Justia.com Opinion Summary: In 2001, Glen Nordberg was committed as a sexually violent person pursuant to Wis. Stat. 980. Subsequently, Nordberg submitted several petitions for supervised release or discharge, including a petition in 2009 from which this appeal stemmed. The circuit court denied Nordberg's petition after reading Wis. Stat. 980.08(4)(cg) as placing the burden on the committed individual to prove by clear and convincing evidence that supervised release is warranted and finding that Nordberg had not met that burden. Nordberg filed a motion for reconsideration, arguing that the statute does not allocate the burden of proof to any party, and if the burden were on the individual, a clear and convincing evidence standard would be too onerous. The circuit court denied the motion. On appeal, the Supreme Court affirmed the circuit court, holding that (1) Wis. Stat. 980.08(4) unambiguously places the burden of proof on the committed individual, and policy considerations dictate that the individual bear his burden of persuasion by clear and convincing evidence; and (2) requiring an individual lawfully committed under chapter 980 to carry the burden of proof in a petition for supervised release does not violate the due process or equal protection clauses of the state and federal constitutions.
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2011 WI 84
SUPREME COURT
CASE NO.:
COMPLETE TITLE:
OF
WISCONSIN
2010AP1142
In re the commitment of Glen D. Nordberg:
State of Wisconsin,
Petitioner-Respondent,
v.
Glen D. Nordberg,
Respondent-Appellant.
ON BYPASS FROM THE COURT OF APPEALS
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
July 26, 2011
May 3, 2011
Circuit
Jefferson
Jacqueline R. Erwin
BRADLEY, J. dissents (Opinion filed).
ABRAHAMSON, C. J. joins dissent.
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant there was a brief and oral
argument by Donald T. Lang, assistant state public defender.
For
the
petitioner-respondent
the
cause
was
argued
by
Warren D. Weinstein, assistant attorney general, with whom on
the
briefs
was
J.B.
Van
Hollen,
attorney
general.
2011 WI 84
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.
No.
2010AP1142
(L.C. No.
2010CI000001)
STATE OF WISCONSIN
:
IN SUPREME COURT
In re the commitment of Glen D. Nordberg:
FILED
State of Wisconsin,
Petitioner-Respondent,
JUL 26, 2011
v.
A. John Voelker
Acting Clerk of Supreme
Court
Glen D. Nordberg,
Respondent-Appellant.
APPEAL from an order of the Circuit Court for Jefferson
County, Jacqueline R. Erwin, Judge.
¶1
DAVID T. PROSSER, J.
Affirmed.
This is a review of an order of
the circuit court denying Glen D. Nordberg's (Nordberg) petition
for supervised release.
The issues in this case are identical
to the issues we decide today in State v. West, 2011 WI 83, __
Wis. 2d __, __ N.W.2d __.
The issues presented are whether Wis.
No.
2010AP1142
Stat. § 980.08(4)(cg)1 places the burden of proof in a petition
for
supervised
release
with
an
individual
committed
as
a
sexually violent person under Wis. Stat. ch. 980, and if so,
whether
that
allocation
permissible.
of
the
burden
is
constitutionally
Nordberg's case is before this court on bypass of
the court of appeals pursuant to Wis. Stat. § (Rule) 809.60.
¶2
The
facts
relevant
to
Nordberg's
petition
are
as
follows.
¶3
Nordberg was committed as a sexually violent person in
January 2001.
to
his
In the initial evaluation report compiled prior
commitment
"paraphilia
antisocial
not
hearing,
otherwise
personality
Nordberg
specified,"
disorder.
In
was
diagnosed
cannabis
that
abuse,
report,
with
and
Nordberg's
history of sexual offenses included:
(a)
In 1990, at age 15, while sleeping in the basement
with the 10-year-old victim and her brothers, Nordberg unzipped
the victim's sleeping bag, took off her clothes, and had sex
with
her,
covering
her
mouth
and
telling
her
to
"shut
up."
Nordberg was adjudicated delinquent for sexual assault;
(b)
In
April
1991,
at
age
16,
Nordberg
was
again
adjudicated delinquent for false imprisonment and physical abuse
of
a
child
when
he
entered
the
11-year-old
victim's
house
without consent, carried the kicking victim upstairs, held her
down, and placed his hands down her pants;
1
All subsequent references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise indicated.
2
No.
(c)
2010AP1142
In the summer of 1991, Nordberg was accused of having
sexual contact with a 13-year-old girl by putting his hands down
her pants despite her insistence that he stop;
(d)
In April 1992, at age 17, Nordberg was convicted of
second-degree sexual assault and received four years probation
for having sex with a 15-year-old girl without consent and by
force;
(e)
Also in April 1992, Nordberg was accused of having
nonconsensual sex with a 20-year-old woman whom police described
as "mentally and intellectually immature for her age";
(f)
In March 1994, at age 19, Nordberg was convicted of
sex with a child 16 or older, with testimony that the victim
also made repeated requests for Nordberg to stop.
