On Point: d. Equal protection

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?

Milwaukee County v. Mary F.-R., 2012AP958, affirming an unpublished court of appeals opinion; case activity

Majority opinion by Justice Crooks; concurrence by Chief Justice Abrahamson; additional concurrence by Justice Ziegler (joined by Justices Roggensack and Gableman)

The issues in this case spring from State v. Post, 197 Wis. 2d 279, 318-319, 541 N.W.2d 115 (1995)(“persons committed under Chapters 51 and 980 are similarly situated for purposes of equal protection comparison) and State v.

State v. Steven C. Feldmann, 2007 WI App 35, PFR filed 3/23/07
For Feldmann: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: The ch. 980 omission of required proof of a recent overt act of sexual violence does not violate equal protection, as compared with the ch. 51 mental health commitment requirement of proof of a recent overt act demonstrating dangerousness.

The supreme court refused to impose such requirement under ch.

State v. Scott R. Nelson, 2007 WI App 2, PFR filed 1/22/07
For Nelson: Joseph L. Sommers

Issue/Holding:

¶15      … Even under the “more likely than not” standard, there must be a strong nexus between the person’s mental disorder and that person’s level of dangerousness. Under this standard, the likelihood that the person will engage in an act of sexual violence is more than 50%. 

State v. Steven J. Burgess, 2003 WI 71, affirming 2002 WI App 264, 258 Wis. 2d 548, 654 N.W.2d 81
For Burgess: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding:

¶33. Although persons committed under chapter 980 are similarly situated to those committed under chapter 51, there is a rational basis for the legislature’s distinction with respect to the confidentiality of proceedings under the two chapters.

State v. Shawn Virlee, 2003 WI App 4, PFR filed 1/3/03
For Virlee: Jack E. Schairer

Issue: Whether ch. 980 violates due process and/or equal protection because it doesn’t allow for pretrial release.

Holding:

¶14. We decline to address Virlee’s due process and equal protection arguments because he fails to establish, and we do not see, how the statute’s lack of a provision for pretrial release affects the trial court’s judgment.

State v. Isaac H. Williams, State v. Willie Hogan, 2001 WI App 263, PFR filed 11/23/01
For Williams: Donna L. Hintze, SPD, Madison Appellate
For Hogan: Donald T. Lang, SPD, Madison Appellate

Issue1: Whether the § 980.08(1) requirement that the SVP wait 18 months after initial commitment before petitioning for supervised release violates substantive due process.

Holding:

¶7.