State ex rel. Marberry v. Macht

• Decision Date: 02 July 2003
• Docket Number: No. 99-2446.,99-2446.
• Citation: 665 N.W.2d 155,2000 WI 79,262 Wis.2d 720
• Parties: STATE of Wisconsin EX REL. William E. MARBERRY, Petitioner-Appellant, v. Phillip G. MACHT, Superintendent, Wisconsin Resource Center and Joseph S. Leean, Secretary, Department of Health and Family Services, Respondents-Respondents-Petitioners.
• Court: Wisconsin Supreme Court

262 Wis.2d 720

2000 WI 79

665 N.W.2d 155

STATE of Wisconsin EX REL. William E. MARBERRY, Petitioner-Appellant, v. Phillip G. MACHT, Superintendent, Wisconsin Resource Center and Joseph S. Leean, Secretary, Department of Health and Family Services, Respondents-Respondents-Petitioners.

No. 99-2446.

Supreme Court of Wisconsin.

Oral argument October 9, 2002.

Decided July 2, 2003.

For the respondents-respondents-petitioners the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the petitioner-appellant there was a brief and oral argument by Donald T. Lang, assistant state public defender.

¶ 1. DIANE S. SYKES, J.

This is a review of a decision of the court of appeals granting habeas corpus relief and ordering the release of a sexually violent person from commitment under Chapter 980 of the Wisconsin Statutes as a remedy for the failure of the Department of Health and Family Services ("the department") to conduct a timely post-commitment initial reexamination under Wis. Stat. § 980.07 (2001-2002).¹ We reverse.

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¶ 2. Although we agree with the court of appeals' conclusion that the initial reexamination specified in Wis. Stat. § 980.07 is mandatory rather than directory, it does not follow that the extraordinary remedy of release pursuant to a writ of habeas corpus is proper. Habeas corpus relief is warranted only when the petitioner's liberty is restrained in violation of the constitution or by a court or tribunal lacking jurisdiction, and only when no other remedies are adequate. State ex rel. Haas v. McReynolds, 2002 WI 43, ¶ 12, 252 Wis. 2d 133, 141, 643 N.W.2d 771. Here, we need not decide whether the failure to comply with the mandatory statutory timeframe for reexamination affects the constitutionality of the underlying Chapter 980 commitment, or the competency of the court to conduct further proceedings in connection with that commitment. The petitioner has not demonstrated that other available remedies are inadequate. Those remedies include a petition for supervised release pursuant to Wis. Stat. § 980.08, or mandamus and contempt. Because there are adequate alternative remedies, habeas corpus relief in the form of discharge and release from commitment is unwarranted.

I. FACTS AND PROCEDURAL HISTORY

¶ 3. William Marberry was committed as a sexually violent person on July 15, 1998, in Dane County Circuit Court, pursuant to Wis. Stat. § 980.06. According to Wis. Stat. § 980.07(1), the department was required to reexamine Marberry's mental condition within six months of his initial commitment.

¶ 4. The department failed to conduct this reexamination within six months of Marberry's initial commitment. Eleven months after his commitment, on June 15, 1999, Marberry filed a petition for a writ of habeas corpus in Winnebago County Circuit Court seeking discharge and release from the Chapter 980 commitment because he still had not received the initial reexamination required by Wis. Stat. § 980.07(1). On September 9, 1999, the circuit court, the Honorable Robert A. Hawley, denied Marberry's habeas petition, but ordered the department to promptly conduct the reexamination. Marberry appealed.

¶ 5. The court of appeals certified the case to this court. We accepted the certification and, with one justice not participating, divided equally. State ex rel. Marberry v. Macht, 2001 WI 19, 241 Wis. 2d 695, 623 N.W.2d 135 (per curiam). The matter was returned to the court of appeals.

¶ 6. In the meantime, on June 29, 2000, almost two years after his initial commitment and more than nine months after the order from the Winnebago County Circuit Court, the department finally conducted a reexamination of Marberry's mental health under Wis. Stat. § 980.07. The examiner concluded that Marberry's mental disorder had not abated. Marberry received another reexamination, and, in a report dated January 8, 2002, was again found to be unfit for release.²

¶ 7. Subsequent to these findings, the court of appeals reversed the circuit court, holding that the six-month timeframe in Wis. Stat. § 980.07(1) for an initial reexamination is mandatory and that Marberry was entitled to release from his Chapter 980 commitment as a remedy. See State ex rel. Marberry v. Macht, 2002 WI App 133, 254 Wis. 2d 690, 648 N.W.2d 522. We granted the state's petition for review, and now reverse.

