2005 Wisconsin Act 434

(b) The number of jurors selected shall be the number prescribed in sub. (2), unless a lesser number has been stipulated to and approved under par. (c) or the court orders that additional jurors be selected. That number of jurors, plus the number of peremptory challenges available to all of the parties, shall be called initially and maintained in the jury box by calling others to replace jurors excused for cause until all jurors have been examined. The parties shall exercise in their order, the state beginning, the peremptory challenges available to them, and if any party declines to challenge, the challenge shall be made by the clerk by lot.

(c) At any time before the verdict in a jury trial under this section, the parties may stipulate in writing or by statement in open court, on the record, with the approval of the court, that the jury shall consist of any number less than the number prescribed in sub. (2).

434,104 Section 104 . 980.05 (3) (a) of the statutes is amended to read:

980.05 (3) (a) At a trial on a petition under this chapter, the petitioner has the burden of proving the allegations in the petition beyond a reasonable doubt that the person who is the subject of the petition is a sexually violent person.

434,105 Section 105. 980.05 (3) (b) of the statutes is amended to read:

980.05 (3) (b) If the state alleges that the sexually violent offense or act that forms the basis for the petition was an act that was sexually motivated as provided in s. 980.01 (6) (b) or (bm), the state is required to prove beyond a reasonable doubt that the alleged sexually violent act was sexually motivated.

434,106 Section 106. 980.07 (title) of the statutes is amended to read:

980.07 (title) Periodic reexamination and treatment progress; report from the department.

434,107 Section 107. 980.07 (1) of the statutes is amended to read:

980.07 (1) If a person has been is committed under s. 980.06 and has not been discharged under s. 980.09 (4), the department shall appoint an examiner to conduct an examination a reexamination of his or her the person's mental condition within 6 12 months after an the date of the initial commitment order under s. 980.06 and again thereafter at least once each 12 months for the purpose of determining to determine whether the person has made sufficient progress for the court to consider whether the person should be placed on supervised release or discharged. The examiner shall apply the criteria under s. 980.08 (4) (cg) when considering if the person should be placed on supervised release and shall apply the criteria under s. 980.09 (3) when considering if the person should be discharged. At the time of a reexamination under this section, the person who has been committed may retain or seek to have the court appoint an examiner as provided under s. 980.03 (4) 980.031 (3), except that the court is not required to appoint an examiner if supervised release or discharge is supported by the examination conducted by the examiner appointed by the department. The county shall pay the costs of an examiner appointed by the court as provided under s. 51.20 (18) (a).

434,108 Section 108 . 980.07 (2) of the statutes is amended to read:

980.07 (2) Any examiner conducting an examination a reexamination under this section sub. (1) shall prepare a written report of the examination reexamination no later than 30 days after the date of the examination reexamination. The examiner shall place a copy of the report in the person's medical records and shall provide a copy of the report to the court that committed the person under s. 980.06 department.

434,109 Section 109. 980.07 (3) of the statutes is amended to read:

980.07 (3) Notwithstanding sub. (1), the court that committed a person under s. 980.06 may order a reexamination of the person at any time during the period in which the person is subject to the commitment order. Any reexamination ordered under this subsection shall conform to sub. (1).

434,110 Section 110. 980.07 (4), (5) and (6) of the statutes are created to read:

980.07 (4) At any reexamination under sub. (1), the treating professional shall prepare a treatment progress report. The treating professional shall provide a copy of the treatment progress report to the department. The treatment progress report shall consider all of the following:

(a) The specific factors associated with the person's risk for committing another sexually violent offense.

(b) Whether the person has made significant progress in treatment or has refused treatment.

(c) The ongoing treatment needs of the person.

(d) Any specialized needs or conditions associated with the person that must be considered in future treatment planning.

(5) Any examiners under sub. (1) and treating professionals under sub. (4) shall have reasonable access to the person for purposes of reexamination, to the person's past and present treatment records, as defined in s. 51.30 (1) (b), and to the person's patient health care records, as provided under s. 146.82 (2) (c).