For this
offense, he was sentenced to nine months in jail.
¶4
August
Nordberg's non-sexual criminal history included, from
1986
vandalism,
through
criminal
September
damage
to
1991:
disorderly
property,
disorderly conduct, threats" violations.
and
conduct,
"harassment,
One of the harassment
violations involved contact with a victim of sexual assault.
Nordberg was also convicted of manufacture and delivery of a
controlled
substance.
Overall,
the
report
indicated
that
probable cause existed for Nordberg's civil commitment.
¶5
On January 24, 2001, a jury found Nordberg to be a
sexually violent person pursuant to Wis. Stat. ch. 980, and he
was committed to Sand Ridge Secure Treatment Center.
Since that
time, Nordberg has submitted several petitions for supervised
3
No.
2010AP1142
release or discharge, including the July 2009 supervised release
petition from which this appeal stemmed.
¶6
At Nordberg's July
2009
supervised
release
hearing,
Dr. Luis Rosell testified that he believed Nordberg satisfied
the
criteria
for
release
under
ch.
980.
He
indicated
that
Nordberg had shown "very positive" treatment progress and that
Nordberg was one of the patients who had progressed the most
among all the individuals he had ever seen.
also
diagnosed
personality
problematic
Nordberg
disorder,
as
with
pedophilia
disorders
that
Nordberg
was
when
However, Dr. Rosell
he
and
opined
first
antisocial
were
not
committed,
as
but
nonetheless still existed.
¶7
Dr. Rosell indicated that based on risk factors for
recidivism, Nordberg had a 30 to 48 percent risk of committing a
sexually violent crime in the next ten years.
Still, Dr. Rosell
believed Nordberg was "ready for the next step" as he had done
everything
asked
of
him
in
treatment.
Further
evidence
indicated Nordberg had been working on a relapse prevention plan
for
four
years,
that
Nordberg
recognized
his
own
drug
alcohol abuse, and that he was open to further treatment.
and
Lloyd
Sinclair, an associate treatment director at Sand Ridge, also
testified that Nordberg was meaningfully engaged in treatment.
However,
Sinclair
continued
sexual
expressed
deviancy,
uncertainty
and
pointed
regarding
to
Nordberg's
Nordberg's
prior
failures on supervision as cause for concern that he would be
more likely to reoffend.
4
No.
¶8
2010AP1142
Taking this evidence into consideration, the circuit
court denied Nordberg's petition for supervised release.
The
court read Wis. Stat. § 980.08(4)(cg) as placing the burden on
the
committed
individual
to
prove
by
clear
and
convincing
evidence that supervised release is warranted, and found that
Nordberg had not met that burden.
¶9
In
February
reconsideration
of
2010
his
Nordberg
supervised
filed
release
a
motion
for
hearing
or
new
a
trial, arguing that Wis. Stat. § 908.08(4)(cg) does not allocate
the burden of proof to any party, but rather requires the court
to make a determination based on all the evidence.
In the
alternative,
on
Nordberg argued
that
if
the
burden
were
the
individual, a standard of "clear and convincing" evidence would
be
too
onerous,
and
the
standard
evidence" should apply instead.
of
"preponderance
of
the
The circuit court denied the
motion, and the instant appeal resulted.
¶10
circuit
For
the
reasons
court's
set
forth
We
decision.
in
West,
hold
we
that
affirm
Wis.
the
Stat.
§ 980.08(4)(cg) unambiguously places the burden of proof on the
committed
individual,
and
that
policy
considerations
dictate
that the individual bear his burden of persuasion by clear and
convincing
evidence.
individual
lawfully
We
further
committed
under
hold
ch.
that
980
requiring
as
a
an
sexually
violent person to carry the burden of proof in a petition for
supervised release does not violate the due process or equal
protection
clauses
of
the
Wisconsin
5
and
United
States
No.
Constitutions.
Accordingly,
we
affirm
the
decision
2010AP1142
of
circuit court.
By the Court.—The order of the circuit court is affirmed.
6
the
No.
¶11
set
forth
ANN WALSH BRADLEY, J.
in
my
dissent
in
(dissenting).
State
v.
West,
2010AP1142.awb
For the reasons
2011
WI
83,
__
Wis. 2d __, __ N.W.2d __, I likewise dissent in this case.
¶12
I am authorized to state that Chief Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
1
No.
1
2010AP1142.awb
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