2018 WI 40
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP330 & 2015AP1311
COMPLETE TITLE: 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.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 373 Wis. 2d 692, 892 N.W.2d 740
(2015AP330) and 372 Wis. 2d 722, 892 N.W.2d 754
(2015AP1311)
PDC No: 2017 WI App 8 – Published (2015AP330)
and 2017 WI App 9 – Published (2015AP1311)
OPINION FILED: April 19, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 1, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Chippewa (2015AP330), Brown (2015AP1311)
JUDGE: James M. Isaacson (2015AP330), Kendall M. Kelley
(2015AP1311)
JUSTICES:
CONCURRED: KELLY, J., concurs, joined by R.G. BRADLEY, J.
(opinion filed).
DISSENTED: ABRAHAMSON, J., dissents, joined by A.W.
BRADLEY, J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
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.
2
2018 WI 40
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP330 & 2015AP1311
(L.C. No. 2007CI1 & 2007CI3)
STATE OF WISCONSIN : IN SUPREME COURT
In re the commitment of David Hager, Jr.:
State of Wisconsin,
FILED
Petitioner-Respondent-Petitioner,
APR 19, 2018
v.
Sheila T. Reiff
David Hager, Jr., Clerk of Supreme Court
Respondent-Appellant.
In re the commitment of Howard Carter:
State of Wisconsin,
Petitioner-Respondent,
v.
Howard Carter,
Respondent-Appellant-Petitioner.
Nos. 2015AP330 & 2015AP1311
REVIEW of two decisions of the Court of Appeals. Reversed
and cause remanded in State v. Hager; Affirmed in State v.
Carter.
¶1 MICHAEL J. GABLEMAN, J. 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 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
1
We consolidated these two cases after oral argument
because they present similar issues and facts.
2
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
3
The Honorable James. M. Isaacson presiding.
4
The Honorable Kendall M. Kelley presiding.
2
Nos. 2015AP330 & 2015AP1311
the evidence opposed. Hager, 373 Wis. 2d 692, ¶5. 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 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.
¶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
5
The party carrying the burden of production must
"introduce enough evidence on an issue to have the issue decided
by the fact-finder" and not by the court in a pre-trial ruling.
Black's Law Dictionary 236 (10th ed. 2014).
The party carrying the burden of persuasion must "convince
the fact-finder to view the facts in a way that favors that
party." Black's Law Dictionary 236 (10th ed. 2014).
6
For clarity, we refer to the entire section, as amended,
as "Wis. Stat. § 980.09(2)," and refer to the specific
amendments made to § 980.09(2) by Act 84 simply as "Act 84."
3
Nos. 2015AP330 & 2015AP1311
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 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 Carter, we
affirm the decision of the court of appeals, albeit on different
grounds.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. State v. Hager
4
Nos. 2015AP330 & 2015AP1311
¶7 Hager was involuntarily committed in 2008 as a
sexually violent person pursuant to Chapter 9807 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
7
The State must prove three criteria in order to commit a
person as a sexually violent person pursuant to Chapter 980:
(1) The person was "convicted of a sexually violent
offense," was "found delinquent of a sexually violent
offense," or was "found not guilty of a sexually
violent offense by reason of mental disease or
defect."
(2) "The person has a mental disorder."
(3) "The person is dangerous to others because the
person's mental disorder makes it likely that he or
she will engage in acts of sexual violence."
Wis. Stat. § 980.02(2). In order to initially commit an
individual pursuant to Chapter 980, the State must prove these
elements beyond a reasonable doubt. Wis. Stat. § 980.05(3)(a).
In order to continue commitment, the State must prove the same
three elements by clear and convincing evidence at the discharge
trial. Wis. Stat. § 980.09(3).
8
Understanding this decision requires a grasp of both
actuarial instruments and their use in Chapter 980 proceedings.
(continued)
5
Nos. 2015AP330 & 2015AP1311
¶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
Often (as here), the only testimony in a Chapter 980
proceeding is expert testimony. The only witnesses are
examiners, who describe the sexually violent person's history,
offer diagnoses as to his mental condition, and opine about his
dangerousness.
In the 1990s, researchers began developing and releasing
tools meant to give an objective picture of a sexually violent
person's risk of reoffending. These tools, sometimes called
actuarial instruments, ask a series of questions about the
sexually violent person's history and, based on the answers,
place the sexually violent person in a particular category,
usually indicated by a number. Generally, a sexually violent
person assigned a higher number is believed to present a greater
risk, on average, than a sexually violent person assigned a
lower number.
The developers of these instruments also released tables
indicating the re-offense rates for groups of sexually violent
people assigned particular numbers. Thus, for example, a score
of 3 on the RRASOR (one of the first actuarial instruments
developed) corresponded with a group of offenders of whom 24.8
percent would reoffend within five years. Those in the business
of evaluating sex offenders for commitment often rely on these
numbers in performing their assessments.
The two actuarial instruments relied on by Hager and
Carter, the Static-99R and MATS-1, are relatively new. Neither
existed at the time Hager and Carter were first committed.
9
The circuit court did not make any findings regarding the
MATS-1 in either its original decision or its decision on the
motion for reconsideration.
6
Nos. 2015AP330 & 2015AP1311
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 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 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.
Rather, Act 84 both increased the burden of production necessary
for committed individuals to receive a discharge trial and
10
In Combs, the court of appeals interpreted a prior
version of Wis. Stat. § 980.09(2) to require the petitioner to
present "something more" than facts and professional knowledge
considered at the last discharge trial in order to obtain a new
discharge trial. State v. Combs, 2006 WI App 137, ¶32, 295
Wis. 2d 457, 720 N.W.2d 684. Thus, new facts regarding the
petitioner's condition (e.g., treatment milestones) or new
research regarding likelihood to reoffend (e.g., new actuarial
tools) would satisfy this standard. Id.
11
A circuit court weighs evidence when it "accept[s] one
version of facts, [and] reject[s] another." State v. Stietz,
2017 WI 58, ¶18, 375 Wis. 2d 572, 895 N.W.2d 796 (quoting State
v. Mendoza, 80 Wis. 2d 122, 152, 258 N.W.2d 260 (1977)).
7
Nos. 2015AP330 & 2015AP1311
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. She based this
conclusion on three opinions. First, Dr. Lytton stated that in
8
Nos. 2015AP330 & 2015AP1311
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 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.
¶15 The circuit court concluded that Dr. Lytton's report
was insufficient to satisfy the Act 84 standard. The court
observed that relevant information from Carter's past did not
appear in Dr. Lytton's report. The court also noted the lack of
citation and analysis regarding the validity of the Static-99R
and MATS-1, which Dr. Lytton had relied on heavily in her
12
Dr. Lytton did not define paraphilia, not otherwise
specified, nonconsent. Dr. Woodley defined it as "intense,
recurrent sexually arousing . . . fantasies, urges, or behaviors
to other than consenting adults . . . which the person acted
on . . . ." See also American Psychiatric Association,
Diagnostic and Statistics Manual of Mental Disorders 705 (5th
ed. 2013).
13
Dr. Lytton did not define antisocial personality
disorder. Dr. Woodley defined it as "a long-term maladaptive
pattern of behavior involving . . . the following: repeated
unlawful acts, deceitfulness, violating the rights and safety of
others, impulsivity or failure to plan ahead, repeated lying,
consistent irresponsibility, and lack of remorse for harming
others." See also American Psychiatric Association, Diagnostic
and Statistics Manual of Mental Disorders 659 (5th ed. 2013).
