In Re The Commitment Of Daniel Arends.State Of Wisconsin

• Decision Date: 15 June 2010
• Docket Number: No. 2008AP52.,2008AP52.
• Citation: 784 N.W.2d 513,325 Wis.2d 1,2010 WI 46
• Parties: In re the COMMITMENT OF Daniel ARENDS.State of Wisconsin, Petitioner-Respondent-Petitioner,v.Daniel Arends, Respondent-Appellant.
• Court: Wisconsin Supreme Court

325 Wis.2d 1

784 N.W.2d 513

2010 WI 46

In re the COMMITMENT OF Daniel ARENDS.State of Wisconsin, Petitioner-Respondent-Petitioner,v.Daniel Arends, Respondent-Appellant.

No. 2008AP52.

Supreme Court of Wisconsin.

Argued Sept. 11, 2009.

Decided June 15, 2010.

For the petitioner-respondent-petitioner the cause was argued by Christine A. Remington, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.

For the respondent-appellant there was a brief by Leonard D. Kachinsky and Sisson & Kachinsky Law Offices, Appleton, and oral argument by Leonard D. Kachinsky.

¶ 1 MICHAEL J. GABLEMAN, J.

This case involves the discharge procedure for a person civilly committed as a sexually violent person under Wis. Stat. ch. 980 (2005-06). ¹ Daniel Arends was civilly committed in 2005 as a sexually violent person, and he petitioned for discharge under Wis. Stat. § 980.09 in 2007. The circuit court reviewed the petition for discharge and three reports discussing Arends' propensity for sexual violence and his treatment. The circuit court denied the petition, stating in a written order that “[t]he court does not find probable cause exists” to conduct a discharge hearing (a trial on the merits of the discharge petition). In a published opinion, ² the court of appeals reversed, concluding that the circuit court applied the wrong standard and that Arends had produced facts entitling him to a discharge hearing on his petition.

¶ 2 The dispute in this case centers on the procedures a circuit court must follow under § 980.09-as amended in 2006-when determining whether to hold a discharge hearing, and whether the circuit court followed those procedures here.

¶ 3 We conclude that § 980.09 requires the circuit court to follow a two-step process in determining whether to hold a discharge hearing.

¶ 4 Under § 980.09(1), the circuit court engages in a paper review of the petition only, including its attachments, to determine whether it alleges facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. This review is a limited one aimed at assessing the sufficiency of the allegations in the petition. If the petition does allege sufficient facts, the circuit court proceeds to a review under § 980.09(2).

¶ 5 Wisconsin Stat. § 980.09(2) requires the circuit court to review specific items enumerated in that subsection, including all past and current reports filed under § 980.07.³ The circuit court need not, however, seek out these items if they are not already within the record. Nevertheless, it may request additional enumerated items not previously submitted, and also has the discretion to conduct a hearing to aid in its determination. The circuit court's task is to determine whether the petition and the additional supporting materials before the court contain any facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person.

¶ 6 In this case, the circuit court reviewed the three most current reports in the record, and therefore its denial of the petition appears to have been via review under § 980.09(2). The court did not, however, review all prior reports in the record as required by the statute. Additionally, the court denied Arends' petition on the grounds that it found no “probable cause” to conduct a discharge hearing, but offered no explanation of its rationale. Probable cause is not the standard required by the statute. We remand to the circuit court to make a determination under § 980.09(2) of whether to grant a discharge hearing on Arends' petition. Accordingly, we affirm the court of appeals' reversal of the circuit court, but modify its instructions.

I. BACKGROUND

¶ 7 While a minor, Daniel Arends committed multiple sexual assaults and other unlawful acts. As a result, he spent the years between ages 13 and 18 in juvenile treatment and correctional facilities. As he approached his 18th birthday and his consequent release, the State petitioned to commit him as a “sexually violent person” under Wis. Stat. § 980.02. A jury concluded that Arends met the criteria for commitment as a sexually violent person, and the Washington County Circuit Court, Annette Kingsland Ziegler, Judge, ordered Arends committed to the custody of the Department of Health Services (“Department”) in January 2005. The Department then committed him to institutional care at Sand Ridge Secure Treatment Center (“Sand Ridge”). ⁴

¶ 8 Upon Arends' request, on June 27, 2007, then-Judge Ziegler appointed counsel as well as a psychologist-Dr. Sheila Fields-to examine him. On August 27, 2007, Arends used the standardized form petition provided by the Department ⁵ to file a petition for discharge from his commitment. On the form Arends checked the box that states “I am no longer ‘more likely than not’ to commit an act of sexual violence.” ⁶ Below that, in the space designated for explanation, he typed: “See the attached report of Dr. Shiela [sic] Fields.” No other documents or facts were included or alleged in support of his petition.

