State v. Jamie Lane Stephenson , 2020 WI 92 ( 2020 )

2020 WI 92
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP2104
COMPLETE TITLE: In re the commitment of Jamie Lane Stephenson:
State of Wisconsin,
Petitioner-Respondent,
v.
Jamie Lane Stephenson,
Respondent-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 389 Wis. 2d 322,935 N.W.2d 842
PDC No:2019 WI App 63 - Published
OPINION FILED: December 18, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 14, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dunn
JUDGE: Rod W. Smeltzer
JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ROGGENSACK, C.J., ZIEGLER, HAGEDORN, and
KAROFSKY, JJ., joined. ANN WALSH BRADLEY, J., filed a
dissenting opinion in which DALLET, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
filed by Jefren E. Olsen assistant state public defender. There
was an oral argument by Jefren E. Olsen.
For the petitioner-respondent, there was a brief filed by
Donald V. Latorraca, assistant attorney general; with whom on
the brief was Joshua L. Kaul, attorney general. There was an
oral argument by Donald V. Latorraca.
2020 WI 92
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP2104
(L.C. No. 2011CI1)
STATE OF WISCONSIN : IN SUPREME COURT
In re the commitment of Jamie Lane Stephenson:
State of Wisconsin, FILED
Petitioner-Respondent, DEC 18, 2020
v. Sheila T. Reiff
Clerk of Supreme Court
Jamie Lane Stephenson,
Respondent-Appellant-Petitioner.
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court, in which ROGGENSACK, C.J., ZIEGLER, HAGEDORN, and
KAROFSKY, JJ., joined. ANN WALSH BRADLEY, J., filed a
dissenting opinion in which DALLET, J., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. Jamie Lane Stephenson
seeks review of the court of appeals decision1 affirming the
circuit court's denial2 of his Chapter 980 petition for discharge
1State v. Stephenson, 2019 WI App 63, 389 Wis. 2d 322, 935
N.W.2d 842.
2The Honorable Rod W. Smeltzer, Dunn County Circuit Court,
presided.
No. 2018AP2104
from his commitment as a sexually violent person. Stephenson
raises three issues. First, he contends that Chapter 980
requires the State to present expert testimony in order to prove
he is dangerous because his mental disorder makes it more likely
than not that he will re-offend in a sexually violent manner.
Because the State failed to do so, Stephenson asserts there is
insufficient evidence to continue his Chapter 980 commitment.
Second, Stephenson asks this court to overrule the sufficiency-
of-the-evidence standard of review this court adopted in Curiel.3
Third, he claims that even if expert testimony is not required,
and even if we do not overrule Curiel, the evidence was
nevertheless insufficient to support the circuit court's
decision denying his petition for discharge.
¶2 We hold the State is not required to present expert
testimony to prove the required dangerousness element in Wis.
Stat. § 980.01(7) (2017-18).4 We further reject Stephenson's
request to overrule Curiel and, instead, reaffirm Curiel's
holding that the appropriate standard of review to use in
Chapter 980 cases is the sufficiency-of-the—evidence test set
forth in our criminal law. Finally, we hold the evidence of
record satisfies the sufficiency-of-the-evidence standard. We
affirm the decision of the court of appeals.
I. BACKGROUND
3In re Commitment of Curiel, 227 Wis. 2d 389, 597 N.W.2d
697 (1999).
4All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
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No. 2018AP2104
¶3 Stephenson has a lengthy history of committing sexual
assaults. In 2000, when he was 15 years old, the State charged
Stephenson with three counts of fourth-degree sexual assault.
One of these charges resulted in a delinquency adjudication. In
2001, Stephenson sexually assaulted a high school classmate. In
that case, Stephenson led the student to a secluded area of the
high school, forcefully pushed her up against a wall, pulled
down her pants, and began engaging in forced intercourse.
Stephenson was subsequently adjudicated delinquent for second-
degree sexual assault of a child.
¶4 In 2004, Stephenson engaged in sexual intercourse with
two 15-year-old girls. The State charged Stephenson with two
counts of second-degree sexual assault of a child, and he later
pled guilty to two counts of fourth-degree sexual assault of a
child. The circuit court placed him on two years of probation.
Also in 2004, Stephenson engaged in sexual intercourse with a
12-year-old girl in Minnesota when he was 19 years old. The
State of Minnesota charged Stephenson with one count of second-
degree criminal sexual conduct. Stephenson was ultimately
convicted of this charge and placed on 25 years of probation.
¶5 In 2007, Stephenson corresponded with a 14-year-old
girl over the internet and lied to her about his age. When he
eventually met her face-to-face, Stephenson pinned her down and
forced her to engage in sexual intercourse. That same year,
Stephenson restrained a 16-year-old girl and forcibly engaged in
sexual intercourse with her while her parents were away. The
girl was eventually able to escape.
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No. 2018AP2104
¶6 For these incidents in 2007, the State charged
Stephenson with two counts of sexual assault of a child.
Stephenson subsequently pled guilty to one count of second-
degree sexual assault of a child and, in 2009, was sentenced to
two years of initial confinement followed by four years of
extended supervision. In 2011, as Stephenson's release date
neared, the State filed a petition to qualify Stephenson as a
"sexually violent person," pursuant to Wis. Stat. ch. 980. The
circuit court committed Stephenson to a secure mental health
facility.
¶7 In 2017, Stephenson petitioned the circuit court to
discharge him from commitment. The State opposed Stephenson's
release. The circuit court considered his petition and
conducted a discharge trial. In order to continue Stephenson's
commitment on the basis that he remained a "sexually violent
person," the State was required to prove three elements by clear
and convincing evidence: (1) that he has been convicted of a
sexually violent offense [hereinafter the "first element"],5 (2)
that he has a mental disorder that predisposes him to acts of
sexual violence [hereinafter the "second element"],6 and (3) that
he is dangerous to others because the mental disorder makes it
more likely than not that he will engage in one or more future
5"Sexually violent offense" is defined in Wis. Stat.
§ 980.01(6).
6In full, "mental disorder" is defined as a "congenital or
acquired condition affecting the emotional or volitional
capacity that predisposes a person to engage in acts of sexual
violence." Wis. Stat. § 980.01(2).
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No. 2018AP2104
acts of sexual violence [hereinafter the "third element"]. Wis.
Stat. § 980.01(7).
¶8 At the discharge trial, there was no dispute over the
first element: Stephenson had been convicted of a host of
sexually violent offenses. In order to establish the second
element, the State introduced testimony from an expert witness,
Donn Kolbeck, a psychologist employed by the Department of
Health Services (DHS) who had previously evaluated Stephenson.
Kolbeck testified that he diagnosed Stephenson with two
qualifying mental disorders: (1) Other Specified Personality
Disorder, with antisocial and borderline features, and (2)
Alcohol Abuse Disorder.
¶9 Kolbeck testified that Stephenson's personality
disorder meant that he possesses an "enduring pattern of inner
experience and behavior that deviates . . . markedly from the
expectations of the individual's culture leading to
impairments[] in cognitions, emotions, interpersonal
functioning, and impulse control." Kolbeck further stated that
Stephenson exhibits "a long history of deceitfulness, conning
and manipulation in the context of sexually violent behaviors,
impulsivity, irritability, consistent irresponsibility, and a
lack of remorse." According to Kolbeck, Stephenson's
personality disorder "has a direct causal connection to [his]
sexually violent behaviors in the community."
