In re Commitment of Schulpius

• Decision Date: 10 January 2006
• Docket Number: No. 2002AP1056.,2002AP1056.
• Parties: In re the COMMITMENT OF Shawn D. SCHULPIUS: State of Wisconsin, Petitioner-Respondent, v. Shawn D. Schulpius, Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 495

707 N.W.2d 495

2006 WI 1

In re the COMMITMENT OF Shawn D. SCHULPIUS State of Wisconsin, Petitioner-Respondent, v. Shawn D. Schulpius, Respondent-Appellant-Petitioner.

No. 2002AP1056.

Supreme Court of Wisconsin.

Argued October 28, 2004 and October 6, 2005.

Decided January 10, 2006.

COPYRIGHT MATERIAL OMITTED

For the respondent-appellant-petitioner there were briefs and oral argument by Ellen Henak, Assistant State Public Defender.

For the petitioner-respondent the cause was argued by Warren D. Weinstein, Assistant Attorney General, with whom on the briefs was Peggy A. Lautenschlager, Attorney General.

An amicus curiae brief was filed by William J. Domina and John Jorgensen, Milwaukee, on behalf of Milwaukee County Corporation Counsel.

An amicus curiae brief was filed by Nicholas L. Chiarkas, Marla J. Stephens, and Kellie M. Krake, Madison, on behalf of the Office of the State Public Defender.

An amicus curiae brief was filed by Andrew T. Phillips, Evan N. Claditis and Prentice & Phillips LLP, Milwaukee, on behalf of Wisconsin Counties Association.

An amicus curiae brief was filed by Neil Gebhart, Madison, on behalf of Wisconsin Department of Health and Family Services, and there was oral argument by Diane Welsh.

¶ 1 N. PATRICK CROOKS, J

Petitioner Shawn D. Schulpius (Schulpius) appeals from a published decision of the court of appeals, affirming a circuit court order which denied Schulpius's motion to enforce a previous circuit court order directing that he be placed on supervised release.¹ We address three principal issues on appeal. First, is Schulpius entitled to outright release from his Wis. Stat. ch. 980 (2003-04) commitment because the Department of Health and Family Services (DHFS), in conjunction with Milwaukee County, was unable to place him in an appropriate location for the period between the initial supervised release determination and the circuit court's ultimate determination that Schulpius is too dangerous for such placement? Second, in light of our decision in State v. Sprosty, 227 Wis.2d 316, 595 N.W.2d 692 (1999), should this court issue an order directing the DHFS to create an appropriate residential facility or dwelling in Milwaukee County for persons presently authorized for supervised release? Finally, is Schulpius or another individual committed under Chapter 980 (2003-04), who is authorized for supervised release but not yet expeditiously placed, entitled to seek a remedy such as monetary damages?

¶ 2 We affirm the decision of the court of appeals. We conclude that the November 2000 order granting the State of Wisconsin's (State's) motion for reconsideration, and finding Schulpius not appropriate for supervised release, was a valid, final, appealable order, and therefore, he is not entitled to outright release from his Chapter 980 commitment. Even though Schulpius's appeal is moot, we determine that the issues should be considered. We determine that State v. Morford, 2004 WI 5, 268 Wis.2d 300, 674 N.W.2d 349, is inapplicable to this case, as Schulpius never appealed from, and therefore waived any objection to, the November 2000 order granting the State's Wis. Stat. § 806.07(1)(h) (1999-2000)² motion to reconsider supervised release. We do conclude, however, that there was a procedural due process violation. We also conclude that our decision in Sprosty is still valid, and allows a circuit court to order the DHFS to create an appropriate residential facility or dwelling to accommodate a Chapter 980 order for supervised release. However, for two reasons, we conclude that issuing such an order is unnecessary in this case. Such a residential facility or dwelling for supervised release would be meaningless for Schulpius at this time, as he was determined to be inappropriate for supervised release in November 2000, and that determination has not been changed. Second, we are satisfied that the DHFS has made substantial attempts to establish a residential facility or dwelling that would enable individuals committed under Chapter 980 to be placed on supervised release in Milwaukee County. Finally, because the order of November 2000 declaring Schulpius inappropriate for supervised release remains valid, even though there was a procedural due process violation, we decline to determine what remedy, if any, Schulpius would be entitled to seek. We further decline to address what might be an appropriate remedy for another individual, committed under Chapter 980 who, under different circumstances, has been authorized for supervised release but not yet expeditiously placed.

I

¶ 3 Because this case is procedurally convoluted, we set forth an abbreviated version of the facts relevant to render a decision. A more complete discussion of the facts and procedural history can be found in the court of appeals' decision. See State v. Schulpius, 2004 WI App 39, ¶¶ 3-32, 270 Wis.2d 427, 678 N.W.2d 369.

