State v. West
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In 1997, a jury found that Edwin West was a sexually violent person. West was committed under Wis. Stat. 980.08(1), which allows persons committed under chapter 980 to petition for supervised release into the community. In 2005, the legislature amended the statute, removing language that allocated the burden of proof to the State to prove that supervised release was not warranted. In 2008, West filed a motion with the circuit court to interpret whether the amended statute continued to allocate the burden on the State. The circuit court denied West's motion, finding that the amendments unambiguously placed the burden of proof with the committed individual. West appealed, arguing that the burden of proof did not rest with the committed person, and if it did, such allocation would violate due process and equal protection. The court of appeals affirmed the circuit court. On review, the Supreme Court affirmed, holding (1) the statute unambiguously places the burden of proof with the committed individual, and the appropriate burden of persuasion is clear and convincing evidence; and (2) this allocation does not violate due process and equal protection.
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2011 WI 83 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2009AP1579 In re the commitment of Edwin C. West: State of Wisconsin, Petitioner-Respondent, v. Edwin Clarence West, Respondent-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 329 Wis. 2d 710, 790 N.W. 2d 543 (Ct. App. 2010 Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: July 26, 2011 May 3, 2011 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Milwaukee M. Joseph Donald JUSTICES: CONCURRED: DISSENTED: BRADLEY, J. dissents (Opinion filed). ABRAHAMSON, C. J. joins dissent. NOT PARTICIPATING: ATTORNEYS: For the respondent-appellant there were briefs and oral argument by Ellen Henak, assistant state public defender. For the petitioner-respondent the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general. 2011 WI 83 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2009AP1579 (L.C. No. 1997CI970001) STATE OF WISCONSIN : IN SUPREME COURT In re the commitment of Edwin C. West: FILED State of Wisconsin, Petitioner-Respondent, JUL 26, 2011 v. A. John Voelker Acting Clerk of Supreme Court Edwin Clarence West, Respondent-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 DAVID T. PROSSER, J. This is a Affirmed. review of an unpublished decision of the court of appeals1 affirming an order of the Milwaukee County Circuit Court denying Edwin Clarence West's (West) petition for supervised release. 1 State v. West, No. 2009AP1579, unpublished slip op. (Wis. Ct. App. Aug. 10, 2010). No. ¶2 2009AP1579 In 1997 a jury found that West was a sexually violent person under Wis. Stat. ch. 980, and he was thereafter committed under that chapter. Under § 980.08(1), persons committed under ch. 980 may petition for supervised release into the community after at least committed or rejected. 12 months his last have passed petition for since the was release supervised person was The Wisconsin Legislature amended this statute in 2005, removing language that specifically allocated the burden of proof to the State in a hearing on the petition. ¶3 In 2008 West filed a motion with the circuit court to interpret whether amended § 980.08(4)(cg) continues to allocate the burden to the State. he also filed a One month after filing this petition, petition seeking supervised release. The circuit court denied his motion, finding that the amendments to § 980.08(4)(cg) unambiguously placed the burden of proof with the committed individual. The circuit court also denied his petition for supervised release. ¶4 West appealed, and argued to the court of appeals that the burden of proof does not rest with the committed person, and if it did, such allocation United States Constitutions. would violate the Wisconsin and The court of appeals disagreed, and in a per curiam opinion affirmed the circuit court. ¶5 West asks us to interpret the supervised release provision, Wis. Stat. § 980.08(4)(cg), to place the burden of proof with the State. ambiguous, the He argues that, although the statute is language, support his position. history, and scope of the statute He also asserts that the burden must 2 No. 2009AP1579 remain with the State to prevent § 980.08(4)(cg) from violating the due process and equal protection clauses of the Wisconsin and United States Constitutions.2 ¶6 We conclude unambiguously places that the amended burden Wis. of Stat. proof § 980.08(4)(cg) with the committed individual, and that the appropriate burden of persuasion is clear and convincing evidence. We further hold that this allocation does not violate the guarantees of due process and equal protection in the Wisconsin and United States Constitutions. I. BACKGROUND AND PROCEDURAL HISTORY ¶7 assault In 1993 West was convicted of second degree sexual in violation of § 940.225(2)(a). 2 Prior to West's The Fourteenth Amendment to the United States Constitution provides in part, "No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The court has held that the due process clause in Article I, Section 1 of the Wisconsin Constitution is the "substantial equivalent" of the federal due process clause. Soc'y Ins. v. LIRC, 2010 WI 68, ¶28 n.11, 326 Wis. 2d 444, 786 N.W.2d 385 (citing Neiman v. Am. Nat'l Prop. & Cas. Co., 2000 WI 83, ¶8, 236 Wis. 2d 411, 613 N.W.2d 160). Similarly, the equal protection clause of the Wisconsin Constitution declares that, "All people are born equally free and independent, and have certain inherent rights; among these are life, liberty, and the pursuit of happiness . . . ." Wis. Const. art I, § 1. Our interpretation is the same for both the federal and state equal protection clauses. Metro. Assocs. v. City of Milwaukee, 2011 WI 20, ¶22, 332 Wis. 2d 85, 796 N.W.2d 717 (citing Nankin v. Vill. of Shorewood, 2001 WI 92, ¶11 n.5, 245 Wis. 2d 86, 630 N.W.2d 141). Accordingly, where this opinion refers to "due process" or "equal protection," our analysis encompasses both federal and state constitutions. 3 No. release, the State petitioned to have him 2009AP1579 committed as a sexually violent person, pursuant to Wisconsin Statutes ch. 980. West was committed under ch. 980 in July 1997. ¶8 In preparation for the commitment hearing to establish probable cause to commit West, the State offered various medical examinations, including a report by Dr. Kenneth Diamond (Dr. Diamond), a senior staff psychologist for the Milwaukee Clinical Services Unit of the Department of Corrections. Dr. Diamond's evaluation of West compiled the results of various records and other, in-person, clinical evaluations. It was Dr. Diamond's opinion that West suffered from cocaine and alcohol abuse (both in remission) and from antisocial personality disorder, a mental disorder warranting commitment. Based on West's history of sexual assaults and his performance on various behavioral tests, Diamond stated: Psychological testing indicates that he is an aggressive individual with possible sexual problems. On the PCL-R [Psychopathy Checklist Revised], his total score is diagnostic of psychopathy. Additionally, he scores on several actuarial risk factors which are strongly indicative of violent recidivism and these include: a high degree of psychopathy, pre-treatment deviant sexual arousal, non-sexual criminality, denial or minimization of previous offense, and use of force and/or threat of force during crime. It is my opinion to a reasonable degree of psychological certainty that the antisocial personality disorder, cocaine abuse and alcohol abuse exhibited by Edwin C. West . . . are congenital or acquired conditions . . . that predispose Edwin C. West to engage in acts of sexual violence. It is also my opinion that these mental disorders exhibited by Edwin C. West create a substantial probability that he will engage in acts of sexual violence. 4 No. ¶9 Dr. Diamond's summary of West's 2009AP1579 history of sexual assaults included: (a) In 1982, at age 17, sexual contact with his then-15- year-old girlfriend, whom he impregnated; (b) In 1988, at age 23, a conviction for choking and raping a female acquaintance, for which West received probation; (c) In 1991, a probation violation for picking up a 16- year-old girl and threatening to rape her if she refused to kiss him, and then attempting to have intercourse with her;3 (d) In 1991, an accusation that West forced a woman into her bedroom where he pushed her down and ejaculated on her; and, (e) Also in 1991, an accusation that West terrorized and stalked a woman on the highway, although the woman did not press charges. ¶10 Finally, reports also indicated that in at least four states, West had adult criminal convictions including disorderly conduct and sexual assault, burglary and robbery, and auto theft. ¶11 Based on these factors, as well as his personal observations, Dr. Diamond recommended West be committed under ch. 980. Dr. Diamond testified at trial, and his report was admitted into evidence. In May 1997 a jury found West to be a sexually violent person under ch. 980. He was initially admitted 3 It was for this offense West was ultimately convicted of third-degree sexual assault, contrary to Wis. Stat. § 940.225(2)(a). 5 No. 2009AP1579 to the Wisconsin Resource Center for treatment, and transferred in 2001 to Sand Ridge Secure Treatment Center. ¶12 Between January 1998 and April 2009, during re- examination and review of West's classification as a sexually violent person, Department of Health and Family Services (DHFS) evaluators sexually either consistently violent person, supervised examination, indicated and release conducted that found West by had that West continued consistently or made recommended discharge.4 Hollida to Only Wakefield progress. in a against one May While be the re2008, report acknowledged that West still required treatment, it took the position that treatment could occur in the community. ¶13 In West's most recent examination in April 2009, however, the examiner diagnosed West with four mental disorders: paraphilia, alcohol dependence, polysubstance antisocial personality disorder. dependence, and The examiner found West to continue to be a sexually violent person and recommended against supervised release or discharge. ¶14 During his commitment, West requested supervised release in October 2000, July 2001, April 2002, and April 2008. He withdrew the 2000 and 2002 petitions without judgment. West also petitioned for discharge in April 2007 but withdrew that 4 These re-examination reports and citations to the record do not include additional Treatment Progress Reports prepared on an annual basis. The Treatment Progress Reports are, however, considered in the re-examination reports. 