State v. Rachel

Decision Date01 July 2002
Docket NumberNo. 00-0467.,00-0467.
Citation2002 WI 81,647 N.W.2d 762,254 Wis.2d 215
PartiesIN RE the COMMITMENT OF Tory L. RACHEL: STATE of Wisconsin, Petitioner-Respondent, v. Tory L. RACHEL, Respondent-Appellant.
CourtWisconsin Supreme Court

For the respondent-appellant there were briefs by Richard H. Hart and Hart Law Offices, Milwaukee, and oral argument by Richard H. Hart.

For the petitioner-respondent the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. JON P. WILCOX, J.

This case involves a constitutional challenge to Wis. Stat. ch. 980 (1999-2000), the state's sexually violent person commitment law. The challenge is brought by respondent Tory L. Rachel, who was involuntarily committed to institutional care under ch. 980. Between the time that the State's petition for commitment was filed and the beginning of Rachel's trial, the legislature passed several amendments to ch. 980, which primarily served to limit a ch. 980 respondent's ability to seek supervised release. Rachel alleges that these amendments render ch. 980 unconstitutional on its face.

¶ 2. Prior to trial, Rachel filed a motion to dismiss, claiming that ch. 980, as amended, violates the double jeopardy, due process, and ex post facto provisions of the Wisconsin and United States Constitutions. The Kenosha County Circuit Court, Wilbur W. Warren, III, Judge, denied the motion and held that ch. 980 was constitutional as amended. After a trial, the circuit court found Rachel to be a sexually violent person under ch. 980 and ordered him committed to institutional care. Rachel appealed, and the court of appeals certified the case to this court. We accepted the certification, and we now uphold the decision of the circuit court.


¶ 3. On August 9, 1994, the Kenosha County District Attorney filed a petition with the circuit court seeking the involuntary commitment of Tory L. Rachel. Pursuant to Wis. Stat. § 980.02(2)(ag) (1993-94), when the petition was filed, Rachel was within 90 days of his release on a prison sentence for second-degree sexual assault and false imprisonment. The Kenosha County Circuit Court held a probable cause hearing, found probable cause to believe that Rachel was a sexually violent person, and bound him over for trial.

¶ 4. Chapter 980 had just taken effect on June 2, 1994—about two months prior to the filing of the petition. See 1993 Wis. Act 479, § 40. Unsurprisingly, Rachel challenged the new statute on a number of constitutional grounds, including that the statute was an ex post facto law; that it constituted double jeopardy; that it violated procedural and substantive due process; that it violated equal protection; that it was overly vague; and that it constituted cruel and unusual punishment. The circuit court denied Rachel's motions to dismiss, and the court of appeals granted Rachel leave to appeal the nonfinal order.

¶ 5. The court of appeals held Rachel's appeal in abeyance until December 8, 1995, when this court decided State v. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995), and State v. Carpenter, 197 Wis. 2d 252, 541 N.W.2d 105 (1995), which together comprised the first constitutional assessment of ch. 980 made by this court. In Post, we held that ch. 980 did not violate the Due Process or Equal Protection Clauses of the state or federal constitution. Post, 197 Wis. 2d at 316-17, 330-31. Similarly, in Carpenter, we held that ch. 980 did not violate the state or federal Double Jeopardy or Ex Post Facto Clauses. Carpenter, 197 Wis. 2d at 271-72, 274. As a result of our decisions in Post and Carpenter, on January 11, 1996, the court of appeals summarily upheld the circuit court's decision in Rachel's case and remanded the case to the circuit court for further proceedings.

¶ 6. Over the next several years, Rachel's case underwent a number of procedural delays, including two changes of counsel for Rachel and several adjournments, including one to await the U.S. Supreme Court's decision in Kansas v. Hendricks, 521 U.S. 346 (1997), where the Court held that Kansas's sexually violent person law was nonpunitive, and therefore did not violate the Double Jeopardy or Ex Post Facto Clauses of the U.S. Constitution. Additionally, Rachel was denied interlocutory appeal on a timeliness issue (eventually deemed waived), and was granted interlocutory appeal on a discovery issue. See State v. Rachel, 224 Wis. 2d 571, 591 Wis. 2d 920 (Ct. App. 1999)

. After remittitur from that appeal, the matter was scheduled for a jury trial on November 8, 1999.

