State v. Bush

• Decision Date: 06 July 2005
• Docket Number: No. 2003AP2306.,2003AP2306.
• Citation: 283 Wis.2d 90,2005 WI 103,699 N.W.2d 80
• Parties: IN RE the COMMITMENT OF Thomas H. BUSH: STATE of Wisconsin, Petitioner-Respondent, v. Thomas H. BUSH, Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

283 Wis.2d 90

2005 WI 103

699 N.W.2d 80

IN RE the COMMITMENT OF Thomas H. BUSH:

STATE of Wisconsin, Petitioner-Respondent, v. Thomas H. BUSH, Respondent-Appellant-Petitioner.

No. 2003AP2306.

Supreme Court of Wisconsin.

Oral argument April 29, 2005.

Decided July 6, 2005.

For the respondent-appellant-petitioner there were briefs by Robert G. LeBell and Kostich, LeBell, Dobroski & Morgan LLP, Milwaukee, and oral argument by Robert G. LeBell.

For the petitioner-respondent the cause was argued by Sally L. Wellman, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶ 1. LOUIS B. BUTLER, JR., J.

Thomas H. Bush seeks review of a published court of appeals decision that affirmed a circuit court's order denying two pretrial motions challenging the constitutionality of Wis. Stat. ch. 980 (chapter 980) (2001-02).¹ State v. Bush, 2004 WI App 193, 276 Wis. 2d 806, 688 N.W.2d 752 (Bush III). The court of appeals concluded that Bush was procedurally barred from raising a constitutional challenge against chapter 980. Id., ¶ 19.

¶ 2. Bush asks this court to reverse the court of appeals' decision and hold that he is not procedurally barred from bringing this constitutional claim. Bush further asks this court to conclude that chapter 980 is facially unconstitutional on substantive due process grounds in that it does not require proof of a "recent overt act" when there has been a break in the offender's incarceration and the offender has been reincarcerated for nonsexual behavior.

¶ 3. Although the State argues that Bush has waived the issue regarding his constitutional challenge to chapter 980, we reach the issue's merits. We conclude that due process does not require a showing of a recent overt act when there is a break in the offender's incarceration and the offender is subsequently reincarcerated for nonsexual behavior in order to prove current dangerousness. We decline to adopt a bright-line rule that requires current dangerousness to be proven by a particular type of evidence. Accordingly, we affirm the decision of the court of appeals.

I

¶ 4. The following facts are undisputed and were stipulated to by the parties at trial:

Mr. Bush was convicted in 1988 of attempted second degree sexual assault, which, the state maintains, is the predicate act authorizing the filing of the original petition for a Chapter 980 commitment. Subsequent to his 1988 conviction, Mr. Bush was paroled and was permitted to leave the State of Wisconsin in 1992. He was arrested in 1992 for operating under the influence, but was acquitted of that charge. As a direct result of his arrest for the operating under the influence charge, he was returned to the State of Wisconsin to face revocation proceedings. Ultimately, he was revoked as a result of drinking related events. At no time was he charged with any new sexually violent offense after the 1988 assault. His revocation was as a consequence to non-sexually assaultive behavior. These violations did not constitute recent overt acts of sexual violence. No evidence was provided in the petition to reflect that the respondent committed any "recent overt act," nor was any evidence, consistent with a "recent overt act," introduced at the time of the probable cause hearing.

¶ 5. The following additional facts are also helpful for our analysis.² When Bush was arrested for attempted second-degree sexual assault in 1988, he had been placed on parole just 26 days prior for a conviction of attempted first-degree sexual assault. Prior to his 1988 conviction, Bush was convicted of numerous sex-related offenses, which include: two counts of sexual assault, three counts of sexual perversion, three counts of disorderly conduct (including a "Peeping Tom" offense), two counts of second-degree criminal sexual conduct, and two counts of attempted sexual assault. By 1988, Bush had been incarcerated or under probation and parole community supervision almost continuously in Illinois, Michigan, Minnesota, and Wisconsin since his first conviction in 1966. Aside from these convictions, Bush admitted committing other deviant sexual behavior than that for which he had been arrested.

¶ 6. In 1992, while serving the sentence for his 1988 conviction, Bush completed the Oshkosh Sex Offender Treatment Program. He was placed on parole to attend the Behavioral Medicine Institute of Atlanta, Georgia. He successfully completed the inpatient component of the Georgia program, but failed to comply with the requirements of the outpatient program, in violation of the conditions of his parole, by purchasing a sports car without knowledge or permission of the program, drinking alcohol, and getting in a car accident.³ His parole was revoked and he was incarcerated again in Wisconsin.

