further order that department do required Chapter namely, which is make provide reasonable efforts to place- the least restrictive appropriate ment [Schulpius's] for needs.
Although noting "[i]n Schulpius, case Shawn necessary it is not to conclude that are resources [or] department calculus, irrelevant to the that the is required design provide unique to treatment ser- every subject Chapter might vices for 980 who conceivably placed safety a nonsecure set- ting," Depart- the trial court nevertheless ordered the County ment to work with Milwaukee "in an to effort develop appropriate plan" Schulpius, an for and that existing supervised placement truly "[i\f avail- department able, then the must include the cre- efforts placement supervised by ation monitoring which will be electronic personal monitoring by depart- or direct agent ment and which will allow access to a treat- for program." (Emphasis original.) ment The trial court Department "[simultaneously also ordered the seek arrange county prepare plan" for another such a Schulpius, for arrange and, if the was "unable to plan, county such recommend which *12 designated prepare should be to be ordered to such a 980.[0]6(2)(c)." plan under sec. Further, the trial court August supplemental-order 8,1996, reiterated its direc- Department "place- tion that the describe, if nonsecure appropriate" ment is not available or not considered for Schulpius, "any plans provide supervised to create or
440 do not subjects require who for living Chapter mental health as well facility," in a secure confinement " house1 or other such 'half-way placements why as parolees" might inmates prison available subjects." "Chapter available later, Administrator month 15. One Treatment Facilities of Care and Division Department's line the Department The bottom was responded. as the trial court had not place Schulpius still could that: explained directed. The Administrator (cid:127) system adequate treatment as 'outpatient' "the denial, longer are no in
designed persons for who intensive treatment have completed have prevention plan, developed adequate relapse an necessary to components all of the treatment clinically outpatient offender prepare sex Schulpius did not fall within treatment" but that group; (cid:127) facilities County has no residential "Milwaukee offenders"; accept
that will sex (cid:127) Schulpius in a facil- seeking place in suitable County, Department
ity outside Milwaukee facilities that "have nine residential contacted programs offenders into their accepted sex accept Schulpius, past," but that none would de- and, further, county government would no plan for a 'non- "a velop county"; of their resident' (cid:127) place Schulpius tried to Department also the De- facilities with which
independent-living arrangements, but had partment of Corrections apartment willing were to rent "none of them had person for a who room to the offense"; committed a sexual previously *13 (cid:127) contracting "[o]ther than reputable with a resi- facility
dential independent housing provider, only currently the available alternative means of securing a placement residential for an indi- vidual release under ch. 980 would be for Department to take unprec- edented step renting apartment on the open housing market disclosing without to the background landlord the of the prospective ten- However, ant. approach this clearly would frus- trate public policy expressed by the legisla- ture in sex community offender notification Therefore, Department laws. pursue will not option this explicitly unless the Court directs the Department so"; to do (cid:127) could not recommend county
that the trial might court order "prepare plan for Mr. Schulpius." The Administrator opined "[t]he Department be- lieves it has made a diligent effort" to find a placement for Schulpius but was unable to do so because of Schulpius's "history noncompliance facility rules during past community placements, together with his relative lack of progress in treatment to date." 16. By letter dated January 29, 1998, the De- partment notified the trial court it had found a "possible placement" for Pepin County. But within one week, however, the sheriff of Pepin County objected that the facility proposed by the Department inwas a mobile-home park near a similar where facility there were "39 children under the age of 18." The sheriff also wrote that Pepin County was Wisconsin's second smallest with a county, population "just 7,500," over "[w]e 24-hour law enforcement and that do not have Pepin County coverage." Nothing proposed came of the placement. *14 given Schulpius
¶ was another Wis. Stat. 17. January § periodic of 1998. In 980.07 re-examination January report 30, 1998, the clinical director a dated psychologist Department's secure and licensed at the degree facility opined "to a reasonable Stat. ch. 980 Wis. certainty" Schulpius professional "remains a that of sexually by Chapter person 980 of the violent as defined Although psychologist indi- Statutes." Wisconsin Schulpius he "has made cated that believed again program," opined, progress "to he also within this certainty, degree professional that re- a reasonable premature and that effective treatment lease would he only provided a secure mental health can be within facility at this time." Schulpius sought February
¶ 16, 1998, 18. On committing him under order Wis. "dismissal" of the applied" alleging him, "as 980, ch. Stat. Department chapter because the was unconstitutional complied direction that he with the trial court's had not supervised community placed on release. in the be January Following hearings 27, 1999, on 25 and Schulpius's dismissal motion. On trial court denied January a 28, 1999, trial court entered written County present directing a order supervised-release plan Milwaukee Schulpius by February 17, for and, ordered that the "State Wisconsin 1999, further funding required imple- responsible for the will be plan." the trial The order also recited that ment the August 18, 1997, order, which directed that court's placed supervised Schulpius release and that the on plan Schulpius, Department prepare "remains in a Schulpius had his annual meantime, In the effect." § 980.07, re-examination under and in Wis. January report 15,1999, court, transmitted to the trial examining psychologist opined that, "to a reason- degree psychological certainty," Schulpius able was sexually person still a violent and that his commitment "should be continued." February sought On the State placing
reconsideration of the trial order court's supervised sought release, on and also revoking Schulpius's jure "super- concomitant order de vised release status." The State's motion characterized Schulpius's "position" although because, as "anomalous" placed Schulpius the trial court release, being was still held at the secure facility. mental-health By February
¶ 20. letter dated Milwau- *15 County although kee notified the trial court that County making good made "has and is a faith effort to comply require- with the order court's and with the 980.06(2)(c)," underlying statute, ments of the s. it "has possible develop appropriate plan not been an in final during period January form the brief since 28." On February Schulpius 22, 1999, renewed his motion to committing "dismiss" the order him to the secure facility ground mental-health on the that ch. Wis. Stat. being unconstitutionally applied By 980 was to him. February 22, 1999, order entered the trial court: ex- 24, 1999, tended to March the time for Milwaukee County plan; to file a denied the State's motion for hearing reconsideration; a and set date on the State's Schulpius's supervised-release motion to revoke status. The trial court also reiterated earlier denial its of Schulpius's motion to dismiss the commitment order. County
