State v. Thiel, 99-0316.

• Decision Date: 24 January 2001
• Docket Number: No. 99-0316.,99-0316.
• Citation: 2001 WI App 52,625 N.W.2d 321,241 Wis.2d 439
• Parties: IN RE the COMMITMENT OF Dennis R. THIEL: STATE of Wisconsin, Petitioner-Respondent, v. Dennis R. THIEL, Respondent-Appellant.
• Court: Wisconsin Court of Appeals

241 Wis.2d 439

2001 WI App 52

625 N.W.2d 321

IN RE the COMMITMENT OF Dennis R. THIEL:

STATE of Wisconsin, Petitioner-Respondent,¹ v. Dennis R. THIEL, Respondent-Appellant.

No. 99-0316.

Court of Appeals of Wisconsin.

Oral argument November 13, 2000.

Decided January 24, 2001.

On behalf of the respondent-appellant, the cause was submitted on the briefs of John D. Lubarsky, assistant state public defender, Madison. There was oral argument by John D. Lubarsky.

On behalf of the petitioner-respondent, the cause was submitted on the briefs of Diane M. Welsh, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by Sally L. Wellman.

Before Brown, P.J., Anderson and Snyder, JJ.

¶ 1. ANDERSON, J.

At the direction of the Wisconsin Supreme Court, we have considered what is the appropriate remedy for the new statutory interpretation announced in State v. Thiel, 2000 WI 67, 235 Wis. 2d 823, 612 N.W.2d 94. We conclude that the requirement that the State must prove beyond a reasonable doubt that a WIS. STAT. ch. 980 (1997-98)² detainee is within ninety days of release shall be applied retroactively, and Thiel shall receive the benefit of retroactive application. We further conclude that the Double Jeopardy Clause does not prevent a remand to the circuit court for a trial limited to the issue of whether Thiel was within ninety days of his release when the State filed the ch. 980 petition.

¶ 2. On October 27, 1999, we certified to the Wisconsin Supreme Court the question of "whether the State must affirmatively prove that a ch. 980, STATS., respondent is within ninety days of release or discharge."³ The supreme court accepted certification and ruled that "in a commitment trial pursuant to WIS. STAT. ch. 980, the State must prove beyond a reasonable doubt that the subject of the petition is within 90 days of release or discharge from a sentence imposed on the basis of a sexually violent offense." Thiel, 2000 WI 67 at ¶ 1.

¶ 3. In reaching this conclusion, the supreme court, using generally accepted principles of statutory interpretation, found that the statutory language was clear and unambiguous that the legislature intended the State to prove beyond a reasonable doubt that an individual was within ninety days of release. See id. at ¶¶ 10, 19. The supreme court found support for its conclusion in the legislative history of WIS. STAT. ch. 980 as well as two recent decisions it had issued. See Thiel, 2000 WI 67 at ¶¶ 22-24. The supreme court observed that the result in Thiel was preordained because both State v. Kienitz, 227 Wis. 2d 423, 429 n.6, 597 N.W.2d 712 (1999), and State v. Curiel, 227 Wis. 2d 389, 396 n.4, 597 N.W.2d 697 (1999), correctly stated the law that the State had the burden of proving beyond a reasonable doubt all of the allegations in the petition for commitment, including that the person was within ninety days of discharge. See Thiel, 2000 WI 67 at ¶¶ 23-25.

¶ 4. The supreme court went on to scour the record to determine if the State satisfied its burden in this case. See id. at ¶¶ 26-34. The court reached the conclusion that "the trial record in this case does not establish beyond a reasonable doubt that the State filed its commitment petition within 90 days of Thiel's release." Id. at ¶ 35. The supreme court then turned to the appropriate remedy:

In response to a question at oral argument regarding remedies, the State referenced several remedy issues, none of which have been briefed or argued before this court.

These issues include whether our decision should have retroactive or prospective application, and whether a decision affects only the "pipeline" cases on direct appeal or also reaches to cases on collateral review. Another remedy concern referenced by the State is whether the court may remand the narrow issue involving proof of the 90-day requirement, as is done in other civil cases with respect to specific issues such as the appropriate measure of damages. As the State notes, concerns of claim preclusion or double jeopardy may also arise.

In light of the significant remedy issues, we hesitate to decide the question of appropriate remedy without affording the parties an opportunity to address adequately the above and other remedy issues. Rather, we believe the more prudent course is to remand the cause to the court of appeals and direct the court to address the issue of the appropriate remedy.

