On Point: 3. Civil Commitments

decision below: unpublished; for West: Ellen Henak, SPD. Milwaukee Appellate; case activity

Issue (formulated by On Point):

Whether, as a matter of statutory construction, due process and equal protection, the burden of proof on a § 980.08(4)(cg) petition for supervised release of a sexually violent release is on the State.

A technical issue, but one significant to ch. 980 practice. The issue was decided adversely in State v.

7th circuit decision; habeas review of State v. Martin, No. 06AP2413

Habeas – Filing Deadline – SVP

Martin’s habeas challenge to denial of his ch. 980 petition for discharge isn’t time-barred by the fact he could have raised the same challenge to his original commitment. Discharge typically requires a new determination of whether the SVP’s condition has “changed,” but Martin’s discharge litigation instead turned on an “exceptional”

Jefferson County v. Joseph S., 2010 WI App 160 (recommended for publication); for Joseph S.: Margaret A. Maroney, SPD, Madison Appellate

Failure of trial court to warn guardianship respondent of possibility of removal from courtroom for disruptive behavior prior to ordering his removal deprived court of competency to proceed.

¶5        A determination that a person “is incompetent … is as difficult a judgment as a judge is called upon to make,” and thus the legislature has adopted procedural requirements “to mitigate the chances of error.”  Byrn v.

State v. Richard D. Sugden, 2010 WI App 166 (recommended for publication); for Sugden: Donald T. Lang, SPD, Madison Appellate; Sugden BiC; State Resp.; Reply

Newly Discovered Evidence – Test – Generally

¶14      In order to be entitled to a new trial based on newly discovered evidence, Sugden must prove by clear and convincing evidence that (1) the evidence is,

Barron County v. Dennis H., 2010AP1026, District 3, 10/19/10

court of appeals decision (1-judge, not for publication); for Dennis H.: Jefren E. Olsen, SPD, Madison Appellate

Evidence held sufficient to support finding of dangerousness.

1) Recent overt act, attempt or threat to do serious physical harm. A psychologist testified that Dennis at times displayed aggressive behavior (“he changes at the snap of the finger and will become highly excitable,

Milwaukee County v. Earl Z., 2010AP704, District 1, 9/23/10

court of appeals decision (1-judge, not for publication); for Earl Z.: Jeremy Perri, SPD, Milwaukee Appellate

County appeal of dismissal of emergency detention at probable cause stage is moot, where facts supporting that requested detention are no longer operative. Exceptions to mootness — appellate court may reach merits if the issue is sufficiently important or likely repetitious but evasive of review —

State v. Christopher Melendrez, 2009AP2070, District 4, 9/2/10

court of appeals decision (3-judge, not recommended for publication); for Melendrez: David R. Karpe; BiC; Resp.; Reply

SVP – Retroactivity of Qualifying Offense Legislation

Third-degree sexual assault wasn’t an SVP-qualifying offense when Melendrez plea-bargained a reduction of 2nd-degree sexual assault to 3rd. But by the time he was released from prison,

State v. Walter Allison, Jr., 2010 WI App 103; for Allison: Ellen Henak, SPD, Milwaukee Appellate; BiC; Resp.; Reply

Summary judgment in favor of discharge isn’t an available option under § 980.09.

¶18 Applying the principles governing statutory interpretation to Wis. Stat. § 980.09, it is clear that the legislature explicitly prescribed a different procedure from those outlined in Wis.

Manitowoc Co. HSD v. Tammy L.C., No. 2010AP118, District II, 7/14/10 court of appeals decision (1-judge, not for publication); for Tammy L.C.: Matthew S. Pinix

Mootness – Discharge from Civil Commitment

Appeal of commitment order is dismissed as moot where appellant has been discharged and no extension sought.

Mootness raises a question of policy, not jurisdiction, and the court dismissed the appeal only after satisfying itself that the underlying issue isn’t recurrent but,

State v. Wendy A. Brown, 2010 WI App 113; for Brown: William E. Schmaal, SPD, Madison Appellate; BiC; Resp.; Reply

The significant risk of “serious property damage” underlying an NGI institutionalization-commitment, § 971.17(3)(a), doesn’t require physical damage to property; loss of money or goods — from identity theft in this instance — suffices:

¶13      The above definitions of property and damage are much broader than that which would be required to support Brown’s limited interpretation of property damage.