State v. Hager (In re Commitment of Hager), No. 2015AP330 & 2015AP1311

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtMICHAEL J. GABLEMAN, J.
Citation911 N.W.2d 17,381 Wis.2d 74,2018 WI 40
Decision Date19 April 2018
Docket NumberNo. 2015AP330 & 2015AP1311
Parties IN RE the COMMITMENT OF David HAGER, Jr.: State of Wisconsin, Petitioner-Respondent-Petitioner, v. David Hager, Jr., Respondent-Appellant. In re the commitment of Howard Carter: State of Wisconsin, Petitioner-Respondent, v. Howard Carter, Respondent-Appellant-Petitioner.

381 Wis.2d 74
911 N.W.2d 17
2018 WI 40

IN RE the COMMITMENT OF David HAGER, Jr.:

State of Wisconsin, Petitioner-Respondent-Petitioner,
v.
David Hager, Jr., Respondent-Appellant.


In re the commitment of Howard Carter:

State of Wisconsin, Petitioner-Respondent,
v.
Howard Carter, Respondent-Appellant-Petitioner.

No. 2015AP330 & 2015AP1311

Supreme Court of Wisconsin.

Oral Argument: November 1, 2017
Opinion Filed: April 19, 2018


For the petitioner-respondent-petitioner (2015AP330), there were briefs filed by Thomas J. Balistreri, assistant attorney general, and Brad D. Schimel, attorney general. There was an oral argument by Donald V. Latorraca, assistant attorney general.

For the respondent-appellant (2015AP330), there was a brief filed by and an oral argument by Andrew R. Hinkel, assistant state public defender.

For the respondent-appellant-petitioner (2015AP1311), there were briefs filed by Len Kachinsky and Kachinsky Law Offices, Neenah. There was an oral argument by Len Kachinsky.

For the petitioner-respondent (2015AP1311), there was a brief filed by Thomas J. Balistreri, assistant attorney general, and Brad D. Schimel, attorney general. There was an oral argument by Donald V. Latorraca, assistant attorney general.

MICHAEL J. GABLEMAN, J.

381 Wis.2d 84

¶ 1 This is a review of two published decisions of the court of appeals, State v. Hager, 2017 WI App 8, 373 Wis. 2d 692, 892 N.W.2d 740, and State v. Carter, 2017 WI App 9, 373 Wis. 2d 722, 892 N.W.2d 754.1 Both cases involve the discharge procedure for a person civilly committed as a sexually violent person pursuant to

911 N.W.2d 23

Wis. Stat. ch. 980 (2015–16) ("Chapter 980").2 David Hager, Jr., and Howard Carter both filed petitions for discharge from commitment as sexually violent persons pursuant to Wis. Stat. § 980.09 with the Chippewa County Circuit Court3 and Brown County Circuit Court,4 respectively, and both petitions were denied. Hager and Carter appealed.

¶ 2 In Hager, the court of appeals reversed, concluding that the circuit court erred in two ways: (1) by considering evidence unfavorable to Hager's discharge petition; and (2) by weighing the evidence in favor of the discharge petition against the evidence opposed. Hager, 373 Wis. 2d 692, ¶ 5, 892 N.W.2d 740. Based on its review of the record, the court of appeals concluded that Hager had satisfied his burden of production5 and reversed and remanded the matter to

381 Wis.2d 85

the circuit court with instructions to conduct a discharge trial pursuant to Wis. Stat. § 980.09(3) - (4). Id. In Carter, the court of appeals affirmed the circuit court, concluding that Carter had not satisfied the standard it had established in Hager. Carter, 373 Wis. 2d 722, ¶ 3, 892 N.W.2d 754.

¶ 3 Both cases involve the proper interpretation of Wis. Stat. § 980.09(2), as amended by 2013 Wis. Act 84,6 which establishes the procedures for discharge from commitment. Carter raises two additional issues before this court: (1) whether § 980.09(2) violates the right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 1 of the Wisconsin Constitution ; and (2) whether Act 84 applies retroactively to Carter. We review this last issue, whether Act 84 applies retroactively to Carter, through the lens of ineffective assistance of counsel because Carter's counsel did not contest the application of the amended standard to Carter. See State v. Erickson, 227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999).