(6) The department shall submit an annual report comprised of the reexamination report under sub. (1) and the treatment progress report under sub. (4) to the court that committed the person under s. 980.06. A copy of the annual report shall be placed in the person's treatment records. The department shall provide a copy of the annual report to the person committed under s. 980.06, the department of justice, and the district attorney, if applicable. The court shall provide a copy of the annual report to the person's attorney as soon as he or she is retained or appointed.

434,110m Section 110m. 980.07 (6m) of the statutes is created to read:

980.07 (6m) If a person committed under s. 980.06 is incarcerated at a county jail, state correctional institution, or federal correction institution for a new criminal charge or conviction or because his or her parole was revoked, any reporting requirement under sub. (1), (4), or (6) does not apply during the incarceration period. A court may order a reexamination of the person under sub. (3) if the courts finds reexamination to be necessary. The schedule for reporting established under sub. (1) shall resume upon the release of the person.

434,111 Section 111. 980.075 of the statutes is created to read:

980.075 Patient petition process. (1) When the department submits its report to the court under s. 980.07 (6), the person who has been committed under s. 980.06 may retain or have the court appoint an attorney as provided in s. 980.03 (2) (a).

(1m) (a) When the department provides a copy of the report under s. 980.07 (6) to the person who has been committed under s. 980.06, the department shall provide to the person a standardized petition form for supervised release under s. 980.08 and a standardized petition form for discharge under s. 980.09.

(b) The department shall, after consulting with the department of justice and the state public defender, develop the standardized petition forms required under par. (a).

(2) (a) Within 30 days after the department submits its report to the court under s. 980.07 (6), the person who has been committed under s. 980.06 or his or her attorney may submit one of the completed forms provided under sub. (1m) to the court to initiate either a petition for supervised release or a petition for discharge.

(b) If no completed petition is filed in a timely manner under par. (a), the person who has been committed under s. 980.06 will remain committed and the person's placement at a facility described under s. 980.065 or the person's supervised release status under s. 980.08 remains in effect without review by the court.

(3) If the person files a petition for discharge under s. 980.09 without counsel, the court shall serve a copy of the petition and any supporting documents on the district attorney or department of justice, whichever is applicable. If the person petitions for discharge under s. 980.09 through counsel, his or her attorney shall serve the district attorney or department of justice, whichever is applicable.

(4) (a) The petitioner may use experts or professional persons to support his or her petition.

(b) The district attorney or the department of justice may use experts or professional persons to support or oppose any petition.

(5) Subject to s. 980.03 (2) (a), before proceeding under s. 980.08 or 980.09 but as soon as circumstances permit, the court shall refer the matter to the authority for indigency determinations under s. 977.07 (1) and appointment of counsel under s. 977.05 (4) (j) if the person is not represented by counsel.

(6) At any time before a hearing under s. 980.08 or 980.09, the department may file a supplemental report if the department determines that court should have additional information.

434,112 Section 112 . 980.08 (title) of the statutes is repealed and recreated to read:

980.08 (title) Supervised release; procedures, implementation, revocation.

434,113 Section 113. 980.08 (1) of the statutes is amended to read:

980.08 (1) Any person who is committed under s. 980.06 may petition the committing court to modify its order by authorizing supervised release if at least 18 12 months have elapsed since the initial commitment order was entered or at least 6 12 months have elapsed since the most recent release petition was denied or the most recent order for supervised release was revoked. The director of the facility at which the person is placed may file a petition under this subsection on the person's behalf at any time.

