Persons Committed for Sexual Violence Must Have New Evidence for Discharge Hearing

By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 28, 2012 – A state appeals court has clarified the standard required before a person committed as sexually violent can receive a new discharge hearing in circuit court.

Under Wis. Stat. section 980.09(2), courts must review discharge petitions and “may” hold a hearing to determine if the petition contains facts from which the court or jury could conclude the person no longer meets the criteria for commitment as a sexually violent person.

Shawn Schulpius was committed to institutional care as a sexually violent person in 1996. After a hearing before a jury, a court denied his petition for discharge in January 2010. Eight months later, in August 2010, the circuit court denied his second discharge petition without a hearing.

On appeal, Schulpius argued that he was entitled to a second hearing before the court could deny his discharge petition. A three-judge appeals panel in State v. Schulpius, 2011AP2565 (Nov. 27, 2012), upheld the circuit court order and clarified requirements under the statute.

“[W]hile the circuit court must consider all of the evidence in the record when determining whether a discharge hearing is warranted, the petitioner must also produce some new evidence, not previously considered by a trier of fact, which demonstrates that he does not meet the criteria for commitment,” wrote Judge Kitty Brennan.

In 2010, a jury heard annual exam reports for the previous four years and testimony from expert witnesses for the state and defense. The jury voted against discharge. After the Department of Family Services issued a 2010 exam report, Schulpius petitioned again.

Schulpius said that in his 2010 report, the doctor conducting the exam changed his opinion about whether Schulpius met the criteria to be committed as a sexually violent person. However, the state argued that this change was not enough to warrant a new hearing.

Under State v. Arends, courts must review ch. 980 discharge petitions to determine whether the facts alleged could support a conclusion that a person’s condition has changed since initial commitment. The state argued that in Schulpius’s case, this meant a change, by way of new evidence, since the date of his last discharge hearing. The appeals court agreed.

The panel ruled that petitioners can’t rely on facts “already considered and rejected by a previous trier of fact to meet his burden for a new discharge hearing,” and the changed opinion of the examining doctor from January 2010 to July 2010 was not new evidence.

“Whether a changed expert opinion is enough for a discharge hearing depends on the basis for the change, that is, the new ‘opinion must depend upon something more than facts, professional knowledge, or research that was considered by an expert testifying in a prior proceeding,’” wrote Judge Brennan, citing State v. Combs, 295 Wis. 2d 457, 720 N.W. 2d 684.