¶ 4 We hold as to both Hager and Carter that the court of appeals erred in concluding that Wis. Stat. § 980.09(2) limits circuit courts to considering only the evidence favorable to petitions for discharge. We hold that circuit courts are to carefully examine, but not weigh, those portions of the record they deem helpful

381 Wis.2d 86

to their consideration of the petition, which may include facts both favorable as well as unfavorable to the petitioner.

¶ 5 We further hold that Wis. Stat. § 980.09(2) does not violate the constitutional right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 1 of the Wisconsin Constitution, and furthermore, Carter's counsel was not ineffective for failing to challenge retroactive application of Act 84 to Carter.

¶ 6 As to Hager, we reverse the decision of the court of appeals and remand the matter to the circuit court for further proceedings consistent with this opinion; as to

911 N.W.2d 24

Carter, we affirm the decision of the court of appeals, albeit on different grounds.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. State v. Hager

¶ 7 Hager was involuntarily committed in 2008 as a sexually violent person pursuant to Chapter 9807

381 Wis.2d 87

as he neared the completion of prison sentences he was serving as a result of having been convicted of two sexual offenses.

¶ 8 He filed the discharge petition we consider herein on February 27, 2014. Hager attached to the petition the report of Hollida Wakefield, M.A. In her report, Wakefield concluded that Hager did not satisfy the third criterion for commitment because he was not likely to engage in acts of sexual violence. She based this conclusion on the results of two actuarial instruments, the Static-99R and MATS-1.8

381 Wis.2d 88

¶ 9 The circuit court denied Hager's petition because Wakefield's report did not indicate any change in Hager; rather, the circuit court found "Mr. Hager is still the same person he was." The circuit court was not persuaded that the development of the Static-99R9 constituted a change in professional knowledge sufficient to warrant a discharge trial under the standard established in State v. Combs, 2006 WI App 137, ¶ 32, 295 Wis. 2d 457, 720 N.W.2d 684.10 The court did not find "any change

911 N.W.2d 25

in the expert's knowledge of Mr. Hager or his offense."

¶ 10 Hager filed a motion for reconsideration, which was denied. In its order denying Hager's motion for reconsideration, the circuit court amended its reasoning slightly, indicating that it had "tr[ied] to weigh [the] reports," and concluded that Hager did not satisfy his burden of production. This appeal followed.

¶ 11 The court of appeals determined that Act 84 did not abrogate our decision in State v. Arends, 2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 513. Accordingly, the court of appeals applied our holding in Arends—that

381 Wis.2d 89

circuit courts are not to weigh11 the evidence in favor of the petition against the evidence opposed—to Hager. Hager, 373 Wis. 2d 692, ¶ 4, 892 N.W.2d 740. Rather, Act 84 both increased the burden of production necessary for committed individuals to receive a discharge trial and codified certain cases, namely Combs and its progeny. Id., ¶¶ 32, 40–41. The court further concluded that Act 84 did not change our holding in Arends that circuit courts are limited to considering only the items in the record favorable to the petitioner. Id., ¶ 37. Under the court of appeals' reading of Wis. Stat. § 980.09(2), Hager had alleged sufficient new facts to warrant a discharge trial because Wakefield's report satisfied the criteria set forth in Combs by including new scientific research; namely, the Static-99R and MATS-1. The court of appeals reversed and remanded the matter to the circuit court with instructions to conduct a discharge trial. Id., ¶¶ 45–46.

B. State v. Carter

¶ 12 Carter was involuntarily committed as a sexually violent person under Chapter 980 in 2009 as he neared the completion of prison sentences he was serving as a result of convictions of multiple sexual offenses.

¶ 13 He filed the discharge petition we consider herein on December 13, 2013, which was the day before Act 84's publication. Carter's attorney never challenged the application of the new standard to Carter.

¶ 14 Carter attached to his petition the report of Dr. Diane Lytton, Ph.D. Dr. Lytton concluded that Carter did not satisfy the third criterion for commitment.

381 Wis.2d 90

She based this conclusion on three opinions. First, Dr. Lytton stated that in her professional opinion, one of Carter's diagnosed mental disorders, paraphilia not otherwise specified, nonconsent,12 is not properly applied to a person such as Carter, who has forcibly raped another. Second, Dr. Lytton opined that Carter's other diagnosed mental disorder, antisocial personality disorder,13 does not make it likely he will engage

911 N.W.2d 26

in acts of sexual violence. Third, Dr. Lytton opined that, based upon her application of the Static-99R and MATS-1 assessments, Carter is not likely to engage in acts of sexual violence.

