SB388: Bill Text

LRB-3694/1

JEO:jlg:hmh

1999 - 2000 LEGISLATURE

1999 Senate BILL 388

February 16, 2000 - Introduced by Senators Drzewiecki, Huelsman, Fitzgerald, Darling, Cowles and Rosenzweig, cosponsored by Representatives Huebsch, Kaufert, Musser, Kelso, Owens, Sykora, Ladwig, Stone, Gunderson and Olsen. Referred to Committee on Judiciary and Consumer Affairs.

SB388,2,2 An Act to repeal 51.30 (4) (b) 10m. and 980.10; to renumber and amend 980.015 (1), 980.015 (2) (intro.), 980.015 (2) (a), 980.015 (2) (b), 980.015 (2) (c), 980.015 (4), 980.03 (4) and 980.03 (5); to amend 51.30 (3) (a), 51.30 (3) (b), 51.30 (4) (b) 8m., 51.30 (4) (b) 11., 51.375 (1) (a), 146.82 (2) (c), 165.255, 301.45 (3) (a) 3r., 808.075 (4) (h), 904.04 (2), 905.04 (4) (a), 938.396 (1), 938.396 (2) (e), 938.396 (5) (a) (intro.), 938.78 (2) (e), 950.04 (1v) (xm), 972.15 (4), 980.015 (title), 980.015 (3) (intro.), 980.015 (3) (b), 980.02 (1) (intro.), 980.02 (1) (a), 980.02 (1) (b) (intro.), 980.03 (2) (intro.), 980.07 (1), 980.07 (2), 980.07 (3), 980.08 (3), 980.08 (4), 980.09 (1) (b), 980.09 (2) (a), 980.09 (2) (b), 980.11 (2) (intro.) and 980.12 (1); and to create 51.30 (3) (bm), 51.30 (4) (b) 8s., 146.82 (2) (cm), 301.355, 938.35 (1) (e), 938.396 (1k), 972.15 (6), 980.015 (1) (b) (intro.), 980.015 (2) (bm), 980.015 (3m), 980.015 (3r), 980.015 (3x), 980.031 (title), 980.031 (2), 980.036, 980.038 (title), 980.038 (2), 980.038 (3), 980.07 (1g), 980.14 (title) and 980.14 (1) of the statutes; relating to: sexually violent person commitment proceedings.

Analysis by the Legislative Reference Bureau

Current law provides a procedure for involuntarily committing sexually violent persons to the department of health and family services (DHFS) for control, care and treatment. A sexually violent person is a person who has committed certain sexually violent offenses and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.

A proceeding for the involuntary commitment of a sexually violent person is begun by the filing of a petition that alleges that the person is a sexually violent person. The petition must be filed before the person is released from confinement that resulted from the commission of a sexually violent offense. The agency that has custody of a person who may be a sexually violent person must, as soon as possible beginning three months before the person's release date, notify the department of justice (DOJ) and certain district attorneys that the person is going to be released from custody. A petition alleging that the person is a sexually violent person must then be filed either by DOJ at the request of the agency that has custody of the person or, if DOJ does not file a petition, by one of the district attorneys who received notice of the person's release date.

The court in which a sexually violent person petition is filed must review the petition and decide whether to hold the person in custody pending a trial on the petition. The court must also hold a hearing to determine whether there is probable cause to believe that the person is a sexually violent person. If the court finds that there is probable cause to believe that the person is a sexually violent person, the court must schedule a trial on the petition.

If, after the trial on a sexually violent person petition, the person is found by a judge or jury to be a sexually violent person, the person must be committed to the custody of DHFS and placed in institutional care. A person who is committed as a sexually violent person and placed in institutional care may petition the committing court to modify its order by authorizing supervised release in the community if at least 18 months have elapsed since the initial commitment order was entered or at least six months have elapsed since the most recent release petition was denied or the most recent order for supervised release was revoked. In addition, current law provides for periodic reexaminations of a person committed as a sexually violent person and provides a means by which the person may petition the court for discharge from the commitment on the grounds that he or she is no longer a sexually violent person.

