If you handle ch. 980 cases you know that 2013 Wis. Act 84 changed the legal standard under § 980.09 for determining whether a person committed under ch. 980 is entitled to a discharge hearing. But you don’t know what the Act 84’s revisions to the standard mean—because no one knows, not even the supreme court. The court of appeals doesn’t decide what the standard means in this case, either, but it teases enough thread out of the tangle created by Act 84 to conclude Timm isn’t entitled to a discharge hearing.
Before the Act 84 amendments, § 980.09 said a committed person was entitled to a discharge trial if “facts exist from which a court or jury could conclude the person does not meet criteria for commitment.” After Act 84, the statute requires a trial only if “the record contains facts from which a court or jury would likely conclude” the person doesn’t meet the commitment criteria.
Act 84’s “would likely conclude” language creates a fundamental uncertainty about how a court is supposed to decide whether to order a discharge trial. On its face the language requires the screening court to “weigh” the evidence that might be presented, for and against discharge, and to order a discharge trial only if the judge is convinced the person is going to win the trial, even though the state has the burden at the trial of proving the person still meets the commitment criteria. That reading would violate due process, for it effectively shifts the burden to the committed person to show he is going to win a trial in order to get the trial, even though he doesn’t have the burden of persuasion at the trial.
The supreme court was poised to settle the meaning of Act 84’s revisions in State v. Hager, 2018 WI 40, 381 Wis. 2d 74, 911 N.W.2d 17. But it didn’t. Instead, it fractured 3-2-2, leaving no majority opinion that resolved any of the issues. (We described the decision here; the court of appeals decision in this case also does a fine job of describing Hager. (¶¶21-25).)
Timm and the state argue Hager left the meaning of Act 84’s revisions unresolved, and they both push their own theories about how to interpret Act 84’s revision. But the court of appeals sidesteps the issue. (¶¶1, 27-28). The court decides it is bound by Hager “at least insofar as we must adhere to the court’s mandate, which clearly garnered a majority of the justices.” (¶28). The court is not explicit about the content of “the [Hager] court’s mandate” beyond the fact it requires a change in the committed person’s condition, demands “a more searching inquiry” of a discharge petition before a trial can be ordered, and can’t violate the constitution (and so can’t involve “weighing” the evidence). (¶¶28, 32, 38). Cf. Hager, 381 Wis. 2d 74, ¶¶28, 30 (requiring a court to “carefully examine” the evidence in deciding whether to order a discharge trial). Applying this “mandate,” the court concludes Timm hasn’t show his condition has “sufficiently changed” (¶28) to merit a discharge trial:
¶38 Again, we have not “weighed” the evidence here. It is not necessary for us to do so, as the facts contained in the petition, as well as the undisputed facts of record, demonstrate that not much about Timm has changed despite the length of his commitment. He may have a slightly lower actuarial risk, and he may have made some progress in treatment, but he continues to suffer from qualifying mental disorders, he has not completed the relevant treatment, and even his own expert acknowledges that he continues to struggle to manage his fantasies regarding children, force and violence. [Timm’s expert’s] concern is particularly noteworthy[:] that Timm may not have “demonstrated sufficiently sustained change in his thoughts, attitudes, emotions and behaviors and sufficient management of his sexual arousal such that one could reasonably assume that, with continued treatment, the change could be maintained.” Under these undisputed circumstances, neither the insubstantial changes in Timm’s actuarial scores nor his marginal treatment progress, individually or in combination, provide a sufficient basis to determine that a fact finder “would likely conclude” Timm is no longer dangerous because his disorders no longer make it likely that he will engage in one or more acts of sexual violence.
“Sufficiently changed.” “Not much … has changed.” “Some progress in treatment.” “[C]ontinues to struggle.” “[I]nsubstantial change.” “[M]arginal treatment progress.” What are these assessments but a “weighing” of the evidence, despite the court’s disclaimer to the contrary? And we hasten to add, this is not to say the court is being disingenuous. Instead, it is to say that, in order to apply the plain language of Act 84’s “would likely conclude” standard, the court must weigh the evidence. Despite the court’s valiant attempt to apply the revised statute in a manner consistent with due process, it can’t be done. There is no way to make sense of or to apply the plain language of Act 84 without weighing the evidence, as four justices (two concurring, two dissenting) held in Hager. (¶¶24-25).
This is also evident from the court’s treatment of State v. Richard, 2014 WI App 28, 353 Wis. 2d 219, 844 N.W.2d 370, which concluded the committed person was entitled to a discharge trial because his petition was supported with a recent psychological evaluation applying new professional research. Timm cited Richard, pointing to the new research his expert used. (¶¶15-16). The court of appeals says Richard “did not survive the petitioner’s increased burden” created by Act 84 because “in changing the predictive standard to ‘would likely conclude,’ the legislature has authorized a more searching inquiry—even if one does not “weigh” the evidence—when determining whether there has been a sufficient change in the person’s condition.” (¶32 (emphasis added)). When it comes to new research, what is a “more searching inquiry” other than doing what a fact finder at a trial would do in assessing the new research: namely, weighing that new research against everything else in the case (including evidence introduced at the initial commitment trial or the most recent trial on a petition for discharge, any current or past reports filed under § 980.07, relevant facts in the petition and in the state’s written response, arguments of counsel, and any supporting documentation provided by the person or the state, § 980.09(2))?
Bottom line: the plain language of the “would likely conclude” standard can’t be applied without weighing the evidence presented. And doing that is indisputably unconstitutional. One day that truth will be recognized. In the meantime, be prepared to argue your ch. 980 client is entitled to a discharge trial because he has “sufficiently changed” or “substantially changed” or “very much … has changed” or he’s made a lot more than “some progress in treatment” or “marginal treatment progress.”