6 No. petition after his April re-examination 2009AP1579 results. He also petitioned for discharge in May 2009. ¶15 In March 2008 West filed a motion with the Milwaukee County Circuit Court, Martin J. Donald, Judge, to interpret Wis. Stat. § 980.08(4)(cg) as allocating the burden of proof to the State in a hearing on supervised release. Prior to the statute's amendment,5 the presumption in supervised release cases was to grant a petition for supervised release unless the State met the burden of proving that release was not warranted. § 980.08(4)(b) (2003-04). The prior version of Wis. Stat. the statute required a circuit court to: grant the petition unless the state proves by clear and convincing evidence . . . that it is still likely that the person will engage in acts of sexual violence if the person is not continued in institutional care . . . [or] . . . [t]hat the person has not demonstrated significant progress in his or her treatment or that the person has refused treatment. Id. ¶16 However, effective June 2006, the statute was revised to read that "[t]he court may not authorize supervised release unless . . . the court finds that all of the following criteria are met." Wis. Stat. § 980.08(4)(cg). The amended statute does not mention any burden of proof. ¶17 motion. On August 1, 2008, the circuit court denied West's In its oral decision, the court determined that § 980.08(4)(cg) unambiguously places the burden of proof on the 5 Amended and revised by 2005 Wis. Act 434, § 118. 7 No. civilly-committed individual. 2009AP1579 Additionally, the court held that placement of such burden on the individual offends neither the due process nor equal protection clauses of the Constitution. On the same day, the circuit court held evidentiary hearings on West's petition for supervised hearings on October 10, release, 2008. The followed circuit by court further ultimately denied the petition for supervised release. ¶18 West appealed, and the court of appeals affirmed the circuit court. In its decision, the court relied on State v. Rachel II), (Rachel 2010 WI App 60, 324 Wis. 2d 465, 782 N.W.2d 443, in which the court of appeals rejected arguments identical to those raised by West. State v. West, No. 2009AP1579, unpublished slip op., ¶4 (Wis. Ct. App. Aug. 10, 2010). ¶19 The court of appeals concluded that the statute was unambiguous, and that the plain language indicates the burden is to be placed on the petitioning committed individual. Id., ¶5. The court reasoned that by beginning the provision with language to deny supervised release unless certain criteria are met, the legislature intended to create a presumption of institutionalization that must be overcome by the moving party. Id. Furthermore, "it would be impractical, if not absurd, to place the burden on the State to demonstrate factors weighing in favor of release because the State has no incentive to do so." Id. (citing Rachel argument that the II). statute, Finally, as the amended, 8 court rejected West's was unconstitutional. No. Id., ¶6. Again, the court of appeals relied on its holding in Rachel II. ¶20 2009AP1579 Id. West petitioned this court for review. We granted the petition on January 11, 2011. II. STANDARD OF REVIEW ¶21 This appeal requires Stat. § 980.08(4)(cg). us to interpret amended Wis. Statutory interpretation is a question of law that the court reviews de novo. State v. Burris, 2004 WI 91, ¶31, 273 Wis. 2d 294, 682 N.W.2d 812. The question of who bears the burden of proof under a statute also is a question of law. Acuity Mut. Ins. Co. v. Olivas, 2007 WI 12, ¶31, 298 Wis. 2d 640, 726 N.W.2d 258. We determine questions of law independently from the circuit court and court of appeals, but we benefit from their analyses. ¶22 Id. The constitutionality of a statute is a question of law that we review de novo. State v. Cole, 2003 WI 112, ¶10, 264 Wis. 2d 520, 665 N.W.2d 328. constitutional, and a "Statutes are presumed to be party challenging a statute's constitutionality must demonstrate that it is unconstitutional beyond a reasonable doubt." State v. McGuire, 2010 WI 91, ¶25, 328 Wis. 2d 289, 786 N.W.2d 227 (citing State v. Baron, 2009 WI 58, ¶10, 318 Wis. 2d 60, 769 N.W.2d 34). III. DISCUSSION ¶23 West's case requires us to interpret Wis. Stat. § 980.08(4)(cg) to determine who bears the burden of proof in a petition for components: supervised the burden release. of This production, 9 inquiry and involves the burden two of No. persuasion. 2009AP1579 We next consider West's claim that to place the burden of proof upon the committed individual violates the due process and equal protection clauses of the Wisconsin and United States Constitutions. We analyze both arguments in the context of the history of ch. 980 and civil commitment law. A. Chapter 980 Sexually Violent Person Commitments ¶24 In May 1994 the Wisconsin Legislature enacted ch. 980, the Sexually Violent Person Commitment law.6 the circuit court to commit "sexually violent person" and an to Chapter 980 permits individual place the found person to be under a the DHFS's custody "for control, care and treatment until such time as the person is no longer a sexually violent person." Stat. § 980.06. Wis. As originally enacted, Wis. Stat. § 980.01(7) defined a "sexually violent person" as: [A] person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect or illness, and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence. Id. (1993-94).7 6 Chapter 980 was created pursuant to 1993 Wis. Act 479, § 40. 7 Chapter 980's definition for "sexually violent person" as enacted differs from the current definition which substitutes "likely" for "substantial probability" that the person will engage in one or more acts of sexual violence. Wisconsin Stat. § 980.01(7) (2007-08) thus defines "sexually violent person" as: 10 No. ¶25 One addressed year the after the law's constitutionality of enactment, ch. 980 in 2009AP1579 this the court companion cases of State v. Carpenter, 197 Wis. 2d 252, 541 N.W.2d 105 (1995), and (1995). State In v. Post, Carpenter, the 197 Wis. 2d 279, petitioners argued 541 N.W.2d 115 that ch. 980 violated the double jeopardy and ex post facto clauses of the United States and Wis. 2d at 258. Wisconsin Constitutions. Carpenter, 197 In Post, the petitioners argued that the law violated the due process and equal protection clauses. 197 Wis. 2d at 293. Post, This court rejected each of these claims and upheld ch. 980 as constitutional. Carpenter, 197 Wis. 2d at 258-59; Post, 197 Wis. 2d at 293-94. ¶26 In Carpenter, the issue at the heart of the petitioner's argument was that ch. 980 was a criminal statute, with double jeopardy and ex post facto implications. 197 Wis. 2d at 263, 272. not a criminal statute. ¶27 Carpenter, The court concluded that ch. 980 was Id. at 271-72. The primary goals and purposes of ch. 980 are to treat sexually violent persons and to protect society from the dangers [A] person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect, or illness, and who is dangerous because he or she suffers from a mental disorder that makes it likely that the person will engage in one or more acts of sexual violence. Id. (emphasis added). 11 No. posed by those persons. Id. at 258. the purposes of ch. 980. Id. 2009AP1579 Punishment is not among Specifically, the court held that ch. 980 was enacted as a civil commitment statute "to protect the public and provide concentrated sexually violent persons." ¶28 The court treatment to convicted Id. concluded that ch. 980's emphasis treatment was evident in the chapter's plain language. 266. Under then-existing Wis. Stat. § 980.06(1) on Id. at (1993-94), persons were committed to the DHSS (now DHFS) for "control, care and treatment" rather than to the Department of Corrections for Id. at 266. imprisonment. Notice provisions under Wis. Stat. § 980.015(3)(b) (1993-94) required the agency with jurisdiction to provide notice attorney to regarding received in the any prison. Department past Id. of treatment Further, Justice and the district individual then-existing had Wis. Stat. § 980.06(2)(b) and (c) required the court to consider available arrangements to ensure access and participation in treatment, and where release was appropriate, required the county where the individual resided individual. ¶29 other to identify a treatment plan for that Id. at 266-67. In addition to this explicit language, the court found evidence to support ch. 980's goal of treatment, specifically, that the State was prepared to provide specific treatment to committed them." Id. at 267. general population individuals and "not simply warehouse Committed individuals were not part of the of inmates. Id. Further, committed individuals were monitored by treatment professionals as opposed 12 No. to prison guards. Id. at 267-68. 2009AP1579 For these reasons, the court concluded: [T]he principal purposes of ch. 980 are protection of the public and the treatment of convicted sex offenders who are at a high risk to reoffend in order to reduce the likelihood that they will engage in such conduct in the future. These constitute significant nonpunitive and remedial purposes. Chapter 980 cannot be characterized as only serving the punishment goals of deterrence or retribution. Id. at 271. ¶30 Therefore, because ch. 980, as enacted, was a civil statute and not principally punitive, the court held that it did not violate the double jeopardy or ex post facto clauses. Id. at 258-59. ¶31 Similarly, in Post, the court emphasized that treatment for sexually violent persons is a bona fide goal of ch. 980. State's Post, 197 Wis. 2d at 308. obligation under Again it pointed to the § 980.06(1) (1993-94) to provide "control, care and treatment" to sexually violent persons as indicia of the Furthermore, chapter's individuals treatment committed purpose. pursuant to Id. ch. at 309. 980 were entitled to the same patient rights as persons committed under ch. 51. Id. Significantly, the State also was required to conduct "periodic mental examinations" pursuant to Wis. Stat. § 980.07(1) (1993-94) to establish whether sufficient progress had been made to warrant supervised release or discharge. at 314. 13 Id. No. ¶32 2009AP1579 Post also recognized ch. 980's purpose of protecting society from dangerous, sexually violent persons engage in future acts of sexual violence. likely Id. at 313. to States have a compelling interest in protecting society by committing those sexually violent persons most likely to engage in sexually violent acts in the future. not violate duration due are purposes." process reasonably Id. at 294. when the related Such commitment does commitment's to such "nature compelling and state Id. ¶33 The court concluded that ch. 980 permissibly balanced individual liberty and "the public's right to be protected from the dangers posed by persons who have already demonstrated their propensity Id. at and 317. willingness The to statute commit was sexually "narrowly violent tailored acts." to allow commitment only of the most dangerous of sexual offenders, those whose mental conditions predispose them to reoffend." 307. Id. at Based on these conclusions, the court found that ch. 980 did not violate the petitioner's right to due process. 