*1 In re the commitment of Thornon F. Talley: Petitioner-Respondent, Wisconsin, State
v. Respondent-Appellant- Thornon F. Talley, Petitioner.
Supreme Court
argument
No. 2013AP950. Oral
November
Decided March
For the the cause was by attorney general, O'Brien, Daniel J. assistant with attorney whom on the Schimel, brief was Brad D. general.
¶ 1. REBECCA BRADLEY, GRASSL In J. this Chapter discharge, review of a we "socializing peers," "join- consider whether more with ting] group," a fitness and increased communication family changes from are members from which fact- finder could determine Thornon F. is no person. facts, We conclude that these change evaluating psycholo- which resulted in no to the gist's ultimate assessment, conclusion or overall risk enough satisfy statutory are not threshold for a 980.09(2) discharge hearing set forth in Stat. Wis. (2011-12).1 unpublished appeals We affirm the court of deny- decision,2 which affirmed the circuit court order3 ing Talley's petition discharge hearing. for a subsequent All references to the Wisconsin Statutes are to Although the 2011—12version unless otherwise indicated. both parties refer to revisions to Wis. Stat. 980.09 effective Decem 14, 2013, ber see 2013 party Wis. Act. neither asks the court *4 to decide whether the applied new version of 980.09 should be Thus, retroactively here. apply we the 2011-12 version of the statutes, Talley which was in effect both when filed this summarily and when the circuit court denied it. 2 Talley, 2013AP950, order, See unpublished State v. No. (Wis. 2015). App. Ct. Oct. 3 County pre The Honorable Sarah B. O'Brien of Dane sided.
613 i-I BACKGROUND Commitment A. Initial and Early Petitions Discharge has Talley adjudicated delinquent been or times, convicted of violent offenses three in his incarceration. As release date resulting Talley's offense, on his last the State filed a approached peti tion for 980 commitment. Chapter Talley did not contest the circuit court petition, ordered committed "to the Department control, Health and Family Services for care and treatment until such time as is no [he] person." committed, 3. Since an- being Talley received 980.07, nual reexaminations under Wis. Stat. and he petitions seeking discharge. Talley's filed several 2005 and 2006 were at Tall- discharge petitions dismissed ey's The circuit court terminated his 2007 request. because the con- discharge petition psychologist who ducted the reexamination Talley never filed report.
B. The 2008 Petition Discharge discharge petition was tried to trial, a court 2009. At May expert, State's Dr. Schmitt, William satisfy testified that did not the criteria because: had discharge (NOS), Not Otherwise Paraphilia Specified Exhibition- ism,4 and Personality Disorder, Antisocial each of which is a mental disorder that affected his emotional Talley's repeated The Exhibitionism related to acts of exposing penis, openly masturbating, attempting his erect providers have female staff or treatment he had an notice erection, attempting engage women in discussions *5 capacity predisposed Talley or volitional sexually and to commit (2) Talley acts; violent and fell into the risk category being likely more than not to commit sexually discharged. another violent if offense Dr. explained recently February Schmitt that, as as Talley exposed his erections and talked about them staff; with female those exhibitionistic actions "engaging amounted, essence, in sexual behavior nonconsenting person." By "continu[ing] with a expose Talley himself an institution," within showed ongoing "difficulty managing urges his sexual and opined Talley's high psy- behaviors." Dr. Schmitt that chopathy by and deviance, sexual evidenced his behav- likely iors, made him more than not to commit a sexually discharged. violent if offense Talley's expert,
¶ 5. Dr. Wakefield, Hollida agreed Personality that had Antisocial Disorder opined and Exhibitionism, but she that neither disor- predisposed Talley der to acts of sexual violence. She sexually testified that Exhibitionism is not a violent although Personality act, and Antisocial Disorder sexually requires cause an individual violent, to be it presence high psychopathy of both and sexual agreed Talley high psy- deviance. Dr. Wakefield had chopathy, she did deviance; but not find sexual there- fore, concluded, she was not more than sexually not to commit a violent offense.
