Burgess v. Watters

• Decision Date: 02 November 2006
• Docket Number: No. 05-1663.,05-1663.
• Citation: 467 F.3d 676
• Parties: Steven J. BURGESS, Petitioner-Appellant, v. Steven WATTERS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

467 F.3d 676

Steven J. BURGESS, Petitioner-Appellant, v. Steven WATTERS, Respondent-Appellee.

No. 05-1663.

United States Court of Appeals, Seventh Circuit.

Argued September 19, 2005.

Decided November 2, 2006.

Steven P. Weiss (argued), Office of the State Public Defender, Madison, WI, for Petitioner-Appellant.

Daniel J. O'Brien (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before RIPPLE, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge.

Steven J. Burgess was involuntarily committed to a Wisconsin state mental health facility after a jury found that he was a sexually violent person as defined in Wisconsin's Sexually Violent Person Commitment Statutes, Wis. Stat. § 980 et seq. (chapter 980). Both the Wisconsin Court of Appeals and the Supreme Court of Wisconsin affirmed the judgment ordering his commitment. After exhausting his state court remedies, he filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Wisconsin, and the district court denied relief. Burgess now appeals to this court.

What distinguishes this case from the many habeas corpus petitions this court entertains each term is that it involves one additional sovereign — Burgess is a member of a federally recognized Indian tribe. He argues that as a legal resident of an Indian reservation, the State of Wisconsin lacked jurisdiction to commit him involuntarily as a sexually violent person. He relies on Public Law 280, 67 Stat. 588 (1953), codified in part at 18 U.S.C. § 1162, 28 U.S.C. § 1360, under which Congress expressly granted Wisconsin criminal and limited civil jurisdiction over matters involving Indians. We conclude that the Supreme Court of Wisconsin's ultimate resolution of Burgess's jurisdictional claim was not contrary to or an unreasonable application of clearly established law as articulated by the Supreme Court of the United States, and we thus affirm the district court's denial of the petition.

I

Burgess is an enrolled member of the Lac du Flambeau Band of Lake Superior Chippewa Indians (Lac du Flambeau), a federally-recognized Indian tribe. For most of his life, Burgess has lived on the Lac du Flambeau Reservation in Vilas County, Wisconsin; he is a legal resident of his tribal reservation land.

In February of 1995, Burgess was convicted of attempted second-degree sexual assault of a child (a crime that he committed on his reservation) in the Circuit Court for Vilas County, Wisconsin. He was subsequently incarcerated at the Oshkosh Correctional Institution, a prison facility of the State of Wisconsin. There is no question that the Wisconsin Circuit Court had jurisdiction, conferred by § 2 of Public Law 280, to try Burgess for this crime. See State v. Webster, 114 Wis.2d 418, 338 N.W.2d 474, 476 (1983) ("Public Law 280 gave certain states, including Wisconsin, jurisdiction over crimes committed by or against Indians in Indian country within each state."); see also 18 U.S.C. § 1162(a) ("[T]he criminal laws of such state or territory shall have the same force and effect within such Indian country as they have elsewhere within the State or Territory.").

On November 17, 1998, the day that Burgess was scheduled to be released from prison, the State of Wisconsin filed a petition seeking his commitment as a chapter 980 "sexually violent person." At that time, chapter 980 defined "sexually violent person" as:

a person who has been convicted of a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect, or illness, and who is dangerous because he or she suffers a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.

Wis. Stat. § 980.01(7) (amended 2006). (The statute has recently been amended; the last clause now reads "that the person will engage in one or more acts of sexual violence." Wis. Stat. § 980.01(7) (2006) (emphasis added).) Once a court or jury has determined after proper proceedings that the individual is a sexually violent person, "the court shall order the person to be committed to the custody of the [D]epartment [of Health and Family Services] for control, care and treatment until ... the person is no longer a sexually violent person." Wis. Stat. § 980.06.

The statute also spells out the requirements for the commitment procedures. The process begins with a probable cause hearing, to determine whether "there is probable cause to believe that the person named in the petition is a sexually violent person." Id. § 980.04(2). At the time the state filed its chapter 980 petition in Burgess's case, the statute provided that "[i]f the court determines after a hearing that there is probable cause to believe that the person named in the petition is a sexually violent person, the court shall order that the person be taken into custody if he or she is not in custody and shall order the person to be transferred within a reasonable time to an appropriate facility for an evaluation as to whether the person is a sexually violent person." Id. § 980.04(3) (amended 2006). On November 19, 1998, the circuit court found probable cause that Burgess was a sexually violent person and ordered him transferred to a state mental health institution for evaluation.