294. Id. at In Post, as well as in Carpenter, the court held civil commitment pursuant to ch. 980 to be constitutionally permissible. ¶34 Wisconsin is not alone in passing civil commitment legislation to deal with sexually violent persons and combat the societal dangers these persons pose. the first commitment including state for to enact sexually California, In 1990 Washington became legislation violent Kansas, 14 for post-prison offenders. Minnesota, Other New civil states Jersey, and No. Arizona have passed similar civil commitment 2009AP1579 statutes for sexually violent individuals.8 ¶35 In 1997 the United States Supreme Court addressed the constitutionality of these civil commitment statutes in Kansas v. Hendricks, 521 U.S. 346 (1997). argued that Kansas's civil In Hendricks, the petitioner commitment statute violated the constitutional guarantees of the due process, double jeopardy, and ex post facto clauses. challenge on all grounds. Id. at 350. The Court rejected his Id. at 371. ¶36 Kansas's "Sexually Violent Predator Act" became law in 1994 and established procedures for involuntary civil commitment of individuals who, due to "mental abnormality" or "personality disorder," were found likely to engage in "predatory acts of sexual violence." (1994)). sexual 8 Id. at 350 (citing Kan. Stat. Ann. § 59-29a01 The act was intended to address the problem of repeat offenders.9 See Kan. Stat. (2010); N. Stat. Ann. Id. at 350. The act defined "sexually Cal. Welf. & Inst. Code § 6600 et seq. (West 2011); Ann. § 59-29a01 (Supp. 2010); Minn. Stat. ch. 253B J. Stat. Ann. § 30.4-27.24 (West 2010); Ariz. Rev. § 36-3701 et seq. (2010). 9 The Supreme Court acknowledged that this intent was set forth in the Kansas act's preamble, which provided: [A] small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to the [general involuntary civil commitment statute] . . . . In contrast to persons appropriate for civil commitment under the [general involuntary civil commitment statute], sexually violent predators generally have anti-social personality features which are unamenable to existing mental illness treatment modalities and 15 No. 2009AP1579 violent predator" as "any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality person likely violence." ¶37 or to personality engage in the disorder which predatory makes acts of the sexual Id. at 352 (citing Kan. Stat. § 59-29a02(a) (1994)). In reasoning similar to this court's analysis in Carpenter and Post, the Supreme Court found the Kansas civil commitment statute to be civil, not criminal, and ultimately Id. at 368-69. constitutional. Determining whether a statute is civil or criminal "is first of all a question of statutory construction." Id. at 361 (quoting Allen v. Illinois, 478 U.S. 364, 368 (1986)). Although being labeled a civil statute is not always dispositive, reject the the legislature's Supreme manifest Court stated intent only that where it "will a party challenging the statute provides 'the clearest proof' that 'the statutory scheme is so punitive either in purpose or effect so those features render them likely to engage in sexually violent behavior. The legislature further finds that sexually violent predators' likelihood of engaging in repeat acts of predatory violence is high. The existing involuntary commitment procedure . . . is inadequate to address the risk these sexually violent predators pose to society. The legislature further finds that the prognosis for rehabilitating sexually violent predators in a prison setting is poor, the treatment needs of this population are very long term and the treatment modalities for this population are very different than the traditional treatment modalities for people appropriate for commitment under the [general involuntary civil commitment statute]. Kan. Stat. Ann. 59-29a01 (1994). 16 No. 2009AP1579 as to negate [the State's] intention' to deem it 'civil'." Id. at 361 (quoting United States v. Ward, 448 U.S. 242, 248-49 (1980)). ¶38 The Hendricks Court went on to note that the act's placement within Kansas's probate code and its description as a "civil commitment" statute indicated that the act was civil in nature, not criminal. language of the act, Id. at 361. "[n]othing Starting with the plain on the face of the statute suggests that the legislature sought to create anything other than a civil commitment scheme designed to protect the public from harm." ¶39 Id. Furthermore, the Supreme Court held that the statute was not intended to address the criminal purposes of retribution or deterrence. Id. at 361-62. First, the statute was not retributive, as introduction of past sexually violent acts as evidence at a civil commitment hearing was not meant to punish the individual for past acts but rather was meant to show the existence of a mental condition. ¶40 Second, the statute Id. at 362. was not meant to serve as a deterrent because the very purpose of the act was to treat those with uncontrollable urges. Id. at 362-63. The mere existence of the act could not be said to deter sexually violent persons from acting upon uncontrollable urges. Id. The Court further reasoned that, under the Kansas law, committed individuals did not experience "the more restrictive conditions placed on state prisoners, conditions but as instead any [experience] involuntary essentially committed 17 patient the in same a state No. mental institution." Id. at 363. 2009AP1579 Therefore, the Court did not believe the statute to be so punitive in purpose or effect as to negate the state's intention for it to be a civil statute. at 368-69.¶41 commitment, commitment liberty." freedom In upholding the to be Id. from Supreme Court "contrary at 357. physical Kansas's to system did our While restraint not for find is Court at civil involuntary understanding the Id. of ordered acknowledged the of liberty Id. at 356. protected, that liberty is not absolute. core that States may adopt civil commitment statutes that "have coupled proof of dangerousness with the proof of some other factor, such as 'mental illness' or 'mental abnormality'" without running afoul of the Constitution. Id. at 358. Notably, the Court upheld the Kansas act despite its failure to contain any supervised release provision. backdrop The Court's against constitutionality decision which of their in Hendricks state own courts civil provides measure commitment the the statutory schemes. ¶42 Since ch. 980's enactment, the Wisconsin Legislature has amended the civil commitment statute on various occasions in furtherance of its goal of protecting the public. these amendments have dealt with the Several of supervised release provisions under Wis. Stat. § 980.08 and the physical commitment provisions under Wis. amendments have served Stat. to § 980.06. limit the In particular, ability of a committed pursuant to ch. 980 to obtain supervised release. 18 these person No. ¶43 For example, 1999,10 in the 2009AP1579 legislature amended § 980.06 to require that "[a] commitment order under [§ 980.06] shall specify that the person be placed in institutional care." As originally enacted, ch. 980 did not require institutional care upon a determination that an individual was a "sexually violent person." Instead, the individual could be initially committed to supervised release. § 980.06, institutionalized care With became a this amendment requirement at to the outset of commitment. ¶44 Next, in 2003,11 the legislature amended the definition of a "sexually violent person" under § 980.01(7) to require a commitment determination based on a finding that the individual was "likely" amendment Stat. to defined engage "likely" § 980.01(1m). definition that a in This "sexually acts as of "more sexual likely language violent violence. than replaced person" was not." the one The Wis. original who was "substantially probable" to engage in acts of sexual violence. Thus, this 2003 amendment altered and arguably lowered the definition of a "sexually violent" person. 10 This amendment was enacted pursuant to 1999 Wis. Act 9, § 3223h. The amendment also repealed Wis. Stat. § 980.06(2)(a)(c), which permitted the court to enter an initial order for the sexually violent person to be committed to supervised release as opposed to institutional care. 11 This amendment was enacted pursuant to 2003 Wis. Act 187, §§ 1, 2. 19 No. 2009AP1579 Most recently, in 2005,12 the legislature limited the ¶45 frequency with which supervised release. § 980.08(1) allowed supervised release committed When a originally committed every individuals six could enacted, individual months. to The request Wis. Stat. petition 2005 for amendment required committed individuals to wait at least twelve months before filing another petition for supervised release.13 modification decreased the initial mandatory period This of commitment before an individual could petition for supervised release, but extended the waiting period between petitions. ¶46 These amendments are examples of the changes legislature has made to ch. 980 since its enactment in 1993. the As the legislature has amended ch. 980, the courts have been asked to determine example, in the 2002, constitutionality this court of reviewed such amendments. another For constitutional 12 This amendment was made pursuant to 2005 Wis. Act 434, § 113. 2005 Wis. Act 434 is the same legislation that created Wis. Stat. § 980.08(4)(cg). 13 Prior to the amendment, Wis. Stat. § 980.08 read in pertinent part: "Any person who is committed under s. 980.06 may petition [for supervised release] if at least 18 months have elapsed since the initial commitment order was entered or at least 6 months have elapsed since the most recent release petition was denied or the most recent order for supervised release was revoked." (Emphasis added.) As amended, § 980.08 reads: "Any person who is committed under s. 980.06 may petition [for supervised release] if at least 12 months have elapsed since the initial commitment order was entered or at least 12 months have elapsed since the most recent release petition was denied or the most recent order for supervised release was revoked." (Emphasis added.) 20 No. 2009AP1579 challenge to ch. 980 in State v. Rachel (Rachel I), 2002 WI 81, 254 Wis. 2d 215, 647 N.W.2d 762. ¶47 Rachel I involved a challenge to the provisions governing the petitioner's ability to seek supervised release. Specifically, the petitioner argued that amendments to ch. 980 limited his chances of supervised release. found that merely individual's access imposing to Id., ¶7. limitations supervised release on did The court a committed not impose a sufficient restraint on his liberty interests to violate due Id., ¶66. process. Post, the court Relying on our holdings in Carpenter and held that amended ch. 980 still served compelling state interests in providing treatment to sexually violent persons and protecting society from the dangers posed by these individuals. release provisions Id., ¶68. still Therefore, the amended supervised permissibly balanced the public interest in safety and the individual liberty of the committed, sexually violent person. ¶48 Id. It is against this historical backdrop that we review West's challenge to the placement of the burden of proof for supervised release under Wis. Stat. § 980.08(4)(cg). B. Burden Of Proof Under Wis. Stat. § 980.08(4)(cg) ¶49 discharge An individual committed under ch. 980 may petition for or supervised release. The provision governing supervised release previously read: (1) Any person who is committed under s. 980.06 may petition the committing court to modify its order by authorizing supervised release . . . . The director of the facility at which the person is placed may file 21 No. a petition under this behalf at any time. subsection on the 2009AP1579 person's . . . . (4)(b) The court shall grant the petition unless the state proves by clear and convincing evidence one of the following: 1. That it is likely that the person will engage in acts of sexual violence if the person is not continued in institutional care. 2. That the person has not demonstrated significant progress in his or her treatment or the person has refused treatment. Wis. Stat. § 980.08(4)(b) (2003-04). ¶50 In 2005 the Wisconsin Legislature repealed this provision,14 and enacted the following provision in its stead: The court may not authorize supervised release unless, based on all of the reports, trial records, and evidence presented, the court finds that all of the following criteria are met: 1. The person has made significant progress in treatment and the person's progress can be sustained while on supervised release. 