Civilly committed individual has burden to prove fitness for release

By Joe Forward, Legal Writer, State Bar of Wisconsin

Aug. 18, 2011 – Persons deemed sexually violent have the burden to prove otherwise when seeking supervised release, the Wisconsin Supreme Court recently clarified.

Edwin was convicted of second degree sexual assault in 1993 and committed to a treatment center as a sexually violent person in 1997 under Wis. Stat. ch. 980 (sexually violent person commitments). He was continually denied supervised release the next 10 years.

In 2008, West asked the circuit court to interpret Wis. Stat. section 980.08(4)(cg) as placing the burden of proof on the state to show release is not warranted.

Courts can authorize supervised release under section 980.08(4)(cg) if the court finds that a person has made significant progress in treatment, it is substantially probable the individual won’t engage in sexually violent behavior if released, continued treatment is available, and the person will comply with treatment requirements.

An amendment to the statute in 2006 removed language that placed the burden on the state. The revised version did not specify which party, the state or the petitioner, carries the burden, but the circuit and appeals courts concluded the statute places the burden on the petitioner.

Burden of proof

In State v. West, 2011 WI 83 (July 26, 2011), a Wisconsin Supreme Court majority (5-2) affirmed the appeals court, concluding that a person committed as a sexually violent person has the burden to prove his or her fitness for release.

“We hold that the plain language of amended § 980.08(4)(c)(g) is unambiguous and clearly assigns the burden of proving probative evidence to the committed individual,” wrote Justice David Prosser for the majority.

The majority also concluded that the civilly committed individual has the burden to persuade, by clear and convincing evidence, that he or she is fit to be released under supervision.

“[I]n the absence of a statutory directive to the contrary, it is appropriate to require the committed individual to bear the burden of proof by clear and convincing evidence that he or she is entitled to supervised release,” Justice Prosser wrote.

Contrary to West’s argument, the majority concluded that placing the burden of clear and convincing evidence on the civilly-committed individual does not violate the guarantees of substantive or procedural due process.

“While West might have a liberty interest in freedom from physical restraint, this right is not absolute, and was constitutionally limited when he was determined to be a sexually violent person,” Justice Prosser wrote.

The majority also explained that placing the burden on West does not violate the equal protection clause when compared to persons committed in other situations, like under ch. 51 (state alcohol, drug abuse, developmental disabilities, and mental health act).

“Because procedures between similarly situated classes need not be identical, and the difference in assigning the burden of proof is directly related to the difference in relative danger to public safety, we hold that there is no equal protection violation,” wrote Justice Prosser

In dissent, Justice Bradley argued that absent express language from the legislature, circuit courts should have the discretion to assign the burden “based on the statutory criteria and all the evidence available.” She also argued the majority’s interpretation of section 980.08(4)(cg) “pushes chapter 980 one step closer to a punitive scheme,” which is not the goal of ch. 980.

Attorneys

Assistant Attorney General Warran Weinstein represented the state. Assistant State Public Defender Ellen Henak represented Edwin West.