State v. Ronald Knipfer

2015 WI 3
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP225 & 2013AP578
COMPLETE TITLE: In re the commitment of Michael Alger:
State of Wisconsin,
Petitioner-Respondent,
v.
Michael Alger,
Respondent-Appellant-Petitioner.
------------------------------------------------
In re the commitment of Ronald Knipfer:
State of Wisconsin,
Petitioner-Respondent,
v.
Ronald Knipfer,
Respondent-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 352 Wis. 2d 145, 841 N.W.2d 329)
(Ct. App. 2013 – Published)
PDC No.: 2013 WI App 148
---------------------------------------------
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 352 Wis. 2d 563, 842 N.W.2d 526)
(Ct. App. 2014 – Published)
PDC No.: 2014 WI App 9
OPINION FILED: January 20, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 2, 2014
SOURCE OF APPEAL:
COURT: Circuit/Circuit
COUNTY: Outagamie/Dane
JUDGE: John A. Des Jardins/Nicholas McNamara
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
filed.)
NOT PARTICIPATING:
ATTORNEYS:
For respondent-appellant-petitioner Michael Alger, there
were briefs by Steven D. Phillips, assistant state public
defender. Oral argument by Steven D. Phillips.
For respondent-appellant-petitioner Ronald Knipfer, there
were briefs by Donald T. Lang, assistant state public defender,
and oral argument by Donald T. Lang.
For the petitioner-respondent in both cases, the cause was
argued by Nancy A. Noet, assistant attorney general, with whom
on the briefs was J.B. Van Hollen, attorney general.
2
2015 WI 3
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 2013AP225 & 2013AP578
(L.C. Nos. 2004CV654 & 2002CI3)
STATE OF WISCONSIN : IN SUPREME COURT
In re the commitment of Michael Alger:
State of Wisconsin,
FILED
Petitioner-Respondent,
JAN 20, 2015
v.
Diane M. Fremgen
Michael Alger, Clerk of Supreme Court
Respondent-Appellant-Petitioner.
In re the commitment of Ronald Knipfer:
State of Wisconsin,
Petitioner-Respondent,
v.
Ronald Knipfer,
Respondent-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of
two published decisions of the court of appeals, State v. Alger,
Nos. 2013AP225 & 2013AP578
2013 WI App 148, 352 Wis. 2d 145, 841 N.W.2d 329, and State v.
Knipfer, 2014 WI App 9, 352 Wis. 2d 563, 842 N.W.2d 526.1 In
Alger the court of appeals affirmed the Outagamie County Circuit
Court's2 order denying Michael Alger's ("Alger") petition for
discharge from involuntary commitment under Wis. Stat. ch. 980
as a sexually violent person, as defined in Wis. Stat.
§ 908.01(7) (2011-12).3 In Knipfer the court of appeals affirmed
the Dane County Circuit Court's4 order denying Ronald Knipfer's
("Knipfer") petition for discharge from involuntary commitment
under Wis. Stat. ch. 980 as a sexually violent person.
¶2 Both Alger and Knipfer argue that the circuit courts
erred by refusing to apply the Daubert5 evidentiary standard
1
We consolidated these two cases after oral argument
because they present similar issues and facts.
2
The Honorable John A. Des Jardins presided.
3
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated. Wisconsin Stat.
§ 980.01(7) provides:
"Sexually violent person" means 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.
4
The Honorable Nicholas McNamara presided.
5
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597
(1993) (holding that, under the Federal Rules of Evidence,
expert testimony must be reliable and relevant to be
admissible).
2
Nos. 2013AP225 & 2013AP578
under Wis. Stat. § 907.02(1)6 to the State's expert witnesses who
testified in their Chapter 980 discharge petition trials. The
legislature provided that the Daubert standard, which requires
that particularized standards be met before an expert's
testimony can be admitted, would "first apply to actions or
special proceedings that are commenced on the effective date of
this subsection [February 1, 2011]." 2011 Wis. Act 2, § 45(5).7
Both Alger and Knipfer argue that the Daubert evidentiary
standard should have applied to the State's expert testimony at
6
Wisconsin Stat. § 907.02(1) provides:
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.
Wisconsin Stat. § 907.02(1) was adopted by 2011 Wis. Act 2,
§ 34M.
7
2011 Wis. Act 2, § 45(5) provides:
CIVIL ACTIONS. The treatment of sections
230.85(3)(b), 802.10(7), 809.103(2)(a), 814.04
(intro.), 814.29(3)(a), 895.043(6), 895.044,
895.045(3), 895.046, 895.047, and 907.03 of the
statutes, the renumbering and amendment of sections
907.01 and 907.02 of the statutes, and the creation of
sections 907.01(3) and 907.02(2) of the statutes first
apply to actions or special proceedings that are
commenced on the effective date of this subsection.
The effective date was the following day, February 1, 2011. See
Wis. Stat. § 991.11.
