State v. Alger (In re Commitment of Alger)

• Citation: 2013 WI App 148,352 Wis.2d 145,841 N.W.2d 329
• Decision Date: 19 November 2013
• Docket Number: No. 2013AP225.,2013AP225.
• Parties: In re the COMMITMENT OF Michael ALGER. State of Wisconsin, Petitioner–Respondent, v. Michael Alger, Respondent–Appellant.
• Court: Court of Appeals of Wisconsin

352 Wis.2d 145

841 N.W.2d 329

2013 WI App 148

In re the COMMITMENT OF Michael ALGER.

State of Wisconsin, Petitioner–Respondent,

v.Michael Alger, Respondent–Appellant.^†

No. 2013AP225.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 15, 2013.

Opinion Filed Nov. 19, 2013.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Steven D. Phillips, assistant state public defender, Madison.

On behalf of the petitioner-respondent, the cause was submitted on the brief of J.B. Van Hollen, attorney general, and Nancy A. Noet, assistant attorney general.

Before HOOVER, P.J., MANGERSON and STARK, JJ.

STARK, J.

¶ 1 This case requires us to determine whether Wis. Stat. § 907.02(1),¹ which adopted the reliability standard for expert testimony set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), applies to Michael Alger's petitions for discharge from a Wis. Stat. ch. 980 commitment. We conclude that it does not. Section 907.02(1) applies to actions and special proceedings commenced on or after February 1, 2011. Although Alger's discharge petitions were filed after that date, neither petition commenced a new action. Instead, the discharge proceedings were a continuation of the underlying commitment proceedings, which were commenced in 2004 when the original petition for commitment was filed. Consequently, § 907.02(1) does not apply to Alger's discharge petitions. We also reject Alger's argument that § 907.02(1), if inapplicable to his discharge petitions, violates his right to equal protection. We therefore affirm the order denying the petitions.

BACKGROUND

¶ 2 On May 25, 2004, the State filed a Wis. Stat. ch. 980 commitment petition, seeking Alger's commitment as a sexually violent person.² Following a two-day trial, a jury found that Alger was a sexually violent person. The circuit court ordered him placed in the custody of the Department of Health and Family Services ³ and committed to a secure mental health facility. Alger filed petitions for discharge from his commitment in 2006 and 2007, which the circuit court denied.

¶ 3 In January 2011, the legislature amended Wisconsin's expert witness statute, Wis. Stat. § 907.02, to adopt the federal Daubert standard for the admissibility of expert testimony. See 2011 Wis. Act 2, § 34m. Before the amendment, testimony of a witness “qualified as an expert by knowledge, skill, experience, training, or education” was admissible if “scientific, technical, or other specialized knowledge” would “assist the trier of fact to understand the evidence or to determine a fact in issue[.]” Wis. Stat. § 907.02 (2009–10). Under the revised version of the statute, the circuit court must also conclude that the expert's testimony “is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.” Wis. Stat. § 907.02(1). Pursuant to 2011 Wis. Act 2, § 45(5), this new reliability standard first applies “to actions or special proceedings that are commenced on the effective date of this subsection”—that is, February 1, 2011.⁴

¶ 4 On April 21, 2011, Alger petitioned for discharge from his Wis. Stat. ch. 980 commitment. The State conceded that Alger's petition stated sufficient facts to warrant a full discharge hearing. Alger then filed a motion in limine seeking to preclude the State from introducing certain expert testimony related to Alger's risk of reoffending. Alger asserted the challenged testimony would not satisfy the new reliability standard set forth in Wis. Stat. § 907.02(1).

¶ 5 In response, the State argued the new standard did not apply to Alger's discharge petition because the petition did not constitute an action or special proceeding commenced on or after February 1, 2011. The State reasoned the discharge petition was merely a continuation of the underlying commitment proceedings, which had been commenced in 2004. The State also argued that, even if the new reliability standard from Wis. Stat. § 907.02(1) did apply to Alger's discharge petition, the challenged testimony met that standard.

¶ 6 Alger filed another discharge petition on November 23, 2011. The circuit court ordered the two petitions merged for trial. Alger also filed a supplemental motion in limine, contending that, if Wis. Stat. § 907.02(1) did not apply to his discharge petitions, it violated his right to equal protection. In response, the State asserted that the legislature had a rational basis for making § 907.02(1) inapplicable to actions commenced before February 1, 2011.

