State v. Hunt

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Justia Opinion Summary

At issue in these two consolidated appeals was whether Wis. Stat. 980 requires the dismissal of a pending commitment petition when the individual subject to the petition is re-incarcerated because of the revocation of parole or extended supervision. This appeal involved two defendants committed under chapter 980 after their parole and extended supervision was revoked. The court of appeals affirmed the circuit court and held that dismissal of a Wis. Stat. 980 proceeding was not required when the subject of the petition is transferred to the custody of the Department of Corrections before a chapter 980 commitment order is entered. The Supreme Court affirmed, holding (1) the State may proceed with a chapter 980 commitment after the revocation of a subject individual's parole or extended supervision; and (2) therefore, both of the chapter 980 commitments at issue in this case were valid.

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2012 WI 72 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2010AP594 & 2010AP1155 In re the commitment of Carl Cornelius Gilbert, Jr.: State of Wisconsin, Petitioner-Respondent, v. Carl Cornelius Gilbert, Jr., Respondent-Appellant-Petitioner. In re the commitment of Price T. Hunt: State of Wisconsin, Petitioner-Respondent, v. Price T. Hunt, Respondent-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 333 Wis. 2d 157, 798 N.W. 2d 889 (Ct. App. 2011 Published) PDC No: 2011 WI App 61 OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: June 29, 2012 January 10, 2012 Circuit Milwaukee Jeffrey A. Wagner (In case 10AP594) Jeffrey A. Conen (In case 10AP1155) BRADLEY, J., dissents (Opinion filed). ABRAHAMSON, C.J., joins dissent. NOT PARTICIPATING: ATTORNEYS: In case 2010AP594: For the respondent-appellant-petitioner there were briefs filed by Ellen Henak, and Hannah B. Schieber, assistant state public defenders and oral argument by Hannah B. Schieber. 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. In case 2010AP1155: For the respondent-appellant-petitioner there were briefs filed by Michael J. Gonring, Leah Stoecker, Eric J. Van Schyndle, Allison E. Cimpl-Wiemer and Quarles and Brady, LLP., Milwaukee and oral argument by Eric J. Van Schyndle. 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. 2 2012 WI 72 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2010AP594 & 2010AP1155 (L.C. No. 2006CI12 & 2007CI9) STATE OF WISCONSIN : IN SUPREME COURT In re the commitment of Carl Cornelius Gilbert, Jr.: State of Wisconsin, Petitioner-Respondent, v. FILED JUN 29, 2012 Diane M. Fremgen Clerk of Supreme Court Carl Cornelius Gilbert, Jr., Respondent-Appellant-Petitioner. In re the commitment of Price T. Hunt: State of Wisconsin, Petitioner-Respondent, v. Price T. Hunt, Respondent-Appellant-Petitioner. No. 2010AP594 & 2010AP1155 REVIEW of a decision of the Court of Appeals. ¶1 MICHAEL J. GABLEMAN, J. We Affirmed. review a published decision of the court of appeals1 affirming orders of the circuit court for Milwaukee County, Jeffrey A. Wagner and Jeffrey A. Conen, Judges.2 ¶2 We chapter 980 are asked (2005-06)3 to decide requires whether the Wisconsin dismissal of a Statutes pending commitment petition when the individual subject to the petition is re-incarcerated because of the revocation of parole or extended supervision. We hold that the State may proceed with a ch. 980 after commitment individual's parole or the extended revocation supervision. of a Based subject on that holding, we conclude that both of the ch. 980 commitments at issue in this case are valid, and therefore affirm the court of appeals. I. ¶3 FACTS AND PROCEDURAL HISTORY The facts of these cases are undisputed and we will address the facts of Gilbert and Hunt's ("Petitioners") cases in turn. 1 State v. Gilbert, 2011 WI App 61, 333 Wis. 2d 157, 798 N.W.2d 889. 2 Gilbert and Hunt's cases were heard independently at the circuit court level, but were consolidated by the court of appeals. 3 All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated. 2 No. A. ¶4 2010AP594 & 2010AP1155 Carl Cornelius Gilbert, Jr. Carl Cornelius Gilbert, Jr. ("Gilbert") was convicted of second-degree sexual assault and was sentenced to ten years in prison.4 On December 4, 2006, while Gilbert was still in the custody the of Department of Corrections ("DOC"), the State filed a petition seeking his commitment pursuant to Wis. Stat. § 980.02. The same day, the circuit court reviewed the petition, found probable cause to believe Gilbert was eligible for commitment, and ordered Gilbert detained by the DOC and transferred to a facility approved by the Department of Health Services ("DHS"). parole A day later, the DOC released Gilbert on and transferred in Winnebago, ("WRC") him to the Wisconsin, Wisconsin Resource which maintained is Center and operated by DHS. ¶5 Less than ten days after being transferred to WRC, Gilbert violated the conditions of his parole. Consequently, the DOC placed a "hold" on his parole, and on January 19, 2007, he was transferred to the Milwaukee Secure Detention Facility ("MSDF"), which is maintained and operated by the DOC. While the issue of determination of Gilbert's parole revocation was pending, a hearing was held on March 22, 2007, where the circuit court found "sexually probable violent cause person" to believe within the that meaning Gilbert of Wis. was a Stat. ch. 980 and ordered him transferred for evaluation to the WRC 4 Second-degree sexual assault is a predicate offense under Wis. Stat. § 980.01(6)(a). 3 No. 2010AP594 & 2010AP1155 "or such other authorized institution as may be determined by the [DHS]." revoked, However, on August 8, 2007, Gilbert s parole was and he was re-incarcerated, this time at Dodge Correctional Institution, which is maintained and operated by the DOC. ¶6 On October 17, 2007, DOC granted Gilbert parole a second time and transferred him back to WRC, pending resolution of the Wis. Stat. ch. 980 commitment petition filed on December 4, 2006. On November 25, 2007, Gilbert violated the terms of his second parole. As a result, he was re-incarcerated at the MSDF pending his revocation hearing, and his parole was revoked on December 28, 2007. ¶7 On trial began. February 4, 2008, Gilbert's ch. 980 commitment After a three-day trial, the jury found him to be a "sexually violent person" within the meaning of § 980.01(1). Following the trial, the circuit court order pursuant to Wis. Stat. § 980.06. entered a commitment He was not, however, sent back to WRC or to any other DHS facility, but rather was transferred by the DOC to Waupun Correctional Institution to serve the balance of his sentence December 28, 2007, revocation. of the sentence resulting custody of the DOC. that resulted from the He then served out the remainder from his second revocation in the In accordance with the condition of this period of incarceration, Gilbert was transferred to the custody of the DHS. ¶8 On January 15, 2009, while in the custody of the DHS, Gilbert brought a post-conviction motion in which he asserted 4 No. 2010AP594 & 2010AP1155 that his December 28, 2007 parole revocation required dismissal of the ch. 980 petition. court held a motion On December 17, 2009, the circuit hearing, and on February 18, 2010, circuit court issued an oral ruling denying the motion. the Gilbert appealed this motion to the court of appeals. B. ¶9 Price T. Hunt Price T. Hunt ("Hunt") was convicted of third-degree sexual assault5 and misdemeanor battery. Hunt was sentenced to a term of incarceration of ten years, consisting of five years initial confinement and five years extended supervision. His expected release date from incarceration to extended supervision was September 4, 2007. ¶10 ch. 980 On August commitment 23, 2007, petition, sexually violent person. the State seeking filed Hunt s a Wis. Stat. commitment as a On the same day that the State filed the petition, the circuit court found there was probable cause to believe that Hunt met the statutory criteria for a ch. 980 commitment. facility The court ordered Hunt transferred to a detention approved by the DHS pending the resolution of the ch. 980 commitment petition. In compliance with this order, Hunt was transferred released to to extended the WRC (and supervision October 16, 2007, the circuit DHS in court 5 custody) September found when of he 2007. probable cause was On to Third-degree sexual assault is a predicate offense under Wis. Stat. § 980.01(6)(b). 5 No. 2010AP594 & 2010AP1155 believe that Hunt was a "sexually violent person" within the meaning of § 980.01(1). ¶11 While in the custody of the DHS, and while his commitment trial was pending, Hunt violated the terms of his extended supervision. His extended supervision was subsequently revoked on May 29, 2008. About a month after the revocation of Hunt's extended supervision, but before his re-incarceration, he moved to dismiss the commitment petition, or in the alternative, to be transferred to "an approved DHS facility." Following the filing of this motion, but prior to the hearing on it, the circuit court ordered Hunt re-confined for two years, and Hunt was transferred to the Racine Correctional Institution. A hearing on the motion was held on September 29, 2008, after which the circuit court denied both Hunt s motion to dismiss and the request to be transferred. ¶12 Hunt's commitment case was tried in July of 2009, and the circuit court found him to be a sexually violent person and ordered commitment. ¶13 On May 7, 2010, Hunt appealed the order denying his motion to dismiss and the judgment and commitment order. The court of appeals consolidated Gilbert and Hunt s appeals. See State 798 v. Gilbert, N.W.2d 889. 