3
Nos. 2013AP225 & 2013AP578
trial on their Chapter 980 discharge petitions because the
petitions commenced "actions" or "special proceedings" after the
Daubert standard's first date of applicability.8 Alger and
Knipfer further argue that their constitutional right to equal
protection was violated when the Daubert evidentiary standard
did not apply to and thus bar the State's expert testimony in
their Chapter 980 discharge petition trials.9 Knipfer also
argues that his constitutional right to due process was violated
because the circuit court did not apply the Daubert standard to
the State's expert testimony in his Chapter 980 discharge
petition trial.10
8
The court of appeals held that Alger conceded that his
discharge petition did not commence a special proceeding. State
v. Alger, 2013 WI App 148, ¶11, 352 Wis. 2d 145, 841 N.W.2d 329.
Knipfer's argument also centers on whether the discharge
petition commenced an "action." Nevertheless, we will address
whether Alger's and Knipfer's Chapter 980 discharge petitions
commenced "special proceedings."
9
Although Alger and Knipfer seem to argue that the mere
failure to apply the Daubert evidentiary standard was
unconstitutional, their argument seems to hinge on their view
that the State's expert testimony would have been inadmissible
under the Daubert standard.
10
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. Article
I, Section 1 of the Wisconsin Constitution provides: "All people
are born equally free and independent, and have certain inherent
rights; among these are life, liberty and the pursuit of
happiness; to secure these rights, governments are instituted,
deriving their just powers from the consent of the governed."
This court has held that the Wisconsin Constitution's due
process clause is the substantial equivalent of the federal due
(continued)
4
Nos. 2013AP225 & 2013AP578
¶3 The State argues that the Daubert evidentiary standard
does not apply to Alger's and Knipfer's petitions to discharge
their Wis. Stat. ch. 980 commitments. The State contends that
those discharge petitions did not commence "actions" or "special
proceedings." Instead, the State argues, those discharge
petitions are part of the underlying Chapter 980 commitments,
which commenced several years before the Daubert standard's
first date of applicability. The State also argues that the
legislature had a rational basis for not applying the Daubert
standard to the State's expert witnesses in Alger's and
Knipfer's Chapter 980 discharge petition trials such that no
violation of equal protection or due process occurred.
¶4 We conclude that the Daubert evidentiary standard
under Wis. Stat. § 907.02(1) does not apply to expert testimony
in Alger's and Knipfer's Wis. Stat. ch. 980 discharge petition
trials because their discharge petitions did not "commence"
"actions" or "special proceedings." The Daubert standard
applies to "actions" or "special proceedings" commenced on or
after February 1, 2011. The original Chapter 980 commitments
here began several years before the Daubert standard was
adopted, and although Alger's and Knipfer's petitions seek
relief from those original commitments, those filings do not
constitute the "commencement" of an "action" or a "special
process clause. State v. West, 2011 WI 83, ¶5 n.2, 336
Wis. 2d 578, 800 N.W.2d 929 (citation omitted). This court's
interpretation is the same for the state and federal equal
protection clauses. Id. (citation omitted).
5
Nos. 2013AP225 & 2013AP578
proceeding." We also conclude that because the legislature had
a rational basis for not applying the Daubert evidentiary
standard to expert testimony in post-Daubert Chapter 980
discharge petitions that seek relief from pre-Daubert Chapter
980 commitments, no violation of equal protection or due process
occurred.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. State v. Alger
¶5 It is undisputed that Alger was deemed to be a
sexually violent person and was involuntarily committed under
Wis. Stat. ch. 980 on May 10, 2005. He has been under Chapter
980 commitment ever since.
¶6 In the six years between his Chapter 980 commitment
and Wisconsin's adoption of the Daubert evidentiary standard,
Alger filed one petition for discharge and much other
correspondence with the committing court. The Daubert standard
was not a Wisconsin evidentiary standard during any prior
proceeding in Alger's Chapter 980 commitment.
¶7 On April 21, 2011, about two months after Wisconsin
adopted the Daubert evidentiary standard, Alger filed a petition
for discharge from his Chapter 980 commitment. The petition
relied on Alger's expert's opinion that Alger was no longer a
sexually violent person. The State's expert opined that Alger
was still a sexually violent person and should not be discharged
from Chapter 980 commitment.
¶8 On July 29, 2011, Alger filed a motion in limine to
exclude the State's expert testimony at the discharge petition
6
Nos. 2013AP225 & 2013AP578
trial on the ground that the testimony did not meet the newly
adopted Daubert evidentiary standard. The State responded and
argued that the Daubert standard did not apply because Alger's
underlying commitment began before the Daubert standard was
first applicable, and that the discharge petition was not a new
"action" or "special proceeding." On November 18, 2011, Alger
filed a supplemental memorandum in support of his motion in
limine in which he also argued that his constitutional right to
equal protection would be violated if the Daubert standard did
not apply to the State's expert testimony in his Chapter 980
discharge petition trial. On November 23, 2011, Alger filed
another Chapter 980 discharge petition and that petition was
merged with his previously filed discharge petition.