434,114 Section 114. 980.08 (3) of the statutes is amended to read:

980.08 (3) Within 20 days after receipt of the petition, the court shall appoint one or more examiners having the specialized knowledge determined by the court to be appropriate, who shall examine the person and furnish a written report of the examination to the court within 30 days after appointment. The examiners shall have reasonable access to the person for purposes of examination and to the person's past and present treatment records, as defined in s. 51.30 (1) (b), and patient health care records, as provided under s. 146.82 (2) (c). If any such examiner believes that the person is appropriate for supervised release under the criteria specified in sub. (4) (b) (cg), the examiner shall report on the type of treatment and services that the person may need while in the community on supervised release. The county shall pay the costs of an examiner appointed under this subsection as provided under s. 51.20 (18) (a).

434,115 Section 115. 980.08 (4) (a) of the statutes is amended to read:

980.08 (4) (a) The court, without a jury, shall hear the petition within 30 days after the report of the court-appointed examiner is filed with the court, unless the petitioner waives court for good cause extends this time limit. Expenses of proceedings under this subsection shall be paid as provided under s. 51.20 (18) (b), (c), and (d).

434,116 Section 116. 980.08 (4) (b) of the statutes is repealed.

434,117 Section 117. 980.08 (4) (c) of the statutes is amended to read:

980.08 (4) (c) In making a decision under par. (b) (cg), the court may consider, without limitation because of enumeration, the nature and circumstances of the behavior that was the basis of the allegation in the petition under s. 980.02 (2) (a), the person's mental history and present mental condition, where the person will live, how the person will support himself or herself, and what arrangements are available to ensure that the person has access to and will participate in necessary treatment, including pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen if the person is a serious child sex offender. A decision under par. (b) (cg) on a petition filed by a person who is a serious child sex offender may not be made based on the fact that the person is a proper subject for pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen or on the fact that the person is willing to participate in pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen.

434,118 Section 118. 980.08 (4) (cg) of the statutes is created to read:

980.08 (4) (cg) The court may not authorize supervised release unless, based on all of the reports, trial records, and evidence presented, the court finds that all of the following criteria are met:

1. The person has made significant progress in treatment and the person's progress can be sustained while on supervised release.

2. It is substantially probable that the person will not engage in an act of sexual violence while on supervised release.

3. Treatment that meets the person's needs and a qualified provider of the treatment are reasonably available.

4. The person can be reasonably expected to comply with his or her treatment requirements and with all of his or her conditions or rules of supervised release that are imposed by the court or by the department.

5. A reasonable level of resources can provide for the level of residential placement, supervision, and ongoing treatment needs that are required for the safe management of the person while on supervised release.

434,119 Section 119. 980.08 (4) (cm) of the statutes is created to read:

980.08 (4) (cm) If the court finds that all of the criteria in par. (cg) are met, the court shall select a county to prepare a report under par. (e). Unless the court has good cause to select another county, the court shall select the person's county of residence as determined by the department under s. 980.105. The court may not select a county where there is a facility in which persons committed to institutional care under this chapter are placed unless that county is also that person's county of residence.

434,120 Section 120. 980.08 (4) (d), (e), (f) and (g) of the statutes are created to read:

980.08 (4) (d) The court shall authorize the petitioner, the person's attorney, the district attorney, any law enforcement agency in the county of intended placement, and any local governmental unit in the county of intended placement to submit prospective residential options for community placement to the department within 60 days following the selection of the county under par. (cm).

(e) The court shall order the county department under s. 51.42 in the county of intended placement to prepare a report, either independently or with the department of health and family services, identifying prospective residential options for community placement. In identifying prospective residential options, the county department shall consider the proximity of any potential placement to the residence of other persons on supervised release and to the residence of persons who are in the custody of the department of corrections and regarding whom a sex offender notification bulletin has been issued to law enforcement agencies under s. 301.46 (2m) (a) or (am). The county department shall submit its report to the department within 60 days following the court order.

(f) The court shall direct the department to use any submissions under par. (d), the report submitted under par. (e), or other residential options identified by the department to prepare a supervised release plan for the person. The department shall prepare a supervised release plan that identifies the proposed residence. The plan shall address the person's need, if any, for supervision, counseling, medication, community support services, residential services, vocational services, and alcohol or other drug abuse treatment. The supervised release plan shall be submitted to the court within 90 days of the finding under par. (cg). The court may grant extensions of this time period for good cause.

