Civil Commitment

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. David Hager, Jr.

Case No.: 2015AP330

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

Focus: Civil Commitment

David Hager, Jr., appeals an order denying without a trial his 2014 petition seeking discharge from his WIS. STAT. ch. 980 commitment as a “sexually violent person.” Hager also appeals the order denying his motion for reconsideration. Hager and the State dispute the effects of certain amendments to the discharge statute, WIS. STAT. § 980.09, enacted as part of a legislative overhaul of ch. 980 in 2013. See generally 2013 Wis. Act 84 (hereinafter, “Act 84”). Act 84 changed the standards under both § 980.09(1) and (2) for the circuit court’s determination of whether a petitioner will receive a discharge trial. Those subsections now require the court to determine whether, at an ensuing discharge trial, a factfinder “would likely conclude” the petitioner no longer meets the criteria for commitment as a sexually violent person. The previous “may conclude” standard required the court to determine whether it was merely possible for the factfinder to conclude as such. At oral argument in this case, the parties generally agreed the legislature’s substitution of a “would likely conclude” standard for the former “may conclude” standard accomplished a material increase in the burden of production necessary to obtain a discharge trial under both levels of review in WIS. STAT. § 980.09(1) and (2). However, the State also argues the amendments to § 980.09(2) now require the circuit court to weigh the facts in support of the petition against facts unfavorable to the petition in ascertaining whether a factfinder would likely conclude discharge is required. The State argues the amendments to § 980.09(2) effectively abrogated State v. Arends, 2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 513.

We disagree and conclude the process set forth in Arends largely remains good law. The changes to WIS. STAT. § 980.09(2) as a whole do not permit circuit courts to “weigh” the evidence favorable to the petition against the evidence unfavorable to it. Rather, the amendments clarify the statute so as to reflect judicial interpretations of the statutory language since the last major revisions in 2006. At the same time, the amendments undisputedly increase the petitioner’s burden of production to convince a circuit court that all evidence within the record favorable to the petitioner, including those facts submitted with the petition, establishes a reasonable likelihood of success at a discharge trial.

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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.