¶ 21. 23, 1999, On March Milwaukee reporting progress wrote to the trial court on its Schulpius's supervised formulating plan a for release. plan incomplete respects: problem The was two finding housing Schulpius was still suitable Schulpius's professed desire unresolved, and to take drug according Depo-Provera, that, letter, to the "has repress physical sexual and been indicated to desires capability," sexual but with "certain risks associated yet fully use," its had not been evaluated. By April Depart- ¶ letter dated the trial court it characterized ment submitted to what "updated as reexamination" under Wis. § supplement January apparently 980.07, report. again opined, The examiner "to a reason- degree certainty," professional able sexually person still a violent who needed to remain was facility. May 10, 1999, in the mental health A secure report although indicated that addendum to Schulpius progressed had in some areas he also dis- "extremely negative played an and attitude sarcastic" "demeaning peers and was and rude and hostile towards staff." May 14,1999, 23. On 12 and the trial court held
evidentiary hearings, both on the State's motion for directing reconsideration or vacatur the orders placed release, and on September Schulpius's motion to On renewed dismiss. 9, 1999, the trial court issued written decision denying finding motion, order the State's "that appropriate." supervised release continues to be The *16 "supervised trial court concluded that as a matter of law ordered unless the court is satisfied release must be likely person it 'much more than not' that the that is securely engage in if will acts of sexual violence noting opinions confined," and, experts the clinical "that predicting no in are of little or value future 445 behavior," also concluded that the State had not proved that that risk.4 Schulpius presented 27, 1999, 24. On October following hearing 21, 1999, held on October the trial court issued a written decision and order. The trial court: fifteen-page (cid:127) recounted that "continues be held custody Chapter
in secure under a 980 order despite years a court order entered over three ago instructing department arrange supervised despite dispositional release and years order entered more than ago requiring two release"; (cid:127) agreed "application Chap-
ter 980"to him "has been in violation of our state constitutions"; and federal (cid:127) opined that "since the constitutional violation imposition from
arises the unlawful of secure custody, finding requires [Schulpius] this custody"; from release[d] such (cid:127) concluded that the constitutional violation "does deprive jurisdiction
not otherwise the court of Chapter under 980." The trial court ordered "that order in any these pro- which in ceedings by [Schulpius] held presently being secure at the custody Wisconsin Resource Center [the secure mental-health facility for committed persons
4 980.01(7) one, § As we have seen footnote Wis. "sexually person" danger defines a violent as someone "who is ous because he or she suffers from a mental disorder that makes substantially probable person engage it that the will acts Curiel, sexual v. 2d violence." State 227 Wis. (1999), interpreted "substantially probable"
N.W.2d likely mean "much than more not." *17 980] assuming under ch. vacated, and, Wis. [Schulpius] may- there is no other lawful basis on which detained, be it is further ordered that he be released forthwith from the Wisconsin Resource Center and custody physical Department from the of the and State (Footnote omitted.) of Wisconsin." The trial court de- Schulpius's "[i]n respects." nied motion to dismiss other The trial court also ordered:
[Schulpius] subject provisions otherwise remains to the Chapter custody 980 and in the Department of the 980.06(1) pursuant Judgment sec. and the Amended 15,1997. July and Commitment Order of He remains in person appropriate status of a found for supervised pursuant 980.06(2)(b), release yet placed sec. but not (c) pursuant to subsections (d). It is therefore further ordered that he in reside [C]ounty, immediately adjacent county, Milwaukee approved by or other location Depart- court or the ment. It is further ordered that he make himself designated representative available to the of the De- partment and he comply that with such further orders of the may court as be entered.
(Emphasis original.) The trial court also issued two separate staying, pending 27, 1999, orders on October appeal, directing the State's its order custody. released from hearing January 25. At a held on Department's
trial court found that the failure to seek authority legislature program from the to "create" a suitable for was "willful disobedience" of its Department contempt, orders, found the im- posed day. per $1,000 a fine of The trial court summa- day: rized its determinations in its order entered record, For reasons set forth on the I found that the support finding Department evidence did not that the willfully disobeyed had the court's orders based on (1) to secure a either the failure of (2) placement any failure of the supervised release *18 Department to make sufficient efforts to secure such through private agencies .... placement record, I set forth on the did find that For reasons any Department's the failure to make effort to obtain supervised resi- authority appropriate the to create [Schulpius] did constitute disobe- placement dential for I of the court's orders. further dience and obstruction disobedience, and found that resistance obstruc- such early was willful in that as as tion of the court's orders 28, 1996, certainly long today's before October date, knew or should have known that the authority that it could the absence of such would assure supervised prepare plan a reasonable for authority practically that its failure to obtain such was certain to assure that result. decision,
In oral the trial court that it was opined its in this case that there were particular Depart- "satisfied made genuine ment who from time to time employees find a and that the failure was due placement efforts to being looking not to the lack of hours some- spent a lack of resources that would be inclined to thing but The under these circumstances." accept [Schulpius] 4, trial court of the fine. On stayed imposition February 2000, the sent a letter to the Department's secretary authority and legislature seeking "statutory funding authority or construct facilities and to force purchase communities. On placement" resisting [sex-offender] 2000, order 16, the trial court entered an February 4 letter "satisfac- secretary's February the finding 31, January the found in the torily purges contempt 2000, Court," and, order of this "vacated accordingly, entirety" contempt finding imposition its sanction. January In the meantime, 13, 2000, on appealed
State
from the trial court's order of October
August
supreme
27, 1999, and,
29,
on
2000, the
court
granted Schulpius's petition
bypass
this court. State
Schulpius,
v.
102,
264,
WI
237 Wis. 2d
618 N.W.2d
808.05(1).
§
Subsequently,
753; see Wis. after the
sought
appeal voluntarily
State
to dismiss the
because
granted
the trial
had,
court
November
State's motion for reconsideration and determined that
longer
was no
suitable for
release,
supreme
court vacated
order,
and remanded
appeal
Schulpius,
to this court. State v.
69,
2001 WI
curiam).
(per
2dWis.