2. It is substantially probable that the person will not engage in an act of sexual violence while on supervised release. 3. Treatment that meets the person's needs and a qualified provider of the treatment are reasonably available. 4. The person can be reasonably expected to comply with his or her treatment requirements and with all of his or her conditions or rules of supervised release that are imposed by the court or by the department. 14 2005 Wis. Act 434, § 116. 22 No. 2009AP1579 5. A reasonable level of resources can provide for the level of residential placement, supervision, and ongoing treatment needs that are required for the safe management of the person while on supervised release. Wis. Stat. § 980.08(4)(cg) (emphasis added).15 ¶51 Stat. The issue presented is whether the amendment to Wis. § 980.08(4) has changed the burden of proof in a supervised release petition, and if so, to whom has it been shifted and how? ¶52 The parties agree that under prior § 980.08(4)(b) the burden of proof was borne by the State. The plain language of the statute instructed the committing court: "The court shall grant the petition convincing unless evidence" one the of state two proves factors by clear showing and that the committed individual was not statutorily entitled to release. Id. The parties also agree that § 980.08(4)(cg) no longer contains language that explicitly assigns the burden.16 ¶53 with the When interpreting the meaning of a statute, we begin language of the statute, ordinary, and accepted meaning. and give it its common, State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. further. 15 Id. When that meaning is plain, courts will look no We interpret statutory language in context that 2005 Wis. Act 434, § 118. 16 In fact, both parties in their briefs characterized Wis. Stat. § 980.08(4)(cg) as ambiguous, differing, of course, on the proper interpretation of its alleged ambiguity. As we explain infra, we are not bound by their characterizations, and we conclude that the statute is unambiguous. 23 No. 2009AP1579 is, in relation to surrounding or other closely related statutes and reasonably, to avoid absurd or unreasonable results. Id., ¶46. ¶54 If the meaning of a statute is ambiguous, however, after considering all intrinsic sources, we look to extrinsic sources such as legislative history to find legislative intent. Id., ¶50. A statute is ambiguous if the statutory language gives rise to more than one reasonable meaning. State Farm N.W.2d 258 Ins. Co., WI 89, ¶19, citations (internal 2006 293 and quotations Teschendorf v. Wis. 2d 123, 717 omitted). The fact that the parties advance different interpretations of a statute does Furthermore, plain not, if reading unreasonable. ¶55 We alone, absurd of make the consequences a statute, statute would that ambiguous. follow a Id. plausible interpretation may be Id., ¶21 n.9. hold that the plain language of amended § 980.08(4)(cg) is unambiguous and clearly assigns the burden of producing probative evidence to the committed individual.17 ¶56 The presumption: section "The as court amended may not 17 begins by authorize setting supervised forth a release The term "burden of proof" encompasses two aspects: "the burden of producing some probative evidence on a particular issue," and the burden of persuading the fact-finder regarding that issue. State v. Velez, 224 Wis. 2d 1, 15-16, 589 N.W.2d 9 (1999) (internal citations omitted). We conclude that the committed individual bears both burdens. In order for a court to grant a petition for supervised release under the statute, the committed individual must produce evidence on all five statutory criteria, and must also prove those criteria to the court. 24 No. unless . . . the § 980.08(4)(b), court which finds . . . ." stated that a Id. "court 2009AP1579 Unlike shall prior grant the petition unless the state proves," the court now begins from the default position of denying the petition, unless and until certain factors are established. ¶57 Prior § 980.08(4)(b) made it clear that it was the State that had to overcome the presumption that a petition would be granted. presumption By contrast, amended § 980.08(4)(cg) sets forth a that supervised release may not be authorized unless, considering all the evidence, "the court finds that all of the following criteria are met." ¶58 (Emphasis added.) While this statement does not explicitly address who must meet these criteria, or produce evidence for the court, the list of criteria required for a grant of supervised release makes the assignment of the "burden of proof" unmistakable. list of criteria reads: 1. The person has made significant progress in treatment and the person's progress can be sustained while on supervised release. 2. It is substantially probable that the person will not engage in an act of sexual violence while on supervised release. 3. Treatment . . . and a qualified provider of the treatment are reasonably available. 4. The person can be reasonably expected to comply with his or her treatment requirements and with all . . . conditions or rules of supervised release . . . imposed by the court or by the department. 5. A reasonable level of resources can provide for the level of residential placement, supervision, 25 The No. and ongoing treatment needs . . . required safe management of the person. 2009AP1579 for the Wis. Stat. § 980.08(4)(cg). ¶59 All five criteria are stated in the affirmative. All five criteria are statutory prerequisites to supervised release, and must be supported by evidence before the court. Most important, all five criteria weigh in favor of release, and are therefore in the committed petitioner's best interests to prove. A plain reading of the statute's presumption, coupled with these five criteria, unambiguously assigns the burden of proof (that is, the burden of producing the requisite evidence) to the committed individual seeking supervised release. ¶60 West argues that, because the language of prior § 980.08(4)(b) so clearly and unequivocally assigned the burden of proof to the State, the absence of equally explicit language in amended § 980.08(4)(cg) undermines legislature intended to make a change. ¶61 idea that the We disagree. As a general rule, the burden of proof lies with the petitioning party. 215 the N.W.2d 459 See State v. McFarren, 62 Wis. 2d 492, 499, (1974); Rachel II, 324 Wis. 2d 465, ¶13; Sterlingworth Condo. Ass'n v. DNR, 205 Wis. 2d 710, 726, 556 N.W.2d 791 (Ct. App. 1996). The legislature is presumed to know the law, and to know the legal effect of its actions. Schill v. Wis. Rapids Sch. Dist., 2010 WI 86, ¶103, 327 Wis. 2d 572, 786 N.W.2d 177. We agree with the court of appeals' conclusion in Rachel II: "The legislature's creation of a presumption in favor of continued commitment together with the affirmative criteria 26 No. required intent to to rebut that reallocate presumption the burden of signal the proof." 2009AP1579 legislature's Rachel II, 324 § 980.08(4)(cg) as Wis. 2d 465, ¶16. ¶62 Moreover, to read amended allocating the burden of proof to the State would require the State to prove the negative of all five factors. To do so, each of the five criteria would have to be construed in some manner inconsistent with the plain language of the statute. For example, the State would be required to show that the committed individual has not made significant progress in treatment, that the committed individual can not be reasonably expected to comply with treatment requirements, and that it is substantially probable that the committed individual will reoffend while on release. See Wis. Stat. § 980.08(4)(cg)1.-5. Such a construction does violence to the plain language of the statute. ¶63 The court's holding in groundwork for our holding here. McFarren in 1974 lays the In McFarren, this court set forth a five-factor test for courts to apply in allocating the burden of proof. These factors were adopted, as modified, from McCormick on Evidence. McFarren, 62 Wis. 2d at 499-500 (citing McCormick on Evidence § 337 (2d ed. 1972). These factors are: (1) the natural tendency to place the burdens on the party desiring change; (2) special policy considerations such as those disfavoring certain defenses; (3) convenience; (4) fairness; and 27 No. (5) 2009AP1579 the judicial estimate of probabilities. Id. at 499-503. ¶64 Both West and the State rely on this test to support their respective positions. ¶65 We consider each factor in turn. First, as has already been discussed, the general rule in the law is that the moving party who seeks a change in the status quo is the one who bears the burden of proof. It is the committed individual here, West who seeks a change from secure institutional placement supervised release.18 to placement in community based This factor, therefore, favors placing the burden on West. ¶66 The second considerations, West argues such that factor as the encompasses those liberty disfavoring interests special certain at stake policy defenses. are special policy considerations weighing in favor of assigning the burden of proof to the State. This argument would have significantly more weight in the context of an initial commitment proceeding; in this case, however, the committed have already been lawfully interests restricted. Furthermore, the safety individual's and of liberty constitutionally the public is a significant policy consideration that also must be taken into account when discussing the 18 possibility of releasing a West argues that this general rule should not apply because of the special constitutional interests at stake where deprivation of liberty is involved. He does not provide case law or support for an exception to this general rule where liberty interests are at stake; accordingly, we reserve our review of the constitutional arguments for the following section. 