2011 WI 83
Supreme Court of Wisconsin
In re the commitment of Edwin C. West:
Edwin Clarence West,
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 329
(Ct. App. 2010 – Unpublished)
July 26, 2011
Submitted on Briefs:
May 3, 2011
Source of Appeal:
M. Joseph Donald
BRADLEY, J. dissents (Opinion filed).
ABRAHAMSON, C. J. joins dissent.
For the respondent-appellant there were briefs and oral argument by Ellen Henak, assistant state public defender.
For the petitioner-respondent the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
2011 WI 83
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
STATE OF WISCONSIN :
IN SUPREME COURT
In re the commitment of Edwin C. West:
Edwin Clarence West,
JUL 26, 2011
A. John Voelker
Acting Clerk of Supreme Court
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DAVID T. PROSSER, J. This is a review of an unpublished decision of the court of appeals affirming an order of the Milwaukee County Circuit Court denying Edwin Clarence West's (West) petition for supervised release.
¶2 In 1997 a jury found that West was a sexually violent person under Wis. Stat. ch. 980, and he was thereafter committed under that chapter. Under § 980.08(1), persons committed under ch. 980 may petition for supervised release into the community after at least 12 months have passed since the person was committed or his last petition for supervised release was rejected. The Wisconsin Legislature amended this statute in 2005, removing language that specifically allocated the burden of proof to the State in a hearing on the petition.
¶3 In 2008 West filed a motion with the circuit court to interpret whether amended § 980.08(4)(cg) continues to allocate the burden to the State. One month after filing this petition, he also filed a petition seeking supervised release. The circuit court denied his motion, finding that the amendments to § 980.08(4)(cg) unambiguously placed the burden of proof with the committed individual. The circuit court also denied his petition for supervised release.
¶4 West appealed, and argued to the court of appeals that the burden of proof does not rest with the committed person, and if it did, such allocation would violate the Wisconsin and United States Constitutions. The court of appeals disagreed, and in a per curiam opinion affirmed the circuit court.
¶5 West asks us to interpret the supervised release provision, Wis. Stat.
to place the burden of proof with the State.
He argues that, although the statute is ambiguous, the language,
history, and scope of the statute support his position. He also asserts that the burden must remain
with the State to prevent § 980.08(4)(cg)
from violating the due process and equal protection clauses of the
¶6 We conclude that amended Wis. Stat. § 980.08(4)(cg) unambiguously places the burden of
proof with the committed individual, and that the appropriate burden of
persuasion is clear and convincing evidence.
We further hold that this allocation does not violate the guarantees of
due process and equal protection in the
I. BACKGROUND AND PROCEDURAL HISTORY
¶7 In 1993 West was convicted of second degree sexual assault in violation of § 940.225(2)(a). Prior to West's release, the State petitioned to have him committed as a sexually violent person, pursuant to Wisconsin Statutes ch. 980. West was committed under ch. 980 in July 1997.
¶8 In preparation for the commitment hearing to establish probable cause to commit West, the State offered various medical examinations, including a report by Dr. Kenneth Diamond (Dr. Diamond), a senior staff psychologist for the Milwaukee Clinical Services Unit of the Department of Corrections. Dr. Diamond's evaluation of West compiled the results of various records and other, in-person, clinical evaluations. It was Dr. Diamond's opinion that West suffered from cocaine and alcohol abuse (both in remission) and from antisocial personality disorder, a mental disorder warranting commitment. Based on West's history of sexual assaults and his performance on various behavioral tests, Diamond stated:
Psychological testing indicates that he is an aggressive individual with possible sexual problems. On the PCL-R [Psychopathy Checklist Revised], his total score is diagnostic of psychopathy. Additionally, he scores on several actuarial risk factors which are strongly indicative of violent recidivism and these include: a high degree of psychopathy, pre-treatment deviant sexual arousal, non-sexual criminality, denial or minimization of previous offense, and use of force and/or threat of force during crime. It is my opinion to a reasonable degree of psychological certainty that the antisocial personality disorder, cocaine abuse and alcohol abuse exhibited by Edwin C. West . . . are congenital or acquired conditions . . . that predispose Edwin C. West to engage in acts of sexual violence. It is also my opinion that these mental disorders exhibited by Edwin C. West create a substantial probability that he will engage in acts of sexual violence.
¶9 Dr. Diamond's summary of West's history of sexual assaults included:
(a) In 1982, at age 17, sexual contact with his then-15-year-old girlfriend, whom he impregnated;
(b) In 1988, at age 23, a conviction for choking and raping a female acquaintance, for which West received probation;
(c) In 1991, a probation violation for picking up a 16-year-old girl and threatening to rape her if she refused to kiss him, and then attempting to have intercourse with her;
(d) In 1991, an accusation that West forced a woman into her bedroom where he pushed her down and ejaculated on her; and,
(e) Also in 1991, an accusation that West terrorized and stalked a woman on the highway, although the woman did not press charges.
¶10 Finally, reports also indicated that in at least four states, West had adult criminal convictions including disorderly conduct and sexual assault, burglary and robbery, and auto theft.
¶11 Based on these factors, as well as his personal observations, Dr. Diamond
recommended West be committed under ch. 980. Dr. Diamond testified at trial, and his report
was admitted into evidence. In May 1997
a jury found West to be a sexually violent person under ch. 980. He was
initially admitted to the
¶12 Between January 1998 and April 2009, during re-examination and review of West's classification as a sexually violent person, Department of Health and Family Services (DHFS) evaluators consistently found that West continued to be a sexually violent person, and consistently recommended against either supervised release or discharge. Only one re-examination, conducted by Hollida Wakefield in May 2008, indicated that West had made progress. While the report acknowledged that West still required treatment, it took the position that treatment could occur in the community.
