State v. Ermers
State v. Ermers
Opinion of the Court
¶ 1. The issue on this appeal concerns the pleading requirements of a petition for discharge from a commitment as a sexually violent person under Wis. Stat. ch. 980 (2009-10).
BACKGROUND
¶ 2. Ermers was convicted in 1986 of first-degree sexual assault of a seven-year-old girl. He was released in 1993. Two years after his release Ermers was convicted of first-degree sexual assault of a child and convicted of child abuse with intent to cause harm for sexually assaulting his girlfriend's five-year-old son.
¶ 3. In 2003, as the date for Ermers' mandatory release approached, the State filed a petition seeking to detain Ermers as a sexually violent person within the meaning of Wis. Stat. § 980.01(7) (2001-02). At that time, in order to commit a person as a sexually violent person, the State had to prove beyond a reasonable doubt that (1) the person had been adjudged to have committed
¶ 4. After Ermers' commitment, the department conducted annual re-examinations as required by Wis. Stat. § 980.07(1).
¶ 5. In September 2009 Ermers filed a petition for discharge pursuant to Wis. Stat. § 908.09. By this time the "substantial probability" requirement for engaging in future acts of sexual violence had been changed to "more likely than not," see Wis. Stat. § 980.01(lm), (7),
¶ 6. Dr. Rypma issued a report recommending that Ermers be discharged because he "no longer qualifies under Wisconsin's statute as a 'sexually violent person.'" In Dr. Rypma's opinion, Ermers continued to have a mental disorder — pedophilia—that predisposed him to commit acts of sexual violence. However, in Dr. Rypma's opinion, Ermers did not meet the standard of being "more likely that not" to commit future acts of sexual violence. The basis for this opinion, Dr. Rypma explained, was recent research, including research conducted by the authors of the Static-99, that that instrument overestimated the risk of sexually reoffending. Referring to Ermers' score of eight on the Static-99, Dr. Rypma stated:
Using the old, now outdated normative data, a score higher than 5 places the individual in the highest risk category possible on this instrument. Mr. Ermers received a score which would have previously placed him in the medium-high category. However, using newer and purportedly more accurate norms, Mr. Ermers would now seem to be associated with a group of individuals who recidivated sexually somewhere between 23.0% and 42.8% over 10 years, and given Mr. Ermers' exposure to treatment, can reasonably] be assumed to be closer to the 23.0% rate. [Emphasis added.]
¶ 7. Ermers filed an amended petition for discharge based on Dr. Rypma's conclusion and he attached and incorporated Dr. Rypma's report. The State moved to dismiss Ermers' petition, asserting that nei
¶ 8. After the circuit court denied the petition, the supreme court decided State v. Arends, 2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 513, which addressed the statutory requirements for obtaining a discharge hearing under Wis. Stat. § 980.09. Ermers filed a motion for reconsideration, arguing that he was entitled to a discharge hearing under Arends. The circuit court denied the motion.
DISCUSSION
I. Statutory Background and Parties' Positions
¶ 9. On appeal Ermers renews his argument that he is entitled to a discharge hearing under Wis. Stat. § 980.09(1) and (2).
¶ 10. To provide context for the parties' dispute, we briefly describe the process for obtaining a discharge hearing. The process begins with the filing of a petition for discharge by the committed person. § 980.09(1). If the petition does not allege "facts from which the court or jury may conclude the person's condition has changed since the date of his or her initial commitment order so that the person does not meet the criteria for commitment as a sexually violent person," the circuit court is to deny the petition without a hearing. Id. If, on the other hand, the court determines the petition does allege the requisite facts, then the court reviews the petition and certain other documents to determine if they "contain[] facts from which the court or jury may conclude that the person does not meet the criteria for commitment as a
¶ 11. The parties' dispute focuses on the meaning of the italicized language in the requirement in Wis. Stat. § 980.09(1) that the petition must allege facts from which the fact finder may conclude that "the person's condition has changed since the date of his or her initial commitment order so that the person does not meet the criteria for commitment as a sexually violent person." (Emphasis added.)
