On Point: 7. Appeal

Rock County Human. Servs. v. A.P., Appeal nos. 2022AP248-249; 7/14/22, District 4; (1-judge opinion, ineligible for publication); case activity

This is one more in a long line of appellate decisions affirming a default finding of grounds for terminating a parent’s rights without a finding that the parent had behaved egregiously as required by Dane Cnty. DHS v. Mable K., 2013 WI 28, ¶71, 346 Wis. 2d 396, 828 N.W.2d 198. The difference here is that the court of appeals also openly disregards (or perhaps is unfamiliar with?) the rules of appellate procedure.

State v. Jamie Lane Stephenson, 2020 WI 92, 12/18/20, affirming a published decision of the court of appeals; case activity (including briefs)

A five-justice majority of the supreme court holds that the state does not need to present expert opinion testimony that a person subject to commitment under Chapter 980 is dangerous to others because his mental disorder makes it more likely than not that he will engage in one or more future acts of sexual violence.

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. David Hager, Jr., 2017 WI App 8, petition for review granted 5/15/17; reversed 4/19/18; case activity (including briefs)

This is the first (likely) published case to construe the 2013 amendments to the ch. 980 discharge petition standard. The court of appeals holds that while the legislature required a committed person seeking a discharge trial to meet a higher burden of production, it did not permit courts to deny a trial based on an assessment that the evidence as a whole favors the state.

Review of an unpublished summary court of appeals order; case activity (including briefs)

Issues (from petition for review):

1. Was the Petitioner entitled to an evidentiary hearing on his petition for discharge from Chapter 980 commitment which included information that the Petitioner had terminated sexual acting out and where a psychologist reported improvement in an important area of functioning?

2. Should this case be remanded to the circuit court for a review that meets the requirements of § 980.09(2), namely, that the circuit court review all previous evaluations of a Chapter 980 Respondent?

State v. Gary F. Lemberger, 2015AP1452-CR, 4/14/2016, District 4 (one-judge decision; ineligible for publication), petition for review granted 10/11/2016, affirmed, 2017 WI 39; case activity (including briefs)

A breathalyzer test is a Fourth Amendment search, and state case law holds that the state may not invite a jury to view a defendant’s refusal to consent to a search as evidence of guilt. So, can a prosecutor argue that a defendant’s refusal to take a breathalyzer shows his guilt? Don’t look to this case for an answer.

Winnebago County v. Donna H., 2013AP80, District 2, 7/31/13; court of appeals decision (1-judge; ineligible for publication); case activity

Applying the supreme court’s recent decision in Outagamie County v. Melanie L., 2013 WI 67, the court of appeals concludes Winnebago County failed to show Donna H. is not competent to refuse medication. The applicable statute, § 55.14(1)(b), requires the County to show that the advantages and disadvantages of accepting medication have been explained to the individual subject to a possible involuntary medication order.

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,

State v. Thomas H. Bush (II), 2004 WI App 193, reversed in part, 2005 WI 103
For Bush: Robert G. LeBell

Issue: Whether Bush, on appeal from denial of petition for release from SVP commitment, § 980.09(2), is procedurally barred from challenging the constitutionality of his underlying commitment because he could have raised such challenge in a prior appeal.

Holding:

¶13.