This bill makes a number of changes to the current sexually violent person commitment procedure. Among the changes made by the bill are the following:

1. Procedure for evaluating potential sexually violent person cases. This bill specifies a procedure for conducting evaluations of persons who may meet the criteria for a sexually violent person commitment. Under the bill an agency that has custody of a person who has committed a sexually violent offense must, no later than 180 days before the person's anticipated release date, conduct an initial evaluation of the person to determine whether he or she may meet the criteria for commitment as a sexually violent person. No later than 15 days after completing the initial evaluation, the agency must inform both DOJ and certain specified district attorneys of the results of the initial evaluation. If the agency determines that the person may meet the criteria for commitment as a sexually violent person, the agency must then obtain a special purpose evaluation of the person by a qualified expert, who must make a recommendation in a written report as to whether a commitment proceeding should be commenced. The report must be completed no later than 120 days before the anticipated release date of the person, and the agency must, no later than five days after it receives the report, provide DOJ and the district attorneys with a copy of the report. The bill also provides that DOJ or a district attorney who received notice of the initial evaluation may retain a qualified expert to conduct a separate evaluation of the person that is in addition to the agency's initial evaluation and to any special purpose evaluation that may be conducted.

2. Procedures for filing sexually violent person petitions. The bill creates new provisions concerning the filing of petitions to begin sexually violent person commitment proceedings. Under the bill, if an agency that has custody of a person who may be a sexually violent person determines in its initial evaluation of the person (see paragraph 1., above) that the person does not meet the criteria for commitment, then DOJ must decide whether to file a petition regardless of the agency's determination. DOJ must make this decision no later than 45 days after it receives notice of the agency's initial evaluation and must provide notice of its decision to the district attorneys who received notice of the initial evaluation of the agency. However, if the agency obtains a special purpose evaluation of the person (see paragraph 1., above), DOJ must, no later than 30 days after it receives a copy of the report of the special purpose evaluation, decide whether to file a petition and provide notice of its decision to the district attorneys who received a copy of the special purpose evaluation report.

Whenever DOJ notifies the district attorneys that it has decided not to file a petition, one of the district attorneys may then file a petition. Under the bill, either DOJ or a district attorney may file a petition regardless of the outcome of an agency's initial evaluation as to whether a person meets the criteria for commitment as a sexually violent person and regardless of the conclusion of the expert who conducts a special purpose evaluation at the request of the agency.

3. Access to confidential records. Under current law, with certain exceptions, a person's medical records (including mental health treatment records) are confidential. Also, if a juvenile has been subject to a delinquency proceeding, the records concerning the court proceeding and any placement or treatment resulting from the proceeding are generally confidential. Among the exceptions to the confidentiality requirements that apply to medical and juvenile records are exceptions allowing access to certain persons for use in connection with proceedings to commit a person as a sexually violent person. Specifically, current law allows access to these records by an expert who is examining a person for purposes of providing an opinion as to whether the person may meet the criteria for commitment as a sexually violent person. Current law also provides access to the records by DOJ or a district attorney for purposes of prosecuting a sexually violent person commitment proceeding.

This bill modifies the current exceptions to medical and juvenile records confidentiality by broadening the provisions concerning who may have access to the records and by clarifying how those persons may use information obtained from the records. Under the bill, the records must be released to DOJ, a district attorney, a qualified expert retained by DOJ, a district attorney or an agency that has custody of a person, or a qualified expert retained by or appointed for a person who is subject to a sexually violent person petition. A person who obtains information from these records under the bill may redisclose the information to the extent that is necessary for the conduct of an evaluation, examination or sexually violent person proceeding for which the information was obtained. The bill also provides that the court in which the proceeding is pending may issue any protective orders that it determines are appropriate concerning the records.