¶ 9 The Washington County Circuit Court, with John A. Fiorenza, Judge, now presiding, reviewed the three most current reports in its consideration of Arends' petition. It reviewed Dr. Fields' report,⁷ a 2007 annual Re-examination Report ⁸ by Dr. William Schmitt, and a 2007 annual Treatment Progress Report ⁹ from Sand Ridge.

¶ 10 In her report, Dr. Fields concluded “to a reasonable degree of professional certainty” that Arends was “not more likely than not to sexually reoffend.” Dr. Schmitt indicated in his Re-examination Report that he could not confidently offer an opinion as to whether Arends posed a low, medium, or high risk of reoffense. Thus, he was unable to offer an opinion to a reasonable degree of professional certainty “as to whether Mr. Arends [was] ‘more likely than not’ to commit another sexually violent offense.” The Treatment Progress Report from Sand Ridge was, as its title suggests, a treatment report, not an examination of Arends' current propensity to sexually reoffend. Therefore, it contained no opinion as to whether Arends was more likely than not to sexually reoffend.¹⁰

¶ 11 On September 26, 2007, the circuit court issued a written order denying Arends' petition. The order, in its entirety, stated as follows:

The court, [sic] has reviewed [Arends'] petition for discharge filed on August 27, 2007 in the above matter, as well as a Treatment Progress Report from Sand Ridge Treatment Center, a Re-examination Report from Dr. William Schmitt, Ph.D. both filed on August 9, 2007, as well as a report from Dr. Sheila Fields filed August 27, 2007.

The court does not find probable cause exists to conduct a hearing on the Petition. Therefore, the Petition for Discharge is hereby denied, without hearing.

¶ 12 Arends appealed, and the court of appeals reversed. State v. Arends, 2008 WI App 184, ¶ 1, 315 Wis.2d 162, 762 N.W.2d 422. The court of appeals first noted that Chapter 980 was “extensively revised” in 2006, replacing a mandatory “probable cause” hearing on each discharge petition with a hearing at the court's discretion using a new standard. Id., ¶¶ 8, 13-14. The court of appeals concluded that removal of the “probable cause” language did not create a higher standard or shift the burden to the petitioner to prove he or she is no longer a sexually violent person, as suggested by the State. Id., ¶ 22. Rather, the court of appeals focused on the language of the statute and concluded that Arends' petition, and Dr. Fields' report in particular, contained “facts from which a judge or jury may conclude his condition is changed.” Id., ¶ 26. Thus, the court of appeals reversed and remanded, holding that the circuit court should have granted Arends an evidentiary hearing on his discharge petition. Id.¹¹

II. STANDARD OF REVIEW

¶ 13 This case requires us to interpret and apply Wis. Stat. § 980.09. The interpretation and application of a statute is a question of law that we review de novo, but benefitting from the analysis of the previous courts. Star Direct, Inc. v. Dal Pra, 2009 WI 76, ¶ 18, 319 Wis.2d 274, 767 N.W.2d 898.

III. DISCUSSION

¶ 14 Our task is to identify the procedures established by the legislature for courts to determine whether to grant a discharge hearing on a petition for discharge under Wis. Stat. § 980.09 ¹² as amended in 2006. Our analysis, therefore, centers on the text of the statute. See State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 44, 271 Wis.2d 633, 681 N.W.2d 110. We begin by briefly discussing the general statutory scheme in Chapter 980 for the civil commitment of sexually violent persons. We then give an overview of the prior and current versions of the statutory provisions governing petitions for discharge. After this, we analyze the specific procedures established by § 980.09(1) and § 980.09(2), respectively. Finally, we examine the circuit court's actions in this case, concluding that the circuit court did not follow the proper procedures or apply the proper standard of law in its denial of Arends' petition.

A. Civil Commitment Under Chapter 980 Generally

¶ 15 If the State wishes to commit a sexually violent offender, it must file a petition alleging that the person is a “sexually violent person.” At trial, the State has the burden of proving, beyond a reasonable doubt, that the person: (1) has been adjudicated to have committed a sexually violent offense; ¹³ (2) has a mental disorder that predisposes the person to acts of sexual violence; and (3) is more likely than not to commit another violent sexual offense. See Wis. Stat. §§ 980.01(7), 980.02(2), 980.05(3)(a). If the trier of fact so finds, the court must commit the person to the custody of the Department, which in turn must place the person into institutional care until the person is no longer a sexually violent...