State v. McGee
State v. McGee
Opinion of the Court
f 1.
The placement of a sexually violent person back into the community is a difficult and thankless task. Wisconsin law requires that a sexually violent person that is suitable for supervised release is to be placed back into their county of residence unless "good cause" is shown to place him or her in another county. In this appeal we address the statutory requirements that a court must comply with before placing a sexually violent person outside of the committing court's county.
¶ 2. Michael L. McGee was committed as a sexually violent person in 2004 by the Racine County Circuit Court. McGee's county of residence is Racine County. Kenosha County learned in May 2016 that Racine County planned to place McGee in Kenosha County. Kenosha County moved to rescind the approved plan to place McGee in Kenosha on the grounds that Kenosha County did not receive statutory notice nor was it allowed the statutory right to participate in McGee's supervised release plan. We agree with Keno-sha County and vacate the supervised release plan approved by the Racine County Circuit Court.
Background
¶ 3. McGee was convicted in 1987 of second-degree sexual assault and burglary in Racine County after he forcibly entered a stranger's residence, threat
¶ 4. A person determined to be a sexually violent person is committed to the custody of the Department of Health Services (DHS) and is required to be initially placed in a secure mental health facility. Wis. Stat. §§ 980.05, 980.06, 980.065. A sexually violent person has the right to petition the court that committed him for "supervised release," which allows a sexually violent person to reside in the community rather than in a secure mental health facility. Wis. Stat. § 980.08(1). The sexually violent person remains in the custody and under the supervision of DHS while on supervised release. See § 980.08(6m). The approval process for a supervised release plan involves a comprehensive study of the sexually violent person and the suitability of the proposed residence in the community where the sexually violent person will live.
¶ 5. In order to grant supervised release, the committing court must find that the sexually violent person has met all the criteria under Wis. Stat. § 980.08(4)(cg). McGee petitioned for supervised re
¶ 6. Wisconsin Stat. § 980.08(4)(cm) requires that a committing court "shall" select the county of the sexually violent person's residence for placement on supervised release "[ujnless the court has good cause to select another county." The statutes do not define what constitutes "good cause" for placing a sexually violent person in another county. McGee, as a resident of Racine County, was, therefore, required to be placed in Racine County unless the court had "good cause to select another county." See id. The Racine County Circuit Court, DHS, and the district attorney of Racine all agreed in June 2015, without an evidentiary hearing, that there was no suitable residence for McGee in all of Racine County because zoning ordinances throughout Racine prohibited the placement of sexually violent persons. See § 980.08(4)(cm) (2013-14). In June 2015, the Racine County parties decided that Kenosha County may have a residence for McGee. Kenosha County was not consulted.
¶ 7. In February 2016, the legislature enacted amendments to Wis. Stat. ch. 980 to prohibit a court from making a finding of "good cause" based on local zoning ordinances related to sexually violent persons. Wis. Stat. § 980.08(4)(cm); 2015 Wis. Act 156, § 8 (Act 156).
f 9. The circuit court granted Kenosha County's motion to intervene and scheduled an evidentiary hearing. Additional investigation revealed that the Wheatland property was within 1500 feet of a Kenosha County bike trail and near a fishing area, both of which are frequented by children and families. The Wheat-land property was also adjacent to a residence that included a one-year-old male child. McGee's sex offender special bulletin notice explicitly states that his "[t]argeted victims" are "[a]dult females; prepubescent males." This information was not conveyed to the court in the supervised release plan that DHS presented for approval. The day before the hearing, the Racine County district attorney, for the first time, sent a letter to the court objecting to the supervised release plan, explaining that it "was not informed that the proposed placement was adjacent to a residence with a one-year-old child" and that it did not "believe that the plan meets the safety needs of the community."
