2017 WI 21
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP950
COMPLETE TITLE: In re the commitment of Thornon F. Talley:
State of Wisconsin,
Petitioner-Respondent,
v.
Thornon F. Talley,
Respondent-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
OPINION FILED: March 9, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 10, 2016
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Sarah B. O’Brien
JUSTICES:
CONCURRED: Abrahamson, J. joined by Bradley, A. W. J.,
concurring (Opinion filed);
Zieger, J. joined by Gableman, J., concurring
(Opinion filed)
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there was a brief
by David R. Karpe, Elliot M. Fink and Karpe Law Office, Madison,
and oral argument by David R. Karpe
For the petitioner-respondent the cause was argued by
Daniel J. O’Brien, assistant attorney general, with whom on the
brief was Brad D. Schimel, attorney general
2017 WI 21
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP950
(L.C. No. 2004CI01)
STATE OF WISCONSIN : IN SUPREME COURT
In re the commitment of Thornon F. Talley:
State of Wisconsin, FILED
Petitioner-Respondent,
MAR 9, 2017
v.
Diane M. Fremgen
Clerk of Supreme Court
Thornon F. Talley,
Respondent-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. In this review of a
Chapter 980 petition for discharge, we consider whether
"socializing more with peers," "join[ing] a fitness group," and
increased communication from family members are changes from
which a factfinder could determine Thornon F. Talley is no
longer a sexually violent person. We conclude that these facts,
which resulted in no change to the evaluating psychologist's
ultimate conclusion or overall risk assessment, are not enough
to satisfy the statutory threshold for a discharge hearing set
No. 2013AP950
forth in Wis. Stat. § 980.09(2) (2011-12).1 We affirm the
unpublished court of appeals decision,2 which affirmed the
circuit court order3 denying Talley's petition for a discharge
hearing.
I. BACKGROUND
A. Initial Commitment and Early Discharge Petitions
¶2 Talley has been adjudicated delinquent or convicted of
sexually violent offenses three times, resulting in his
incarceration. As Talley's release date approached on his last
offense, the State filed a petition for Chapter 980 commitment.
Talley did not contest the petition, and in 2005, the circuit
court ordered Talley committed "to the Department of Health and
Family Services for control, care and treatment until such time
as [he] is no longer a sexually violent person."
¶3 Since being committed, Talley received annual
reexaminations under Wis. Stat. § 980.07, and he filed several
petitions seeking discharge. Talley's 2005 and 2006 discharge
petitions were dismissed at Talley's request. The circuit court
1
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated. Although both
parties refer to revisions to Wis. Stat. § 980.09 effective
December 14, 2013, see 2013 Wis. Act. 84, neither party asks the
court to decide whether the new version of § 980.09 should be
applied retroactively here. Thus, we apply the 2011-12 version
of the statutes, which was in effect both when Talley filed this
petition and when the circuit court summarily denied it.
2
See State v. Talley, No. 2013AP950, unpublished order,
(Wis. Ct. App. Oct. 19, 2015).
3
The Honorable Sarah B. O'Brien of Dane County presided.
2
No. 2013AP950
terminated his 2007 discharge petition because the psychologist
who conducted the reexamination of Talley never filed a report.
B. The 2008 Discharge Petition
¶4 Talley's 2008 discharge petition was tried to a court
in May 2009. At trial, the State's expert, Dr. William Schmitt,
testified that Talley did not satisfy the criteria for discharge
because: (1) Talley had Paraphilia Not Otherwise Specified
(NOS), Exhibitionism,4 and Antisocial Personality Disorder, each
of which is a mental disorder that affected his emotional or
volitional capacity and predisposed Talley to commit sexually
violent acts; and (2) Talley fell into the risk category of
being more likely than not to commit another sexually violent
offense if discharged. Dr. Schmitt explained that, as recently
as February 2009, Talley exposed his erections and talked about
them with female staff; those exhibitionistic actions amounted,
in essence, to "engaging in sexual behavior with a nonconsenting
person." By "continu[ing] to expose himself within an
institution," Talley showed ongoing "difficulty managing his
sexual urges and behaviors." Dr. Schmitt opined that Talley's
high psychopathy and sexual deviance, evidenced by his
4
The Exhibitionism related to Talley's repeated acts of
exposing his erect penis, openly masturbating, attempting to
have female staff or treatment providers notice he had an
erection, and attempting to engage women in discussions about
his erections. His Exhibitionism during confinement resulted in
repeated misconduct reports and multiple convictions for lewd
and lascivious behavior.
3
No. 2013AP950
behaviors, made him more likely than not to commit a sexually
violent offense if discharged.
¶5 Talley's expert, Dr. Hollida Wakefield, agreed that
Talley had Antisocial Personality Disorder and Exhibitionism,
but she opined that neither disorder predisposed Talley to acts
of sexual violence. She testified that Exhibitionism is not a
sexually violent act, and although Antisocial Personality
Disorder may cause an individual to be sexually violent, it
requires the presence of both high psychopathy and sexual
deviance. Dr. Wakefield agreed Talley had high psychopathy, but
she did not find sexual deviance; therefore, she concluded,
Talley was not more likely than not to commit a sexually violent
offense.
¶6 At the end of the trial, the circuit court determined
"the evidence clearly and convincingly show[ed] that Mr. Talley
[was] still a sexually violent person." The circuit court made
several findings about Talley: (1) he had been convicted three
times of sexually violent offenses; (2) he had a mental disorder
that predisposed him to committing sexually violent acts; (3)
his Exhibitionism replaced sexual violence because of his
confinement; (4) he "clearly enjoy[ed] exposing himself to
others"; (5) he had not completed treatment; and (6) he remained
a danger to others because his mental disorder made "it more
likely than not that he will engage in future acts of sexual
violence." Although the circuit court agreed with Dr. Wakefield
that Talley's Exhibitionism is not a violent sexual act, it
accepted the explanation that Exhibitionism likely replaced
4
No. 2013AP950
sexual assault because Talley "ha[d] not had an opportunity to
sexually assault" while confined. Ultimately, the circuit court
placed greater weight on Talley's history of sexual violence and
his "antisocial conduct in custody," which was "largely sexual
in nature."