¶ 6. At the end of the trial, the circuit court clearly convincingly determined "the evidence show[ed] [was] that Mr. still a violent person." findings The circuit court made several about (1) Talley: he had been convicted three times of during about his erections. His Exhibitionism confinement repeated reports resulted in multiple misconduct convic- tions for lewd and lascivious behavior. offenses; he had a mental disorder committing predisposed him to *6 (3) replaced violence
acts; his Exhibitionism sexual (4) "clearly enjoy[ed] confinement; he of his because (5) completed exposing others"; himself to he had not danger others treatment; and he remained a to likely than mental disorder made "it more because his engage in future acts of sexual vio- not that he will Although agreed the circuit court with Dr. lence." Talley's not a violent that Exhibitionism is Wakefield accepted explanation that Exhibition- act, sexual it Talley likely replaced sexual assault because ism sexually opportunity "ha[d] not had an to assault" Ultimately, placed the circuit court while confined. weight Talley's history greater on of sexual violence custody," was and his "antisocial conduct "largely which in nature." sexual Discharge C. The 2010 Petition In Dr. Richard Elwood conducted Tal- ley's and concluded was annual reexamination likely sexually than not a violent and not more diagnosed Talley He with Antisocial not to re-offend. Personality Personality Dis- Disorder and Borderline Paraphilia order but did not find Exhibitionism or required opinion, NOS. In Dr. Elwood's Exhibitionism strangers, Talley's exposures exposure were to strangers workers, treatment center who were not Talley's expressed him. Dr. Elwood also doubt about noting predisposition violence, continued to sexual prove evidence to en- record lacked sufficient gaged pur- in the for sexual arousal Exhibitionism Observing poses. is not a that Exhibitionism Talley's expo- offense, Dr. Elwood added that "may have sures to women he knew not even been Despite Talley's motivated." "moderate to very-high range" psychopathy, Dr. Elwood could not Talley's clearly conclude that . "offenses . . establish sexual deviance." In his static assessment, risk Dr. "Talley poses high that, Elwood concluded a risk of committing poses another sex offense but not that he high committing sexually risk of violent offense." The dynamic doctor's risk assessment did not alter that report acknowledged conclusion. His had significant progress not made in treatment, but Dr. "Talley Elwood nevertheless concluded anot sexu- ally person" "Talley because would not more than not commit another violent offense given opportunity." if he were released and discharge petition ¶ 8. on based Dr. *7 report "significant change diag- Elwood's asserted a Talley discharge noses," which contended warranted a hearing. comprehensive Based on a review of the court rejected Talley's request record, the circuit court hearing. denied the without a The court's dating review included the "dozen" evaluations back to Talley's Talley's initial confinement. Given consistent diagnosis personality "with antisocial disorder and personality assigned borderline disorder," the court significance experts Talley to the fact that most found predisposed to "future acts of sexual violence." important
¶ 9. Also to the circuit court was the agreed fact that Elwood, Wakefield, Dr. like Dr. that Talley personality disorders, had both and the circuit already rejected opinion court had Dr. Elwood's that the disorders do not make explained: re-offender. As the court experts agree All that when there is a combination of high psychopathy deviance, and sexual risk At the 2009
future acts of sexual violence is increased. high opined that Mr. had both trial Dr. Schmitt deviance; Dr. Wakefield was psychopathy and sexual present. deviance was I concluded not sure that sexual Talley, present in Mr. thus that this combination report increasing present re-offense. In the his risk of Talley's disagrees, concluding that Mr. sex Dr. Elwood clearly deviance. How- offenses do not establish sexual rejected I at the dis- ever this is the same evidence charge trial. report "contain[ed] no new evi-
Because Dr. Elwood's already and the circuit court had "considered dence" rejected" opinion Talley's "personality predispose him to violent sexual disorders do Talley's petition offending," the circuit court denied on grounds allege that it did "not facts from which the jury might Talley's that Mr. condition court or conclude changed his initial commitment has since the date of that he no meets the criteria for commit- so ment." Discharge
D. The 2011 Petition In filed another discharge Dr. 2011 reexamination based on Elwood's report. Dr. Elwood's risk and conclusion assessment unchanged report. from 2010 The circuit court were his discharge hearing decided hold a be- nevertheless years hearing, cause it had been two since last *8 report Talley appeared that had it from Dr. Elwood's " stopped publicly masturbating, and the 'science' of predicting risk has continued to evolve." jury January Lloyd 11. At the trial program center Sinclair, the director for the detention pro Talley resided, where described the treatment Talley, assigned gram available to who was program patients high intelligence with normal or high psychopathy. program who have The consists of phases. self-management three Phase One addresses responsible day-to-day and how to live a life in func tioning. patient completes Once a One, Phase he moves specific Two, to Phase which focuses on the sex offense component patient completes of treatment. When a Two, Phase he moves to Three, Phase which combines phases patient lessons from the first two to ensure the will not re-offend when released. Sinclair testified that Talley remained in One, Phase and at times refused altogether. Talley's "continue[d] treatment . . . sexual "raise[d] misbehavior" alarms" at the treatment cen example, Talley repeatedly exposed ter. For had his penis [came] erect staff, to female and "if a male into up." cover[ed] explained the room, Mr. Sinclair discharged that if wants to be he needs "to make progress [in treatment] managing and show that he's himself better." Anthony
¶ 12. Dr. Jurek testified for the State. He told the that had Exhibitionism, Paraphilia Personality NOS, and Antisocial disorder with Borderline features. He testified:
(cid:127) Talley has three mental impair disorders that his
emotional capacity or volitional predispose him to commit acts of sexual violence.
