DAs can’t initiate Chapter 980 petitions

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Hon. Ann Walsh Bradley

A district attorney cannot petition for commitment of a prisoner as a sexually violent person, in the absence of a referral from the Department of Corrections (DOC) to the Department of Justice (DOJ), the Wisconsin Supreme Court held on July 3.

Harris D. Byers was an incarcerated sex offender due to be released, and the Brown County district attorney filed a petition against him pursuant to Chapter 980, even though the DOC did not refer the case to the DOJ for filing. Byers moved to dismiss on that ground, but Judge William C. Griesbach denied the motion.

Byers unsuccessfully sought interlocutory review, and on the second day of trial, the parties entered an agreement, under which Byers admitted to being a sexually violent person, and the State agreed not to oppose conditional release.

Nevertheless, the court ordered institutional confinement. Byers appealed, and the court of appeals affirmed in a decision recommended for publication, but not published by the Publication Committee.

The Supreme Court accepted Byers’ petition for review, and reversed the court of appeals in a decision by Justice Ann Walsh Bradley.

Legislative History

Section 980.02(1) provides, in relevant part, “A petition alleging that a person is a sexually violent person may be filed by one of the following: (a) The department of justice at the request of [the DOC]… (b) If the department of justice does not file a petition under par. (a), the district attorney…”

The court began by examining the legislative history. The court found that the original language of the law provided that a petition could be filed by (a) the district attorney; or (b) the DOJ, at the request of a district attorney or the DOC.

From this, the court concluded, “A review of the placement of the provisions, together with the legislative history, reflects an intent to create a step-by-step process that must be followed before a district attorney has authority to file a petition. Under this step-by-step process, the initial step is that the agency with jurisdiction evaluates the person to be released to determine whether the person may meet the criteria for commitment as a sexually violent person. If the agency determines that the person may meet the criteria, the agency requests that the DOJ file a petition. The DOJ can then file a petition or coordinate with one of the appropriate district attorneys regarding filing a petition. Alternatively, the DOJ can determine that a filing is not warranted despite the agency request, in which case one of the appropriate district attorneys can then file the petition on his or her own.”

The court acknowledged that its interpretation elevates the role of DOC in determining when a Chapter 980 petition can be filed, but concluded there are several policy reasons to support having the DOC serve a gatekeeping role.

First, the DOC has the person under its supervision, care, and custody, and thus has, “the most comprehensive information regarding the person’s status under Chapter 980.” Second, the DOC has a “significant amount of knowledge and expertise with supervising and dealing with the type of offenders that are potentially subject to Chapter 980 petitions.”

Third, the DOC has the most recent contact with the person, whereas “the district attorney of the county of conviction will likely have lost personal contact during the years of confinement,” and “the district attorney
of the county of intended residence may have had no prior contact with the person.”

Fourth, giving a gatekeeper role to the DOC “facilitates creating a consistent and coordinated process for filing Chapter 980 petitions.” Fifth, “there is a benefit to having a central screening process to conserve scarce resources.”

And finally, “use of the independent expertise of the agency with jurisdiction can be a tool for ensuring that the decision to file a Chapter 980 petition is insulated from local pressures.”

The court acknowledged, “there is nothing in the legislative history that directly articulates reasons for or against placing the agency with jurisdiction in a gatekeeper role that limits the district attorney’s authority.”

However, the court concluded, “the existence of these policy reasons supports the conclusion that such a broad gatekeeper role would be consistent with a legislative intent to create a step-by-step process that enhances the coordinated and efficient operation of Chapter 980.”

Accordingly, the court held that the petition was not properly filed and reversed.

The Crooks Dissent

Justice N. Patrick Crooks dissented, in an opinion joined by Justice Diane S. Sykes, concluding that the statute unambiguously permits a district attorney to file a petition, even in the absence of a referral from the DOC, and therefore, legislative history is irrelevant.

Quoting the court of appeals’ decision, Crooks iterated, “If the DOJ does not file a petition, subsec. (b) allows the district attorney for the county where the person was convicted of the sexually violent offense or where that person will reside or be placed upon release from imprisonment to file a petition for commitment. Wis. Stat. sec. 980.02(1)(b). We note that sec. 980.02(1) neither requires the DOC to make a referral to the DOJ nor the latter to expressly decline filing as a condition precedent to the district attorney instituting proceedings. The sole requirement is that the DOJ, under whatever circumstances, did not file a petition.”

“We conclude that Wis. Stat. sec. 980.02(1)(b) unambiguously permits the district attorney in either the county of conviction or of anticipated residence or placement upon discharge to file a Wis. Stat. ch. 980 petition in the event the DOJ does not. Here it is undisputed that the department did not file a petition, but the district attorney for the county in which Byers would have resided upon discharge did.”

The Abrahamson Concurrence

Chief Justice Shirley S. Abrahamson wrote a concurring opinion taking issue with Justice Crooks’ refusal to consider the legislative history.

Abrahamson wrote, “An examination of our cases involving statutory interpretation demonstrates that this court often mechanically repeats the plain meaning rule that it will not resort to extrinsic sources when the meaning of the text is unambiguous. Yet in a large number of these cases the court has examined sources beyond the specific text of the statute at issue to determine the meaning of the language, regardless of any finding that the text is ambiguous. Even a casual observer of the Wisconsin cases would, without fear of being contradicted, summarize the case law as adopting inconsistent approaches to statutory interpretation (footnotes omitted).”

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Discussing ambiguity, Abrahamson argued, “language, especially statutory language, is often ambiguous. ‘Anything that is written may present a problem of meaning. … The problem derives from the very nature of words. They are symbols of meaning. But unlike mathematical symbols, the phrasing of a document, especially a complicated enactment, seldom attains more than approximate precision.’ Language is further a product of its time and context. ‘A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which
it is used.’ (cites omitted).”

Finally, Abrahamson advocated adopting the following standard for statutory interpretation: “[T]he true rule for the construction of statutes is, to look at the whole and every part of the statute, and the apparent intention derived from the whole, to the subject matter, to the effects and consequences, and to the reason and spirit of the law, and thus, to ascertain the true meaning of the legislature, though the meaning so ascertained may sometimes conflict with the literal sense of the words (emphasis in original)(quoting Harrington v. Smith, 28 Wis. 43, 59 (1871).”

Justice William A. Bablitch also wrote a concurring opinion, verbatim to the concurrence he wrote in State v. Peters, 2003 WI 88, and reprinted in full in the article discussing that case. See page 4A. Justice Jon P. Wilcox did not participate.

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David Ziemer can be reached by email.