B. Phase Two. The trial 29, 2000, court's November deci- following evidentiary and, sion reversed course hear- ing, likely found that as of that date "it is much more [Schulpius] point than not that will reoffend at some in supervised." future, even while The trial court's following decision related the evidence: (cid:127) application of the Structured Risk offenders,
Assessment model for sex and sup- porting testimony Sachsenmaier, Susan Ph.D., Department psychologist, and David Thornton, Ph.D., the model's architect who is psychological also director of services for Her Majesty's System Britain, in Prison Great which [Schulpius] [the "caused trial court] view as re-offense higher general risk of representing confi- that with increased and to hold view dence"; main unequivocally "has
(cid:127) Dr. Sachsenmaier extremely represents an [Schulpius] tained type even while under high risk for re-offense (Emphasis in posited by the court." supervision original.)5; and threatening behavior to aggressive, (cid:127) Schulpius's at the when she was Dr. Sachsenmaier ward facility, which Dr. Sachsen- mental-health secure poor report in her "demonstrates maier wrote skills, interpersonal poor self-management skills, control of his emotions and ineffective reasoning processes."6 in court's Indeed, specifically the trial although quoted May report, on which decision, Dr. Sachsenmaier's in concern for the emphatic its part, court relied in was trial polymor- "Mr. is a future victims: safety potential my in mind There is no doubt perverse sex offender. phously he will reoffend." opportunity has an as soon as he excerpt from Dr. Sachsenmaier's complete a more This is report: express any sign point that he understood did he
At no displaying. agitated behavior he was irrational and poor self- Schulpius' demonstrates Mr. behavior this situation skills, skills, poor interpersonal con- management and ineffective significant reasoning processes. This is of his trol emotions they many him did not light have told the fact that of his victims *20 contact, him, any more sexual contact with or want to have sexual through got intimidation persisted he wanted he until he what but example manipulation. a sex offender's offense This is an of facility response surfacing to a cycle characteristics within aggressive minimal, trigger. example of think- It is non-sexual ing. recognizing predic- its While earlier assessment that dangerousness generally problem- tions of future were opinions atic, the trial court was "satisfied that persons who have studied and worked sex offend- [and] ers have value . .. there are reasons to consider they may greater tha[n] lay that be value judge might conclusions reach from the same evi- assessing Schulpius's aggressive dence." In behavior to "acknowledged Sachsenmaier, Dr. the trial court might degree, such incidents Schulpius' well reflect, to some with his confinement, frustration unlawful persisted an unlawful confinement which more has for (Footnote omitted.) years." Although than four the trial opined "[i]t court that in its view would be fundamen- tally unfair if unlawful confinement were to cause justify use[d] behavior which then to lawful confine- speak ment[,] ... to the extent that these incidents to a judgment they lack of and self-control. . . are relevant to the assessment risk." granted The trial court the State's motion prior reconsideration,
for and vacated its orders penultimate The release. sentence to the provided: trial court's November decision "It is further ordered that be Shawn committed pursuant still 980.06, institutional care section subject, requiring however, decision and order entered in release this case October 1999." Simply put, court trial ordered that Department's custody, committed to the secure also but reaffirmed its earlier order that that he be directed custody from released "forthwith" because of what Schulpius's the trial court as violations of con- viewed rights. directing noted, stitutional As the order stayed Schulpius's pending had been the State's appeal. *21 its the trial court issued Some time after 29.
¶ 29, 2000, decision, the Honorable John November Wis. Stat. Franke, Schulpius's who over presided had by its was succeeded ch. 980 case since inception, DiMotto, John to rotation- pursuant Honorable J. 70.23(3). County. in Milwaukee See SCR of-judges plan Dr. conducted Schulpius's Sachsenmaier ¶ § 980.07 re-examination. Again, Wis. Stat. July, to be dangerous she was too Schulpius concluded that from custody. released secure Schulpius diagnosed Pedophilia and Mr. has been Disorder, Personality qualify both of which Antisocial is, by Chapter as 980. That a mental disorder defined as congenital, acquired is a condition that is or each capacity, together and his or volitional affects emotional sexually him to commit separately, predisposes vio- or by opinion 980. It Chapter lent acts as defined Mr. Schulpius' response this examiner that treat- substantially not ment to date has been sufficient sexually violent reduce the likelihood of future of- fenses. opinion, a reasonable
It is therefore this examiner's certainty, that Mr. degree psychological of scientific as defined Schulpius Sexually a Violent Person remains Hence, by Chapter of the Statutes. with a Wis. psychological cer- degree reasonable scientific Mr. tainty, opinion it is this examiner’s time considered the court at this should be discharge Chapter from sta- supervised release pre- Sexually tus as Violent Person. Mr. ("much likely probability a substantial more than sents not") sexually commit another violent he will community, placed in the should he even offense Therefore, safeguards. community this with reasonable intensive treatment examiner recommends continued setting. in a confined September Judge 31. On DiMotto held probable hearing cause under Wis. *22 980.09(2)(a) § to determine whether there should be
evidentiary hearing Schulpius if determine was still a "sexually person." By 1, violent order entered October 2001, the trial court determined that there no were hearing" "facts that warrant a further issue, that and Schulpius that was to remain "committed to the cus- tody" Department the care, control, of "for and treat- facility a ment in secure mental health until further jurisdiction." competent a order of court 26, 2001, 32. On November filed a "motion to enforce the trial court's decision and order 27, October 1999 and for final order which releases [Schulpius] physical custody from of the State of Wis- Family consin of Health and Services." omitted.) (Uppercasing capitalization trial The January 17, court denied that motion an order dated Schulpius currently 2002, and it fromis that order that appeals.7