¶10 With regard to the other qualifying mental disorder,
Kolbeck testified that, while Stephenson's symptoms were in
remission given his controlled environment, Stephenson's "use of
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No. 2018AP2104
alcohol . . . was a condition that predisposed him to engage in
acts of sexual violence." He further testified that
Stephenson's alcohol consumption grew heavily over time,
progressing to "frequent intoxication" during his life.
According to Kolbeck, Stephenson also admitted that he had
"never committed a crime sober" and that he was still "capable
of social drinking" in the community.
¶11 Additionally, Kolbeck testified regarding Stephenson's
numerous rule violations while committed. Noting that
Stephenson's anti-social traits were "still active," Kolbeck
explained that Stephenson repeatedly covered his room window
with a towel, despite contrary instructions from staff. When
confronted with this violation, Stephenson lied, claiming this
behavior had been allowed by other unit staff members.
Additionally, while in confinement, Stephenson had been cited
repeatedly for trying to obtain property that he was not allowed
to have. In one case, Stephenson violated the rules by ordering
women's lingerie——an item expressly prohibited under the
facility's policies.
¶12 Kolbeck also stated that Stephenson produced a
concerning result on a non-suppressed penile plethysmograph
test, during which Stephenson became aroused by stimuli
"depicting teenager coercive interactions" as well as by graphic
depictions of "victims crying or in some form of suffering"
related to sexual deviancy. Kolbeck testified that Stephenson
tested highly on measures of psychopathy, as quantified by the
Psychopathy Checklist—Revised (PCL-R). While most individuals
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No. 2018AP2104
in the "prison population" score "roughly 23" on the PCL-R,
Stephenson scored a "29," which is "consistent with a high
degree of psychopathy." Kolbeck opined that these indicators
suggest that Stephenson manifests characteristics of shallow
affect, grandiosity, and manipulation.
¶13 Next, Kolbeck addressed the third element: whether
Stephenson's mental disorder makes it more likely than not that
he will engage in one or more future acts of sexual violence.
In opining on this issue, Kolbeck employed two actuarial risk
instruments to measure Stephenson's risk of future
dangerousness: the Static-99R and the Violence Risk Scale—Sex
Offense Version (VRS-SO). Based on these assessment tools,
Kolbeck concluded that Stephenson had a 41 percent probability
of re-offending. Importantly, Kolbeck defined "re-offense" as
the probability of Stephenson being arrested or charged with a
sexual crime, not his actual likelihood of committing future
acts of sexual violence. Stephenson's score on this instrument
(41 percent) was lower than the "more likely than not" standard
required for the third element. As a result, Kolbeck concluded
that, under this measure, Stephenson did not satisfy the third
element.
¶14 Following Kolbeck's testimony, Stephenson introduced
his own expert witness, Courtney Endres, a psychologist whose
evaluation of Stephenson supported his discharge petition. With
respect to the second element, Endres testified that Stephenson
"no longer meets the criteria for a mental disorder as defined
under Wisconsin Chapter 980." As to the third element, Endres
7
No. 2018AP2104
opined that Stephenson's "risk falls below the threshold" and
that he "is not likely to reoffend in the future." Although
Endres used the same Static-99R and VRS-SO instruments employed
by Kolbeck, Endres applied slightly different risk assessment
factors and determined that Stephenson posed a 10 percent risk
of re-offense over five years and a 17 percent risk over ten
years. Accordingly, Endres concluded that Stephenson no longer
met the statutory criteria for commitment as a sexually violent
person.
¶15 Stephenson also presented testimony from Darren
Matusen, a psychologist at Stephenson's treatment facility.
Matusen explained Stephenson's intensive three-phase treatment
program during commitment and stated that Stephenson was in
phase three of this program. He opined that Stephenson had made
progress in his treatment, even though he "is still callous at
times." He also stated that, while Stephenson "has a history of
minimizing the seriousness of his sexual offenses," he has more
recently "acknowledged that adolescents are incapable of
consent" and has "taken responsibility" for his crimes. Matusen
also testified that, during the previous year, Stephenson
assessed his own risk of re-offending as a "five out of ten"
chance.
¶16 After hearing all of the testimony, the circuit court
denied Stephenson's discharge petition, finding that he remained
a sexually violent person. The court ruled that, based upon
Kolbeck's testimony, Stephenson suffers from both of the
aforementioned mental disorders and "does have a risk to
8
No. 2018AP2104
reoffend." Nonetheless, the circuit court acknowledged that
Stephenson "has made significant progress" in his treatment and
therefore granted him supervised release pursuant to Wis. Stat.
§ 980.08(4)(cg).
¶17 Following the circuit court's determination,
Stephenson filed a motion for postcommitment relief. In his
motion, Stephenson conceded the first two elements of the
criteria for commitment as a "sexually violent person,"
challenging only the third element. Stephenson argued the State
failed to meet its burden of proof on the third element because
no expert testified that he was more likely than not to commit a
future act of sexual violence. Specifically, Kolbeck testified
that Stephenson's risk of arrest or conviction for committing
future acts of sexual violence was only 41 percent, a figure
failing to satisfy the "more likely than not" standard,
Stephenson argued. Stephenson further claimed that, even if
expert testimony was not required for the third element, the
State's evidence was insufficient to prove that Stephenson was
dangerous. The circuit court denied this motion, holding that
the State was not required to present expert testimony on the
third element and that the State presented sufficient evidence
to deny his discharge. Stephenson appealed, and the court of
appeals affirmed the circuit court's ruling. We granted
Stephenson's petition for review.
II. STANDARD OF REVIEW
¶18 Stephenson asks this court to interpret Wisconsin's
sexually violent person commitment laws under Wis. Stat. ch. 980
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No. 2018AP2104
and to consider whether expert testimony is required to continue
a commitment. This court reviews questions of statutory
interpretation "independently, [while] . . . benefit[ing] from
the decisions by the court of appeals and circuit court." In re
Commitment of Talley, 2017 WI 21, ¶24, 373 Wis. 2d 610, 891
N.W.2d 390; see also Racine Cnty. v. Oracular Milwaukee, Inc.,
2010 WI 25, ¶24, 323 Wis. 2d 682, 781 N.W.2d 88. Additionally,
Stephenson asks this court to overrule Curiel and adopt a
different standard of reviewing whether the evidence is
sufficient to uphold the factfinder's determination that a
person is sexually violent. The standard of review we apply
presents a question of law that we review de novo. See In re
Commitment of Curiel, 227 Wis. 2d 389, ¶¶52-53, 597 N.W.2d 697
(1999).
III. DISCUSSION
A. Expert Testimony for Chapter 980 Proceedings
¶19 Stephenson contends that, during Chapter 980 discharge
trials, the State must present expert testimony to satisfy its
burden of establishing the third element: that the committee is
dangerous to others because his mental disorder makes it more
likely than not that he will engage in one or more future acts
of sexual violence. Wis. Stat. § 980.01(7). Stephenson asserts
that, because the State's expert witness failed to testify
Stephenson was "more likely than not to reoffend," the circuit
court wrongfully denied his petition for discharge. We are not
persuaded.
10
No. 2018AP2104
¶20 In essence, Stephenson asks this court to breathe
requirements into a Wisconsin statute that are textually absent.
