Chapter 980

980.02 Annotation To the extent that s. 938.35 (1) prohibits the admission of delinquency adjudications in ch. 980 proceedings, it is repealed by implication. State v. Matthew A.B. 231 Wis. 2d 688, 605 N.W.2d 598 (Ct. App. 1999), 98-0229.

980.02 Annotation In a trial on a petition filed under sub. (2), the state has the burden to prove beyond a reasonable doubt that the petition was filed within 90 days of the subject’s release or discharge based on a sexually violent offense. State v. Thiel, 2000 WI 67, 235 Wis. 2d 823, 612 N.W.2d 94, 99-0316. See also State v. Thiel, 2001 WI App 52, 241 Wis. 2d 439, 625 N.W.2d 321, 99-0316.

980.02 Annotation While a commitment under ch. 980 is civil, a court does not lose subject matter jurisdiction because a petition is filed under a criminal case number. State v. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163, 98-1542.

980.02 Annotation Chapter 980 provides its own procedures for commencing actions, and, as such, chs. 801 and 802 are inapplicable to the commencement of ch. 980 actions. State v. Wolfe, 2001 WI App 136, 246 Wis. 2d 233, 631 N.W.2d 240, 99-2145.

980.02 Annotation When a ch. 980 petition was filed within 90 days of release from a sentence for an offense that was not a sexually violent offense, which was being served concurrently with a shorter sentence imposed for a sexually violent offense, the petition was timely. State v. Treadway, 2002 WI App 195, 257 Wis. 2d. 467, 651 N.W.2d 334, 00-2957.

980.02 Annotation The state was not precluded from seeking a ch. 980 commitment following the defendant’s parole revocation, even though the state had failed to prove that the defendant was a sexually violent person in need of commitment in a previous ch. 980 trial that took place prior to the defendant’s parole. State v. Parrish, 2002 WI App 263, 258 Wis. 2d 521, 654 N.W.2d 273, 00-2524.

980.02 Annotation The circuit court had jurisdiction to conduct ch. 980 proceedings involving an enrolled tribal member who committed the underlying sexual offense on an Indian reservation. State v. Burgess, 2003 WI 71, 262 Wis. 2d 354, 665 N.W.2d 124, 00-3074. See also Burgess v. Watters, 467 F.3d 676 (2007).

980.02 Annotation Under sub. (1), a request from the agency with jurisdiction and a subsequent decision by the department of justice not to file are prerequisites to a district attorney’s authority to file a ch. 980 petition. State v. Byers, 2003 WI 86, 263 Wis. 2d 113, 665 N.W.2d 729.

980.02 Annotation The threshold decision of whether a petition should be filed remains in the hands of the agency with jurisdiction and outside of the political process. A district attorney may contact the agency to seek clarification of the ch. 980 evaluator’s determination, to correct factual mistakes, to provide new or additional information, or to ask for a second opinion with a different evaluator. However, the agency can independently exercise its judgment and choose to ignore the district attorney’s efforts or to decline the district attorney’s request for a second evaluation if the agency determines that these efforts and requests are improperly politically motivated. State v. Bell, 2006 WI App 30, 289 Wis. 2d 275, 710 N.W.2d 525, 05-0890.

980.02 Annotation That the ch. 980 definition of “dangerousness” lacks a temporal context limited to imminent danger. does not render the statute unconstitutional. State v. Olson, 2006 WI App 32, 290 Wis. 2d 202, 712 N.W.2d 61, 04-0412

980.02 Annotation Chapter 980 does not require 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. Section 980.06 requires the circuit court to order the person to be committed to the custody of DHS for control, care, and treatment, but ch. 980 does not specify when that commitment must commence. While this section sets forth the requirements for a proper commitment order, neither this section nor any other section of ch. 980 contains language stating when the individual requirements of that order must be satisfied. State v. Gilbert, 2012 WI 72, 342 Wis. 2d 82, 816 N.W.2d 215, 10-0594.

980.02 Annotation If a ch. 980 petition satisfies the statutory requirements in this section at the time it is filed, it will not be invalidated if the conviction recited in the petition is later reversed. Subsequent facts that impact the status of the allegations in the petition may be relevant at trial under s. 980.05, but they will not invalidate a petition that met the requirements of this section at the time of filing. State v. Spaeth, 2014 WI 71, 355 Wis. 2d 761, 850 N.W.2d 93, 12-2170.