II. ¶ 33. immediate seeks either or, from his Wis. tively, ch. 980 commitment alterna- Stat. custody. his immediate release He from secure argues that he is entitled to one of these alternatives responsible government because entities did not comply directing with the trial court's orders his supervised-release placement, deprived and that this procedural process. him of both substantive due presents legal analyze This issues that we de novo. See 7 13, 2003, August supreme On court Schulpius's denied petition bypass 126, this Schulpius, court. State v. 2003 WI 808.05(1). 650; § 2d 265 Wis. 688 N.W.2d see Wis. 453 279, 301, 115, 121 Post, v. 197 Wis. 2d N.W.2d State denied, 521 U.S. (1995), cert. 1118.8 governed by that parties peripheral Both raise issues are First, briefly. may be dealt State settled law and thus trial November decision was contends court's subsequent no order was ever appealable a final order because therefore, appeal Judge from entered, and Schulpius's bring us review order does not also before for what DiMotto's disagree. The Judge did on November 2000. We Franke entry unambiguously contemplated of a on its face order sentence, when, in the last the trial court reifying order "As 70.15 establishes required [sic wrote: SCR 70.15 —SCR Wisconsin"], a form order such judicial "the conference of separately Thus, commitment November entered." will order," though "final not on its face a even document was separate order Judge entry Franke later decided that was *23 Stores, Inc., 490, necessary. Red Owl 109 Wis. 2d not Radoff v. (1982). Moreover, 493-494, 240, 241-242 as we note 326 N.W.2d decision, challenge not body main of this does the in the November 29 document Judge Franke's determination supervised of date he not suitable for release. that as was Second, not Schulpius argues that the trial court did have jurisdiction on the State's motion grant November appeal. then We for reconsideration because the case was on 808.075(1) specifically permits § the disagree. Wisconsin Stat. pending court to entertain motions for reconsideration trial § in Wis. nothing and is in either 808.075 or appeal there Stat. contrary. supreme recently As the court ch. 980 itself to reiterated: pending appeal important serve Motions for reconsideration an may A need function. circuit court's reconsideration obviate the for therefore, could, only spare appeal. Allowing such an motions unnecessary goal parties expense, hut could also serve the of avoided,
judicial economy. appeal if a motion for Even an is not analysis hone enables a circuit court to its reconsideration expedite appellate process. thus review
454 predator's pool rights by- ¶ A sexual of is fed statutory components three streams: the two of Bast, 152, 17, 268 Highland Manor Assocs. v. 2003 WI Wis. 2d (footnote omitted). 709, 672 N.W.2d 1, _, 713 Third, Schulpius argues, also an undeveloped two- paragraph appellate brief-in-chief, in his section that the State's "untimely" motion for reconsideration was because it was made years "almost 3 after court issued order granting its 2/3 18, August release 1997." Motions for reconsid however, may, eration be made under Wis. Stat. Rule 806.07(l)(h) 806.07(2); "within a reasonable time." Rule see 231, Sprosty, App 16-17, State v. 480, 2001 WI 248 2d ¶¶ Wis. 493-494, 213, (recognizing 636 N.W.2d 220 applicability of Rule 806.07(l)(h) cases). Although Wis. Stat. ch. 980 neither the rule, State nor the trial court pleading stating referenced the specify cause relief need not the label under which that relief sought. Converse, 418, 422-423, v. 111 2d See Strid Wis. 331 (1983) 350, Moreover, N.W.2d 353 (complaint). the State's motion on contemporaneously acquired evidence, was based including Schulpius's aggressive, threatening behavior toward Sachsenmaier, Dr. spin and was thus not a new on old facts. See Williams, 155, App 12-17, State v. 722, WI 2d ¶¶ Wis. (use 806.07(1)(b) 729-731, 623, 631 N.W.2d 626-627 Rule modify existing for supervised person order of a ch. impermissible committed under when evidence "re- reformulat[ed]"). cycl[ed]" and One the "principal purposes" Wis. ch. 980 is to
protect public sexually from predators violent "who are at a high Carpenter, risk to reoffend." State v. 197 Wis. 2d *24 105, (1995), 541 N.W.2d 112 cert. denied sub nom. Schmidt v. Wisconsin, Schulpius's 521 to adopt U.S. 1118. We decline undeveloped put contention that we should a time-limit on the ability bring State's to information to the trial new court that bears on the sexually person risk that a violent ordered be placed supervised pose community. on may release to the Cf. (1995-96) 980.06(2)(d) §§ Wis. Stat. on (person supervised custody, be may may release taken into and the Department
455 process procedural the constitutional due right — a Thus, dangerous of how irrespective substantive. be, he or she cannot be deprived sexual predator might or her unless statute authorizes liberty his (conviction and criminal by process deprivation —either sentence) ch. civil 980 is process. Wisconsin v. 252, 2d State Carpenter, 258, 197 Wis. statute, a civil (1995), cert. 107, 265-272, 105, 541 110-113 N.W.2d Wisconsin, sub nom. Schmidt v. 1118, denied 521 U.S. is, due satisfy procedural process and must —that must mini adjudication mechanism of disposition see Mathews mize risk of an erroneous deprivation, (1976). The Eldridge, v. 319, 424 335 essence of U.S. to be heard 'at a meaning this is "the right opportunity Id., in a manner.'" 424 U.S. at meaningful ful time and omitted).9 has survived Chapter 333 source 980 (quoted various, related, chal albeit procedural-due-process Curiel, See v. 389, 414-415, State 227 Wis. 2d lenges. release, safety if supervised "the of others seek revocation 980.08(6m) revoked"); requires supervised release be (2001-02) (person supervised may release be taken into Department may seek custody, and the revocation release, safety requires that supervised if "the of others 545-546, revoked"); 531, 96 2d 292 Shaffer, State v. Wis. see (Ct. 1980) (we 370, develop appellant's will not App. N.W.2d 378 Further, argue argument). Schulpius does not that the State's it in essence motion was defective because was reconsideration 980.08(6m) supervised-release § his status. petition revoke 5, 300, 268 N.W.2d Morford, See State v. 2004 WI 2d 674 Wis. Assocs., matter is See Reiman Accordingly, waived. Adver., 305, n.1, Inc., 102 2d 306 N.W.2d Inc. v. Wis. 306 R/A waived). 1981) (matter (Ct. argued App. n.1 294 subject analysis to a Criminal-law statutes are different because, guarantees enumerated in the "[bjeyond specific operation." has Rights, Bill of the Due Process Clause limited (1990). States, United 493 U.S. Dowling v. *25 (1999) (vagueness); 697, 708-709 597 N.W.2d State v. Zanelli, 545, 556-558, 223 2d 687, Wis. 589 N.W.2d (Ct. 1998) (fair App. triggering of 693-694 notice men- status); Kienitz, 275, tal State v. 221 2d 309-310, Wis. 1998) (Ct. App. (vagueness). 609, 585 N.W.2d 623 process, ¶ 35. Substantive due on hand, the other protects government persons from conduct that either " rights the 'shocks conscience'" or "interferes with 'implicit concept liberty.'" in the of ordered United (1987) (quoted Salerno, 739, States v. 481 U.S. 746 omitted). irrespective proce- sources is of This true due-process safeguards. County dural Sacramento v. of (1998). example, although Lewis, 833, 523 U.S. 840 For Supreme the United States Court once sanctioned the involuntary persons sterilization of with severe mental (1927), deficiencies, Bell, 200, Buck v. 274 U.S. 207-208 eugenics upheld isit doubtful whether the law in Buck pass scrutiny today, irrespective proce- would of safeguards dural used select those to whom such applied, would be law see Board Trs. the Univ. of of (2001); Fieger Garrett, Ala. v. 356, 531 U.S. 369 n.6 v. (6th 1996). 74 Thomas, 740, F.3d 750 Cir. due-process compliant