C. The 2010 Discharge Petition
¶7 In 2010, Dr. Richard Elwood conducted Talley's annual
reexamination and concluded Talley was not a sexually violent
person and not more likely than not to re-offend. He diagnosed
Talley with Antisocial Personality Disorder and Borderline
Personality Disorder but did not find Exhibitionism or
Paraphilia NOS. In Dr. Elwood's opinion, Exhibitionism required
exposure to strangers, and Talley's exposures were to treatment
center workers, who were not strangers to him. Dr. Elwood also
expressed doubt about Talley's continued predisposition to
sexual violence, noting the record lacked sufficient evidence to
prove Talley engaged in the Exhibitionism for sexual arousal
purposes. Observing that Exhibitionism is not a sexually
violent offense, Dr. Elwood added that Talley's exposures to
women he knew "may not even have been sexually motivated."
Despite Talley's "moderate to very-high range" of psychopathy,
Dr. Elwood could not conclude that Talley's
"offenses . . . clearly establish sexual deviance." In his
static risk assessment, Dr. Elwood concluded that, "Talley poses
a high risk of committing another sex offense but not that he
poses a high risk of committing a sexually violent offense."
The doctor's dynamic risk assessment did not alter that
5
No. 2013AP950
conclusion. His report acknowledged that Talley had not made
significant progress in treatment, but Dr. Elwood nevertheless
concluded "Talley is not a sexually violent person" because
"Talley would not more likely than not commit another sexually
violent offense if he were released and given the opportunity."
¶8 Talley's 2010 discharge petition based on Dr. Elwood's
report asserted a "significant change in diagnoses," which
Talley contended warranted a discharge hearing. Based on a
comprehensive review of the court record, the circuit court
rejected Talley's request and denied the petition without a
hearing. The court's review included the "dozen" evaluations
dating back to Talley's initial confinement. Given Talley's
consistent diagnosis "with antisocial personality disorder and
borderline personality disorder," the court assigned
significance to the fact that most experts found Talley
predisposed to "future acts of sexual violence."
¶9 Also important to the circuit court was the fact that
Dr. Elwood, like Dr. Wakefield, agreed that Talley had both
personality disorders, and the circuit court had already
rejected Dr. Elwood's opinion that the disorders do not make
Talley a likely violent re-offender. As the court explained:
All experts agree that when there is a combination of
high psychopathy and sexual deviance, the risk of
future acts of sexual violence is increased. At the
2009 trial Dr. Schmitt opined that Mr. Talley had both
high psychopathy and sexual deviance; Dr. Wakefield
was not sure that sexual deviance was present. I
concluded that this combination is present in Mr.
Talley, thus increasing his risk of re-offense. In
the present report Dr. Elwood disagrees, concluding
6
No. 2013AP950
that Mr. Talley's sex offenses do not clearly
establish sexual deviance. However this is the same
evidence I rejected at the discharge trial.
Because Dr. Elwood's report "contain[ed] no new evidence" and
the circuit court had already "considered and rejected" the
opinion that Talley's "personality disorders do not predispose
him to violent sexual offending," the circuit court denied
Talley's petition on the grounds that it did "not allege facts
from which the court or jury might conclude that Mr. Talley's
condition has changed since the date of his initial commitment
so that he no longer meets the criteria for commitment."
D. The 2011 Discharge Petition
¶10 In 2011, Talley filed another petition for discharge
based on Dr. Elwood's 2011 reexamination report. Dr. Elwood's
risk assessment and conclusion were unchanged from his 2010
report. The circuit court nevertheless decided to hold a
discharge hearing because it had been two years since Talley's
last hearing, it appeared from Dr. Elwood's report that Talley
had stopped publicly masturbating, and the "'science' of
predicting risk has continued to evolve."
¶11 At the jury trial in January 2012, Lloyd Sinclair, the
program director for the detention center where Talley resided,
described the treatment program available to Talley, who was
assigned to the program for patients with normal or high
intelligence who have high psychopathy. The program consists of
three phases. Phase One addresses self-management and how to
live a responsible life in day-to-day functioning. Once a
patient completes Phase One, he moves to Phase Two, which
7
No. 2013AP950
focuses on the specific sex offense component of treatment.
When a patient completes Phase Two, he moves to Phase Three,
which combines lessons from the first two phases to ensure the
patient will not re-offend when released. Sinclair testified
that Talley remained in Phase One, and at times refused
treatment altogether. Talley's "continue[d] . . . sexual
misbehavior" "raise[d] alarms" at the treatment center. For
example, Talley had repeatedly exposed his erect penis to female
staff, and "if a male [came] into the room, Mr. Talley cover[ed]
up." Sinclair explained that if Talley wants to be discharged
he needs "to make progress [in treatment] and show that he's
managing himself better."
¶12 Dr. Anthony Jurek testified for the State. He told
the jury that Talley had Exhibitionism, Paraphilia NOS, and
Antisocial Personality disorder with Borderline features. He
testified:
Talley has three mental disorders that impair his
emotional or volitional capacity and predispose him to
commit acts of sexual violence.
"[A] person's history of sexual offenses is important
because if an individual is caught for the sexual
behavior and they're sanctioned for it, they should learn
from that experience. It should be less likely that they
engage in behavior that can cause them sanctions in the
future."