980.02 Annotation Applying the common and accepted legal meanings of “released” and “discharged” as those terms are used in sub. (1m), a ch. 980 petition must be filed either before the person is freed from confinement in prison or before the person’s entire sentence is completed. Even assuming that the department of corrections was required to release the defendant on his presumptive mandatory release (PMR) date, a ch. 980 filed petition after the PMR date but while the defendant remained incarcerated was timely filed based on the language of sub. (1m), which permits filing a ch. 980 petition before a person is “discharged.” State v. Stanley, 2014 WI App 89, 356 Wis. 2d 268, 853 N.W.2d 600, 13-2477.

980.03 980.03 Rights of persons subject to petition.

980.03(1) (1) The circuit court in which a petition under s. 980.02 is filed shall conduct all hearings under this chapter. The court shall give the person who is the subject of the petition reasonable notice of the time and place of each such hearing. The court may designate additional persons to receive these notices.

980.03(2) (2) Except as provided in ss. 980.038 (2) and 980.09 and without limitation by enumeration, at any hearing under this chapter, the person who is the subject of the petition has the right to:

980.03(2)(a) (a) Counsel. In any situation under this chapter in which the person has a right to be represented by counsel, the court shall refer the person as soon as practicable to the state public defender, who shall appoint counsel for the person under s. 977.08 without a determination of indigency.

980.03(2)(b) (b) Remain silent.

980.03(2)(c) (c) Present and cross-examine witnesses.

980.03(2)(d) (d) Have the hearing recorded by a court reporter.

980.03(3) (3) The person who is the subject of the petition, the person’s attorney, or the petitioner may request that a trial under s. 980.05 be to a jury. A request for a jury trial shall be made as provided under s. 980.05 (2). Notwithstanding s. 980.05 (2), if the person, the person’s attorney, or the petitioner does not request a jury trial, the court may on its own motion require that the trial be to a jury. The jury shall be selected as provided under s. 980.05 (2m). A verdict of a jury under this chapter is not valid unless it is unanimous.

980.03 History History: 1993 a. 479; 1997 a. 252; 1999 a. 9; 2005 a. 434; 2017 a. 184.

980.03 Annotation There are circumstances when comment on the defendant’s silence is permitted. If a defendant refuses to be interviewed by the state’s psychologist and the defense attorney challenges the psychologist’s findings based on the lack of an interview, it is appropriate for the psychologist to testify about the refusal. State v. Adams, 223 Wis. 2d 60, 588 N.W.2d 336 (Ct. App. 1998), 96-3136.

980.03 Annotation If all jurors agree that the defendant suffers from a mental disease, unanimity requirements are met even if the jurors disagree on the disease that predisposes the defendant to reoffend. State v. Pletz, 2000 WI App 221, 239 Wis. 2d 49, 619 N.W.2d 97, 98-2455.

980.03 Annotation Chapter 980 provides its own procedures for commencing actions, and, as such, chs. 801 and 802 are inapplicable to the commencement of ch. 980 actions. State v. Wolfe, 2001 WI App 136, 246 Wis. 2d 233, 631 N.W.2d 240, 99-2145.

980.03 Annotation The circuit court must appoint an examiner for the court under sub. (3) regardless of whether the court also appointed an examiner for the petitioner under sub. (4), 2001 stats. An indigent party petitioning for supervised release is not entitled under sub. (4), 2001 stats., to an examiner of his or her choice, but is entitled to a “qualified and available” court-appointed examiner. Requirements for a qualified examiner are discussed. State v. Thiel, 2004 WI App 225, 277 Wis. 2d 698, 691 N.W.2d 388, 03-2649.

980.0305 980.0305 Reimbursement for counsel provided by the state.

980.0305(1) (1) Inquiry. At or after the conclusion of a proceeding under this chapter in which the state public defender has provided counsel for a person, the court may inquire as to the person’s ability to reimburse the state for the costs of representation. If the court determines that the person is able to make reimbursement for all or part of the costs of representation, the court may order the person to reimburse the state an amount not to exceed the maximum amount established by the public defender board under s. 977.075 (4). Upon the court’s request, the state public defender shall conduct a determination of indigency under s. 977.07 and report the results of the determination to the court.

980.0305(2) (2) Payment. Reimbursement ordered under this section shall be made to the clerk of courts of the county where the proceedings took place. The clerk of courts shall transmit payments under this section to the county treasurer, who shall deposit 25 percent of the payment amount in the county treasury and transmit the remainder to the secretary of administration. Payments transmitted to the secretary of administration shall be deposited in the general fund and credited to the appropriation account under s. 20.550 (1) (L).