9
Nos. 2015AP330 & 2015AP1311
report. The court described Dr. Lytton's report as "essentially
an unsupported assertion."
¶16 Carter then filed a post-commitment motion alleging
that the circuit court's denial of a discharge trial was
improper for four reasons: (1) the court committed plain error
in applying Act 84 to Carter; (2) Wis. Stat. § 980.09(2)
violates his right to due process; (3) he received ineffective
assistance of counsel because his attorney failed to contest
application of Act 84 to Carter; and (4) he received ineffective
assistance of counsel because his attorney failed to contest
application of Wis. Stat. § 907.02(1), the rule of evidence
governing expert testimony,14 to the expert reports filed in
Carter's case. The circuit court denied the motion, concluding:
(1) Act 84 is procedural, and thus applies retroactively to
Carter; (2) § 980.09(2) does not violate Carter's right to due
process because he can still obtain a discharge trial upon
making a sufficient showing; (3) Carter's counsel was not
deficient for failing to challenge the application of Act 84
because the act did apply retroactively, and——even if his
14
Carter appealed the circuit court's conclusion that his
trial counsel was not ineffective for failing to contest the
application of Wis. Stat. § 907.02(1) to the expert reports in
his case. State v. Carter, 2017 WI App 9, ¶10 n.4, 373
Wis. 2d 722, 892 N.W.2d 754. However, he does not raise this
issue for our review, and we do not consider it further. See
State v. Sulla, 2016 WI 46, ¶7 n.5, 369 Wis. 2d 225, 880
N.W.2d 659 (quoting Jankee v. Clark Cty., 2000 WI 64, ¶7, 235
Wis. 2d 700, 612 N.W.2d 297) ("If an issue is not raised in the
petition for review or in a cross petition, 'the issue is not
before us.'").
10
Nos. 2015AP330 & 2015AP1311
counsel's performance had been deficient in this regard——Carter
suffered no prejudice because the court would have denied the
petition even if it had used the prior standard; and (4)
Carter's counsel was not deficient for failing to object to
application of § 907.02(1) to the expert reports as the decision
to do so was a legitimate strategic decision based on counsel's
assessment that application of § 907.02(1) usually accrued to
the benefit of the committed person, and, furthermore, Carter
suffered no prejudice because the court would have made the same
conclusions about Dr. Lytton's report under the prior standard.
¶17 The court of appeals affirmed, concluding that the
amendments made by Act 84 did apply retroactively, therefore
Carter's counsel was not deficient for failing to challenge
retroactive application of Act 84. Carter, 373 Wis. 2d 722,
¶22. The court of appeals further concluded that Wis. Stat.
§ 980.09(2) does not violate the right to due process because,
contrary to Carter's arguments before that court, § 980.09(2)
does not require circuit courts to weigh evidence. Id., ¶20.
Because Carter did not contend that he had met the burden as
established in Act 84,15 the court of appeals treated its holding
that the amendments made by Act 84 applied to Carter as
dispositive of his appeal. Id., ¶21.
II. STANDARD OF REVIEW
15
In his opening brief to the court of appeals, Carter
"reluctantly" agreed with the State that he did not satisfy Act
84's burden. Before this court, Carter argues that he satisfies
Act 84's burden as interpreted by the court of appeals in Hager.
11
Nos. 2015AP330 & 2015AP1311
¶18 This case requires us to interpret Wis. Stat.
§ 980.09(2) to determine the burden of production a petitioner
must satisfy in order to receive a discharge trial. Statutory
interpretation is a question of law we review de novo. Arends,
325 Wis. 2d 1, ¶13. We give words their "common, ordinary, and
accepted meaning" unless a technical or specialized meaning
applies. State ex rel. Kalal v. Circuit Court for Dane Cty.,
2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret
the statute in its full context in order to avoid creating
absurd results or rendering any statutory language surplusage.
Id., ¶46. Though legislative intent may illuminate what the
words of a statute mean, "it is the enacted law, not the
unenacted intent, that is binding . . . ." Id., ¶44.
¶19 We then determine whether Hager and Carter are
entitled to discharge trials. We review the circuit court's
determination of whether the statutory criteria for a discharge
trial have been met de novo. Combs, 295 Wis. 2d 457, ¶21.
¶20 Carter alleges that Wis. Stat. § 980.09(2) violates
the right to due process. The constitutionality of a statute is
a question of law we review de novo. State v. Alger, 2015 WI 3,
¶22, 360 Wis. 2d 193, 858 N.W.2d 346. A party challenging the
constitutionality of a statute carries a heavy burden to
overcome the presumption of constitutionality. Id. In a facial
challenge, such as the one Carter makes, the "challenger must
establish, beyond a reasonable doubt, that there are no possible
applications or interpretations of the statute which would be
constitutional." State v. Cole, 2003 WI 112, ¶30, 264
12
Nos. 2015AP330 & 2015AP1311
Wis. 2d 520, 665 N.W.2d 328 (quoting State v. Wants, 224
Wis. 2d 679, 690, 592 N.W.2d 645 (Ct. App. 1999)).16
¶21 Carter alleges that his counsel was ineffective for
failing to contest the application of Act 84 to his discharge
petition. Ineffective assistance of counsel is a mixed question
of law and fact. State v. Lombard, 2004 WI 95, ¶46, 273
Wis. 2d 538, 684 N.W.2d 103. The circuit court's factual
findings as to what counsel did and did not do are upheld unless
clearly erroneous. Id. "Whether counsel's performance was
ineffective is a question of law we review de novo." Id.
III. ANALYSIS
¶22 The consolidated appeals of Hager and Carter present
three issues for our review. First, we must determine how
circuit courts are to apply the "would likely conclude" standard
in Wis. Stat. § 980.09(2). Next, we consider whether
§ 980.09(2) violates the right to due process. Finally, we
address whether Carter's counsel was ineffective for failing to
contest retroactive application of Act 84 to Carter.
A. Wisconsin Stat. § 980.09(2) Permits Circuit Courts to
Consider the Entire Record, but Not to Weigh the Evidence Within
It, to Determine Whether the Statutory Criteria for a Discharge
Trial have been Met.
1. The changes made to Wis. Stat. § 980.09(2) by Act 84.
16
This is in contrast to an as-applied challenge, which
requires the court to determine whether a statute may be
constitutionally applied to the challenger under the facts of
the particular case. State v. Hamdan, 2003 WI 113, ¶43, 264
Wis. 2d 433, 665 N.W.2d 785.
13
Nos. 2015AP330 & 2015AP1311
¶23 In order to fully appreciate the changes made to Wis.
Stat. § 980.09(2) by Act 84, we first set forth the statutory
criteria for a discharge trial as they existed prior to the
changes made to them by Act 84. Prior to those changes, the
relevant portion of § 980.09 stated:
The court shall deny the [discharge] petition under
this section without a hearing unless the petition
alleges facts from which the court or jury may
conclude the person's condition has changed since the
date of his or her initial commitment order so that
the person does not meet the criteria for commitment
as a sexually violent person.
(2) The court . . . may hold a hearing to determine if
it contains facts from which the court or jury may
conclude that the person does not meet the criteria
for commitment as a sexually violent person. In
determining under this subsection whether facts exist
that might warrant such a conclusion, the court shall
consider any current or past reports filed under s.
980.07, relevant facts in the petition and in the
state’s written response, arguments of counsel, and
any supporting documentation provided by the person or
the state.