(cid:127) person's history "[A] important sexual offenses is
because if an caught individual is for the sexual they're behavior it, they sanctioned for should learn experience. from that It should be less they engage in behavior that can cause them sanctions in the future."
(cid:127) person When a "continues to offend over and over
again" it indicates the change unable "to *9 behavior, it's a critical element of the plays the risk
diagnostic formulation but also into treatment, participation Successful assessment." contrast, suggest a reduced risk of re- can Talley successfully partici- had offending. But treatment, pated in and he committed dozens offenses while confined. sexual misconduct (cid:127) Talley's has a sexual over- exhibitionistic behavior gratifica- exposes to it. He himself for sexual
tone tion.
(cid:127) underlying] deviance the Exhibitionism is "[T]he
the same deviance that underlies the earlier sexual offenses of record." expected Moreover, that, Dr. Jurek if no go beyond Exhibitionism confined, would committing sexually violent offenses.
and return to According instruments, was to actuarial risk more than not to commit acts of sexual violence discharged. response opinion that if In to Dr. Elwood's Talley's expo inapplicable because Exhibitionism only strangers, explained the are not to Dr. Jurek sures strangers exposing he is not to is because reason opportunity expose "So if he has the is confined: certainly strangers, no himself to he will. But where strangers expose available, are he will himself unsuspecting staff." Talley.
¶ 14. Dr. Elwood testified for On direct diagnosed Talley he indicated that he examination, Personality Borderline with Antisocial Disorder and Personality Jurek, Dr. did not Disorder, but unlike diagnose Talley Paraphilia with NOS or Exhibition Although explained applica Dr. his strict ism. Elwood as tion of the DSM-IV definition Exhibitionism unsuspecting strangers," "expos[ing] self to he one's Talley's "difficulty acknowledged light that, in also urges," with sexual activities and sexual "Dr. Jurek *10 good ma[d]e point a that it be better to make a interpretation [Exhibitionism] penal broader of situ they're ations when or incarcerated" because when an confined, individual is "all of the residential staff are you, stranger." known to there so can't be a opinion 15. When asked about Dr. Jurek's Talley exposed gratification, himself for sexual Dr. just "I answered, Elwood don't I think have sufficient Talley's evidence to determine" whether arousal was exposure self-manipulation. tied to or his Dr. "say [Talley] being could Elwood not for sure that was specifically by exposing aroused itself." When sexually asked deviant, whether was Dr. Elwood responded: say.
I saying couldn't I'm not he's not deviant. I don't have say evidence to that. But I do I not think say have sufficient evidence to that he meets the usual criteria for as sexual deviance identified in the litera- certainly something. ture. ... He has some evidence of Talley's attorney ¶ 16. then asked Dr. to Elwood Talley's engaging assess risk of in future finding violent acts: "So without that deviance you you what tables, found in the actuarial do feel Mr. Talley presents a risk of sexual violence in the future? guess [to] degree you presents I what he do feel sexual risk—a of risk sexual violence?" Dr. Elwood say answered, "I I think can I best don't know." When Talley's lawyer why asked, that?", "And is Elwood Dr. responded, just "I don't think that the evidence to me is enough say clear to that." Dr. Elwood about talked being re-offending per- risk of "well over 51 Talley's lawyer clarify: cent." then tried to
Q of [Talley's attorney:] clearly So there's risk
reoffense, more but the risk deviance your opinion? than not in important distinguish it's Elwood:] A I think [Dr. my saying percent that it's not over 51 between saying say I evidence enough do not have percent. that it is over 51 Q Okay. [Talley's attorney:] saying I point [Dr.Elwood:] A At this I'm that cannot say degree professional confidence that it to a percent committing an- exceeds 51 likelihood of act. other explained that, Dr. further in the absence of *11 Elwood "support that the they evidence to a reasonable conclusion criteria, then is meets the conclusion he do not meet criteria." When asked whether Talley's thought Dr. El- continue, commitment should say only meet, testified, "I that he does not wood would my sexually opinion, the violent in person Chapter definition of 980." made cross-examination, On Dr. Elwood acknowledged Talley several (1) He that concessions. predisposes him to has a mental disorder that (2) violence; falls "ex commit acts of sexual into the tremely high" category tools future "on actuarial for (3) completed reoffend;" not sex offender risk has by appearing treatment; fondled himself when phone proceeding, led a court an incident that Talley opine psychologist another had "extraor dinarily urges impulse pressing sexual and deficient Importantly, not control." Dr. Elwood confirmed he was Talley sexually testifying that not commit violent would simply released; if "enough he did not believe there rather, acts opine he was evidence to that" would.
622
Talley
18. The
found
was "still a
person,"
violent
and the circuit court denied his 2011
petition.
discharge
postcommitment
motion for
February
relief was
2013,
denied
and the court of
appeals rejected Talley's appeal
published
in a
decision
Talley,
App
in December 2014. See State v.
