980.08 Annotation
The sufficiency of evidence standard of review applies when reviewing a circuit court's order denying a petition for supervised release under sub. (4). The test for the sufficiency of the evidence to support the order is not whether a reviewing court is convinced by clear and convincing evidence that a person's petition for supervised release should be denied, but whether a circuit court, acting reasonably, could be so convinced by evidence it has a right to believe and accept as true. State v. Brown,
2005 WI 29,
279 Wis. 2d 102,
693 N.W.2d 715,
03-1419.
980.08 Annotation
Sub. (4) (cg) unambiguously places the burden of proof with the committed individual. The appropriate burden of persuasion is clear and convincing evidence. This allocation does not violate the guarantees of due process and equal protection in the Wisconsin and United States Constitutions. State v. West,
2011 WI 83,
336 Wis. 2d 578,
800 N.W.2d 929,
09-1579.
980.08 Annotation
Supervised Release Under Chapter 980: Alternatives to Protect Wisconsin While Upholding the Constitution. Hamrin. 2007 WLR 889.
980.09
980.09
Petition for discharge. 980.09(1)
(1) 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 would likely conclude the person's condition has changed since the most recent order denying a petition for discharge after a hearing on the merits, or since the date of his or her initial commitment order if the person has never received a hearing on the merits of a discharge petition, so that the person no longer meets the criteria for commitment as a sexually violent person.
980.09(1m)(a)(a) If the person files a petition for discharge under
sub. (1) 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
sub. (1) through counsel, his or her attorney shall serve the district attorney or department of justice, whichever is applicable.
980.09(1m)(b)
(b) If the person files a petition for a discharge under
sub. (1) without counsel, 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).
980.09(1m)(c)
(c) If a person files a petition for discharge under
sub. (1), the person may use experts or professional persons to support his or her petition. The district attorney or the department of justice may use experts or professional persons to support or oppose any petition filed under
sub. (1).
980.09(1m)(d)
(d) After receiving a petition for discharge under
sub. (1) and upon the request of the person filing the petition, unless the court previously appointed an examiner under
s. 980.031 (3) or
980.07 (1) for the current reexamination period, the court shall appoint for the person an examiner having the specialized knowledge determined by the court to be appropriate. If an examination conducted under
s. 980.07 (1) within the 6 months preceding the filing of the petition supports discharge, the court may appoint the examiner who conducted that examination as the examiner for the person. The examiner 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 in
s. 146.82 (2) (c). The county shall pay the costs of an examiner appointed under this paragraph as provided under
s. 51.20 (18) (a).
980.09(2)
(2) In reviewing the petition, the court may hold a hearing to determine if the person's condition has sufficiently changed such that a court or jury would likely conclude the person no longer meets the criteria for commitment as a sexually violent person. In determining under this subsection whether the person's condition has sufficiently changed such that a court or jury would likely conclude that the person no longer meets the criteria for commitment, the court may consider the record, 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
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 record does not contain facts from which a court or jury would likely conclude that the person no longer meets the criteria for commitment, the court shall deny the petition. If the court determines that the record contains facts from which a court or jury would likely conclude the person no longer meets the criteria for commitment, the court shall set the matter for trial.
980.09(3)
(3) The court shall hold a trial within 90 days of the determination that the person's condition has sufficiently changed such that a court or jury would likely conclude that the person no longer meets the criteria for commitment as a sexually violent person. At trial, 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.
980.09(4)
(4) If the court or jury is satisfied that the state has not met its burden of proof under
sub. (3), the person 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 shall proceed under
s. 980.08 (4) to determine whether to modify the person's existing commitment order by authorizing supervised release, unless the person waives consideration of the criteria in
s. 980.08 (4) (cg). If the person waives consideration of these criteria, the waiver is a denial of supervised release for purposes of
s. 980.08 (1).
980.09(5)
(5) If a court orders discharge of a committed person under this section, the court shall stay the execution of the order so that the department may comply with its statutory duties under
s. 980.11 (2) and
(3). The stay of execution may not exceed 10 working days and shall be for as short a period as necessary to permit the department to comply with
s. 980.11 (2) and
(3).
980.09 Annotation
Persons committed under ch. 980 must be afforded the right to request a jury for discharge hearings under this section. State v. Post,
197 Wis. 2d 279,
541 N.W.2d 115 (1995),
94-2356.
980.09 Annotation
Progress in treatment is one way of showing that a person is not still a sexually violent person under [former] sub. (2) (a). A new diagnosis is another. A new diagnosis need not attack the original finding that an individual was sexually violent, but focuses on the present and is evidence of whether an individual is still a sexually violent person. State v. Pocan,
2003 WI App 233,
267 Wis. 2d 953,
671 N.W.2d 680,
02-3342.
980.09 Annotation
Under sub. (1), the circuit court engages in a paper review of the petition only, including its attachments, to determine whether it alleges facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. This review is a limited one aimed at assessing the sufficiency of the allegations in the petition. If the petition does allege sufficient facts, the circuit court proceeds to a review under sub. (2). State v. Arends,
2010 WI 46,
325 Wis. 2d 1,
784 N.W.2d 513,
08-0052.
