Decision in 'State v. Arends' 2010 WI 46

SVP, Ch. 980 – Discharge Procedure, by the Wisconsin State Public Defender, at On Point


Wisconsin Supreme Court decision today in this case (2008AP52) affirming the Court of Appeals with modifications. See Argument.

Opinion by Justice Gableman, joined by Chief Justice Abrahamson, and Justices Bradley, Crooks, and Roggensack.

¶51 We conclude that § 980.09 requires the circuit court to follow a two-step process in determining whether to hold a discharge hearing.

¶52 Under § 980.09(1), the circuit court engages in a paper review of the petition only, including its attachments, to determine whether it alleges facts from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. This review is a limited one aimed at assessing the sufficiency of the allegations in the petition. If the petition does allege sufficient facts, the circuit court proceeds to a review under § 980.09(2).
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¶54 In this case, the circuit court reviewed the three most current reports in the record, and therefore its denial of the petition appears to have been via review under § 980.09(2). The court did not, however, review all prior reports in the record as required by the statute. Additionally, the court denied Arends' petition on the grounds that it found no "probable cause" to conduct a discharge hearing, but offered no explanation of its rationale. Probable cause is not the standard required by the statute. We remand to the circuit court to make a determination under § 980.09(2) of whether to grant a discharge hearing on Arends' petition. Accordingly, we affirm the court of appeals' reversal of the circuit court, but modify its instructions.

Dissent by Justice Prosser.

¶66 ... a facially sufficient petition requires a discharge hearing under Wis. Stat. § 980.09(3) unless the state shows that the "facts" alleged in the petition cannot be substantiated or the allegations in the petition are deficient as a matter of law.

¶67 In this case, Arends' petition was facially sufficient because of the favorable report of Dr. Sheila Fields attached to the petition. I see nothing in the record that negates or invalidates the facial sufficiency of the "fact" of Dr. Shields' favorable evaluation. Thus, I perceive no legal basis for remanding the case for reconsideration of the sufficiency of the petition under Wis. Stat. § 980.09(2). Arends is entitled to a discharge hearing.[footnote omitted]

Justice Ziegler did not participate.


Supreme court clarifies procedures and standards for reviewing civil commitment discharge, by Joe Forward, State Bar of Wisconsin