¶ 12. Ermers contends that his amended petition, which incorporates Dr. Rypma's report, meets the requirement in Wis. Stat. § 980.09(1) of alleging facts that show his "condition has changed since the date of his . .. initial commitment order so that [he] does not meet the criteria for commitment as a sexually violent person."
¶ 14. The State responds that Ermers' amended petition does not meet the requirement of alleging that his "condition has changed." The State construes this language to mean that the petitioner's mental disorder must have changed. In other words, according to the State, there must be facts alleging "either a decline in the seriousness of [his] mental disorder or the diagnosis of a less dangerous mental disorder." As we understand the State's position, the change in the mental disorder cannot be the result of a change in professional knowledge or research, but must be the result of a change in the person himself or herself. The State reads Arends to support this position.
¶ 15. In order to resolve the parties' dispute, we must interpret and apply Wis. Stat. § 980.09 in light of existing case law. This presents a question of law, which we review de novo. See Arends, 325 Wis. 2d 1, ¶ 13.
¶ 16. In the following paragraphs we first examine Pocan, 267 Wis. 2d 953, which held, under a prior version of Wis. Stat. § 980.09, that an expert opinion based on new actuarial tables entitled the committed person to an initial hearing on his discharge petition. We next examine Arends, which addresses the current
II. Pocan
¶ 17. The version of Wis. Stat. § 980.09 in effect prior to the current version had different procedures for obtaining a discharge hearing. See Arends, 325 Wis. 2d 1, ¶¶ 18-22 (discussing prior version).
¶ 18. In Pocan, the discharge petition was accompanied by a re-examination report that used actuarial tables unavailable at the time of the commitment hearing and concluded that Pocan's " 'mental disorders [did] not pre-dispose [him] to engage in acts of sexual violence ....'" Pocan, 267 Wis. 2d 953, ¶ 4. The circuit court did not afford Pocan a probable cause hearing. Id., ¶ 8. On appeal the State conceded that Pocan was entitled to a probable cause hearing, but the State contended that the error did not require reversal because the re-examination report did not provide any evidence that Pocan's condition had improved. Id., ¶ 9 In the State's view, Pocan needed to show that his condition had improved in order to show that he was not "still" a sexually violent person. Id., ¶ 11.
¶ 19. We rejected the State's argument, explaining:
We agree that progress in treatment is one way of showing that a person is not still a sexually violent person. However, we conclude that is not the only way. A new diagnosis would be another way of proving someone is not still a sexually violent person. A new diagnosis need not attack the original finding that an individual was a sexually violent person. Rather, a new diagnosis focuses on the present. The present diagnosis would be evidence of whether an individual is still a sexually violent person.
The circuit court found Pocan to be a sexually violent person when it committed him in 1998. He now argues new diagnostic tools show that he is not a sexually violent person. If the court finds Pocan is not*462 sexually violent now, that means he is not still a sexually violent person.8
Id., ¶¶ 12-13 (footnote added).
¶ 20. We re-affirmed Pocan in State v. Combs, 2006 WI App 137, ¶ 25, 295 Wis. 2d 457, 720 N.W.2d 684, which addressed the same discharge statute.
III. Arends
¶ 21. In Arends the court explained the two-step process circuit courts are to follow under the current Wis. Stat. § 980.09(1) and (2) in determining whether to hold a discharge hearing. Arends, 325 Wis. 2d 1, ¶¶ 3-5. In discussing § 980.09(1), the court quoted the "condition has changed" language at issue in this case. Id., ¶¶ 23, 26. However, the court did not focus on this language in discussing the circuit court's inquiry in the first step under § 980.09(1).