4,
2015 WI
(Ct.
2014).
App.
359
2d 522,
Wis.
under the & "Social Emotional subset of 623 dynamic three risk factors. The note identified the (1) changes: Talley "socialize[d] particular more with (2) group"; "joined peers he a fitness in his treatment family" group"; his have been "more of and members changed "communicating those Based on with him." made that Mr. has facts, Dr. Elwood "concluded progress and reduce risk" on the social recent his dynamic the risk factors. subset of emotional change reported progress however, Dr. Elwood's not, did conclusion, or ultimate which assessment overall risk report. the remained identical to Talley's petition The circuit court denied discharge hearing seeking Dr. because Elwood a pre- in his the same ultimate conclusion two reached rejected just very jury reports—the conclusion a vious Talley appealed, and court six months earlier.5 appeals summary disposition order, in a affirmed changes report in the 2012 concluded that which significant change facts a from the did "not constitute rejected petition." granted jury We the 2011 Talley's petition for review.
II. DISCUSSION Standard of Review A. interpretation 24. This case involves 980.09(2), ques application which of Wis. Stat. although independently, we we review tion of law appeals by the decisions the court of benefit from construed to set reference to six months shall not be Our rather, solely it is to show any type parameter; time noted that, recently, rejected opinion Dr. Elwood very same gives here. *13 Arends,
circuit court. See State v.
46,
13,
2010 WI
1,
2d
325 Wis.
B. petition alleged enough contends his f discharge hearing.6 expresses a facts warrant He appeals erroneously concern that of the court mea- against "significant" sured facts fact stan- applicable statutory language. dard not found in the Talley's petition discharge We hold that for failed to satisfy statutory discharge hearing. threshold for a appeals' We also hold the court use the word "significant" does not alter the outcome. Statutory Standard for
Discharge Hearing Not Satisfied provides, 26. Wisconsin Stat. 980.09 as mate rial: person may petition A committed the commit-
ting
discharge
any
court for
at
time. The court shall
deny
hearing
under this
section without
petition alleges
unless the
from which
court
facts
jury may
or
person's
conclude the
condition has
changed since the date of his
her initial
or
commit-
person
ment order so that
does
meet the
criteria for
as a
person.
commitment
(2) The court
shall review the
within 30
days
hearing
hold a
to determine if it con-
jury may
tains facts from which
or
the court
conclude
that the
does not meet
the criteria
commit-
6 A discharge hearing is "a trial on the merits of the
Arends,
discharge
1,
petition." State v.
2010 WI
Wis. 2d
"two-step determining process" a whether (2005-06) is Stat. ch. 980 en committed under Wis. petition. hearing discharge Arends, on a 325 titled to a step "paper ¶¶ a review of 2d 3-5. The first is Wis. only, including petition its under attachments" the 980.09(1), § and if the circuit court concludes Wis. Stat. sufficiently "alleges a facts from which the peti conclude that the reasonable trier of fact could commitment as a not meet the criteria for tioner does person" proceeds the circuit court 980.09(2). step, § a review under Wis. Stat. the second step ¶¶ Arends, second in Wis. 2d 3-5. The petition, expanded of the with "all volves an review [Wis. Stat.] past reports filed under and current supporting § 980.07," documentation and other any if record, determine these materials "contain fact could reasonable trier of con facts from which a petitioner does not meet criteria for clude that the person."7 commitment Arends, as a ¶1, Wis. 2d suggests, parties Here, the record and the denying Talley concede, the circuit court's decision discharge hearing involved review under Wis. Stat. 980.09(1). 980.09(2), rather than The standard the 980.09(2) legislature pronounced straightfor §in considering ward: After all of the in the materials deny petition" record, the court "shall if it "deter mines that does not contain facts from jury may which a court or conclude that *15 does not meet the criteria for commitment." The circuit Talley's court held that discharge hearing 2012 did not a warrant it
because contained the same ulti rejected mate conclusion and overall risk assessment by jury Talley's a six months earlier. The court found self-reported changes three would not lead a factfinder longer sexually to conclude is no violent. We agree with the circuit court's assessment.8 only Talley's 29. The new facts in 2012 are located the under "Social & Emotional Function- ing" dynamic subset the risk factors of Dr. section report. Talley reported Elwood's that he was "socializ- 7 980.09(2) Wisconsin Stat. § uses the terms and "could" "may" Arends, interchangeably. 1, n.20, See 2d 325 Wis. 37 ¶¶ 41, Arends, pointed "slightly As out the different itera Id., tions" are "non-substantive word-choice variances." 37¶ n.20. 8Talley argues the circuit court failed to all review past reports and current in the record and asks us to remand may so the circuit court Although do so. the record is not entirely regard, clear this there is no for the need remand Talley requests. comprehensive We a conducted review of the evidence, Arends, may do, which we see 325 Wis. 2d reached same conclusion as circuit court. "joined group," ing peers," a fitness with he more began family recently [] commu- of his "more members nicating these facts him." Dr. Elwood labeled with specifically progress on the "recent to reduce risk" functioning component, but Dr. and emotional social and ultimate conclu- Elwood's overall risk assessment unchanged report. As since his 2011 sion remained already jury rejected conclusion in Janu- noted, a that ary 2012. thus focuses on whether 30. Our review petition's facts, when considered to- three new
