05-1663 Burgess v. Watters

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The State of Wisconsin has jurisdiction to commit an Indian tribe member as a sexually violent person.

“With respect, we cannot agree with the Supreme Court of Wisconsin that chapter 980 qualifies as a ‘criminal’ statute. If it is, indeed, a criminal statute, serious consequences would follow in other areas of the law. A person like Burgess who already has been convicted and punished for certain behavior would be able to plead double jeopardy, for example. Criminal procedure rules of constitutional dimension would have to be respected during the proceeding. But the Supreme Court of the United States has squarely rejected this characterization for a law materially identical to Wisconsin’s, in Kansas v. Hendricks, 521 U.S. 346 (1997). In Hendricks, the Court held that a Kansas statute that permitted confinement of a person who was likely to engage in ‘predatory acts of sexual violence’ violated neither the Double Jeopardy Clause of the Constitution nor the ex post facto clause. Id. at 361. It was ‘unpersuaded . . . that Kansas has established criminal proceedings.’ Id.”

“[A]t least one other court has rejected the argument that civil actions to which the state is a party automatically fall outside Public Law 280’s limited grant of civil authority. See Doe v. Mann, 415 F.3d 1038 (9th Cir. 2005) (specifically rejecting the Wisconsin Attorney General’s opinion distinguishing between voluntary and involuntary child custody matters and determining that California’s enforcement of its child dependency laws fell within state’s civil adjudicatory jurisdiction and thus state could terminate reservation Indian’s parental rights). This is enough to show, under the generous AEDPA standards, that the Wisconsin Supreme Court’s conclusion does not lie outside the bounds of permissible differences of opinion. We thus cannot conclude that the court unreasonably applied clearly established federal law.”

Affirmed.

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Wood, J.