The standard here looks to what a court or jury "may conclude" from the allegations in the petition. Thus, in order to pass § 980.09(1) review, the court must determine that a reasonable trier of fact could conclude from the facts alleged in the petition and its attachments that the petitioner does not meet the criteria for commitment as a sexually violent person. Allegations sufficient to support relief for the petitioner would necessarily have to show that the petitioner no longer meets one or more of the three statutory requirements for being a sexually violent person under § 980.01(7). As reflected in the standardized form petition, the allegations will most likely challenge the requirement that a committed person have a mental disorder that predisposes him or her to acts of sexual violence, and/or that the committed person is more likely than not to commit another violent sexual offense.
Id., ¶ 27.
¶ 22. The Arends court concluded that the petition with an attached report from a psychologist met this standard. Id., ¶ 48 n.24. The court did not elabo
¶ 23. We agree with Ermers that Arends does not suggest that the allegations in a petition — including the expert opinion in an attached report — are insufficient unless they allege a change in the person's mental disorder or dangerousness that does not depend upon a change in professional knowledge or research. Indeed, the Arends court concludes that the expert report attached to that petition was sufficient under Wis. Stat. § 980.09(1) without mentioning any such requirement.
IV Richard
¶ 25. After the briefs were submitted in this case, we decided Richard, 2011 WI App 66, which concerns a petition for discharge under the current Wis. Stat. § 980.09. The petition for discharge in Richard was
¶ 26. Our opinion in Richard may suggest that, had there been an evaluation of the petitioner that applied the new research and concluded his likelihood of reoffending no longer met the statutory requirement, such an evaluation would satisfy the requirements of current Wis. Stat. § 980.09(1). However, we did not need to reach this issue on the facts before us in Richard and we did not address it.
¶ 27. Because we conclude that existing case law does not resolve the question of the proper construction of the "condition has changed" language in Wis. Stat. § 980.09(1), we turn to an examination of this language.
¶ 28. The State argues that the plain meaning of "condition has changed" is that the person's mental disorder has changed, not the professional knowledge or research that evaluates a person's mental disorder or dangerousness. We note at the outset that the State does not explain why a change in a person's physical condition is excluded from its proposed construction. For example, in the State's view, if a person develops a physical disability that, according to an expert, makes it no longer more likely than not the person will sexually reoffend, these circumstances could not satisfy the pleading requirements of Wis. Stat. § 980.01. We see no reasonable basis for this distinction between a mental and a physical change in the person.
¶ 29. However, there is a more fundamental problem with the State's proposed construction. Read in isolation, the "condition has changed" language arguably means that the change must be in the person's mental or physical condition itself and not a change in the professional knowledge or research used to evaluate the person's condition. However, we do not construe statutory language in isolation. See State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 46, 271 Wis. 2d 633, 681 N.W.2d 110. We consider the language in the context of related statutes and in the context of the purpose of the statute as revealed in the text, and we interpret the language reasonably, so as to avoid unreasonable results. Id., ¶¶ 46, 49.
¶ 31. In view of this purpose, we conclude that the only reasonable construction of the "condition has changed" language in Wis. Stat. § 980.09(1) is that it encompasses all the changes that, a fact finder could determine, result in the person not meeting the criteria for commitment as a sexually violent person. Specifically, this language includes not only a change in the person himself or herself, but also a change in the professional knowledge or research used to evaluate a person's mental disorder or dangerousness, if the change is such that a fact finder could conclude the person does not meet the criteria for commitment. Expert opinions are typically relied upon by fact finders at the initial commitment hearing in deciding that a person's mental disorder and degree of dangerousness meet the statutory criteria. These opinions are based on the professional knowledge and research available at the time.