gether comprehensive of the entire our review with every psychological record—including re- examination transcripts port, every report, from treatment and the jury Talley's trial—lead to a 2009 bench trial and 2012 "may [or a factfinder reasonable determination longer could] is no a violent conclude" person. in the conclude these three facts We satisfy statutory report stan- do not reexamination they find that reasonable could dard because no longer is no mean —particularly did Dr. El- these facts not alter when prior or assess- ultimate conclusion overall risk wood's rejected jury just earlier ment, and where a six months that he is no claim person. *16 impact any
¶ not of the three 31. These facts do proof require commitment, that: criteria for which (1) sexually Talley offense; of a violent was convicted (2) currently from a mental disorder that he suffers capacity, making him or volitional affects his emotional predisposed violence; and to commit acts of sexual (3) likely it more than not the mental disorder makes engage in acts sexual violence. that will more 980.05(3)(a); 980.01(7), 980.02(2), §§ see Wis. See Stat. (2015). (2) Wis. also undisputed; JI—Civil 2506 Criteria are only disagreement centers on criterion (3). Nothing suggests in the record that (or could) proffered
advent of the facts three here Talley's cause factfinder to now conclude that mental illness will no make it more than not that sexually he will commit a violent offense. At the 2012 explained trial, Dr. Elwood that he resolved the third Talley only factor favor of he because did not have enough way to information decide one or other; unsurprisingly, testimony this to failed convince the jury predisposition overcame his to commit jury's verdict, acts. Since the reported "socializing peers," that he is with more he "joined group," a fitness and "more members of his family recently began [] communicating with him." Critically, recently did these facts not alter Dr. Elwood's rejected Talley's re-offending. assessment of risk of 33. We not are convinced that three reported propensity facts—which do not his relate to acts—may commit result in a or making any court determination, a different absent change diagnosis, overall assessment, risk or ulti- years, Talley mate eleven conclusion. In has not suc- cessfully completed begun treatment; he has not even sexual-offender-specific treatment because he has progressed beyond phase first the treatment program. engage He continues in sexual misbehavior psycholo- Exhibitionism, which all of the but two gists opined person's involved here confined reflects a substitute for violent acts. Finally, supports case law the conclusion Chapter
that a
committed under
980 is not
*17
discharge hearing
the current
where
a
entitled to
conclusion
the same ultimate
contains
previously re-
a trier of fact
assessment
overall risk
App
¶
Schulpius,
jected.
134,
4,
2012 WI
v.
See State
("[T]he
¶¶
351, 825 N.W.2d
Wis. 2d
34-35, 345
produce
not
petitioner
evidence,
new
some
must also
by
previously
demon-
fact,
a trier of
which
considered
for commit-
not meet the criteria
that he does
strates
980.");
Kruse, 2006
State v.
Stat. ch.
ment under Wis.
App
¶
130,
2. Court of ofUse Talley expresses ¶ 36. concern about the court of appeals' "significant" opinion. use of the word in its "significant" The word is not in statute, used but it frequently throughout is a term used the record in this submitting case. used init his 2010 Petition, asserting report "signifi- that Dr. Elwood's contained a change diagnoses." by cant in The term was used psychologists providers describing and treatment in Talley's progress example, "Talley in treatment. For significant progress not considered to have made in treatment." Wisconsin Stat. 980.09 does not use the "significant" setting required term the standard discharge hearing. warrant a Preferably, appeals ¶ 37. the court should have Talley's petition against measured the actual text of appeals' the statute. The court of use of the term "significant," however, does not alter the outcome of application language this case because our of the of the statutory in the same conclusion standard results appeals. by The facts contained reached Talley's the court of report do on Dr. Elwood's based "socializing satisfy statutory standard because group," peers," "joining] a fitness more with family are from members increased communication a court or conclude not "facts from which for commitment." does not meet the criteria Statutory Adding Adjectives Standard *19 parties argument case, in this the 38. At oral under the statute must the "facts" discussed whether trigger consequence" in "of order "material" or be legislature discharge hearing. these The did not use modify the 2011-12 Wisconsin terms, and we will not Adding adjectives the them.9 to insert Statutes simply unnecessary to resolve this case. We statute is legislature statutory language apply chose and the the proffered here are not "facts conclude that the facts jury may the conclude that from which a court or meet the criteria for commitment." does not 980.09(2). statutory § stan Therefore, Wis. Stat. hearing discharge and no was dard was not satisfied required.