980.09 Annotation
Sub. (2) requires the circuit court to review specific items enumerated in that subsection. The court need not seek out items not already within the record. Nevertheless, it may request additional enumerated items not previously submitted, and also has the discretion to conduct a hearing to aid in its determination. The court's task is to determine whether the petition and the additional supporting materials before it contain facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. State v. Arends,
2010 WI 46,
325 Wis. 2d 1,
784 N.W.2d 513,
08-0052.
980.09 Annotation
Sub. (2) explicitly prescribes a different procedure than that for summary judgment set forth in s. 802.08. As such, summary judgment is not available in discharge proceedings under this section. The state's burden of proof is implicated only during a hearing under sub. (3). When a trial court granted summary judgment prior to a hearing under sub. (3), no one could say with any certainty whether the state possessed enough evidence to meet its burden of proof. State v. Allison,
2010 WI App 103,
329 Wis. 2d 129,
789 N.W.2d 120,
09-1232.
980.09 Annotation
A research paper is not sufficient evidence to demonstrate that a sex offender's condition has changed. New actuarial research, absent a psychological examination, is not enough to demonstrate that an offender is no longer a sexually violent person. State v. Richard,
2011 WI App 66,
333 Wis. 2d 708,
799 N.W.2d 509,
10-1188.
980.09 Annotation
The only reasonable construction of the “condition has changed" in sub. (1) is that it encompasses all the changes that a fact finder could determine result in the person not meeting the criteria for commitment as a sexually violent person. This language includes not only a change in the person himself or herself, but also a change in the professional knowledge or research used to evaluate a person's mental disorder or dangerousness if the change is such that a fact finder could conclude the person does not meet the criteria for commitment. The circuit court may not deny a discharge petition without a hearing if the petition alleges facts from which a fact finder could determine that, as a result of any one of those changes, the person does not meet the criteria for a sexually violent person. State v. Ermers,
2011 WI App 113,
336 Wis. 2d 451,
802 N.W.2d 540,
10-2634.
980.09 Annotation
When determining whether to hold a hearing on a petition for discharge, the circuit court must determine whether the petitioner has set forth new evidence, not considered by a prior trier of fact, from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. An expert's opinion that is not based on some new fact, new professional knowledge, or new research is not sufficient for a new discharge hearing under sub. (2). A doctor's further reflection on past scoring of a test is not sufficient for a new discharge hearing because it is not new professional knowledge or research about how to predict dangerousness. State v. Schulpius,
2012 WI App 134,
345 Wis. 2d 351,
825 N.W.2d 311,
11-2565.
980.09 Annotation
A petition alleging a change in a sexually violent person's status based upon a change in the research or writings on how professionals are to interpret and score actuarial instruments is sufficient for a petitioner to receive a discharge hearing, if it is properly supported by a psychological evaluation applying the new research. State v. Richard,
2014 WI App 28,
353 Wis. 2d 219,
844 N.W.2d 370,
12-2748.
980.095
980.095
Procedures for discharge hearings. 980.095(1)(a)(a) The district attorney or the department of justice, whichever filed the original petition, or the person who filed the petition for discharge or his or her attorney may request that a trial 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 determination by the court that a court or jury would likely conclude under
s. 980.09 (1) that the person's condition has sufficiently changed.
980.095(1)(b)
(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.
980.095(1)(c)
(c) No verdict shall be valid or received unless at least 5 of the jurors agree to it.
980.095(2)
(2) Post verdict motions. Motions after verdict may be made without further notice upon receipt of the verdict.
980.095(3)
(3) Appeals. Any party may appeal an order under this subsection as a final order under
chs. 808 and
809.
980.095 History
History: 2005 a. 434;
2013 a. 84.
980.101
980.101
Reversal, vacation or setting aside of judgment relating to a sexually violent offense; effect. 980.101(1)
(1) In this section, “judgment relating to a sexually violent offense" means a judgment of conviction for a sexually violent offense, an adjudication of delinquency on the basis of a sexually violent offense, or a judgment of not guilty of a sexually violent offense by reason of mental disease or defect.
980.101(2)
(2) If, at any time after a person is committed under
s. 980.06, a judgment relating to a sexually violent offense committed by the person is reversed, set aside, or vacated and that sexually violent offense was a basis for the allegation made in the petition under
s. 980.02 (2) (a), the person may bring a motion for postcommitment relief in the court that committed the person. The court shall proceed as follows on the motion for postcommitment relief:
980.101(2)(a)
(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 of the department.
980.101(2)(b)
(b) If the sexually violent offense was the sole basis for the allegation under
s. 980.02 (2) (a) but there are other judgments relating to a sexually violent offense committed by the person that have not been reversed, set aside, or vacated, or if the sexually violent offense was not the sole basis for the allegation under
s. 980.02 (2) (a), the court shall determine whether to grant the person a new trial under
s. 980.05 because the reversal, setting aside, or vacating of the judgment for the sexually violent offense would probably change the result of the trial.
980.101(3)
(3) An appeal may be taken from an order entered under
sub. (2) as from a final judgment.
