State v. Post

Decision Date08 December 1995
Docket Number94-2357,Nos. 94-2356,s. 94-2356
Citation197 Wis.2d 279,541 N.W.2d 115
CourtWisconsin Supreme Court
PartiesSTATE of Wisconsin, Petitioner-Appellant, v. Samuel E. POST, Respondent-Respondent. STATE of Wisconsin, Petitioner-Appellant, v. Ben R. OLDAKOWSKI, Respondent-Respondent.

For the petitioner-appellant the cause was argued by Sally L. Wellman, Assistant Attorney General, with whom on the briefs was James E. Doyle, Attorney General.

For the respondents-respondents the cause was argued by Kenneth P. Casey, Assistant State Public Defender, with whom on the brief was Keith A. Findley and Richard Martin, Assistant State Public Defenders.

GESKE, Justice.

These cases are before the court upon certification by the court of appeals pursuant to Rule 809.61 of the Wisconsin Statutes. 1 The State appeals from an order of the Circuit Court for Dane County, Stuart A. Schwartz, Circuit Judge, dismissing petitions filed in both cases under Wis.Stat. Chapter 980, the Sexually Violent Person Commitments statute, on the grounds that it is unconstitutional. The circuit court found that chapter 980 violated constitutional protections against double jeopardy and ex post facto laws, as well as the guarantees of substantive due process and equal protection under the law.

The issues certified on appeal to this court are whether chapter 980 violates constitutional guarantees: (1) against double jeopardy; (2) against ex post facto laws; (3) of substantive due process; (4) of equal protection under the law; and (5) whether the governor's partial veto created a law which is incomplete and unworkable as applied to persons committed under chapter 975 (the Sex Crimes Act). We reverse the circuit court on all constitutional issues. We hold that chapter 980 does not violate the constitution on either double jeopardy or ex post facto grounds. Our decision on these two challenges is controlled by the opinion issued today in the companion case, State v. Carpenter, 197 Wis.2d 252, 541 N.W.2d 105 (1995). This opinion addresses the remaining three issues.

We hold that chapter 980 withstands constitutional challenge in that it violates neither the substantive due process nor the equal protection guarantees of the United States and Wisconsin constitutions. Chapter 980 authorizes the civil commitment of persons, previously convicted of a sexually violent offense, who currently suffer from a mental disorder that predisposes them to repeat such acts. We recognize the state's compelling interest in protecting society by preventing future acts of sexual violence through the commitment and treatment of those identified as most likely to commit such acts. We conclude that substantive due process is not offended by commitments, such as those under chapter 980, whose nature and duration are reasonably related to such compelling state purposes. Similarly, we hold that the equal protection challenge does not affect the constitutionality of chapter 980 as a whole. However, this court requires that the right to a jury determination be extended to persons committed under chapter 980 at all discharge hearings. Additionally, we conclude that chapter 980 is a complete and workable law

in respect to chapter 975 committed persons. 2


For purposes of this appeal, the parties do not dispute the following facts and procedural history. In 1976 Samuel E. Post (Post) was convicted of two counts each of first degree sexual assault, armed robbery and false imprisonment stemming from incidents in which he abducted women from shopping mall parking lots and drove them to remote locations where he forced them to engage in oral sex acts. The circuit court committed him to the custody of the Wisconsin Department of Health and Social Services (DHSS) under chapter 975 and confined him at Mendota Mental Health Institute (Mendota). Following his mandatory release on parole in 1990, Post was again confined at Mendota after revocation for violation of several parole conditions, including allegations that he repeatedly fondled his minor stepdaughter. Post was scheduled for release on July 15, 1994.

In 1972 the State charged Ben R. Oldakowski (Oldakowski) with numerous counts of kidnapping and sexual assault involving the abductions of five women and the attempted abduction of a sixth. He ultimately pled guilty and was convicted of one count of rape in 1972. Pursuant to § 975.06, the court committed him to the custody of DHSS which subsequently transferred him to Mendota. Six months after his release in April of 1979, the State revoked Oldakowski's initial parole following charges that he sexually assaulted a 17-year-old girl. In 1985, he was again paroled and, in 1986, revoked for exposing himself to a teenage girl. Revocation proceedings were initiated only two months after his third parole, in February of 1991, following a conviction, as a repeat offender, for lewd and lascivious behavior. Oldakowski was returned to Mendota and scheduled to be released on July 15, 1994.