¶ 7. On the day that the trial was supposed to commence, Rachel filed a motion to dismiss on the grounds that several amendments to the statute, enacted just two weeks prior, rendered ch. 980 unconstitutional. See 1999 Wis. Act 9, §§ 3216d-3239d (published Oct. 28, 1999). The primary thrust of these amendments was to limit a ch. 980 respondent's ability to seek supervised release as an alternative to institutional commitment under ch. 980. We now examine these amendments in some detail.


¶ 8. In Wisconsin Act 9 of 1999 ("the Act"), sections 3216d through 3239d, the legislature made a number of amendments to Wisconsin's sexually violent person law, ch. 980 of the Wisconsin Statutes. The most notable of these were made to Wis. Stat. § 980.06, the statutory section dealing with the physical commitment of sexually violent persons. Under the prior statutes, § 980.06(1) (1997-98) stated:

If a court or jury determines that the person who is the subject of a petition under s. 980.02 is a sexually violent person, the court shall order the person to be committed to the custody of the department [of Health and Family Services] for control, care and treatment until such time as the person is no longer a sexually violent person.

The Act amended this section to include the requirement that "A commitment order under this section shall specify that the person be placed in institutional care." See 1999 Wis. Act 9, § 3223h (emphasis added). Accordingly, § 980.06(2)(a)-(c) (1997-98) was repealed. See 1999 Wis. Act 9, § 3223i-3223k. Those sections had laid out the procedure by which the court could enter an initial order for a sexually violent person to be committed to supervised release, rather than institutional care, and described the methods for developing a supervised release plan.

¶ 9. Additionally, Wis. Stat. § 980.065(1m) (1997-98), which dealt with institutional care for sexually violent persons, was changed from:

The department may place a person committed to institutional care under s. 980.06(2)(b) at a mental health unit or facility, including a secure mental health unit or facility at the Wisconsin resource center established under s. 46.056 or a secure mental health unit or facility provided by the department of corrections under sub. (2).

to read:

The department shall place a person committed under s. 980.06 at the secure mental health facility established under s. 46.055, the Wisconsin resource center established under s. 46.056 or a secure mental health unit or facility provided by the department of corrections under sub. (2).

Wis. Stat. § 980.065(1m) (1999-2000); 1999 Wis. Act 9, § 3230m.

¶ 10. Section 980.06(d) (1997-98), which discussed the conditions, violation, and revocation of supervised release, was moved from under Wis. Stat. § 980.06 (1997-98) to Wis. Stat. § 980.08(6m) (1999-2000), the section detailing petitions for supervised release. That section was also amended to include the language:

The department shall arrange for control, care and treatment of the person in the least restrictive manner consistent with the requirements of the person and in accordance with the plan for supervised release approved by the court under sub. (5).

1999 Wis. Act 9, § 3223L.

¶ 11. Wisconsin Stat. § 980.07(1) (1997-98), covering periodic reexaminations of sexually violent persons, originally read, in pertinent part:

If a person has been committed under s. 980.06 and has not been discharged under s. 980.09, the department shall conduct an examination of his or her mental condition within 6 months after an initial commitment under s. 980.06 and again thereafter at least once each 12 months for the purpose of determining whether the person has made sufficient progress to be entitled to transfer to a less restrictive facility, to supervised release or to discharge.

The language "whether the person has made sufficient progress to be entitled to transfer to a less restrictive facility, to supervised release or to discharge" was changed to "whether the person has made sufficient progress for the court to consider whether the person should be placed on supervised release or discharged." See Wis. Stat. § 980.07(1) (1999-2000); 1999 Wis. Act 9, § 3232.

¶ 12. Finally, Wis. Stat. § 980.08(1) (1997-98), which allowed a sexually violent person who was under institutional care to petition the committing court for supervised release after six months of institutional placement, was changed to extend the minimum time to 18 months before the individual committed under ch. 980 could petition for supervised release. See 1999 Wis. Act 9, § 3232p. This subsection continues to allow the director of the institution to petition on the individual's behalf at any time.

¶ 13. A number of smaller changes to the statutory language were also made throughout the chapter to give effect to these amendments. The other sections that related to petitions for supervised release and discharge, Wis. Stat. §§ 980.09 and 980.10, remained fundamentally unchanged.1 ¶ 14. As a whole, the consequence of these amendments was to limit the ch. 980 respondent's ability to obtain supervised release when the respondent is found

(c) If the court is satisfied that the state has not met its burden of proof under par. (b), the petitioner shall be discharged from the custody or supervision of the department. I

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