980.101 History
History: 2001 a. 16;
2005 a. 253,
434.
980.105
980.105
Determination of county and city, village, or town of residence. 980.105(1m)
(1m) The department shall determine a person's county of residence for the purposes of this chapter by doing all of the following:
980.105(1m)(a)
(a) The department shall consider residence as the voluntary concurrence of physical presence with intent to remain in a place of fixed habitation and shall consider physical presence as prima facie evidence of intent to remain.
980.105(1m)(b)
(b) The department shall apply the criteria for consideration of residence and physical presence under
par. (a) to the facts that existed on the date that the person committed the sexually violent offense that resulted in the sentence, placement, or commitment that was in effect when the petition was filed under
s. 980.02.
980.105(2m)
(2m) The department shall determine a person's city, village, or town of residence for the purposes of
s. 980.08 (5) by doing all of the following:
980.105(2m)(a)
(a) The department shall consider residence as the voluntary concurrence of physical presence with intent to remain in a place of fixed habitation and shall consider physical presence as prima facie evidence of intent to remain.
980.105(2m)(b)
(b) The department shall apply the criteria for consideration of residence and physical presence under
par. (a) to the facts that existed on the date that the person committed the sexually violent offense that resulted in the sentence, placement, or commitment that was in effect when the petition was filed under
s. 980.02.
980.105 Annotation
The circuit court had jurisdiction to conduct ch. 980 proceedings involving an enrolled tribal member who committed the underlying sexual offense on an Indian reservation. State v. Burgess,
2003 WI 71,
262 Wis. 2d 354,
665 N.W.2d 124,
00-3074.
980.11
980.11
Notice concerning supervised release or discharge. 980.11(1)(a)
(a) “Act of sexual violence" means an act or attempted act that is a basis for an allegation made in a petition under
s. 980.02 (2) (a).
980.11(1)(b)
(b) “Member of the family" means spouse, domestic partner under
ch. 770, child, sibling, parent or legal guardian.
980.11(1)(c)
(c) “Victim" means a person against whom an act of sexual violence has been committed.
980.11(2)
(2) If the court places a person on supervised release under
s. 980.08 (4) or discharges a person under
s. 980.09 (4), the department shall do all of the following:
980.11(2)(am)
(am) Make a reasonable attempt to notify whichever of the following persons is appropriate, if he or she can be found, in accordance with
sub. (3):
980.11(2)(am)2.
2. An adult member of the victim's family, if the victim died as a result of the act of sexual violence.
980.11(2)(am)3.
3. The victim's parent or legal guardian, if the victim is younger than 18 years old.
980.11(3)
(3) The notice under
sub. (2) shall inform the department of corrections and the person under
sub. (2) (am) of the name of the person committed under this chapter and the date the person is placed on supervised release or discharged. The department shall send the notice, postmarked at least 7 days before the date the person committed under this chapter is placed on supervised release or discharged, to the department of corrections and to the last-known address of the person under
sub. (2) (am).
980.11(4)
(4) The department shall design and prepare cards for persons specified in
sub. (2) (am) to send to the department. The cards shall have space for these persons to provide their names and addresses, the name of the person committed under this chapter and any other information the department determines is necessary. The department shall provide the cards, without charge, to the department of justice and district attorneys. The department of justice and district attorneys shall provide the cards, without charge, to persons specified in
sub. (2) (am). These persons may send completed cards to the department of health services. All records or portions of records of the department of health services that relate to mailing addresses of these persons are not subject to inspection or copying under
s. 19.35 (1), except as needed to comply with a request by the department of corrections under
s. 301.46 (3) (d).
980.12
980.12
Department duties; costs. 980.12(1)
(1) Except as provided in
ss. 980.031 (3) and
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.
980.12(2)
(2) By February 1, 2002, the department shall submit a report to the legislature under
s. 13.172 (2) concerning the extent to which pharmacological treatment using an antiandrogen or the chemical equivalent of an antiandrogen has been required as a condition of supervised release under
s. 980.06, 1997 stats., or
s. 980.08 and the effectiveness of the treatment in the cases in which its use has been required.
980.13
980.13
Applicability. This chapter applies to a sexually violent person regardless of whether the person engaged in acts of sexual violence before, on or after June 2, 1994.
980.13 History
History: 1993 a. 479.
980.135
980.135
Local restrictions; limited exemption. No county, city, town, or village may enforce an ordinance or resolution that restricts or prohibits a sex offender from residing at a certain location or that restricts or prohibits a person from providing housing to a sex offender against an individual who is released under
s. 980.08 or against a person who provides housing to the individual so long as the individual is subject to supervised release under this chapter, the individual is residing where he or she is ordered to reside under
s. 980.08, and the individual is in compliance with all court orders issued under this chapter.
980.135 History
History: 2015 a. 156.
980.14(1)(1) In this section, “agency" means the department of corrections, the department of health services, the department of justice, or a district attorney.
980.14(2)
(2) Any agency or officer, employee, or agent of an agency is immune from criminal or civil liability for any acts or omissions as the result of a good faith effort to comply with any provision of this chapter.
