SB388: Bill Text

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).

SB388, s. 12 Section 12. 301.355 of the statutes is created to read:

SB388,8,21 301.355 Access to records for sexually violent person commitment proceedings. (1) The department shall allow the following persons to have access to a departmental record relating to an individual who has been convicted of a sexually violent offense, as defined in s. 980.01 (6):

SB388,8,22 (a) The department of health and family services.

SB388,8,23 (b) The department of justice.

SB388,8,25 (c) A district attorney specified in s. 980.02 (1) (b) or an agent or employe of the district attorney.

SB388,9,2 (d) The person who is the subject of the departmental record, his or her attorney or an agent or employe of the attorney.

SB388,9,4 (e) An expert or professional person who has been retained or appointed under ch. 980 to evaluate or examine the subject of the departmental record.

SB388,9,7 (2) Information obtained from a departmental record under sub. (1) may be used in an evaluation, examination, trial or other proceeding under ch. 980 by any person specified in sub. (1).

SB388, s. 13 Section 13. 301.45 (3) (a) 3r. of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB388,9,13 301.45 (3) (a) 3r. If the person has been committed under ch. 980, he or she is subject to this subsection upon being placed on supervised release under s. 980.06 (2), 1997 stats., or s. 980.08 or, if he or she was not placed on supervised release, before being discharged under s. 980.09 or 980.10.

SB388, s. 14 Section 14. 808.075 (4) (h) of the statutes is amended to read:

SB388,9,17 808.075 (4) (h) Commitment, supervised release, recommitment and discharge under ss. 980.06, 980.08, and 980.09 and 980.10 of a person found to be a sexually violent person under ch. 980.

SB388, s. 15 Section 15. 904.04 (2) of the statutes is amended to read:

SB388,9,24 904.04 (2) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. This subsection does not exclude the evidence when it is offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, or when it is offered at a trial or other proceeding under ch. 980 for the purpose of proving the diagnosis of a person or showing the basis of an opinion concerning the probability that a person will engage in acts of sexual violence.

SB388, s. 16 Section 16. 905.04 (4) (a) of the statutes is amended to read:

SB388,10,15 905.04 (4) (a) Proceedings for hospitalization, control, care and treatment of a sexually violent person, guardianship, protective services or protective placement. There is no privilege under this rule as to communications and information relevant to an issue in proceedings to hospitalize the patient for mental illness, to appoint a guardian under s. 880.33, for control, care and treatment of a sexually violent person under ch. 980, for court-ordered protective services or protective placement or for review of guardianship, protective services or protective placement orders, if the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor in the course of diagnosis or treatment has determined that the patient is in need of hospitalization, control, care and treatment as a sexually violent person, guardianship, protective services or protective placement.

SB388, s. 17 Section 17. 938.35 (1) (e) of the statutes is created to read:

SB388,10,18 938.35 (1) (e) In a hearing, trial or other proceeding under ch. 980 relating to a juvenile.

SB388, s. 18 Section 18. 938.396 (1) of the statutes is amended to read:

SB388,11,12 938.396 (1) Law enforcement officers' records of juveniles shall be kept separate from records of adults. Law enforcement officers' records of juveniles shall not be open to inspection or their contents disclosed except under sub. (1b), (1d), (1g), (1k), (1m), (1r), (1t) or (1x) or (5) or s. 938.293 or by order of the court. This subsection does not apply to representatives of the news media who wish to obtain information for the purpose of reporting news without revealing the identity of the juvenile involved, to the confidential exchange of information between the police and officials of the school attended by the juvenile or other law enforcement or social welfare agencies or to juveniles 10 years of age or older who are subject to the jurisdiction of the court of criminal jurisdiction. A public school official who obtains information under this subsection shall keep the information confidential as required under s. 118.125 and a private school official who obtains information under this subsection shall keep the information confidential in the same manner as is required of a public school official under s. 118.125. A law enforcement agency that obtains information under this subsection shall keep the information confidential as required under this subsection and s. 48.396 (1). A social welfare agency that obtains information under this subsection shall keep the information confidential as required under ss. 48.78 and 938.78.

SB388, s. 19 Section 19. 938.396 (1k) of the statutes is created to read:

SB388,11,22 938.396 (1k) If the department of justice or a district attorney requests access to a law enforcement agency's records under s. 980.015 (3r), the law enforcement agency shall open for inspection by authorized representatives of the department of justice or a district attorney the records of the law enforcement agency relating to any juvenile who has been adjudicated delinquent for a sexually violent offense, as defined in s. 980.01 (6). Information obtained from a law enforcement agency's records under this subsection 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. 20 Section 20. 938.396 (2) (e) of the statutes is amended to read:

SB388,12,10 938.396 (2) (e) Upon request of the department of corrections, the department of health and family services, the department of justice or a district attorney to review court records for the purpose of providing, under s. 980.015 (3) (a), the department of justice or a district attorney with a person's offense history conducting an evaluation, examination or proceeding under ch. 980, the court shall open for inspection by authorized representatives of the department of corrections, the department of health and family services, the department of justice or a district attorney the records of the court relating to any juvenile who has been adjudicated delinquent for a sexually violent offense, as defined in s. 980.01 (6). Information obtained from court records under this paragraph shall be kept confidential except as necessary for the conduct of an evaluation, examination or proceeding under ch. 980 for which the information was obtained.