¶9 On January 30, 2012, the circuit court denied Alger's
motion in limine. The court concluded that the Daubert
evidentiary standard did not apply to Alger's Chapter 980
discharge petition. The court reasoned that Alger's discharge
petition, although filed after the Daubert standard was first
applicable, was part of the underlying Chapter 980 commitment
proceeding that began when the State filed "[a] petition for a
commitment trial under [Wis. Stat. §] 980.02" several years
before the Daubert standard was even adopted. The court also
concluded that the failure to apply the Daubert standard to
Alger's Chapter 980 discharge petition did not violate equal
protection.
¶10 On August 20, 2012, Alger's Chapter 980 discharge
petition was tried before a six-person jury. Two expert
7
Nos. 2013AP225 & 2013AP578
witnesses testified on behalf of Alger and two experts testified
on behalf of the State. The jury found that Alger still met the
criteria for Chapter 980 commitment. On August 22, 2012, the
court entered an order denying Alger's Chapter 980 discharge
petition.
¶11 On November 19, 2013, the court of appeals affirmed
the circuit court's order denying Alger's Chapter 980 discharge
petition.
¶12 On December 18, 2013, Alger petitioned this court for
review, which we granted on May 23, 2014.
B. State v. Knipfer
¶13 It is undisputed that Knipfer was deemed to be a
sexually violent person and was involuntarily committed under
Wis. Stat. ch. 980 on October 1, 2003. He has been under
Chapter 980 commitment ever since.
¶14 In the seven and a half years between his Chapter 980
commitment and Wisconsin's adoption of the Daubert evidentiary
standard, Knipfer filed three petitions for discharge and much
other correspondence with the committing court. The Daubert
standard was not a Wisconsin evidentiary standard during any
prior proceeding in Knipfer's Chapter 980 commitment.
¶15 On May 11, 2012, more than one year after Wisconsin
adopted the Daubert evidentiary standard, Knipfer filed a
petition for discharge from his involuntary Chapter 980
commitment. The petition relied on Knipfer's expert's opinion
that Knipfer was no longer a sexually violent person. The
8
Nos. 2013AP225 & 2013AP578
State's expert opined that Knipfer was still a sexually violent
person and should not be discharged from Chapter 980 commitment.
¶16 Knipfer argued that the Daubert evidentiary standard
applied to the State's expert testimony in his Chapter 980
discharge petition trial such that the State's expert would be
precluded from testifying. He also argued that his
constitutional rights to equal protection and due process would
be violated if the Daubert standard did not apply to exclude
that expert testimony.
¶17 The State argued that the Daubert evidentiary standard
did not apply to expert testimony in Knipfer's Chapter 980
discharge petition trial because, like Alger's discharge
petition, Knipfer's discharge petition did not commence a new
"action" or "special proceeding," and Knipfer's rights to equal
protection and due process were not thereby violated.
¶18 On September 14, 2012, the circuit court held a bench
trial on Knipfer's Chapter 980 discharge petition. The court
held that the Daubert evidentiary standard did not apply to the
State's expert testimony in the discharge petition trial because
Knipfer's discharge petition was essentially a motion within the
Chapter 980 commitment action, not a separate action or
proceeding. The court also held that the failure to apply the
Daubert standard to the expert testimony in the discharge
petition trial did not violate Knipfer's equal protection or due
process rights. On September 20, 2012, the court held that
Knipfer still met the criteria for Chapter 980 commitment and
entered an order denying Knipfer's discharge petition.
9
Nos. 2013AP225 & 2013AP578
¶19 On December 23, 2013, the court of appeals affirmed
the circuit court's order denying Knipfer's Chapter 980
discharge petition.
¶20 On January 27, 2014, Knipfer petitioned this court for
review, which we granted on May 23, 2014.
II. ANALYSIS
A. Standard of Review and Principles of
Statutory Interpretation
¶21 The interpretation and application of a statute
present questions of law that this court reviews de novo while
benefitting from the analyses of the court of appeals and
circuit court. State v. Ziegler, 2012 WI 73, ¶37, 342
Wis. 2d 256, 816 N.W.2d 238 (citing Heritage Farms, Inc. v.
Markel Ins. Co., 2012 WI 26, ¶24, 339 Wis. 2d 125, 810
N.W.2d 465). This court begins statutory interpretation with
the language of the statute. State ex rel. Kalal v. Circuit
Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110. "Statutory language is given its common, ordinary,
and accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." Id. We interpret statutory language in
relation to surrounding or closely-related statutes. Id., ¶46.
"Where statutory language is unambiguous, there is no need to
consult extrinsic sources of interpretation, such as legislative
history." Id.
¶22 The constitutionality of a statute is also a question
of law that this court reviews de novo while benefitting from
10
Nos. 2013AP225 & 2013AP578
the analyses of the court of appeals and circuit court. State
v. Smith, 2010 WI 16, ¶8, 323 Wis. 2d 377, 780 N.W.2d 90 (citing
State v. Weidner, 2000 WI 52, ¶7, 235 Wis. 2d 306, 611
N.W.2d 684; State v. Janssen, 219 Wis. 2d 362, 370, 580
N.W.2d 260 (1998)). A statute is presumed constitutional. Id.