2011 WI App 61, 333 Wis. 2d 157, The court of appeals affirmed the circuit court and held that dismissal of a Wis. Stat. ch. 980 proceeding is not required when the subject of the petition is transferred to the custody of the DOC before a ch. 980 commitment order is entered. Id., ¶1. Hunt remained at the Racine Correctional Institution 6 No. 2010AP594 & 2010AP1155 in the custody of the DOC until March 30, 2010 the scheduled conclusion of his sentence when he was transferred to the WRC, where he is currently confined. Gilbert and Hunt petitioned for review from this court, which we granted. II. ¶14 is a STANDARD OF REVIEW We are required to construe Wis. Stat. ch. 980. matter of statutory interpretation, and This therefore a question of law that the court reviews de novo. Noffke ex rel. Swenson v. Bakke, N.W.2d 156. 2009 WI 10, ¶9, 315 Wis. 2d 350, 760 We interpret statutes independently, but benefit from both our prior analyses and that of prior courts. State v. Henley, 2010 WI 97, ¶29, 328 Wis. 2d 544, 787 N.W.2d 350. III. ¶15 STATUTORY INTERPRETATION Statutory interpretation "begin[s] with the language of the statute, because it is the language that expresses the legislature's intent." Hocking v. City of Dodgville, 2010 WI 59, ¶18, 326 Wis. 2d 155, 785 N.W.2d 398 (citing State ex rel. Kalal v. Circuit Court for Dane Cnty., Wis. 2d 633, 681 N.W.2d 110). 2004 WI 58, ¶¶44-45, 271 Moreover, "[w]e attempt, whenever possible, to give reasonable effect to every word, avoiding both surplusage and absurd or unreasonable results." Id., ¶18 (citing Kalal, 271 Wis. 2d 633, ¶46). ¶16 In addition to the plain language of the statute, "scope, context, and purpose are perfectly relevant to a plainmeaning interpretation of an unambiguous statute." Wis. 2d 633, ¶48. Kalal, 271 Further, "[a] review of statutory history is part of a plain meaning analysis." 7 Richards v. Badger Mut. No. Ins. Co., 2008 WI Accordingly, we 52, ¶22, examine 309 the 2010AP594 & 2010AP1155 Wis. 2d 541, language, 749 context, N.W.2d 581. purpose, and history of Wis. Stat. ch. 980 while undertaking our analysis. IV. ¶17 Although different, they the DISCUSSION facts present of the the court Petitioners with a single cases are issue for review: Whether Wis. Stat. ch. 980 requires the dismissal of a pending commitment petition when the individual subject to the petition is incarcerated because of the revocation of either parole or extended supervision. We hold that ch. 980 does not require such a dismissal, and accordingly conclude that both Gilbert and Hunt were properly committed under ch. 980 after their parole and extended supervision, respectively, was revoked. ¶18 The Petitioners make slightly different arguments with regard to the issue presented by this case.6 Gilbert makes three arguments: Wis. First, that proceeding with a Stat. ch. 980 petition after a parole revocation violates the plain language of ch. 980; simultaneous second, commitment unconstitutional that interpreting and violations of incarceration the ch. 980 would protections to allow result against in double jeopardy and ex post facto laws, as well as in violations of substantive due process; and third, that the ch. 980 petitions 6 Gilbert and Hunt's arguments, although not identical, often cover what is substantively the same ground. Accordingly, we refer to their arguments collectively as the "Petitioners' arguments." 8 No. are moot when the 2010AP594 & 2010AP1155 State revokes parole and three similar returns the arguments: First, that individual to prison. ¶19 allowing Hunt makes a Wis. Stat. ch. 980 petition to continue when the subject of the petition is returned to prison is contrary to the express language of the statute; second, that State v. Szulczewski, 216 Wis. 2d 495, 574 N.W.2d 660 (1998) and State v. White, 2000 WI App 147, 237 Wis. 2d 699, 615 N.W.2d 667 deny a circuit court the discretion to stay a chapter 980 commitment proceeding in favor of imposing a prison sentence;7 and third, that permitting a ch. 980 petition to continue when the subject of the petition is incarcerated removes the constitutional protections of due process.8 ¶20 We agree with the court of appeals that each of the Petitioners' arguments interpretation of are Wis. Stat. centered ch. 980. on For the that statutory reason, the 7 We need not address this argument or Gilbert's argument that ch. 980 petitions are moot when the State revokes parole and returns the individual to prison because we conclude that ch. 980 does not preclude simultaneous incarceration and commitment. Therefore, the circuit court does not need to stay the proceedings, and the proceedings are not moot even if parole or extended supervision is revoked before a commitment order is entered. 8 Hunt's constitutional arguments are unclear. His initial brief to this court contained scant argument slightly more than 500 words, including citation addressing his constitutional concerns. In this section of his argument, the words "due process" appear only once, and no other constitutional argument is made. In his reply brief, Hunt provides only a conclusory sentence alleging that his due process rights were violated. 9 No. court of appeals disposed of the arguments in a single footnote. 2010AP594 & 2010AP1155 Petitioners' constitutional See Gilbert, 333 Wis. 2d 157, ¶11 n.9 (interpreting the Petitioners' constitutional arguments as relying "entirely on their interpretations of Wis. Stat. ch. 980" and as "not developed beyond their interpretations of ch. 980."). Because we believe that each of the Petitioners' arguments are centered on the interpretation of the statute, we first turn to a brief overview of ch. 980. ¶21 Wisconsin Stat. ch. 980 "provides for the involuntary commitment of certain individuals who are found to be sexually violent persons."9 N.W.2d 105 procedure (1995). that the State v. Carpenter, As State such, ch. 980 must follow 197 Wis. 2d 252, prescribes in order a to 541 detailed commit a sexually violent person.10 9 For a history of ch. 980 and other states' sexual offender commitment laws, see generally Juliet M. Dupuy, Comment, The Evolution of Wisconsin's Sexual Predator Law, 79 Marq. L. Rev. 873 (1996), and Rebecca Kennedy Hamrin, Comment, Supervised Release Under Chapter 980: Alternatives to Protect Wisconsin While Upholding the Constitution, 2007 Wis. L. Rev. 889. 10 We reviewed the constitutionality of ch. 980's procedures as a whole in 1995 in two cases: State v. Carpenter, 197 Wis. 2d 252, 541 N.W.2d 105 (1995), and State v. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995). In those cases, we determined, inter alia, that ch. 980 commitments do not violate the constitutional prohibitions of double jeopardy and ex post facto laws, see Carpenter, 197 Wis. 2d at 259, or substantive due process and equal protection, see Post, 197 Wis. 2d at 29394. See generally Erich C. Straub & James E. Kachelski, The Constitutionality of Wisconsin's Sexual Predator Law, Wis. Law., July 1995. 10 No. ¶22 any of The Petitioners do not contend that the State violated the allege 2010AP594 & 2010AP1155 procedures ch. 980 does of Wis. not Stat. contain ch. 980; suitable instead, they procedures for commitment after parole or extended supervision is revoked and the individual subject to the petition is re-incarcerated. do not agree. allows a normal course revoked. We Our review of ch. 980 reveals that the statute ch. 980 commitment after parole petition or to extended proceed through supervision has its been We turn first to a review of the purpose of ch. 980, because the purpose of ch. 980 informs our interpretation of its language. A. The Purpose of Chapter 980 Does Not Require Dismissal ¶23 The primary goal of Wis. Stat. ch. 980 is two-fold: 1) the treatment of sexually violent persons, and 2) the protection of society from those persons. ¶27, 336 Wis. 2d 578, 800 See State v. West 2011 WI 83, N.W.2d 929; State v. Post, 197 Wis. 2d 279, 308, 541 N.W.2d 115 (1995); Carpenter, 197 Wis. 2d at 271 ("[T]he principal purposes of ch. 980 are the protection of the public and the treatment of convicted sex offenders." (quoting Jones v. United States, 463 U.S. 354, 368 (1983))). This purpose highlights the fact that ch. 980 is not a punitive provision, but instead provides a means for treating sexually violent persons "who are at a high risk to reoffend in order to reduce the likelihood that they will engage in such conduct in the future." ¶24 Carpenter, 197 Wis. 2d at 271. We have consistently interpreted Wis. Stat. ch. 980 in light of this purpose. In West, we reviewed the history of 11 No. several amendments successive to ch. 980, amendment, the 2010AP594 & 2010AP1155 emphasizing legislature that, has with each increasingly demonstrated its concern for the protection of the public. 336 Wis. 2d 578, ¶¶42-44 (discussing three separate amendments that added protections for the public from sexually violent persons). ¶25 In State ex rel. Marberry v. Macht, we held that "[r]elease of a ch. 980 patient whose dangerousness or mental disorder has not abated serves neither to protect the public nor provide care and treatment for the patient." 262 Wis. 2d 720, (2003). 