¶13 In West's most recent examination in April 2009, however, the examiner diagnosed West with four mental disorders: paraphilia, alcohol dependence, polysubstance dependence, and antisocial personality disorder. The examiner found West to continue to be a sexually violent person and recommended against supervised release or discharge.
¶14 During his commitment, West requested supervised release in October 2000, July 2001, April 2002, and April 2008. He withdrew the 2000 and 2002 petitions without judgment. West also petitioned for discharge in April 2007 but withdrew that petition after his April re-examination results. He also petitioned for discharge in May 2009.
¶15 In March 2008 West filed a motion with the Milwaukee County Circuit
Court, Martin J. Donald, Judge, to interpret Wis. Stat. § 980.08(4)(cg) as allocating the burden of proof to
the State in a hearing on supervised release. Prior to the statute's amendment,
the presumption in supervised release cases was to grant a petition for
supervised release unless the State met the burden of proving that release was
grant the petition unless the state proves by clear and convincing evidence . . . that it is still likely that the person will engage in acts of sexual violence if the person is not continued in institutional care . . . [or] . . . [t]hat the person has not demonstrated significant progress in his or her treatment or that the person has refused treatment.
¶16 However, effective June 2006, the statute was revised to read that
"[t]he court may not authorize supervised release unless . . . the court
finds that all of the following criteria are met."
¶17 On August 1, 2008, the circuit court denied West's motion. In its oral decision, the court determined that § 980.08(4)(cg) unambiguously places the burden of proof on the civilly-committed individual. Additionally, the court held that placement of such burden on the individual offends neither the due process nor equal protection clauses of the Constitution. On the same day, the circuit court held evidentiary hearings on West's petition for supervised release, followed by further hearings on October 10, 2008. The circuit court ultimately denied the petition for supervised release.
¶18 West appealed, and the court of appeals affirmed the circuit court. In its decision, the court relied on State v. Rachel (Rachel II), 2010 WI App 60, 324 Wis. 2d 465, 782 N.W.2d 443, in which the court of appeals rejected arguments identical to those raised by West. State v. West, No. 2009AP1579, unpublished slip op., ¶4 (Wis. Ct. App. Aug. 10, 2010).
¶19 The court of appeals concluded that the statute was unambiguous,
and that the plain language indicates the burden is to be placed on the
petitioning committed individual.
¶20 West petitioned this court for review. We granted the petition on January 11, 2011.
II. STANDARD OF REVIEW
¶21 This appeal requires us to interpret amended Wis. Stat. § 980.08(4)(cg). Statutory interpretation is a question of law
that the court reviews de novo. State
v. Burris, 2004 WI 91, ¶31, 273
¶22 The constitutionality of a statute is a question of law that we
review de novo. State v. Cole,
2003 WI 112, ¶10, 264
¶23 West's case requires us to interpret Wis. Stat. § 980.08(4)(cg) to determine
who bears the burden of proof in a petition for supervised release. This inquiry involves two components: the
burden of production, and the burden of persuasion. We next consider West's claim that to place
the burden of proof upon the committed individual violates the due process and
equal protection clauses of the
A. Chapter 980 Sexually Violent Person Commitments
May 1994 the Wisconsin Legislature enacted ch. 980, the Sexually Violent Person
Chapter 980 permits the circuit court to
commit an individual found to be a "sexually violent person" and to
place the person under the DHFS's custody "for control, care and treatment
until such time as the person is no longer a sexually violent person."
[A] person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect or illness, and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.
¶25 One year after the law's enactment, this court addressed the
constitutionality of ch. 980 in the companion cases of State v. Carpenter,
¶26 In Carpenter, the issue at the heart of the petitioner's
argument was that ch. 980 was a criminal statute, with double jeopardy and ex
post facto implications. Carpenter,
¶27 The primary goals and purposes of ch. 980 are to treat sexually
violent persons and to protect society from the dangers posed by those persons.
¶28 The court concluded that ch. 980's emphasis on treatment was
evident in the chapter's plain language.
¶29 In addition to this explicit language, the court found other evidence
to support ch. 980's goal of treatment, specifically, that the State was
prepared to provide specific treatment to committed individuals and "not
simply warehouse them."
[T]he principal purposes of ch. 980 are protection of the public and the treatment of convicted sex offenders who are at a high risk to reoffend in order to reduce the likelihood that they will engage in such conduct in the future. These constitute significant nonpunitive and remedial purposes. Chapter 980 cannot be characterized as only serving the punishment goals of deterrence or retribution.
¶30 Therefore, because ch. 980, as enacted, was a civil statute and not
principally punitive, the court held that it did not violate the double jeopardy
or ex post facto clauses.
¶31 Similarly, in Post, the court emphasized that treatment for
sexually violent persons is a bona fide goal of ch. 980. Post, 197
¶32 Post also recognized ch. 980's purpose of protecting society
from dangerous, sexually violent persons likely to engage in future acts of
¶33 The court concluded that ch. 980 permissibly balanced individual
liberty and "the public's right to be protected from the dangers posed by
persons who have already demonstrated their propensity and willingness to
commit sexually violent acts."
¶35 In 1997 the United States Supreme Court addressed the
constitutionality of these civil commitment statutes in Kansas v. Hendricks,
521 U.S. 346 (1997). In Hendricks,
the petitioner argued that
¶37 In reasoning similar to this court's analysis in Carpenter
and Post, the Supreme Court found the
¶38 The Hendricks Court went on to note that the act's placement
¶39 Furthermore, the Supreme Court held that the statute was not intended
to address the criminal purposes of retribution or deterrence.
¶40 Second, the statute was not meant to serve as a deterrent because
the very purpose of the act was to treat those with uncontrollable urges.