III. CONCLUSION Talley's petition discharge 2012 for differed petition: only respect 2011 Dr. Elwood in one from his 9 legislature supra, note in 2013 the explained As changes in portions Chapter 980. Those revised several Stat. 980.09. adjustment an to the standard Wis. cluded statutory language in allows the court The new subsection "sufficiently has person's whether condition to assess changed."
632 "progress noted some to reduce risk" under the "Social Functioning" component dynamic & Emotional of the Talley reported "socializing risk factors because he was peers," "jointed] group," more he with had a fitness family recently [] began "more members of his commu- nicating Despite changes, with him." these El- Dr. wood's overall risk assessment and ultimate conclu- unchanged report, sion remained since his 2011 which jury rejected six months earlier when it found that person. was still a ¶ 40. We conclude that a factfinder could not determine, based on these three facts, that no person. met the criteria for Talley's petition satisfy Thus, tory does not the statu- discharge hearing. standard needed to obtain a although "significant" ap- Further, pear the term does not language by in the of that statute, its use appeals summary disposition court order does not alter the outcome of this case. Both the court of appeals correctly and the circuit court ruled that Talley's did not "contain facts from which a court or conclude that" "does not meet the criteria commitment," Wis. Stat. 980.09(2); appropriately therefore, the circuit court holding denied without a dis- *20 charge hearing.10 opinion interpreted This cannot and should not be as the speculate. opinion concurrences The does not foreclose satisfying statutory
from required the threshold for a dis charge hearing in a petition psychologist future where a finds longer he person long petition is no a violent so as his 980.09(2) statutory satisfies the new threshold contained in § (2013-14). supra review, required by See n.9. In our current as 980.09(2), the 2011-12 version of we considered whether § Talley's three new psychological reports facts and all of the may jury in the record lead a to conclude was no By appeals decision of the court of the Court. The is affirmed. {concur- ABRAHAMSON, 41. SHIRLEY S. J.
ring). of the court I too would affirm the decision join opinion appeals. not, however, I do of the court strays it too far from the text of Wis. Stat. because 980.09(2) provide practical, § a and fails to sound application statutory interpretation and of the lan- guage from which a circuit court could conclude "facts petitioner that does not meet the criteria for person." (Emphasis commitment as a added.) violent majority, I conclude that the Unlike the "facts" consequence must be relevant facts of to the issue at just any hand. Not old facts will do. 980.09(2) 42. Here are the words of Wis. Stat.
(2011-12) added): (emphasis days The court shall review the within 30 may hearing if hold a to determine it contains jury may which the court from or conclude
facts does not meet the criteria commitment as person. determining a In under this might subsection whether exist that warrant facts conclusion, any a the court shall consider current such 980.07, past reports or filed under s. relevant facts response, argu- the state's written facts, longer sexually We the three violent. concluded new commitment, impact do not the three criteria for which see (that supra, together report with Dr. Elwood's was essentially previous year's report jury identical to the which a recently rejected), jury could not lead a to find in favor. Thus, Talley's petition discharge hearing. warrant did not Also, evidence; opinion weigh does not it considers record, whether all the materials in this listed in Wis. Stat. 980.09(2), lead a to find is no § sexually person. That is what the 2011-12 version of 980.09(2) required us to do. *21 counsel, any supporting
merits of documentation provided by person the or the If state. the court petition that determines the does not contain facts jury may from which a court or conclude that the person commitment, does not meet the criteria the for deny petition. court shall If the court determines jury exist from which a court or could facts person conclude the does not meet criteria commit- for ment the hearing. court shall set the matter for It important recognize that Wis. Stat. 980.09(2) (2011-12) (effective was revised in 2013 2013).1 14, Dec. Because of the revision, the majority 1 The statute was amended in 2013 to read as follows added): (emphasis reviewing petition, may hearing In the court hold a person's sufficiently changed determine if the condition has such jury likely person longer that a court or would conclude the no person. meets the criteria for commitment as a In determining person's under this subsection whether the condition sufficiently changed jury likely has such that a court or would person longer conclude that the no meets the criteria for commit- ment, record, including the court consider the evidence introduced at the initial commitment trial or the most recent trial discharge, any past reports on a for current or filed under 980.07, s. relevant in the and in the state's written facts counsel, response, arguments any supporting documenta- provided by person tion or the state. If the court determines jury that the record does not contain from which a court or facts likely person longer would conclude that the no meets the criteria commitment, deny petition. for the court shall If the court determines that the record contains from which a court or facts would conclude the no meets the criteria commitment, for the court shall set the matter for trial. appeals For two recent court of applying cases statute, Jr., amended Hager, see In re Commitment David (Wis. No.2015AP330, unpublished slip op. App. Ct. Jan. 2017) (recommended publication); for In re Commitment of (Wis. Carter, 2015AP1311, unpublished slip op.