(g) The court shall review the plan submitted by the department under par. (cm). If the details of the plan adequately meet the treatment needs of the individual and the safety needs of the community, then the court shall approve the plan and determine that supervised release is appropriate. If the details of the plan do not adequately meet the treatment needs of the individual or the safety needs of the community, then the court shall determine that supervised release is not appropriate or direct the preparation of another supervised release plan to be considered by the court under this paragraph.

434,121 Section 121. 980.08 (5) of the statutes is repealed.

434,122 Section 122. 980.08 (6m) of the statutes is amended to read:

980.08 (6m) An order for supervised release places the person in the custody and control of the department. The department shall arrange for control, care and treatment of the person in the least restrictive manner consistent with the requirements of the person and in accordance with the plan for supervised release approved by the court under sub. (5) (4) (g). A person on supervised release is subject to the conditions set by the court and to the rules of the department. Within 10 days of imposing a rule, the department shall file with the court any additional rule of supervision not inconsistent with the rules or conditions imposed by the court. If the department wants to change a rule or condition of supervision imposed by the court, the department must obtain the court's approval. Before a person is placed on supervised release by the court under this section, the court shall so notify the municipal police department and county sheriff for the municipality and county in which the person will be residing. The notification requirement under this subsection does not apply if a municipal police department or county sheriff submits to the court a written statement waiving the right to be notified.

(7) (a) If the department alleges believes that a released person on supervised release, or awaiting placement on supervised release, has violated, or threatened to violate, any condition or rule , or that of supervised release, the department may petition for revocation of the order granting supervised release as described in par. (c) or may detain the person.

(b) If the department believes that a person on supervised release, or awaiting placement on supervised release, is a threat to the safety of others requires that supervised release be revoked, he or she may be taken into custody under the rules of the department. The department shall submit a statement showing probable cause of the detention and a, the department shall detain the person and petition to revoke for revocation of the order for granting supervised release to as described in par. (c).

(c) If the department concludes that the order granting supervised release should be revoked, it shall file with the committing court a statement alleging the violation and or threat of a violation and a petition to revoke the order for supervised release and provide a copy of each to the regional office of the state public defender responsible for handling cases in the county where the committing court is located. If the department has detained the person under par. (a) or (b), the department shall file the statement and the petition and provide them to the regional office of the state public defender within 72 hours after the detention, excluding Saturdays, Sundays and legal holidays. Pending the revocation hearing, the department may detain the person in a jail or a facility described under s. 980.065. The court shall refer the matter to the authority for indigency determinations under s. 977.07 (1) and appointment of counsel under s. 977.05 (4) (j). The determination of indigency and the appointment of counsel shall be done as soon as circumstances permit.

(d) The court shall hear the petition within 30 days, unless the hearing or time deadline is waived by the detained person. A final decision on the petition to revoke the order for supervised release shall be made within 90 days of the filing. Pending the revocation hearing, the department may detain the person in a jail or in a hospital, center or facility specified by s. 51.15 (2). The state has the burden of proving the county jail or return him or her to institutional care.

(8) (a) If the court finds after a hearing, by clear and convincing evidence, that any rule or condition of release has been violated, or and the court finds that the violation of the rule or condition merits the revocation of the order granting supervised release, the court may revoke the order for supervised release and order that the person be placed in institutional care. The court may consider alternatives to revocation. The person shall remain in institutional care until the person is discharged from the commitment under s. 980.09 or is placed again on supervised release under sub. (4) (g).

(b) If the court finds after a hearing, by clear and convincing evidence, that the safety of others requires that supervised release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked, it may shall revoke the order for supervised release and order that the released person be placed in an appropriate institution institutional care. The person shall remain in institutional care until the person is discharged from the commitment under s. 980.09 or until again is placed on supervised release under this section sub. (4) (g).