28 No. 2009AP1579 dangerous, sexually violent person back into the community. To the extent this factor is applicable, we find that the policy considerations are equally persuasive. ¶67 The third and fourth factors consider convenience and fairness. In discussing explained: "[W]here peculiarly in burden proving of the the convenience, facts knowledge the with of a the regard McFarren to that McFarren, issue." party, 62 an (quoting McCormick on Evidence § 337). court issue party lie has the Wis. 2d at 500 West argues that the information needed to prove the five criteria in § 980.08(4)(cg) lies within the control and knowledge of the State, and, therefore, it would be inconvenient to assign him the burden of proof. to Specifically, he contends that the information necessary prove the supervised fifth criterion release that required resources are for the "reasonably grant of available" for placement, supervision, and treatment on supervised release is unavailable to the committed individual. ¶68 West's brief goes so far as to suggest that this information "is not only in the hands of the state" but is information "which the state easily manipulates." He concedes, as he must, that the DHFS is separate from the prosecutors who oppose supervised release in the petition hearings, but argues that "the practical reality is that the department will cooperate with the prosecutors far more readily than with its involuntarily-committed authority or evidence patients." in support 29 West of this does not cite assertion, and any we No. 2009AP1579 reject the allegation that the DHFS would manipulate data or fail to cooperate with a committed individual. ¶69 uncommon As the State pointed out in oral argument, it is not for the DHFS and the prosecutor to have different positions on a petition for supervised release, and in those cases, the DHFS may be represented by its own counsel, separate from the State. independent Moreover, West is statutorily entitled to an expert if the DHFS release in his annual review. does not support supervised Wis. Stat. § 980.07(1). is entitled to access to his treatment records. He also The information necessary to prove the five criteria in § 980.08(4)(cg) is not so unavailable factors of to the convenience committed and individual fairness weigh as to against make the the plain language of the statute. ¶70 Significantly, language quoted in West ignores McFarren the regarding consideration should not be overemphasized. remainder of the convenience: "This Very often one must plead and prove matters as to which his adversary has superior access to the proof." Id. While we reject West's characterization of this information as being within the sole control of the State, even to the extent that the State has better access to this information, that would not be determinative of the allocation of the burden of proof. ¶71 Finally, the fifth factor assessment of the probabilities. involves a judicial The McFarren court observed, "The risk of failure may be placed upon the party who contends that the more unusual event has occurred." 30 Id. at 503. There No. is no question that the committed individual 2009AP1579 is the party contending that an "unusual" event has occurred namely, that the individual, who was properly committed under ch. 980, may now be placed in the community on supervised release without a probability of committing another sexually violent offense. ¶72 It requirements is relevant, for an at this individual violent under ch. 980. to point, be to reiterate committed as the sexually At the time West was committed, the statutes provided that a person may be committed only after a court or jury determines that he or she is a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect or illness, and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence. Wis. Stat. § 980.01(7) (1995-96). ¶73 To carry its burden of proof, the State had to put forth evidence to satisfy this definition beyond a reasonable doubt. Wis. Stat. § 980.05(3)(a) (1995-96). constitutional rights available in a West enjoyed all criminal proceeding, including the right to counsel, and all rules of evidence in criminal actions applied. Wis. Stat. § 980.05(1m) (1995-96). In light of the fact that the State successfully carried this significant burden of proof, it is clear that West's position advocates the less likely event that, after almost two decades of sexual assaults, involving at least 25 women, West has made 31 No. 2009AP1579 such significant progress in treatment that he will not engage in an act of sexual violence if placed on supervised release. We accordingly conclude that this fifth factor weighs strongly in favor of placing the burden of proof with the committed individual.19 19 West also argues that Wis. Stat. § 980.08(4)(cg) may be properly interpreted as relieving any party from bearing the burden of proof. He suggests that the list of criteria contained in the statute could be viewed as merely factors for the circuit court to weigh in making its determination whether to grant a petition for supervised release. For example, in a sentencing hearing the circuit court judge is required to make a discretionary decision on the basis of statutory factors. See State v. Taylor, 2006 WI 22, ¶¶19-20, 289 Wis. 2d 34, 710 N.W.2d 466. Similarly, at the dispositional phase of a termination of parental rights proceeding, a circuit court judge makes a discretionary decision based on the best interests of the child. See Wis. Stat. § 48.426(2). West argues that, under a reasonable reading of the plain language of Wis. Stat. § 980.08(4)(cg), the circuit court considering a petition for supervised release should similarly make a discretionary decision after considering all the evidence. The court of appeals considered this same argument in Rachel II. There, the court found it significant that, unlike a petition for supervised release, a sentencing court has broad discretion in applying the statutory criteria, but is not given a statutory presumption. Rachel II, 2010 WI App 60, ¶¶10-11, 324 Wis. 2d 465, 782 N.W.2d 443. Likewise, in a termination of parental rights proceeding, there is no presumption of any particular custody arrangement; the court's discretion is guided only by the best interests of the child. Id., ¶11. 32 No. ¶74 2009AP1579 As noted above, the term "burden of proof" encompasses two aspects: "the burden of producing some probative evidence on a particular issue," and the finder regarding that issue. 16, 589 N.W.2d 9 (1999) burden of persuading the fact- State v. Velez, 224 Wis. 2d 1, 15- (internal citations omitted). conclude that the committed individual bears both burdens. We For a court to grant a petition for supervised release under the statute, the committed individual must produce evidence on all five statutory criteria and also prove those criteria to the court. ¶75 While unambiguously we assigns conclude the that burden of amended proof § 980.08(4)(cg) to the committed individual in a petition for supervised release, the question remains: What level of persuasion is required for West to carry We agree with the analysis of the court of appeals in Rachel II. As has already been discussed, the statute begins with the words: "The court may not authorize supervised release unless" the enumerated criteria are met. Wis. Stat. § 980.08(4)(cg). To accept West's argument would require us to ignore the plain language of the statute, which explicitly establishes a presumption of denying the petition in the absence of proof of entitlement to supervised release. Without a burden of proof, neither the committed individual nor the State would be required to bring forth any evidence for or against supervised release. If neither party introduced any evidence as to why release was warranted under the statute, the court would have to deny the petition. It logically follows, therefore, that one party must bring forth evidence to persuade the court to grant release. For the same reasons that the plain language of the statute leads to a conclusion that the burden properly lies with the committed individual, not the State, we reject the argument that the statute removes the burden from either party. 33 No. this burden?20 2009AP1579 Because the plain language of the statute does not address this question, we conclude that this aspect of the statute is ambiguous. ¶76 We have previously identified two different burdens of proof that apply in civil actions: "fair preponderance of the evidence" and "clear and convincing evidence." State v. Walberg, 109 Wis. 2d 96, 102, 325 N.W.2d 687 (1982). The fair preponderance standard applies in ordinary civil actions. The clear and convincing standard applies in cases where public policy requires a higher standard of proof than in the ordinary civil action. This so-called middle burden of proof has been required in such cases as fraud, undue influence, and prosecutions of civil ordinance violations which are also crimes under state law. Id. (citations omitted). ¶77 apply The court of appeals considered which burden should in Rachel § 980.08(4)(cg), convincing II, the evidence and concluded petitioner that supervised Rachel II, 324 Wis. 2d 465, ¶18. observed that, in the must absence that, under prove by release is amended clear and appropriate. The court of appeals correctly of statutory language to the contrary, preponderance of the evidence might be the appropriate burden, Id. unless public policy considerations demand otherwise. The court of appeals concluded that such public policy 20 Under prior Wis. Stat. § 980.08(4)(b), the State was required to prove by clear and convincing evidence that a petitioner was not entitled to supervised release. State v. Brown, 2005 WI 29, ¶¶11-12, 279 Wis. 2d 102, 693 N.W.2d 715. 34 No. 2009AP1579 concerns require the higher standard of clear and convincing evidence, and we agree. ¶78 In Id. Carpenter, we acknowledged the legitimate public safety concerns involved in placing a sexual offender in the community. We concluded that the primary purposes of "protection of the public and the treatment of convicted sex offenders who are at a high risk to reoffend . . . constitute significant nonpunitive and remedial purposes." Wis. 2d at 271. Carpenter, 197 In the specific context of supervised release, we have further held that the need to return a person to a secure facility in the interests of public safety outweigh the person's interests in alternatives to having their supervised release revoked. ¶79 Burris, 273 Wis. 2d 294, ¶30. This prevailing concern for the safety of the public also is evident in amended § 980.08(4)(cg)2., which requires a showing that it is "substantially probable that the person will not engage in an act of sexual violence while on supervised release." "much We have interpreted "substantially probable" to mean more likely than not." Brown, 279 Wis. 2d 102, ¶11 (citing State v. Curiel, 227 Wis. 2d 389, 395, 597 N.W.2d 697 (1999)). ¶80 to the A civil commitment under ch. 980 should not and, due statutory protections, cannot be undertaken lightly. Nevertheless, the release of a person who has been determined to be sexually violent into the community where he or she may commit further acts of sexual violence is an equally serious undertaking. The concerns for the public safety that justify 35 No. 2009AP1579 restricting the individual's liberty in the initial commitment are perhaps even more strongly implicated in the decision to release the individual back