SB388, s. 21 Section 21. 938.396 (5) (a) (intro.) of the statutes is amended to read:

SB388,12,15 938.396 (5) (a) (intro.) Any person who is denied access to a record under sub. (1), (1b), (1d), (1g), (1k), (1m), (1r) or (1t) may petition the court to order the disclosure of the records governed by the applicable subsection. The petition shall be in writing and shall describe as specifically as possible all of the following:

SB388, s. 22 Section 22. 938.78 (2) (e) of the statutes is amended to read:

SB388,13,2 938.78 (2) (e) Paragraph (a) does not prohibit the department from disclosing information about an individual adjudged delinquent under s. 938.183 or 938.34 for a sexually violent offense, as defined in s. 980.01 (6), to the department of justice, or a district attorney or a judge acting under ch. 980, to an expert or professional person conducting an evaluation or examination of a person under ch. 980 or to an attorney who represents a person subject to a petition under ch. 980. The court in which the petition under s. 980.02 is filed may issue any protective orders that it determines are appropriate concerning information disclosed under this paragraph Information obtained from the department under this paragraph shall be kept confidential except as necessary for the conduct of an evaluation, examination or proceeding under ch. 980 for which the information was obtained.

SB388, s. 23 Section 23. 950.04 (1v) (xm) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB388,13,7 950.04 (1v) (xm) To have the department of health and family services make a reasonable attempt to notify the victim under s. 980.11 regarding supervised release under s. 980.08 and discharge under s. 980.09 or 980.10.

SB388, s. 24 Section 24. 972.15 (4) of the statutes is amended to read:

SB388,13,12 972.15 (4) After sentencing, unless otherwise authorized under sub. subs. (5) and (6) or ordered by the court, the presentence investigation report shall be confidential and shall not be made available to any person except upon specific authorization of the court.

SB388, s. 25 Section 25. 972.15 (6) of the statutes is created to read:

SB388,13,16 972.15 (6) The presentence investigation report and any information contained in it may be used by any of the following persons in an evaluation, examination, hearing, trial or other proceeding under ch. 980:

SB388,13,17 (a) The department of corrections.

SB388,13,18 (b) The department of health and family services.

SB388,13,20 (c) The person who is the subject of the presentence investigation report, his or her attorney or an agent or employe of the attorney.

SB388,13,21 (d) The attorney representing the state or an agent or employe of the attorney.

SB388,13,23 (e) An expert or professional person who has been retained or appointed to evaluate or examine the subject of the presentence investigation report.

SB388, s. 26 Section 26. 980.015 (title) of the statutes is amended to read:

SB388,14,3 980.015 (title) Notice Evaluations of persons who may meet commitment criteria; notice to the department of justice and district attorney.

SB388, s. 27 Section 27. 980.015 (1) of the statutes is renumbered 980.015 (1) (intro.) and amended to read:

SB388,14,6 980.015 (1) (intro.) In this section, "agency and s. 980.02:

SB388,14,8 (a) "Agency with jurisdiction" means the agency with the authority or duty to release or discharge the person.

SB388, s. 28 Section 28. 980.015 (1) (b) (intro.) of the statutes is created to read:

SB388,14,11 980.015 (1) (b) (intro.) "Anticipated release date" means whichever of the following is applicable:

SB388, s. 29 Section 29. 980.015 (2) (intro.) of the statutes is renumbered 980.015 (2) (am) and amended to read:

SB388,14,25 980.015 (2) (am) If an agency with jurisdiction has control or custody over a person who meets any of the criteria specified in s. 980.02 (2) (a), the agency with jurisdiction shall, no later than 180 days before the anticipated release date of the person, evaluate whether the person may meet the criteria for commitment as a sexually violent person or whether the person does not meet the criteria for commitment as a sexually violent person. No later than 15 days after the completion of its evaluation, the agency with jurisdiction shall inform each appropriate district attorney specified under s. 980.02 (1) (b) and the department of justice regarding the person as soon as possible beginning 3 months prior to the applicable date of the following: whether the agency with jurisdiction has determined whether the person may meet the criteria for commitment or whether the person does not meet the criteria for commitment.

SB388, s. 30 Section 30. 980.015 (2) (a) of the statutes is renumbered 980.015 (1) (b) 1. and amended to read:

SB388,15,5 980.015 (1) (b) 1. The anticipated date of discharge from a sentence, anticipated date of release on parole or extended supervision or anticipated date of release from imprisonment of a person who has been convicted of a sexually violent offense.

SB388, s. 31 Section 31. 980.015 (2) (b) of the statutes, as affected by 1999 Wisconsin Act 9, is renumbered 980.015 (1) (b) 2. and amended to read:

SB388,15,12 980.015 (1) (b) 2. The anticipated date of release from a secured correctional facility, as defined in s. 938.02 (15m), or a secured child caring institution, as defined in s. 938.02 (15g), or a secured group home, as defined in s. 938.02 (15p), of a person adjudicated delinquent under s. 938.183 or 938.34 on the basis of a sexually violent offense.

SB388, s. 32 Section 32. 980.015 (2) (bm) of the statutes is created to read:

SB388,16,2 980.015 (2) (bm) If an agency with jurisdiction determines in an evaluation under par. (am) that the person may meet the criteria for commitment as a sexually violent person, the agency with jurisdiction shall obtain a special purpose evaluation of the person by a qualified expert or professional person, who shall make a recommendation as to whether a commitment proceeding under this chapter should be initiated. A qualified expert or professional person who conducts a special purpose evaluation under this paragraph shall make a written report of his or her evaluation to the agency with jurisdiction no later than 120 days before the anticipated release date of the person. The report shall specify the recommendation of the qualified expert or professional person and the bases for the recommendation. The agency with jurisdiction shall, no later than 5 days after it receives the report, provide each district attorney specified under s. 980.02 (1) (b) and the department of justice with a copy of the report of the qualified expert or professional person who conducted the special purpose evaluation.

SB388, s. 33 Section 33. 980.015 (2) (c) of the statutes is renumbered 980.015 (1) (b) 3. and amended to read: