In re Commitment of Nelson

• Citation: 2007 WI App 2,727 N.W.2d 364
• Decision Date: 21 December 2006
• Docket Number: No. 2005AP810.,2005AP810.
• Court: Court of Appeals of Wisconsin
• Parties: In re the COMMITMENT OF Scott R. NELSON. State of Wisconsin, Petitioner-Respondent, v. Scott R. Nelson, Respondent-Appellant.<SMALL><SUP>†</SUP></SMALL>

727 N.W.2d 364

2007 WI App 2

In re the COMMITMENT OF Scott R. NELSON.

State of Wisconsin, Petitioner-Respondent, v. Scott R. Nelson, Respondent-Appellant.^†

No. 2005AP810.

Court of Appeals of Wisconsin.

December 21, 2006.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Joseph L. Sommers, Madison.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Warren D. Weinstein, Assistant Attorney General, and Peggy A. Lautenschlager, Attorney General.

Before LUNDSTEN, P.J., DYKMAN and VERGERONT, JJ.

¶ 1 LUNDSTEN, P.J

Scott Nelson appeals the circuit court's judgment committing him as a sexually violent person under WIS. STAT. chapter 980 and the order denying his motion for reconsideration and a new trial. He challenges the recently modified definition of "sexually violent person" under chapter 980 on both substantive due process and equal protection grounds.¹ The new definition lowers the level of dangerousness required for commitment from "substantially probable" to "likely" to engage in an act of sexual violence. We reject Nelson's challenge and affirm the circuit court's judgment and order.²

Background

¶ 2 On April 19, 2004, the State petitioned to have Nelson committed as a sexually violent person under chapter 980. Between the time the State filed the petition and the time the circuit court found Nelson to be a sexually violent person, the definition of sexually violent person in chapter 980 changed. The court found Nelson to be a sexually violent person under the new "likely" standard, and committed him.

Discussion

¶ 3 Before a person may be committed under chapter 980, the person must be determined to be a "sexually violent person." WIS. STAT. § 980.06. Prior to the passage of 2003 Wis. Act 187, a "sexually violent person" was

a person who has been convicted of a sexually violent offense ... 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.

WIS. STAT. § 980.01(7) (2001-02) (emphasis added).

¶ 4 With the passage of 2003 Wis. Act 187, the legislature changed just two words in this definition. It substituted "likely" for "substantially probable." Thus, the statute now defines a "sexually violent person" as

a person who has been convicted of a sexually violent offense ... and who is dangerous because he or she suffers from a mental disorder that makes it likely that the person will engage in acts of sexual violence.

WIS. STAT. § 980.01(7) (emphasis added).

¶ 5 By enacting 2003 Wis. Act 187, the legislature lowered the level of dangerousness required to commit a person under chapter 980. The prior language, "substantially probable," was judicially defined to mean "much more likely than not." State v. Curiel, 227 Wis.2d 389, 401, 597 N.W.2d 697 (1999); see also State v. Kienitz, 227 Wis.2d 423, 434, 597 N.W.2d 712 (1999). The current term, "likely," is statutorily defined to mean "more likely than not." WIS. STAT. § 980.01(1m); see also State v. Tabor, 2005 WI App 107, ¶ 5, 282 Wis.2d 768, 699 N.W.2d 663 (legislature intended "to change (and lower)" the standard), review denied, 2005 WI 136, 285 Wis.2d 629, 703 N.W.2d 379 (No.2004AP1986).

¶ 6 In sum, the standard has been changed from "much more likely than not" to "more likely than not."

¶ 7 Nelson makes two facial constitutional challenges to the new standard. One is based on substantive due process and the other on equal protection.³ Both challenges present questions of law for our de novo review. State v. Wield, 2003 WI App 179, ¶ 20, 266 Wis.2d 872, 668 N.W.2d 823.

¶ 8 We presume that all legislative enactments are constitutional, and resolve doubts in favor of the constitutionality of a statute. State v. Laxton, 2002 WI 82, ¶ 8, 254 Wis.2d 185, 647 N.W.2d 784. The challenger bears the burden of proving the statute unconstitutional beyond a reasonable doubt. Id. A facial constitutional challenge to a statute "is an uphill endeavor." State v. Dennis H., 2002 WI 104, ¶ 5, 255 Wis.2d 359, 647 N.W.2d 851.

Substantive Due Process

¶ 9 Strict scrutiny review applies to Nelson's substantive due process challenge. State v. Post, 197 Wis.2d 279, 302, 541 N.W.2d 115 (1995). Nelson does not dispute that the State has a "compelling interest in protecting society by preventing future acts of sexual violence through the commitment and treatment of those identified as most likely to commit such acts." Id. at 294, 541 N.W.2d 115. His argument is that the change in chapter 980 from "substantially probable" to "likely" violates substantive due process because the lower standard of commitment is not narrowly tailored to address the compelling state interest behind chapter 980. We reject Nelson's argument for the reasons that follow.

¶ 10 Wisconsin case law has discussed, or at least referenced, the "substantially probable" standard in upholding chapter 980 against substantive due process or other constitutional challenges. See Laxton, 254 Wis.2d 185, ¶¶ 11, 22-23, 27, 30, 647 N.W.2d 784; Curiel, 227 Wis.2d at 413-15, 597 N.W.2d 697; Post, 197 Wis.2d at 311-12 n. 17, 541 N.W.2d 115. That case law does not, however, decide the question that Nelson's argument raises: whether the "substantially probable" standard is the minimum necessary to comport with substantive due process. We find the United States Supreme Court's decisions in Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), and Kansas v. Crane 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), to be a useful starting point in analyzing this question.

¶ 11 In Hendricks, the Court upheld the Kansas sexually violent persons law in the face of a substantive due process challenge. See Hendricks, 521 U.S. at 350, 371, 117 S.Ct. 2072. The Kansas law required that the person being committed "`suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence.'" Id. at 352, 117 S.Ct. 2072 (quoting KAN. STAT. ANN. § 59-29a02(a); emphasis added). Although the Hendricks Court did not squarely address the issue before us, the Court did explain that the Kansas statute is narrowly drawn because it "requires proof of more than a mere predisposition to violence; rather, it requires evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated." Hendricks, 521 U.S. at 357, 117 S.Ct. 2072 (emphasis added).⁴ Thus, Hendricks is consistent with the proposition that the "likely" standard is sufficient to satisfy substantive due process requirements.

¶ 12 In Crane, the Court again addressed the Kansas law and sought to clarify certain aspects of its decision in Hendricks See iCrane, 534 U.S. at 409-15, 122 S.Ct. 867. The Court concluded that Hendricks mandated "proof of serious difficulty in controlling behavior." Crane, 534 U.S. at 413, 122 S.Ct. 867. The Court further explained that such proof, "when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case." Id.

¶ 13 Our supreme court in Laxton explained that, under Crane, "the focus is on the nexus between the mental abnormality and the level of dangerousness, and whether those requirements are sufficient to distinguish a dangerous sexual offender from the dangerous but typical recidivist." Laxton, 254 Wis.2d 185, ¶ 15, 647 N.W.2d 784; see also Post, 197 Wis.2d at 307, 541 N.W.2d 115 ("[T]he focal point of commitment is . . . on current diagnosis of a present disorder suffered by an individual that specifically causes that person to be prone to commit sexually violent acts in the future."). Thus, "Crane holds that there must be proof of a mental disorder and a link between the mental disorder and the individual's lack of control." Laxton, 254 Wis.2d 185, ¶ 21, 647 N.W.2d 784.

¶ 14 In short, under Crane, the key to the constitutionality of chapter 980, at least for purposes of substantive due process, is that there exists a sufficient link between the person's mental disorder and the person's level of dangerousness, and that this link is sufficient to distinguish the person from the "dangerous but typical recidivist."⁵

¶ 15 Although Nelson's substantive due process argument is not fully developed, his principal assertion seems to be that the "more likely than not" standard of dangerousness is insufficient under Crane and, therefore, not narrowly tailored. Nelson contends that proof that a person is "more likely than not" to commit a future act of sexual violence is insufficient to show that the person's mental disorder involves "serious difficulty" in controlling sexually violent behavior, as required by Hendricks and Crane. But Nelson presents no reason to think that the legislature's use of "more likely than not," as opposed to "much more likely than not," breaks the crucial link between disorder and dangerousness. Even under the "more likely than not" standard, there must be a strong nexus between the person's mental disorder and that person's level of dangerousness. Under this standard, the likelihood that the person will engage in an act of sexual violence is more than 50%.⁶

¶ 16 The principal purposes behind chapter 980 are "the protection of the public and the treatment of convicted sex offenders who are at a high risk to reoffend in order to reduce the likelihood that they will engage in such conduct in the future." State v. Carpenter, 197 Wis.2d 252, 271, 541 N.W.2d 105 (1995). We recently said in Tabor that "the legislature may modify the threshold for dangerousness so long as the...