¶41 In upholding
¶42 Since ch. 980's enactment, the Wisconsin Legislature has amended the civil commitment statute on various occasions in furtherance of its goal of protecting the public. Several of these amendments have dealt with the supervised release provisions under Wis. Stat. § 980.08 and the physical commitment provisions under Wis. Stat. § 980.06. In particular, these amendments have served to limit the ability of a person committed pursuant to ch. 980 to obtain supervised release.
¶43 For example, in 1999, the legislature amended § 980.06 to require that "[a] commitment order under [§ 980.06] shall specify that the person be placed in institutional care." As originally enacted, ch. 980 did not require institutional care upon a determination that an individual was a "sexually violent person." Instead, the individual could be initially committed to supervised release. With this amendment to § 980.06, institutionalized care became a requirement at the outset of commitment.
¶44 Next, in 2003,
the legislature amended the definition of a "sexually violent person"
under § 980.01(7) to require a commitment determination based on a finding that
the individual was "likely" to engage in acts of sexual violence. The amendment defined "likely" as "more
likely than not."
¶45 Most recently, in 2005, the legislature limited the frequency with which committed individuals could request supervised release. When originally enacted, Wis. Stat. § 980.08(1) allowed a committed individual to petition for supervised release every six months. The 2005 amendment required committed individuals to wait at least twelve months before filing another petition for supervised release. This modification decreased the initial mandatory period of commitment before an individual could petition for supervised release, but extended the waiting period between petitions.
¶46 These amendments are examples of the changes the legislature has
made to ch. 980 since its enactment in 1993. As the legislature has amended ch. 980, the
courts have been asked to determine the constitutionality of such amendments. For example, in 2002, this court reviewed
another constitutional challenge to ch. 980 in State v. Rachel (Rachel
I), 2002 WI 81, 254
¶47 Rachel I involved a challenge to the provisions governing
the petitioner's ability to seek supervised release. Specifically, the petitioner argued that amendments
to ch. 980 limited his chances of supervised release.
¶48 It is against this historical backdrop that we review West's challenge to the placement of the burden of proof for supervised release under Wis. Stat. § 980.08(4)(cg).
Burden Of Proof Under
¶49 An individual committed under ch. 980 may petition for discharge or supervised release. The provision governing supervised release previously read:
(1) Any person who is committed under s. 980.06 may petition the committing court to modify its order by authorizing supervised release . . . . The director of the facility at which the person is placed may file a petition under this subsection on the person's behalf at any time.
. . . .
(4)(b) The court shall grant the petition unless the state proves by clear and convincing evidence one of the following:
1. That it is likely that the person will engage in acts of sexual violence if the person is not continued in institutional care.
2. That the person has not demonstrated significant progress in his or her treatment or the person has refused treatment.
¶50 In 2005 the Wisconsin Legislature repealed this provision, and enacted the following provision in its stead:
The court may not authorize supervised release unless, based on all of the reports, trial records, and evidence presented, the court finds that all of the following criteria are met:
1. The person has made significant progress in treatment and the person's progress can be sustained while on supervised release.
2. It is substantially probable that the person will not engage in an act of sexual violence while on supervised release.
3. Treatment that meets the person's needs and a qualified provider of the treatment are reasonably available.
4. The person can be reasonably expected to comply with his or her treatment requirements and with all of his or her conditions or rules of supervised release that are imposed by the court or by the department.
5. A reasonable level of resources can provide for the level of residential placement, supervision, and ongoing treatment needs that are required for the safe management of the person while on supervised release.
Wis. Stat. § 980.08(4)(cg) (emphasis added).
¶51 The issue presented is whether the amendment to Wis. Stat. § 980.08(4) has changed the burden of proof in a supervised release petition, and if so, to whom has it been shifted and how?
¶52 The parties agree that under prior § 980.08(4)(b) the burden of proof was borne by the
State. The plain language of the statute
instructed the committing court: "The court shall grant the
petition unless the state proves by clear and convincing evidence"
one of two factors showing that the committed individual was not statutorily
entitled to release.
¶53 When interpreting the meaning of a statute, we begin with the
language of the statute, and give it its common, ordinary, and accepted meaning. State ex rel. Kalal v. Circuit Court for
Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110. When that meaning is plain, courts will look
¶54 If the meaning of a statute is ambiguous, however, after
considering all intrinsic sources, we look to extrinsic sources such as
legislative history to find legislative intent.
¶55 We hold that the plain language of amended § 980.08(4)(cg) is unambiguous and clearly assigns the burden of producing probative evidence to the committed individual.
¶56 The section as amended begins by setting forth a presumption:
"The court may not authorize supervised release unless . . . the court
finds . . . ."
¶57 Prior § 980.08(4)(b) made it clear that it was the State that had to overcome the presumption that a petition would be granted. By contrast, amended § 980.08(4)(cg) sets forth a presumption that supervised release may not be authorized unless, considering all the evidence, "the court finds that all of the following criteria are met." (Emphasis added.)
¶58 While this statement does not explicitly address who must meet these criteria, or produce evidence for the court, the list of criteria required for a grant of supervised release makes the assignment of the "burden of proof" unmistakable. The list of criteria reads:
1. The person has made significant progress in treatment and the person's progress can be sustained while on supervised release.
2. It is substantially probable that the person will not engage in an act of sexual violence while on supervised release.
3. Treatment . . . and a qualified provider of the treatment are reasonably available.
4. The person can be reasonably expected to comply with his or her treatment requirements and with all . . . conditions or rules of supervised release . . . imposed by the court or by the department.
5. A reasonable level of resources can provide for the level of residential placement, supervision, and ongoing treatment needs . . . required for the safe management of the person.
¶59 All five criteria are stated in the affirmative. All five criteria are statutory prerequisites to supervised release, and must be supported by evidence before the court. Most important, all five criteria weigh in favor of release, and are therefore in the committed petitioner's best interests to prove. A plain reading of the statute's presumption, coupled with these five criteria, unambiguously assigns the burden of proof (that is, the burden of producing the requisite evidence) to the committed individual seeking supervised release.