In addition, the bill allows for access to other confidential records and reports which, under current law, are not generally available for use in connection with a sexually violent person commitment proceeding. Specifically, the bill allows access to records of the department of corrections (DOC), including presentence investigation reports prepared by DOC in connection with the sentencing of a person convicted of a crime. As with the exception for medical and juvenile records, the bill provides that DOC records and reports must be released to DOJ, a district attorney, a qualified expert retained by DOJ, a district attorney or an agency that has custody of a person, or a qualified expert retained by or appointed for a person who is subject to a sexually violent person petition. The bill also provides that DOJ or a district attorney must be given access to law enforcement records concerning juveniles and court records of other civil commitment proceedings.

As with the exception for medical and juvenile records, a person who obtains information from DOC records, law enforcement records or court records under the bill may redisclose the information to the extent that is necessary for the conduct of an evaluation, examination or sexually violent person proceeding for which the information was obtained. The bill also provides that the court in which the proceeding is pending may issue any protective orders that it determines are appropriate concerning the records.

4. Reexaminations of persons found to be sexually violent persons. Under current law, a person who has been committed as a sexually violent person must be examined by DHFS within six months after the initial commitment and again thereafter at least once each 12 months for the purpose of determining whether the person has made sufficient progress for the court to consider whether the person should be placed on supervised release or discharged from the commitment. In addition, under current law the court that committed the person may order a reexamination of the person at any time.

This bill provides that DHFS is not required to examine a person who is incarcerated in a county jail or a state correctional institution or is placed in a treatment facility or a juvenile correctional facility for an offense that the person committed or is alleged to have committed since being committed as a sexually violent person. Instead, DHFS must conduct an examination of the person upon the person's release from the county jail, state correctional institution, treatment facility or juvenile correctional facility. The court may still order a reexamination of the person at any time even though he or she is incarcerated or placed in a treatment facility or juvenile correctional facility.

5. Petitions for discharge from a sexually violent person commitment. Under current law, a person who has been found to be a sexually violent person and committed to the custody of DHFS may petition for discharge from the commitment. The petition may be with or without the approval of DHFS. DHFS must provide a person with notice of the right to petition for discharge without the approval of DHFS at the time of the person's periodic reexamination (see paragraph 4., above). If the person does not waive the right to petition at that time, the court must, without holding a hearing, review the report of the periodic reexamination to determine whether facts exist that warrant a hearing to determine whether the person is still a sexually violent person.

In addition, a person may petition for discharge without the approval of DHFS at any other time, but if a person has previously filed a petition for discharge without the approval of DHFS and the court determined, either upon review of the petition or following a hearing, that the person's petition was frivolous or that the person was still a sexually violent person, then the court must deny any subsequent petition without a hearing unless the petition contains facts upon which a court could find that the condition of the person had so changed that a hearing was warranted.

This bill provides that a person who has been committed as a sexually violent person may not petition for discharge without the approval of DHFS unless at least 18 months have elapsed since he or she was first committed to the custody of DHFS or unless at least six months have elapsed since the most recent petition for discharge was denied (regardless of whether the most recent petition was filed with or without the approval of DHFS). If a person files a petition for discharge without the approval of DHFS under the bill, the court must, without holding a hearing, review the most recent report of the annual reexamination and other relevant documentation to determine whether there is probable cause to believe that the person is no longer a sexually violent person. If the court finds such probable cause, it must set a hearing on the petition.

In addition, the bill provides that a person committed as a sexually violent person must be afforded the right to request a jury of six persons for any hearing that is held to decide his or her petition for a discharge from the commitment. This codifies a holding from the case of State v. Post, 197 Wis. 2d 279 (1995).

6. Miscellaneous procedural provisions. This bill creates new provisions that address some procedural issues that are not explicitly addressed under current law relating to sexually violent person commitment proceedings. Among the issues addressed by new provisions are methods by which one party may discover and inspect material in the possession of the other party and procedures allowing for closed hearings in sexually violent person proceedings that are based solely on allegations that the person committed sexually violent offenses as a juvenile.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB388, s. 1 Section 1. 51.30 (3) (a) of the statutes is amended to read:

SB388,6,4 51.30 (3) (a) Except as provided in pars. (b) and, (bm), (c) and (d), the files and records of the court proceedings under this chapter shall be closed but shall be accessible to any individual who is the subject of a petition filed under this chapter.