434,123 Section 123. 980.09 of the statutes is repealed and recreated to read:

980.09 Petition for discharge. A committed person may petition the committing court for discharge at any time. The court shall deny the petition under this section without a hearing unless the petition alleges facts from which the court or jury may conclude the person's condition has changed since the date of his or her initial commitment order so that the person does not meet the criteria for commitment as a sexually violent person.

(2) The court shall review the petition within 30 days and may hold a hearing to determine if it contains facts from which the court or jury may conclude that the person does not meet the criteria for commitment as a sexually violent person. In determining under this subsection whether facts exist that might warrant such a conclusion, the court shall consider any current or past reports filed under s. 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. If the court determines that the petition does not contain facts from which a court or jury may conclude that the person does not meet the criteria for commitment, the court shall deny the petition. If the court determines that facts exist from which a court or jury could conclude the person does not meet criteria for commitment the court shall set the matter for hearing.

(3) The court shall hold a hearing within 90 days of the determination that the petition contains facts from which the court or jury may conclude that the person does not meet the criteria for commitment as a sexually violent person. The state has the burden of proving by clear and convincing evidence that the person meets the criteria for commitment as a sexually violent person.

(4) If the court or jury is satisfied that the state has not met its burden of proof under sub. (3), the petitioner shall be discharged from the custody of the department. If the court or jury is satisfied that the state has met its burden of proof under sub. (3), the court may proceed under s. 980.08 (4) to determine whether to modify the petitioner's existing commitment order by authorizing supervised release.

434,124 Section 124 . 980.095 of the statutes is created to read:

980.095 Procedures for discharge hearings. (1) Use of juries. (a) The district attorney or the department of justice, whichever filed the original petition, or the petitioner or his or her attorney may request that a hearing under s. 980.09 (3) be to a jury of 6. A jury trial is deemed waived unless it is demanded within 10 days of the filing of the petition for discharge.

(b) Juries shall be selected and treated in the same manner as they are selected and treated in civil actions in circuit court. The number of jurors prescribed in par. (a), plus the number of peremptory challenges available to all of the parties, shall be called initially and maintained in the jury box by calling others to replace jurors excused for cause until all jurors have been examined. The parties shall exercise in their order, the state beginning, the peremptory challenges available to them, and if any party declines to challenge, the challenge shall be made by the clerk by lot.

(c) No verdict shall be valid or received unless at least 5 of the jurors agree to it.

(2) Post verdict motions. Motions after verdict may be made without further notice upon receipt of the verdict.

(3) Appeals. Any party may appeal an order under this subsection as a final order under chs. 808 and 809.

434,125 Section 125. 980.10 of the statutes is repealed.

434,126 Section 126. 980.101 (2) (a) of the statutes is amended to read:

980.101 (2) (a) If the sexually violent offense was the sole basis for the allegation under s. 980.02 (2) (a) and there are no other judgments relating to a sexually violent offense committed by the person, the court shall reverse, set aside, or vacate the judgment under s. 980.05 (5) that the person is a sexually violent person, vacate the commitment order, and discharge the person from the custody or supervision of the department.

434,127 Section 127. 980.11 (2) (intro.) of the statutes is amended to read:

980.11 (2) (intro.) If the court places a person on supervised release under s. 980.08 (4) or discharges a person under s. 980.09 or 980.10 (4), the department shall do all of the following:

434,128 Section 128. 980.12 (1) of the statutes is amended to read:

980.12 (1) Except as provided in ss. 980.03 (4) 980.031 (3) and 980.08 (3) 980.07 (1), the department shall pay from the appropriations under s. 20.435 (2) (a) and (bm) for all costs relating to the evaluation, treatment, and care of persons evaluated or committed under this chapter.

434,129 Section 129 . 980.14 (title) of the statutes is created to read:

980.14 (title) Immunity.