When a person "continues to offend over and over again"
it indicates the person is unable "to change that
8
No. 2013AP950
behavior, and it's a critical element of the diagnostic
formulation but also plays into the risk assessment."
Successful participation in treatment, in contrast, can
suggest a reduced risk of re-offending. But Talley had
not successfully participated in treatment, and he
committed dozens of sexual misconduct offenses while
confined.
Talley's exhibitionistic behavior has a sexual overtone
to it. He exposes himself for sexual gratification.
"[T]he deviance underl[ying] the Exhibitionism is the
same deviance that underlies the earlier sexual offenses
of record."
¶13 Moreover, Dr. Jurek expected that, if no longer
confined, Talley would go beyond Exhibitionism and return to
committing sexually violent offenses. According to actuarial
risk instruments, Talley was more likely than not to commit acts
of sexual violence if discharged. In response to Dr. Elwood's
opinion that Exhibitionism is inapplicable because Talley's
exposures are not to strangers, Dr. Jurek explained the only
reason Talley is not exposing to strangers is because he is
confined: "So if he has the opportunity to expose himself to
strangers, he certainly will. But where no strangers are
available, he will expose himself to unsuspecting staff."
¶14 Dr. Elwood testified for Talley. On direct
examination, he indicated that he diagnosed Talley with
Antisocial Personality Disorder and Borderline Personality
Disorder, but unlike Dr. Jurek, did not diagnose Talley with
9
No. 2013AP950
Paraphilia NOS or Exhibitionism. Although Dr. Elwood explained
his strict application of the DSM-IV definition for
Exhibitionism as "expos[ing] one's self to unsuspecting
strangers," he also acknowledged that, in light of Talley's
"difficulty with sexual activities and sexual urges," "Dr. Jurek
ma[d]e a good point that it may be better to make a broader
interpretation of [Exhibitionism] in penal situations or when
they're incarcerated" because when an individual is confined,
"all of the residential staff are known to you, so there can't
be a stranger."
¶15 When asked about Dr. Jurek's opinion that Talley
exposed himself for sexual gratification, Dr. Elwood answered,
"I just don't think I have sufficient evidence to determine"
whether Talley's arousal was tied to the exposure or his self-
manipulation. Dr. Elwood could not "say for sure that [Talley]
was being aroused specifically by the exposing itself." When
asked whether Talley was sexually deviant, Dr. Elwood responded:
I couldn't say. I'm not saying he's not sexually
deviant. I don't have evidence to say that. But I do
not think I have sufficient evidence to say that he
meets the usual criteria for sexual deviance as
identified in the literature. . . . He certainly has
some evidence of something.
¶16 Talley's attorney then asked Dr. Elwood to assess
Talley's risk of engaging in future sexually violent acts: "So
without that deviance finding and what you found in the
actuarial tables, do you feel Mr. Talley presents a risk of
sexual violence in the future? I guess [to] what degree do you
feel he presents a sexual risk—a risk of sexual violence?" Dr.
10
No. 2013AP950
Elwood answered, "I think I can best say I don't know." When
Talley's lawyer asked, "And why is that?", Dr. Elwood responded,
"I just don't think that the evidence to me is clear enough to
say that." Dr. Elwood talked about Talley's risk of re-
offending being "well over 51 percent." Talley's lawyer then
tried to clarify:
Q [Talley's attorney:] So clearly there's a risk of
reoffense, but the risk of deviance is not more
likely than not in your opinion?
A [Dr. Elwood:] I think it's important to distinguish
between my saying that it's not over 51 percent and
saying I do not have enough evidence to say that it
is over 51 percent.
Q [Talley's attorney:] Okay.
A [Dr. Elwood:] At this point I'm saying that I
cannot say to a degree of professional confidence
that it exceeds 51 percent likelihood of committing
another sexually violent act.
Dr. Elwood further explained that, in the absence of evidence to
"support a reasonable conclusion that the person meets the
criteria, then the conclusion is they do not meet the criteria."
When asked whether he thought Talley's commitment should
continue, Dr. Elwood testified, "I would only say that he does
not meet, in my opinion, the definition of a sexually violent
person in Chapter 980."
¶17 On cross-examination, Dr. Elwood made several
concessions. He acknowledged that Talley (1) has a mental
disorder that predisposes him to commit acts of sexual violence;
(2) falls into the "extremely high" category "on the actuarial
tools for future risk to reoffend;" (3) has not completed sex
11
No. 2013AP950
offender treatment; and (4) fondled himself when appearing by
phone for a court proceeding, an incident that led another
psychologist to opine that Talley had "extraordinarily pressing
sexual urges and deficient impulse control." Importantly, Dr.
Elwood confirmed he was not testifying that Talley would not
commit sexually violent acts if released; rather, he simply did
not believe there was "enough evidence to opine that" he would.
¶18 The jury found Talley was "still a sexually violent
person," and the circuit court denied his 2011 discharge
petition. Talley's motion for postcommitment relief was denied
in February 2013, and the court of appeals rejected Talley's
appeal in a published decision in December 2014. See State v.
Talley, 2015 WI App 4, 359 Wis. 2d 522, 859 N.W.2d 155 (Ct. App.
2014).
E. The 2012 Discharge Petition
¶19 In July 2012, Talley filed the discharge petition
underlying our current review. The 2012 petition relied on Dr.
Elwood's annual reexamination of Talley and his report dated
July 3, 2012. Dr. Elwood's 2012 report reached the same
ultimate conclusion and overall risk assessment as his 2011
report: "Mr. Talley would more likely than not commit another
sex offense but would not more likely than not commit another
sexually violent offense"; thus, "Mr. Talley is not a sexually
violent person."