Nowhere does Wis. Stat. ch. 980 require expert testimony for
determinations of a committee's dangerousness, nor should this
court invade the province of the legislature to create a rule
out of whole cloth. Indeed, the legislature is capable of
enacting such language if it chooses. In Wis. Stat.
§ 980.07(1), for example, the legislature requires that expert
examiners conduct "reexamination[s] of the person's mental
condition . . . [every] 12 months to determine whether the
person has made sufficient progress for the court to consider
whether the person should be . . . discharged." Similarly, the
legislature expressly invites courts to hear expert testimony
when a committee denies the facts in a petition alleging that he
is sexually violent. Wis. Stat. § 980.031.7 Not so for
§ 980.09. While this court could mandate expert witness
testimony to support the third element, we decline to do so.
"The requirement of expert testimony is an extraordinary one,
and [it is applied] by the trial court only when unusually
complex or esoteric issues are before the jury." White v.
Leeder, 149 Wis. 2d 949, 960, 440 N.W.2d 557 (1989).8 This court
"If a person who is the subject of a petition filed under
7
§ 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." Wis. Stat. § 980.031.
The dissent cites the "Basic Guide to Wisconsin Small
8
Claims Actions" for the proposition that Wisconsin "acknowledges
11
No. 2018AP2104
rightly refuses to read words into a statute that are simply not
there, and this case is no exception. See Bruno v. Milwaukee
Cnty., 2003 WI 28, ¶16, 260 Wis. 2d 633, 660 N.W.2d 656.
¶21 As a general matter, expert testimony may be
admissible at trials if, inter alia, "scientific, technical, or
other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue." Wis.
Stat. § 907.02(1).9 But within the context of Chapter 980,
the need for" expert testimony from a "full-time mechanic or a
repair person" in a "motor vehicle faulty repair case."
Dissent, ¶¶58-59. Neither the guide nor Wisconsin law says
that. Setting aside the fact that "[t]his document is only a
general guide" and not the law, the language cited by the
dissent simply says that if a party is planning to present the
testimony of an expert witness, it is "almost always necessary"
to have the expert testify in person:
Having the expert witness testify in person is almost
always necessary. Merely repeating what your expert
told you will probably not be allowed. A written
statement or affidavit from the expert witness will
not be sufficient.
While "My Cousin Vinny" certainly established how compelling
expert testimony can be regarding the characteristics of a car,
the dissent's claim that "this court acknowledges the need for
an expert to testify even in a small claims motor vehicle faulty
repair case" is plainly wrong.
9 Contrary to the dissent's construction of Wis. Stat.
§ 907.02(1), nothing in the text of this statute requires the
admission of expert testimony; to the contrary, its language is
permissive rather than mandatory, affording the trial court the
discretion to admit expert testimony if it will "assist the
trier of fact":
If scientific, technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify
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No. 2018AP2104
determinations of future dangerousness rest soundly within the
purview of lay factfinders. Courts recognize factfinders to be
quite adept at understanding how an individual's criminal
history, admissions of wrongdoing (or lack thereof), performance
on supervision, or progress in treatment inform his likelihood
of committing future acts of violence. See, e.g., State v.
Randall, 2011 WI App 102, ¶¶9-10, 19, 336 Wis. 2d 399, 802
N.W.2d 94 (holding that, in a case involving a petitioner's
commitment on grounds of insanity, the factfinder properly
concluded that the petitioner's past crimes and poor behavior
during commitment showed that he "still pose[d] a danger to
society"); Estelle v. Smith, 451 U.S. 454, 472 (1981)
(discussing the important role of a factfinder in assessing an
individual's future danger to society).
¶22 In this case, Kolbeck testified that, based on
calculations using Static-99R and VRS-SO, Stephenson had a 41
percent risk of re-offending, which he defined as the risk of
being arrested and charged with a crime of sexual violence.
While this is below the threshold of "more likely than not," a
factfinder could reasonably determine that other evidence,
separate from these actuarial instruments, weighs in favor of
continued commitment based on the likelihood of Stephenson
thereto in the form of an opinion or otherwise, if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and
methods, and the witness has applied the principles
and methods reliably to the facts of the case.
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No. 2018AP2104
committing future acts of sexual violence, regardless of whether
he ultimately faced arrest or charges as a result. For example,
Kolbeck testified that Stephenson scored disproportionately high
on measures of psychopathy, repeatedly violated the treatment
facility's policies, and generated a concerning result on his
non-suppressed penile plethysmograph test. Weighing these
additional factors falls squarely within the comprehension and
competency of lay factfinders. After all, in a variety of other
sorts of cases, a factfinder's principal duty involves reviewing
the entire panorama of evidence, weighing its significance, and
drawing conclusions therefrom.10 See, e.g., Jackson v. Virginia,
443 U.S. 307, 318-19 (1979) (discussing how factfinders must
weigh the evidence and draw reasonable inferences in criminal
trials); Lang v. Lowe, 2012 WI App 94, ¶¶16-18, 344 Wis. 2d 49,
820 N.W.2d 494 (discussing how factfinders appropriately weigh
evidence in civil actions).
¶23 No Wisconsin appellate court has ever required trial
courts to hear expert testimony on the third element. More than
two decades ago, this court expressly declined to create such a
rule and held that the circuit court properly considered the
State's other evidence——namely, that the committee had a 25-year
10Of course, this is not to say that a factfinder would not
benefit from hearing expert testimony on the third element. As
the State admits, it may often prove difficult for the State to
demonstrate without an expert a committee's likelihood of
engaging in future acts of sexual violence sufficient to render
him dangerous to others. But to mandate expert testimony is an
entirely different matter.
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No. 2018AP2104
criminal history, was deliberately violating his rules of
supervision, and was in denial of his need for treatment. In re
Commitment of Kienitz, 227 Wis. 2d 423, ¶31, 597 N.W.2d 712
(1999) (stating that, "[b]ecause there was expert testimony on
the issue of future acts of sexual violence in this case," it
need not opine on whether "expert testimony is required as a
matter of law."). Likewise, the United States Supreme Court has
never required experts to testify on "future dangerousness"
either. In Estelle v. Smith, 451 U.S. 454, 472 (1981), the
Court held that, on the issue of capital sentencing procedures
(which require a determination of "dangerousness"), "the jury's
resolution of the future dangerousness issue is in no sense
confined to the province of psychiatric experts." In another
case, the Court stated that experts should not have the only say
in whether or not an individual is dangerous, given that lay
juries and courts can "sensibly" arrive at such conclusions.
Barefoot v. Estelle, 463 U.S. 880, 896 (1983) (superseded by
statute on other grounds).
¶24 Stephenson relies heavily upon Wal-Mart Stores, Inc.
v. LIRC, 2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633, as
well as Brown County Human Services v. B.P., 2019 WI App 18, 386
Wis. 2d 557, 927 N.W.2d 560, for his assertion that the State is
required "to present expert opinion testimony that the
respondent is dangerous." Both cases are inapposite. In Wal-
Mart Stores, an employee brought an employment discrimination
suit alleging that his employer fired him because of his
obsessive-compulsive disorder (OCD). 240 Wis. 2d 209, ¶¶2-3.