¶60 West argues that, because the language of prior § 980.08(4)(b) so clearly and unequivocally assigned the burden of proof to the State, the absence of equally explicit language in amended § 980.08(4)(cg) undermines the idea that the legislature intended to make a change. We disagree.
¶61 As a general rule, the burden of proof lies with the petitioning
party. See State v. McFarren,
¶62 Moreover, to read amended § 980.08(4)(cg)
as allocating the burden of proof to the State would require the State to prove
the negative of all five factors. To do
so, each of the five criteria would have to be construed in some manner
inconsistent with the plain language of the statute. For example, the State would be required to
show that the committed individual has not
made significant progress in treatment, that the committed individual can not
be reasonably expected to comply with treatment requirements, and that it is
substantially probable that the committed individual will reoffend while
on release. See
¶63 The court's holding in McFarren in 1974 lays the groundwork
for our holding here. In McFarren,
this court set forth a five-factor test for courts to apply in allocating the
burden of proof. These factors were
adopted, as modified, from McCormick on Evidence. McFarren, 62
(1) the natural tendency to place the burdens on the party desiring change;
(2) special policy considerations such as those disfavoring certain defenses;
(4) fairness; and
(5) the judicial estimate of probabilities.
¶64 Both West and the State rely on this test to support their respective positions. We consider each factor in turn.
¶65 First, as has already been discussed, the general rule in the law is that the moving party who seeks a change in the status quo is the one who bears the burden of proof. It is the committed individual——here, West——who seeks a change from secure institutional placement to placement in community based supervised release. This factor, therefore, favors placing the burden on West.
¶66 The second factor encompasses special policy considerations, such as those disfavoring certain defenses. West argues that the liberty interests at stake are special policy considerations weighing in favor of assigning the burden of proof to the State. This argument would have significantly more weight in the context of an initial commitment proceeding; in this case, however, the committed individual's liberty interests have already been lawfully and constitutionally restricted. Furthermore, the safety of the public is a significant policy consideration that also must be taken into account when discussing the possibility of releasing a dangerous, sexually violent person back into the community. To the extent this factor is applicable, we find that the policy considerations are equally persuasive.
¶67 The third and fourth factors consider convenience and
fairness. In discussing convenience, the
McFarren court explained: "[W]here the facts with regard to an
issue lie peculiarly in the knowledge of a party, that party has the burden of
proving the issue." McFarren,
¶68 West's brief goes so far as to suggest that this information "is not only in the hands of the state" but is information "which the state easily manipulates." He concedes, as he must, that the DHFS is separate from the prosecutors who oppose supervised release in the petition hearings, but argues that "the practical reality is that the department will cooperate with the prosecutors far more readily than with its involuntarily-committed patients." West does not cite any authority or evidence in support of this assertion, and we reject the allegation that the DHFS would manipulate data or fail to cooperate with a committed individual.
¶69 As the State pointed out in oral argument, it is not uncommon for
the DHFS and the prosecutor to have different positions on a petition for
supervised release, and in those cases, the DHFS may be represented by its own
counsel, separate from the State.
Moreover, West is statutorily entitled to an independent expert if the
DHFS does not support supervised release in his annual review.
¶70 Significantly, West ignores the remainder of the language quoted in
McFarren regarding convenience: "This
consideration should not be overemphasized.
Very often one must plead and prove matters as to which his adversary
has superior access to the proof."
¶71 Finally, the fifth factor involves a judicial assessment of the
probabilities. The McFarren court
observed, "The risk of failure may be placed upon the party who contends
that the more unusual event has occurred."
¶72 It is relevant, at this point, to reiterate the requirements for an individual to be committed as sexually violent under ch. 980. At the time West was committed, the statutes provided that a person may be committed only after a court or jury determines that he or she is
a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect or illness, and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.
¶73 To carry its burden of proof, the State had to put forth evidence
to satisfy this definition beyond a reasonable doubt.
¶74 As noted above, the term "burden of proof" encompasses
two aspects: "the burden of producing some probative evidence on a
particular issue," and the burden of persuading the fact-finder regarding
that issue. State v. Velez, 224
¶75 While we conclude that amended § 980.08(4)(cg) unambiguously assigns the burden of proof to the committed individual in a petition for supervised release, the question remains: What level of persuasion is required for West to carry this burden? Because the plain language of the statute does not address this question, we conclude that this aspect of the statute is ambiguous.
¶76 We have previously identified two different burdens of proof that
apply in civil actions: "fair preponderance of the evidence" and
"clear and convincing evidence."
State v. Walberg, 109
The fair preponderance standard applies in ordinary civil actions. The clear and convincing standard applies in cases where public policy requires a higher standard of proof than in the ordinary civil action. This so-called middle burden of proof has been required in such cases as fraud, undue influence, and prosecutions of civil ordinance violations which are also crimes under state law.
¶77 The court of appeals considered which burden should apply in Rachel
II, and concluded that, under amended § 980.08(4)(cg), the petitioner must prove by clear
and convincing evidence that supervised release is appropriate. Rachel
Carpenter, we acknowledged the legitimate public safety concerns
involved in placing a sexual offender in the community. We concluded that the primary purposes of
"protection of the public and the treatment of convicted sex offenders who
are at a high risk to reoffend . . . constitute significant
nonpunitive and remedial purposes."
prevailing concern for the safety of the public also is evident in amended
§ 980.08(4)(cg)2., which requires a showing that it is "substantially
probable that the person will not engage in an act of sexual violence while on
supervised release." We have
interpreted "substantially probable" to mean "much more likely
than not." Brown, 279
¶80 A civil commitment under ch. 980 should not and, due to the statutory protections, cannot be undertaken lightly. Nevertheless, the release of a person who has been determined to be sexually violent into the community where he or she may commit further acts of sexual violence is an equally serious undertaking. The concerns for the public safety that justify restricting the individual's liberty in the initial commitment are perhaps even more strongly implicated in the decision to release the individual back into the community, because the initial determination involves a finding that the individual is likely to reoffend. Proof by a preponderance of the evidence would require a mere showing that it is more likely than not that West would not commit another act of sexual violence. Where the likelihood we are weighing is whether another individual would be more or less likely to be a victim of an act of sexual violence, we are unwilling to set the standard so low.