¶20 There was no change between the 2011 and 2012 reports
as to the facts underlying the "Static (historical) Risk
Factors." Both the 2011 and 2012 reports disclose that Talley
12
No. 2013AP950
scored in "the very high risk range" on the Static-99R test,
putting him at "a 68% chance" of being "charged with another sex
offense within 10 years of release from custody."
¶21 With respect to the "Dynamic Risk Factors," there was
no change in Elwood's 2011 and 2012 reports concerning Talley's
ability to self-regulate his behavior and act with regard for
the consequences of his actions. Likewise, there was no change
with respect to treatment completion because Talley had not
completed treatment.
¶22 The only change in the 2012 report fell under the
"Social & Emotional Functioning" subset of the dynamic risk
factors. The note identified three particular changes: (1)
Talley "socialize[d] more with peers in his treatment group";
(2) he "joined a fitness group"; and (3) "more members of his
family" have been "communicating with him." Based on those
changed facts, Dr. Elwood "concluded that Mr. Talley has made
recent progress to reduce his risk" on the social and emotional
subset of the dynamic risk factors. Talley's reported progress
did not, however, change Dr. Elwood's overall risk assessment or
ultimate conclusion, which remained identical to the 2011
report.
¶23 The circuit court denied Talley's petition seeking a
discharge hearing because Dr. Elwood reached the same ultimate
conclusion in his two previous reports——the very conclusion a
13
No. 2013AP950
jury rejected just six months earlier.5 Talley appealed, and the
court of appeals affirmed in a summary disposition order, which
concluded that the changes in the 2012 report did "not
constitute a significant change from the facts that the jury
rejected in the 2011 petition." We granted Talley's petition
for review.
II. DISCUSSION
A. Standard of Review
¶24 This case involves the interpretation and application
of Wis. Stat. § 980.09(2), which is a question of law we review
independently, although we benefit from the decisions by the
court of appeals and circuit court. See State v. Arends, 2010
WI 46, ¶13, 325 Wis. 2d 1, 784 N.W.2d 513.
B. Analysis
¶25 Talley contends his petition alleged enough facts to
warrant a discharge hearing.6 He expresses concern that the
court of appeals erroneously measured Talley's facts against a
"significant" fact standard not found in the applicable
statutory language. We hold that Talley's petition for
discharge failed to satisfy the statutory threshold for a
5
Our reference to six months shall not be construed to set
any type of time parameter; rather, it is noted solely to show
that, very recently, a jury rejected the same opinion Dr. Elwood
gives here.
6
A discharge hearing is "a trial on the merits of the
discharge petition." State v. Arends, 2010 WI 46, ¶1, 325
Wis. 2d 1, 784 N.W.2d 513.
14
No. 2013AP950
discharge hearing. We also hold the court of appeals' use of
the word "significant" does not alter the outcome.
1. Statutory Standard for Discharge Hearing Not Satisfied
¶26 Wisconsin Stat. § 980.09 provides, as material:
(1) 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.
(2) 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. 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. 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. 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.
(Emphasis added.)
¶27 In State v. Arends, this court described the "two-step
process" for determining whether a person committed under Wis.
Stat. ch. 980 (2005-06) is entitled to a discharge hearing on a
petition. Arends, 325 Wis. 2d 1, ¶¶3-5. The first step is a
"paper review of the petition only, including its attachments"
15
No. 2013AP950
under Wis. Stat. § 980.09(1), and if the circuit court concludes
the petition sufficiently "alleges facts from which a reasonable
trier of fact could conclude that the petitioner does not meet
the criteria for commitment as a sexually violent person" the
circuit court proceeds to the second step, a review under Wis.
Stat. § 980.09(2). Arends, 325 Wis. 2d 1, ¶¶3-5. The second
step involves an expanded review of the petition, with "all past
and current reports filed under [Wis. Stat.] § 980.07," and
other supporting documentation in the record, to determine if
these materials "contain any facts from which a reasonable trier
of fact could conclude that the petitioner does not meet the
criteria for commitment as a sexually violent person."7 Arends,
325 Wis. 2d 1, ¶5.
¶28 Here, the record suggests, and the parties concede,
the circuit court's decision denying Talley a discharge hearing
involved a review under Wis. Stat. § 980.09(2), rather than
§ 980.09(1). The standard the legislature pronounced in
§ 980.09(2) is straightforward: After considering all of the
materials in the record, the court "shall deny the petition" if
it "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 circuit court held that
7
Wisconsin Stat. § 980.09(2) uses the terms "could" and
"may" interchangeably. See Arends, 325 Wis. 2d 1, ¶¶37 n.20,
41, 43. As pointed out in Arends, the "slightly different
iterations" are "non-substantive word-choice variances." Id.,
¶37 n.20.
16
No. 2013AP950
Talley's 2012 petition did not warrant a discharge hearing
because it contained the same ultimate conclusion and overall
risk assessment rejected by a jury six months earlier. The
court found Talley's three self-reported changes would not lead
a factfinder to conclude Talley is no longer sexually violent.
We agree with the circuit court's assessment.8
¶29 The only new facts in Talley's 2012 petition are
located under the "Social & Emotional Functioning" subset of the
dynamic risk factors section of Dr. Elwood's report. Talley
reported that he was "socializing more with peers," he "joined a
fitness group," and "more members of his family [] recently
began communicating with him." Dr. Elwood labeled these facts
"recent progress to reduce risk" specifically on the social and
emotional functioning component, but Dr. Elwood's overall risk
assessment and ultimate conclusion remained unchanged since his
2011 report. As noted, a jury already rejected that conclusion
in January 2012.
¶30 Our review thus focuses on whether the 2012 petition's
three new facts, when considered together with our comprehensive
review of the entire record——including every psychological
examination report, every treatment report, and the transcripts
8
Talley argues the circuit court failed to review all the
past and current reports in the record and asks us to remand so
the circuit court may do so. Although the record is not
entirely clear in this regard, there is no need for the remand
Talley requests. We conducted a comprehensive review of the
evidence, which we may do, see Arends, 325 Wis. 2d 1, ¶48, and
reached the same conclusion as the circuit court.