980.0305(3) (3) Report. By January 31st of each year, the clerk of courts for each county shall report to the state public defender the total amount of reimbursements ordered under sub. (1) in the previous calendar year and the total amount of reimbursements paid to the clerk under sub. (2) in the previous year.

980.0305 History History: 2017 a. 184.

980.031 980.031 Examinations.

980.031(1) (1) If a person who is the subject of a petition filed under s. 980.02 denies the facts alleged in the petition, the court may appoint at least one qualified licensed physician, licensed psychologist, or other mental health professional to conduct an examination of the person’s mental condition and testify at trial.

980.031(2) (2) The state may retain a licensed physician, licensed psychologist, or other mental health professional to examine the mental condition of a person who is the subject of a petition under s. 980.02 or who has been committed under s. 980.06 and to testify at trial or at any other proceeding under this chapter at which testimony is authorized.

980.031(3) (3) Whenever a person who is the subject of a petition filed under s. 980.02 or who has been committed under s. 980.06 is required to submit to an examination of his or her mental condition under this chapter, he or she may retain a licensed physician, licensed psychologist, or other mental health professional to perform an examination. If the person is indigent, the court shall, upon the person’s request, appoint a qualified and available licensed physician, licensed psychologist, or other mental health professional to perform an examination of the person’s mental condition and participate on the person’s behalf in a trial or other proceeding under this chapter at which testimony is authorized. Upon the order of the circuit court, the county shall pay, as part of the costs of the action, the costs of a licensed physician, licensed psychologist, or other mental health professional appointed by a court under this subsection to perform an examination and participate in the trial or other proceeding on behalf of an indigent person.

980.031(4) (4) If a party retains or the court appoints a licensed physician, licensed psychologist, or other mental health professional to conduct an examination under this chapter of the person’s mental condition, the examiner shall have reasonable access to the person for the purpose of the examination, as well as to the person’s past and present treatment records, as defined in s. 51.30 (1) (b), and patient health care records as provided under s. 146.82 (2) (cm), past and present juvenile records, as provided under ss. 48.396 (6), 48.78 (2) (e), 938.396 (10), and 938.78 (2) (e), and the person’s past and present correctional records, including presentence investigation reports under s. 972.15 (6).

980.031(5) (5) A licensed physician, licensed psychologist, or other mental health professional who is expected to be called as a witness by one of the parties or by the court may not be subject to any order by the court for the sequestration of witnesses at any proceeding under this chapter. No licensed physician, licensed psychologist, or other mental health professional who is expected to be called as a witness by one of the parties or by the court may testify at any proceeding under this chapter unless a written report of his or her examination has been submitted to the court and to both parties at least 10 days before the proceeding.

980.031 History History: 2005 a. 434 ss. 88, 90, 91.

980.034 980.034 Change of place of trial or jury from another county.

980.034(1) (1) A person who is the subject of a petition filed under s. 980.02 or who has been committed under this chapter may move to change the place of a jury trial under s. 980.05 on the ground that an impartial trial cannot be had in the county in which the trial is set to be held. The motion shall be made within 20 days after the completion or waiver of the probable cause hearing under s. 980.04 (2), whichever is applicable, except that it may be made after that time for cause.

980.034(2) (2) The motion shall be in writing and supported by affidavit which shall state evidentiary facts showing the nature of the prejudice alleged. The petitioner may file counter affidavits.

980.034(3) (3) If the court determines that there exists in the county where the action is pending such prejudice that a fair trial cannot be had, it shall, except as provided in sub. (4), order that the trial be held in any county where an impartial trial can be had. Only one change may be granted under this subsection. The judge who orders the change in the place of trial shall preside at the trial. Preliminary matters before trial may be conducted in either county at the discretion of the court.

980.034(4) (4) 

980.034(4)(a) (a) Instead of changing the place of trial under sub. (3), the court may require the selection of a jury under par. (b) if all of the following apply:

980.034(4)(a)1. 1. The court will sequester the jurors during the trial.

980.034(4)(a)2. 2. There are grounds for changing the place of trial under sub. (1).

980.034(4)(a)3. 3. The estimated cost to the county of using the procedure under this subsection is less than the estimated cost to the county of holding the trial in another county.