¶81 Consequently, we conclude that, in 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.
C. West's Constitutional Challenges
¶82 West contends that allocating the burden of proof to the committed individual, as we have determined Wis. Stat. § 908.08(4)(cg) does, violates the due process and equal protection guarantees under the Constitution. We examine each argument in turn.
1. Due Process
¶83 Under a procedural due process analysis, we must determine first
whether there exists a liberty interest of which the individual has been deprived,
and if so, whether the procedures used to deprive that liberty interest were
¶84 The State argues that West's liberty interest is analogous to that
of a criminal parolee and thus the procedures provided for supervised release
do not violate procedural due process. In Greenholtz, the United States Supreme
Court found no due process violation in
¶85 We find the comparison of supervised release to parole procedure
instructive in this case. 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 under ch. 980. As was discussed supra, that initial
determination required the State to carry the burden of proof beyond a
¶86 Further, the original determination of being a sexually violent
person, like a conviction before parole, carries procedural safeguards that
serve to protect the individual's due process rights. See
¶87 We note that there is a marked difference between a petition for supervised release and a petition for discharge under Wis. Stat. § 980.09. Once a discharge petition establishes through pleading and supportive evidence that "facts exist from which a court or jury could conclude the person does not meet criteria for commitment," the matter is set for a hearing at which the State has the burden of proving by clear and convincing evidence that the person still meets the criteria for commitment as a sexually violent person.
¶88 A petition for supervised release more or less concedes that the petitioner would not expect to prevail on a petition for discharge, where the State had the burden of proof. If a petitioner is not ready to be discharged, he has the burden of showing that he should nonetheless be placed on supervised release in the community.
¶89 West does not have a recognized, protectable liberty interest in supervised release; accordingly, to require him to bear the burden of proof in his petition does not violate due process.
2. Equal Protection
prove an equal protection clause violation, the party challenging a statute's
constitutionality must show that "the state unconstitutionally treats
members of similarly situated classes differently." Post, 197
¶91 In analyzing civil commitment statutes, this court has acknowledged
that persons confined under ch. 980 are similarly situated to those confined
under ch. 51.
¶92 Our decision in Post is instructive to West's
challenge. In Post, the
defendants challenged the validity of ch. 980 on equal protection grounds,
arguing that individuals involuntarily committed under ch. 51 for mental
illness were treated differently.
¶93 Similarly, in Williams, the court of appeals held that
persons committed under ch. 980, as a class, present more of a danger to public
safety than those committed under ch. 51.
¶94 The court in Williams also found significant that it is more
difficult to commit someone under ch. 980 than under ch. 51.
¶95 The court of appeals in Williams also found differences in
the treatment of individuals committed under ch. 980 and Wis. Stat. § 971.17
to be permissible. While ch. 980
required the State to prove the individual's mental disorder and dangerousness
beyond a reasonable doubt at the time of commitment, § 971.17 only infers current mental illness and
dangerousness at the time of commitment.
¶96 In this case, placing the burden of proof for supervised release
with West does not violate the equal protection clause when comparing persons
committed under ch. 980 with those committed under either ch. 51 or § 971.17. The court has recognized that individuals
committed under ch. 980 are similarly situated to individuals committed under
ch. 51. Post, 197
¶97 West argues that common goals in treatment of and protection from individuals committed under ch. 980, ch. 51, and § 971.17 makes these classes similarly situated and therefore requires a similar placement of the burden of proof on the State. This argument, however, does not address the fact that, even with similarly situated classes, the State is not required to provide identical treatment to each class and instead need show only that differences in treatment are relevant to the classification distinction.
¶98 Even if this court assumes the three classifications in ch. 980, ch. 51, and § 971.17 are similarly situated, as indicated in Post and Williams, distinctions in classifications exist so as to warrant different procedures. Here, placing the burden of proof on ch. 980 committed individuals to obtain supervised release, but not on those committed under ch. 51 or § 971.17, is permissible due to classification distinctions as to the dangerousness of those confined and does not violate the equal protection clause.
¶99 In conclusion, placing the burden of proof on the petitioner for supervised release under amended Wis. Stat. § 980.08(4)(cg) does not violate substantive or procedural due process, nor does it violate equal protection.
980 seeks to address the dangers presented by persons who have been determined
to be sexually violent because of their criminal history and serious mental
disorders, without ignoring the interests those persons——and society——have in
their treatment and eventual release. We
have upheld ch. 980 commitments, and the statutory requirements for supervised
release, on the basis of this delicate balancing of the public safety with
individual liberty. We find it important
to note that if "civil confinement were to become a mechanism for
retribution or general deterrence . . . our precedents
would not suffice to validate it." Hendricks,
¶101 Under the facts of the instant case, however, we do not perceive any such retributive or deterrent aims. Rather, we perceive a legislative attempt to protect the public from those committed individuals seeking supervised release who still present a substantial danger to the public.
¶102 Accordingly, we conclude that amended Wis. Stat. § 980.08(4)(cg) unambiguously places the burden of proof with the committed individual. We determine that the appropriate burden of persuasion is clear and convincing evidence. We further hold that this allocation and burden do not violate the due process and equal protection clauses of the Constitution.
By the Court.—The decision of the court of appeals is affirmed.
