State v. Hanson

• Decision Date: 24 June 1980
• Docket Number: No. 79-568-CR,79-568-CR
• Citation: 98 Wis.2d 80,295 N.W.2d 209
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Ernest M. HANSON, Defendant-Respondent. *
• Court: Wisconsin Court of Appeals

Page 209

295 N.W.2d 209

98 Wis.2d 80

STATE of Wisconsin, Plaintiff-Appellant, v. Ernest M. HANSON, Defendant-Respondent. ^* No. 79-568-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs March 26, 1980.

Opinion Released June 24, 1980.

Opinion Filed June 24, 1980.

Review Granted.

Bronson C. La Follette, Atty. Gen., and Pamela Magee-Heilprin, Asst. Atty. Gen., submitted brief for plaintiff-appellant.

Timothy R. Young of Dempsey, Magnusen, Williamson & Lampe, Oshkosh, submitted brief for defendant-respondent.

Before VOSS, P. J., and BROWN and BODE, JJ.

BROWN, Judge.

This is an appeal by the state of an order discharging Ernest M. Hanson from commitment under ch. 975, Stats. (1977), the Wisconsin Sex Crimes Law. ¹ This law provides that periodic examinations must take place at least yearly following the commitment. Sec. 975.09, Stats. If the state fails to give an examination, the sanction is not automatic discharge, but the offender may petition the court for discharge, and the court must discharge the offender unless it appears there is a necessity for further control. This appeal involves the questions of: (1) Who has the burden at this hearing, and (2) Is the burden of proof "beyond a reasonable doubt" or a mere "preponderance of the evidence?" ² The trial court held that the state had the burden of proof and that the burden was to establish the need for control beyond a reasonable doubt. Holding that the state had not met its burden, the trial court discharged Hanson. We reverse and hold that while the state has the burden of proof, its burden is only to establish the need for control to a preponderance of the evidence.

Before discussing the main issues in this appeal, one initial contention is raised by the state. The state claims there was, in fact, a periodic examination; therefore, the trial court had no reason to entertain Hanson's petition for order of discharge. The trial court ruled that the state had waived this issue because the Department of Health & Social Services wrote a letter to the court, prior to trial, admitting that an examination had not taken place. The state remained silent on the matter until trial when the district attorney tried to raise the issue. The trial court ruled that the matter had been untimely raised. The state claims the department's letter only admitted that there was no hearing conforming to the standards of State ex rel. Terry v. Schubert, 74 Wis.2d 487, 247 N.W.2d 109 (1976) (Terry I). ³

We reject the state's argument. When the petition was first brought to the trial court's attention, the trial court wrote the state giving it twenty days to respond. No motion for dismissal on the basis of lack of jurisdiction of the person was forthcoming just a letter. This is a civil proceeding, and, unless specifically noted otherwise, ch. 800 of our civil procedure code governs the procedural administration of this case. Section 802.06, Stats., requires such a defense to be raised either in a pleading by motion for judgment on the pleading or by motion pursuant to a scheduling order. Also required is that any response ordered by the court be served within twenty days after service of the order. The defense of lack of jurisdiction over the person is considered waived if it is neither made by motion nor included in the responsive pleading. See sec. 802.06(8), Stats. No motion alleging a lack of jurisdiction over the offender having been properly raised, the issue is waived. Having disposed of this preliminary issue, we will now turn to the major issues raised on this appeal.

BURDEN OF PROOF

The issue dealing with which party has the burden of proof is best decided by use of the five factor analysis outlined in McCormick, Evidence § 337, pp. 788-89 (2nd Ed. 1972), and adopted by the Wisconsin Supreme Court in State v. McFarren, 62 Wis.2d 492, 499-503, 215 N.W.2d 459, 463-65 (1974). The five factors, though not listed in the same particular order as in McFarren, are: (1) special policy considerations; (2) the judicial estimate of probabilities; (3) convenience; (4) the fairness factors, and (5) the natural tendency to place the burdens on the party desiring change.