665 N.W.2d 155, cert. 2003 WI 79, ¶30, denied 540 U.S. 997 In that case, we declined to order the release of a sexually violent person, because release was "not justifiable under the dual purposes of the statute: protection of the public from sexually violent persons likely to reoffend and care and treatment of the patient." Id. In State v. Schulpius, we reiterated our holding in Marberry that even "where there was a violation of procedural due process . . . release is not only inappropriate, it is not justifiable under the dual purposes of the statute." cert. denied 2006 WI 1, ¶39, 287 Wis. 2d 44, 707 N.W.2d 495, 547 U.S. 1138 (2006) (quoting these cases, it Marberry, 262 Wis. 2d 720, ¶30). ¶26 In light of is clear that the protection of the public from sexually violent persons is of central importance in Wis. Stat. ch. 980 cases. We continue our review of ch. 980 with this principle in mind. We turn next to a discussion of the language of ch. 980, ultimately determining that it does not require the dismissal of a pending commitment 12 No. petition when the individual subject to 2010AP594 & 2010AP1155 the petition is re- incarcerated because of the revocation of parole or extended supervision. B. ¶27 issue Chapter 980 and Re-Incarceration Wisconsin Stat. ch. 980 does not expressly address the presented by this case: Whether ch. 980 requires the dismissal of a pending commitment petition when the individual subject to the petition is incarcerated because of a revocation of parole or extended supervision. However, the statute provides procedures for similar situations, and thereby provides guidance for our resolution of the issues in this case. ¶28 are We examine three portions of Wis. Stat. ch. 980 that relevant to our determination of whether dismissal is required in these cases. We conclude that ch. 980 does not require because such a dismissal it: 1) does not contain language allowing for dismissal in this case; 2) does not set a time period for execution of a commitment order; and 3) states that an individual may be simultaneously committed under ch. 980 13 No. and incarcerated at a DOC facility.11 2010AP594 & 2010AP1155 We address each of these three components of ch. 980 in turn. 1. Chapter 980 Provides Only Two Means for Dismissal of a Chapter 980 Commitment Petition ¶29 circuit The thrust of the Petitioners' argument is that the court must dismiss a pending Wis. Stat. ch. 980 commitment petition if the individual subject to the petition is re-incarcerated for a parole or extended supervision revocation. The language of ch. 980, however, authorizes only two methods by which a circuit court may dismiss a pending commitment petition: 1) failure to find probable cause "to believe that the person is a sexually violent person" under § 980.04(3), or 2) failure to 11 The dissent takes issue with us for allegedly interpreting "statutory provisions in isolation while ignoring the context set forth in surrounding provisions." Dissent, ¶81 (citing State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110). In fact, our approach to ch. 980 is a holistic one, and, by examining the inner workings of the statute related to this case, undertakes an analysis of its context. See Part IV.B.1. (discussing that ch. 980 provides only two means for dismissal of a ch. 980 commitment petition); Part IV.B.2. (discussing that nothing in the language or context of ch. 980 requires immediate execution of a commitment order); Part IV.B.3. (discussing that section 980.07(6m) does not conflict with ch. 980 when it allows an individual to be simultaneously committed under ch. 980 and incarcerated at a DOC facility). The dissent takes an alternative approach. See Dissent, ¶98 (stating that the reason for the 2005 changes to ch. 980 are "revealed by examining th[e] legislative history"). It undertakes an analysis that is representative of the precise evil that Kalal was designed to combat: the use of legislative history in lieu of the language of the statute. See Kalal, 271 Wis. 2d 633, ¶51. 14 No. 2010AP594 & 2010AP1155 prove "beyond a reasonable doubt that the person is a sexually violent person" under § 980.05(5).12 ¶30 Nothing in Wis. Stat. ch. 980 requires dismissal of a pending commitment petition under the conditions proposed by the Petitioners; therefore, it is unreasonable to assume that the legislature impliedly authorized circuit courts to dismiss pending ch. 980 commitment petitions when the individual subject to the petition has been re-incarcerated for a subsequent parole 12 The State suggests that Wis. Stat. ch. 980 provides two means for terminating a commitment: vacating the judgment under § 980.101(2)(a), and discharge under § 980.09. However, neither of these provisions is relevant to the issue in this case, because both deal with the termination of commitment after the entry of an order of commitment under § 980.06. The issue in this case deals with the dismissal of a petition, not a final commitment order. 15 No. or extended violation.13 supervision 2010AP594 & 2010AP1155 See Noffke, 315 Wis. 2d 350, ¶27 n.7 ("[E]very word excluded from a statute must be presumed to have been excluded for a purpose . . . ."). The legislature could have included a provision in ch. 980 requiring dismissal in such situations, but it did not. judicially statute. engraft such a dismissal We will not requirement into the See Heritage Farms, Inc. v. Markel Ins. Co., 2009 WI 27, ¶41, 316 Wis. 2d 47, 762 N.W.2d 652 (holding that this court does not insert words into statutes). 13 In short, the statute This reasoning is especially persuasive given that the legislature has amended Wis. Stat. ch. 980 thirty times in less than twenty years, and every successive legislature has made some change to ch. 980. See 1995 Wis. Act 27, § 9126(19)(a); 1995 Wis. Act 77, §§ 693 to 698; 1995 Wis. Act 225, § 536; 1995 Wis. Act 276, §§ 2g, 2k, 2n; 1995 Wis. Act 440, §§ 106 to 114; 1997 Wis. Act. 27, §§ 5491b to 5491x; 1997 Wis. Act. 181, §§ 112 to 114; 1997 Wis. Act. 205, §§ 104 to 105; 1997 Wis. Act. 252, § 193; 1997 Wis. Act. 275, §§ 8e to 8f; 1997 Wis. Act 283, §§ 450 to 453; 1997 Wis. Act 284, §§ 4 to 10; 1997 Wis. Act 295, § 48; 1999 Wis. Act 9, §§ 3216d, 3217d to 3220d, 3221, 3222d, 3223c, 3223h to 3223L, 3230m, 3231m, 3232, 3232p to 3238d, 3238h, 3238j, 3238t, 3239, 3239d; 1999 Wis. Act 32, §§ 409, 410; 1999 Wis. Act 185, § 193(1); 1999 Wis. Act 407, §§ 407 to 408; 2001 Wis. Act 16, §§ 4034ye to 4034yt, 9259(12j); 2003 Wis. Act 187, §§ 1 to 7; 2005 Wis. Act 253, § 174; 2005 Wis. Act 277, §§ 96, 97; 2005 Wis. Act 344, §§ 633 to 635; 2005 Wis. Act 431, §§ 15 to 20; 2005 Wis. Act 434, §§ 60 to 130; 2007 Wis. Act 20, §§ 3928 to 3930, 9121(6)(a); 2007 Wis. Act 96, §§ 171 to 174; 2007 Wis. Act 97, §§ 331 to 334; 2009 Wis. Act 26, § 13; 2009 Wis. Act 28, §§ 3401, 3405; 2009 Wis. Act 248, § 1. Currently, two bills are under review that would further amend ch. 980. See 2011 S.B. 169; 2011 S.B. 214. Given this cavalcade of proposed and enacted amendments, it is unreasonable to assume that the legislature intended to require the dismissal of a pending ch. 980 commitment petition if the individual subject to the petition is re-incarcerated on a parole or extended supervision violation, and simply forgot to create a provision to do so. 16 No. 2010AP594 & 2010AP1155 provides no indication that a circuit court should do anything but consider a ch. 980 commitment petition if the individual subject to the petition is re-incarcerated for a parole or does not extended supervision violation. ¶31 Our require conclusion dismissal regarding its purposes of is that Wis. consistent purposes. ch. 980 As is with we the Stat. have ch. 980 our prior discussed, "protection of holdings one the of the public," Carpenter, 197 Wis. 2d at 258, and we have described release from custody dangerous as incompatible with this goal, Marberry, 262 Wis. 2d 720, ¶30. We would to do of an violence individual to the still purpose considered of ch. 980 if we were conclude that dismissal of a pending ch. 980 commitment petition is warranted where the language of the statute does not so require. ¶32 Accordingly, we conclude that Wis. Stat. ch. 980 does not require the dismissal of a pending commitment petition when the individual subject to that petition has been re-incarcerated due to a violation of parole or extended supervision. 2. Section 980.06 Does Not Require Immediate Execution of a Commitment Order Where Revocation Proceedings Are Pending ¶33 provide Even if the language of Wis. Stat. ch. 980 does not for the dismissal of a pending ch. 980 commitment petition when the individual subject to the petition has been re-incarcerated for a parole or extended supervision revocation, we must determine whether post-revocation prosecution of ch. 980 petition conflicts with other provisions of ch. 980. 17 a We No. 2010AP594 & 2010AP1155 thus turn to § 980.06, the general provision that grants circuit courts the authority to commit sexually violent persons to the care and custody of the DHS. Section 980.06 states, in relevant part: If a court or jury determines that the person who is the subject of a petition under s. 980.02 is a sexually violent person, the court shall order the person to be committed to the custody of the department for control, care and treatment until such time as the person is no longer a sexually violent person. ¶34 The Petitioners focus on the language of this section that states a sexually violent person must be "committed to the custody of the department for control, care and treatment." Id. They argue that because this section requires "treatment" of sexually violent persons, and because the DOC does not provide such treatment, a sexually violent person cannot be simultaneously committed to DHS custody under Wis. Stat. ch. 980 and in the custody interpretation adds of the DOC. We to the language disagree, of § 980.06 because and this ignores other sections of ch. 980. ¶35 While we acknowledge that Wis. Stat. § 980.06 requires the circuit court to "order the person to be committed to the custody of the [DHS] for control, care and treatment," see § 980.06, ch. 980 does not specify when that commitment must commence. Stated a different way, while § 980.06 sets forth the requirements for a proper commitment order, neither that section nor any other section of ch. 980 contains language stating when the individual requirements (control, care, and treatment) of 18 No. that order must be satisfied. See id. 2010AP594 & 2010AP1155 Although the legislature did not direct the court regarding the timing or execution of commitment orders, we think it important to review the statutory history of ch. 980 to shed light on the current statute. ¶36 Wisconsin Stat. § 980.06 remains in much the same form as it was in 1993 when ch. 980 became law. (2005-06) with 1993 Wis. Act 479, § 40. Compare § 980.06 However, prior to 2005, the State could not file a ch. 980 commitment petition more than 90 days before an inmate's release date from DOC custody. § 980.02(ag) (2003-04) (stating that a petition could be filed if "[t]he person is within 90 days of discharge or release, on parole, extended supervision or otherwise, from a sentence that was imposed for a conviction for a sexually violent offense . . . ."). ¶37 Before 2006, it was nearly impossible for a commitment order to be executed before the release of the individual from incarceration because the lengthy procedure required by Wis. Stat. ch. 980 could not be accomplished in the 90 days leading up to discharge or release. See Wis. Stat. §§ 980.02(ag), .04, .05 (2003-04) (outlining detention, probable cause procedures hearing, and expert examination procedures and establishing procedures for trial). However, in 2006, the legislature repealed § 980.02(ag) (2003-04) and replaced it with § 980.02(1m) (2005-06), which requires only that the ch. 980 commitment petition be filed "before the person is released or 19 No. discharged."14 2010AP594 & 2010AP1155 See 2005 Wis. Act 434, §§ 82-83 (amending and updating § 980.02).15 ¶38 removed the By enacting Wis. Stat. § 980.02(1m), the legislature the pre-existing 90-day requirement, possible petitions. file16 a time for the filing of thereby ch. 980 extended commitment Under a plain reading of § 980.02(1m), the State may ch. 980 commitment petition at any time after the 14 The dissent contends that because Wis. Stat. § 980.015(2) states that the "the agency with jurisdiction shall inform each appropriate district attorney and the department of justice regarding the person as soon as possible beginning 90 days prior to the applicable date" of release from a term of imprisonment, that a ch. 980 commitment petition may not be filed before that point. Dissent, ¶84-85. There is no language in the statute that supports this assertion. Instead, the statute simply states that "[a] petition filed under this section shall be filed before the person is released or discharged." § 980.02(1m). 15 Act 434 amended a significant portion of ch. 980. See generally 2005 Wis. Act 434. Compare Wis. Stat. ch. 980 (200304) with Wis. Stat. ch. 980 (2005-06). We discuss only those portions relevant to the issues presented by these cases. 16 Once a Wis. Stat. ch. 980 commitment petition has been filed, the statute requires the process to move forward by prescribing the duties which the circuit court must perform. See §§ 980.04(1) ("Upon the filing of a petition under s. 980.02, the court shall review the petition to determine whether to issue an order for detention of the person who is the subject of the petition."); 980.04(2)(b)1. ("[T]he court shall hold the probable cause hearing within 30 days . . . after the filing of the petition . . ."); 980.05(1) ("A trial to determine whether the person who is the subject of a petition under s. 980.02 is a sexually violent person shall commence no later than 90 days after the date of the probable cause hearing under s. 980.04 . . ."). This statutory framework requires the commitment process to move forward after the filing of the petition. 20 No. "person has been § 980.02(2)(a)(1). ¶39 convicted of a sexually 2010AP594 & 2010AP1155 violent offense." 17 Because the State may now file a commitment petition at any time after the "person has been convicted of a sexually violent offense," Wis. Stat. § 980.02(1m), it is possible that a circuit court could enter a commitment order under § 980.06 well before the sexually incarceration. violent person was released from DOC Yet, as the Petitioners stress, § 980.06 seems to require commitment "to the control, care and treatment." custody of the department for This provision, the Petitioners argue, requires immediate commitment to the DHS following the entry of a commitment order. However, the Petitioners' view of the language of these two provisions would create an internal conflict within committed to the the statute: custody of How the 17 could DHS for an individual control, care be and The dissent argues that if the legislature had intended for its amendment to change the procedures for a ch. 980 commitment petition, "this significant change surely would have been highlighted in the portions of the legislative history that described the bill." Dissent, ¶96. In so doing, the dissent elevates the legislative history of the Act or the lack thereof to a position of greater importance than the actual language of the act. However, if the legislature had intended to merely codify the holding of State v. Keith, 216 Wis. 2d 61, 573 N.W.2d 888 (Ct. App. 1997), it could have codified the precise language of that holding, which it did not do. Therefore, we hold that we are bound by the enacted language of the statute, not the extensive legislative history as summarized by the dissent. See Kalal, 271 Wis. 2d 633, ¶44 ("Extrinsic evidence of legislative intent may become relevant to statutory interpretation in some circumstances, but is not the primary focus of inquiry. It is the enacted law, not the unenacted intent, that is binding on the public."). 21 No. 2010AP594 & 2010AP1155 treatment while still incarcerated at a DOC facility? Under the Petitioner's view of the statute, the committed individual would have to be in two places at once. Such an interpretation would render a clearly absurd result; therefore, we must interpret the statute not as the Petitioners suggest, but in a way that harmonizes the provisions of the statute and gives effect to every word. State v. Fischer, 2010 WI 6, ¶24, 322 Wis. 2d 265, 778 N.W.2d 629. ¶40 To harmonize the statutes, we must first answer the question of whether Wis. Stat. ch. 980 allows for simultaneous ch. 980 commitment and DOC incarceration. We turn next to this question. 3. Section 980.07(6m) States that an Individual May Be Simultaneously Committed Under Chapter 980 And Incarcerated at a DOC Facility ¶41 To answer the question of whether a sexually violent person can be committed under Wis. Stat. ch. 980 and, at the same time, subject § 980.07(6m). 980.06 is to incarceration, we turn first to It states that "[i]f a person committed under s. incarcerated institution, DOC or at federal a county correction jail, state institution correctional for a new criminal charge or conviction or because his or her parole was 22 No. 2010AP594 & 2010AP1155 revoked, any reporting requirement . . . does not apply during the incarceration period." ¶42 This provision § 980.07(6m)18 1) demonstrates that the legislature anticipated that simultaneous commitment and incarceration might occur and 2) clarifies that the legislature intended to allow it. In light of the legislature s recognition expressed in Wis. Stat. § 980.07(6m), the Petitioners argument that a sexually violent person cannot be simultaneously committed under ch. 980 and incarcerated in a DOC facility is contrary to the language of the statute. And, while the Petitioners were re-incarcerated before commitments their were finalized meaning that § 980.07(6m) does not apply directly to the issue presented by this case its language offers insight into how we should apply ch. 980 as a whole. ¶43 violent First, persons Wis. Stat. may be § 980.07(6m) simultaneously subject to a commitment order. states in DOC that sexually custody while While this provision, as the petitioners point out, appears to conflict with §§ 980.06 (the general commitment provision) and .065 (the general provision 18 Before 2006, ch. 980 was silent regarding simultaneous commitment and incarceration. See generally Wis. Stat. ch. 980 (2003-04). However, in 2005 Wis. Act 434, the legislature added the provisions above, which remains in the same form in the statutes today. See 2005 Wis. Act 434, § 110m. 23 No. 2010AP594 & 2010AP1155 regarding placement at DHS facilities),19 it is this court's duty to harmonize enforcing the statutes, another. Wis. 2d 1, 15, 591 See not Beard N.W.2d 156 ignore v. Lee (1999) one section, Enters., ("Apparently while Inc., 225 conflicting provisions of law should be construed so as to harmonize them and thus give effect to the leading idea behind the law."); Fontana v. N.W.2d 349 Fontana-On-Geneva (1975) ("In Lake, 69 construing Wis. 2d 736, several 742, 233 of the sections statutes relating to a single subject it is the duty of the court to give force and effect to the different sections and not ignore any of them. . . . must, if it is possible In interpreting these statutes we to do so, harmonize and reconcile them.") (internal citations omitted). ¶44 Second, to harmonize Wis. Stat. §§ 980.06 (the general commitment provision), .065 (the general provision regarding placement at DHS facilities), and .07(6m) (the provision that allows for DOC custody following the revocation of parole), we must give effect to each provision. Accordingly, in light of § 980.07(6m), we must reconcile the statute in a way that allows for the facility. simultaneous commitment and incarceration at a DOC To do so, we conclude that §§ 980.06 and .065 provide the general rule (commitment to a DHS facility to the custody of 19 "The department shall place a person committed under s. 980.06 at the secure mental health facility established under s. 46.055, the Wisconsin resource center established under s. 46.056 or a secure mental health unit or facility provided by the department of corrections under sub. (2)." Wis. Stat. § 980.065. 24 No. 2010AP594 & 2010AP1155 the DHS), and § 980.07(6m) provides an exception to that general rule (simultaneous commitment and incarceration) when the sexually violent person commits an offense which leads to either revocation or a new charge. each time an necessarily placement a at individual commitment a DHS Clearly, §§ 980.06 and .065 apply is committed, order facility and, for as that because part of there that commitment. is order, However, § 980.07(6m) applies to only those situations where parole has been revoked after the entry of a commitment order necessarily a smaller number of cases. ¶45 Accordingly, we conclude that simultaneous incarceration at a DOC facility and commitment under Wis. Stat. ch. 980 is permissible. We have also concluded that the language of ch. 980 provides only two means for dismissal of a ch. 980 commitment petition, and neither is applicable in these cases. Additionally, we have concluded that ch. 980 does not set a time period for execution of a commitment order. In so doing, we have analyzed three separate sections of ch. 980 that, when viewed together and in light of the purpose of ch. 980, present a clear result. In the next section, we interpret ch. 980 as a whole, giving effect to each of its provisions, "harmoniz[ing] them and thus giv[ing] effect to the leading idea behind the law." Beard, 225 Wis. 2d C. ¶46 at 15. Harmonizing Chapter 980 It is our duty to interpret the statutes in a way that 1) preserves the purpose of the statute, 2) attains a reasonable result, and 3) gives reasonable 25 effect to every word. See No. 2010AP594 & 2010AP1155 Beard, 225 Wis. 2d at 15; Fischer, 322 Wis. 2d 265, ¶24 ("When confronted with an apparent conflict between statutes, the court construes sections on the same subject matter to harmonize the provisions and to give each full force and effect. The court will not construe statutes so as to work unreasonable results.") (internal citations omitted); Kalal, 271 Wis. 2d 633, ¶44 ("Statutory language is read where possible to give reasonable effect to every word . . . ."). ¶47 Based on our interpretation of Wis. Stat. ch. 980, we conclude that it does not require the dismissal of a pending commitment petition when the individual subject to the petition is re-incarcerated extended because supervision. of This the result revocation must of follow parole for or several reasons. ¶48 and First, such a result is consistent with the purpose language of Wis. Stat. ch. 980. Chapter 980 does not require dismissal, see ch. 980, and, although it does require commitment to the "custody of the department for control, care and treatment," it does not require an immediate execution of the commitment order where parole or extended supervision has been revoked, see § 980.06. Further, ch. 980 allows for simultaneous commitment and incarceration, see § 980.07(6m), and one of its overarching purposes is the protection of the public from sexually violent persons, see West 336 Wis. 2d 578, ¶27; Post, 197 Wis. 2d at 308; Carpenter, 197 Wis. 2d at 258. ¶49 With these principles in mind, we conclude that to harmonize Wis. Stat. ch. 980, we must hold that the State may 26 No. pursue a subject ch. 980 to the commitment petition petition has been 2010AP594 & 2010AP1155 after the individual re-incarcerated violation of parole or extended supervision. due to a This harmonization comports with the language of ch. 980, which does not require a dismissal, and reflects our commitment need executed not be prior holding that an for Finally, immediately. order our holding gives effect to the overall statutory scheme, designed to protect the public from sexually violent persons, because it allows the State to retain control of sexually violent persons rather than releasing them as a result of their own bad behavior. ¶50 Second, ch. 980, it our also holding avoids only absurd Wis. 2d 155, ¶18 avoid[] . . . absurd or unreasonable 271 Wis. 2d 633, statutes, a ("We an not attempt, ¶46)). sexually Under violent harmonizes result. whenever the possible, results." properly Stat. Hocking, 326 to . . . (citing Petitioners' person Wis. Kalal, view of the committed under ch. 980 and not subject to parole or extended supervision would be incentivized to commit non-sexual violent crimes while in DHS custody. The application of the Petitioners argument would mean that the State would have only two choices following the commission prosecute of the individual's such a crime individual commitment, by for the or 2) a committed crime, forgo individual: thereby ending prosecution of 1) the the individual, thereby continuing the commitment, but allowing the individual to evade punishment. 27 No. ¶51 If the State chooses the 2010AP594 & 2010AP1155 first option in this scenario, and is successful in convicting the individual of the crime, the State would be precluded from seeking re-commitment under Wis. Stat. ch. 980. non-980 predicate For, if the individual committed a offense (an offense not listed in § 980.01(6)), such as the offenses that were committed here, the language of § 980.02(1m-2) prevents the State from petitioning for re-commitment under ch. 980. This section requires, inter alia, that the State prove that the person "has been convicted of a sexually violent offense," § 980.02(2)(a)1., and that the ch. 980 petition must be "filed before the person is released or discharged" from the sentence for that sexually violent offense, § 980.02(1m). ¶52 As the court of appeals made clear in State v. Treadway, this provision means that the State may file a Wis. Stat. ch. 980 commitment petition at the conclusion of either consecutive or concurrent sentences where one or more of the sentences served is a ch. 980 predicate offense. See 2002 WI App 195, ¶17, 257 Wis. 2d 467; 651 N.W.2d 334; see also State v. Keith, 216 Wis. 2d 61, 72, 573 N.W.2d 888 (Ct. App. 1997). The new sentence would be neither consecutive nor concurrent with a sentence for a sexually violent offense; therefore, the sexually violent person could not be recommitted at the conclusion of the new sentence § 980.02(1m) for the (requiring non-sexually the filing of violent the crime. ch. 980 See commitment petition before the person is released); see also Treadway, 257 Wis. 2d 467, ¶17; Keith, 216 Wis. 2d at 72. 28 Accordingly, if the No. 2010AP594 & 2010AP1155 Petitioners are correct, and a sexually violent person cannot be simultaneously committed under ch. 980 and incarcerated at a DOC facility, then permanently a end committed a valid sexually commitment violent by person engaging in could criminal behavior. ¶53 have This is an absurd result. intended, when it enacted The legislature could not Wis. Stat. ch. 980, that a committed sexually violent person could, by engaging in criminal behavior, terminate his own commitment. This, however, is the result that would follow if we were to accept the Petitioners' argument.20 ¶54 By harmonizing the provisions contained in Wis. Stat. §§ 980.02(1m), .06, result, interpret and Accordingly, we .065, conclude and 07(6m), we avoid the statute in that ch. 980 does a this absurd tenable not require way. the dismissal of a pending commitment petition when the individual 20 The Petitioners' interpretation of the statute is further weakened by the fact that it leads to opposite outcomes based solely on happenstance. If, as the Petitioners suggest, a Wis. Stat. ch. 980 commitment petition must be dismissed if a parole or extended supervision revocation occurs before commitment, but not after a commitment order is issued, then whether a sexually violent person may be committed or must have his petition dismissed is completely dependent on when he commits the offense. Therefore, the Petitioners' argument reduces as follows: If the sexually violent person s parole or extended supervision is revoked pre-commitment, even if the revocation is only days or even hours before the order is entered, the pending ch. 980 commitment petition must be dismissed. If, however, his parole or extended supervision is revoked postcommitment, § 980.07(6m) applies, and he may be transferred to a DOC facility while still subject to a ch. 980 commitment. 29 No. subject to the petition is 2010AP594 & 2010AP1155 re-incarcerated because of the revocation of parole or extended supervision. D. Our Interpretation of Chapter 980 Does Not Render the Statute Constitutionally Infirm ¶55 The Petitioners argue, albeit in slightly different manners, that the interpretation of Wis. Stat. ch. 980 adopted above deprives them of constitutional protections.21 We observe, like the court of appeals, that these arguments are 1) poorly developed, and interpretation. 2) dependent upon flawed statutory Therefore, although we need not address the constitutionality of a statute where a constitutional challenge has not been fully developed or briefed, see State v. Johnson, 2009 WI 57, ¶71, 318 Wis. 2d 21, 767 N.W.2d 207; see also Lake Beulah Mgmt. Dist. v. State Dep't of Natural Res., 2011 WI 54, ¶29 n.26, 335 Wis. 2d 47, 799 N.W.2d 73; State v. Franklin, 2004 WI 38, n.5, 270 Wis. 2d 271, 677 N.W.2d 276, we will comment briefly on the Petitioners' arguments for the sake of clarity. ¶56 The Petitioners correctly assert that this court must interpret infirmities. Wis. 2d 484, Wis. See 697 Stat. State ch. 980 v. N.W.2d 769 to Stenklyft, (holding avoid 2005 that constitutional WI 71, courts ¶8, 281 should interpret statutes as constitutional whenever possible); State ex rel. Friedrich v. Dane Cnty. Cir. Ct., 192 Wis. 2d 1, 24, 531 21 Gilbert argues that simultaneous commitment and incarceration violates his substantive due process, double jeopardy, and ex post facto constitutional protections. Hunt, alternatively, implies that simultaneous commitment and incarceration violates due process. 