Wis. Stat. § 980.09(1)-(2) (2005-06) (emphasis added).17 We
construed this as creating a two-part review process. Arends,
325 Wis. 2d 1, ¶3.
¶24 Wisconsin Stat. § 980.09(1) (2005-06) first required a
paper review to determine whether the petition presented facts
such that the trier of fact "may conclude" that the person no
17
Even though Wis. Stat. § 980.09 (2005-06) does not
contain any subsection (1), we will refer to the paragraph
preceding subsection (2) as subsection (1), as we did in Arends.
State v. Arends, 2010 WI 46, ¶23 n.16, 325 Wis. 2d 1, 784
N.W.2d 513.
14
Nos. 2015AP330 & 2015AP1311
longer fit the criteria for commitment, Arends, 325 Wis. 2d 1,
¶27, analogous to a motion to dismiss for failure to state a
claim pursuant to Wis. Stat. § 802.06(2)(a)(6), id., ¶29.
¶25 Second, Wis. Stat. § 980.09(2) (2005-06) required
circuit courts to determine whether the record contained facts
that could allow a trier of fact to find that the petitioner was
no longer a sexually violent person. Arends, 325 Wis. 2d 1,
¶38. Circuit courts were not to weigh any evidence, but merely
review the record for any facts in support of discharge. Id.,
¶40. We viewed this level of review as analogous to a motion to
dismiss at the close of evidence pursuant to Wis. Stat.
§ 805.14(4). Id., ¶42.
¶26 The legislature amended Wis. Stat. § 980.09 in 2013.
2013 Wis. Act 84. The current version states:
(1) The court shall deny the [discharge] petition
under this section without a hearing unless the
petition alleges facts from which the court or jury
would likely conclude the person's condition has
changed since the most recent order denying a petition
for discharge after a hearing on the merits, or since
the date of his or her initial commitment order if the
person has never received a hearing on the merits of a
discharge petition, so that the person no longer meets
the criteria for commitment as a sexually violent
person.
. . .
(2) In reviewing the petition, the court may hold a
hearing to determine if the person's condition has
sufficiently changed such that a court or jury would
likely conclude the person no longer meets the
criteria for commitment as a sexually violent person.
In determining under this subsection whether the
person's condition has sufficiently changed such that
a court or jury would likely conclude that the person
15
Nos. 2015AP330 & 2015AP1311
no longer meets the criteria for commitment, the court
may consider the record, including evidence introduced
at the initial commitment trial or the most recent
trial on a petition for discharge, any current or past
reports filed under s. 980.07, relevant facts in the
petition and in the state's written response,
arguments of counsel, and any supporting documentation
provided by the person or the state.
Wis. Stat. § 980.09(1), (2) (2015-16) (emphasis added).
2. Circuit courts may consider the entire record when deciding
whether the statutory criteria for a discharge trial have been
met.
¶27 Hager and Carter argue that circuit courts are
permitted to consider only those portions of the evidentiary
record favorable to discharge when considering a petition for
discharge from commitment filed pursuant to Wis. Stat. § 980.09.
We disagree. The language of § 980.09(2) permits circuit courts
to consider the entire record——not just the facts favorable to
the petitioner——when determining whether the statutory criteria
for a discharge trial have been met. The legislature set forth
a broad scope of materials circuit courts may consider:
In determining . . . whether the person's condition
has sufficiently changed such that a court or jury
would likely conclude that the person no longer meets
the criteria for commitment, the court may consider
the record, including evidence introduced at the
initial commitment trial or the most recent trial on a
petition for discharge, any current or past reports
filed under § 980.07, relevant facts in the petition
and in the state's written response, arguments of
counsel, and any supported documentation provided by
the person or the state.
Wis. Stat. § 980.09(2). The result of a plain reading of "the
court may consider the record" is that courts are free to review
everything in the record, no matter whether it is beneficial or
16
Nos. 2015AP330 & 2015AP1311
detrimental to the petitioner's cause. In order to illustrate
the breadth of materials circuit courts may consider, the
legislature included a host of examples of such materials, which
by their nature will contain facts detrimental to the
petitioner, including (1) "evidence introduced at the initial
commitment trial or the most recent trial on a petition for
discharge"; (2) "any current or past reports filed under
§ 980.07"; (3) "relevant facts . . . in the state's written
response"; (4) "arguments of counsel"; and (5) "any supporting
documentation provided by . . . the state." Id. If, as Hager
and Carter contend, circuit courts were limited to considering
the facts favorable to the petitioner, the legislature would
have had no reason to list these materials as examples of what
courts may consider during their review of the discharge
petition. Accordingly, we reject Hager and Carter's proposed
interpretation because we conclude that it would impermissibly
render this language surplusage. Kalal, 271 Wis. 2d 633, ¶46.
3. We conclude that circuit courts may not weigh the evidence
in determining whether the statutory criteria for a discharge
trial have been met.
¶28 Hager and Carter argue that circuit courts may not
weigh the evidence in favor of a discharge petition against the
evidence opposed to the petition when determining whether the
17
Nos. 2015AP330 & 2015AP1311
committed person has met his burden of production. We agree.18
The court of appeals correctly held that Act 84 does not permit,
much less require, circuit courts to weigh the evidence when
they consider whether the statutory criteria for a discharge
trial have been met. As we held in Arends, if the legislature
wanted circuit courts to weigh evidence, it could use
appropriate terms of art such as "probable cause" or
"preponderance of the evidence" to so indicate. Arends, 325
Wis. 2d 1, ¶37. It did not use such terms in previous
iterations of Wis. Stat. § 980.09(2), and it did not elect to do
so in Act 84, either.
¶29 The legislature did not provide a definition for what
it meant when it directed circuit courts to "consider" the
record. Such being the case, we may ascertain the term's plain
and ordinary meaning through sources such as dictionaries.
Kalal, 271 Wis. 2d 633, ¶¶45, 53. "Consider" has many
dictionary definitions, but all coalesce around the concept of
careful or attentive examination. See, e.g., Black's Law
18
We note that in its briefs to us, the State withdrew its
argument that Act 84 requires circuit courts to weigh the
evidence, and now concedes that Wis. Stat. § 980.09(2) does not
allow circuit courts to weigh the evidence. We choose to
address this issue because to do so is helpful to our analysis
of the proper application of § 980.09(2). See State v. Hunt,
2014 WI 102, ¶42 n.11, 360 Wis. 2d 576, 851 N.W.2d 434 ("we are
not bound by a party's concession of law").
18
Nos. 2015AP330 & 2015AP1311
Dictionary 306 (6th ed. 1990)19 ("To fix the mind on, with a view
to careful examination; to examine"); The New Century Dictionary
310 (1952) ("To view attentively, or scrutinize; also, to
contemplate mentally").
¶30 This leads us to the conclusion that when they review
petitions for discharge, courts are to carefully examine, but
not weigh, those portions of the record they deem helpful to
their consideration of the petition, including facts both
favorable as well as unfavorable to the petitioner. That is,
circuit courts cannot "accept one version of facts, [and] reject
another." State v. Stietz, 2017 WI 58, ¶18, 375 Wis. 2d 572,
895 N.W.2d 796 (quoting State v. Mendoza, 80 Wis. 2d 122, 152,
258 N.W.2d 260 (1977)). However, as we recognized in Arends,
courts need not "take every document a party submits at face
value" but should scrutinize the submissions to ensure they
contain facts "upon which a trier of fact could reasonably
rely." Arends, 325 Wis. 2d 1, ¶39 (emphasis added).