¶ A statute that is may, "pinch application"; face however, its ... its applied way person's is, in such a as to violate due-process rights. City Chicago, Terminiello v. 337 (1949). Schulpius's complaint 1, 6 U.S. This is nub Although Schulpius person here. contends that a who claims that a constitutional statute unconstitutional applied prove as-applied invalidity as need beyond doubt, a reasonable which is standard that facial-challenges, applies Post, 301, 2d at Wis. Joseph 121, otherwise, at the law is v. N.W.2d State App 481, 486, 623 5, 240 2d E.G., 2001 Wis. WI 2d A.B., 231 Wis. 137,140; State v.Matthew N.W.2d *26 (Ct. 1999); App. see also 598, 608 605 N.W.2d Admin, Darlington, Inc., 358 U.S. v. Federal Hous. (1958) contending (requiring party that statute 90-91 invalidity applied as show the unconstitutional was doubt"). "beyond a rational seen, faults various As we have agencies inability comply with for their executive " Judge of substan- Franke's orders. The 'touchstone'" "against government process protection is the tive due power arbitrarily oppressively Lewis, exercised." (quoted omit- at source and citation 523 U.S. 845-846 ted). "only egregious official conduct Further, the most 'arbitrary in the constitutional sense.'" can be to be said omitted). (quoted Lewis held Id., 846 source 523 U.S. at Appeals Court of for the Ninth Circuit that what the indifference" to determined was "deliberate sixteen-year-old motorcycle-passenger rights aof following boy deputy into the who skidded sheriffs deputy's high-speed the rules of the chase that violated department of a did not rise to the level substantive due-process Id., 836-840, U.S. at violation. comply Thus, failure to 854-855. whether the Judge deprived Schulpius orders substan- Franke's process of the turns on "whether the behavior tive due egregious, [was] [responsible] governmental officer so fairly outrageous, may said to shock the that it so contemporary conscious," n.8, at id., see 523 U.S. government additionally, officer's con- and, whether the "deprive" decision[]" a "deliberate duct was either liberty interest, or reflected the of his liberty interest, indifference" to that officer's "deliberate omitted). (emphasis at 849-850 id., see 523 U.S. Schulpius points nothing ¶ 38. in the eviden- tiary implement record that shows the failure to anything the trial court's orders was the result but good-faith things efforts that did not succeed because of beyond the control of those to whom the court orders Schulpius's were directed —not the least of which was history dangerous predation own sexual experts unanimously agreed could not be controlled and community treated in the under release. although Judge initially Thus, seen, as we have Franke contempt seeking held the thority for not au- funding legislature from the to create a supervised-release facility Schulpius, Judge Franke only contempt Department's vacated the when secretary immediately legislature seeking wrote to the *27 authority, Judge such but, indeed, as have seen, we Franke also:
found that the did support finding evidence a willfully the Department disobeyed had the court's (1) orders on the of Department based either failure the (2) a supervised to secure placement any or Department failure the to of make sufficient to efforts placement through secure a private agencies. such Significantly, practicable ¶ 39. the difficulties County faced the and Milwaukee are assessing non-compliance material in whether the with Judge Franke's rises to the of a orders level substantive- due-process Youngberg Thus, Romeo, violation. v. (1982) (quoted omitted), 307, U.S. 320-321 source rights which concerned the and of care treatment a person involuntarily confined because of severe his recognized retardation, mental one of the factors balancing substantive-due-process in the calculus—the liberty of" 'the of the individual' 'the of an and demands organized society'" "fiscal administra- —included "[i]n Accordingly, damages for tive burdens." action against capacity [alleg- professional in his individual professional injury responsible ing de- because the substantially professional judg- parted accepted "from professional however, the will not liable if he ment"], satisfy professional unable his normal standards was budgetary situation, constraints; of because such liability." good-faith immunity Id., bar at would U.S. Sprosty, 327, also v. 2d 323; see State 227 Wis. ("In (1999) 692, 697 the context where 595 N.W.2d [seeking community person release into the the arrangements release] may live and for what things availability are such as the treatment available security, may, in the and cost considerations facilities, of court's discretion, into the court's decision on factor appropriateness supervisory release," but, neverthe- person "prior acceptance into less, of the those facilities inappropriate programs or is an consideration at hearing petition supervisory release," on the availability "[a]ny of facilities consideration of costs providing keeping the 'least restrictive' must be accomplish person treatment of and the means (quoting protection public.") Wis. added). 980.06(2)(b) (1995-96); § emphasis Once, of person super- to be suitable for course, a determined prevents trial court from release, the statute vised *28 revoking solely supervised release because of costs or unavailability Sprosty, 227 of suitable facilities. the 331-335, But that did 2d at 595 N.W.2dat 699-701. Wis. happen Judge here; not Franke's November suitability supervised Schulpius's decision assessed responsible release, difficulties faced the not the complying All in his earlier orders. we hold entities with to those difficulties are material the substantive- that due-process respon- constitutional of issue whether the government acting good sible entities were faith. Youngberg they clearly Under are. Schulpius's history
¶ 40. Given horrendous of predatory against good- children, sexual violence the inability responsible persons comply of faith to Judge Franke's orders neither shocks the conscience trespasses rights implicit concepts nor of ordered liberty. Accordingly, Schulpius by any has shown, not beyond certainly standard, and not "a doubt," rational Darlington, deprived 91, U.S. at that he was process by application due substantive of Wis. pointed nothing ch. Moreover, 980 to him. has he also to evidentiary any in the record that even hints that procedural safeguards in ch. 980 were short- either ignored by any government circuited, truncated, or procedural safeguards— Rather, actor. all of ch. 980's designed applied, to minimize the risk error —were scrupulously, to him. get
¶ 41.
is true
It
did
supervised
Judge
he
release
wanted
to which
Franke
he
true,
determined
was entitled. It is
as
also
Judge
speculated,
Schulpius's
Franke
frustration
being
over not
able to achieve the
undoubtedly
sight may
that he
believed was within his
have
to what the trial
contributed
court's November
Schulpius's
as
decision characterized
then condi-
likely
being
[to]
tion of
"much more
than not
reoffend at
point
supervised."
future,
some
in the
while
But,
even
although Judge
opined
Franke
that it "would be funda-
mentally
if
unfair
unlawful confinement were
cause
justify
use[d]
behavior which is then
confine-
lawful
Judge
non-compliance
ment,"
Franke never found that
designed
place Schulpius in
with the orders
*29
community
supervised
caused
to
on
"sexually
person"
violent
or be unsuitable
either be
recognized
Judge
Rather,
Franke
release.
aggressive
Schulpius's
Dr.
behavior toward
Sach-
that
(where,
facility
presumably,
senmaier within
Schulpius
behavior)
been
his best
was
have
would
risk,"
Dr.
the assessment of'
as was
"relevant
to
Judge
opinion,
refer-
which
Franke
Sachsenmaier's
decision,
that
enced
"represents
the November 29
extremely high
risk for re-offense even
by
type
supervision posited
while under the
omitted.)
by Judge
(Emphasis
court."