¶103 ANN WALSH BRADLEY, J. (dissenting). The problems posed by chapter 980 commitments are difficult for both the legislature and the court alike. This case, however, presents a fairly straightforward question of statutory interpretation. Rather than adhering to the statutory text, the majority interprets legislative silence as unambiguous intent to place the burden of persuasion on the committed person. It then exacerbates any constitutional infirmities such an interpretation may create by contending that, based on public policy, the burden on the committed person is clear and convincing evidence.
¶104 I agree with the majority that if chapter 980 "were to become a mechanism for retribution or general deterrence[,] our precedents would not suffice to validate it." Majority op., ¶101. I conclude that the majority's unnecessary interpretation pushes chapter 980 one step closer to a punitive scheme. Accordingly, I respectfully dissent.
¶105 As the majority acknowledges, prior to the 2005 amendments to
chapter 980, the State had the burden to prove by clear and convincing evidence
that supervised release was inappropriate.
Majority op., ¶52. The 2005 amendments removed the language
placing the burden on the State, but did not expressly assign any burden to any
¶106 The majority interprets the 2005 amendments to constitute a total
reversal of prior law. Despite the
legislature's silence on the issue of burden, the majority determines that the
legislature unambiguously intended to shift the burden to the committed person
to meet all the criteria for supervised release.
¶107 Having concluded that the burden falls on the committed person, the
majority takes its analysis one step further.
The words "clear and convincing" do not appear within the text
of the supervised release provisions of chapter 980. The majority tacitly acknowledges that the
normal burden in a civil case is preponderance of the evidence, in the absence
of statutory language to the contrary.
¶108 As the majority contends, legislative amendments "have served
to limit the ability of a person committed pursuant to ch. 980 to obtain
agree with the majority that the legislature unambiguously removed the burden
of persuasion from the State. The
statute formerly provided that a petition for supervised release would be
granted "unless the state proves by clear and convincing evidence"
that certain criteria were met.
¶110 I cannot agree, however, that the legislature unambiguously intended to place the burden on the committed person. The majority sets forth several arguments in support of this conclusion, see majority op., ¶¶56-59, and at first blush, they appear persuasive. Nevertheless, at the end of the day, language placing the burden of persuasion on the committed person is simply absent from the statute.
¶111 The legislature routinely assigns burdens, and it does so by including express language. In the former statute, the legislature expressly placed the burden on the State. Likewise, the legislature has affirmatively assigned burdens of proof in the surrounding subsections of chapter 980. It is inconceivable to imagine that the legislature intended to assign the burden of persuasion to the committed person and simply forgot to include language doing so. The majority does what the legislature was unwilling to do——it inserts a burden into the statutory text.
¶112 The better interpretation is that the statute now provides no affirmative burden of persuasion on either party. Rather, it requires the circuit court to make a discretionary determination based on the statutory criteria and all the available evidence.
majority rejects this interpretation in a footnote. See majority op., ¶73 n.20. It advances that the interpretation is not
workable because neither party "would be required to bring forth any
¶114 Not only is this interpretation consistent with the language of the statute, but it also helps protect the statute from constitutional infirmities. Rather than interpreting chapter 980 to protect it from constitutional infirmities, however, the majority interprets legislative silence as unambiguous intent. It further exacerbates the possibility of constitutional infirmities by declaring that "public policy" requires a higher burden than the preponderance of evidence, and it sets the burden at clear and convincing evidence.
¶115 Normally, when the level of the burden of persuasion is unspecified, it is the preponderance of evidence. On what statutory language or legislative history does the majority rely to discard the normal standard and set the burden at clear and convincing evidence? None whatsoever. The majority relies instead on its own assessment of what would be good public policy. It rejects the normal preponderance burden, reasoning: "[W]e are unwilling to set the standard so low." Majority op., ¶81.
¶116 In setting the burden at clear and convincing evidence, the majority relies on a rationale that is the basis of a criminal conviction. A focus of a chapter 980 commitment is the committed person's current level of dangerousness. This focus sets a chapter 980 commitment apart from a criminal conviction, which focuses on an initial determination of guilt.
¶117 Yet, in setting the burden at clear and convincing evidence, the majority relies not on any current assessment of dangerousness, but rather upon the initial finding that, at the time of commitment, the person was more likely than not to reoffend. The majority's reliance on the initial determination rather than a current assessment blurs the distinction between civil and criminal commitments.
¶118 The majority's interpretation chips away at the constitutional
underpinnings of chapter 980. Chapter
980 was first enacted in 1993. This
court addressed various challenges to its constitutionality in 1995. State v. Carpenter, 197
¶119 This court's initial pronouncements that chapter 980 was constitutional relied heavily on the then-existing supervised release provisions, which ensured that a committed person was placed in the least restrictive environment necessary to meet therapeutic and public safety needs. These provisions supplied sufficient evidence that the legislature's intent and effect was not to punish or indefinitely incarcerate sexually violent persons, but rather, to treat them. Such legislative intent and effect was necessary to meet constitutional standards.
¶120 I authored the Carpenter majority opinion, in which we
addressed double jeopardy and ex post facto challenges. We concluded that chapter 980 survived those
challenges because the "plain language" of the statute demonstrated
the legislature's intent to "create a civil commitment procedure
primarily intended to protect the public and to provide concentrated treatment
to convicted sexually violent person, not to punish the sexual
¶121 The legislature's non-punitive intent was evinced, in part, by the
then-existing supervised release provisions.
persons were "committed to the [DHSS] for control, care, and
¶122 I joined the majority opinion of this court in Post. To survive a due process challenge, we
explained, the nature and duration of commitment must "bear some
reasonable relation to the purpose for which the individual is committed." 197
¶123 Over the last 15 years, the legislature has steadily chipped away at those aspects of chapter 980 upon which we relied in determining that the statute was constitutional. As it now exists, chapter 980 is largely unrecognizable from the scheme that was deemed constitutional in Carpenter and Post:
The proof necessary to initially commit an
individual has been significantly lowered.