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No. 2018AP2104
The court of appeals held that the employee needed to present
expert testimony in order to prove that his OCD caused the
behavior that led to his firing. Id., ¶16. While the
employee's therapist testified regarding the employee's OCD
diagnosis, she provided no evidence that the OCD caused the
behaviors triggering his firing. Id., ¶23. In the absence of
such expert testimony, the court of appeals concluded the Labor
and Industry Review Commission erred in determining that Wal-
Mart discriminated against the employee on the basis of his
disability. Id., ¶1. Similarly, the court of appeals in B.P.
decided that a parent facing termination of parental rights
needed to present expert testimony to support his assertion that
his psychological condition caused him not to visit or
communicate with his child. 386 Wis. 2d 557, ¶48. Without such
expert testimony, the court concluded that the trier of fact
would have to speculate. Id., ¶49. Unlike either of those
cases, in this Chapter 980 proceeding, an expert witness did
supply the causal link between Stephenson's mental disorder and
his prior sexually violent behaviors. Kolbeck testified that
Stephenson's personality disorder "has a direct causal
connection to [his] sexually violent behaviors in the
community."
¶25 Notwithstanding this linkage established by expert
testimony, Stephenson nevertheless argues that the holdings of
Wal-Mart Stores and B.P. should prohibit a factfinder from
determining that a committee is dangerous to others without an
expert witness opining that the committee's mental disorder
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No. 2018AP2104
makes it more likely than not that he will engage in one or more
future acts of sexual violence. We disagree. The rule applied
in Wal-Mart Stores and B.P. does not fit the factfinder's
determination under Wis. Stat. § 980.01(7). Unlike the third
element of that statute, the inquiries requiring expert
testimony in Wal-Mart Stores and B.P. were entirely
retrospective, involving whether mental health conditions caused
behaviors that had already occurred. The issue in Wal-Mart
Stores was whether the employee's past conduct was caused by his
mental disorder; similarly, the issue in B.P. was whether the
parent's past conduct was caused by his psychological condition—
—both decidedly different inquiries than in Chapter 980 cases,
in which any proffered expert testimony would inform the
committee's propensity to commit future acts of sexual violence.
In other words, the court of appeals deemed expert testimony
necessary to establish a causal link between the employee's
disorder and the conduct for which he was fired in Wal-Mart
Stores, as well as to establish a causal link between the
father's psychological condition and the conduct for which the
State sought to terminate his parental rights in B.P. Both of
these considerations fall beyond the competence of the lay
factfinder, who, without expert testimony, cannot determine
whether a mental health condition or a disorder did in fact
cause particular behaviors. In contrast, the third element
under Wis. Stat. § 980.01(7) asks the factfinder to make a risk
assessment regarding the likelihood the committee will engage in
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No. 2018AP2104
future acts of sexual violence, a predictive determination long
regarded as well within the province of the lay factfinder.
¶26 Significantly, Chapter 980 cases involve a multitude
of supplemental evidence pertinent to the third element that is
simply irrelevant in employment discrimination and termination
of parental rights cases. In discharge proceedings, the State
typically presents evidence of the committee's progress in
treatment, his performance on psychometric evaluations, and the
nature of his mental disorder. The factfinder in Chapter 980
cases has a comprehensive range of evidence at its disposal when
assessing whether an individual's mental disorder makes it more
likely than not that he will re-offend in a sexually violent
manner——a characteristic often lacking in ordinary civil
disputes involving psychological evaluations. In this respect,
among others, Chapter 980 cases are an entirely different
species of law compared to ordinary civil disputes. After all,
"[t]he primary goals and purposes of ch. 980 are to treat
sexually violent persons and to protect society from the danger
posed by those persons," and the array of evidence available to
factfinders reflects these consequential aims. In re Commitment
of West, 2011 WI 83, ¶27, 336 Wis. 2d 578, 800 N.W.2d 929.
¶27 Nonetheless, Stephenson maintains that the language of
Wis. Stat. § 980.01(7) suggests that expert testimony is
required to prove that an individual is dangerous to others
because his mental disorder makes it more likely than not that
he will commit future acts of sexual violence. Stephenson's
argument rests upon his interpretation of language in State v.
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No. 2018AP2104
Sorenson, 2002 WI 78, ¶20, 254 Wis. 2d 54, 646 N.W.2d 354,
indicating that § 980.05(4) "contemplates that the state must
put forth expert evidence showing the respondent's mental
disorder." According to Stephenson's argument, because the
statute directly links the mental disorder to the individual's
likelihood to re-offend in a sexually violent manner, if expert
testimony is required to prove the existence of a mental
disorder, expert testimony must also be required for the third
element. We are unpersuaded.
¶28 As a preliminary matter, whether Wis. Stat. §
980.05(4) requires expert testimony to establish a committee's
mental disorder was not an issue before the court in Sorenson.
It is not necessary for us to resolve that issue in this case
either. As Stephenson concedes, Kolbeck's diagnoses supply
sufficient evidence to establish that Stephenson has a mental
disorder that predisposes him to acts of sexual violence. The
State's expert linked Stephenson's mental disorder with his
potential for recidivism (thereby satisfying the second element)
and it was the factfinder's role to then determine whether
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No. 2018AP2104
Stephenson's mental disorder made him more likely than not to
commit a future act of sexual violence (the third element).11
¶29 As Chapter 980 makes clear, a "mental disorder" is a
"congenital or acquired condition affecting the emotional or
volitional capacity that predisposes a person to engage in acts
of sexual violence." Wis. Stat. § 980.01(2) (emphasis added).
Accordingly, when an expert testifies to a committee's mental
disorder, he establishes that the committee has a predisposition
for acts of sexual violence. The next statutory step involves
assessing the likelihood the committee will commit such acts in
the future. Logically, when ascertaining a committee's
potential for committing acts of sexual violence in the future,
the factfinder necessarily ties its determination to the
predisposition produced by the mental disorder. In other words,
when providing testimony sufficient to establish the second
element, the expert lays the foundation for any forthcoming
evidence pertinent to the third element. Because the
determination of whether the committee is more likely than not
to engage in future acts of sexual violence remains squarely
The dissent misconstrues the court's statutory analysis
11
by suggesting that the "majority's interpretation of Wis. Stat.
§ 980.01(7) erroneously collapses the required statutory
elements from three to two." Dissent, ¶61. Of course, simply
because expert testimony is not required for the third element
does not mean that the element falls away. The dissent
misunderstands the simple issue in this case, which is whether
expert testimony is necessary to determine whether it is more
likely than not that the committee will engage in future acts of
sexual violence. The court's conclusion that the answer to this
inquiry falls within the purview of the factfinder does not mean
this statutory element disappears.
20
No. 2018AP2104
within the purview of the factfinder, expert testimony on the
third element may inform the factfinder's decision but it is not
necessary to conclude that a person is sexually violent.
B. Sufficiency-of-the-Evidence in Chapter 980 Appeals
¶30 Stephenson next asks us to overrule Curiel and depart
from the sufficiency-of-the-evidence standard of review courts
have been using for over 20 years. Under Curiel, appellate
courts review Chapter 980 cases by asking whether "the evidence,
when viewed most favorably to the state and [the commitment], is
so insufficient in probative value and force that it can be said
as a matter of law that no trier of fact, acting reasonably,
could have found [the person sexually violent] beyond a
reasonable doubt" at an initial commitment trial and by "clear
and convincing evidence" at a discharge trial. See In re
Commitment of Curiel, 227 Wis. 2d 389, ¶52, 597 N.W.2d 697
(citation omitted); Wis. Stat. §§ 980.05(3) (at an initial
commitment trial, the State must prove "beyond a reasonable
doubt" that the individual is a sexually violent person) and
980.09(3) (at a discharge trial, the State must prove "by clear
and convincing evidence" that the individual still meets the
criteria for commitment as a sexually violent person). This
sufficiency-of-the-evidence test is the same standard that we
apply in reviewing criminal convictions. Curiel, 227
Wis. 2d 389, ¶53. Stephenson asks us to jettison this standard
and instead apply independent review to whether the evidence
satisfied the legal standard for dangerousness. We see no
reason to do so.