¶ 4 In December 1991 Schulpius, one week shy of his 18th birthday, pled guilty to, and was convicted of, first-degree sexual assault of a four-year-old boy for whom he had been babysitting. He was sentenced as an adult to an indeterminate term of not more than five years in the Wisconsin prison system.

¶ 5 At the time of his conviction in 1991, Schulpius already had a long history of sexually assaulting minors. "Schulpius's `first group of sex offenses' started when Schulpius was fourteen," when he began molesting his six-year-old step-sister. Id., ¶ 4, 678 N.W.2d 369. As a result of the assaults, "Schulpius was placed at a mental-health facility" for approximately three months, where he received individual therapy treatment. Id. However, six months later, "Schulpius `began re-assaulting his step-sister. . . .'" Id. During this period, Schulpius also assaulted his one-year-old half-brother. Id.

¶ 6 "When Schulpius was fifteen, he began assaulting girls in his neighborhood and, also, one of his biological sisters, who was then approximately eleven or twelve [years old]. He also resumed sexually assaulting his younger step-sister." Id., ¶ 6, 678 N.W.2d 369. He was sent to another treatment facility. At age 17, Schulpius left the treatment facility and entered a group home. Id. "When he lost one of his two part-time jobs, he `offered to babysit for a woman friend's young son.' The child was the four-year-old boy whom Schulpius assaulted in the waiver-to-adult-court case that ultimately resulted in his imprisonment. . . ." Id.

¶ 7 In 1995 the State filed a Chapter 980 petition just prior to Schulpius's scheduled release from prison, and Schulpius was adjudicated a sexually violent person. Milwaukee County Circuit Court, Judge John Franke, committed Schulpius to a secure mental facility, unless the DHFS determined that there was an appropriate community facility to house him.

¶ 8 On July 15, 1997, Judge Franke entered an order, nunc pro tunc to July 31, 1996, directing that Schulpius be placed on supervised release pursuant to Wis. Stat. § 980.06(2)(c)-(d)(1995-96). However, the DHFS was unable to place Schulpius on supervised release due to the lack of appropriate facilities in Milwaukee County. Despite numerous court orders directing the DHFS, in conjunction with Milwaukee County, to prepare an appropriate plan for Schulpius's supervised release, and several unsuccessful attempts to place Schulpius in Milwaukee County, or in another Wisconsin county, such as Pepin, Schulpius remained in secure custody at the Wisconsin Resource Center.

¶ 9 On October 27, 1999, the circuit court entered an order declaring that Chapter 980 was being unconstitutionally applied to Schulpius. The order directed that Schulpius be released from secure custody and placed on supervised release. In response, the State filed a motion for reconsideration under Wis. Stat. § 806.07(1)(h). On November 29, 2000, Judge Franke granted the State's motion for reconsideration and determined that Schulpius was no longer appropriate for supervised release.

¶ 10 After the November 2000 decision to revoke the order for supervised release, Judge Franke "was succeeded by the Honorable John J. DiMotto, pursuant to the rotation-of-judges plan in Milwaukee County." Schulpius, 270 Wis.2d 427, ¶ 29, 678 N.W.2d 369.

¶ 11 On November 26, 2001, Schulpius moved to enforce the circuit court's order of October 27, 1999, and for a final order releasing him from secure custody. On January 17, 2002, the circuit court denied Schulpius's motion to enforce its October 27, 1999 order. Schulpius appealed this decision to the court of appeals.

¶ 12 On appeal, Schulpius argued that he had been denied both procedural and substantive due process because the DHFS had failed to place him on supervised release when so ordered. Id., ¶ 33, 678 N.W.2d 369. The court of appeals, in a majority opinion authored by Judge Ralph Adam Fine, rejected Schulpius's substantive and procedural due process claims. Id., ¶¶ 34, 40, 678 N.W.2d 369. In rejecting Schulpius's substantive due process argument, the court of appeals reasoned that substantive due process is violated only in the most egregious and outrageous of circumstances, and that this case did not involve such circumstances. Id., ¶¶ 37-40, 678 N.W.2d 369. The court further concluded that the DHFS had acted in good faith in attempting to find an appropriate facility in the community in which to place Schulpius. Id., ¶ 38, 678 N.W.2d 369. Finally, the court of appeals determined that although Schulpius remained confined in violation of the circuit court's order for more than four years, such confinement was ultimately justified under a balancing test, where the potential harm to society that Schulpius's release might cause was weighed against the potential benefits that might flow from the cessation of Schulpius's confinement in a secure facility. Id., ¶ 42.

¶ 13 In his dissent, court of appeals Judge Charles B. Schudson concluded that Schulpius's substantive due process rights had indeed been violated by "...