¶ 56. (dissenting). I respectfully dissent from the majority opinion's analysis of the statute.
¶ 57. Wisconsin Stat. § 980.09(1) reads:
A committed person may petition the committing court for discharge at any time. The court shall deny the 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. (Emphasis added.)
¶ 58. The import of this subsection is that the petition must allege facts from which the court or a jury may conclude the person's condition has changed since his or her commitment so that the person does not meet the criteria for commitment any more. If the petition fails to allege such facts, the petition must be dismissed because it is deficient on its face. The flip side of this proposition is that a facially sufficient petition should normally lead to a discharge hearing.
¶ 59. Wisconsin Stat. § 980.09(2) reads:
*26[1] The court shall review the petition within 30 days and 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. [2] 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. [3] If the court determines that the petition does not contain facts from which a court or jury may conclude that the person does not meet the criteria for commitment, the court shall deny the petition. [4] If the court determines that facts exist from which a court or jury could conclude the person does not meet criteria for commitment the court shall set the matter for hearing.
¶ 60. Subsection (2) provides that the court shall review the petition within 30 days. The court may be uncertain about the sufficiency of the petition. In addition, the state may challenge the sufficiency of the petition on the facts alleged or on the law. In either event, the court may hold a hearing to determine whether the petition 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." Wis. Stat. § 980.09(2). "If the court determines that facts exist from which a court or jury could conclude the person does not meet criteria for commitment the court shall set the matter for hearing." Id. (emphasis added).
¶ 61. Subsection (2) appears to be somewhat ambiguous. The first sentence reiterates that the court shall review the petition and may hold a hearing to determine if it [the petition] contains appropriate "facts." The third sentence of the subsection also refers to facts in the petition.
*27¶ 62. In contrast, the second sentence asks "whether facts exist" and requires the court to examine "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 The fourth sentence does not specifically refer to the petition; it refers to "facts that exist." In light of the second sentence, I read the phrase "facts that exist" to mean facts that come out in the court's consideration of submissions, testimony, and argument subsequent to the petition, irrespective of whether those "facts" were alleged in the petition.
¶ 63. The optional hearing to evaluate the petition may strengthen the petitioner's case for a discharge hearing. The consideration of items enumerated in the second sentence of (2), including argument, also may support the petition.
¶ 64. The real question here is whether a facially sufficient petition can be successfully rebutted in the optional hearing or in the court's consideration of other matters, including argument.
¶ 65. If testimony or argument at the optional hearing or the consideration of enumerated items out*28side the petition persuades the court to disregard a facially sufficient petition, the petitioner is effectively denied his statutory right to a jury trial.
¶ 66. Thus, in my view, a facially sufficient petition requires a discharge hearing under Wis. Stat. § 980.09(3) unless the state shows that the "facts" alleged in the petition cannot be substantiated or the allegations in the petition are deficient as a matter of law.
¶ 67. In this case, Arends' petition was facially sufficient because of the favorable report of Dr. Sheila Fields attached to the petition. I see nothing in the record that negates or invalidates the facial sufficiency of the "fact" of Dr. Shields' favorable evaluation. Thus, I perceive no legal basis for remanding the case for reconsideration of the sufficiency of the petition under Wis. Stat. § 980.09(2). Arends is entitled to a discharge hearing.2
¶ 68. If my reading of the statute is incorrect, the legislature should clarify Wis. Stat. § 980.09(2) so that its intent is clear.
¶ 69. For the foregoing reasons, I respectfully dissent.
The second sentence also requires the court to consider "any current or past reports filed under s. 980.07." Wisconsin Stat. § 980.07 requires that a committed person be reexamined "at least once each 12 months to determine whether the person has made sufficient progress for the court to consider whether the person should he placed on supervised release or discharged." Wis. Stat. § 980.07(1). At the time of reexamination, "the person ... may retain or have the court appoint an examiner as provided under s. 980.031(3)." If the person is unable to reference in his petition a favorable report from the state's examiner or his own examiner, the petition is unlikely to allege "facts" from which a jury could conclude that the person no longer meets the criteria for commitment.
At this point, the court would be bound to consider — at a reconsideration hearing under Wis. Stat. § 980.09(2) or a discharge hearing under Wis. Stat. § 980.09(3) — the most current information described in ¶ 51 of the majority opinion.