(citing Janssen, 219 Wis. 2d at 370). A party challenging a
statute's constitutionality bears a heavy burden to overcome
that presumption. Id. (citing State v. Cole, 2003 WI 112, ¶11,
264 Wis. 2d 520, 665 N.W.2d 328). A party challenging a statute
does not overcome the presumption of constitutionality by
establishing that a statute's constitutionality is doubtful or
that a statute is probably unconstitutional. Id. (citing Cole,
264 Wis. 2d 520, ¶11). "Instead, the party challenging a
statute's constitutionality must 'prove that the statute is
unconstitutional beyond a reasonable doubt.'" Id. (quoting
Cole, 264 Wis. 2d 520, ¶11).
B. Whether the Daubert Evidentiary Standard Applies to Alger's
and Knipfer's Chapter 980 Discharge Petitions
¶23 In short, Alger and Knipfer argue that the Daubert
evidentiary standard applies to the State's expert testimony in
their Chapter 980 discharge petition trials. They contend that
their Chapter 980 discharge petitions "commenced" "actions" or
"special proceedings" after February 1, 2011, the first date of
the Daubert standard's applicability. They argue that the
State's initial petitions for Chapter 980 commitment began
separate actions that concluded when the circuit courts ordered
Alger and Knipfer to be committed in 2005 and 2003,
11
Nos. 2013AP225 & 2013AP578
respectively. Alger and Knipfer reason that the circuit courts'
initial commitment orders were final because they had a right to
appeal from the orders, and a final order "disposes of the
entire matter in litigation as to one or more of the parties."
Wis. Stat. § 808.03(1). They further contend that a committing
court's continuing administrative authority over a Wis. Stat.
ch. 980 commitment does not mean that a discharge petition is
part of the underlying commitment proceeding. They reason that
a committing court generally takes no action with respect to a
Chapter 980 committed person until the person petitions the
court. They assert that Chapter 980 discharge proceedings are
separately governed by their own set of rules and procedures.
Alger and Knipfer also note that a Chapter 980 discharge
petition must allege that the petitioner's condition has changed
since being committed. For these reasons, Alger and Knipfer
assert that the Daubert evidentiary standard should apply to the
State's expert testimony in their Chapter 980 discharge petition
trials despite the fact that it did not apply to the initial
commitment.
¶24 Alger and Knipfer further argue that failing to apply
the Daubert evidentiary standard to their Chapter 980 discharge
petitions at issue results in the pre-Daubert standard applying
to every discharge petition they might file during their present
commitments, even those petitions filed decades after the
12
Nos. 2013AP225 & 2013AP578
Daubert standard was adopted. They contend that the legislature
did not intend that absurd result.11
¶25 The State argues that the Daubert evidentiary standard
does not apply to expert testimony in Alger's and Knipfer's
Chapter 980 discharge petition trials. The State responds that
a Chapter 980 discharge petition does not "commence" an "action"
or a "special proceeding." Instead, according to the State, a
discharge petition seeks relief from a Chapter 980 commitment.
The State asserts that applying the pre-Daubert standard to
Chapter 980 discharge petitions filed years after the Daubert
standard was adopted would not be absurd because when a court
reviews a Chapter 980 discharge petition, it may consider
evidence that was admitted in a commitment hearing or prior
discharge hearing under the pre-Daubert standard. The State
11
Knipfer makes an additional argument that the Daubert
evidentiary standard should apply to expert testimony at his
Chapter 980 discharge petition trial because amendments to
procedural rules generally apply retroactively. E.g., Trinity
Petroleum, Inc. v. Scott Oil Co., 2007 WI 88, ¶40, 302
Wis. 2d 299, 735 N.W.2d 1 ("The general, well-recognized rule in
Wisconsin jurisprudence is that 'if a statute is procedural or
remedial, rather than substantive, the statute is generally
given retroactive application.'") (quoting Gutter v. Seamandel,
103 Wis. 2d 1, 17, 308 N.W.2d 403 (1981)). However, that
general rule is inapplicable if the amendment's text explains
when the new rule first applies. See id., ¶¶34-39. In the
present cases, that general rule is inapplicable because the
legislature explained that the Daubert standard would "first
apply to actions or special proceedings that are commenced on
the effective date of this subsection." 2011 Wis. Act 2,
§ 45(5).
13
Nos. 2013AP225 & 2013AP578
rejects the notion that the pre-Daubert standard was so
deficient that its continued application would be absurd.
¶26 We conclude that the Daubert evidentiary standard
under Wis. Stat. § 907.02(1) does not apply to expert testimony
in Alger's and Knipfer's Chapter 980 discharge petition trials
because their Chapter 980 discharge petitions did not "commence"
"actions" or "special proceedings." Instead, the discharge
petitions are part of the underlying Chapter 980 commitments
that occurred several years before the Daubert standard's
initial applicability on February 1, 2011.
¶27 In analyzing the arguments, we must first define the
relevant words: "commence," "actions," and "special
proceedings."12 In Alger, the court of appeals defined
"commence" as "'begin; start[.]'" Alger, 352 Wis. 2d 145, ¶12
(quoting New Oxford American Dictionary 343 (2001)).
"Accordingly, Wis. Stat. § 907.02(1) first applies to [actions
or special proceedings] begun or started on February 1, 2011."