¶31 We note that by holding that the plain language of
Wis. Stat. § 980.09(2) does not allow circuit courts to weigh
the evidence, we not only correctly apply the plain meaning of
the statute, we also avoid constitutional conflict. This is so
because the effect of allowing circuit courts to weigh the
19
More recent editions of Black's Law Dictionary do not
contain a definition for "consider." See Black's Law Dictionary
370 (10th ed. 2014); Black's Law Dictionary 347 (9th ed. 2009);
Black's Law Dictionary 324 (8th ed. 2004); Black's Law
Dictionary 300 (7th ed. 1999).
19
Nos. 2015AP330 & 2015AP1311
evidence would be to impermissibly shift the burden of
persuasion to the committed person to prove he is no longer a
sexually violent person. See Arends, 325 Wis. 2d 1, ¶¶40-41; cf
State v. West, 2011 WI 83, ¶81, 336 Wis. 2d 578, 800 N.W.2d 929
(construing supervised release statute to place burden of
persuasion on the committed person because the statute requires
circuit courts to weigh evidence and make certain factual
findings to grant supervised release). Shifting the burden of
persuasion for discharge to the committed person is
impermissible because to do so would violate the committed
person's right to due process. See infra, ¶¶41-48. While
avoidance of constitutional conflict does not drive our reading
of the statute, where we can reasonably adopt a saving
construction of a statute to avoid a constitutional conflict, we
do so. Milwaukee Branch of NAACP v. Walker, 2014 WI 98, ¶¶63-
64, 357 Wis. 2d 469, 851 N.W.2d 262 (citing McConnell v. Fed.
Election Comm'n, 540 U.S. 93, 180 (2003), and Semtek Int'l Inc.
v. Lockheed Martin Corp., 531 U.S. 497, 503 (2001)). Therefore,
our construction of § 980.09(2) to preclude circuit courts from
weighing the evidence is commanded by both the plain language of
the statute and the constitution.
4. Applying Wis. Stat. § 980.09(2)
a. Application of Wis. Stat. § 980.09(2) to Hager
¶32 Both the court of appeals and the circuit court
applied an incorrect interpretation of Wis. Stat. § 980.09(2) to
Hager's petition. The court of appeals erred in concluding that
20
Nos. 2015AP330 & 2015AP1311
courts may consider only the evidence in the record favorable to
the petitioner. The circuit court erred when it "weigh[ed]
[the] reports." Though we could independently consider the
record to determine whether a factfinder "would likely conclude"
that Hager no longer meets the criteria for commitment, we
determine that the better course as to Hager is to remand this
matter to the circuit court "so that it may have an opportunity
to conduct a review under § 980.09(2) following the procedures
and applying the standards we announce today." Arends, 325
Wis. 2d 1, ¶48.
b. Application of Wis. Stat. § 980.09(2) to Carter
¶33 In Carter's case, we see no need for remand, as the
circuit court properly applied Wis. Stat. § 980.09(2) to
Carter's discharge petition. Our consideration of the record
satisfies us that the circuit court carefully examined, but did
not weigh, those portions of the record it deemed helpful to its
consideration of the petition, including facts both favorable as
well as unfavorable to the petitioner.
¶34 First, it considered "the most recent reports, and
generally, the file as well." Next, it did not weigh the
evidence. The circuit court did not "accept one version of
facts, [and] reject another." Stietz, 375 Wis. 2d 572, ¶18.
Rather, it concluded that the lack of supporting analysis for
Dr. Lytton's conclusions meant that a factfinder could not
"reasonably rely" on the report in reaching its conclusion.
Arends, 325 Wis. 2d 1, ¶39.
21
Nos. 2015AP330 & 2015AP1311
B. Wisconsin Stat. § 980.09(2) Does Not Violate the Right to
Due Process of Law.
¶35 Carter argues that Wis. Stat. § 980.09(2) violates the
right to due process of law as guaranteed by the Fourteenth
Amendment to the United States Constitution20 and Article I,
Section 1 of the Wisconsin Constitution.21 He argues that "Act
84 pushes [Chapter 980] . . . down the slippery slope of
unconstitutional preventative detention and violates due
process" by shifting the burden of persuasion to the petitioner
to prove he is no longer a sexually violent person. In essence,
Carter argues, Act 84 makes "discharge without approval from the
State practically impossible," unless we adopt the court of
appeals' construction in Hager.
¶36 The State argues that rational basis scrutiny applies
because the procedures for obtaining a discharge trial do not
"implicate[] a fundamental right or discriminate[] against a
protected class." Carter argues that "[a] strict scrutiny
20
The Fourteenth Amendment to the United States
constitution states, in relevant part: "[n]o State
shall . . . deprive any person of life, liberty, or property,
without due process of law . . . ." U.S. Const. amend. XIV,
§ 1.
21
Article I, Section 1 of the Wisconsin Constitution
states: "All people are born equally free and independent, and
have certain inherent rights; among these are life, liberty and
the pursuit of happiness; to secure these rights, governments
are instituted, deriving their just powers from the consent of
the governed." The protections afforded by Article I, Section 1
of the Wisconsin Constitution are the "substantial equivalent"
to those afforded by the Fourteenth Amendment to the United
States Constitution. Neiman v. Am. Nat'l Prop. & Cas. Co.,
2000 WI 83, ¶8, 236 Wis. 2d 411, 613 N.W.2d 160.
22
Nos. 2015AP330 & 2015AP1311
analysis is appropriate in Chapter 980 cases because of the
liberty interest involved."
¶37 We agree with the State and conclude that rational
basis review applies. Involuntary commitments in general
implicate the fundamental right to be free from bodily
restraint. Alger, 360 Wis. 2d 193, ¶44. However, the
procedures used in commitment proceedings do not implicate a
fundamental right. See id. (citing Milwaukee Cty. v. Mary F.-
R., 2013 WI 92, ¶38, 351 Wis. 2d 273, 839 N.W.2d 581).
¶38 For example, in Alger, the committed person alleged
that he was entitled to application of the amended version of
Wis. Stat. § 907.02, which regulates the admissibility of expert
testimony, in his discharge trial. Id., ¶2. We determined that
he was not entitled to application of the amended statute. Id.,
¶38. The committed person further alleged that his right to due
process required applying the amended version of the statute,
and that it implicated a fundamental right triggering strict
scrutiny. Id., ¶40. We held that "[a]lthough Chapter 980
involuntary commitment implicates the right to freedom from
bodily restraint, the availability of the [amended version of
§ 907.02] in a Chapter 980 proceeding does not implicate that
right so as to trigger strict scrutiny." Id., ¶44.
Consequently, "[t]here is no right to a particular evidentiary
[standard] in a Chapter 980 discharge petition trial." Id.
¶39 Similarly, the burden of production required to obtain
a discharge trial is a procedural matter that does not implicate
the committed person's fundamental right to freedom from bodily
23
Nos. 2015AP330 & 2015AP1311
restraint. Consequently, we apply rational basis review as we
did in Alger. Under rational basis review, legislation is
constitutional "unless it is 'patently arbitrary' and bears no
rational relationship to a legitimate government interest."
Id., ¶39 (quoting State v. Smith, 2010 WI 16, ¶12, 323
Wis. 2d 377, 780 N.W.2d 90).
¶40 The right to due process includes the right to both
substantive due process as well as procedural due process.