SB388, s. 2 Section 2. 51.30 (3) (b) of the statutes is amended to read:

SB388,6,11 51.30 (3) (b) An individual's attorney or guardian ad litem shall have access to the files and records of the court proceedings under this chapter without the individual's consent and without modification of the records in order to prepare for involuntary commitment or recommitment proceedings, reexaminations, appeals, or other actions relating to detention, admission or commitment under this chapter or ch. 971 or, 975 or 980.

SB388, s. 3 Section 3. 51.30 (3) (bm) of the statutes is created to read:

SB388,6,18 51.30 (3) (bm) The files and records of court proceedings under this chapter shall be released to a district attorney specified under s. 980.02 (1) (b) or to the department of justice in accordance with s. 980.015 (3r). Information obtained from files and records under this paragraph shall be kept confidential except to the extent that redisclosure of that information is necessary for the conduct of an evaluation or proceeding under ch. 980 for which the information was obtained.

SB388, s. 4 Section 4. 51.30 (4) (b) 8m. of the statutes is amended to read:

SB388,7,4 51.30 (4) (b) 8m. To appropriate examiners and facilities in accordance with s. 971.17 (2) (e), (4) (c) and (7) (c), 980.03 (4) or 980.08 (3). The recipient of any information from the records shall keep the information confidential except as necessary to comply with s. 971.17 or ch. 980.

SB388, s. 5 Section 5. 51.30 (4) (b) 8s. of the statutes is created to read:

SB388,7,10 51.30 (4) (b) 8s. To appropriate persons in accordance with ss. 980.015 (3) (b), (3m) and (3x), 980.031 (3) and 980.08 (3). Information obtained under this subdivision shall be kept confidential except to the extent that redisclosure of the information is necessary for the conduct of an evaluation, examination or proceeding under ch. 980 for which the information was obtained.

SB388, s. 6 Section 6. 51.30 (4) (b) 10m. of the statutes is repealed.

SB388, s. 7 Section 7. 51.30 (4) (b) 11. of the statutes is amended to read:

SB388,7,17 51.30 (4) (b) 11. To the subject individual's counsel or guardian ad litem, without modification, at any time in order to prepare for involuntary commitment or recommitment proceedings, reexaminations, appeals or other actions relating to detention, admission, commitment or patients' rights under this chapter or ch. 48, 971 or, 975 or 980.

SB388, s. 8 Section 8. 51.375 (1) (a) of the statutes is amended to read:

SB388,7,22 51.375 (1) (a) "Community placement" means conditional transfer into the community under s. 51.35 (1), conditional release under s. 971.17, parole from a commitment for specialized treatment under ch. 975 or conditional supervised release under ch. 980.

SB388, s. 9 Section 9. 146.82 (2) (c) of the statutes is amended to read:

SB388,8,3 146.82 (2) (c) Notwithstanding sub. (1), patient health care records shall be released to appropriate examiners and facilities in accordance with ss. s. 971.17 (2) (e), (4) (c) and (7) (c), 980.03 (4) and 980.08 (3). The recipient of any information from the records shall keep the information confidential except as necessary to comply with s. 971.17 or ch. 980.

SB388, s. 10 Section 10. 146.82 (2) (cm) of the statutes is created to read:

SB388,8,10 146.82 (2) (cm) Notwithstanding sub. (1), patient health care records shall be released to appropriate persons in accordance with ss. 980.015 (3) (b), (3m) or (3x), 980.031 (3) and 980.08 (3). Information obtained under this paragraph shall be kept confidential except to the extent that redisclosure of the information is necessary for the conduct of an evaluation, examination or proceeding under ch. 980 for which the information was obtained.

SB388, s. 11 Section 11. 165.255 of the statutes is amended to read:

SB388,8,16 165.255 Representation in sexually violent person commitment proceedings. The department of justice may, at the request of an agency under s. 980.02 (1), represent the state in sexually violent person commitment proceedings under ch. 980 if it files the petition to initiate the proceedings as provided under s. 980.02 (1) (a).