30 No. 2010AP594 & 2010AP1155 N.W.2d 32 (1995) (stating that this court must "indulge every presumption in order to legislative enactment"). preserve the constitutionality of a The Petitioners go on to conclude, however, that an interpretation that allows both simultaneous commitment and incarceration would do the exact opposite: instead of avoiding constitutional infirmities, it would create them. We disagree with each of the Petitioners' conclusion for the following reasons. ¶57 The Petitioners argue that, in accordance with Foucha v. Louisiana, a committed individual "may be held as long as he is both mentally ill 504 U.S. 71, 77 (1992). and dangerous, but no longer." This, the Petitioners assert, precludes simultaneous incarceration and commitment of a sexually violent person. Although, as the court of appeals noted, their argument is undeveloped for the complexity of the challenge they assert, the Petitioners argue that because a simultaneously incarcerated and committed sexually violent person's mental condition could not be assessed at the time of commitment, Foucha precludes commitment. ¶58 This argument fails because nothing in our decision today precludes or even suggests that the State may forgo the statutory commitment procedures set forth in Wis. Stat. ch. 980. Those procedures adequately ensure that at the issuance of a commitment order, the court has determined that the committed individual is at that moment a sexually violent person. Further, if the individual serves his sentence of incarceration and is transferred to DHS custody, he will then be subject to 31 No. 2010AP594 & 2010AP1155 periodic reevaluation to determine whether he remains a sexually violent person. remove any of See § 980.07. these Because our opinion does not procedural protections, sexually violent persons continue to be "held as long as [they are] both mentally ill and dangerous, but no longer." Therefore, the Petitioners' Foucha, 504 U.S. at 77. argument that Foucha precludes commitment is misplaced. ¶59 Next, the Petitioners argue that "allow[ing] civil commitment to prison would . . . render[] Chapter 980 punitive," in violation jeopardy. of the constitutional protection against double It must first be noted, of course, that the statute does not permit, nor does our opinion contemplate, "commitment to prison." instead, The Petitioners were not "committed to prison"; they were re-incarcerated for parole and extended supervision violations. ¶60 Further, determines whether purposes. question it a is the statute language is of the statute which punitive for constitutional See Seling v. Young, 531 U.S. 250, 261 (2001) ("[T]he whether an Act is civil or punitive in nature is . . . one of statutory construction."); Kansas v. Hendricks, 521 U.S. 346, 361 (1997). Therefore, because we have repeatedly determined, after lengthy analysis, that Wis. Stat. ch. 980 is not a punitive statute, Carpenter, 197 Wis. 2d at 258-59, State v. Burris, 2004 WI 91, ¶36, 273 Wis. 2d 294, 682 N.W.2d 812; State v. N.W.2d 762; Rachel, State 2002 v. WI Hezzie 81, R., ¶18, 219 254 Wis. 2d 215, Wis. 2d 848, 879, 647 580 N.W.2d 660 (1998), we once again adopt our prior reasoning and 32 No. re-affirm our prior holdings that ch. 980 2010AP594 & 2010AP1155 is not a punitive statute.22 ¶61 Accordingly, we conclude that because Wis. Stat. ch. 980 is not a punitive statute and our decision upholds the procedural requirements of ch. 980, our interpretation does not render the statute constitutionally infirm. V. ¶62 chapter We 980 are asked requires CONCLUSION to the decide whether dismissal petition when the individual subject of to a Wisconsin pending the Statutes commitment petition is re- incarcerated because of the revocation of parole or extended supervision. We hold that the State may proceed with a ch. 980 commitment after the revocation of a subject individual's parole or extended supervision. Based on that holding, we conclude that both of the ch. 980 commitments at issue in this case are valid, and therefore affirm the court of appeals. By the Court. The decision of the court of appeals is affirmed. 22 The Petitioners also submit that an interpretation of Wis. Stat. ch. 980 that permits simultaneous incarceration and commitment violates constitutional protections against ex post facto laws. However, although the Petitioners make this assertion, their argument to that effect is underdeveloped, amounting to a single briefed paragraph. Therefore, we decline to address it. State v. Johnson, 2009 WI 57, ¶71, 318 Wis. 2d 21, 767 N.W.2d 207. 33 No. ¶63 ANN WALSH BRADLEY, J. an involuntary commitment 2010AP594 & 2010AP1155.awb (dissenting). statute. It Chapter 980 is permits the State to confine a person indefinitely not as punishment for what that person has done, but rather based on the person's mental state and what that person might do in the future. ¶64 Since its inception, Chapter 980 has survived multiple constitutional challenges because commitment under that chapter rests on an assessment of the person's current mental state. A person can be committed under Chapter 980 if there is a showing that the person is dangerous because of a mental disorder that makes it likely that the person will engage in future acts of sexual violence. ¶65 The Chapter 980. majority undermines this bedrock principle of It appears to hold that there need not be any finding that a person is mentally ill or dangerous at the time the person treatment. is actually committed to an institution for Instead, it permits an involuntary commitment to act like a detainer that can be executed "at any time" after the findings of mental illness and dangerousness are made. Under the majority's analysis, these findings could have been made months or even years before the person is actually committed to the custody of the Department of Health Services (DHS) for cannot be treatment. ¶66 Because the majority's interpretation squared with the constitution, the statute, or the legislative history, I respectfully dissent. I 1 No. ¶67 2010AP594 & 2010AP1155.awb Allowing an involuntary commitment order to be entered "at any time" unconstitutionally divorces the findings of mental illness and dangerousness actually "executed." legislative punitive the time the commitment is I have previously observed that repeated amendments threatened from which the made the statute constitutionality commitments under Chapter 980. increasingly of involuntary State v. Rachel, 2002 WI 81, 254 Wis. 2d 215, 647 N.W.2d 762 (Bradley, J., concurring). Here, it is not the legislature but rather, it is the majority opinion of this court that further compromises the constitutionality of the statute. ¶68 The majority determines that the commitment orders in this case are valid based upon its conclusion that a circuit court is before permitted the sexually to "enter violent a commitment person [is] [Department of Corrections] incarceration." ¶69 order . . . well released from DOC Majority op., ¶39. To reach this conclusion, the majority asserts that the language of the commitment statute "does not set a time period for execution of a commitment order," id., ¶28, and does not explicitly state "when [a] commitment must commence," id., ¶35. Because the legislature removed a provision of the statute requiring the State to allege in the petition that the person is within 90 days of discharge or release from DOC custody, id., ¶36, the majority concludes that the legislature intended to permit the State to file a petition "at any time after the person has been convicted of a sexually violent offense," id., ¶38. 2 No. ¶70 2010AP594 & 2010AP1155.awb Tagged on to the end of the opinion, after already arriving at the holding in this case, the majority states: "We will comment briefly on the Petitioners' arguments for the sake of clarity." [constitutional] Id., ¶55. It appears to conclude that there is no constitutional infirmity here because Chapter 980, in its various iterations, constitutional challenges in the past. ¶71 Ultimately, the majority has withstood its statutory Id., ¶60. reemploys analysis in lieu of any constitutional analysis. It relies on the fact that the person is mentally ill and dangerous at the time the commitment order is entered in an attempt to salvage its constitutionality even if the order is not actually executed (meaning the person is not actually committed to DHS custody) until years or even decades later. Id., ¶58. II ¶72 The majority's unconstitutional result. interpretation authorizes an If the majority were correct that the statute allowed a commitment order to be entered "at any time after the offense," person this has been conclusion constitutionality of convicted would Chapter of a sexually singlehandedly 980. Just violent undermine last year, the we acknowledged that Chapter 980 "required the State to prove the individual's mental disorder and dangerousness . . . at the time of commitment." State v. West, 2011 WI Wis. 2d 578, 800 N.W.2d 929 (emphasis added). 83, ¶95, 336 This requirement is necessary to avoid violations of due process, ex post facto, and double jeopardy. 3 No. ¶73 2010AP594 & 2010AP1155.awb Substantive due process requires that an involuntary commitment is based on a person's current mental illness and dangerousness. v. Post, Foucha v. Louisiana, 504 U.S. 71 (1992); State 197 Wis. 2d 279, 294, 541 N.W.2d 115 (1995). In Foucha, the United States Supreme Court explained that a person could be involuntarily committed "as long as he is both mentally ill and dangerous, but no longer." 504 U.S. at 77. It held: "[K]eeping Foucha against his will in a mental institution is improper absent a determination in civil commitment proceedings of current mental illness and dangerousness." Id. at 78 (emphasis added). ¶74 Similarly, challenge in Post, to we resolve relied a on substantive the fact due that process "Chapter 980 authorizes the civil commitment of persons, previously convicted of a sexually violent offense, who currently suffer from mental disorder that predisposes them to repeat such acts." Wis. 2d at 294. a 197 "[T]he focal point of commitment is not on past acts but on current diagnosis of a present disorder," which is "conceptualized psychological as a syndrome clinically or current state of distress." ¶75 pattern significant behavioral that . . . must Id. at 307, 306. or reflect a (emphasis added). Additionally, both the United States Supreme Court and this court have explained that the focus on the person's current mental state may be necessary to protect an involuntary commitment statute from violating the constitutional prohibition against ex post facto laws. In Kansas v. Hendricks, the Court held that a commitment scheme similar to Chapter 980 does not 4 No. 2010AP594 & 2010AP1155.awb raise ex post facto concerns because it "permits involuntary confinement based upon a determination that the person currently both suffers from a 'mental abnormality' or 'personality disorder' and is likely to pose a future danger to the public." 