21
No. 2018AP2104
¶31 In Curiel, the court concluded that, because Chapter
980 proceedings "share[] many of the same procedural and
constitutional features present in criminal prosecutions,"
courts must apply the criminal standard of review to Chapter 980
cases. Id., ¶54. Although it is true that Curiel partly relied
upon a now-repealed statute to support its holding,12 many of the
same rights recognized for criminal defendants continue to apply
to committees in Chapter 980 proceedings. As provided by Wis.
Stat. §§ 980.03(2) and (3), sexually violent offenders have the
right to remain silent, to be provided with counsel, to request
jury trials at initial commitment, to have the State prove
initial commitment "beyond a reasonable doubt," and to present
and cross-examine witnesses. Like criminal trials, Chapter 980
proceedings also demand that the State turn over "[a]ny
exculpatory evidence" which may inform a committee's right to
discharge. Wis. Stat. § 980.036(2)(j). Indeed, although
criminal trials and Chapter 980 proceedings possess important
differences (e.g., the latter is not for purposes of
punishment), their relevant procedures are decidedly analogous——
a fact properly recognized by Curiel. If Chapter 980
proceedings and criminal actions "parallel" each other in
substantive respects, as Curiel noted, then it only makes sense
that these cases have mirroring standards for reviewing
Wisconsin Stat. § 980.05(1m) has since been legislatively
12
repealed. See 2005 Wis. Act 434 §§ 101, 131(1). This statute
provided that "[a]ll constitutional rights available to a
defendant in a criminal proceeding are available to the
[individual subject to commitment proceedings]."
22
No. 2018AP2104
challenges to the sufficiency of the evidence. Curiel, 227
Wis. 2d 389, ¶55.
¶32 In asking this court to uproot established case law,
Stephenson omits any discussion of Wisconsin's commitment to the
doctrine of stare decisis. This court respects the doctrine of
stare decisis and will not overturn precedent absent a "special
justification." State v. Roberson, 2019 WI 102, ¶49, 389
Wis. 2d 190, 935 N.W.2d 813 (citation omitted). "This court
follows the doctrine of stare decicis scrupulously because of
[its] abiding respect for the rule of law," and "[this] court's
decision to depart from precedent is not to be made casually."
Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108,
¶94, 264 Wis. 2d 60, 665 N.W.2d 257; see also Progressive N.
Ins. v. Romanshek, 2005 WI 67, ¶41, 281 Wis. 2d 300, 697
N.W.2d 417. Typically, we explore five factors before deciding
whether to overturn precedent and we are "more likely" to do so
only "when one or more of the following circumstances is
present: (1) [c]hanges or developments in the law that have
undermined the rationale behind the decision; (2) there is a
need to make a decision correspond to newly ascertained facts;
(3) there is a showing that the precedent has become detrimental
to coherence and consistency in the law; (4) the prior decision
is 'unsound in principle'; or (5) the prior decision is
'unworkable in practice.'" Bartholomew v. Wisconsin Patients
Comp. Fund & Compcare Health Servs. Ins. Corp., 2006 WI 91, ¶33,
293 Wis. 2d 38, 717 N.W.2d 21.
23
No. 2018AP2104
¶33 At no point does Stephenson grapple with these
factors. In particular, he never asserts why the current
standard is "unworkable" or "unsound," nor does he identify any
newly-ascertained facts about Chapter 980 proceedings or
inconsistencies in the law that would justify overturning
Curiel. At best, Stephenson's argument impliedly invokes the
first factor, based upon the state legislature's repeal of Wis.
Stat. § 980.05(1m) years after the Curiel decision. As
previously explained, this statutory change did nothing to
undermine the rationale underlying the Curiel decision. Chapter
980 proceedings have much in common with criminal actions,
warranting analogous standards of review. While this court is
not "barred from pursuing a sound and prudent course for the
sake of upholding its prior precedent," Stephenson's failure to
even mention the doctrine of stare decisis while urging us to
upend well-established precedent fatally foils his argument.
Johnson Controls, 264 Wis. 2d 60, ¶96.
C. The Evidence is Sufficient.
¶34 Stephenson further argues that, even without mandating
expert testimony for the third element or overturning Curiel,
the circuit court nonetheless lacked sufficient evidence to deny
his motion for postcommitment relief or to find that he remained
a sexually violent person.13 Again, we are not persuaded.
Stephenson concedes that he has been previously convicted
13
of a sexually violent offense and that he suffers from a mental
disorder that predisposes him to acts of sexual violence.
24
No. 2018AP2104
¶35 Applying the Curiel standard, we will not reverse an
order denying a discharge motion based on insufficient evidence
"unless the evidence, viewed most favorably to the state and
[the commitment], is so insufficient in probative value and
force that it can be said as a matter of law that no trier of
fact, acting reasonably, could have found" the person sexually
violent by "clear and convincing evidence" at a discharge trial.
See Curiel, 227 Wis. 2d 389, ¶52 (citation omitted). The court
of appeals correctly concluded that the evidence was more than
sufficient to uphold the circuit court's denial of Stephenson's
petition for discharge.
¶36 The facts of this case disproportionately weigh
against Stephenson. First, Stephenson's criminal history proves
his penchant for re-offending in a sexually violent manner.
From 2000 to 2007, Stephenson was convicted six times for
violent sexual behavior against children. Some of these crimes
occurred while he was on probation for past offenses.
Furthermore, Stephenson's comments and conduct during his time
in the treatment facility indicate he is still unable to control
his behavior. Stephenson repeatedly violated the rules of the
treatment facility and, at least on one occasion, attempted to
obtain sexually-suggestive clothing that he knew was banned.
When confronted with these indiscretions, Stephenson proceeded
to concoct lies and exhibit anti-social behavior.
¶37 Moreover, the results of Stephenson's non-suppressed
penile plethysmograph test also support the circuit court's
finding. As Kolbeck testified, Stephenson became aroused by
25
No. 2018AP2104
stimuli "depicting teenager coercive interactions" as well as by
graphic depictions of "victims crying or in some form of
suffering." In addition, Stephenson scored highly on measures
of psychopathy, reflecting his propensity for exhibiting shallow
affect, grandiosity, and manipulation. These psychometric
scores correspond to Kolbeck's personal evaluations of
Stephenson, which show that he continually exhibited traits of
impulsivity, irritability, deceitfulness, and lack of remorse.
A reasonable factfinder could conclude, as did the circuit
court, that Stephenson would, more likely than not, act upon his
sexual urges if released into the community.