980.034(4)(b) (b) A court that proceeds under this subsection shall follow the procedure under sub. (3) until the jury is chosen in the 2nd county. At that time, the proceedings shall return to the original county using the jurors selected in the 2nd county. The original county shall reimburse the 2nd county for all applicable costs under s. 814.22.

980.034 History History: 2005 a. 434.

980.036 980.036 Discovery and inspection.

980.036(1) (1) Definitions. In this section:

980.036(1)(a) (a) “Person subject to this chapter” means a person who is subject to a petition filed under s. 980.02 or a person who has been committed under s. 980.06.

980.036(1)(b) (b) “Prosecuting attorney” means an attorney representing the state in a proceeding under this chapter.

980.036(2) (2) What a prosecuting attorney must disclose to a person subject to this chapter. Upon demand, a prosecuting attorney shall disclose to a person subject to this chapter or his or her attorney, and permit the person subject to this chapter or his or her attorney to inspect and copy or photograph, all of the following materials and information, if the material or information is within the possession, custody, or control of the state:

980.036(2)(a) (a) Any written or recorded statement made by the person subject to this chapter concerning the allegations in the petition filed under s. 980.02 or concerning other matters at issue in the trial or proceeding and the names of witnesses to the written statements of the person subject to this chapter.

980.036(2)(b) (b) A written summary of all oral statements of the person subject to this chapter that the prosecuting attorney plans to use at the trial or proceeding and the names of witnesses to the oral statements of the person subject to this chapter.

980.036(2)(c) (c) Evidence obtained in the manner described under s. 968.31 (2) (b), if the prosecuting attorney intends to use the evidence at the trial or proceeding.

980.036(2)(d) (d) A copy of the criminal record of the person subject to this chapter.

980.036(2)(e) (e) A list of all witnesses whom the prosecuting attorney intends to call at the trial or proceeding, together with their addresses. This paragraph does not apply to rebuttal witnesses or witnesses called for impeachment only.

980.036(2)(f) (f) Any relevant written or recorded statements of a witness listed under par. (e), including all of the following:

980.036(2)(f)1. 1. Any videotaped oral statement of a child under s. 908.08.

980.036(2)(f)2. 2. Any reports prepared in accordance with s. 980.031 (5).

980.036(2)(g) (g) The criminal record of a witness listed under par. (e) that is known to the prosecuting attorney.

980.036(2)(h) (h) The results of any physical or mental examination or any scientific or psychological test, instrument, experiment, or comparison that the prosecuting attorney intends to offer in evidence at the trial or proceeding, and any raw data that were collected, used, or considered in any manner as part of the examination, test, instrument, experiment, or comparison.

980.036(2)(i) (i) Any physical or documentary evidence that the prosecuting attorney intends to offer in evidence at the trial or proceeding.

980.036(2)(j) (j) Any exculpatory evidence.

980.036(3) (3) What a person subject to this chapter must disclose to the prosecuting attorney. Upon demand, a person who is subject to this chapter or his or her attorney shall disclose to the prosecuting attorney, and permit the prosecuting attorney to inspect and copy or photograph, all of the following materials and information, if the material or information is within the possession, custody, or control of the person who is subject to this chapter or his or her attorney:

980.036(3)(a) (a) A list of all witnesses, other than the person who is subject to this chapter, whom the person who is subject to this chapter intends to call at the trial or proceeding, together with their addresses. This paragraph does not apply to rebuttal witnesses or witnesses called for impeachment only.

980.036(3)(b) (b) Any relevant written or recorded statements of a witness listed under par. (a), including any reports prepared in accordance with s. 980.031 (5).

980.036(3)(c) (c) The criminal record of a witness listed under par. (a) if the criminal record is known to the attorney for the person who is subject to this chapter.

980.036(3)(d) (d) The results of any physical or mental examination or any scientific or psychological test, instrument, experiment, or comparison that the person who is subject to this chapter intends to offer in evidence at the trial or proceeding, and any raw data that were collected, used, or considered in any manner as part of the examination, test, instrument, experiment, or comparison.

980.036(3)(e) (e) Any physical or documentary evidence that the person who is subject to this chapter intends to offer in evidence at the trial or proceeding.

980.036(3m) (3m) When disclosure must be made. A party required to make a disclosure under this section shall do so within a reasonable time after the probable cause hearing and within a reasonable time before a trial under s. 980.05, if the other party’s demand is made in connection with a trial. If the demand is made in connection with a proceeding under s. 980.08 or 980.09 (3), the party shall make the disclosure within a reasonable time before the start of that proceeding.