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7 practice notes
  • St. Augustine Sch. v. Taylor, No. 2021AP265-CQ
    • United States
    • United States State Supreme Court of Wisconsin
    • July 2, 2021
    ..."where we can reasonably adopt a saving construction of a statute to avoid a constitutional conflict, we do so." State v. Hager, 2018 WI 40, ¶31, 381 Wis. 2d 74, 911 N.W.2d 17. Contrary to the Vanko court's application of the canon, simply "avoid[ing] . . . a constitutional conflict does no......
  • State v. Jendusa, No. 2018AP2357-LV
    • United States
    • United States State Supreme Court of Wisconsin
    • March 10, 2021
    ...556 N.W.2d 721.13 "[W]e may ascertain the term's plain and ordinary meaning through sources such as dictionaries." E.g., State v. Hager, 2018 WI 40, ¶29, 381 Wis. 2d 74, 911 N.W.2d 17.14 "A court ‘should assume the contextually appropriate ordinary meaning unless there is reason to think ot......
  • St. Augustine Sch. v. Taylor, 2021AP265-CQ
    • United States
    • United States State Supreme Court of Wisconsin
    • July 2, 2021
    ..."where we can reasonably adopt a saving construction of a statute to avoid a constitutional conflict, we do so." State v. Hager, 2018 WI 40, ¶31, 381 Wis. 2d 74, 911 N.W.2d 17. Contrary to the Vanko court's application of the canon, simply "avoid[ing] ... a constitutional conflict does not ......
  • Nelson v. Johnson, Case No. 12-C-472
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • December 23, 2019
    ...F.Supp.3d 8 it is patently arbitrary’ and bears no rational relationship to a legitimate government interest." In re Commitment of Hager , 2018 WI 40, ¶ 39, 381 Wis. 2d 74, 911 N.W.2d 17 (quoting In re Commitment of Alger , 2015 WI 3, ¶ 39, 360 Wis. 2d 193, 858 N.W.2d 346 ). Though Defendan......
  • Request a trial to view additional results
7 cases
  • St. Augustine Sch. v. Taylor, No. 2021AP265-CQ
    • United States
    • United States State Supreme Court of Wisconsin
    • July 2, 2021
    ..."where we can reasonably adopt a saving construction of a statute to avoid a constitutional conflict, we do so." State v. Hager, 2018 WI 40, ¶31, 381 Wis. 2d 74, 911 N.W.2d 17. Contrary to the Vanko court's application of the canon, simply "avoid[ing] . . . a constitutional conflict does no......
  • State v. Jendusa, No. 2018AP2357-LV
    • United States
    • United States State Supreme Court of Wisconsin
    • March 10, 2021
    ...556 N.W.2d 721.13 "[W]e may ascertain the term's plain and ordinary meaning through sources such as dictionaries." E.g., State v. Hager, 2018 WI 40, ¶29, 381 Wis. 2d 74, 911 N.W.2d 17.14 "A court ‘should assume the contextually appropriate ordinary meaning unless there is reason to think ot......
  • St. Augustine Sch. v. Taylor, 2021AP265-CQ
    • United States
    • United States State Supreme Court of Wisconsin
    • July 2, 2021
    ..."where we can reasonably adopt a saving construction of a statute to avoid a constitutional conflict, we do so." State v. Hager, 2018 WI 40, ¶31, 381 Wis. 2d 74, 911 N.W.2d 17. Contrary to the Vanko court's application of the canon, simply "avoid[ing] ... a constitutional conflict does not ......
  • Nelson v. Johnson, Case No. 12-C-472
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • December 23, 2019
    ...F.Supp.3d 8 it is patently arbitrary’ and bears no rational relationship to a legitimate government interest." In re Commitment of Hager , 2018 WI 40, ¶ 39, 381 Wis. 2d 74, 911 N.W.2d 17 (quoting In re Commitment of Alger , 2015 WI 3, ¶ 39, 360 Wis. 2d 193, 858 N.W.2d 346 ). Though Defendan......
  • Request a trial to view additional results

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