State ex rel. Terry v. Percy

• Decision Date: 08 April 1980
• Docket Number: No. 75-503,75-503
• Citation: 95 Wis.2d 476,290 N.W.2d 713
• Parties: STATE ex rel. Barbara Lynn TERRY, Petitioner-Appellant, v. Donald E. PERCY, Secretary, Department of Health and Social Services, Respondent.
• Court: Wisconsin Supreme Court

Page 713

290 N.W.2d 713

95 Wis.2d 476

STATE ex rel. Barbara Lynn TERRY, Petitioner-Appellant, v. Donald E. PERCY, Secretary, Department of Health and Social Services, Respondent.

No. 75-503.

Supreme Court of Wisconsin.

Argued Feb. 7, 1980.

Decided April 8, 1980.

Charles Bennett Vetzner, Asst. State Public Defender, for petitioner-appellant.

Robert D. Repasky, Asst. Atty. Gen. (argued) and Bronson C. La Follette, Atty. Gen., on brief, for respondent.

William H. Lynch, Milwaukee, for amicus curiae The Wisconsin Civil Liberties Union Foundation, Inc.

HANSEN, Justice.

In State ex rel. Terry v. Schubert, 74 Wis.2d 487, 247 N.W.2d 109 (1976) (Terry I ), this court reviewed an order and judgment of the circuit court for Dodge county which dismissed petitioner Terry's writ of habeas corpus by which he sought a discharge from a commitment under ch. 975, Stats., the Wisconsin Sex Crimes Act. We held that the following minimal due process rights are applicable to the periodic examination procedure provided by sec. 975.09:

". . . (1) written notice of the hearing; (2) disclosure of the evidentiary material which will be considered by the hearing body; (3) opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine witnesses, in the absence of good cause for not allowing confrontation; (5) a neutral and detached hearing body; and (6) a written statement by the factfinders as to the evidence relied on and reasons for refusing discharge. See Morrissey v. Brewer, supra (408 U.S. 471) at 489 (92 S.Ct. 2593, 33 L.Ed.2d 484)." Terry I, supra, at 502a-502b, 247 N.W.2d at 114.

The judgment of this court, dated November 30, 1976, reads as follows:

"Affirmed in part; reversed in part; remanded for entry of order consistent with the declaration of rights as per decision herein and ordering respondent to provide petitioner within a reasonable time a hearing under sec. 975.09, Stats., which meets the procedural requirements contained herein."

The Secretary of the Department of Health & Social Services thereafter petitioned the United States Supreme Court for a writ of certiorari to review this court's judgment. By order dated November 3, 1977, the Supreme Court granted the petition for a writ of certiorari, and ordered that the judgment of the Supreme Court of Wisconsin be vacated and that the "case (be) remanded to consider whether judgment is based upon federal or state constitutional grounds, or both. See California v. Krivda, 409 U.S. 33 (93 S.Ct. 32, 34 L.Ed.2d 45) (1972)." Percy v. Terry, 434 U.S. 808, 98 S.Ct. 40, 54 L.Ed.2d 66 (1977).

Upon receiving the remand order from the United States Supreme Court, this court issued an order vacating its judgment entered on November 30, 1976, directing the circuit court for Dodge county to return the record on appeal, and establishing a briefing schedule. On June 30, 1978, in State ex rel. Terry v. Percy, 84 Wis.2d 693, 267 N.W.2d 380 (1978) (Terry II ), this court reinstated its original decision and held that the decision was based upon federal constitutional grounds. We stated:

"Pursuant to the mandate of the United States Supreme Court hereinabove quoted, we have reexamined our opinion in the subject case, have read the briefs filed by the parties and amicus curiae, and have reviewed the record. In reaching our initial decision we acted solely by compulsion of the fourteenth amendment of the federal constitution. Inasmuch as we deem it unnecessary to alter or amend our prior decision, we reiterate and reinstate that decision in its entirety as filed and modified." Terry II, supra, at 697, 267 N.W.2d at 382.

The Secretary of the Department of Health & Social Services again petitioned the United States Supreme Court for a writ of certiorari to review this court's decision. By order dated July 24, 1979, the Supreme Court granted the petition, and ordered that the judgment of this court be vacated and the "case (be) remanded to the Supreme Court of Wisconsin for further consideration in light of Parham v. J.L. and J.R., 442 U.S. 584 (99 S.Ct. 2493, 61 L.Ed.2d 101) (1979) and Greenholtz v. Inmates of Nebraska Penal Complex, 442 U.S. 1 (99 S.Ct. 2100, 60 L.Ed.2d 668) (1979)." Percy v. Terry, 902 U.S. 443, 99 S.Ct. 3093, 61 L.Ed.2d 870 (1979).