17
No. 2013AP950
from Talley's 2009 bench trial and 2012 jury trial——lead to a
determination that a reasonable factfinder "may [or could]
conclude" Talley is no longer a sexually violent person. We
conclude these three facts in the 2012 reexamination report do
not satisfy the statutory standard because no reasonable jury
could find that they may mean Talley is no longer a sexually
violent person——particularly when these facts did not alter Dr.
Elwood's prior ultimate conclusion or overall risk assessment,
and where a jury just six months earlier rejected Talley's claim
that he is no longer a sexually violent person.
¶31 These facts do not impact any of the three criteria
for commitment, which require proof that: (1) Talley was
convicted of a sexually violent offense; (2) he currently
suffers from a mental disorder that affects his emotional or
volitional capacity, making him predisposed to commit acts of
sexual violence; and (3) the mental disorder makes it more
likely than not that Talley will engage in more acts of sexual
violence. See Wis. Stat. §§ 980.01(7), 980.02(2), 980.05(3)(a);
see also Wis. JI—Civil 2506 (2015). Criteria (1) and (2) are
undisputed; the only disagreement centers on criterion (3).
¶32 Nothing in the record suggests that the advent of the
three facts proffered here may (or could) cause a factfinder to
now conclude that Talley's mental illness will no longer make it
more likely than not that he will commit a sexually violent
offense. At the 2012 trial, Dr. Elwood explained that he
resolved the third factor in favor of Talley only because he did
not have enough information to decide one way or the other;
18
No. 2013AP950
unsurprisingly, this testimony failed to convince the jury that
Talley overcame his predisposition to commit sexually violent
acts. Since the jury's verdict, Talley reported that he is
"socializing more with peers," he "joined a fitness group," and
"more members of his family [] recently began communicating with
him." Critically, these facts did not alter Dr. Elwood's
recently rejected assessment of Talley's risk of re-offending.
¶33 We are not convinced that Talley's three reported
facts——which do not relate to his propensity to commit sexually
violent acts——may result in a jury or court making a different
determination, absent any change in diagnosis, overall risk
assessment, or ultimate conclusion. In eleven years, Talley has
not successfully completed treatment; he has not even begun
sexual-offender-specific treatment because he has not progressed
beyond the first phase of the treatment program. He continues
to engage in sexual misbehavior and Exhibitionism, which all but
two of the psychologists involved here opined reflects a
confined person's substitute for sexually violent acts.
¶34 Finally, case law supports the conclusion that a
person committed under Chapter 980 is not entitled to a
discharge hearing where the current petition contains the same
ultimate conclusion and overall risk assessment a trier of fact
previously rejected. See State v. Schulpius, 2012 WI App 134,
¶4, ¶¶34-35, 345 Wis. 2d 351, 825 N.W.2d 311 ("[T]he petitioner
must also produce some new evidence, not previously considered
by a trier of fact, which demonstrates that he does not meet the
criteria for commitment under Wis. Stat. ch. 980."); State v.
19
No. 2013AP950
Kruse, 2006 WI App 179, ¶35, 296 Wis. 2d 130, 722 N.W.2d 742
("[A]n expert's opinion must depend upon something more than
facts, professional knowledge, or research that was considered
by an expert testifying in a prior proceeding that determined
the person to be sexually violent." (quoting State v. Combs,
2006 WI App 137, ¶¶32-33, 295 Wis. 2d 457, 720 N.W.2d 684)).
"An expert's opinion that is not based on some new fact, new
professional knowledge, or new research is not sufficient for a
new discharge hearing under § 980.09(2)." Schulpius, 345
Wis. 2d 351, ¶35. The court of appeals reached this conclusion
in Schulpius, Kruse, and Combs because "it serves the purpose of
ensuring that a person who is not sexually violent does not
continue in commitment, while avoiding continual re-litigation
of issues." Combs, 295 Wis. 2d 457, ¶33.
¶35 Talley's 2012 petition is based on the same
information that a jury previously rejected, plus three new
social facts that did not move Dr. Elwood to alter his opinion
and are not the type of facts that would demonstrate Talley is
no longer a sexually violent person. The three new facts
presented in Talley's petition, therefore, do not merit a
discharge hearing. Dr. Elwood's ultimate conclusion and overall
risk assessment are exactly the same as those the jury
considered in finding Talley remains a sexually violent person.
Talley's increased socialization, family communication, and
fitness pursuits do not elevate the petition to one "from which
a court or jury may [or could] conclude that the person does not
meet the criteria for commitment." See Wis. Stat. § 980.09(2).
20
No. 2013AP950
When new facts do not change the doctor's ultimate conclusion or
overall risk assessment and that doctor's conclusion has already
been rejected by a jury, we are not convinced the three
additional facts asserted here could result in a jury finding in
the petitioner's favor. Accordingly, the circuit court
correctly complied with the statute's directive that it "shall
deny" the petition without a hearing.
2. Court of Appeals' Use of "Significant"
¶36 Talley expresses concern about the court of appeals'
use of the word "significant" in its opinion. The word
"significant" is not used in the statute, but it is a term
frequently used throughout the record in this case. Talley used
it in submitting his 2010 Petition, asserting that Dr. Elwood's
report contained a "significant change in diagnoses." The term
was used by the psychologists and treatment providers in
describing Talley's progress in treatment. For example, "Talley
is not considered to have made significant progress in
treatment." Wisconsin Stat. § 980.09 does not use the term
"significant" in setting the standard required to warrant a
discharge hearing.