Id. We agree.
¶28 "'An action is an ordinary proceeding in a court of
justice by which a party prosecutes another for the enforcement
or protection of a right, the redress or prevention of a wrong,
or the punishment of a public offense.'" Ruediger v. Sheedy, 83
Wis. 2d 109, 121, 264 N.W.2d 604 (1978) (quoting State ex rel.
Ashley v. Circuit Court for Milwaukee Cnty., 219 Wis. 38, 43,
12
See supra note 7.
14
Nos. 2013AP225 & 2013AP578
261 N.W. 737 (1935)). The word "action" "refer[s] to an entire
proceeding, not to one or more parts within a proceeding."
State ex rel. Henderson v. Raemisch, 2010 WI App 114, ¶22, 329
Wis. 2d 109, 790 N.W.2d 242. "The word 'action' in the
Wisconsin statutes denotes the entire controversy at issue."
Id., ¶23 (emphasis added) (quoting Gowan v. McClure, 185
Wis. 2d 903, 912, 519 N.W.2d 692 (Ct. App. 1994)) (quotation
marks omitted); see also id. (stating that "action" "refers to
an entire proceeding, lawsuit or controversy"). For example, a
motion to establish paternity is not an action. DiBenedetto v.
Jaskolski, 2003 WI App 70, ¶¶25-26, 261 Wis. 2d 723, 661
N.W.2d 869. Similarly, a probate matter is not an action. See
Estate of Stoeber v. Pierce, 36 Wis. 2d 448, 452, 153 N.W.2d 599
(1967).
¶29 A special proceeding, like an action, is a stand-alone
proceeding that is not part of an existing case. Black's Law
Dictionary 1398 (10th ed. 2014) (A special proceeding is "[a]
proceeding that can be commenced independently of a pending
action and from which a final order may be appealed
immediately."); Wellens v. Kahl Ins. Agency, Inc., 145
Wis. 2d 66, 69, 426 N.W.2d 41 (Ct. App. 1988) ("[A] special
proceeding [is] one occurring entirely outside the underlying
action . . . ."); Ryder v. Soc'y Ins., 211 Wis. 2d 617, 619, 565
N.W.2d 277 (Ct. App. 1997) (citing Black's Law Dictionary 1084
(5th ed. 1979); Voss v. Stoll, 141 Wis. 267, 271, 124 N.W. 89
(1910)) ("Special proceedings [do] not include matters that
[are] incident to an existing action."). Examples of special
15
Nos. 2013AP225 & 2013AP578
proceedings include a stand-alone proceeding for contempt or to
condemn land, Wellens, 145 Wis. 2d at 69; a non-party's motion
to intervene, id.; a voluntary assignment for the benefit of
creditors, Wisconsin Brick & Block Corp. v. Vogel, 54
Wis. 2d 321, 324-25, 195 N.W.2d 664 (1972); and a proceeding to
obtain discovery of books. Ernst v. The Steamer "Brooklyn", 24
Wis. 616, 616-17 (1869). These examples demonstrate how a
special proceeding involves a separate filing outside of an
action.
¶30 By contrast, the following are not deemed to be
special proceedings: a motion for costs and attorney fees,
Ryder, 211 Wis. 2d at 619; a motion to vacate a judgment on the
ground of excusable neglect, Wellens, 145 Wis. 2d at 70; and a
party's motion to make a non-party into a party. State v.
Wisconsin Tel. Co., 134 Wis. 335, 341, 113 N.W. 944 (1907).
Similarly, a motion for postconviction relief "is a part of the
original criminal action," and "is not a separate proceeding."
Wis. Stat. § 974.06(2). All of these examples are neither
actions nor special proceedings but rather, involve a filing
made within an action.
¶31 In light of the foregoing definitions and examples,
Alger's and Knipfer's Chapter 980 discharge petitions do not
"commence" an "action" or a "special proceeding" because the
discharge petitions could not exist without the initial
commitments and are "a part of" the initial commitments. Hence,
even though the requests for discharge are seeking relief from
commitments, the requests are necessarily dependent on and
16
Nos. 2013AP225 & 2013AP578
tethered to the original commitments. A discharge petition does
not "start" or "begin" an "action" or a "special proceeding" but
rather, it is more akin to a motion within an existing matter.
A discharge proceeding is "incident to an existing action" and
does not stand alone or exist "entirely outside the original
action." See Ryder, 211 Wis. 2d at 619; Wellens, 145 Wis. 2d at
69. Instead, Alger's and Knipfer's discharge petitions are a
part of the "entire controversy at issue," the underlying
Chapter 980 commitments. See Henderson, 329 Wis. 2d 109, ¶23.
The analogy between a Chapter 980 discharge petition and a
motion for postconviction relief is particularly apt as each
seeks relief from a final order without directly challenging the
final order. See Wis. Stat. § 974.06(1), (2); Wis. Stat.
§ 980.09(1). A Chapter 980 discharge petition, like a motion
for postconviction relief, does not "commence" an "action" or a
"special proceeding."