¶38 Perhaps most importantly, the circuit court afforded
appropriate weight to the results generated by Kolbeck's
actuarial instruments, in light of all of the evidence
presented. While Kolbeck's conclusion that Stephenson posed a
41 percent risk of being arrested and convicted of a crime of
sexual violence falls below the "more likely than not"
threshold, the statutory inquiry examines the likelihood
Stephenson would commit future acts of sexual violence,
irrespective of whether he might be apprehended for, or
convicted of, such crimes. Taking into account the evidence as
a whole, a reasonable factfinder could conclude that Stephenson
met the "more likely than not" threshold for future
dangerousness. Given that Stephenson continually exhibited
traits of manipulation and deceit, a factfinder could reasonably
conclude that Stephenson's actual risk of committing future acts
26
No. 2018AP2104
of sexual violence, while nonetheless evading the law, was "more
likely than not."
¶39 Lastly, Kolbeck's testimony was sufficient to
establish the nexus between Stephenson's mental disorders and
his potential for recidivism. In particular, although
Stephenson's Alcohol Abuse Disorder was then in remission given
his confinement, Stephenson expressed a willingness to engage in
"social drinking" if released into the community——a troubling
statement for an individual who has "never committed a [sexual
assault] sober." Moreover, Kolbeck stated that Stephenson's
personality disorder "has a direct causal connection to [his]
sexually violent behaviors in the community"——an equally
disconcerting observation considering that Stephenson's anti-
social traits were "still active." Given these facts, a
reasonable factfinder could conclude, as the circuit court did,
that Stephenson would likely exhibit behaviors corresponding to
these disorders and thereby pose a danger to the community.
IV. CONCLUSION
¶40 We conclude the court of appeals did not err in
upholding the circuit court's order denying Stephenson's
petition for discharge from his Chapter 980 commitment. We
reject all three of Stephenson's arguments. First, we hold the
State is not required to present expert testimony to prove that
a person is dangerous because his mental disorder makes it more
likely than not that he will re-offend in a sexually violent
manner. The statutes do not require expert testimony on that
element and we decline to create a rule not set forth in the
27
No. 2018AP2104
text. Second, we reaffirm the sufficiency-of-the evidence test
articulated in Curiel as the appropriate standard of review for
challenges to a Chapter 980 commitment. Finally, our review of
the record reveals overwhelming evidence from which a reasonable
factfinder could have found that Stephenson continues to satisfy
the definition of a "sexually violent person." Accordingly, we
affirm the decision of the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
28
No. 2018AP2104.awb
¶41 ANN WALSH BRADLEY, J. (dissenting). In its
application, Chapter 980 of the Wisconsin Statutes rides on the
cusp between constitutionality and unconstitutionality.
Although civil in nature, it gives the government power to lock
up individuals indefinitely——including for life——even though
they have already completed their criminal sentence. All
recognize that a significant liberty interest is at stake here.
¶42 In order to ensure that Chapter 980 falls on the
constitutional side of the divide, enhanced procedural
safeguards are afforded to respondents. Rather than applying
the rules that normally attend a civil law proceeding, some
criminal law procedural safeguards are instead applied to
provide added protections in order to survive constitutional
challenges.
¶43 The majority opinion undermines this delicate balance
in two ways. First, it erroneously determines that expert
testimony is not required to establish the causal link that Wis.
Stat. § 980.01(7) requires: that the individual is more likely
than not to engage in future acts of sexual violence because of
the diagnosed mental disorder. In reaching its erroneous
determination, the majority either ignores or misconstrues
precedent related to the necessity of expert testimony and
effectively collapses the elements for determining a sexually
violent person from three to two.
¶44 Additionally, the majority errs by perpetuating the
Curiel1 standard of review framework. Under the guise of
State v. Curiel, 227 Wis. 2d 389, 416-417, 597 N.W.2d 697
1
(1999).
1
No. 2018AP2104.awb
acknowledging the need for enhanced procedural safeguards
available to Chapter 980 respondents, the majority actually
leaves respondents with diminished protection. The standard of
review that it applies saddles the respondent with a nearly
insurmountable burden to overcome when reviewing the sufficiency
of the evidence.
¶45 By examining the causal requirement set forth in Wis.
Stat. § 980.01(7), and in light of what United States Supreme
Court precedent demands as well as what our Wisconsin precedent
and statutes require, I arrive at a conclusion contrary to that
of the majority. I determine that due process demands, and our
precedent and statutes require, that expert testimony be
presented in order to establish the causal link between an
individual's mental disorder and the risk that the individual is
more likely than not to engage in future acts of sexual
violence.
¶46 I further determine that when reviewing the
sufficiency of the evidence on the issue of future
dangerousness, appellate courts must apply a two-step standard
of review that is applied in other cases of constitutional fact.
When applying this framework, questions of historical fact
should be accorded deference, while the question of whether the
facts meet a required legal standard presents a question of law
that is subject to independent appellate review. I see no
justification (and the majority offers none) for applying a more
onerous standard of review in Chapter 980 civil commitments than
is applied in Chapter 51 civil commitments, which adhere to the
2
No. 2018AP2104.awb
two-step constitutional fact standard of review. See Langlade
Cnty. v. D.J.W., 2020 WI 41, ¶47, 391 Wis. 2d 231, 942 N.W.2d
277. In fact, any textual justification for reviewing Chapter
980 cases under a different standard than Chapter 51 cases
disappeared with the repeal of Wis. Stat. § 980.05(1m).
¶47 Accordingly, I respectfully dissent.
I
¶48 Wisconsin Stat. § 980.01(7) contains three elements
that the State must prove in order to continue Stephenson's
Chapter 980 commitment: (1) that he has been convicted of a
sexually violent offense; (2) that he suffers from a mental
disorder; and (3) that he is dangerous because his mental
disorder makes it more likely than not that he will engage in
future acts of sexual violence. § 980.01(7). At issue here is
whether expert testimony is necessary for the State to prove the
required causal link set forth in the third element.
¶49 At the discharge trial, both the State's expert and
Stephenson's expert agreed that Stephenson did not meet the
third element for continued commitment as a sexually violent
person. The State introduced testimony from Dr. Don Kolbeck, a
psychologist, to establish the second element necessary to
commit Stephenson: that Stephenson suffers from a mental
disorder. See Wis. Stat. § 980.01(7). Dr. Kolbeck testified
that he had diagnosed Stephenson with two qualifying mental
disorders: (1) Other Specified Personality Disorder, with
antisocial and borderline features; and (2) Alcohol Abuse
Disorder. Majority op., ¶8.
3
No. 2018AP2104.awb
¶50 In reaching his opinion that Stephenson did not meet
the criteria for the third element necessary to sustain his
continued commitment, Dr. Kolbeck discussed Stephenson's
progress during his course of treatment along with his
performance on two actuarial risk instruments: the Static-99R
and the Violence Risk Scale-Sex Offense Version (VRS-SO).2 The
test results indicated that Stephenson had a 41 percent
probability of sexual re-offense. Id., ¶13. When called upon
to give an opinion regarding the necessary third element, Dr.
Kolbeck concluded based on Stephenson's progress in treatment
and test results that he did not satisfy the more likely than
not standard for continued commitment. Id.; see Wis. Stat.
§ 980.01(1m) (defining "likely" as "more likely than not").
¶51 Stephenson introduced his own expert witness, Dr.
Courtney Endres, who disagreed with the State's expert as to the
second element and concluded that Stephenson "no longer [met]
the criteria for a mental disorder as defined under Wisconsin
Chapter 980." Majority op., ¶14. However, she agreed with Dr.