into the community, because the initial determination involves a finding that the individual is likely to reoffend. Proof by a preponderance of the evidence would require a mere showing that it is more likely than not that West Where would the not commit likelihood we another of sexual weighing are act violence. is whether another individual would be more or less likely to be a victim of an act of sexual violence, we are unwilling to set the standard so low. ¶81 statutory Consequently, we conclude that, in the absence of a directive to the contrary, it is appropriate to require the committed individual to bear the burden of proof by clear and convincing evidence that he or she is entitled to supervised release. C. West's Constitutional Challenges ¶82 the West contends that allocating the burden of proof to committed individual, § 908.08(4)(cg) does, as we violates have the determined due Wis. and process protection guarantees under the Constitution. Stat. equal We examine each argument in turn. 1. Due Process ¶83 Under a procedural due process analysis, we must determine first whether there exists a liberty interest of which the individual procedures used constitutionally has to been deprived, deprive that sufficient. and so, liberty Kentucky 36 if Dept. whether interest of Corr. the were v. No. Thompson, 490 U.S. 454, 460 (1989). A 2009AP1579 protectable liberty interest requires more than an individual's desire or unilateral expectation; claim of rather, entitlement the to individual it." must have Greenholtz v. "a legitimate Inmates of the Nebraska Penal and Corr. Complex, 442 U.S. 1, 7 (1979) (citing Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). ¶84 The State argues that West's liberty interest is analogous to that of a criminal parolee and thus the procedures provided for supervised release do not violate procedural due process. In Greenholtz, the United States Supreme Court found no process due violation in Greenholtz, 442 U.S. at 16. that a convicted inherent right person to be Nebraska's parole system. In its reasoning the Court held does not have a conditionally expiration of a valid sentence. constitutional released Id. at 7. before or the Furthermore, a state had no duty to establish a parole system in the first place. Id. Where the state held out the possibility of parole, this possibility was merely a hope that the benefit might be obtained and was not an entitlement. Id. at 11. In the case of parole, the procedural safeguards inherent in the original conviction served to constitutionally extinguish the individual's liberty right. Id. at 7. ¶85 We find the comparison of supervised release to parole procedure instructive in this case. While West might have a liberty interest in freedom from physical restraint, this right is not absolute, and was constitutionally limited when he was determined to be a sexually violent person under ch. 980. 37 As No. was discussed supra, that initial determination 2009AP1579 required the State to carry the burden of proof beyond a reasonable doubt. Wis. Stat. § 980.05(3)(a). Once that burden was satisfied, the circuit court had a statutory obligation to confine West until he is no longer determined to be a sexually violent person. Wis. Stat. § 980.06. Just as the State does not have a duty to offer parole, the State has no duty to offer supervised release. See Hendricks, 521 U.S. 346 (affirming what might be an indefinite commitment despite the absence of supervised release provisions). ¶86 Further, sexually carries the violent person, procedural individual's due original like safeguards process determination a of conviction before that rights. serve to Wis. See being parole, protect Stat. a the § 980.03. Where the legislature is able to establish conditions necessary for parole, it similarly should be able to set conditions for supervised satisfied release. by the That these committed conditions individual does must not then change be our analysis, especially as he is provided significant rights in a supervised release petition under ch. 980, including the right to an attorney and the right to discovery of physical and mental reexaminations, examiners, and witnesses. See Wis. Stat. §§ 980.036, 980.07, 980.08. ¶87 We note that there is a marked difference between a petition for supervised release and a petition for discharge under Wis. Stat. § 980.09. Once a discharge petition establishes through pleading and supportive evidence that "facts 38 No. 2009AP1579 exist from which a court or jury could conclude the person does not meet criteria for commitment," the matter is set for a hearing at which the State has the burden of proving by clear and convincing evidence that the person still meets the criteria for commitment as a sexually violent person. ¶88 A petition for supervised release more or less concedes that the petitioner would not expect to prevail on a petition for discharge, where the State had the burden of proof. If a petitioner is not ready to be discharged, he has the burden of showing that he should nonetheless be placed on supervised release in the community. ¶89 West does not have a recognized, protectable liberty interest in supervised release; accordingly, to require him to bear the burden of proof in his petition does not violate due process. 2. Equal Protection ¶90 To prove an equal protection clause violation, the party challenging a statute's constitutionality must show that "the state unconstitutionally situated classes differently." treats members of similarly Post, 197 Wis. 2d at 318. The right to equal protection does not require that such similarly situated classes be treated identically, but rather requires that the distinction made in treatment have some relevance to the purpose for which classification of the classes is made. Id. at 321 (citing Baxtrom v. Herold, 383 U.S. 107, 111 (1966)). ¶91 In analyzing civil commitment statutes, this court has acknowledged that persons confined under ch. 980 are similarly 39 No. situated to those Additionally, confined courts under have ch. assumed, 51. 2009AP1579 Id. without at 318-19. deciding, that individuals confined under ch. 980 are similarly situated to those under § 971.17. See State v. Williams, 2001 WI App 263, ¶10, 249 Wis. 2d 1, 637 N.W.2d 791. While the level of scrutiny used in analyzing whether statutes depriving liberty interests violate equal protection is unclear, id., ¶11, this court has applied, without deciding, strict scrutiny in ch. 980 equal protection challenges, Post, 197 Wis. 2d at 321. ¶92 Our challenge. decision in Post is instructive to West's In Post, the defendants challenged the validity of ch. 980 on equal protection grounds, arguing that individuals involuntarily committed under ch. 51 for mental illness were treated differently. Id. at 317-18. While the parties and the court agreed in finding individuals under ch. 51 and ch. 980 similarly situated, distinctive mechanisms the court for held dealing with that the the two statutorily classes was proper in light of the difference between the classifications. Id. at 319, 325-30. The different procedures under the respective chapters reflect the relative dangerousness of each classification, and the State's corresponding interest to protect the public from each group. ¶93 compelling Id. at 329-30. Similarly, in Williams, the court of appeals held that persons committed under ch. 980, as a class, present more of a danger to public safety than Williams, 249 Wis. 2d 1, ¶13. those committed under ch. 51. Because of this difference in the 40 No. relative level of danger posed to public safety, concluded that different procedures were warranted. ¶94 2009AP1579 the court Id., ¶16. The court in Williams also found significant that it is more difficult to commit someone under ch. 980 than under ch. 51. Id., ¶14. dangerousness obtaining and Due in initial to the differences higher confinement, in degree the the of degree of for concluded court difficulty the difference in treatment was warranted and not in violation of the equal protection clause. ¶95 The court of Id., ¶16. appeals in Williams also found differences in the treatment of individuals committed under ch. 980 and Wis. Stat. § 971.1721 to be permissible. While ch. 980 required the State to prove the individual's mental disorder and dangerousness commitment, beyond § 971.17 a reasonable only infers doubt current dangerousness at the time of commitment. critical distinction reflects the at the of illness mental time and Id., ¶¶17-18. legislature's This judgment that sexually violent persons are more dangerous, and accordingly, that a different warranted. Id., procedure ¶18. and Because reflect the distinction in confinement the duration differences in classifications, these is procedure differences did not violate the equal protection clause. ¶96 supervised In this case, release with placing West 21 the does burden not of violate proof the for equal Wis. Stat. § 971.17 provides for the commitment of persons found not guilty by virtue of mental disease or defect. 41 No. 2009AP1579 protection clause when comparing persons committed under ch. 980 with those committed under either ch. 51 or § 971.17. has recognized that individuals committed under The court ch. 980 similarly situated to individuals committed under ch. 51. are Post, 197 Wis. 2d at 318-19. Individuals committed under ch. 980 have the that burden of proving supervised release is warranted, while under ch. 51 the State has the burden of proving that continued confinement is necessary. Our reasoning in Post, coupled with the court of appeals' reasoning in Williams, shows that the difference in treatment is directly related to the distinct purposes of classification in chs. 51 and 980. Because procedures not between similarly situated classes need be identical, and the difference in assigning the burden of proof is directly related to public safety, we the hold difference that there in relative danger is no equal goals in treatment to protection violation. ¶97 West argues that common of and protection from individuals committed under ch. 980, ch. 51, and § 971.17 makes these classes similarly situated and therefore requires State. a similar placement of the burden of proof on the This argument, however, does not address the fact that, even with similarly situated classes, the State is not required to provide identical treatment to each class and instead need show only that differences in treatment are relevant to the classification distinction. ¶98 Even if this court assumes the three classifications in ch. 980, ch. 51, and § 971.17 are similarly situated, as 42 No. 2009AP1579 indicated in Post and Williams, distinctions in classifications exist so as to warrant different procedures. burden of proof on ch. 980 committed Here, placing the individuals to obtain supervised release, but not on those committed under ch. 51 or § 971.17, is permissible due to classification distinctions as to the dangerousness of those confined and does not violate the equal protection clause.22 ¶99 In petitioner conclusion, for placing supervised the release burden under of proof amended on Wis. the Stat. § 980.08(4)(cg) does not violate substantive or procedural due process, nor does it violate equal protection. IV. CONCLUSION ¶100 Chapter 980 seeks to address the dangers presented by persons who have been determined to be sexually violent because of their criminal history and serious mental disorders, without ignoring the interests those persons and society have in their treatment and commitments, eventual and the release. statutory We have requirements upheld for ch. 980 supervised release, on the basis of this delicate balancing of the public safety with individual liberty. 