521 U.S. 346, 371 (1997) (emphasis in original). ¶76 Likewise, in State v. Carpenter, 197 Wis. 2d 252, 274, 541 N.W.2d 105 (1995), this court explained that Chapter 980 survived an ex post facto challenge because "[t]he legislative aim is not punishment but regulation of a present situation." The Carpenter focus on court's "the determination offender's current relied mental on condition present danger to the public, not punishment." ¶77 Carpenter mental 980's and the Id. For similar reasons, both the Hendricks Court and the court state violating have protects the jeopardy. duration Chapter explained an that the involuntary constitutional focus on commitment prohibition a person's statute against from double See Hendricks, 521 U.S. at 363 ("[T]he confinement's is . . . linked commitment, namely, to to the stated purposes hold the person until his of the mental abnormality no longer causes him to be a threat to others."); Carpenter, 197 Wis. 2d at 268 ("[T]he person is entitled to discharge as soon as his or her dangerousness or mental disorder abates."). The crux of this analysis is that an involuntary commitment does not constitute a second punishment for a past offense because it is based on the current condition of the committed person. 5 No. ¶78 multiple The teachings of constitutional these cases infirmities, 2010AP594 & 2010AP1155.awb are there clear. must be To avoid a finding that the person suffers from a mental disorder and that he is dangerous at the time he is committed. These determinations cannot be made months or years in advance of the execution of a commitment. ¶79 The majority appears to interpret the statutory text in a manner that purposefully overlooks this bedrock principle. It concludes that an involuntary commitment order can be entered "at any time after the person has been convicted of a sexually violent offense" and then "executed" at a later date. Majority op., ¶¶38, 45. III ¶80 In addition to being contrary to constitutional principles, the majority's interpretation is difficult to square with the language and expressed legislative intent underlying Chapter 980. enter a person In concluding that a circuit court is permitted to commitment [is] order "well released from DOC before the sexually incarceration," the violent majority relies on two premises: (A) the fact that the statute does not explicitly provide when a commitment must be executed; and (B) the inferences it derives from 2005 amendments to Chapter 980. When carefully examined, both fall apart. ¶81 The first premise falls apart because the majority interprets the statutory provisions in isolation while ignoring the context set forth in surrounding provisions. This approach violates a basic canon of statutory construction. State ex. rel 6 No. 2010AP594 & 2010AP1155.awb Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 ("Context is important to meaning. . . . Therefore, statutory language is interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closelyrelated statutes . . . ."). ¶82 The second premise falls apart because the majority makes inferences about legislative intent without even examining the legislative history.1 Had the majority chosen to examine, rather than to guess and infer, it would have discovered that the relevant clarify and 2005 amendments codify State to v. Chapter Keith, 980 216 were meant Wis. 2d 61, to 573 N.W.2d 888 (Ct. App. 1997) not to permit a commitment order to be entered "at any time." A ¶83 Chapter person Contrary to the majority's assertions, the language of 980, will when not examined remain in in context, DOC custody involuntary commitment has been filed. contemplates once petition a for Instead, the person will be transferred to the custody of the DHS. 1 a that An examination of The majority takes issue with my consultation of legislative history. It asserts that my analysis "is representative of the precise evil that Kalal was designed to combat." Majority op., ¶28 n.11. In Kalal, however, the court recognized that "[e]xtrinsic evidence of legislative intent may become relevant to statutory interpretation in some circumstances," and that one of those circumstances is when statutory language is ambiguous. 271 Wis. 2d 633, ¶¶44, 50-51. Another circumstance may be to avoid an unconstitutional interpretation. See id., ¶63 n.11 (Abrahamson, C.J., concurring). Both circumstances are present here. 7 No. 2010AP594 & 2010AP1155.awb three separate provisions of Chapter 980 provides this necessary context. ¶84 First, the State's decision to file a petition is generally triggered when the DOC sends notice that a person is within 90 days of release or discharge. Wisconsin Stat. § 980.015(2) provides: If an agency with jurisdiction has control or custody over a person who may meet the criteria for commitment as a sexually violent person, the agency with jurisdiction shall inform each appropriate district attorney and the department of justice regarding the person as soon as possible beginning 90 days prior to the applicable date of . . . the anticipated discharge or release . . . from a sentence of imprisonment or term of confinement in prison that was imposed for a conviction for a sexually violent offense, from a continuous term of incarceration, any part of which was imposed for a sexually violent offense . . . . (Emphasis added.) ¶85 Second, § 980.04 states incarcerated incarceration. the that person plain upon will Instead, language the filing not be the of of Wis. a petition, subjected statute Stat. to provides that an continued upon the filing of a petition, "[i]f the person is serving a sentence of imprisonment, . . . the court shall order that the person transferred to a detention facility approved by" the DHS. be Wis. Stat. § 980.04(1). ¶86 Third, once a commitment trial has been held and the person has been determined to be sexually violent, "the court shall order the person to be committed to the custody of the [DHS] for control, care and treatment until such time as the person is no longer a sexually violent person." 8 Wis. Stat. No. § 980.06. 2010AP594 & 2010AP1155.awb The court's order "shall specify that the person be placed in institutional care." ¶87 Id. The term "shall" is presumed to be mandatory when it appears in a statute. State v. Kywanda F., 200 Wis. 2d 26, 33, 546 N.W.2d 440 (1996). Nevertheless, the majority appears to conclude that this statutory mandate is ambiguous. statute provides that the court shall order Although the the person be committed to the custody of the DHS, the majority seizes on the fact that the language of the statute "does not set a time period for execution of a commitment order," majority op., ¶28, and does not explicitly state "when [a] commitment must commence," id., ¶35. ¶88 It explicitly is say true that that the Wis. court Stat. shall order § 980.06 the does person "immediately" committed to the custody of the DHS. to not be It is also true that the statute does not say that the court shall order the person to be committed to the custody of the DHS within a certain number of days of the entry of a commitment order. ¶89 Nevertheless, the language of the statute is to be read in context in light of the surrounding sections of Chapter 980, set forth above. It also must be read in light of court 9 No. 2010AP594 & 2010AP1155.awb decisions about the constitutionality of involuntary commitments generally and Chapter 980 in particular.2 ¶90 When read in this light, any ambiguity about when a commitment must commence fades away. A commitment must commence once the person has been committed as a sexually violent person. To allow a commitment to act as a detainer to be executed at some later date compromises the bedrock principle of a Chapter 980 commitment that it is based on the current condition of the person who is committed. B ¶91 To bolster its unconstitutional conclusion that the State may file a petition for commitment "at any time after the person has been convicted of a sexually violent offense," the majority compares the previous version of the statute with the version that exists legislature's intent ushered in by 2005 today. by It draws isolating Wis. Act two 434 inferences discrete without about the amendments examining its accompanying legislative history. ¶92 The majority points to former Wis. Stat. § 980.02(2)(ag) (2003-04), which provided that a petition for commitment must allege that "[t]he person is within 90 days of discharge or release . . . from a sentence that was imposed for 2 As set forth above, the constitution requires that the State must carry its burden of proving that the person is both mentally ill and dangerous. Foucha v. Louisiana, 504 U.S. 71, 80 (1992). This constitutional requirement is codified in Wis. Stat. § 980.01(7), which defines a "sexually violent person," in part, as a person "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." 