¶ 32. In rejecting the State's proposed construction, we also take into account the significant role that discharge hearing procedures have in assuring the constitutionality of Wis. Stat. ch. 980. The re-examinations and procedures for discharge hearings are "among the protections that the supreme court has considered significant in concluding that Wis. Stat. ch. 980 does not violate the equal protection clause or the right to due process." Combs, 295 Wis. 2d 457, ¶ 28 (citing State v. Post, 197 Wis. 2d 279, 307 n.14, 313-16, 325-27, 541 N.W.2d 115 (1995)); see State v. Rachel, 2002 WI 81, ¶ 66, 254 Wis. 2d 215, 647 N.W.2d 762 (ch. 980 "passes constitutional muster" because confinement is "linked to the dangerousness of the committed person" and there are procedures for ending confinement when the person is no longer dangerous); State v. Thiel, 2004 WI App 140, ¶ 23, 275 Wis. 2d 421, 685 N.W.2d 890 ("[0]ur supreme court has tied the constitutionality of Wis. Stat. ch. 980 to the availability of periodic reviews that reassess the person's dangerousness to determine if a lesser restriction of his or her liberty is warranted."); see also Foucha v. Louisiana, 504 U.S. 71, 77 (1992) (a person subject to a mental health commitment "may be held as long as he is both mentally ill and dangerous, but no longer").
¶ 33. The State's proposed construction would exclude changes in professional knowledge and research from the category of changes that may warrant a dis
¶ 34. In summary, we interpret the phrase "the person's condition has changed since the date of his or her initial commitment order so that the person does not meet the criteria for commitment as a sexually violent person" in Wis. Stat. § 980.09(1) as follows: the phrase includes not only a change in the person himself or herself, but also a change in the professional knowledge and research used to evaluate a person's mental disorder or dangerousness, if the change is such that a fact finder could conclude the person does not meet the criteria for a sexually violent person. Put in the context of the inquiry under § 980.09(1), the circuit court may not deny a discharge petition without a hearing if the petition alleges facts from which a fact finder could determine that, as a result of any one of those changes, the person does not meet the criteria for a sexually violent person.
¶ 35. We emphasize that the "change" referred to in Wis. Stat. § 980.09(1) does not include an expert opinion that depends only on facts or professional knowledge or research that was considered by the experts testifying at the commitment trial. Combs, 295 Wis. 2d 457, ¶ 1. In Combs we concluded that such an expert opinion was inadequate to establish probable cause that
¶ 36. In this case, Dr. Rypma's opinion relies on professional knowledge and research not considered at the commitment trial. In addition, unlike in Richard, there is an expert report using the new knowledge and research to evaluate the likelihood of Ermers, in particular, reoffending. Applying the construction of Wis. Stat. § 980.09(1) we have just adopted, we conclude Dr. Rypma's report satisfies the requirements of § 980.09(1), the first step in obtaining a discharge hearing.
¶ 37. Regarding the second step in obtaining a discharge hearing, Ermers contends in his main brief that the documents he submitted, in addition to the amended petition with Dr. Rypma's report, entitle him to a discharge hearing under Wis. Stat. § 980.09(2). The State does not dispute this assertion in its responsive brief. We therefore take this as a concession that Ermers is correct. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979) (citing State ex rel. Blank v. Gramling, 219 Wis. 196, 199, 262 N.W. 614 (1935)). Based on this implicit concession, we conclude Ermers is entitled to a discharge hearing.
¶ 38. We conclude that Ermers pleading and the attached report of Dr. Rypma meet the requirements of Wis. Stat. § 980.09(1). The State does not dispute that, if the requirements of § 980.09(1) are met, Ermers is entitled to a discharge hearing under § 980.09(2). Accordingly, we reverse the circuit court's denial of a discharge hearing and remand for a discharge hearing.
By the Court. — Order reversed and cause remanded for further proceedings.
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
The first subsection of Wis. Stat. § 980.09 is not numbered but the second subsection is identified as § 980.09(2). We therefore refer to the first subsection as § 980.09(1). See State v. Arends, 2010 WI 46, ¶ 23 n.16, 325 Wis. 2d 1, 784 N.W.2d 513.
In addition to the annual re-examination, Wis. Stat. § 980.07 requires that the treating professional shall prepare a treatment progress report. § 980.07(1), (4).
This change was made by 2003 Wis. Act 187, § 2, and was effective April 22, 2004.
Reference to "petition" in Wis. Stat. § 980.09(1) includes the documents attached to the petition. Arends, 325 Wis. 2d 1, ¶ 25 n.17.