Upon receipt of this second remand order of the United States Supreme Court, we issued an order setting the reconsideration of this case for oral argument and establishing a briefing schedule.

The facts out of which this case arises are set forth in detail in Terry I, supra. Terry was convicted of two counts of rape and one count of theft. Pursuant to the recommendation of the Department of Health & Social Services that Terry was in need of specialized treatment as a sex deviate, the trial court ordered him committed to the department under sec. 975.06, Stats. Terry was also sentenced to an indeterminate term of not more than five years on the theft conviction, to be served concurrently with the commitment.

After serving approximately three years at the Wisconsin State Prison, Terry was transferred to Central State Hospital, pursuant to sec. 975.08(2), Stats. Subsequent to the mandatory release date for the sentence on his theft conviction, Terry commenced a habeas corpus proceeding, alleging that he was not suffering from any mental aberrations due to sexual psychopathy and that continuation of his confinement was a violation of his rights.

The issue on this appeal is what process is constitutionally due a person committed under ch. 975, Stats., ¹ in a reexamination of that commitment between the time of initial commitment and the expiration of the maximum term prescribed by law for the crime of which he was convicted.

Sec. 975.11, Stats., provides that the department shall discharge any person committed to it under the Sex Crimes Act "as soon as in its opinion there is reasonable probability that he can be given full liberty without danger to the public . . . ." Such a determination may be made through periodic departmental examinations as provided in sec. 975.09:

"975.09 Periodic examination. The department shall make periodic examinations of all persons within its control under s. 975.06 for the purpose of determining whether existing orders and dispositions in individual cases should be modified or continued in force. These examinations may be made as frequently as the department considers desirable and shall be made with respect to every person at intervals not exceeding one year. The department shall keep written records of all examinations and of conclusions predicated thereon, and of all orders concerning the disposition or treatment of every person under its control. Failure of the department to examine a person committed to it or to make periodic examination shall not entitle him to a discharge from the control of the department, but shall entitle him to petition the committing court for an order of discharge, and the court shall discharge him unless it appears in accordance with s. 975.13 that there is necessity for further control."

In Terry I, supra, 74 Wis.2d at 496, 247 N.W.2d at 113, this court noted that the department "has shown no formalized procedures which are followed in the periodic examination provided by sec. 975.09." Subsequent to the second remand order of the United States Supreme Court, the department adopted, by administrative order dated July 1, 1979, a detailed procedure to be followed in the periodic examination required by sec. 975.09. ² We must decide whether the procedural requirements for a reexamination of a sex crimes commitment set forth in Terry I should be modified in light of Parham v. J. L. and J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979), and Greenholtz v. Inmates of Nebraska Penal Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979).

In Terry I, supra, 74 Wis.2d at 497, 247 N.W.2d at 114, this court concluded that a person committed under ch. 975, Stats., has a valuable "interest in release from commitment, once the basis for that commitment no longer exists, . . . the determination for which calls for some orderly procedure." That conclusion was correct. The United States Supreme Court has held that a state statute may create a conditional liberty interest which is entitled to constitutional protection. Greenholtz, supra, at 11, 99 S.Ct. at 2106, 60 L.Ed.2d at 678, 679. We believe that such an interest is provided in the mandate of sec. 975.11 that a person committed under ch. 975 "shall" be discharged "as soon as in its (the department's) opinion there is reasonable probability that he can be given full liberty without danger to the public."

In making a determination, in Terry I, as to what procedural protections are due a person committed under ch. 975, Stats., we relied on Morrissey v. Brewer, 408 U.S. 471, 98 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In light of Greenholtz we now conclude that the process due is less stringent than the procedures we adopted in Terry I.

As in Greenholtz, the discharge from commitment with which we are concerned involves a denial to the committee of a conditional liberty which he desires, not a deprivation of liberty which he already has. Also, the decision to discharge a person from commitment is a discretionary decision which depends on numerous elements, some of which are factual, but many of which are subjective appraisals by the department. The decision to discharge may be made for several reasons and may involve nothing more than an informed prediction as to what would best serve to protect the public or promote the welfare of the sex offender. Thus, in accordance with Greenholtz, it is not necessary that there be a formal adversary hearing in order to determine whether the commitment should be continued.

We believe that minimum due process requirements for a reexamination of a sex crimes commitment between the time of initial commitment and the...