Substantive due process protects individuals from government
action that "abridges the Constitution's fundamental constraints
upon the content of what government may do to people under the
guise of law" even if the action "adher[es] to the forms of
law." State v. Laxton, 2002 WI 82, ¶10 n.8, 254 Wis. 2d 185,
647 N.W.2d 784 (quoting Reginald D. v. State, 193 Wis. 2d 299,
307, 533 N.W.2d 181 (1995)). Procedural due process requires
that government action "be implemented in a fair manner." Id.
(citing United States v. Salerno, 481 U.S. 739 (1987)).
1. Act 84 does not violate the right to substantive due
process.
¶41 The right to substantive due process requires that the
State carry the burden of persuasion at the initial commitment
trial and at every subsequent discharge trial. Addington v.
Texas, 441 U.S. 418, 431-32 (1979); Foucha v. Louisiana, 504
U.S. 71, 81-82 (1992). The right to substantive due process is
not violated, however, if committed persons carry a burden of
production to ensure that a discharge trial would be worthwhile.
State v. Post, 197 Wis. 2d 279, 327, 541 N.W.2d 115 (1995).
24
Nos. 2015AP330 & 2015AP1311
¶42 We have recognized that Chapter 980 "passes
constitutional muster because the physical confinement of the
individual is linked to the dangerousness of the committed
person." State v. Rachel, 2002 WI 81, ¶66, 254 Wis. 2d 215, 657
N.W.2d 762; see also Combs, 295 Wis. 2d 457, ¶28 (citing Post,
197 Wis. 2d at 307 n.14, 313-16, 325-27) (internal quotes
omitted) ("[P]eriodic re-examination and . . . hearing[s] for
discharge . . . are among the protections that the supreme court
has considered significant in concluding that Wis. Stat. ch. 980
does not violate . . . the right to due process."). An
important consideration in this regard is the availability of
various "methods . . . for regularly determining the
dangerousness of the person and reducing or removing the
physical restrictions when the person is less or no longer
dangerous." Rachel, 254 Wis. 2d 215, ¶66.
¶43 The fundamental structure of Wis. Stat. § 980.09——
which we have consistently held comports with due process——was
not changed by Act 84. See, e.g., Post, 197 Wis. 2d at 327.
Under both the Act 84 standard and the prior standard, the
committed person receives a discharge trial only upon satisfying
a burden of production; if the burden of production is met, a
discharge trial is conducted where the State must prove by clear
and convincing evidence that the person continues to meet the
three criteria for commitment. Compare Wis. Stat. § 980.09
(2005-06) with Wis. Stat. § 980.09 (2015-16). Because we
conclude that § 980.09(2) does not permit circuit courts to
weigh the evidence, Act 84 has not shifted the burden of
25
Nos. 2015AP330 & 2015AP1311
persuasion to the committed person, as the legislatively-
imposed burden on the committed person is not to convince the
factfinder that he is no longer sexually dangerous. Rather, his
burden is to demonstrate to the circuit court that he is likely
to succeed at a discharge trial. "The principles of due process
are not violated if a burden of production——as opposed to a
burden of persuasion——is placed on the" committed person to
present "some" evidence that he will prevail at a discharge
trial. State v. Shulz, 102 Wis. 2d 423, 430, 307 N.W.2d 151
(1981) (applying doctrine in context of affirmative defenses in
criminal proceedings).
¶44 The changes made by Act 84 are rationally related to
at least two legitimate government interests: (1) protection of
the public, State ex rel. Marberry v. Macht, 2003 WI 79, ¶30,
262 Wis. 2d 720, 665 N.W.2d 155; and (2) conserving public
resources, see Arends, 325 Wis. 2d 1, ¶22. Act 84 is reasonably
related to protecting the public because it ensures a discharge
trial only when a committed person presents sufficient facts to
show that his condition has changed; as we identified in
Marberry, "[r]elease of a [person committed pursuant to Chapter]
980 . . . whose dangerousness or mental disorder has not abated
[does not] serve[] to protect the public . . . ." Marberry, 262
Wis. 2d 720, ¶30 (quoting State ex rel. Marberry v. Macht, 2002
WI App 133, ¶39, 254 Wis. 2d 690, 548 N.W.2d 522 (Brown, J.,
concurring in part, dissenting in part)). Further, Act 84 is
26
Nos. 2015AP330 & 2015AP1311
reasonably related to conserving public resources because it
ensures that a discharge trial occurs only when the committed
person demonstrates a likelihood of success in a discharge
trial.
2. Act 84 does not violate the right to procedural due process.
¶45 Procedural due process claims are analyzed by
balancing three factors:
(1) the private interest that will be affected by the
state action;
(2) the risk of an erroneous deprivation of the
private interest through the procedures utilized and
the probable value of added or substitute procedural
safeguards; and
(3) the state's interest, which includes the function
involved and the fiscal and administrative burdens
that the added or substitute procedural requirements
would impose.
State v. Kaminski, 2009 WI App 175, ¶13, 322 Wis. 2d 653, 777
N.W.2d 654 (quoting Patterson v. Bd. of Regents, 119
Wis. 2d 570, 580-81, 350 N.W.2d 612 (1984)).
¶46 No party disputes that the private interest of liberty
from physical restraint is a substantial interest. See id.,
("[The committed person] has correctly identified the strong
liberty interest implicated by Wis. Stat. ch. 980 . . . .").
¶47 The risk of erroneous deprivation of liberty is slight
because the standard ensures that a committed person receives a
discharge trial when new facts are present that provide a
likelihood of success at a discharge trial. The only way to
27
Nos. 2015AP330 & 2015AP1311
eliminate all risk of erroneous deprivation is to grant
discharge trials on request no matter the facts alleged;
however, this would infringe the State's interests in protecting
the public from sexually violent offenders and preserving
resources. Marberry, 262 Wis. 2d 720, ¶30 (recognizing that
protecting the public from sexually violent persons is a
legitimate government interest); State v. Velez, 224 Wis. 2d 1,
12, 589 N.W.2d 9 (1999) (recognizing that "conserve[ing] scarce
judicial resources" is a legitimate government interest). Act
84 strikes a reasonable balance between ensuring committed
persons are released when they are no longer sexually dangerous,
protecting the public, and preserving scarce judicial resources
by ensuring discharge trials occur only when the committed
person is likely to succeed.
¶48 In light of the foregoing, we conclude that the
requirements of an initial burden of production imposed upon
Carter by § 980.09(2) do not violate the right to due process as
guaranteed by the Fourteenth Amendment to the United States
Constitution and Article I, Section 1 of the Wisconsin
Constitution.
C. Carter's Counsel did not Perform Deficiently by Failing to
Contest Application of Act 84 to Carter.
¶49 Carter alleges that his counsel was ineffective
because he did not challenge the application of Act 84 to
Carter's discharge petition, even though the petition was filed
before Act 84's effective date.
28
Nos. 2015AP330 & 2015AP1311
¶50 In order to prevail on his ineffective assistance of
counsel claim, Carter must prove that his counsel performed
deficiently and that the deficiency prejudiced him. State v.
Lombard, 2004 WI 95, ¶49, 273 Wis. 2d 538, 684 N.W.2d 103
(applying Strickland v. Washington, 466 U.S. 668, 687 (1984), to
Chapter 980 commitment). If Carter fails to prove either
deficient performance or prejudice, we need not consider the
other. Id., ¶50.
¶51 Though statutes generally apply prospectively,
procedural and remedial statutes may apply retroactively.