1. Special Policy Considerations

The reason for the periodic examination is to review commitment between the time the offender is initially committed and expiration of the maximum term of incarceration. State ex rel. Terry v. Schubert, supra, 74 Wis.2d at 494, 247 N.W.2d at 112 (Terry I). The legislature provided that the department shall discharge any person committed to it under the Sex Crimes Law "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. The state may not constitutionally continue an involuntary commitment without due process of law. O'Connor v. Donaldson, 422 U.S. 563, 575, 95 S.Ct. 2486, 2493, 45 L.Ed.2d 396 (1975); Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 1858, 32 L.Ed.2d 435 (1972); State ex rel. Terry v. Schubert, supra, 74 Wis.2d at 495, 247 N.W.2d at 113 (Terry I). Due process basically requires that the state afford the opportunity to be heard at a meaningful time and in a meaningful manner. Terry I, supra.

When a periodic examination is held, it is for the purpose of justifying continued commitment. By not holding a periodic examination, the inference is raised that there is no public interest in continuing the commitment. Thus, although ordinarily there would be no right to release, the state's inaction creates the possibility that the need for confinement may no longer exist. The state has failed to provide the minimum due process periodic examination which would ordinarily provide the minimum due process periodic examination which would ordinarily provide the basis for continued denial of liberty. State ex rel. Terry v. Percy, 95 Wis.2d 476, 290 N.W.2d 713 (1980) (Terry III). When the minimum due process procedure is dispensed with, the state must answer for its inaction in court. There is a lack of fair play involved when due process is denied. Not holding the periodic examination should be a disfavored practice unless the state truly feels the offender is ready for discharge. If we were to give the burden to the offender, we would be denigrating the importance of the periodic examination. The state could discontinue giving periodic examinations altogether. This would force the offender into court in order to get the due process hearing constitutionally mandated. The state could defer giving any reason for its refusal to give an examination pending production of a prima facie case by the offender. If the offender could not produce sufficient evidence, the state then would gain dismissal and would be able to further control the offender without having to disclose anything. We cannot sanction such a result.

We conclude that the normal course of events has been disrupted by the state because of its failure to hold an examination. The inference we draw and the inference we believe that the legislature draws by its language is that the offender is to be discharged unless the state shows good reason for the trial court to rule otherwise.

2. Convenience

The state, with an interest in rehabilitating the offender, has the facts at its command. The state also is able to provide the court with information in support of its belief that further control is necessary.

(T)he 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. State ex rel. Terry v. Percy, supra, at 481-82, 290 N.W.2d at 716 (Terry III).

The state has the means by which to disclose the factors which justify continued commitment; it has the documentary evidence; it has the staff which is involved in the direct care, treatment and supervision of the offender, and it has the file and pertinent parts thereof in its possession. We believe that the facts for determining the necessity of further control are more properly in the hands of the state, and it should be the state's burden to come forward and disclose them.

3. Judicial Estimate of Probabilities

The McFarren, court quoted McCormick who defined this factor as follows:

Perhaps a more frequently significant consideration in the fixing of the burdens of proof is the judicial estimate of the probabilities of situation. The risk of failure of proof may be placed upon the party who contends that the more unusual has occurred. (Footnote omitted.) (Emphasis added.) State v. McFarren, supra, 62 Wis.2d at 503, 215 N.W.2d at 465, quoting McCormick, Evidence § 337, p. 787 (2d ed. 1972).

The usual event is that the periodic examination will be held unless there is no further need to control. The unusual event is that the examination has not been given but there still exists a further need for control. The state is contending the more unusual event has occurred. There may be, in fact, a valid reason why this unusual event has taken place, and there may be, in fact, a need for further control. The state, however, in contending the unusual event has occurred, should be obligated to bear the burden.

4. Fairness Factors

The fairness factors are twofold. One is called "proof of exceptions," and the other is "proof of negatives." Proof of exceptions has been defined as a rule that: "One who relies on an exception to a general rule or statute has the burden of proving that the case falls within the exception." State v. McFarren, supra, at 502, 215 N.W.2d at 465, quoting 31A C.J.S. Evidence § 104, p. 173. In reviewing sec. 975.09, Stats., we note that failure to conduct a periodic examination entitles an offender to ...