Franke
Judge
although
recognize
Moreover,
we
justifiable
inability of the
Franke's
Department
irritation at the
County
comply
Milwaukee
to
with his
community
any judicial
puts
orders,
decision
at
agents
government may have
risk because of what
"potential injury" to
done or not done must balance the
society's
against
"potential
interests
benefits"
any
designed
rule
to deter future
would flow from
by
agents,
not the case
conduct
those
even where—as is
might
designed
agents
have violated rules
here —those
rights.
protect
United States v. Calan
constitutional
(1974) (Mapp Ohio,
dra,
338,
414
348-349
v.
367
U.S.
(1961),
grand jury proceed
apply
643
does not
U.S.
juries
ings
society's greater
grand
need to
because of
let
evidence);
largely
right also
have the
unfettered
see
ex
v.
& Soc.
State
rel. Struzik
Health
(1977)
Servs.,
216,
660,
77
2d
252 N.W.2d
663
Wis.
(statements
Arizona,
taken
violation of Miranda v.
(1966), may
parole- U.S.
be used at
384
436
hearings);
probation-revocation
Lombard,
v.
State
App
¶¶ 26-27,
2d
266 Wis.
WI
(statements
person
made
157, 165-166
N.W.2d
examining
ch. 980 to an
committed under Wis.
*30
psychologist may
proceedings
be used in ch. 980
even
though
person
given warnings
the
was not
set out in
long
Miranda so
as those statements could not incrimi
"
person
pending
subsequent
nate the
'in a
or
criminal
prosecution'") (quoted
omitted),
granted,
source
review
140,
2003 WI
266
59,
Wis. 2d
671
847;
N.W.2d
State v.
(Ct.
Jackson,
328,
229 Wis. 2d
345,
39,
600 N.W.2d
47
1999) (statements
App.
made
a defendant whose
rights
County
McLaughlin,
under
Riverside v.
500
of
(1991) (arrested suspect
probable-
U.S. 44
must have a
hearing
forty-eight
arrest),
cause
within
hours of
were
sup
violated,
pressed), grant
not,
are
for that reason alone, to be
corpus
grounds,
habeas
rev'd on other
of
(7th
2003);
Jackson v. Frank,
¶ 43. to the at dangers presented by far, least so is similar to the those who, in the Hendricks, words of are "afflicted with an highly contagious untreatable, Hendricks, disease." community Releasing Schulpius into the U.S. at 366. danger presents despite would, he as the substantial applica- goes, phrase sum, the law on its head. In turn deprive of Wis. Stat. ch. 980 did tion procedural process. due him of either substantive appropriately Schulpius's Judge denied motion DiMotto Judge directing Franke's order to enforce Schulpius be released "forthwith."
By affirmed. the Court.—Order (dissenting). SCHUDSON, J. For more than July years, 2000, the from 1996 to November four Schulpius1 supervised re- court ordered Shawn circuit During years, repeatedly court reiter- lease. those *31 (1) motion for ated its order and: denied the State's (2) given reconsideration; concluded, asser- State's inability orders, tion of its to follow Wis. Stat. applied Schulpius; ch. unconstitutional as 980 was (3) (4) supervised "forthwith;" ordered his release Family found the contempt. of Health and Services Schulpius' supervised Still, the orders for not followed. release were years ¶ Thus, for more than before the 45. four supervised orders,
court vacated the release And, remained confined in violation of court orders. throughout present, time—and even to the as Attorney at oral indicated the Assistant General argument before this court —the State was and is implement unable to court orders for County. predators of sex in Milwaukee short, but, In ch. 980 is the law Wis. And it cannot be some, it cannot be enforced. when despite court enforced, individuals remain confined accepts if one the under- Thus, orders to release them. necessarily lying logic predators 980, of ch. these sex 464 ¿^appropriate very receive or, services that are at the appropriate least, less than those the courts have found provide community pro- would the best treatment and tection. years ¶ 47. Are more than con four of unlawful " 'shocking in violation court orders to the
finement justice1"? Hyndman, universal sense of See State v. 170 (Ct. 1992) App. 198, 208-09, Wis. 2d 111 488 N.W.2d (quoting (1973)). Russell, United States v. 411 423, U.S. 432 governmental "shock[ ]
Does such misconduct the conscience," see Rochin v. California, 165, 342 U.S. (1952), and thus constitute a denial of substantive process? due very questions
¶ 48. The seem sarcastic. Confin- ing person day, in violation of order, a court even for a is cause for concern. When unlawful confinement con- beyond tinues time, brief concern becomes constitu- triggering "great cause, tional sometimes even writ" corpus. Seling Young, —habeas See v. 531 U.S.
(2001). And that is so even when the unlawful confine- ment results from misinterpretation mistake, an innocent such as the sentencing
of a order or the miscal- generally culation of a release date. See Preiser v. (1973) (habeas Rodriguez, corpus U.S. 484-86 provides illegal custody). relief from Schulpius' years
¶ 49. here, But more than four unlawful confinement did not result from an innocent *32 misinterpretation. Schulpius' mistake or unlawful con- (1) notwithstanding: finement continued the State's understanding supervised full of the court orders for (2) inability imple- release; and the State's claimed ment the orders. governmental
¶ 50. Such
conduct is unconscio-
nable; it constitutes deliberate indifference as a matter
by any
law,
of
even absent bad faith
individual official.
465
Supp.
F.
2d
1140-41
Herman,
See Johnson v.
132
2001) (The
(N.D.
policy
procedure
Ind.
absence
clearly
verifying
needed,
one is
such as
where
authority
prisoner, gives
to confine a
rise to an infer-
resulting
and,
ence of deliberate indifference
where
unlawful confinement could have continued "for
totality
months," the
of the circumstances "shocks the
conscience."); Armstrong
Squadrito,
v.