Trinity Petroleum, Inc. v. Scott Oil Co., 2007 WI 88, ¶40, 302
Wis. 2d 299, 735 N.W.2d 1. We determine whether a statute
applies retroactively in three steps. Id., ¶¶36-54. First, we
examine the text of the statute for an express statement
concerning retroactivity. Id., ¶36. If the statute does not
contain an express statement concerning retroactivity, we
determine whether the statute is procedural or substantive and
apply a presumption of retroactivity to procedural statutes.
Id., ¶40. If a statute is procedural, we determine whether one
of three exceptions to retroactivity overcomes the presumption:
interference with a vested right, interference with a
contractual right, or imposition of an unreasonable burden.
Id., ¶¶53-54. We conclude that Act 84 applies retroactively
because it includes within it no statements concerning its
retroactivity; the Act is procedural in nature; and none of the
three exceptions to the presumption of retroactive application
of procedural statutes are present. Accordingly, we hold that
29
Nos. 2015AP330 & 2015AP1311
Act 84 applies retroactively to Carter. Because Act 84 applies
to Carter, his counsel could not have been deficient for failing
to contest the retroactive application of Act 84 before the
circuit court.
1. Act 84 contains no language concerning retroactive
application.
¶52 We look first to the language of Act 84. Trinity
Petroleum, 302 Wis. 2d 299, ¶36. We conclude that Act 84 does
not contain any language concerning its retroactive application.
See 2013 Wis. Act 84.
2. Act 84 is procedural.
¶53 Next, we consider whether Act 84 is substantive or
procedural. Trinity Petroleum, 302 Wis. 2d 299, ¶39. If it is
procedural, the presumption of retroactivity attaches; if it is
substantive, the statute is presumed prospective. Id.
Procedural statutes "prescribe[] the method . . . used in
enforcing a right or remedy" whereas substantive statutes
"create[], define[], and regulate[] rights and obligations."
Id., ¶41 & n.25 (citing Betthauser v. Med. Protective Co., 172
Wis. 2d 141, 147-48, 493 N.W.2d 40 (1992)).
¶54 Carter concedes that Act 84 is procedural. We agree.
The substantive right at issue is the right to "an adversary
hearing at which the State must prove by clear and convincing
evidence that he [continues to be] demonstrably dangerous to the
community." Foucha, 504 U.S. at 81. The substantive right is
not to a certain burden of production to obtain the hearing
described in Foucha. Post, 197 Wis. 2d at 327. Act 84 changes
30
Nos. 2015AP330 & 2015AP1311
the method used to determine whether he is entitled to a
discharge trial, but does not change the nature of the discharge
trial itself, and so is procedural in nature.
3. None of the exceptions to retroactivity overcome the
presumption of retroactivity for procedural statutes.
a. Carter does not have a vested right to a discharge trial.
¶55 We turn next to a consideration of whether any of the
three exceptions to retroactive application of a procedural
statute overcome the presumption of retroactivity. Id., ¶53.
The first exception precludes retroactive application of a
procedural statute if such application would interfere with a
vested right. Id., ¶54. A right becomes vested when it is
"presently legally enforceable . . . not dependent on uncertain
future events." Lands' End, Inc. v. City of Dodgeville, 2016 WI
64, ¶68, 370 Wis. 2d 500, 881 N.W.2d 702.
¶56 Carter has a constitutional right to a discharge trial
"under the appropriate circumstances." State v. Richard, 2014
WI App 28, ¶17, 353 Wis. 2d 219, 844 N.W.2d 370. Indeed, this
ability to obtain a discharge trial is fundamental to Chapter
980's constitutionality. Id. However, a right cannot be vested
if contingent on some uncertain future event. Lands' End, 370
Wis. 2d 500, ¶50.
¶57 Lands' End is instructive. In that case, Lands' End
made a statutory offer of settlement for $724,000 pursuant to
31
Nos. 2015AP330 & 2015AP1311
Wis. Stat. § 807.01(4) (2009-10),22 which the defendant rejected.
Id., ¶14. Lands' End eventually recovered $724,292.68. Id.,
¶16. Lands' End was thus entitled to interest on its judgment
pursuant to § 807.01(4) because it recovered more than was
offered in the statutory offer of settlement. Id., ¶17. The
question was whether Lands' End was entitled to 12 percent
interest pursuant to Wis. Stat. § 807.01(4) (2009-2010), which
was in effect when Lands' End made its offer of settlement, or
one percent plus prime pursuant to Wis. Stat. § 807.01(4) (2013-
14), which was in effect when judgment was entered in favor of
Lands' End. See id., ¶¶17-18. We held that Lands' End was
entitled to interest at the rate of one percent plus prime
because the right to interest did not vest until a judgment
exceeding the statutory offer was entered. Id., ¶72. That is,
the right to interest on a judgment exceeding the statutory
offer is contingent upon such a judgment being entered. Id.
¶58 Similarly, Carter's right to a discharge trial was
contingent on his meeting the burden of production set forth in
Wis. Stat. § 980.09(2). We agree with the court of appeals that
satisfying the burden of production as set out in § 980.09(2)
constitutes the "appropriate circumstances" entitling a
22
Wis. Stat. § 807.01 encourages settlement in civil
actions by providing incentives for parties to make and accept
settlement offers. Subsection four, at issue in Lands' End,
Inc. v. City of Dodgeville, 2016 WI 64, 370 Wis. 2d 500, 881
N.W.2d 702, awards interest from the date of a statutory offer
of settlement if the prevailing party recovers more than was
offered. § 807.01(4).
32
Nos. 2015AP330 & 2015AP1311
petitioner to a discharge trial. Carter, 373 Wis. 2d 722, ¶18.
Thus, the right could not vest until Carter met that burden of
production, which he has not done.
b. Carter does not have a contractual right to a discharge
trial.
¶59 The second exception to retroactive application of a
procedural statute is whether it interferes with a contractual
right. Trinity Petroleum, 302 Wis. 2d 299, ¶53. No party
claims that Carter had any contractual right to a discharge
trial, and we cannot find any basis to conclude that he does.
c. Carter never articulates how retroactive application of Act
84 unreasonably burdens him.
¶60 The final exception to retroactive application of a
procedural statute applies where a party faces an unreasonable
burden if required to comply with the new statute. Id. Carter
never articulates what "burden" he believes was imposed, much
less an unreasonable one. Carter's argument on this exception
is a single sentence, stating:
Carter submits the new burden imposed on him to
warrant a discharge trial ("allegations of facts" or
"change in a person's condition" from the record as a
whole from which the court or jury would "likely"
conclude the person's condition has changed since the
most recent order denying a petition for discharge
after a hearing on the merits) would be an
unreasonable one.
Carter never articulates what about retroactive application of
Act 84 is an unreasonable burden on him. Instead, he argues
that the enactment of Act 84 itself is the unreasonable burden.
The mere application of a statute that provides additional
33
Nos. 2015AP330 & 2015AP1311
procedural hurdles to achieve a desired end is not an
unreasonable burden. See Ten Mile Invs., LLC v. Sherman, 2007
WI App 253, ¶11, 306 Wis. 2d 799, 743 N.W.2d 442.