Howard Ct. 2017) (recommended App. Jan. publication). *22 opinion interpreting applying is limited to and the majority major pre-2013 op., ¶ 1 The statute. See n.1. ity interprets opinion the 2011-12 version of Wis. Stat. 980.09(2) govern interpretation § and does not the and application of the revised 2013 I statute. address the 980.09(2), § 2011-12 version of Wis. Stat. as the does majority opinion. 980.09(2),
¶ § 44. Under Stat. the court Wis. de- independently law, cides as a matter of of the circuit appeals, court and court of whether exist from facts may which a reasonable fact-finder conclude that the petitioner does or does not meet the criteria for com- mitment.2 majority opinion
¶ The 45. too often ties the psychologist's "facts" in the instant to the assessment, ultimate conclusion or overall risk which psychologist's report, remained the same since the last jury's Talley's prior petition. or to a recent denial of See majority op., ¶¶ 1, 29, 30, 32-35, 39. by psycholo
¶ 46. A fact-finder is not bound the gist's ultimate conclusion or overall risk assessment or jury's by verdict; the last a fact-finder is bound the psychologist's unchanged True, "facts." the conclusion probative petitioner be of whether the still meets But, commitment criteria. to the extent that the majority opinion interpreted requiring can be as change psychologist's in the in order conclusions discharge hearing, court to rule favor of a goes opinion too far.3
2 alleged accepted question The facts are true. as The presented interpretation applica law to this court is the 980.09(2) undisputed tion of Wis. Stat. to facts. State v. Arends, 1, 2010 WI 325 Wis. 2d ¶ N.W.2d 513. presence "[T]he of evidence unfavorable to the petitioner-—a reaching report re-examination a conclusion that misstep, majority In addition to this attempt interpret apply statutory makes no to word "facts." Unfortunately, majority opinion refuses required
to limit the facts in the under Wis. 980.09(2) "significant" Stat. facts or "material" According majority, "[a]dding adjectives facts. to the unnecessary Major the statute is to resolve this case." ity op., ¶ 38. disingenuous. majority 49. This refusal is The
opinion readily accepts prior adding case law the word *23 980.09(2). majority op., § ¶¶ "new" to Wis. Stat. See 29, majority opinion 30, 34, Also, 35. the seems to dismiss Talley's self-reported majority op., as "facts" facts. See majority opinion explains 28, 32-33. The that it if could not determine on the basis of the facts that person. majority was no See op., majority ¶¶ 36, 37, 40. The reaches this conclusion explanation. supposed without an Are readers to infer Talley's self-reported ignored? that facts are to be majority ¶ opinion, 50. In contrast to the the court appeals petition "significant" of examined the for facts. Similarly, the State asserts that the facts the consequence." must be "material" facts and facts See "of majority op., majority opinion ¶¶ 36, 38. But the re meaning "significant" fuses to read the word "facts" as according majority or because, "material" facts to the opinion, legislature "signifi the did not use the words majority op., ¶ cant" or "material." See 38. majority opinion's reasoning
¶ 51. The for refus- ing interpret statutory "signifi- to the word "facts" as petitioner the reoffend, was still more than not to example—does negate the favorable facts upon might reasonably rely." Arends, which a trier of fact 325 Wis. 2d ¶ 40. specious. applicable statute, The cant" or "material" is 980.09(2), explicitly requires § the court to Wis. Stat. petition."4 Thus, "relevant facts in the consider 980.09(2) very peti- requires § text of the facts issue, is, tion to be "relevant" to the contested petitioner facts that relate to whether the does or does as a not meet the criteria for commitment person. 980.09(2)'s Furthermore, use of Wis. Stat. integrally incorporates concept the word "facts" of relevancy.5 The Wisconsin Rules of Evidence define consequence "facts" facts of to the determination of as " the action.6 'Relevant evidence' means evidence hav ing any tendency any make fact that the existence of consequence to the of the action is determination probable more or less than it would be without evidence." Wis. Stat. 904.01. The "material" and State uses the words consequence" rather than the word "relevant"
"facts
statutory
words,
word "facts." These
describe
historically
"material,"
used
"relevant"
have
been
("the
Arends,
See also
325 Wis. 2d
court...
required
to examine . . . relevant facts in the
and in
*24
response.").
the State's written
5 "[A]ny
prove
fact which tends
a material
is
to
issue
relevant,
though
only
even
it is
a link in the chain of facts
proved
proposition
appear
which must be
to make the
at issue
probable. Relevancy
by
more or less
is not determined
resem
to,
with,
by
blance
but
the connection
other facts."
v.
Oseman
State,
523, 526,
(quoting
32 Wis. 2d
638
interchangeably.7
following
The
definitions of "rel
appearing
evant" and "material,"
in McCormick, Evi
(hornbook series), §
dence
152, at 315-16, were ad
opted by the court in
Becker,
State v.