When ch. 980 was first enacted, a jury was required to find beyond a
reasonable doubt that it was "substantially probable that the person will
engage in acts of sexual violence."
The nature of the commitment is significantly
more restrictive. When the statute was
first enacted, a commitment order could specify "institutional care in a
secure mental health unit or facility . . . or other facility or
The duration of institutionalization is
necessarily longer. When the statute was
first enacted, the DHSS was required to reexamine committed persons
"within 6 months after an initial commitment."
When the statute was first enacted, a committed
person could petition for supervised release when 6 months had elapsed since
the original commitment.
· As discussed in this opinion, the availability of supervised release has been drastically undermined.
¶124 In State v. Rachel (Rachel I), 2002 WI 81, ¶14, 254 Wis. 2d 215, 647 N.W.2d 762, this court evaluated the 1999 amendments to chapter 980, which "[a]s a whole . . . limit[ed] the ch. 980 respondent's ability to obtain supervised release[.]" We concluded that despite these limitations, the statute remained constitutional.
¶125 I wrote separately, concurring in the mandate. I concurred because of the presumption that a
statute is constitutional and the rule that a statute must be proven
unconstitutional beyond a reasonable doubt.
¶126 With the most recent amendments, as they have been interpreted by the majority, I conclude that the arguments in favor of constitutionality have just about worn out.
¶127 In my view, a key component of the original statute's constitutionality is that the burden continually fell on the State to justify the placement of a sexually violent person in the most restrictive environment——institutionalization at a secure mental health facility. As amended in 1999, however, a committed person must be institutionalized at a secure mental health facility upon commitment. Now, under the most recent amendments, the presumptions embodied by the statute appear to favor continued institutionalization.
¶128 Not only must the committed person prove that he poses a low risk of danger to others, he also must prove elements that are unrelated to his level of dangerousness. He must prove that placement, supervision, and treatment are "reasonably available" and can be provided with a "reasonable level of resources." As a result, the nature and duration of commitment may no longer be related to the person's legitimate treatment needs and the actual danger they would pose under the conditions of supervised release.
¶129 When I examine how this statute has evolved over the last 15 years,
I have increasing doubts that the "plain language" of the statute
evinces that the legislature's choices are "primarily intended to protect
the public and to provide concentrated treatment to convicted sexually violent
persons, not to punish the sexual offender." Carpenter, 197
¶130 This shifting focus away from treatment and toward punishment is reflected in the majority's analysis. To justify what it perceives to be the legislature's choice, the majority relies more and more on the procedural safeguards that attended the initial commitment and the fact that a jury once found that the committed person was a sexually violent person.
¶131 The majority explains that "the original determination of being a sexually violent person, like a conviction before parole, carries procedural safeguards that serve to protect the individual's due process rights." Majority op., ¶86. It further contends that it is "unusual" that a person "who was properly committed under ch. 980, may now be placed in the community on supervised release without a probability of committing another sexually violent offense." Majority op., ¶71, see also id., ¶73.
¶132 These justifications resonate with a criminal commitment scheme, in
which an accused defendant is afforded procedural safeguards at trial, and the
finality of judgment carries great weight after conviction. They do not belong in a civil commitment
scheme, where the nature and duration of commitment are supposed to be
"intimately linked to treatment of [the] mental condition." Post, 197
¶133 Ultimately, the majority's interpretation invites an absurd result contrary to the legitimate purposes of chapter 980. It appears that it may be easier for a person who was once determined to be sexually violent to obtain discharge than supervised release.
¶134 When a person is placed on supervised release, he lives in the community but at the same time is strictly monitored by the DHSS. Supervised release often includes stringent conditions. If the person violates any rule or condition, supervised release can be readily revoked. By contrast, when a person is discharged from a chapter 980 commitment, that person is released into the community and free to go about his business with no constraints. There are no conditions or monitoring because he is no longer in the care, custody, and control of the DHSS.
¶135 As set forth above, chapter 980 was originally found to be constitutional because it served the legitimate purposes of protection of the public and treatment of sexually violent persons. I conclude that the absurd result countenanced by the majority undercuts both purposes. It favors the release of sexually violent persons into the community without control, and it disfavors the therapy for sexually violent persons that can be best achieved in the community.
¶136 Accordingly, I respectfully dissent.
¶137 I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.
 State v. West, No. 2009AP1579, unpublished slip op. (Wis. Ct. App. Aug. 10, 2010).
 The Fourteenth
Amendment to the United States Constitution provides in part, "No
State shall . . . deprive any person of
life, liberty, or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The court has held that the due process
clause in Article I, Section 1 of the Wisconsin Constitution is the
"substantial equivalent" of the federal due process clause. Soc'y Ins. v. LIRC, 2010 WI 68, ¶28
 It was for this offense West was ultimately convicted of third-degree sexual assault, contrary to Wis. Stat. § 940.225(2)(a).
 These re-examination reports and citations to the record do not include additional Treatment Progress Reports prepared on an annual basis. The Treatment Progress Reports are, however, considered in the re-examination reports.
 Amended and revised by
 Chapter 980 was created pursuant to 1993 Wis. Act 479, § 40.
 Chapter 980's definition for "sexually violent person" as enacted differs from the current definition which substitutes "likely" for "substantial probability" that the person will engage in one or more acts of sexual violence. Wisconsin Stat. § 980.01(7) (2007-08) thus defines "sexually violent person" as:
[A] person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect, or illness, and who is dangerous because he or she suffers from a mental disorder that makes it likely that the person will engage in one or more acts of sexual violence.