Id. at ¶¶ 35-37.⁴

RETROACTIVE OR PROSPECTIVE APPLICATION

¶ 5. Thiel now argues that Griffith v. Kentucky, 479 U.S. 314, 328 (1987), insures his "right to benefit from his own litigation." He contends that the supreme court's decision did not announce a new rule of substantive criminal law that requires this court to engage in an analysis of whether the decision should be applied retroactively. He argues that the State's mistaken view of its burden of proof is "not the sort of compelling inequity that would warrant only a prospective application of the court's decision." Rather, Thiel insists that the decision did nothing more than illuminate the plain language of the two statutes involved, and he is entitled to the benefit of his labors and have the decision apply to him.

¶ 6. The State urges us to apply what it describes as a new statutory interpretation, totally prospectively. The prospective application of a court decision is often called "sunbursting."⁵ The State reasons that prospective application is called for because the decision does not call into question jury verdicts finding that an individual was a proper person for commitment as a sexually violent offender because the ninety-day filing requirement is not a substantive criterion of commitment. See State v. Post, 197 Wis. 2d 279, 325, 541 N.W.2d 115 (1995). The State asserts that prospective application will not be unfair to Thiel because he has never claimed that he was not within ninety days of release when the commitment petition was filed. The State also argues that retroactive application will impose a burden on courts having to relitigate commitments and put the public at risk because of the potential that sex offenders will walk the streets unsupervised.

[1]

¶ 7. We disagree with Thiel that he is entitled to the benefit of the decision in his case because it does not announce a new rule of substantive criminal law. His approach is too simplistic and fails to take into consideration the history and use of retroactivity analysis in this state. Wisconsin generally adheres to the "Blackstonian Doctrine," which provides that a decision that clarifies, overrules, creates or changes a rule of law is to be applied retroactively. See Fitzgerald v. Meissner & Hicks, Inc., 38 Wis. 2d 571, 575, 157 N.W.2d 595 (1968). In spite of this, an appellate court may employ the technique of prospective application —"sunbursting"—to mitigate hardships that may arise with the retroactive application of a new rule of law. See Harmann v. Hadley, 128 Wis. 2d 371, 378-79, 382 N.W.2d 673 (1986). "Sunbursting" is an approved method of dealing with both changes within the common law as well as changes in the way that courts interpret statutes. See Colby v. Columbia County, 202 Wis. 2d 342, 364, 550 N.W.2d 124 (1996). Whether to limit a new rule of law to prospective application is a policy question for the appellate court that we review de novo. See Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605, 613, 563 N.W.2d 154 (1997).

¶ 8. Griffith is a decision from the United States Supreme Court that abandoned a three-pronged analysis for claims of retroactivity of new constitutional rules of criminal procedure in favor of an easier approach that provides that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases pending on direct review or not yet final.⁶See Griffith, 479 U.S. at 320, 328. The Griffith approach is applicable in Wisconsin. See State v. Koch, 175 Wis. 2d 684, 694, 499 N.W.2d 152 (1993).

¶ 9. However, Griffith is not applicable to Thiel because this case is not a criminal prosecution. See State v. Carpenter, 197 Wis. 2d 252, 271-72, 541 N.W.2d 105 (1995). Accordingly, we will not apply the Griffith approach and mechanically hold that the decision announced in Thiel will be applied retroactively to all cases on direct review or not yet final. We choose to apply the analysis that is used when a new rule of substantive or procedural civil law is announced. The application of such an analysis is supported by the application of civil rules of procedure to WIS. STAT. ch. 980 commitment proceedings. See State v. Brown, 215 Wis. 2d 716, 718-19, 573 N.W.2d 884 (Ct. App. 1997) ("Chapter 980, containing the civil commitment procedure for sexually violent persons, is subject to the provisions of Chapters 801 to 847."). Moreover, the use of the same analysis as used in civil cases was approved by the Wisconsin Supreme Court in an area of the law where there are fundamental liberty interests protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. See Walworth County DHS v. Elizabeth W., 189 Wis. 2d 432, 436, 525 N.W.2d 384 (Ct. App. 1994).

Although serious human rights are implicated in the termination-of-parental rights proceedings, the proceeding is civil in nature. Accordingly, we conclude that it is appropriate in determining the question of retroactivity or not to apply the test of Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), approved by this court in Kurtz v. City of Waukesha, 91 Wis. 2d 103, 109, 280 N.W.2d 757 (1979).

M.W. v. Monroe County DHS, 116 Wis. 2d 432, 442, 342 N.W.2d 410 (1984).

[2]

¶ 10. In Kurtz, the Wisconsin Supreme Court adopted the retroactivity analysis set forth by the United States Supreme Court in Chevron Oil. The three prongs of that analysis require consideration of whether: (1) the decision creates a new principle of law, either by overruling clear past precedent on which parties have relied, or by...