On Point: f. Supervised release

State v. Michael McGee, 2017 WI App 39; case activity (including briefs)

This is an important decision for the few, the happy few, who represent persons committed under ch. 980 in seeking supervised release. The court of appeals holds that the municipalities in which a committed person may be placed have the right to intervene in supervised release proceeding. It also holds that if the circuit court and Department of Health Services fail to adhere strictly to the statutory requirements governing supervised release planning, the supervised release order is invalid.

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?

State v. Dennis R. Thiel, 2012 WI App 48 (recommended for publication); for Thiel: Jeffrey W. Jensen; case activity

SVP (Ch. 980) Supervised Release – Challenge to Conditions: Ripeness 

Thiel’s challenge to 2 conditions of his supervised release from a ch. 980 commitment are ripe for review (the conditions relate to possible detention in a correctional facility and administration of polygraphs):

¶7        The State argues that Thiel’s claims are not ripe for review because no circumstances have arisen where Rules 13 and 16 were sought to be enforced.  

State v. Edwin Clarence West, 2011 WI 83, affirming unpublished opinion; for West: Ellen Henak, SPD, Milwaukee Appellate; case activity [Companion case: State v. Nordberg, 2011 WI 84 (same result, controlled by West).]

Someone under ch. 980 commitment as a sexually violent person bears the burden of proving by clear and convincing evidence the criteria for granting supervised release under § 980.08(4)(cg),

on bypass petition; for Nordberg: Donald T. Lang, SPD, Madison Appellate; case activity

Issue:

Whether someone under ch. 980 commitment as a sexually violent person bears the burden of proving by clear and convincing evidence the criteria for granting supervised release under § 980.08(4).

The court of appeals held, in State v. Rachel, 2010 WI App 60, 324 Wis. 2d 465, 782 N.W.2d 443,

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.

State v. Tory L. Rachel, 2010 WI App 60; for Rachel: Donald T. Lang, SPD, Madison Appellate; BiC; Resp. Br.; Reply Br.

SVP – Supervised Release Hearing: Burden of Proof on Petitioner

Under revisions to § 980.08 wrought by 2005 Wis. Act 434 (eff. date 8/1/06), the burden of proof has been shifted from the State (to prove unsuitability for supervised release) to the petitioner (to show suitability),

State v. Shawn D. Schulpius, 2006 WI 1, affirming, 2004 WI App 39
For Schulpius: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding1: Failure to place Schulpius on court-ordered supervised release did not “shock the conscience,” hence did not violate substantive due process, where the failure occurred despite good-faith, substantial efforts to comply with the order, ¶31.

Issue/Holding2: Failure to place Schulpius on court-ordered supervised release violated procedural due process.

State v. Richard A. Brown, 2005 WI 29, reversing 2004 WI App 33, 269 Wis. 2d 750, 767 N.W.2d 555
For Brown: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding:

¶8. The issue presented by the parties in the instant case is whether a circuit court’s denial of a chapter 980 petition for supervised release should be classified as a determination of a question of law or as an exercise of circuit court discretion.

State v. Richard A. Brown, 2005 WI 29, reversing 2004 WI App 33, 269 Wis. 2d 750, 767 N.W.2d 555
For Brown: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding: Where the only witness at Brown’s supervised release hearing was an expert who supported release, and the evidence indisputably showed favorable response to treatment, the State failed to meet its burden of proof that Brown should not be released,