 The Supreme Court
acknowledged that this intent was set forth in the
[A] small but extremely dangerous group of sexually violent predators exist who do not have a mental disease or defect that renders them appropriate for involuntary treatment pursuant to the [general involuntary civil commitment statute] . . . . In contrast to persons appropriate for civil commitment under the [general involuntary civil commitment statute], sexually violent predators generally have anti-social personality features which are unamenable to existing mental illness treatment modalities and those features render them likely to engage in sexually violent behavior. The legislature further finds that sexually violent predators' likelihood of engaging in repeat acts of predatory violence is high. The existing involuntary commitment procedure . . . is inadequate to address the risk these sexually violent predators pose to society. The legislature further finds that the prognosis for rehabilitating sexually violent predators in a prison setting is poor, the treatment needs of this population are very long term and the treatment modalities for this population are very different than the traditional treatment modalities for people appropriate for commitment under the [general involuntary civil commitment statute].
 This amendment was enacted pursuant to 1999 Wis. Act 9, § 3223h. The amendment also repealed Wis. Stat. § 980.06(2)(a)-(c), which permitted the court to enter an initial order for the sexually violent person to be committed to supervised release as opposed to institutional care.
 This amendment was enacted pursuant to 2003 Wis. Act 187, §§ 1, 2.
 This amendment was made
pursuant to 2005 Wis. Act 434, § 113. 2005
 Prior to the amendment, Wis. Stat. § 980.08 read in pertinent part: "Any person who is committed under s. 980.06 may petition [for supervised release] if at least 18 months have elapsed since the initial commitment order was entered or at least 6 months have elapsed since the most recent release petition was denied or the most recent order for supervised release was revoked." (Emphasis added.) As amended, § 980.08 reads: "Any person who is committed under s. 980.06 may petition [for supervised release] if at least 12 months have elapsed since the initial commitment order was entered or at least 12 months have elapsed since the most recent release petition was denied or the most recent order for supervised release was revoked." (Emphasis added.)
 In fact, both parties in their briefs characterized Wis. Stat. § 980.08(4)(cg) as ambiguous, differing, of course, on the proper interpretation of its alleged ambiguity. As we explain infra, we are not bound by their characterizations, and we conclude that the statute is unambiguous.
 The term "burden
of proof" encompasses two aspects: "the burden of producing some
probative evidence on a particular issue," and the burden of persuading the
fact-finder regarding that issue. State
v. Velez, 224
 West argues that this general rule should not apply because of the special constitutional interests at stake where deprivation of liberty is involved. He does not provide case law or support for an exception to this general rule where liberty interests are at stake; accordingly, we reserve our review of the constitutional arguments for the following section.
 West also argues that Wis.
Stat. § 980.08(4)(cg) may be properly interpreted as relieving any party
from bearing the burden of proof. He
suggests that the list of criteria contained in the statute could be viewed as
merely factors for the circuit court to weigh in making its determination
whether to grant a petition for supervised release. For example, in a sentencing hearing the circuit
court judge is required to make a discretionary decision on the basis of
statutory factors. See State
v. Taylor, 2006 WI 22, ¶¶19-20, 289
The court of appeals considered this same argument in Rachel
II. There, the court found it
significant that, unlike a petition for supervised release, a sentencing court
has broad discretion in applying the statutory criteria, but is not given a
statutory presumption. Rachel II,
2010 WI App 60, ¶¶10-11, 324
We agree with the analysis of the court of appeals in Rachel
II. As has already been discussed,
the statute begins with the words: "The court may not authorize
supervised release unless" the enumerated criteria are met.
 Under prior Wis. Stat. § 980.08(4)(b), the
State was required to prove by clear and convincing evidence that a petitioner
was not entitled to supervised release.
State v. Brown, 2005 WI 29, ¶¶11-12, 279
 Wis. Stat. § 971.17 provides for the commitment of persons found not guilty by virtue of mental disease or defect.
 The State argues that individuals committed under ch. 980 and Wis. Stat. § 971.17 are not similarly situated, and offers evidence of a difference in that those committed under § 971.17 receive generally finite confinement terms whereas ch. 980 confinement is indefinite. This argument, while plausible, is unnecessary to our analysis. The classification distinction created in terms of proven dangerousness as opposed to inferred dangerousness makes the different procedures——in this case, assignment of the burden of proof——permissible.
 Under the majority's analysis, the committed person must prove that he has made significant progress in treatment which can be sustained, that it is substantially probable that he will not engage in an act of sexual violence while on supervised release, and that he can be reasonably expected to comply with treatment requirements and conditions and rules of supervised release. Additionally, the committed person must prove that appropriate treatment is reasonably available and that a reasonable level of resources can provide for the required placement, supervision, and treatment needs.
 I agree with the
majority that the procedural safeguards attending initial commitment
proceedings as well as the availability of discharge and the procedural
safeguards that attend discharge proceedings are essential aspects of
maintaining chapter 980's constitutionality.
Without these safeguards, a committed person could be indefinitely
institutionalized even if he no longer met the criteria for commitment as a
sexually violent person. Such a scheme
would surely run afoul of numerous constitutional provisions. Foucha v.
The majority relies on Hendricks for the stark
proposition that a civil commitment statute need not contain any supervised
release provision at all to pass constitutional muster. See majority op., ¶41. I do not find this argument to be
persuasive. It overlooks that each civil
commitment scheme is its own package and must be evaluated as a whole based on
all of its characteristics.
 See, e.g., Wis. Stat. § 908.08(9)(a) ("As a condition of supervised release . . . , for the first year of supervised release, the court shall restrict the person on supervised release to the person's home except for outings that are under the direct supervision of a department of corrections escort and that are for employment purposes, for religious purposes, or for caring for the person's basic living needs."); see also Wis. Admin. Code DHS § 98.07(3); Dept. Health Services, Conditional Release Rules and Conditions, available at www.dhs.wisconsin.gov/forms1/f2/f25614.doc.
The conditions and monitoring placed on a person on supervised release are much more stringent than the conditions and monitoring placed on someone who is on extended supervision after serving a conviction for a criminal offense.