Burgess requested a jury for the commitment proceeding. See id. § 980.05(2). At the hearing, the state bore the burden of proving beyond a reasonable doubt that he is a sexually violent person. Id. § 980.05(3)(a). At the time Burgess's petition was pending before the circuit court, the statute also afforded him "all constitutional rights available to a defendant in a criminal proceeding," id. § 980.05(1m). That provision has since been repealed, but we have no occasion to consider any implications of the change, as it has no effect on Burgess.

Prior to his hearing, Burgess filed a host of motions. Most relevant to this appeal, he moved to dismiss the state's petition on the ground that the circuit court lacked jurisdiction to conduct involuntary civil commitment proceedings against enrolled tribal members. His position, essentially, was that a chapter 980 proceeding falls into the cracks between the jurisdiction conferred by the criminal and civil provisions of Public Law 280. He acknowledged that the federal statute grants Wisconsin broad criminal jurisdiction over offenses committed by Indians both within the state and on their reservation land, but he argued that this was not a criminal proceeding. The grant of civil jurisdiction in § 4 of Public Law 280, codified at 28 U.S.C. § 1360(a), is limited to private, civil litigation involving tribal members in state court and does not give the state general civil regulatory authority over reservation Indians; Burgess's position was that the involuntary commitment process more resembled a regulatory action than a suit in tort or contract.

After receiving Burgess's motion, the circuit court wrote a letter to the Lac du Flambeau tribal court asking whether it could handle Burgess's commitment proceeding. That court declined jurisdiction, indicating that it was not in a position to hear Burgess's case because the tribe at that time had no laws or ordinances calling for the indefinite commitment of sexually violent persons. As a result, the circuit court denied Burgess's motion based on its understanding that the state was allowed to assert jurisdiction over reservation Indians in any area where the tribe did not have an ongoing tradition of acting.

At the hearing, both sides presented expert testimony about Burgess's mental condition and the likelihood of recidivism. The jury found Burgess to be a sexually violent person. On August 10, 2000, the circuit court entered a judgment indefinitely committing Burgess to the Wisconsin Department of Health and Family Services. Burgess filed a number of post-judgment motions, including a motion for a new trial or relief from judgment based in part on his jurisdictional objection, but the circuit court denied these motions.

Burgess appealed. Among the issues he raised before the Wisconsin Court of Appeals was his argument that the state court lacked jurisdiction to conduct chapter 980 proceedings against enrolled tribal members, particularly where the underlying offense was committed on reservation land. The court of appeals affirmed. It agreed with Burgess that chapter 980 was not a criminal or punitive law, and therefore that the circuit court did not have criminal jurisdiction over Burgess's case. In re the Commitment of Steven J. Burgess, 258 Wis.2d 548, 654 N.W.2d 81, 88 (2002) (citing State v. Carpenter, 197 Wis.2d 252, 541 N.W.2d 105, 112-13 (1995)). Nevertheless, it rejected Burgess's argument that this proceeding fell outside the scope of Public Law 280's grant of civil jurisdiction.

Burgess then turned to the state supreme court, which affirmed the judgment of the court of appeals on different grounds. The supreme court reasoned that the circuit court had jurisdiction to conduct Burgess's chapter 980 proceedings under Public Law 280's broad grant of criminal jurisdiction because the underlying conduct at issue, sexually violent behavior, was prohibited by state criminal law. The supreme court also concluded that Burgess's commitment proceeding was somehow ancillary to the circuit court's general criminal jurisdiction over tribal members because the "civil proceedings under chapter 980 are enveloped on both sides by criminal conduct." In re the Commitment of Steven J. Burgess, 262 Wis.2d 354, 665 N.W.2d 124, 132 (2003). In this connection, it pointed out that "only persons who have committed sexually violent offenses are eligible for commitment under chapter 980" and "chapter 980 commitments are intended to protect the public by preventing future acts of sexual violence." Id. In the alternative, the supreme...