Civil Commitment

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Howard Carter

Case No.: 2015AP1311

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Civil Commitment

Howard Carter appeals an order denying without a trial his 2013 petition seeking discharge from his WIS. STAT. ch. 980 commitment as a “sexually violent person,”1 as well as an order denying his motion for reconsideration. Carter contends his initial attorney rendered constitutionally ineffective assistance by failing to challenge the retroactive application of the then-recently amended WIS. STAT. § 980.09 to his discharge petition. The discharge petition was filed prior to the legislation’s effective date, but the circuit court had not yet decided or held a hearing on the petition’s sufficiency. Carter concedes the statutory provisions at issue in this case, WIS. STAT. § 980.09(1) and (2), are procedural. The amendments to those subsections had the effect of accomplishing “a material increase in the petitioner’s burden of production” necessary to obtain a discharge trial. State v. Hager, 2017 WI App __, ¶32, ___ Wis. 2d ___, ___ N.W.2d ___. Whereas a petitioner was previously entitled to a discharge trial if there were any facts upon which a reasonable factfinder could grant relief, the new standard requires the petitioner to “demonstrate a reasonable likelihood of success in order to obtain a discharge trial.” Id. Contrary to Carter’s arguments, the new legislation did not disturb any vested right of Carter’s to a discharge trial, nor does it pose an unreasonable burden to his obtaining a discharge trial. We conclude § 980.09(1) and (2) apply retroactively to Carter’s petition. Because the amendments to WIS. STAT. § 980.09(1) and (2) operate retroactively, Carter’s attorney was not ineffective for failing to raise that issue. Carter alternatively argues that if the amendments apply to his discharge petition, they work an unconstitutional deprivation of his due process rights. For the reasons we articulated in Hager, we reject this argument. We therefore affirm the orders in this case.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.