¶37 Preferably, the court of appeals should have measured
Talley's petition against the actual text of the statute. The
court of appeals' use of the term "significant," however, does
not alter the outcome of this case because our application of
the language of the statutory standard results in the same
conclusion reached by the court of appeals. The facts contained
in Talley's 2012 petition based on Dr. Elwood's report do not
21
No. 2013AP950
satisfy the statutory standard because "socializing more with
peers," "join[ing] a fitness group," and increased communication
from family members are not "facts from which a court or jury
may conclude that the person does not meet the criteria for
commitment."
3. Adding Adjectives to Statutory Standard
¶38 At oral argument in this case, the parties discussed
whether the "facts" under the statute must be "material" or "of
consequence" in order to trigger a discharge hearing. The
legislature did not use these terms, and we will not modify the
2011-12 Wisconsin Statutes to insert them.9 Adding adjectives to
the statute is unnecessary to resolve this case. We simply
apply the statutory language the legislature chose and conclude
that the facts proffered here are not "facts from which a court
or jury may conclude that the person does not meet the criteria
for commitment." Wis. Stat. § 980.09(2). Therefore, the
statutory standard was not satisfied and no discharge hearing
was required.
III. CONCLUSION
¶39 Talley's 2012 petition for discharge differed in only
one respect from his 2011 petition: Dr. Elwood noted some
"progress to reduce risk" under the "Social & Emotional
9
As explained supra, note 1, in 2013 the legislature
revised several portions of Chapter 980. Those changes included
an adjustment to the standard in Wis. Stat. § 980.09. The new
statutory language in subsection (2) allows the court to assess
whether the person's condition has "sufficiently changed."
22
No. 2013AP950
Functioning" component of the dynamic risk factors because
Talley reported he was "socializing more with peers," he had
"join[ed] a fitness group," and "more members of his family []
recently began communicating with him." Despite these changes,
Dr. Elwood's overall risk assessment and ultimate conclusion
remained unchanged since his 2011 report, which the jury
rejected six months earlier when it found that Talley was still
a sexually violent person.
¶40 We conclude that a factfinder could not determine,
based on these three facts, that Talley no longer met the
criteria for a sexually violent person. Thus, Talley's 2012
petition does not satisfy the statutory standard needed to
obtain a discharge hearing. Further, although the term
"significant" does not appear in the language of that statute,
its use by the court of appeals in the summary disposition order
does not alter the outcome of this case. Both the court of
appeals and the circuit court correctly ruled that Talley's 2012
petition did not "contain facts from which a court or jury may
conclude that" Talley "does not meet the criteria for
commitment," Wis. Stat. § 980.09(2); therefore, the circuit
23
No. 2013AP950
court appropriately denied Talley's 2012 petition without
holding a discharge hearing.10
By the Court.—The decision of the court of appeals is
affirmed.
10
This opinion cannot and should not be interpreted as the
concurrences speculate. The opinion does not foreclose Talley
from satisfying the statutory threshold required for a discharge
hearing in a future petition where a psychologist finds he is no
longer a sexually violent person so long as his petition
satisfies the new statutory threshold contained in
§ 980.09(2)(2013-14). See supra n.9. In our current review, as
required by the 2011-12 version of § 980.09(2), we considered
whether Talley's three new facts and all of the psychological
reports in the record may lead a jury to conclude Talley was no
longer sexually violent. We concluded the three new facts,
which do not impact the three criteria for commitment, see
supra, ¶31, together with Dr. Elwood's report (that was
essentially identical to the previous year's report which a jury
recently rejected), could not lead a jury to find in Talley's
favor. Thus, Talley's petition did not warrant a discharge
hearing.
Also, the opinion does not weigh evidence; it considers
whether all the materials in this record, listed in Wis. Stat.
§ 980.09(2), may lead a jury to find Talley is no longer a
sexually violent person. That is what the 2011-12 version of
§ 980.09(2) required us to do.
24
No. 2013AP950.ssa
¶41 SHIRLEY S. ABRAHAMSON, J. (concurring). I too would
affirm the decision of the court of appeals. I do not, however,
join the opinion of the court because it strays too far from the
text of Wis. Stat. § 980.09(2) and fails to provide a practical,
sound interpretation and application of the statutory language
"facts from which a circuit court could conclude that the
petitioner does not meet the criteria for commitment as a
sexually violent person." (Emphasis added.) Unlike the
majority, I conclude that the "facts" must be relevant facts of
consequence to the issue at hand. Not just any old facts will
do.
¶42 Here are the words of Wis. Stat. § 980.09(2) (2011-12)
(emphasis added):
(2) 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. 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. 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. 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.
¶43 It is important to recognize that Wis. Stat.
§ 980.09(2) (2011-12) was revised in 2013 (effective Dec. 14,
1
No. 2013AP950.ssa
2013).1 Because of the revision, the majority opinion is limited
to interpreting and applying the pre-2013 statute. See majority
op., ¶1 n.1. The majority opinion interprets the 2011-12
version of Wis. Stat. § 980.09(2) and does not govern the
interpretation and application of the revised 2013 statute. I
address the 2011-12 version of Wis. Stat. § 980.09(2), as does
the majority opinion.
1
The statute was amended in 2013 to read as follows
(emphasis added):
(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
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. If the court
determines that the record does not contain facts from
which a court or jury would likely conclude that the
person no longer meets the criteria for commitment,
the court shall deny the petition. 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.
For two recent court of appeals cases applying the amended
statute, see In re Commitment of David Hager, Jr., No.2015AP330,
unpublished slip op. (Wis. Ct. App. Jan. 24, 2017) (recommended
for publication); In re Commitment of Howard Carter, 2015AP1311,
unpublished slip op. (Wis. Ct. App. Jan. 24, 2017) (recommended
for publication).