980.036(4) (4) Comment or instruction on failure to call witness. No comment or instruction regarding the failure to call a witness at the trial may be made or given if the sole basis for the comment or instruction is the fact that the name of the witness appears upon a list furnished under this section.

980.036(5) (5) Testing or analysis of evidence. On motion of a party, the court may order the production of any item of evidence or raw data that is intended to be introduced at the trial for testing or analysis under such terms and conditions as the court prescribes.

980.036(6) (6) Protective order. Upon motion of a party, the court may at any time order that discovery, inspection, or the listing of witnesses required under this section be denied, restricted, or deferred, or make other appropriate orders. If the prosecuting attorney or the attorney for a person subject to this chapter certifies that listing a witness under sub. (2) (e) or (3) (a) may subject the witness or others to physical or economic harm or coercion, the court may order that the deposition of the witness be taken under s. 967.04 (2) to (6). The name of the witness need not be divulged prior to the taking of such deposition. If the witness becomes unavailable or changes his or her testimony, the deposition shall be admissible at trial as substantive evidence.

980.036(7) (7) In camera proceedings. Either party may move for an in camera inspection of any document required to be disclosed under sub. (2) or (3) for the purpose of masking or deleting any material that is not relevant to the case being tried. The court shall mask or delete any irrelevant material.

980.036(8) (8) Continuing duty to disclose. If, after complying with a requirement of this section, and before or during trial, a party discovers additional material or the names of additional witnesses requested that are subject to discovery, inspection, or production under this section, the party shall promptly notify the other party of the existence of the additional material or names.

980.036(9) (9) Sanctions for failure to comply.

980.036(9)(a) (a) The court shall exclude any witness not listed or evidence not presented for inspection, copying, or photographing required by this section, unless good cause is shown for failure to comply. The court may in appropriate cases grant the opposing party a recess or a continuance.

980.036(9)(b) (b) In addition to or in place of any sanction specified in par. (a), a court may, subject to sub. (4), advise the jury of any failure or refusal to disclose material or information required to be disclosed under sub. (2) or (3), or of any untimely disclosure of material or information required to be disclosed under sub. (2) or (3).

980.036(10) (10) Payment of copying costs in cases involving indigent respondents. When the state public defender or a private attorney appointed under s. 977.08 requests copies, in any format, of any item that is discoverable under this section, the state public defender shall pay any fee charged for the copies from the appropriation account under s. 20.550 (1) (a). If the person providing copies under this section charges the state public defender a fee for the copies, the fee may not exceed the applicable maximum fee for copies of discoverable materials that is established by rule under s. 977.02 (9).

980.036(11) (11) Exclusive method of discovery. Chapter 804 does not apply to proceedings under this chapter. This section provides the only methods of obtaining discovery and inspection in proceedings under this chapter.

980.036 History History: 2005 a. 434; 2007 a. 20; 2009 a. 28.

980.036 Annotation In the context of this chapter, raw data is data that informs an expert’s analysis regarding the risk a respondent will engage in future acts of sexual violence. But without that analysis, the raw data alone has no probative value. The language of sub. (5) reflects that reality in that it acknowledges the purpose of requesting raw data is to subject it to “testing or analysis.” Thus, in the context of this chapter, the only reasonable reading of “raw data that is intended to be introduced at the trial” is that the analysis of the raw data is intended to be introduced. State v. Jendusa, 2021 WI 24, 396 Wis. 2d 34, 955 N.W.2d 777, 18-2357.

980.038 980.038 Miscellaneous procedural provisions.

980.038(1) (1) Motions challenging jurisdiction or competency of court or timeliness of petition.

980.038(1)(a) (a) A motion challenging the jurisdiction or competency of the court or the timeliness of a petition filed under s. 980.02 shall be filed within 30 days after the court holds the probable cause hearing under s. 980.04 (2). Failure to file a motion within the time specified in this paragraph waives the right to challenge the jurisdiction or competency of the court or the timeliness of a petition filed under s. 980.02.

980.038(1)(b) (b) Notwithstanding s. 801.11, a court may exercise personal jurisdiction over a person who is the subject of a petition filed under s. 980.02 even though the person is not served as provided under s. 801.11 (1) or (2) with a verified petition and summons or with an order for detention under s. 980.04 (1) and the person has not had a probable cause hearing under s. 980.04 (2).