¶32 Stated differently, a Chapter 980 discharge petition
is necessarily tied to the underlying petition for commitment
and commitment order in multiple ways. Because a Chapter 980
discharge petition seeks discharge from commitment, a Chapter
980 discharge petition cannot exist unless a person was
committed in a Chapter 980 action. See State v. Arends, 2010 WI
46, ¶15, 325 Wis. 2d 1, 784 N.W.2d 513 ("If the State wishes to
commit a sexually violent offender, it must file a [commitment]
petition . . . ."). A valid Chapter 980 commitment order cannot
otherwise be terminated without a court order discharging that
person from commitment; such discharge orders most often result
17
Nos. 2013AP225 & 2013AP578
from a discharge petition and trial. See Wis. Stat. §§ 980.06,
980.09; Arends, 325 Wis. 2d 1, ¶¶17, 33 n.19. Rather than being
a discrete action or proceeding that ends with a commitment
order, a Chapter 980 commitment action is an ongoing process
that potentially extends far beyond the original commitment
order.
¶33 Further, the Chapter 980 discharge petition process
necessarily relates back to the prior proceedings in the initial
court file. For example, a Chapter 980 discharge petition must
allege facts that suggest that the petitioner's "condition has
changed since the most recent order denying a petition for
discharge after a hearing on the merits, or since the date of
his or her initial commitment order if the person has never
received a hearing on the merits of a discharge petition," such
that he or she is no longer a sexually violent person. Wis.
Stat. § 980.09(1) (2013-14) (emphases added). When reviewing a
Chapter 980 discharge petition, a "court may consider the
record, including evidence introduced at the initial commitment
trial or the most recent trial on a petition for discharge,
[and] any current or past [annual reexamination] reports filed
under s. 980.07 . . . ."13 Wis. Stat. § 980.09(2) (2013-14)
(emphases added).
13
Every 12 months after a person has been committed under
Wis. Stat. ch. 980, the Department of Health Services
("Department") must reexamine the person and make a report of
the reexamination. Wis. Stat. § 980.07(1), (2). During the
annual reexamination, the Department must also make a report on
the person's treatment progress. Wis. Stat. § 980.07(4). The
(continued)
18
Nos. 2013AP225 & 2013AP578
¶34 Moreover, the court that originally committed a person
under Chapter 980 retains administrative authority over that
person during the period of commitment. For example, the
committing court may order the committed person to be reexamined
at any time. Wis. Stat. § 980.07(3). The committing court
receives copies of the Department of Health Services' annual
reexamination report and progress treatment report on the
committed person.14 See Wis. Stat. § 980.07(6)(a) (2013-14).
Every petition for supervised release or discharge must be
submitted to the committing court. Wis. Stat. §§ 980.08(1),
980.09(1). After receiving a petition for supervised release,
the committing court appoints an expert to examine the
petitioner and holds a hearing on the petition. Wis. Stat.
§ 980.08(3)(a), (4)(a) (2013-14). The committing court also
reviews a discharge petition and oversees any necessary
discharge hearing or trial. § 980.09(1), (2), (3). Each of
these proceedings is part and parcel of the initial Chapter 980
action rather than the commencement of an action or a special
proceeding.
¶35 The foregoing discussion demonstrates that a Chapter
980 discharge petition does not "commence" an "action" or a
Department must submit each reexamination report and treatment
progress report to the committing court. Wis. Stat.
§ 980.07(6)(a) (2013-14). The committing court may order a
reexamination at any time while the person is committed.
§ 980.07(3).
14
See supra note 13 for a discussion of these reports.
19
Nos. 2013AP225 & 2013AP578
"special proceeding," but rather, it is more akin to a motion or
petition in an existing action. A Chapter 980 discharge
petition does not seek relief independently of the "entire
controversy" of the underlying commitment. Therefore, a Chapter
980 discharge petition is part of the underlying commitment
action and does not "commence" an "action" or a "special
proceeding." See Henderson, 329 Wis. 2d 109, ¶23 (The word
"action" "refers to an entire proceeding, lawsuit or
controversy."); Black's Law Dictionary 1398 (10th ed. 2014) (A
special proceeding "can be commenced independently of a pending
action . . . ."). Stated differently, a Chapter 980 discharge
petition is neither a separate "action" nor is it a "special
proceeding" because it does not "occur[] entirely outside the
underlying [Chapter 980] action." See Wellens, 145 Wis. 2d at
69.
¶36 We also disagree with Alger and Knipfer that failing
to apply the Daubert evidentiary standard to the State's expert
testimony in their Chapter 980 discharge petition trials is an
absurd result that the legislature did not intend. First, the
plain language of 2011 Wisconsin Act 2, § 45(5) states that the
Daubert standard first applies to "actions" or "special
proceedings" "commenced" on February 1, 2011. Second, the pre-
Daubert standard was not so deficient that its continued
application to Alger's and Knipfer's Chapter 980 discharge
petition trials would be absurd. Alger and Knipfer opine that
the Daubert standard is an entirely new and higher standard for
expert opinions to be admissible. If it is as Alger and Knipfer
20
Nos. 2013AP225 & 2013AP578
suggest applying the Daubert standard could inject significant
confusion and difficulty in review of the original Chapter 980
commitment because it would confound competing standards.