Kolbeck that Stephenson was unlikely to sexually re-offend and
thus no longer met the statutory criteria for commitment as a
sexually violent person. Id. Endres used the same risk
assessment instruments employed by Dr. Kolbeck and determined
that Stephenson evinced a 10 percent risk of re-offense over
Dr. Kolbeck testified that the VRS-SO provides the best
2
framework for assessing dynamic risk among the available tools.
Furthermore, he explained that it provides a meaningful
quantification of risk reduction as a result of treatment
progress.
4
No. 2018AP2104.awb
five years and 17 percent risk over ten years. Id. Despite
both experts testifying that Stephenson did not meet the third
element necessary for recommitment, the circuit court denied the
discharge petition. Id., ¶16.
II
¶52 With the relevant testimony in hand, I begin with an
examination of the of language of Wis. Stat. § 980.01(7). It
provides: "'Sexually violent person' means a person who has
been convicted of a sexually violent offense . . . , 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."
¶53 Importantly, the language of the statute requires that
there must be a causal nexus between the diagnosed mental
disorder and the likelihood of sexual re-offense. That is, in
order to be a "sexually violent person" within the meaning of
Wis. Stat. § 980.01(7), individuals must be more likely than not
to engage in future acts of sexual violence because they suffer
from a particular mental disorder. See Wis. Stat. § 980.01(1m).
¶54 Thus, the issue presented here is whether the answers
to the following questions are within the common knowledge of
the average lay person or do they require some technical
knowledge or expertise in order to establish the third element
necessary for Stephenson's continued commitment. The questions
are:
Does the mental illness ("other specified personality
disorder, with antisocial and borderline features") cause
5
No. 2018AP2104.awb
Stephenson to be more likely than not to engage in future
acts of sexual violence?
Or, in the alternative, does the mental illness ("alcohol
abuse disorder") cause Stephenson to be more likely than
not to engage in future acts of sexual violence?
¶55 Although we engage in pages of analysis and legal
exegesis, the issue presented is really quite simply addressed.
Yes, expert testimony is required. Why? Because the answers
call for technical knowledge and expertise beyond that of the
average lay person. Such a conclusion is supported by the plain
language of Wis. Stat. § 907.02(1). This subsection states:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify
thereto in the form of an opinion or otherwise, if the
testimony is based upon sufficient facts or data, the
testimony is the product of reliable principles and
methods, and the witness has applied the principles
and methods reliably to the facts of the case.
¶56 Wisconsin courts have long held that expert testimony
is required "concerning matters involving special knowledge or
skill or experience upon subjects which are not within the realm
of the ordinary experience of mankind, and which require special
learning, study and experience." Cramer v. Theda Clark Mem'l
Hosp., 45 Wis. 2d 147, 150, 172 N.W.2d 427 (1969). This case
presents such a matter.
¶57 The testimony at issue in this case involves the
interpretation of diagnostic tests and the application of data,
6
No. 2018AP2104.awb
principles, and methods to the facts of the case. Ultimately,
it requires a determination of whether a specific mental illness
will more likely than not cause an individual to engage in
future acts of sexual violence. This is hardly the daily fare
of the average lay person. Expert testimony on these subjects
is required, as they concern areas of specialized information
outside the realm of ordinary knowledge.
¶58 Such a conclusion is supported by instructions on this
court's website when it advises litigants that even in small
claims cases where special knowledge or skill is involved,
expert testimony is required to prove the case. For example, we
instruct litigants that in a small claims motor vehicle faulty
repair case that a "full-time mechanic or a repair person" may
be sufficient to qualify as the expert and that "[h]aving the
expert witness testify in person is almost always necessary"
(emphasis added). "Basic Guide to Wisconsin Small Claims
Actions", https://www.wicourts.gov/formdisplay/SC-
6000V_instructions.pdf?formNumber=SC-
6000V&formType=Instructions&formatId=2&language=en, at 10 (Nov.
2019).
¶59 For heaven's sake, if this court acknowledges the need
for an expert to testify even in a small claims motor vehicle
faulty repair case, then surely an expert is needed to opine on
the above technical question. Such an inquiry is firmly within
the realm of expert testimony.
¶60 Nevertheless, the State advances that expert testimony
is not required to prove that a person's mental disorder will
7
No. 2018AP2104.awb
more likely than not cause the person to engage in future acts
of sexual violence. According to the State, the common
understanding of the jury is sufficient to evaluate the required
causal link between the mental disorder and the likelihood of
future sexually violent acts. The majority follows suit.
¶61 In the majority's view, by testifying to the second
element, the presence of a mental disorder, an expert "lays the
foundation for any forthcoming evidence pertinent to the third
element." Majority op., ¶29. In essence, the majority's
interpretation of Wis. Stat. § 980.01(7) erroneously collapses
the required statutory elements from three to two and thereby
renders the third element mere surplusage. This is quite a
leap. Our case law is clear that, "[s]tatutory language is read
where possible to give reasonable effect to every word, in order
to avoid surplusage." State ex rel. Kalal v. Cir. Ct. for Dane
Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110.
¶62 Compounding its error in failing to require expert
testimony on the third element, the majority conflates a
predisposition for acts of sexual violence with a likelihood
that such acts will be committed. In the majority's view, when
an expert testifies to the presence of a qualifying mental
disorder, they additionally lay the foundation for the third
element, whether an individual has a likelihood of sexually
violent re-offense. Majority op., ¶28.
¶63 But the majority fails to recognize the distinction
between predisposition and probability. Although a respondent
may have a predisposition toward acts of sexual violence, the
8
No. 2018AP2104.awb
third element of the Chapter 980 analysis is concerned with the
probability that sexually violent conduct will occur in the
future.
¶64 By conflating the second element of predisposition
with the third element of probability, the majority risks
raising due process concerns. The majority's belief that a lay
factfinder can independently discern the required causal link is
little more than a commentary on the ability of lay factfinders
to determine general dangerousness. While lay factfinders may
be competent to examine varied facts to assess general
dangerousness, that is not at issue in this case.
¶65 Chapter 980 cases present an inquiry different than
the general criminal law inquiry of future dangerousness and due
process concerns place different demands. In Chapter 980 cases,
"due process requires that the nature and duration of commitment
bear some reasonable relation to the purpose for which the
individual is committed." State v. Post, 197 Wis. 2d 279, 313,
541 N.W.2d 115 (1995) (citation omitted). Chapter 980 passes
due process muster specifically because it requires a nexus
between a respondent's mental disorder and the probability of
future dangerousness. State v. Laxton, 2002 WI 82, ¶22,
254 Wis. 2d 185, 647 N.W.2d 784. In other words, the mental
disorder must make the individual dangerous in a specific way as
opposed to the general dangerousness that accompanies any
analysis of potential recidivism. See Kansas v. Hendricks, 521
U.S. 346, 358 (1997). Such an inquiry mandates special
expertise.
9
No. 2018AP2104.awb
¶66 Stephenson cites also to two Wisconsin cases for the
proposition that expert testimony must be presented when making
determinations about probability of sexually violent re-offense.
See Wal-Mart Stores, Inc. v. LIRC, 2000 WI App 272, 240 Wis. 2d
209, 621 N.W.2d 633; Brown Cnty. Human Servs. v. B.P., 2019 WI
App 18, 386 Wis. 2d 557, 927 N.W.2d 560. In both cases, the
courts determined that expert testimony was needed to establish
the causal link between an individual's mental disorder and the
conduct at issue.
