State ex rel. Terry v. Schubert
| Decision Date | 01 March 1977 |
| Docket Number | No. 75--503,75--503 |
| Citation | 247 N.W.2d 109,74 Wis.2d 487 |
| Parties | STATE of Wisconsin ex rel. Barbara Lynn TERRY, Petitioner-Appellant, v. Edward F. SCHUBERT, Respondent. |
| Court | Wisconsin Supreme Court |
Charles Bennett Vetzner, Madison (argued), post-conviction defense project, on brief for petitioner-appellant.
Bronson C. La Follette, Atty. Gen., and Gary L. Carlson, Asst. Atty. Gen., on brief; James H. Petersen, Asst. Atty. Gen., argued, for respondent.
Three issues are presented on this appeal:
1. Is habeas corpus the proper remedy to challenge the continuing nature of a commitment under ch. 975, Stats.?
2. Do the present procedures for determination of whether a person committed under ch. 975, Stats., should be discharged from that commitment provide sufficient due process protections for persons so committed?
3. Are persons committed under ch. 975, Stats., denied equal protection in that judicial review is provided for reexamination of other types of commitments?
In this case the trial court held that habeas corpus is not available to one who has been committed under ch. 975, Stats., the Wisconsin Sex Crimes Act. The rationale for so holding is that, although sec. 292.01(2), Stats., provides for judicial determination of the 'question of mental illness or need for treatment' upon a petition for a writ of habeas corpus by a person who is confined in an institution as mentally ill, that section only applies to persons committed in civil proceedings, and where one is committed in a criminal proceeding only the committing court may conduct judicial review. In support of this position, it is noted that under sec. 975.11, Stats., no committee convicted of a felony may be discharged prior to two years after the date of his commitment without written approval of the committing court.
Assuming, arguendo, that sec. 292.01(2) is limited to persons committed in civil proceedings, the right to habeas corpus guaranteed by both the United States Constitution and the Wisconsin Constitution, cannot be denied a petitioner who inquires into the legal authority for his detention. The fact that the pro se petition in this case specifically referred to sec. 292.01(2) should not serve to limit petitioner's remedy. It should be noted that sec. 292.01(1), Stats., very generally provides the right to prosecute a writ of habeas corpus to 'every person restrained of his liberty.'
In this case, also, no approval of the committing court is necessary as petitioner has been committed for five years. Furthermore, the rationale that only the committing court may make judicial review of commitments in criminal proceedings cannot carry great weight where the petitioner's basic contention is that he is denied review by any court. He claims that he is unconstitutionally deprived of due process and equal protection in the opportunity to obtain release from confinement. This is, in effect, a challenge to the legality of that confinement.
This court has consistently held that claims of constitutional error may be reviewed by means of a writ of habeas corpus. Babbitt v. State, 23 Wis.2d 446, 452, 127 N.W.2d 405, 409 (1964); Servonitz v. State, 133 Wis. 231, 113 N.W. 277 (1907). The scope and purpose of the writ of habeas corpus have been expanded to review violations of the constitutional rights of persons confined by the state in correctional institutions. State ex rel. Terry v. Traeger, 60 Wis.2d 490, 498--99, 211 N.W.2d 4, 9 (1973); State v. Kanieski, 30 Wis.2d 573, 576--77, 141 N.W.2d 196, 198 (1966). Here the petitioner does not question the validity of the commitments as originally imposed; therefore, a post-conviction motion pursuant to sec. 974.06, Wis.Stats., is not available to petitioner.
Furthermore, in other actions commenced by petitions for writs of habeas corpus of persons committed under laws of this state, this court has made declarations of constitutional rights regarding procedures for original commitment and reexamination, even though the court's decision did not result in the immediate discharge from custody. State ex rel. Kovach v. Schubert, 64 Wis.2d 612, 219 N.W.2d 341 (1974) (); State ex rel. Farrell v. Stovall, 59 Wis.2d 148, 207 N.W.2d 809 (1973) (commitment under Sex Crimes Act); State ex rel. Matalik v. Schubert, 57 Wis.2d 315, 204 N.W.2d 13 (1973) (). Thus, in this case, where the committee claims he is denied constitutional rights for review of his commitment, his claim is essentially that he is illegally detained by the state, and a court may properly declare rights upon a petition for a writ of habeas corpus, even though a determination favorable to the petitioner may not result in the immediate discharge from custody.
From the above analysis we conclude that the trial court erred in holding that it was without jurisdiction to consider petitioner's claims. This conclusion would indicate that the case should be remanded to the trial court so that it may consider these claims. However, the written decision of the trial court shows that determinations were made as to the validity of petitioner's contentions with respect to due process and equal protection and thus, this court may properly consider these contentions.
Secs. 975.01 and 975.02, Stats., mandate a presentence social, physical and mental examination upon conviction of specified sex crimes and permit such examinations, in the court's discretion, upon conviction of any sex offense not specified in 975.01. If after this examination, the department recommends specialized treatment for the defendant's mental or physical aberrations, the court shall order a hearing on the issue of the need for specialized treatment. Sec. 975.06(1), Stats. Upon a determination that the defendant is in need of specialized treatment, the court shall commit him to the department. Sec. 975.06(2), Stats. At the expiration of the maximum term the department must discharge the person committed, unless control is continued pursuant to recommitment procedures under sec. 975.13, Stats.
The Sex Crimes Law has given rise to a number of challenges regarding the guarantee of the rights of due process and equal protection of those persons subject to its provisions. In Huebner v. State, 33 Wis.2d 505, 147 N.W.2d 646 (1967), this court held that a full judicial hearing was required at the initial commitment proceeding on the presentence report under the Sex Crimes Act. In accordance with the Huebner decision, sec. 975.06(1), Stats., now provides:
In State ex rel. Farrell v. Stovall, supra, the holding of Huebner was expanded to require the right to a six-person jury trial, on demand, at both the initial commitment hearing and the recommitment hearing after the maximum term has expired. In this case, petitioner asks the court to consider the constitutionality of the procedures provided to review commitment between the time of initial commitment and the expiration of the maximum term of incarceration.
The statutes provide that the department shall discharge any person committed to it under the Sex Crimes Act 'as soon as in its opinion there is a reasonable probability that he can be given full liberty without danger to the public . . ..' Sec. 975.11, Stats. Two procedures for this sort of determination are provided. One of these procedures in through departmental examination under sec. 975.09, Stats., which provides:
The other procedure for review is through the special review board provided for in sec. 975.10, Stats.:
'Any person committed as provided in this chapter may be paroled if it appears to the satisfaction of the department after recommendation by a special review board, appointed by the department, a majority of whose members shall not be connected with the department, that he is capable of making an acceptable adjustment in society.'
The record fails to disclose any information regarding the procedure which is followed for periodic examination by the department under sec. 975.09. The procedure before the special review board is only a little more discernible. The respondent states that procedure before this board has recently been modified to provide notice to the individual of the hearing, of the standards and criteria which will be considered, and of his right to present relevant materials for the board's consideration. He is to receive a packet containing the file documents which the board will consider and a...
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