On July 12, 1994, the Department of Justice (DOJ) filed petitions pursuant to chapter 980 seeking to commit Post and Oldakowski as sexually violent persons. At the probable cause hearings, the State relied upon the diagnoses of Post and Oldakowski provided by Dr. Dennis Doren, the Forensic Clinical Director of Mendota. Dr. Doren testified that his primary diagnosis of Post is antisocial personality disorder 3 with secondary atypical paraphilia. 4 He diagnosed Oldakowski as primarily suffering from paraphilia, including sexual sadism (inflicting humiliation or suffering) and exhibitionism (exposure of genitals), 5 and secondarily from a personality disorder, not otherwise specified. Dr. Doren testified that, in his medical opinion, the above disorders are mental disorders within the definition of § 980.01(2), and that both Post and Oldakowski are dangerous to others because their mental disorders create a substantial probability that they will engage in acts of sexual violence 6--in other words, that both men fit the statutory definition of sexually violent persons. The circuit court found probable cause to believe that both Post and Oldakowski were sexually violent persons and ordered them held at Mendota pending trial.

On the day the probable cause hearings were held, Post and Oldakowski each filed motions to dismiss the commitment petitions on the grounds that chapter 980 violates various constitutional protections and guarantees. 7

7 The circuit court granted those motions, finding that chapter 980 violated constitutional protections [197 Wis.2d 297] against double jeopardy and ex post facto laws, as well as the guarantees of substantive due process and equal protection under the law. The circuit court therefore ordered Post and Oldakowski released. The court of appeals ordered the matters consolidated and stayed Post and Oldakowski's release pending appellate review of the constitutionality of the statute. This court subsequently accepted certification from the court of appeals.


Post and Oldakowski challenge virtually the entirety of chapter 980 on various substantive and procedural bases. Therefore, chapter 980's statutory scheme will be summarized at this point to provide a framework for the remainder of this opinion. Chapter 980 requires an agency with authority to discharge or release a person who may fit the criteria for commitment as a sexually violent person to notify the DOJ or appropriate district attorney of pending release and to provide treatment records and other relevant documentation concerning that individual. Wis.Stat. § 980.015. A petition seeking commitment under chapter 980 must allege that the person: (1) was convicted, found delinquent, or found not guilty by reason of mental disease or defect of a sexually violent offense; 8 2) is within 90 days of release from a sentence, commitment, or secured correctional facility arising from a sexually violent offense; (3) has a mental disorder; and (4) is dangerous because that mental disorder creates a substantial probability that he or she will engage in acts of sexual violence. 9 Mental disorder is statutorily defined as "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence." Wis.Stat. § 980.01(2).

The court shall review a chapter 980 petition filed by the state and order detention only if it finds cause to believe that the person named in the petition is eligible for commitment under the statute. Within 72 hours of filing, there shall be a hearing in which the court determines whether there is probable cause to believe that the subject of the petition is a sexually violent person. The court shall dismiss the petition if it fails to establish probable cause. However, upon a finding of probable cause, the court shall order the individual to be transferred to an appropriate facility for evaluation. Wis.Stat. §§ 980.04(1)-(3). When required to submit to an examination, a person may retain his or The person is entitled to a full adversarial trial on the allegations in the petition. During the trial, all criminal rules of evidence apply and the state carries the burden of proof beyond a reasonable doubt. Wis.Stat. §§ 980.05(1m) and (3). The person who is the subject of the petition has the following rights: to counsel (which will be appointed if indigency is established); to remain silent; to present and cross-examine witnesses; and to have the hearing recorded. A jury of 12 may be requested and must arrive at a unanimous verdict. Wis.Stat. §§ 980.03(2)-(3).

her own examiner (or one will be appointed upon proof of indigency) who will have reasonable access to the subject of the petition and to past and present treatment records. Wis.Stat. § 980.03(4).

Once a person is found to be sexually violent under this chapter, the circuit court must commit the person to DHSS for control, care...

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