Analysis
f 11. At the heart of this dispute is whether Kenosha County and others within Kenosha County were provided proper notice that McGee was to be placed within its borders and given an opportunity to be involved in the supervised release plan. Safety is a paramount consideration in the placement of sexually violent persons, see State v. Burris, 2004 WI 91, ¶ 36, 273 Wis. 2d 294, 682 N.W.2d 812, and, therefore, compliance with the statutory provisions is critical. We review a circuit court's approval of a supervised release plan under Wis. Stat. § 980.08(4)(g) for an erroneous exercise of discretion. State v. Thiel, 2012 WI App 48, ¶ 6, 340 Wis. 2d 654, 813 N.W.2d 709. Statutory interpretation, however, is a question of law we review de novo. State ex rel. Steldt v. McCaughtry, 2000 WI App 176, ¶ 11, 238 Wis. 2d 393, 617 N.W.2d 201. As we conclude that DHS and the circuit court
¶ 12. As an initial matter, we conclude that the circuit court erroneously exercised its discretion in finding "good cause" that Racine County had no residence for McGee. Act 156 clearly altered the grounds for finding good cause, and McGee's supervised release was subject to all of Act 156's amendments. See 2015 Wis. Act 156, § 16. The circuit court heard testimony in May 2016 from Dr. Stephen Kopetskie, the court assessment and community programs director at Sand Ridge Treatment Center, that there was no housing available in Racine County, but he also testified that the staff member responsible for conducting searches and "maintaining our residence search log" resigned in February 2016, so "the log is not as well kept as it was previously." The bare assertion, completely undermined by the process upon which it was based, is insufficient to establish good cause. The local ordinances in Racine County were no longer grounds for finding good cause under Act 156 at the time the court approved McGee's supervised release. We conclude that the circuit court erroneously exercised its discretion in finding good cause for placement outside Racine County.
¶ 13. In the event a court does have good cause to select a different county from a sexually violent person's county of residence, the court and DHS are obligated to involve the county of intended placement, its law enforcement, the local government where the proposed placement exists, and others in the preparation of the supervised release plan. Wis. Stat. § 980.08(4)(d)-(f). The court, before approving any su
¶ 14. DHS is statutorily required to "consult with a local law enforcement agency having jurisdiction over any prospective residential option identified under [Wis. Stat. § 980.08(4)(e)]" and request a written report. Sec. 980.08(4)(em). The court "shall direct" DHS to use the above noted reports to prepare a supervised release plan "for the person." Sec. 980.08(4)(f). Section 980.08(4)(f) also requires that DHS consult with the "county coordinator of victims and witnesses services in the county of intended placement" prior to submitting its supervised release plan to the court.
¶ 15. Applying the statutory notice requirements to the case at hand, the Racine County Circuit Court, having decided in concert with the Racine County district attorney and DHS to place McGee in Kenosha County, was statutorily required to notify the Kenosha
¶ 16. The court and DHS failed to statutorily notice each of the above noted Kenosha County entities and failed to allow them to participate in the preparation of the supervised release plan for McGee. The court entered an "Order for Supervised Release Plan" on June 22, 2015, which lists Kenosha County as a location for possible placement as "DHS has no housing available in Racine County," but authorized only "[t]he petitioner, his/her attorney, the district attorney, and the following law enforcement agencies and local governmental units in Racine county" to submit prospective residential options for community placement. (Emphasis added.) Neither Kenosha County nor the Town of Wheatland were authorized by the court order to submit residential options. The court signed an "Order for the Racine County Department Under Wis. Stat. § 51.42 to Prepare a Residential Plan for Placement Pursuant to Wis. Stat. § 980.08(4)(e)," but the record does not include a similar order for Kenosha County. On January 22, 2016, the court again issued an "Order for Supervised Release Plan," which authorized "[a] report identifying prospective residential options for community placement" under § 980.08(4)(e), but the county listed was "statewide."