¶61 Furthermore, whether the aggrieved party could have
complied with the new statute is an important factor in
determining whether retroactive application of a statute imposes
an unreasonable burden. Id.; Modica v. Verhulst, 195
Wis. 2d 633, 645, 536 N.W.2d 466 (Ct. App. 1995) (citing Mosing
v. Hagen, 33 Wis. 2d 636, 148 N.W.2d 92 (1967)) ("Such
application . . . did not impose an unreasonable burden on the
plaintiff since the plaintiff could have complied with the new
statute."); see also Trinity Petroleum, 302 Wis. 2d 299, ¶¶85,
89, 92 (remanding for circuit court to make findings of fact and
conclusions of law on the issue of unreasonable burden after
noting that whether the aggrieved party could have complied with
the new statute was in dispute). Our review of the record
demonstrates that Carter not only could have, but did in fact
tailor his efforts to obtain a discharge trial around compliance
with Act 84. This is demonstrated by the fact that Carter's
attorney argued Carter's case with the express understanding
that Act 84 applied to Carter's case. It is because of this
express understanding, as well as the fact that Carter never
develops any argument to the contrary, that we hold compliance
with Act 84 would not have placed an unreasonable burden on
Carter. See State v. Robinson, 2014 WI 35, ¶50, 354
Wis. 2d 351, 847 N.W.2d 352 (quoted source omitted) ("Typically,
34
Nos. 2015AP330 & 2015AP1311
appellate courts do not take it upon themselves to create and
develop arguments on a party's behalf.").
¶62 Based upon the foregoing, we conclude that none of the
enumerated exceptions to retroactivity apply. Thus, the
presumption of retroactivity controls and Act 84 applies
retroactively to Carter's case. Because Carter's counsel could
not have been deficient for failing to bring a meritless motion,
Carter's ineffective assistance claim fails. State v. Allen,
2017 WI 7, ¶46, 373 Wis. 2d 98, 890 N.W.2d 245.
IV. CONCLUSION
¶63 As to Hager, we reverse the decision of the court of
appeals and remand the matter to the circuit court with
directions to apply the statute in accordance with the analysis
in this opinion to determine whether Hager is entitled to a
discharge hearing. As to Carter, we affirm the decision of the
court of appeals because the circuit court applied the statute
correctly in rejecting Carter's request for a discharge hearing.
¶64 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 to their consideration of the petition, which
may include facts both favorable as well as unfavorable to the
petitioner.
¶65 We further hold that Wis. Stat. § 980.09(2) does not
violate the constitutional right to due process of law as
35
Nos. 2015AP330 & 2015AP1311
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.
By the Court.—The decision of the court of appeals in State
v. Hager is reversed and cause remanded to the circuit court
with directions; the decision of the court of appeals in State
v. Carter is affirmed.
36
No. 2015AP330 & 2015AP1311.dk
¶66 DANIEL KELLY, J. (concurring). I join the court's
opinion, except to the extent that it holds the court may not
"weigh" evidence when it reviews a petition for discharge from a
chapter 980 commitment. Honoring that proscription, I think, is
incompatible with the prescription that "circuit courts are to
carefully examine . . . those portions of the record they deem
helpful to their consideration of the petition, which may
include facts both favorable as well as unfavorable to the
petitioner." Majority op., ¶4. Contrary to the court's
conclusion, I believe the 2013 amendments to Wis. Stat.
§ 980.09(2) not only allow weighing, they require it.
¶67 The parts of the statute in which we are immediately
interested direct how courts are to review discharge petitions
in two important ways. The first addresses the information the
court is to examine. The second describes how the court is to
analyze that information. This case is here because, in 2013,
the legislature amended how the court is to address each of
these topics.
¶68 As for the first directive, Wis. Stat. § 980.09(2) now
says the court may "consider" a large universe of information:
[T]he court may consider the record, including
evidence introduced at the initial commitment trial or
the most recent trial on a petition for discharge, any
current or past reports filed under s. 980.07,
relevant facts in the petition and in the state's
written response, arguments of counsel, and any
supporting documentation provided by the person or the
state.
1
No. 2015AP330 & 2015AP1311.dk
Wis. Stat. § 980.02(2).1 The court concluded that "[t]he result
of a plain reading of 'the court may consider the record' is
that courts are free to review everything in the record, no
matter whether it is beneficial or detrimental to the
petitioner's cause." Majority op., ¶27. I agree that the
purpose of the "may consider" directive is to identify the
information the court is supposed to analyze.
¶69 The statute's second directive instructs the court to
analyze the information described by the first directive. The
purpose of the analysis is to determine what the jury would
likely conclude from that information: "If the court determines
that the record contains facts from which a court or jury would
likely conclude the person no longer meets the criteria for
commitment, the court shall set the matter for trial." Wis.
Stat. § 980.09(2) (emphasis added).2 In the prior version of
this statute, the standard was different. It used to be that
the court would determine whether the petitioner had identified
"facts from which the court or jury may conclude that the person
does not meet the criteria for commitment as a sexually violent
person." Wis. Stat. § 980.09(3) (2011-12) (emphasis added). So
our task here was to explain how a reviewing court is supposed
1
Prior to 2013, this provision directed the court to
consider only a subset of the record. See Wis. Stat. § 980.09(2)
(2011-12).
2
Prior to the 2013 amendments, the court was to determine
only whether the petitioner had identified "facts from which the
court or jury may conclude that the person does not meet the
criteria for commitment as a sexually violent person." Wis.
Stat. § 980.09(3) (2011-12).
2
No. 2015AP330 & 2015AP1311.dk
to apply the new "would likely conclude" standard to the facts
identified by the first directive.
¶70 Except we didn't analyze this change at all. Instead,
we went back to the first directive to consider what it means to
"consider" the record. We concluded it means "examine." I
think that's a perfectly suitable synonym for "consider," but
neither term addresses itself to the purpose of that scrutiny.
To what end is one to examine the evidence? More to the point,
what is one to do when the examination reveals that some of the
evidence favors the petitioner and some of it does not?
Certainly, the instruction that courts are to examine "facts
both favorable as well as unfavorable to the petitioner" must
mean more than acknowledging that one part of the record is in
competition with another.
¶71 The statute says the purpose of our examination is to
determine what a fact-finder would likely conclude from the
evidence of record. The court says nothing about how to conduct
this analysis except that we are not to "weigh" the evidence.
Majority op., ¶28 ("Hager and Carter argue that circuit courts
may not weigh the evidence in favor of a discharge petition
against the evidence opposed to the petition when determining
whether the committed person has met his burden of production.
We agree."). Part of the reason the court reached this
conclusion is it saw no legislative authorization to do so:
As we held in Arends, if the legislature wanted
circuit courts to weigh evidence, it could use
appropriate terms of art such as "probable cause" or
"preponderance of the evidence" to so indicate. It
did not use such terms in previous iterations of Wis.
3
No. 2015AP330 & 2015AP1311.dk
Stat. § 980.09(2), and it did not elect to do so in
Act 84, either.
Id., ¶28 (internal citation omitted).
¶72 I disagree——the legislature did use such a term. In
fact, that's the whole point of the newly-formulated second
directive. We are supposed to determine whether, based on the
evidence of record (both pro and con, according to the court),
the fact-finder "would likely conclude" the petitioner no longer
meets the criteria for commitment. "Likely" means "probable,"
one of the very terms the court said indicates a legislative
direction to weigh evidence. Webster's Third New International
Dictionary 1310 (1986) (defining "likely" in first definition as
"of such a nature or so circumstanced as to make something
probable").