152 F.3d
1998) ("In
(7th
sense,
Cir.
a constitutional
how
578-79
get -jails
much more basic could it
people
cannot confine
—
authority
policy
A
without the
to do so.
jail
ignores
authority
long-term
whether the
has the
for
policy
confinement seems to be a
ence.").
of deliberate indiffer-
"[i]n
Indeed,
sense,
constitutional
how much
get?" Armstrong,
more basic could it
commitment laws have raised serious
con-
challenges.
cerns and faced concerted constitutional
See
(cases
therein).
Majority
Addressing
¶at
cited
those
*33
challenges,
sought
rights
courts have
to balance the
predators
completed
sex
who have
their sentences and
rights
they endanger.
the
of the communities
Balancing
scales,
the Wisconsin Su-
preme
precisely
that,
Court concluded
because Wis.
procedural
ch. 980 included certain
and substan-
safeguards,
generally
tive
it was constitutional. See
Carpenter,
State v.
252,
197 Wis. 2d
¶ 55.
In
court
consti
challenges
tutional
to certain amendments to
Stat. Wis.
affecting
predator's opportunity
super
ch. 980
a sex
¶¶
Rachel,
1-2,
vised release. State v.
81,WI
Concurring,
2dWis.
In to the the as to whether dissent release is viable option, majority again the in this case once relies on assumption statutory that the State will meet and its obligations. majority The constitutional writes: "we appropriate agencies think it is more that and charged monitoring that are individuals with the treat- progress sexually ment of institutionalized per- violent given assumption they sons be the benefit of the carry responsibilities legislature will out their as the has directed." assumptions good
The court's and the faith State's wearing are thin. gain experience way
We continue to with the played ch. out in the Carpen- 980 has real world. Since Post, ter and the case law has become rife with ex- amples inability provide of the State's appropriate placements for those committed under ch. 980. (citation omitted). Id., 74-76 ¶¶ id., 56. faith thin." See wearing "[G]ood [was] ¶ 75. Now it is threadbare. If repeated violations ¶ court orders in more than resulting years unlaw- four ful cannot confinement convince our courts to restore liberty fabric, constitutional individual no will longer protected penetrating from winds of governmental cynicism neglect. Clearly, Wis. Stat. ch. unenforceable in
Schulpius' applied case, was unconstitutional as to him. years His more than of unlawful confinement four respect should "shock conscience" of all who the rule remain of law and community protection. dedicated to both civil liberties and reasonably if,
And as one would argument, super- infer from this record and from oral predators County vised release of in Milwaukee re- nothing judiciary a charade, mains respond more than must speed, power.1 wisdom may poetically just ¶ 58. While to some it seem *35 Schulpius, having unconscionably victimized oth by ers, has himself been victimized unconscionable provides conduct, Wis. Stat. ch. 980 for no ad such hoc government's retribution. Where con unconscionable process law, duct denies due courts must fashion appropriate Epstein Benson, remedies. See v. 2000 WI App ¶ 195, 717, 238 Wis. 2d 618 N.W.2d224. Schulpius?
¶ now, 59. So after what about Years finally released, he inappropriate have he was to been was found to be supervised court, for release. The circuit noting irony, commented, "It would be fundamen- tally unfair if unlawful confinement were to cause justify behavior which is then used to lawful confine- Schulpius, Still, ment." the fact remains that 1 Majority The that the Supreme *36 government wind; into the the could continue to violate ultimately, penalties pass and, court orders the would taxpayers. with, on to again, Continued confinement promise possible supervised release? false certainly could more reduce incentives for con- What predators cooperate fined to in treatment?
¶ 63. And where would such remedies lead? Just Any remedy play any them one of them. short of out— community actually endangers supervised our release quo would continue. The status more than itself. County creating a Milwaukee State, The rather than predators, supervise facility would house, treat and predators keep confined even when and other supervised then their release. Wisconsin courts ordered eventually insti- build need to increase staff would unlawfully confined for all the to make room tutions qualify predators release that for the who come. will never happen? in all like-
¶ What, 64. Then what would really hard; swallow do? Now lihood, would Wisconsin Kake-Kafkaesque. Faced here's the last bite of tight budgets institutions, Wisconsin and overcrowded only in riddle this fiscal and constitutional could solve by longer seeking way: of sex commitment one no (and, eventually, County predators in Milwaukee provide claiming suitable to be unable other counties facilities). judicial certainly, acquiescence quite Thus, only governmental leaves not a consti- misconduct this community. endangered stain, a more tutional but again, if we circle; come once 65. So we full judicial responsibility, how the we see our embrace Schulpius, the law-enforcer. becomes law-breaker predator, met unconscionable has unconscionable sex emerged process, governmental as and, conduct in the government can force the the rare individual who good obey one of the attor- of all. As the law—for the neys represented wrote Clarence Earl Gideon who had many years ago: great almost axiomatic
It has become Bill of by all of us rights are secured for which in the courts constantly and retested Rights are tested society's barrel. people live in .the bottom who developed freedom-of-religion cases Thus, many our *37 out of efforts members of small sects to force them; religious upon people tracts who did not want freedom-of-speech developed our cases have from the jail police persons efforts of the who ranted and against others, including Catholics, raved Jews and Negroes....
In the future the name "Gideon"will stand for the great principle poor that the are entitled to the same type justice as are those who are able to afford probably good thing counsel. It is that it is immaterial unimportant something "nut," of a Gideon suspicion that his maniacal distrust and him lead to the very insanity. Upon borders of shoulders such persons great rights our are carried.
Anthony Trumpet 227-28 Books (Vintage Lewis, Gideon's 1964). 66. If only we see as a sex predator,
¶ we warehouse him if regret. without But we recognize the constitutional rights Schulpius carries, we respond as remedy we must. And by completing the several possible remedy-scenarios, we see the results of judicial acquiescence unconscionable governmental run, conduct: the short Milwaukee County remains safe from in the Schulpius, long run, but Milwaukee with the County, along Wisconsin, rest of becomes more endangered by more sex whom the predators State should but won't commit. Therefore, I the Assistant accept Attorney
General's last option as, truly, the only option. Only immediate supervised release can address the more *38 years of and, than violations of court orders at the four possible community protec- time, same offer the best tion.2
2Moreover, they courts must remember that do indeed have authority inherent to command resources to their implement orders, contempt authority and to enforce them. century ago, Supreme
Almost a the Wisconsin Court em phasized power protect that a court "has inherent to itself against any unreasonably powers action that would curtail its Room, materially impair efficiency." or its In re Court 148 Wis. (1912). 109, 121, later, years supreme 134 490 our N.W. Sixteen declared; immemorial, powers court "From time certain have they powers to are been conceded courts because courts. Such they have been conceded because without them could neither business, dignity, accomplish maintain their transact their nor Cannon, 534, purposes of their v. 196 the existence." State Wis. 536, (1928); 405, Kading, 221 N.W.603 see also In re 74 2dWis. (1976) 411, [may ("contempt power be] 246 N.W.2d903 ... also judicial authority in ... been ... used situations in which has ignored"). jurisdiction court, it granted
"Once
has been
to a
must have
Indeed,
requisite power
to enforce its orders.
it is the court's
duty
obeyed by invoking
to
are
insure
its orders
Court
appropriate remedial sanctions." D.L.D. v. Circuit
for
(1983).