Specifically, the post-Daubert experts would be reviewing, in
part, the pre-Daubert expert opinions to render an opinion as to
whether the committed person's condition has changed such that
he or she is no longer a sexually violent person.
¶37 The reality is that this kind of expert testimony
offered at a Chapter 980 hearing or trial may be admissible
regardless of which standard applies. See Fed. R. Evid. 702
advisory committee's notes (2000 amendments) ("A review of the
caselaw after Daubert shows that the rejection of expert
testimony is the exception rather than the rule. Daubert did
not work a 'seachange over federal evidence law . . . .'")
(quoting United States v. 14.38 Acres of Land Situated in
Leflore Cnty., Miss., 80 F.3d 1074, 1078 (5th Cir. 1996)). For
example, the testimony offered in the cases at issue is from
licensed psychologists who hold doctoral degrees. Even pre-
Daubert, circuit courts served a gate-keeping function. The
pre-Daubert standard required that (1) expert testimony assist
the trier of fact; (2) expert testimony be based on "scientific,
technical, or other specialized knowledge"; and (3) an expert be
qualified "by knowledge, skill, experience, training, or
education." Wis. Stat. § 907.02 (2009-10). Post-Daubert, the
expert testimony at issue would be subject to an additional
"reliability" component. But a hearing is not always required
for expert testimony to be admitted under the Daubert standard.
21
Nos. 2013AP225 & 2013AP578
Daniel D. Blinka, The Daubert Standard in Wisconsin: A Primer,
Wis. Lawyer, Mar. 2011 (citing United States v. Pena, 586 F.3d
105, 110-11 (1st Cir. 2009)). Contrary to Alger's and Knipfer's
suggestion, the State's expert testimony is not the kind of
"junk science" that is rejected by the Daubert standard.
¶38 Accordingly, we conclude that the Daubert evidentiary
standard in Wis. Stat. § 907.02(1) does not apply to the expert
testimony in Alger's and Knipfer's Chapter 980 discharge
petition trials.
C. Whether the Failure to Apply the Daubert Evidentiary
Standard to Alger's and Knipfer's Chapter 980 Discharge
Petitions Violates Equal Protection and Due Process
¶39 To determine the merits of an equal protection claim
or a substantive due process claim,15 we must first determine
which level of judicial scrutiny applies. Smith, 323
Wis. 2d 377, ¶12. If the challenged legislation neither
implicates a fundamental right nor discriminates against a
15
Knipfer alleges violations of substantive and procedural
due process. "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
constitutionally sufficient." West, 336 Wis. 2d 578, ¶83
(citing Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460
(1989)). Although Knipfer has a protectable liberty interest in
freedom from bodily restraint, id., ¶85, he has no protectable
interest in the Daubert evidentiary standard. See Brown v.
Watters, 599 F.3d 602, 616 (7th Cir. 2010). Therefore, the
failure to apply the Daubert standard to Knipfer's Chapter 980
discharge petition does not violate his right to procedural due
process. See West, 336 Wis. 2d 578, ¶89. Alger does not rely
on due process at all. Accordingly, our analysis will focus on
substantive due process and equal protection.
22
Nos. 2013AP225 & 2013AP578
suspect class, we apply rational basis review rather than strict
scrutiny to the legislation.16 Id. A law subject to strict
scrutiny will be upheld "only if narrowly tailored 'to serve a
compelling state interest.'" State v. Mary F.-R., 2013 WI 92,
¶35, 351 Wis. 2d 273, 839 N.W.2d 581 (quoting City of Cleburne,
Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)). We
will uphold legislation under rational basis review "unless it
is 'patently arbitrary' and bears no rational relationship to a
legitimate government interest." Smith, 323 Wis. 2d 377, ¶12
(quoting State v. McManus, 152 Wis. 2d 113, 131, 447 N.W.2d 654
(1989)) (quotation marks omitted).
1. Which Level of Judicial Scrutiny Applies?
¶40 Knipfer17 argues that strict scrutiny applies to the
failure to apply the Daubert evidentiary standard to expert
testimony in his Chapter 980 discharge petition trial because
16
A law that implicates a fundamental right is not
necessarily subject to strict scrutiny. Whether strict scrutiny
applies sometimes depends on the degree to which the law burdens
a fundamental right. See Burdick v. Takushi, 504 U.S. 428, 434
(1992) (strict scrutiny applies to "'severe' restrictions" on
the fundamental right to vote, and rational basis review applies
to "'reasonable, nondiscriminatory restrictions'" on that right)
(citations omitted); Zablocki v. Redhail, 434 U.S. 374, 386-88
(1978) (rational basis review applies to "reasonable regulations
that do not significantly interfere with" the fundamental right
to marry, and strict scrutiny applies to a law that
"significantly interferes" with that right) (citations omitted).
17
The court of appeals held that Alger conceded that
rational basis review applies. See Alger, 352 Wis. 2d 145, ¶25.
Our strict scrutiny and rational basis analysis applies to Alger
and Knipfer alike.