22 We find it important to note The State argues that individuals committed under ch. 980 and Wis. Stat. § 971.17 are not similarly situated, and offers evidence of a difference in that those committed under § 971.17 receive generally finite confinement terms whereas ch. 980 confinement is indefinite. This argument, while plausible, is unnecessary to our analysis. The classification distinction created in terms of proven dangerousness as opposed to inferred dangerousness makes the different procedures in this case, assignment of the burden of proof permissible. 43 No. that if "civil confinement were to become a 2009AP1579 mechanism for retribution or general deterrence . . . our precedents would not suffice to validate it." Hendricks, 521 U.S. at 373 (Kennedy, J., concurring). ¶101 Under the facts of the instant case, however, we do not perceive any such retributive or deterrent aims. Rather, we perceive a legislative attempt to protect the public from those committed individuals seeking supervised release who still Wis. Stat. present a substantial danger to the public. ¶102 Accordingly, we conclude that amended § 980.08(4)(cg) unambiguously places the burden of proof with the committed individual. burden of persuasion is We determine that the appropriate clear and convincing evidence. We further hold that this allocation and burden do not violate the due process and equal protection clauses of the Constitution. By the Court. The decision affirmed. 44 of the court of appeals is No. ¶103 ANN WALSH BRADLEY, J. 2009AP1579.awb (dissenting). posed by chapter 980 commitments are The difficult problems for both the legislature and the court alike. This case, however, presents a fairly straightforward of Rather than question adhering to the statutory statutory interpretation. text, the majority interprets legislative silence as unambiguous intent to place the burden of persuasion exacerbates any on the committed constitutional person. then such infirmities It an interpretation may create by contending that, based on public policy, the burden on the committed person is clear and convincing evidence. ¶104 I agree with the majority that if chapter 980 "were to become a mechanism for retribution or general deterrence[,] our precedents would not suffice to validate it." ¶101. Majority op., I conclude that the majority's unnecessary interpretation pushes chapter 980 one step closer to a punitive scheme. Accordingly, I respectfully dissent. I ¶105 As the majority acknowledges, prior to the 2005 amendments to chapter 980, the State had the burden to prove by clear and convincing inappropriate. the language evidence that Majority op., ¶52. placing the burden supervised constitute a majority total on interprets reversal of 1 was The 2005 amendments removed the expressly assign any burden to any party. ¶106 The release State, but did not amendments to Id., ¶50. the 2005 prior law. Despite the No. legislature's silence on the issue of burden, 2009AP1579.awb the majority determines that the legislature unambiguously intended to shift the burden to the committed person to meet all the criteria for supervised release.1 ¶107 Having Id., ¶55. concluded the that majority the burden takes its falls analysis on the one step committed person, further. The words "clear and convincing" do not appear within the text of the supervised release provisions of chapter 980. The majority tacitly acknowledges that the normal burden in a civil case is preponderance of the evidence, in the absence of statutory language to the contrary. Id., ¶77. Nevertheless, the majority asserts that it is "unwilling to set the standard so low." Id., ¶80. It makes the determination that "public policy" compels a conclusion that the burden should be clear and convincing evidence. Id., ¶77. ¶108 As the majority contends, legislative amendments "have served to limit the ability of a person committed pursuant to ch. 980 to obtain supervised release." Id., ¶42. In determining that placing the burden on the committed person does not run afoul of the constitution, the majority appears to rely on the initial determination that 1 the committed person is a Under the majority's analysis, the committed person must prove that he has made significant progress in treatment which can be sustained, that it is substantially probable that he will not engage in an act of sexual violence while on supervised release, and that he can be reasonably expected to comply with treatment requirements and conditions and rules of supervised release. Additionally, the committed person must prove that appropriate treatment is reasonably available and that a reasonable level of resources can provide for the required placement, supervision, and treatment needs. 2 No. sexually violent person. Id., ¶86. 2009AP1579.awb It also appears to rely on the availability of discharge and the procedural safeguards that attend petitions for discharge under Wis. Stat. § 980.09. ¶87. It concludes that supervised release is Id., analogous to parole in criminal cases, and that a committed person has no liberty interest in supervised release. Id., ¶85. II ¶109 I agree with the majority that the legislature unambiguously removed the burden of persuasion from the State. The statute formerly provided that a petition for supervised release would be granted "unless the state proves by clear and convincing evidence" that certain Wis. Stat. § 980.08(4) (1993-94). criteria were met. The legislature removed that language from the statute, evincing an intent to relieve the State of the burden. ¶110 I unambiguously person. cannot agree, intended to however, place the that burden the on legislature the committed The majority sets forth several arguments in support of this conclusion, see majority op., ¶¶56-59, and at first blush, they appear persuasive. language placing the Nevertheless, at the end of the day, burden of persuasion on the committed person is simply absent from the statute. ¶111 The legislature routinely assigns burdens, and it does so by including express language. In the former statute, the legislature expressly placed the burden on the State. Likewise, the legislature has affirmatively assigned burdens of proof in 3 No. the surrounding subsections of chapter 980.2 2009AP1579.awb It is inconceivable to imagine that the legislature intended to assign the burden of persuasion to the committed person and simply forgot to include language doing so. The majority does what the legislature was unwilling to do it inserts a burden into the statutory text. ¶112 The better interpretation is that the statute now provides no affirmative burden of persuasion on either party. Rather, it requires the circuit court to make a discretionary determination based on the statutory criteria and all the available evidence. ¶113 The footnote. majority rejects this See majority op., ¶73 n.20. interpretation in a It advances that the interpretation is not workable because neither party "would be required to bring forth any evidence." Id. However, such a scheme is common in other statutes where the circuit court is called upon to balance competing interests. the dispositional phase of a termination For instance, in of parental rights proceeding, the court must consider various statutory criteria and make a determination of what is in the best interest of the child. No party neither the parent, nor the State, nor the guardian ad litem is assigned a burden of persuasion. ¶114 Not only is this interpretation consistent with the language of the statute, but it also helps protect the statute from constitutional chapter 2 980 to infirmities. protect it from Rather than interpreting constitutional infirmities, Wis. Stat. § 980.05(3)(a); Wis. Stat. § 980.09(3) (2009- 10). 4 No. however, the majority unambiguous intent. constitutional interprets 2009AP1579.awb legislative silence as It further exacerbates the possibility of infirmities by declaring that "public policy" requires a higher burden than the preponderance of evidence, and it sets the burden at clear and convincing evidence. ¶115 Normally, when the level of the burden of persuasion is unspecified, it is the preponderance of evidence. On what statutory language or legislative history does the majority rely to discard the normal standard and set the burden at clear and convincing instead evidence? on policy. its own None whatsoever. assessment of what The majority relies be public would good It rejects the normal preponderance burden, reasoning: "[W]e are unwilling to set the standard so low." Majority op., ¶81. ¶116 In setting the burden at clear and convincing evidence, the majority relies on a rationale that is the basis of a criminal conviction. A focus of a chapter 980 commitment is the committed person's current level of dangerousness. focus sets a chapter 980 commitment apart from a This criminal conviction, which focuses on an initial determination of guilt. ¶117 Yet, in setting the burden at clear and convincing evidence, the majority relies not on any current assessment of dangerousness, but rather upon the initial finding that, at the time of reoffend. commitment, the person was more likely than not to The majority's reliance on the initial determination rather than a current assessment blurs the distinction between civil and criminal commitments. 5 No. 2009AP1579.awb III ¶118 The majority's interpretation chips constitutional underpinnings of chapter 980. first enacted in 1993. to its 541 at the Chapter 980 was This court addressed various challenges constitutionality Wis. 2d 252, away in N.W.2d 105 1995. State (1995); v. Carpenter, v. State 197 197 Post, Wis. 2d 279, 541 N.W.2d 115 (1995). ¶119 This court's initial pronouncements that chapter 980 was constitutional relied heavily on the then-existing supervised release provisions, which ensured that a committed person was placed in the least restrictive environment necessary to meet therapeutic and public safety needs. These provisions supplied sufficient evidence that the legislature's intent and effect was not to punish or indefinitely incarcerate sexually violent persons, but rather, to treat them. intent and effect was necessary to meet Such legislative constitutional standards. ¶120 I authored the Carpenter majority opinion, in which we addressed double jeopardy and ex post facto challenges. We concluded that chapter 980 survived those challenges because the "plain language" of the statute demonstrated the legislature's intent to intended "create[] to protect a the civil commitment public and to procedure provide primarily concentrated treatment to convicted sexually violent person, not to punish the sexual offender." 