II. STANDARD OF REVIEW

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¶ 8. We apply a de novo standard of review to legal issues arising in the context of a petition for habeas corpus. State ex rel. Hager v. Marten, 226 Wis. 2d 687, 693-94, 594 N.W.2d 791 (1999). This habeas petition arises in the context of a Chapter 980 commitment and presents an issue of statutory interpretation. Statutory interpretation is a legal issue that we review de novo. In re Commitment of Curiel, 227 Wis. 2d 389, 404, 597 N.W.2d 697 (1999); In re Commitment of Sprosty, 227 Wis. 2d 316, 323, 595 N.W.2d 692 (1999); State v. R.R.E., 162 Wis. 2d 698, 706-07, 470 N.W.2d 283 (1991).

III. DISCUSSION

¶ 9. Chapter 980 governs the involuntary commitment of individuals who have been adjudicated as "sexually violent person[s]." See Wis. Stat. § 980.02(2). A "sexually violent person" is a person who has been convicted, adjudicated delinquent, or found not guilty by reason of mental disease or defect of a sexually violent offense and "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). If a circuit court or a jury determines that a person is a sexually violent person within the meaning of Chapter 980, "the court shall order the person to be committed to the custody of the department for control, care and treatment until such time as the person is no longer a sexually violent person."³ Wis. Stat. § 980.06.

¶ 10. Chapter 980 provides for periodic reexaminations of the committed person's status as a sexually violent person:

If a person has been committed under s. 980.06 and has not been discharged under s. 980.09, the department shall conduct an examination of his or her mental condition within 6 months after an initial commitment under s. 980.06 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. At the time of a reexamination under this section, the person who has been committed may retain or seek to have the court appoint an examiner as provided in s. 980.03(4).

Wis. Stat. § 980.07(1).⁴

¶ 11. In addition to the periodic reexaminations required by Wis. Stat. § 980.07(1), persons committed under Chapter 980 may petition for supervised release into the community:

Any person who is committed under s. 980.06 may petition the committing court to modify its order by authorizing supervised release if at least 18 months have elapsed since the initial commitment order was entered or at least 6 months have elapsed since the most recent release petition was denied or the most recent order for supervised release was revoked. The director of the facility at which the person is placed may file a petition [for supervised release] under this subsection on the person's behalf at any time.

Wis. Stat. 980.08(1).⁵

¶ 12. Within 20 days of the receipt of a petition for supervised release, the court "shall appoint one or more examiners having the specialized knowledge determined by the court to be appropriate, who shall examine the person and furnish a written report of the examination to the court within 30 days after appointment." Wis. Stat. § 980.08(3). The court must hear the petition within 30 days of the filing of the report, unless the petitioner waives the time limit. Wis. Stat. § 980.08(4). The statute provides that "[t]he court shall grant the petition [for supervised release] unless the state proves by clear and convincing evidence that the person is still a sexually violent person and that it is still substantially probable that the person will engage in acts of sexual violence if the person is not continued in institutional care." Id.

¶ 13. Chapter 980 also provides that a committed person may petition for discharge with the approval of the secretary of the department, Wis. Stat. § 980.09(1), or without the secretary's approval, Wis. Stat. § 980.09(2). There is also an additional discharge procedure that can be invoked by the committed person at any time, although this option carries some procedural obstacles if prior discharge petitions have been denied or declared frivolous. See Wis. Stat. § 980.10 (If there are prior denials or frivolous petitions, "the court shall deny any subsequent petition under this section 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."). Assyming no previous denials or frivolous petitions, a petition for discharge pursuant to Wis. Stat. § 980.10 triggers the procedures in Wis. Stat. § 980.09. At the hearing on any of these discharge petitions, "[t]he state has the burden of proving by clear and convincing evidence that the petitioner is still a sexually violent person." Wis. Stat. § 980.09(1)(b) and (2)(b).

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¶ 14. We have held that Chapter 980 "is aimed primarily at treating the sexually violent person, not punishing the individual." State v. Carpenter, 197 Wis. 2d 252, 267, 541 N.W.2d 105 (1995). The law is intended to "protect[] the public by providing concentrated treatment for convicted sex offenders who are at a high risk to reoffend based upon a mental disorder which predisposes them to commit acts of sexual violence." Id. at 273-74. Protection of the public and treatment of persons who are dangerous because of mental disorders that predispose them to sexual violence are "significant nonpunitive...