On Point: 1. Constitutional issues

State v. Jamie Lane Stephenson, 2018AP2104, petition to review a published court of appeals decision granted 3/17/20; case activity

Issues:

1. To prove that a person meets the criteria for commitment under Chapter 980, must the state present expert opinion testimony that the person is “dangerous” as defined under ch. 980?
2. Should the standard of review of the sufficiency of the evidence of dangerousness in a Chapter 980 case be changed to require that a reviewing court conduct a de novo review of whether the evidence satisfies the legal standard of dangerousness?

State v. Anthony James Jendusa, 2018AP2357-CRLV, review of a decision of the court of appeals denying the state’s petition for leave to appeal; case activity

Before turning to the issues presented, we’ll start with an observation about how this case might seem to affect appellate litigation in all kinds of cases, civil and criminal.

State v. David Hager, 2015AP330, and State v. Howard Carter, 2015AP1311, petitions for review granted 5/15/17, reversed 4/19/18; review of published court of appeals decisions (Hager) (Carter); case activity (Hager) (Carter) (including briefs)

We’ve posted on these cases a few times. The first time was when the court of appeals certified them (together) to the supreme court. The supreme court refused that certification, so the court of appeals decided them (separately), as we discussed here and here.

State v. Carter, 2017 WI App 9, petition for review granted 5/15/17; case activity (including briefs)

This case is a companion to State v. Hager, in which the court held that the amended discharge statute does not require a committed person to prove he is not dangerous in order to get a discharge trial.

Scott R. Schmidt v. Deborah McCulloch, 7th Circuit Court of Appeals No. 14-3651, 5/27/16

The Seventh Circuit upholds the denial of a Wis. Stat. ch. 980 detainee’s habeas corpus petition.

State v. David Hager, Jr., 2015AP330, and State v. Howard Carter, 2015AP1311, District 3, 2/2/2015; case activity (Hager) (Carter) (including briefs)–final SCOW decision here 4/19/18

Issues

(1) Does [the 2013 Wis. Act 84] change in [Wis. Stat. § 980.09(2)] authorize the circuit court to weigh the evidence [to determine whether to hold a discharge trial], overruling State v. Arends, 2010 WI 46, ¶¶40-43, 325 Wis. 2d 1, 784 N.W.2d 513; (2) If the court is allowed to weigh the evidence, how is such a weighing accomplished, and, specifically, what factors should the court consider when predicting whether the factfinder would likely conclude the person no longer meets the criteria for commitment; (3) If the statute allows the court to weigh the evidence and consider the credibility of the competing psychological reports at this stage where the petitioner bears the burden of establishing a change in his or her condition, is the statute unconstitutional because it misallocates the burden of proof; and (4) Does the change in the statute apply retroactively to a petition for discharge filed before the revised statute’s effective date.

Kevin Scott Karsjens v. Lucinda Jesson, 109 F. Supp. 3d 1139 (D. Minn. 2015), reversed, Karsjens v. Piper, 845 F.3d 394 (8th Cir. 2017).

After a lengthy trial in this class-action lawsuit brought by persons committed under Minnesota’s sexually violent person law, a federal district judge concluded that Minnesota’s sexually violent person commitment law does not pass constitutional scrutiny. The 8th Circuit reverses, holding the district court applied the wrong standards of scrutiny to the Minnesota law and that under the correct standards the statute passes muster.

Carl C. Gilbert, Jr., v. Deborah McCulloch, No. 13-3460 (7th Cir. Jan. 12, 2015)

Gilbert was committed as a sexually violent person while he was still in prison serving a criminal sentence, so he was not transferred to the ch. 980 treatment facility till he finished the sentence. The state courts upheld his commitment and the Seventh Circuit now rejects Gilbert’s habeas challenge, holding the state court’s decision was not clearly contrary to, nor an unreasonable application of, Foucha v. Louisiana, 504 U.S. 71 (1992).

State v. Thornon F. Talley, 2015 WI App 4; case activity

A person committed as a sexually violent person under ch. 980 does not have a due process right to have the state prove at a discharge hearing that he is still a sexually violent person, so the clear and convincing evidence standard under § 980.09(3) is not facially unconstitutional.

On review of published court of appeals decisions: Alger, 2013 WI App 148; Knipfer, 2014 WI App 9; case activity: Alger; Knipfer

Issues (composed by On Point)

Does the filing of a petition for discharge or supervised release under ch. 980 after the effective date of the adoption of 2011 Wisconsin Act 2 “commence” an action or proceeding such that the Daubert standard for expert witness testimony applies to the discharge or supervised release proceeding?

If the filing of a discharge or supervised release petition after the effective date of Act 2 does not commence a new proceeding, does it violate due process or equal protection to refuse to apply the Daubert standard to the proceedings on those petitions?