¶ 18. DHS maintains that they complied with the statutory requirements as they asked law enforcement to share any concerns about the "physical potential placement," meaning the placement of any Wis. Stat. ch. 980 offender in the Wheatland property. According to Serwa, "[i]t is not statutorily required for me to request each individual client. I am asking for the residence assessment not the assessment of the resident, the individual." The circuit court agreed with DHS, noting that "the inquiry required of law enforcement and the victim/witness division of the District Attorney's office is only that as it deals with the residence, not the proposed resident." We disagree.
¶ 20. We also conclude that DHS erred when it failed to include information in the supervised release plan pertaining to the one-year-old boy living next door to the Wheatland property. When questioned, Serwa reported that she was "follow [ing] the statutory requirement" under Wis. Stat. § 980.08(4)(f)4. Section 980.08(4)(f)4. provides that the plan will "[e]nsure that the person's placement is into a residence that is not on a property adjacent to a property where a child's primary residence exists" if the individual is a "serious child sex offender." DHS argued that McGee does not meet the definition of a serious child sex offender under Wis. Stat. § 980.01(4m) as he was never convicted of sexual assault of a child. The circuit court
f 21. Simply because McGee was not "convicted" of sexually assaulting a child, but rather his parole was revoked, does not mean that the proposed placement next to a child is not relevant to the court's ultimate determination under Wis. Stat. § 980.08(4)(g). The court is the ultimate arbitrator of whether or not the supervised release plan is appropriate as "adequately meet[ing] the treatment needs of the individual and the safety needs of the community." Id. We conclude that as McGee's parole was revoked in part for sexually assaulting a child, this information was vital to the court in making a proper legal determination under § 980.08(4)(g).
McGee's Cross-Appeal
¶ 22. We next address McGee's cross-appeal questioning whether the circuit court properly allowed Kenosha County to intervene in this case as a matter of right under Wis. Stat. § 803.09(1). We conclude that it did. Section 803.09(1) states:
Upon timely motion anyone shall be permitted to intervene in an action when the movant claims an interest relating to the property or transaction which is the subject of the action and the movant is so*428 situated that the disposition of the action may as a practical matter impair or impede the movant's ability to protect that interest, unless the movant's interest is adequately represented by existing parties.
f 23. Under Wis. Stat. § 803.09(1), the party requesting to intervene must meet four criteria: (1) the motion to intervene must be timely; (2) the party must claim an interest sufficiently related to the subject of the action; (3) the party must show "that disposition of the action may as a practical matter impair or impede the movant's ability to protect that interest"; and (4) the existing parties must not adequately represent the movant's interest. Helgeland v. Wisconsin Municipalities, 2008 WI 9, ¶ 38, 307 Wis. 2d 1, 745 N.W.2d 1. The criteria, however, "need not be analyzed in isolation from one another, and a movant's strong showing with respect to one requirement may contribute to the movant's ability to meet other requirements as well." Id., ¶ 39. We review a circuit court's decision to allow intervention as of right de novo. Id., ¶ 41.
¶ 24. We agree with the circuit court that Keno-sha County satisfied the four criteria for intervention as a matter of right.
CONCLUSION
¶ 25. We affirm the circuit court's grant of intervention to Kenosha County. We reverse the approval of the supervised release plan as the court erroneously exercised its discretion by failing to comply with Wis. Stat. § 980.08. Accordingly, we reverse and remand to the circuit court to vacate the approved supervised release plan.
¶ 26. No costs to either party.
By the Court. — Order affirmed in part; reversed in part and cause remanded with directions.
All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted.
Act 156 became effective March 2, 2016.
Kenosha County filed a motion to stay the decision pending appeal, which the circuit court denied. Kenosha County then filed an ex parte emergency motion to stay with this court, which we granted.
See Wis. Stat. § 51.42.
For these same reasons, we also conclude that the information concerning the bike trail and fishing pond should have been included in the supervised release plan presented by DHS. See Wis. Stat. § 980.08(4)(f)2.
The parties agree that Kenosha County's motion to intervene was timely.
See the companion case State v. McGee, No. 2016AP1068 (released May 17, 2017).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.