¶67 First, in Wal-Mart, an employee asserted that his
termination was improperly based on conduct resulting from his
mental disorder. Wal-Mart, 240 Wis. 2d 209, ¶25. The employee
suffered from obsessive compulsive disorder (OCD), the symptoms
of which include the high reactive behaviors that occasioned the
termination. Id., ¶2. At issue in the case was whether expert
testimony was required to establish the causal link between the
employee's mental disorder and the conduct for which he was
fired. Id., ¶11.
¶68 The court determined that expert testimony was indeed
required to establish that conduct which formed the basis for
the employment termination was caused by the employee's
disability. Id., ¶¶16-17. Additionally, the court noted that,
"[i]nferring the required causal link from the evidence in the
present record, without expert testimony on the issue, is
speculation, not the drawing of a reasonable inference to which
we must defer." Id., ¶25.
10
 No. 2018AP2104.awb
¶69 Second, B.P. involved a termination of parental rights
due to abandonment of a child. B.P., 386 Wis. 2d 557, ¶2. B.P.
raised a good cause defense to allegations that he had not
visited or communicated with his child for a six-month period by
claiming that his mental health diagnoses caused him to do so.
Id., ¶43. The court concluded that B.P. needed expert testimony
to relate his factual assertions to his good cause defense
because making such a causal link was outside of the ordinary
experience of humankind. Id., ¶¶48-49. Thus, in both Wal-Mart
and B.P., the court reasoned that the establishment of a causal
nexus between their conduct and a mental illness required the
submission of expert testimony.
¶70 The majority attempts to distinguish these cases,
contending that Stephenson's case is about future actions, not
past ones. Majority op., ¶25. True enough, but why does this
matter? If expert testimony is needed to look at a fully
developed fact record and make causal links with the benefit of
20/20 hindsight, then surely no less can be demanded when the
trier of fact looks forward on the same basis.
III
¶71 The majority errs next in its discussion of Curiel and
the sufficiency of the evidence standard in Chapter 980 cases.
It perpetuates the Curiel criminal standard of review under
which appellate courts review Chapter 980 cases by asking
whether, "the evidence, when viewed most favorably to the state
and [the commitment], is so insufficient in probative value and
force that it can be said as a matter of law that no trier of
11
No. 2018AP2104.awb
fact . . . could have found [the person sexually violent] beyond
a reasonable doubt . . . ." Majority op., ¶30; see State v.
Curiel, 227 Wis. 2d 389, 416-17, 597 N.W.2d 697 (1999).
¶72 On review, Curiel advocated a two-step constitutional
fact standard of review with facts being reviewed under a
deferential standard and the application of facts to the legal
standard being reviewed independently. Opposing this framework,
the State asserted that the criminal standard of review should
be applied.
¶73 The Curiel court applied the criminal standard of
review without engaging in much analysis. It decried that
although each party offered a standard of review, neither party
gave any rationale to support its position: "[a]side from
describing these competing standards of review, neither party
provides reasons why one or the other standard of review is
appropriate for ch. 980 proceedings." Curiel, 227 Wis. 2d at
416-17. The Curiel court opted for the criminal law standard of
review. At the time, the Curiel court's approach may have found
support in Wis. Stat. § 980.05(1m) (1995-96) which provided
that, "[all] constitutional rights available to a defendant in a
criminal proceeding are available to the [individual subject to
commitment proceedings]." Majority op., ¶31 n.12. However,
Wis. Stat. § 980.05(1m) was repealed in 2005. See 2005 Wis. Act
434, § 101. Thus, any textual support for applying a more
onerous standard of review in Chapter 980 cases than that
applied in Chapter 51 cases disappeared with the repeal of the
statute.
12
No. 2018AP2104.awb
¶74 The majority relies solely on Curiel to support its
conclusion. It opines that because Chapter 980 affords enhanced
procedural safeguards similar to those found in criminal
prosecutions, such as the right to counsel and the right to
remain silent, it follows that respondents in Chapter 980 cases
should be subject to the criminal standard of review. See
Majority op., ¶31. Therein lies the Achilles heel of the
majority's analysis.
¶75 Rather than providing more protection to the Chapter
980 respondent in order to successfully straddle the
constitutional divide, the majority actually provides less. The
criminal standard of review is more onerous than a
constitutional fact standard of review. It saddles the
respondent in a Chapter 980 commitment with a nearly
insurmountable burden to overcome when reviewing the sufficiency
of the evidence.
¶76 Adopting the two-part standard of review in Chapter
980 cases is consistent with the way this court reviews civil
commitment proceedings under Wis. Stat. § 51.20. Both focus on
a determination of dangerousness. In Langlade County v. D.J.W.,
this court concluded that "[a] determination of dangerousness is
not a factual determination, but a legal one based on underlying
facts." 391 Wis. 2d 231, ¶47. We concluded that the court of
appeals erred for doing the very thing that the majority does
today: "applying the standard of review for findings of fact to
a legal determination . . . ." Id.
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¶77 There is no reason to apply different standards of
review to assessments of the sufficiency of evidence of
dangerousness in Chapter 51 civil commitment and Chapter 980
civil proceedings. In both, the commitment implicates
fundamental due process rights because both potentially result
in a significant deprivation of liberty. Likely the majority
proffers no reason justifying such disparate treatment because
no reasonable explanation can be found.
¶78 I conclude that evidence supporting a finding of
dangerousness under Chapter 980 should be reviewed using the
constitutional fact standard. As explained above, due process
concerns circumscribe commitments under Chapter 980 to persons
who have a mental disorder that more likely than not will cause
them to commit future acts of sexual violence.
¶79 The Chapter 980 context is best served by adopting
this two-part standard with facts being reviewed under the
clearly erroneous standard and the application of those facts to
the legal standard being reviewed independently. As we
explained in State v. Phillips, such an approach serves the
interests of greater uniformity of application and clarity in
the legal standard while taking into account the significant
liberty interests at stake in these proceedings:
[T]he principal reason for independent appellate
review of matters of constitutional fact is to provide
uniformity in constitutional decision-making. It is
the duty of the reviewing court to independently apply
constitutional principles to the facts as found by the
circuit court because the scope of constitutional
protections, representing the basic value commitments
of our society, cannot vary from trial court to trial
court, or from jury to jury. In applying the skeletal
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No. 2018AP2104.awb
constitutional rule, appellate courts flesh out the
rule and provide guidance to litigants, lawyers, and
trial and appellate courts.
State v. Phillips, 218 Wis. 2d 180, 194, 577 N.W.2d 794 (1998)
(internal citations and quotations omitted).
¶80 In sum, for the reasons set forth above, I determine
that expert testimony is required to establish the causal link
between an individual's mental disorder and the risk that the
individual is more likely than not to engage in future acts of
sexual violence. Because no expert testimony was presented at
Stephenson's discharge trial to support this requirement, I
conclude that the State failed to meet its burden of proof.
Additionally, I determine that the two-step constitutional fact
standard of review should be applied to sufficiency of evidence
challenges in Chapter 980 proceedings.
¶81 Accordingly, I respectfully dissent.
¶82 I am authorized to state that Justice REBECCA FRANK
DALLET joins this dissent.
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