¶73 The other reason the court believes the evidence may
not be weighed is a legitimate concern for the petitioner's due
process rights. The court says that "allowing circuit courts to
weigh the evidence . . . shift[s] the burden of persuasion to
the committed person to prove he is no longer a sexually violent
person." Majority op., ¶31 (citation omitted). And "[s]hifting
the burden of persuasion for discharge to the committed person
is impermissible because to do so would violate the committed
person's right to due process." Id. (citation omitted).
¶74 But the simple act of weighing, by itself, does not
require the committed person to prove he is no longer sexually
violent. "Weighing" refers to the process of resolving various
elements of evidence that exist in tension. Whether the
petitioner must prove he is no longer dangerous is not a
4
No. 2015AP330 & 2015AP1311.dk
function of weighing, but of the standard the weighing must
satisfy. If the statute required the court to find that the
"weighed" evidence satisfied a "preponderance of the evidence"
standard, it would be fair to say the burden had shifted to the
petitioner to prove he is no longer dangerous.
¶75 But Wis. Stat. § 980.09(2) does not contain that
standard. It says, instead, that the court must determine
whether the fact-finder would merely be likely to find the
petitioner no longer meets the criteria for commitment. As
discussed above, "likely" means "probable," and we have a fair
amount of experience in evaluating whether a probability
warrants a new trial. In the "ineffective assistance of
counsel" context, Strickland v. Washington requires a new trial
when counsel's performance is both deficient and prejudicial.
See 466 U.S. 668, 687 (1984). We measure the "prejudice" prong
of the test by asking whether it is "reasonably probable" that
the result of the trial would have been different absent
counsel's deficient performance. See id. at 694. We apply that
test even when the claimed deficiency is the failure to
introduce helpful evidence or object to harmful evidence. See
e.g., State v. Jenkins, 2014 WI 59, ¶¶59-61, 355 Wis. 2d 180,
848 N.W.2d 786 (holding "that the failure to call Jones as a
witness at trial to give testimony contradictory to that of the
State's eyewitness had a reasonable probability of affecting the
result of the case" and was, therefore, prejudicial to the
defendant); State v. Krueger, 2008 WI App 162, ¶¶17-18, 314
Wis. 2d 605, 762 N.W.2d 114 (holding that counsel's deficient
5
No. 2015AP330 & 2015AP1311.dk
performance in failing to object to testimony of a State's
witness prejudiced defendant because there was a "reasonable
probability that, but for trial counsel's error, the jury would
have had a reasonable doubt respecting guilt"); State v. Jeannie
M.P., 2005 WI App 183, ¶27, 286 Wis. 2d 721, 703 N.W.2d 694
(holding "that trial counsel's failure to investigate and
present at trial facts that would cast doubt on the credibility
of the State's principal witnesses" produced a "reasonable
probability [that] the jury would have acquitted the defendant,"
thus constituting prejudice).
¶76 Conducting the prejudice analysis in each of these
cases required the court to evaluate the effect of the disputed
evidence on the result of the trial. That is to say, the court
had to weigh the evidence to determine whether its inclusion or
exclusion would have been likely to bring about a different
result. We have never said that the reasonable probability
standard requires the defendant to prove the result would be
different. He must only demonstrate there is a reasonable
probability it would be different. There is no reason we cannot
conduct the same analysis here, so long as the standard against
which we measure the weighed evidence does not exceed the
legislatively prescribed "likelihood."
¶77 Therefore, because the legislature amended Wis. Stat.
§ 980.09(2) to require the court to determine whether the
evidence of record demonstrates a likelihood (that is, a
reasonable probability) that a fact-finder would find the
petitioner no longer meets the criteria for commitment, I
6
No. 2015AP330 & 2015AP1311.dk
conclude that the court is to weigh the evidence of record. And
because demonstrating a reasonable probability does not shift
the burden of persuasion to the petitioner, I conclude there is
no due process violation. For these reasons, I join the court's
opinion except with respect to its conclusion that § 980.09(2)
prevents the court from weighing conflicting evidence.
¶78 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this concurrence.
7
No. 2015AP330 & 2015AP1311.ssa
¶79 SHIRLEY S. ABRAHAMSON, J. (dissenting). The
majority addresses a myriad of issues raised by amendments to
Chapter 980 of the statutes. Although I largely disagree with
the majority's views of the constitutionality and legality of
the amendments, I confine my dissent to the majority's
instructions about implementing §§ 21 and 23 of the 2013 Wis.
Act 84 amendments to Wis. Stat. § 980.09.
¶80 The majority delivers a useless, unworkable, and
potentially unconstitutional standard for §§ 21 and 23 of the
2013 Wis. Act 84 amendments to Wis. Stat. § 980.09 that is not
helpful to the bench, bar, or litigants.
¶81 The majority concludes that the 2013 amendments to
Wis. Stat. § 980.09 require that a circuit court "carefully
examine, but not weigh" the evidence in determining whether a
jury "would likely conclude" that a petitioner's condition has
changed such that the petitioner no longer meets the statutory
criteria for commitment and should get a hearing. Majority op.,
¶4 (emphasis added). The majority describes the amendments as
simply increasing the petitioner's burden of production——instead
of being required to produce a quantum of evidence such that a
reasonable factfinder could find in the petitioner's favor, the
petitioner must now produce a larger quantum of evidence such
that a reasonable factfinder would likely find in the
petitioner's favor.
¶82 How can a court determine what a jury "would likely
conclude" without weighing the evidence favorable to discharge
1
No. 2015AP330 & 2015AP1311.ssa
against the evidence unfavorable to discharge? Moreover, how is
this inquiry meaningfully different from a burden of persuasion
by a preponderance of evidence? Convincing a factfinder that a
proposition is more likely true than not true is literally what
it means to carry one's burden of persuasion by the
preponderance of the evidence. In the context of Chapter 980,
the proposition that a petitioner must convince a judge is more
likely true than not true is that a jury will find in
petitioner's favor at a discharge hearing.
¶83 The majority's interpretation of the amended statute
creates additional problems. If determining whether a jury
"would likely conclude" in favor of petitioner is simply an
increase in the petitioner's burden of production, could the
legislature raise the burden of production further? For
example, what principle would prevent the legislature from
conditioning a Chapter 980 discharge hearing on a petitioner's
burden to first produce evidence such that it is beyond a
reasonable doubt that a jury will conclude in favor of
petitioner? Under the majority's interpretation, is it possible
to avoid weighing the evidence under a more stringent burden of
production? At what point under the majority's interpretation
will a burden of production become so onerous as to necessitate
the weighing of evidence and constitute a burden of persuasion?
¶84 Rather than face reality and impart helpful direction
to the bench and bar (or simply acknowledge that the amended
statute requires the weighing of evidence and is therefore
constitutionally suspect), the majority merely directs judges to
2
No. 2015AP330 & 2015AP1311.ssa
"consider" or "carefully examine" (but not weigh) the
allegations in the filings and the evidence in the record.
Majority op., ¶¶4, 29-30, 64.
¶85 In order to comply with the majority's useless
direction to carefully examine but not weigh the evidence, the
circuit court will simply use the words "consider" or "carefully
examine" rather than the word "weigh" when applying the amended
statute. Such a subterfuge is not helpful in understanding or
applying the statute. If the amended statute truly does not
necessitate the weighing of evidence, then the majority should
better explain how a judge is to accomplish what Wis. Stat.
§ 980.09 now requires without weighing evidence.
¶86 For the reasons set forth, I dissent.
¶87 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
3
No. 2015AP330 & 2015AP1311.ssa
1