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  • WisBar News
    March 09, 2017

    Violent Sex Offender Doesn't Qualify for Commitment Discharge Hearing, Supreme Court Says

    Joe Forward

    Immigration Hold

    March 9, 2017 – A man committed to an institution in 2005 as a sexually violent person cannot receive a hearing to determine if he should be discharged, the Wisconsin Supreme Court has ruled, because he did not meet the standard required to obtain a new hearing.

    In In re Commitment of Talley, 2017 WI 21 (March 9, 2017), all the justices agreed that Thornton Talley did not qualify to obtain a discharge hearing, through three separate writings. The decision is limited to the extent that it interprets an old version of the statute at issue.

    Discharge Petitions Fail

    Talley was committed to the Department of Health and Family Services in 2005, when he was about 26 years old, after serving three prison sentences for sexually violent crimes. He previously filed discharge petitions, but those were denied, largely because he had been exposing himself to female staff while in institutional confinement.

    A psychologist had determined that Talley was likely to commit sexually violent crimes if discharged. However, Talley’s expert had determined that exhibitionistic acts alone, without high psychopathic behavior, did not evidence the likelihood for sexual violence.

    However, Talley lost his case at trial in 2008. The circuit court found, among other findings, his sexual exhibitionism replaced sexual violence because of confinement, and all the evidence together showed Talley was still a sexually violent person.

    Talley’s 2010 petition was denied, and he petitioned again in 2011. His expert witness concluded that Talley was likely to commit a sex crime, not a sexually violent crime, and found insufficient evidence to conclude that Talley met the criteria to be classified as a sexually violent person. The jury did not agree and his petition was denied.

    Petition Denied Without a Hearing

    Despite a new report, which indicated that Talley had been socializing more with peers, was communicating more with his family, and had joined a fitness group, his 2012 petition was denied without a hearing. The circuit court concluded that nothing had significantly changed since the court denied his 2011 petition, which was heard by a jury.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    Under Wis. Stat. § 980.09(1) (2011-12), a hearing is required if the petition “alleges facts from which the court or jury may conclude the person's condition has changed since the date of his or her initial commitment order.” This statute changed in 2013.

    An appeals court affirmed the circuit court, concluding that the 2012 report on Talley was not significantly different from the 2011 report that resulted in discharge denial. That is, the court determined that facts did not indicate his condition had changed.

    Supreme Court Decides

    Recently, the Wisconsin Supreme Court affirmed. A lead opinion held that “Talley’s petition for discharge failed to satisfy the statutory threshold for a discharge hearing” despite the new facts that the 2012 report included, relating to his improved social skills.

    “We conclude these three facts in the 2012 reexamination report do not satisfy the statutory standard because no reasonable jury could find that they may mean Talley is no longer a sexually violent person,” wrote Justice Rebecca Bradley. “Talley’s 2012 petition is based on the same information that a jury previously rejected. …”

    Talley had argued that new facts require a new hearing, and the judge improperly denied the discharge petition with no hearing. He objected because the appeals court had determined that no new “significant” facts were in the 2012 report, but the word “significant” is not in the statute that sets the standard for new discharge hearings.

    “The court of appeals’ use of the term ‘significant,’ however, does not alter the outcome of this case because our application of the language of the statutory standard results in the same conclusion reached by the court of appeals,” Justice Bradley wrote.


    Justice Shirley Abrahamson, joined by Justice Ann Walsh Bradley, concurred but did not join the lead opinion, concluding it “strays too far from the text of Wis. Stat. § 980.09(2) and fails to provide a practical, sound interpretation and application of the statutory language. …”

    Section 980.09(2) (2011-12) says the court “shall review the petition within 30 days and may hold a hearing to determine if it contains facts from which the court or jury may conclude that the person does not meet the criteria for commitment as a sexually violent person.” This provision was also changed in 2013.

    “True, the psychologist’s unchanged conclusion may be probative of whether the petitioner still meets the commitment criteria,” Justice Abrahamson wrote.

    “But, to the extent that the majority opinion can be interpreted as requiring a change in the psychologist’s conclusions in order for a court to rule in favor of a discharge hearing, the opinion goes too far.”

    Justice Annette Ziegler, joined by Justice Michael Gableman, also wrote a concurring opinion to clarify Justice R. Bradley’s lead opinion and to “join the opinion only if it is interpreted consistent with this concurrence.”

    Justice Ziegler wrote to clarify that a change in an evaluating psychologist’s “ultimate conclusion or overall risk assessment” is not required before a discharge hearing can be granted under the old version of section 980.09.

    “If the court’s opinion were read to require what it might seem to suggest, committed persons like Talley would be required to show more than the statute requires,” wrote Ziegler, noting that facts could change even if the expert’s conclusions do not.

    Justice Ziegler also noted that the lead opinion “ought not be read to weigh evidence unfavorable to Talley as part of its inquiry into whether Talley is entitled to a discharge hearing under Wis. Stat. § 980.09(2), contrary to case law.”

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