2
No. 2013AP950.ssa
¶44 Under Wis. Stat. § 980.09(2), the court decides as a
matter of law, independently of the circuit court and court of
appeals, whether facts exist from which a reasonable fact-finder
may conclude that the petitioner does or does not meet the
criteria for commitment.2
¶45 The majority opinion too often ties the "facts" in the
instant petition to the psychologist's ultimate conclusion or
overall risk assessment, which remained the same since the
psychologist's last report, or to a jury's recent denial of
Talley's prior petition. See majority op., ¶¶1, 29, 30, 32-35,
39.
¶46 A fact-finder is not bound by the psychologist's
ultimate conclusion or overall risk assessment or the last
jury's verdict; a fact-finder is bound by the "facts." True,
the psychologist's unchanged conclusion may be probative of
whether the petitioner still meets the commitment criteria.
But, to the extent that the majority opinion can be interpreted
as requiring a change in the psychologist's conclusions in order
for a court to rule in favor of a discharge hearing, the opinion
goes too far.3
2
The facts alleged are accepted as true. The question of
law presented to this court is the interpretation and
application of Wis. Stat. § 980.09(2) to undisputed facts.
State v. Arends, 2010 WI 46, ¶13, 325 Wis. 2d 1, 784 N.W.2d 513.
3
"[T]he presence of evidence unfavorable to the petitioner—
—a re-examination report reaching a conclusion that the
petitioner was still more likely than not to sexually reoffend,
for example——does not negate the favorable facts upon which a
trier of fact might reasonably rely." Arends, 325 Wis. 2d 1,
¶40.
3
No. 2013AP950.ssa
¶47 In addition to this misstep, the majority makes no
attempt to interpret and apply the statutory word "facts."
¶48 Unfortunately, the majority opinion refuses to limit
the facts required in the petition under Wis. Stat. § 980.09(2)
to "significant" facts or "material" facts. According to the
majority, "[a]dding adjectives to the statute is unnecessary to
resolve this case." Majority op., ¶38.
¶49 This refusal is disingenuous. The majority opinion
readily accepts prior case law adding the word "new" to Wis.
Stat. § 980.09(2). See majority op., ¶¶29, 30, 34, 35. Also,
the majority opinion seems to dismiss as "facts" Talley's self-
reported facts. See majority op., ¶¶28, 32-33. The majority
opinion explains that it could not determine on the basis of the
facts that Talley was no longer a sexually violent person. See
majority op., ¶¶36, 37, 40. The majority reaches this
conclusion without an explanation. Are readers supposed to
infer that Talley's self-reported facts are to be ignored?
¶50 In contrast to the majority opinion, the court of
appeals examined the petition for "significant" facts.
Similarly, the State asserts that the facts in the petition must
be "material" facts and facts "of consequence." See majority
op., ¶¶36, 38. But the majority opinion refuses to read the
word "facts" as meaning "significant" or "material" facts
because, according to the majority opinion, the legislature did
not use the words "significant" or "material." See majority
op., ¶38.
4
No. 2013AP950.ssa
¶51 The majority opinion's reasoning for refusing to
interpret the statutory word "facts" as "significant" or
"material" is specious. The applicable statute, Wis. Stat.
§ 980.09(2), explicitly requires the court to consider "relevant
facts in the petition."4 Thus, the very text of § 980.09(2)
requires the facts in the petition to be "relevant" to the
contested issue, that is, facts that relate to whether the
petitioner does or does not meet the criteria for commitment as
a sexually violent person.
¶52 Furthermore, Wis. Stat. § 980.09(2)'s use of the word
"facts" integrally incorporates the concept of relevancy.5 The
Wisconsin Rules of Evidence define "facts" as facts of
consequence to the determination of the action.6 "'Relevant
evidence' means evidence having any tendency to make the
existence of any fact that is of consequence to the
determination of the action more or less probable than it would
be without the evidence." Wis. Stat. § 904.01.
4
See also Arends, 325 Wis. 2d 1, ¶32 ("the court . . . is
required to examine . . . relevant facts in the petition and in
the State's written response.").
5
"[A]ny fact which tends to prove a material issue is
relevant, even though it is only a link in the chain of facts
which must be proved to make the proposition at issue appear
more or less probable. Relevancy is not determined by
resemblance to, but by the connection with, other facts."
Oseman v. State, 32 Wis. 2d 523, 526, 145 N.W.2d 766 (1966)
(quoting 1 Ronald A. Anderson, Wharton's Criminal Evidence
§ 148, at 284-87 (12th ed. 1955) (quoted in Judicial Council
Committee's Note, 1974, Wis. Stat. Ann. § 904.01 (West 2000).
6
"Chapters 901 to 911 govern proceedings in the courts of
the state of Wisconsin except as provided in ss. 911.01 and
972.11." Wis. Stat. § 901.01.
5
No. 2013AP950.ssa
¶53 The State uses the words "material" and "facts of
consequence" rather than the word "relevant" to describe the
statutory word "facts." These words, "relevant" and "material,"
have historically been used interchangeably.7 The following
definitions of "relevant" and "material," appearing in
McCormick, Evidence (hornbook series), § 152, at 315-16, were
adopted by the court in State v. Becker, 51 Wis. 2d 659, 666-67,
188 N.W.2d 449 (1971):
In the courtroom the terms relevancy and materiality
are often used interchangeably, but materiality in its
more precise meaning looks to the relation between the
propositions for which the evidence is offered and the
issues in the case. If the evidence is offered to
prove a proposition which is not a matter in issue nor
probative of a matter in issue, the evidence is
properly said to be immaterial. * * * Relevancy in
logic is the tendency of evidence to establish a
proposition which it is offered to prove. Relevancy,
as employed by judges and lawyers, is the tendency of
the evidence to establish a material proposition.8
7
See 10 Ted M. Warshafsky & Frank T. Crivello II, Wisconsin
Practice Series: Trial Handbook for Wisconsin Lawyers § 13.02
(3d ed. 2016) ("[A]lthough the distinction [between relevance
and materiality] is one of traditional logic and historical
interest, it has little substantive meaning in modern trial
practice.").