10 No. 2010AP594 & 2010AP1155.awb a conviction for a sexually violent offense." When the statute was amended in 2005, the legislature repealed that subsection and created subsection 980.02(1m), which reads: "A petition filed under this section shall be filed before the person is released or discharged." ¶93 The phrase 2005 Wis. Act 434, §§ 82, 83. "[b]efore the person is released or discharged" could be interpreted differently by reasonably wellinformed persons. It could be interpreted to mean at any time before the person is released or discharged, as the majority asserts. Or, when read in context with the surrounding statutes, it could be interpreted to mean shortly before the person is released or discharged. ¶94 See infra., ¶83. The majority does not acknowledge this ambiguity, and it sees no need to examine the relevant legislative history. Instead, it leaps to the conclusion that the legislature plainly intended to "extend[] the possible time for the filing of ch. 980 commitment petitions" so that "a circuit court could enter a commitment order under § 980.06 well before the sexually violent person was released from DOC incarceration." Majority op., ¶¶38, 39. ¶95 The majority's conclusion would represent a dramatic departure from the prior version of the statute, in which the petition could not be filed until the person was within 90 days of release. Chapter 980 It would also be a dramatic departure from how had Wisconsin courts. previously been described in decisions See, e.g., Keith, 216 Wis. 2d 61. 11 of When I No. 2010AP594 & 2010AP1155.awb review the relevant legislative history, I see no indication that the 2005 amendments intended to usher in such a change. ¶96 If the bill was intended to change Chapter 980 as dramatically as the majority asserts, this significant change surely would have been highlighted in the legislative history that described the bill. ¶97 portions of the It is not. If the majority's interpretation is correct, then the significant change ushered forth by the 2005 amendment entirely evaded the attention of the Legislative Council staff members who were in Legislative legislature. charge Council of that None of the drafting the recommended numerous bill the and the measures documents drafted Joint to by the the Legislative Council or the Joint Legislative Council to explain the "key provisions" of the bill mentions that it changes the law to allow a person to be committed "at any time after the person has been convicted of a sexually violent offense."3 3 See, The portion of the Joint Legislative Council's Report to the Legislature which discusses the amendments to Wis. Stat. § 980.02, the section of Chapter 980 which addresses commitment petitions, provides: Commencement of Commitment Proceedings Under current law, if an agency with jurisdiction (i.e., the agency with the authority or duty to release or discharge the person) has control or custody over a person who may meet the criteria for commitment as an SVP, the agency must inform each appropriate district attorney (DA) and DOJ regarding the person as soon as possible beginning three months prior to the applicable date of the following: (1) the anticipated discharge from a sentence, anticipated release on parole or extended supervision, or anticipated release from imprisonment of a person who has been convicted of an SVO; (2) the anticipated release from a secure juvenile facility of a person 12 No. 2010AP594 & 2010AP1155.awb e.g., Wisconsin Legislative Council Report to the Legislature, Special Committee on Sexually Violent Persons Commitment (Sept. 9, 2005), available at http://legis.wisconsin.gov/lc/committees/study/2004/SVPC/files/R L_05_08_svpc.pdf; Memorandum from Ronald Sklansky, Senior Staff Attorney at the Wisconsin Legislative Council, to Members of the adjudicated delinquent on the basis of an SVO; or (3) the termination or discharge of a person who has been found not guilty of an SVO by reason of mental disease or defect. Under the bill, for persons under a sentence, the agency must inform the DA and DOJ regarding the person as soon as possible beginning 90 days before the date of the anticipated discharge or release on parole or extended supervision, or otherwise, from a sentence of imprisonment or term of confinement in person that was imposed for a conviction for an SVO, from a continuous term of incarceration, any part of which was imposed for an SVO, or from a prison placement under the intensive sanctions program, any part of which was imposed for an SVO. . . . The DA and DOJ must also be notified of the anticipated release on parole or discharge of a person committed under ch. 975, Stats. (the sex crimes chapter in effect prior to the creation of ch. 980), for an SVO. Filing a Commitment Petition Under current law, DOJ may file a petition to commit a person as an SVP at the request of the agency with the authority or duty to release or discharge the person. If DOJ does not file a petition, the DA for the county in which the person was convicted, adjudicated delinquent, or found not guilty by reason of insanity or mental disease, defect, or illness, or the county in which the person will reside, may file the petition. The bill specifies that the DA of the county in which the person is in custody may also file the petition; a juvenile court does not have jurisdiction over a petition involving a child; and filing fees are eliminated. 13 No. 2010AP594 & 2010AP1155.awb Special Committee on Sexually Violent Person Commitments (Sept. 13, 2004), available at http://legis.wisconsin.gov/lc/committees/study/2004/SVPC/index.h tm. ¶98 The reason for removing Wis. Stat. § 980.02(2)(ag) (2003-04) and creating sub. (1m) is revealed by examining this legislative history. of amendments that Both changes were part of a larger package were enacted to remove the ambiguity in former Wis. Stat. § 980.02(2)(ag) that had been identified by the court of appeals in State v. Keith, 216 Wis. 2d 61. ¶99 In Keith, the defendant served consecutive sentences for first-degree sexual assault, second-degree sexual assault, and fourth-degree sexual assault. On the day before he was scheduled to be released, the State filed a Chapter 980 petition for his commitment as a sexually violent person. ¶100 Keith asserted that the court lacked jurisdiction to commit him. Stat. allege In support of this argument, he relied on Wis. § 980.02(2)(ag), that the person which was provided "within that 90 a days of petition must discharge or release . . . from a sentence that was imposed for a conviction for a sexually violent offense." Because Keith was serving only a sentence for fourth-degree sexual assault at the time of his release, and because that offense does not qualify as a sexually violent offense, Keith argued that the petition must be dismissed. ¶101 The court of appeals disagreed. language of sub. (2)(ag) was ambiguous 14 It concluded that the because it failed to No. 2010AP594 & 2010AP1155.awb address how consecutive sentences should be treated. Id. at 70. Ultimately, it concluded that the petition was timely because Keith's three consecutive sentences should be treated as one continuous sentence for purposes of determining whether petition had been timely filed under sub. (2)(ag). "[T]here is absolutely no indication that the It stated: the legislature intended to predicate ch. 980 proceedings on whether a sexually violent offense was the last sentence ordered in a string of consecutive sentences." ¶102 The Id. at 72. legislative history indicates that the legislature's intent in removing sub. (2)(ag) was to remove the ambiguity identified in Keith not to permit a petition to be filed "well before the sexually violent person [is] released from DOC incarceration." At the same time the legislature removed sub. (2)(ag), it amended the notice statute, Wis. Stat. § 980.015(2)(a), to codify the precise language from Keith and ensure that notice would be sent within 90 days of discharge or release "from a continuous term of incarceration, any part of which was imposed for a sexually violent offense." See 2005 Wis. Act 434, § 75; Keith, 216 Wis. 2d at 71. ¶103 That purpose of the legislature omitting the removed ambiguity sub. (2)(ag) identified the Keith in for is supported by the documents produced by the Legislative Council and by the testimony considered by Sexually Violent Persons Commitment. the Special Committee on As a memo written by the Legislative Liaison to the Public Defender's Office explains, the amendment to the procedure 15 for commencing a petition No. 2010AP594 & 2010AP1155.awb "codifies State v. Keith and clarifies the law." Krista Ginger, Wisconsin State Public Memorandum by Defender Legislative Liaison, to Members of the Special Committee on Sexually Violent Person Commitments at 2 (Jan. 31, 2005). IV ¶104 As described above, the majority's conclusion is not motivated by constitutional requirements, the language of the statute, or majority's the relevant conclusion legislative appears to be history. Rather, motivated by a the policy concern. ¶105 Instead of emotional appeal. constitutional analysis, it substitutes The majority posits that its interpretation is necessary to prevent sexually dangerous persons from evading commitment and being released into the community. It asserts that "release from custody of an individual still considered dangerous" is incompatible with the goal of protecting the public, majority op., ¶31, and that its conclusion is necessary to "allow[] the State to retain control of sexually violent persons rather than releasing them as a result of their own bad behavior," id., ¶49. ¶106 No one wants sexually violent people who are dangerous to be released sexually violent into the people their bad behavior. to streets. avoid Likewise, being held no one wants accountable for Yet, no one should allow this court to ignore its obligation to examine and apply the constitutional requirements. The majority's failure to do so here compromises the constitutionality of Chapter 980. 16 No. 2010AP594 & 2010AP1155.awb ¶107 Accordingly, I respectfully dissent. ¶108 I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON joins this dissent. 17 No. 1 2010AP594 & 2010AP1155.awb