197 Wis. 2d at 258. ¶121 The legislature's non-punitive intent was evinced, in part, by the then-existing supervised 6 release provisions. No. Sexually violent control, persons care, were and "committed to treatment." 2009AP1579.awb the Id. [DHSS] at for 259-60. Institutionalization at a secure mental health facility was not automatic. "in Rather, the DHSS was required to provide placement the least restrictive manner requirements of the person." consistent Id. at 266. with the Supervised release was available from day one depending on the person's therapeutic needs. We explained: "These provisions lead us to conclude that the statute is aimed primarily at treating the sexually violent person, not punishing the individual." Id. at 267. ¶122 I joined the majority opinion of this court in Post. To survive a due process challenge, we explained, the nature and duration of commitment must "bear some reasonable relation to the purpose Wis. 2d at statute which 313. and Further, individual that best evidence the Id. treatment the the concluded We provides relationship." care for is committed." "[t]he of language this 197 of the reasonable The nature of the commitment was "control, in duration the of least restrictive institutionalization manner." and Id. commitment were intimately linked to treatment of the mental condition. Id. at 314. ¶123 Over the last 15 years, the legislature has steadily chipped away at those aspects of chapter 980 upon which relied in determining that the statute was constitutional. we As it now exists, chapter 980 is largely unrecognizable from the scheme that was deemed constitutional in Carpenter and Post: ¢ The proof necessary to initially commit an individual has been significantly lowered. When 7 No. 2009AP1579.awb ch. 980 was first enacted, a jury was required to find beyond a reasonable doubt that it was "substantially probable that the person will engage in acts of sexual violence." Wis. Stat. § 980.01(7) (1993-94). Now, the jury must conclude only that it is "likely." Wis. Stat. § 980.01(7) (2009-10). ¢ The nature of the commitment is significantly more restrictive. When the statute was first enacted, a commitment order could specify "institutional care in a secure mental health unit or facility . . . or other facility or supervised release." Wis. Stat. § 980.06(2)(b) (1993-94). The DHSS was required to place the person in the "least restrictive manner consistent with the requirements of the person." Id. Now, this discretion has been removed. A commitment order "shall specify that the person be placed in institutional care," and the DHSS "shall place a person committed under s. 980.06 at the secure mental health facility." Wis. Stat. §§ 980.06, 980.065(1m) (2009-10). ¢ The duration of institutionalization is necessarily longer. When the statute was first enacted, the DHSS was required to reexamine committed persons "within 6 months after an initial commitment." Wis. Stat. § 980.07(1) (1993-94). Now, the reexamination need not occur until twelve months after initial confinement. Wis. Stat. § 980.07(1) (2009-10). ¢ When the statute was first enacted, a committed person could petition for supervised release when 6 months had elapsed since the original commitment. Wis. Stat. § 980.08(1) (1993-94). Now, the committed person must be institutionalized for twelve months prior to petitioning for supervised release. Wis. Stat. § 980.08(1) (2009-10). ¢ As discussed in this opinion, the availability of supervised release has been drastically undermined. ¶124 In State v. Rachel (Rachel I), 2002 WI 81, ¶14, 254 Wis. 2d 215, 647 N.W.2d 762, this 8 court evaluated the 1999 No. 2009AP1579.awb amendments to chapter 980, which "[a]s a whole . . . limit[ed] the ch. 980 release[.]" respondent's ability to obtain supervised We concluded that despite these limitations, the statute remained constitutional. ¶125 I concurred wrote because constitutional and separately, of the the rule concurring presumption that a in that statute unconstitutional beyond a reasonable doubt. J., concurring). the mandate. I statute is a must be proven Id., ¶86 (Bradley, Yet, I concluded that the supervised release provisions, as amended in 1999, were "on the brink of running afoul of the constitution." Id., ¶71. Given the many changes in the law since its inception, most of them chipping away at the edges of this court's rationale in Carpenter and Post, I said that thin." the presumption of constitutionality was "wearing Id., ¶75. ¶126 With the most recent amendments, as they have been interpreted by the majority, I conclude that the arguments in favor of constitutionality have just about worn out. ¶127 In my view, a key component of the original statute's constitutionality is that the burden continually fell on the State to justify the placement of a sexually violent person in the most restrictive environment institutionalization secure mental health facility. at a As amended in 1999, however, a committed person must be institutionalized at a secure mental health facility upon commitment. Now, under the most recent amendments, the presumptions embodied by the statute appear to favor continued institutionalization. 9 No. 2009AP1579.awb ¶128 Not only must the committed person prove that he poses a low risk of danger to others, he also must prove elements that are unrelated to his level of dangerousness. He must prove that placement, supervision, and treatment are "reasonably available" and can be provided with a "reasonable level of resources." As a result, the nature and duration of commitment may no longer be related to the person's legitimate treatment needs and the actual danger they would pose under the conditions of supervised release. ¶129 When I examine how this statute has evolved over the last 15 years, I have increasing doubts that the "plain language" of the statute evinces that the legislature's choices are "primarily intended to protect the public and to provide concentrated treatment to convicted not to punish the sexual offender." 258. Rather, chapter 980 sexually violent persons, Carpenter, 197 Wis. 2d at increasingly resembles a punitive scheme.3 3 I agree with the majority that the procedural safeguards attending initial commitment proceedings as well as the availability of discharge and the procedural safeguards that attend discharge proceedings are essential aspects of maintaining chapter 980's constitutionality. Without these safeguards, a committed person could be indefinitely institutionalized even if he no longer met the criteria for commitment as a sexually violent person. Such a scheme would surely run afoul of numerous constitutional provisions. Foucha v. Louisiana, 504 U.S. 71, 82 (1992). 10 No. ¶130 This shifting focus away from 2009AP1579.awb treatment and punishment is reflected in the majority's analysis. toward To justify what it perceives to be the legislature's choice, the majority relies more and more on the procedural safeguards that attended the initial commitment and the fact that a jury once found that the committed person was a sexually violent person. ¶131 The majority explains that "the original determination of being a sexually violent person, like a conviction before parole, carries procedural safeguards that serve to protect the individual's due process rights." Majority op., ¶86. It further contends that it is "unusual" that a person "who was properly committed community on committing another under supervised ch. 980, release sexually may now without violent be a placed in the probability of offense." Majority op., ¶71, see also id., ¶73. ¶132 These justifications resonate with a criminal commitment scheme, in which an accused defendant is afforded procedural safeguards at trial, and the finality of judgment carries great weight after conviction. They do not belong in a The majority relies on Hendricks for the stark proposition that a civil commitment statute need not contain any supervised release provision at all to pass constitutional muster. See majority op., ¶41. I do not find this argument to be persuasive. It overlooks that each civil commitment scheme is its own package and must be evaluated as a whole based on all of its characteristics. See State v. Rachel (Rachel I), 2002 WI 81, ¶44, 254 Wis. 2d 215, 647 N.W.2d 762 ("[W]e think it is necessary to look beyond the mere amendments in our analysis to the statute as a whole.") It also overlooks the fact that, as discussed in detail below, this court heavily relied on the supervised release provisions when it first pronounced chapter 980 constitutional. 11 No. civil commitment scheme, where the nature and 2009AP1579.awb duration of commitment are supposed to be "intimately linked to treatment of [the] mental majority condition." makes clear Post, that it 197 Wis. 2d at considers 314. placement The in the community under supervision which was once a cornerstone of the statute's constitutionality to be an "unusual event." ¶133 Ultimately, the majority's interpretation invites an absurd result contrary to the legitimate purposes of chapter 980. It appears that it may be easier for a person who was once determined to be sexually violent to obtain discharge than supervised release. ¶134 When lives in the a person community placed but monitored by stringent conditions.4 If condition, supervised release contrast, when the is a DHSS. person at on the Supervised the is supervised release, same is strictly often includes release person can time be discharged violates readily from any rule revoked. a chapter he or By 980 commitment, that person is released into the community and free 4 See, e.g., Wis. Stat. § 908.08(9)(a) ("As a condition of supervised release . . . , for the first year of supervised release, the court shall restrict the person on supervised release to the person's home except for outings that are under the direct supervision of a department of corrections escort and that are for employment purposes, for religious purposes, or for caring for the person's basic living needs."); see also Wis. Admin. Code DHS § 98.07(3); Dept. Health Services, Conditional Release Rules and Conditions, available at www.dhs.wisconsin.gov/forms1/f2/f25614.doc. The conditions and monitoring placed on a person on supervised release are much more stringent than the conditions and monitoring placed on someone who is on extended supervision after serving a conviction for a criminal offense. 12 No. to go about his business with no constraints. 2009AP1579.awb There are no conditions or monitoring because he is no longer in the care, custody, and control of the DHSS. ¶135 As set forth above, chapter 980 was originally found to be constitutional because it served the legitimate purposes of protection of the public and treatment of sexually violent persons. I conclude that the absurd result countenanced by the majority undercuts both purposes. It favors the release of sexually violent persons into the community without control, and it disfavors the therapy for sexually violent persons that can be best achieved in the community. ¶136 Accordingly, I respectfully dissent. ¶137 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent. 13 No. 1 2009AP1579.awb
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