8
The Wisconsin Rules of Evidence do not refer to the
concept of materiality except in the Comment to Wis. Stat.
§ 904.01. See Wisconsin Rules of Evidence, 59 Wis. 2d R1, R67;
Judicial Council Committee's Note, 1974, Wis. Stat. Ann.
§ 904.01 (West 2000) (the Judicial Council Committee's Note
states that McCormick's view of the distinction between
materiality and relevancy is imported into Wis. Stat. § 904.01
by the phrase "that is of consequence to the determination of
the action.").
(continued)
6
No. 2013AP950.ssa
¶54 I agree with the State that the word "facts" in Wis.
Stat. § 980.09(2) means "material facts," or if the reader
prefers, "relevant facts."
¶55 I conclude as a matter of law that the "facts" upon
which Talley relies are on the whole short-lived (the facts
occurred within the last six months), and considering the entire
record appear at this time minimal and inconsequential, and are
not facts from which a reasonable fact-finder may conclude that
Talley does not meet the criteria for commitment.
¶56 The majority opinion will take litigants and circuit
courts off course. It overlooks the meaning of the statutory
word "facts" and fails to provide a practical, sound meaning of
the word "facts" used in Wis. Stat. § 980.09(2).
¶57 For the reasons set forth, I agree that the decision
of the court of appeals should be affirmed, but I do not join
the majority opinion.
¶58 I am authorized to state that Justice ANN WALSH
BRADLEY joins this concurring opinion.
For a more recent discussion of relevancy and materiality,
see 1 McCormick on Evidence § 185, at 994-95 (Kenneth S. Broun
ed., 7th ed. 2013) ("There are two components to relevant
evidence: materiality and probative value. Materiality concerns
the fit between the evidence and the case. It looks to the
relation between the propositions that the evidence is offered
to prove and the issues in the case. . . . The second aspect of
relevance is probative value, the tendency of evidence to
establish the proposition that it is offered to prove.")
7
No. 2013AP950.akz
¶59 ANNETTE KINGSLAND ZIEGLER, J. (concurring). Like
the court, I conclude that Talley is not entitled to a discharge
hearing. While I agree with much of the court's analysis, I
write to clarify the opinion and join the opinion only if it is
interpreted consistent with this concurrence. In this
concurrence, I will point out two concerns that I have with the
court's writing and why certain language of the opinion ought
not be misinterpreted.
¶60 First, the court's opinion could be read to suggest
that when a committed person relies in a petition for discharge
on the opinion of an evaluating psychologist that has already
been rejected by a trier of fact, only an appropriate change to
the evaluating psychologist's "ultimate conclusion or overall
risk assessment" can entitle that person to a discharge hearing
under Wis. Stat. § 980.09. I cannot accept such an
interpretation because doing so would be to write a limitation
in the statute. To be clear, the plain language of the relevant
statute can entitle a person to a discharge hearing if the
petition presents "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).
¶61 If the court's opinion were read to require what it
might seem to suggest, committed persons like Talley would be
required to show more than the statute requires. Dr. Elwood has
already concluded that Talley would not more likely than not
1
No. 2013AP950.akz
commit another sexually violent offense and is not a sexually
violent person. In the future, new facts strongly suggesting
that Talley does not meet the criteria for commitment may
develop. These facts, logically, might not change Dr. Elwood's
conclusion that Talley would not more likely than not commit
another sexually violent offense and is not a sexually violent
person. I am concerned that the court's opinion could be read
to preclude a discharge hearing under those circumstances,
merely because Dr. Elwood's "ultimate conclusion or overall risk
assessment" had not changed. While a change to an evaluating
psychologist's "ultimate conclusion or overall risk assessment"
is certainly relevant to the question of whether Wis. Stat.
§ 980.09(2) has been met, such a change is not a necessary
condition of fulfillment of the statutory threshold.
¶62 Second, the court's opinion ought not be read to weigh
evidence unfavorable to Talley as part of its inquiry into
whether Talley is entitled to a discharge hearing under Wis.
Stat. § 980.09(2), contrary to case law. Our discussion in
Arends explains the proper analysis:
We reject the State's argument that the circuit
court may weigh evidence favoring the petitioner
directly against evidence disfavoring the petitioner.
This is impermissible because the standard is not
whether the evidence more heavily favors the
petitioner, but whether the enumerated items contain
facts that would allow a factfinder to grant relief
for the petitioner. If the enumerated items do
contain such facts, the presence of evidence
unfavorable to the petitioner——a re-examination report
reaching a conclusion that the petitioner was still
more likely than not to sexually reoffend, for
example——does not negate the favorable facts upon
which a trier of fact might reasonably rely.
2
No. 2013AP950.akz
State v. Arends, 2010 WI 46, ¶40, 325 Wis. 2d 1, 784 N.W.2d 513
(footnote omitted).
¶63 I doubt the court intends either of the potential
defects I have identified. However, the possibility of
confusion remains. Thus, for the foregoing reasons, I
respectfully concur and write to clarify these areas of concern
so that the opinion of the court is not misinterpreted.
¶64 I am authorized to state the Justice MICHAEL J.
GABLEMAN joins this concurrence.
3
No. 2013AP950.akz
1
State v. Thornon F. Talley
Court: Wisconsin Supreme Court
Date filed: 2017-03-09
Citations: 373 Wis. 2d 610, 2017 WI 21
Copy CitationsCombined Opinion