Ermers does not appear to take the position that Dr. Rypma would arrive at the same conclusion based on the treatment Ermers was exposed to since his commitment if there were no change in the professional knowledge and research
The current Wis. Stat. § 908.09 was enacted by 2005 Wis. Act 434, effective August 1, 2006.
We recognize that the State in Pocan, in addition to relying on the "still a sexually violent person" language in Wis. Stat. § 980.09(2)(a) (2001-02), also relied on language similar to the current § 980.09(1) that was used at that time in another section providing another option for a discharge hearing. State v. Pocan, 2003 WI App 233, ¶ 10, 267 Wis. 2d 953, 671 N.W.2d 860. Specifically, § 980.10 (2001-02) (which has since been repealed) required that the discharge petition contain "facts upon which a court could find that the condition of the person had so changed that a hearing [was] warranted." Id., ¶ 10 (emphasis added). However, although the State in Pocan viewed this italicized language as similar in meaning to "still a sexually violent person," our analysis addressed only the meaning of "still a sexually violent person," the phrase used in the section applicable to Pocan's petition for discharge.
The statute at issue in State v. Combs, 2006 WI App 137, 295 Wis. 2d 457, 720 N.W.2d 684, Wis. Stat. § 980.09 (2003-04), is virtually identical to § 980.09 (2001-02), the statute at issue in Pocan.
The State relies on the description of the expert's report in this court's opinion in State v. Arends, 2008 WI App 184, ¶ 5, 315 Wis. 2d 162, 762 N.W.2d 422, affd in part and modified by 325 Wis. 2d 1. The State asserts that our description shows that the report opined that Arends himself had changed since the initial commitment and therefore the supreme court's conclusion that the report was sufficient under Wis. Stat. § 980.09(1) supports the State's proposed construction. However, as we have noted above, the supreme court described the report only by its conclusion" 'to a reasonable degree of professional certainty’ that Arends was 'not more likely than not to sexually reoffend.'" Arends, 325 Wis. 2d 1, ¶ 10. We do not understand the supreme court to base its conclusion that the report is sufficient under § 980.09(1) on reasons the court does not mention.
The parties debate the meaning of paragraph 41 in Arends, with Ermers contending it supports his position:
We also reject the notion that the burden shifts to the petitioner to prove he or she "no longer meets" the criteria for commitment. The statute focuses on whether a trier of fact could conclude that the petitioner "does not meet the criteria for commitment." The petitioner does not need to prove a change in status in order to be entitled to a discharge hearing; the petitioner need only provide evidence that he or she does not meet the requirements for commitment.
Arends, 325 Wis. 2d 1, ¶ 41. We understand the court here to be rejecting the State's argument that, in order to obtain a discharge hearing under Wis. Stat. § 980.09(2), the petitioner must not only present evidence from which a reasonable fact finder could conclude the petitioner no longer meets the requirements for commitment, but also must convince the court that the evidence supporting the petitioner's position is stronger than the evidence against it.-We do not read this paragraph to be commenting on the meaning of the "condition has changed" language in § 980.09(1).
In Richard we stated that the distinctions between the current version of Wis. Stat. § 980.09 and the version in effect when Pocan was decided did not affect our analysis. See State v. Richard, 2011 WI App 66, ¶ 15 n.3, No. 2010AP1188 (Apr. 27, 2011). However, the distinction we referred to did not include the difference between the "still a sexually violent person/no longer a sexually violent person" language in § 908.09(2)(a)-(b) (2001-02) and the "condition has changed" language of current § 908.09(1). Id.
See Combs, 295 Wis. 2d 457, ¶ 25 ("The methods professionals use to evaluate whether a person is sexually violent include both methods to determine whether a person has a
We note that the "condition has changed" language appears only in Wis. Stat. § 980.09(1), which addresses the alle
Reference
- Full Case Name
- In re the commitment of Charles M. Ermers, Jr.: State of Wisconsin, Petitioner-Respondent v. Charles M. Ermers, Jr.
- Cited By
- 2 cases
- Status
- Published