¶ 7. In addition to Bush's prior convictions, since at least 1978, Bush's psychiatric evaluations have expressed the opinion that Bush is among those sexual offenders who are the least likely to change their behavior. More recent evaluations conducted in 1996 and 1997 recommended that Bush be closely supervised and identified Bush as posing a high risk of recidivism, despite his extensive participation in sex-offender treatment. Furthermore, while incarcerated, Bush continued to demonstrate behavior that is predictive of the likelihood that he will reoffend. For example, Bush was reprimanded in 1995 for attempting to purchase pornography and for corresponding by mail with a person who was engaged in "grooming a boy for sexual purposes."

¶ 8. In 1997, while Bush remained incarcerated for his 1988 offense, the State filed a chapter 980 petition,⁴ alleging that Bush was still sexually violent. See Bush III, 276 Wis. 2d 806, ¶ 3; see also State v. Bush, No. 1997AP3454, unpublished slip op. (Wis. Ct. App. Dec. 22, 1998) (Bush I). Following the trial on that petition, the jury found that Bush was sexually violent. See Bush III, 276 Wis. 2d 806, ¶ 3. Bush appealed and the court of appeals reversed his commitment because of a prejudicial jury instruction. Id.

¶ 9. In 2000, Bush was retried and a second jury came to the same conclusion. Id., ¶ 4. Bush again appealed, arguing that: (1) the State's expert witnesses should have been disqualified; (2) the State failed to present sufficient evidence to meet chapter 980's requirements; and (3) the State failed to file the petition within the requisite 90 days. State v. Bush, No. 2001AP588, unpublished slip op. at ¶ 1 (Wis. Ct. App. Nov. 26, 2002) (Bush II). The court of appeals affirmed in all respects except whether the State had filed the chapter 980 petition in a timely manner. See Bush III, 276 Wis. 2d 806, ¶ 4. On remand, the trial court determined that the State had complied with the filing requirements of chapter 980. Id., ¶ 4.

¶ 10. In August 2002, Bush filed a petition for release under Wis. Stat. § 980.09(2).⁵Bush III, 276 Wis. 2d 806, ¶ 5. In the pretrial motions, Bush argued, in pertinent part, that he had been denied due process because chapter 980 failed to require proof of a recent overt act. Id. The circuit court for Eau Claire County, Honorable William M. Gabler, denied Bush's pretrial motions, and a jury determined that Bush was still sexually violent. Id., ¶ 6. His petition for discharge was therefore denied. Id.

¶ 11. Bush again appealed, renewing his argument he made for the first time in the circuit court that chapter 980 is unconstitutional because it does not require a recent overt act. The State argued that Bush should not be allowed to attack the underlying commitment on constitutional grounds because he should have made this challenge in his two prior appeals. Id., ¶ 7. The court of appeals agreed with the State and concluded that Bush was procedurally barred from raising the issue of the constitutionality of chapter 980. Id., ¶¶ 8, 19.

¶ 12. Bush seeks review, and we affirm.

II

¶ 13. Bush challenges the constitutionality of chapter 980 on due process grounds, alleging that the statute fails to require a finding of a recent overt act. The constitutionality of a statute is a question of law which we review de novo. State v. Randall, 192 Wis. 2d 800, 824, 532 N.W.2d 94 (1995). This court has already determined that the State has dual interests under the statute to protect the public from the dangerously mentally disordered and to provide care and treatment to those with mental disorders that predispose them to sexual violence. State v. Post, 197 Wis. 2d 279, 302, 541 N.W.2d 115 (1995). The Supreme Court has recognized both of these interests as legitimate, the first under a state's police powers and the latter under its parens patriae powers. Id. (citing Addington v. Texas, 441 U.S. 418, 426 (1979)). Thus, the issue is whether chapter 980 is narrowly tailored under the circumstances in this case to serve these compelling state interests. Id.

III

¶ 14. Before addressing the merits of Bush's argument, we first address a procedural issue. Relying on State v. Trochinski, 2002 WI 56, 253 Wis. 2d 38, 644 N.W.2d 891, State v. Molitor, 210 Wis. 2d 415, 565 N.W.2d 248 (Ct. App. 1997), and State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528, 280 N.W.2d 316 (Ct. App. 1979), Bush asserts that facial challenges to the constitutionality of a statute present issues of subject matter jurisdiction which cannot be waived, notwithstanding his failure to raise that challenge in his earlier appeals.

¶ 15. The State, on the other hand, argues that the law in this area lacks clarity and is inconsistent. While the State recognizes the validity of those cases relied upon by Bush, it nevertheless suggests that those cases have not always been followed.⁶ Moreover, the State argues that another line of cases, culminating in this court's decision last term in Village of Trempealeau v. Mikrut, 2004 WI 79, ¶¶ 2, 30, 273 Wis. 2d 76, 681 N.W.2d 190, suggest that pursuant to Article VII, Section 8 of the Wisconsin Constitution,⁷ "no circuit court is without subject...