County, 110
2d
327 N.W.2d682
Wis.
Crawford
costly.
may
sweeping
And
remedial sanctions
be
and
See
those
(State
Seling Young,
Washington's Special
v.
473 Finally, opinion misconstrued, I lest this anything legislative am but hostile to efforts to commit predators. Notwithstanding compelling argu sex against predator them, ments the sex commitment properly applied, laws, drawn and are constitutional protection and, believe, I essential to the of the commu nity. joined majority I authored have and/or opinions rejecting challenges several Stat. ch. Wis. App Parrish, 980 commitments. See State v. 2002 WI 263, denied, 521, 273, 258 Wis. 2d 654 review N.W.2d 16, 101, 706; 2003 WI 259 Wis. 2d 657 State v. N.W.2d App Brown, 260, 237, 2d 655 WI Wis. N.W.2d denied, 107, review 2003 WI 258 Wis. 2d *39 Treadway, App 127; 195, State v. 2002 N.W.2d WI 257 467, denied, 2d 334, Wis. 651 N.W.2d review 2002 WI 121, 116, 889; Pletz, 257 2dWis. 653 N.W.2d State v. App 221, 2002 49, 97; WI 239 Wis. 2d 619 N.W.2d State App Pharm, 167, 97, v. 2000 WI 238 2d 617 Wis. N.W.2d (Ct. 163; State v.Adams, 223 Wis. 2d 588 336 N.W.2d 1998). App. having developed expertise And in some deeply fields, this and related I also have been involved professional help judges in educational efforts better respond understand and to child sexual abuse. See Billy Weight Schudson, Dziech & B. Charles On Trial: Sexually America's Courts and Their Treatment of (2d 1991). ed. Abused Children convincing preda- Thus, I need no that sex endanger extraordinary ways tors our communities in requires and, therefore, their control extraordi- nary measures. But those measures must be constitu- tional. Hendricks, See Kansas v. 521 U.S. 356-58 (1997). predator A that, sex commitment law fundamental cannot way, most as written can- function not stand. See id.3 generally minimum, Judge As Franke commented: "[A]t very arrange elementary must for the and reason programs supervision
able and treatment which will enable respondents community. such to reside in the If such efforts are required, statutory the clear an empty command becomes ringing of words." sense,
In presents a related this case the circumstances that, they present Seling, had been would have welded the concurring opinion majority, of Justice Thomas to that of the which commented: Thomas, concurring judgment, Justice in the takes issue with question as-applied our view that the before the Court concerns an challenge respondent's to a civil Act. He first contends that challenge "as-applied" challenge respondent is not a true because " 'by does not claim that the statute its own terms' is unconstitu- applied being applied
tional as
... but rather that the
is not
statute
according
respectfully disagree.
to its terms at all." We
The Act
treatment,"
requires "adequate care and individualized
but the Act
respect
required
is silent with
to the confinement conditions
at the
Washington Special
Center,
[State
Commitment]
and that is the
many
respondent's complaints.
[the]
source of
added) (citations omitted).
Id.,
Here,
(emphasis
Accordingly, regardless whether, Seling, consistent with pursue double-jeopardy post could ever a or ex facto challenge, "as-applied" properly presented he has a substantive Therefore, due-process challenge. termed an "as- whether or, applied" challenge might rightfully prefer, as Justice Thomas challenge, a "not.. . applied-according-to-its-terms-at-all" consequence. little repeat: predator
¶ commitment law 70. To sex way, that, in the most cannot as function fundamental proposition, trust, cannot stand. This I is so written simply that, fear, I I clear belabor what should my yet, finding known, without words. And voice is crying persist. alone, I out struggle
¶ I if 71. Thus to state the obvious: constitutionality depends of Wis. ch. 980 on the rights declares, it the unconscionable re- substantive rights destroys constitutionality. moval of those its I metaphors strings, search Stradivarius —without wings, eagle is silent... without an dies. appreciating ¶ Thus, 72. while meticulous Majority history manner in traced the which has finding case, and while little this fault with Majority's legal principles, articulation of certain I see a very Majority, perhaps different drama. The distracted ugly perceive charade, has failed to the classic tragedy Schulpius performed and the State have on our stage. constitutional Accordingly, respectfully I dissent. notes United States Court predator may continue, explained has commitments even treatment, without for those who are not treatable. See Kansas Hendricks, (1997); Young, v. 521 U.S. see also Seling v. (2001). 250, 262 531 U.S. But no such case is before us. treatment, the court Schulpius was treatable received appropriate concluded he was for release. operative longer appro- order, time of the final priate was no remedy? release. is the for So what argument, Schulpius' ¶ main- 60. At oral counsel outright only proper remedy tained that release was the Schulpius' rights government's protect and deter the Attorney violations of court orders. The Assistant Gen- disagreed. suggested perhaps eral He other remedies — monetary damages; perhaps pen- an award of financial responsible failing departments for or for alties officials perhaps, supervised- orders; to follow the court if no facility County exists, court direc- Milwaukee expenditures most, tion of to create one. Or at Attorney urged, Schulpius if Assistant General must be supervised. released, he should be Interestingly enough, ¶ 61. in the most funda- way, parties' positions apart. mental are not far compliance Both and the seek State orders; court both want enforcement the law the any legislature remedy enacted, not a charade. But can give Schulpius prevent Kafkaesque due, his such con- protect others, and, time, at finement of the same community? so; how, I believe but understand one through options. must think each of the several Damages? silly; Schulpius' That's new-found bars, of little benefit behind and the wealth would be penalties quo continue. Financial status would government spittin' departments? officials That's