51
Wis. 2d
(1971):
666-67,
concept materiality except in the Comment to Wis. Stat. Evidence, R1, R67; 904.01. See Wisconsin Rules of 2d § Wis. Note, 1974, Judicial Council Committee's Wis. Stat. Ann. (West 2000) (the 904.01 § Judicial Council Committee's Note states that view McCormick's of the distinction between ma teriality relevancy imported by and into Wis. Stat. 904.01 phrase consequence "that is of to the determination of the action."). relevancy materiality, For a more recent discussion of (Kenneth see McCormick on Evidence at 994-95 S. 2013) ("There ed., components Broun relevant evidence: 7th ed. are two materiality probative value. Material- ity concerns the fit between the evidence and the case. It looks propositions the relation between the that the evidence is *25 agree ¶ I State that the word "facts" with the 980.09(2) facts," "material or if in Wis. Stat. means prefers, the reader "relevant facts." ¶ 55. I conclude as a matter of law that the upon "facts" which relies are on the whole (the short-lived facts occurred within the last six months), considering appear and the entire record at inconsequential, this time minimal and and are not facts from which a reasonable fact-finder conclude does not meet the criteria for commitment. litigants majority opinion 56. The will take and f meaning circuit courts off course. It overlooks the prac- statutory provide the word "facts" and fails to meaning tical, sound of the word "facts" used Wis. 980.09(2). Stat. agree forth, I that the 57. For the reasons set appeals affirmed,
decision of the court of should be but join majority opinion. I do not ¶ 58. I am authorized to state that Justice ANN joins concurring opinion. WALSH BRADLEY this ZIEGLER, 59. ANNETTE KINGSLAND J. (concurring). court, Like the I conclude that discharge hearing. agree not entitled to a While I with analysis, clarify much of the court's I write to only opinion join opinion interpreted if it is concurrence, In I consistent with this concurrence. this point will out two that I have with the court's concerns writing why language opinion ought of the certain misinterpreted. not be opinion First, the court's could be read to
suggest that when a committed relies in a evaluating discharge opinion on the of an prove offered to and the issues the case. ... The second value, aspect tendency probative of relevance is of evidence proposition prove.") that it is offered to establish *26 psychologist already rejected by that has a been trier of only change appropriate evaluating fact, an to the psychologist's "ultimate conclusion or overall risk as- person discharge sessment" can entitle that to a hear- ing accept § under Stat. I Wis. 980.09. cannot such an interpretation doing because so would be to write a plain clear, limitation in the statute. To be the lan- guage person of the relevant statute can entitle a to a discharge hearing petition presents if the "facts from jury may which the court or conclude that the does not meet the criteria for commitment as a sexu- 980.09(2). ally person." § violent Wis. Stat. opinion require If the court's were read to might suggest, persons
what it seem committed like Talley required would be to show than the more statute requires. already Talley Dr. Elwood has concluded that likely would not more than commit not another person. violent offense and is not a In strongly suggesting Talley future, new facts may develop. does not meet the criteria for commitment logically, might change facts, These Dr. Elwood's conclusion that would not more than not commit another sexually violent offense and is not a person. I am concerned that the court's opinion preclude discharge hearing could read a be merely circumstances, Dr. El- under those because "ultimate overall wood's conclusion or risk assessment" changed. change evaluating had not to an While psychologist's "ultimate conclusion or overall risk as- certainly question sessment" is relevant to the 980.09(2) met, whether such a Wis. Stat. has been change necessary is not a condition of fulfillment of the statutory threshold. opinion ought Second, the court's not be weigh part
read to evidence unfavorable to as inquiry its into whether is entitled to a dis- 980.09(2), charge hearing contrary under Wis. Stat. explains to case law. Our discussion proper Arends analysis: reject argument
We the State's that the circuit may weigh favoring petitioner court evidence di- rectly against disfavoring petitioner. evidence This impermissible because the standard is not whether heavily petitioner, the evidence more favors the but whether the enumerated items contain facts that grant peti- would allow factfinder to relief *27 facts, tioner. If the enumerated items do contain such presence the petitioner—a of evidence unfavorable to the report reaching
re-examination a conclu- petitioner sion that the was still more than not reoffend, example—does negate upon might favorable facts which a trier of fact rea- sonably rely. Arends, 1,
State v. 2010 WI 2dWis. (footnote omitted). N.W.2d 513 ¶ 63. I doubt court intends either of the potential possi- However, defects I have identified. bility foregoing Thus, of confusion remains. for the respectfully clarify reasons, I concur and write to these opinion areas concern so that the of the court is not misinterpreted.
¶ 64. I am authorized to state that Justice joins MICHAEL J. GABLEMAN this concurrence.