¶ 7 The circuit court denied Alger's original and supplemental motions in limine. The court reasoned that a petition for discharge from a Wis. Stat. ch. 980 commitment “does not create a new civil action,” and, as a result, Alger's discharge proceedings did not constitute an action commenced on or after February 1, 2011. The court also held that Wis. Stat. § 907.02(1) did not violate Alger's right to equal protection.

¶ 8 The case was subsequently tried to a jury. At trial, the State introduced the type of expert testimony Alger's motions in limine had sought to preclude. The jury found that Alger was still a sexually violent person, and the circuit court entered an order denying his discharge petitions. Alger now appeals from that order.

DISCUSSION

I. Applicability of Wis. Stat. § 907.02(1) to Alger's discharge petitions

¶ 9 Alger first argues the circuit court erred by determining that Wis. Stat. § 907.02(1) does not apply to his discharge petitions. Interpretation of a statute and its application to undisputed facts are questions of law that we review independently. McNeil v. Hansen, 2007 WI 56, ¶ 7, 300 Wis.2d 358, 731 N.W.2d 273.

¶ 10 “[T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect.” State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 44, 271 Wis.2d 633, 681 N.W.2d 110. “[S]tatutory interpretation begins with the language of the statute.” Id., ¶ 45 (citation omitted). We give statutory language “its common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning.” Id. “[S]tatutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results.” Id., ¶ 46. If the statute's meaning is plain, we ordinarily stop the inquiry without resorting to extrinsic sources such as legislative history. Id. ¶ 11 2011 Wis. Act 2, § 45(5), provides that Wis. Stat. § 907.02(1) “first appl[ies] to actions or special proceedings that are commenced” on February 1, 2011. The State argues convincingly that a discharge petition under Wis. Stat. ch. 980 does not constitute a “special proceeding,” and Alger does not dispute this assertion. See Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis.2d 97, 109, 279 N.W.2d 493 (Ct.App.1979) (arguments not refuted are deemed conceded). The operative question is therefore whether Alger's discharge petitions, which were indisputably filed after February 1, 2011, “commenced” an “action.” We conclude that they did not.

¶ 12 The dictionary definition of “action” applicable in this context is “a legal process; a lawsuit[.]” New Oxford American Dictionary 15 (2001); see also State v. Mattes, 175 Wis.2d 572, 578, 499 N.W.2d 711 (Ct.App.1993) (“A common and approved meaning for a word ... may be ascertained by reference to a recognized dictionary.”). The applicable definition of “commence” is “begin; start[.]” New Oxford American Dictionary 343 (2001). Accordingly, Wis. Stat. § 907.02(1) first applies to legal processes or lawsuits begun or started on February 1, 2011. Alger's discharge petitions do not meet this definition. The structure and language of Wis. Stat. ch. 980 demonstrate that discharge petitions are part of the committing court's continuing administrative authority over the existing lawsuit that began when the original commitment petition was filed. Filing a discharge petition is merely another step in that existing lawsuit—it does not begin a new lawsuit or legal process.

¶ 13 Multiple sections of Wis. Stat. ch. 980 illustrate that the committing court maintains continuing administrative authority over a ch. 980 commitment after the commitment order is entered. For instance, Wis. Stat. § 980.07(1) requires the Department of Health Services to appoint an examiner to reexamine the committed person's mental condition “within 12 months after the date of the initial commitment ... and again thereafter at least once each 12 months[.]” The department must submit an annual report in conjunction with each annual reexamination “to the court that committed the person [.]” Wis. Stat. § 980.07(6). The court is then responsible for providing a copy of the report to the committed person's attorney. Id. Further, notwithstanding the annual reexamination requirement, “the court that committed a person” has authority to order a reexamination “at any time during the period in which the person is subject to the commitment order.” Wis. Stat. § 980.07(3). In addition, although the annual reexamination requirement does not apply while the committed person is incarcerated for a new criminal charge or conviction, the court “may order a reexamination of the person” during that time “if the court finds reexamination to be necessary.” Wis. Stat. § 980.07(6m).

¶ 14 The statutes pertaining to supervised release from a Wis. Stat. ch. 980 commitment also demonstrate that postcommitment proceedings fall under the continuing authority of the committing court. A petition for supervised release must be filed with “the committing court[.]” Wis. Stat. § 980.08(...