23
Nos. 2013AP225 & 2013AP578
Chapter 980 commitment implicates his fundamental right to
freedom from bodily restraint. Knipfer relies on cases where
courts "assumed, without deciding" that strict scrutiny applied
to claims challenging the constitutionality of aspects of
Chapter 980 commitment. See State v. West, 2011 WI 83, ¶91, 336
Wis. 2d 578, 800 N.W.2d 929; State v. Post, 197 Wis. 2d 279,
321, 541 N.W.2d 115 (1995); State v. Williams, 2001 WI App 263,
¶11, 249 Wis. 2d 1, 637 N.W.2d 791. Knipfer also relies on
Foucha v. Louisiana, where the Supreme Court stated that
involuntary civil commitment implicates an individual's
"fundamental" right to freedom from bodily restraint. Foucha v.
Louisiana, 504 U.S. 71, 80 (1992). Knipfer does not argue that
a suspect class has been discriminated against.
¶41 The State argues that rational basis review applies
because the failure to apply the Daubert evidentiary standard to
expert testimony in Knipfer's Chapter 980 discharge petition
trial does not implicate a fundamental right or discriminate
against a suspect class. The State relies on Mary F.-R., where
we applied rational basis review to a challenge against the use
of a non-unanimous six-person jury in a Wis. Stat. ch. 51
commitment hearing.
¶42 We conclude that rational basis review applies to
Alger's and Knipfer's constitutional claims because the failure
to apply the Daubert evidentiary standard to expert testimony in
a Chapter 980 discharge petition trial does not implicate a
fundamental right. Our decision in Mary F.-R. is instructive.
In that case, a circuit court ordered Mary F.-R. to be
24
Nos. 2013AP225 & 2013AP578
involuntarily committed under Wis. Stat. § 51.20 for treatment
for her mental illness after a six-person jury unanimously found
that she qualified for such commitment. Mary F.-R., 351
Wis. 2d 273, ¶¶2, 6. Mary F.-R. appealed the commitment order.
Before this court, she argued that § 51.20(11) violated her
right to equal protection because it authorized Chapter 51
commitment based on a six-person non-unanimous jury verdict.
Id., ¶2. Her equal protection claim rested on the fact that
potential Wis. Stat. ch. 51 committed persons were treated
differently than potential Wis. Stat. ch. 980 committed persons
because the latter persons had a statutory right to a unanimous
12-person jury at their commitment hearings. Id., ¶¶1-2. Mary
F.-R. argued that this court should apply strict scrutiny to
§ 51.20(11) because Chapter 51 commitment implicates her
fundamental right to freedom from bodily restraint. Id., ¶36.
¶43 We held that rational basis review was the appropriate
level of judicial scrutiny. Id., ¶38. We recognized that
"liberty is a fundamental right," id. (citing Foucha, 504 U.S.
at 86), and "involuntary civil commitment is a 'significant
deprivation of liberty.'" Id. (quoting Addington v. Texas, 441
U.S. 418, 425 (1979)). However, rational basis review applied
because "Mary F.–R.'s challenge relate[d] only to the jury
procedures available for initial commitment hearings under Wis.
Stat. § 51.20 and not to the use of involuntary commitments in
general." Id. "There is no right to a 12–person jury in civil
proceedings such as here." Id. (citing State v. Huebner, 2000
WI 59, ¶¶17-19, 235 Wis. 2d 486, 611 N.W.2d 727). Mary F.-R.
25
Nos. 2013AP225 & 2013AP578
did not argue that the challenged legislation discriminated
against a suspect class. Id.
¶44 Like in Mary F.-R., rational basis review applies in
the present cases because the challenged legislation does not
implicate the fundamental right to freedom from bodily restraint
and there is no fundamental right to a particular evidentiary
standard. Like Mary F.-R., Knipfer does not challenge "the use
of involuntary commitments in general." Id. Instead, Knipfer
challenges the unavailability of the Daubert evidentiary
standard in his Chapter 980 discharge petition trial. Knipfer
has no constitutional right to have the Daubert evidentiary
standard apply. Brown v. Watters, 599 F.3d 602, 616 (7th Cir.
2010). Knipfer argues that strict scrutiny applies because
"evidentiary standards . . . directly impact the substantive
nature of the evidence that can ultimately be submitted and
considered by the finder of fact." If Knipfer were correct,
then every evidentiary ruling in a Chapter 980 hearing or trial
could be subject to strict scrutiny. Precedent and the fact
that deference is due to a circuit court's evidentiary ruling
would militate otherwise. See State v. Mark, 2006 WI 78, ¶35,
292 Wis. 2d 1, 718 N.W.2d 90 (stating that a circuit court's
evidentiary ruling, even in a Chapter 980 proceeding, is
generally reviewed under a deferential standard). Although
Chapter 980 involuntary commitment implicates the right to
freedom from bodily restraint, the availability of the Daubert
evidentiary standard in a Chapter 980 proceeding does not
implicate that right so as to trigger strict scrutiny. See Mary
26
Nos. 2013AP225 & 2013AP578
F.-R., 351 Wis. 2d 273, ¶38. There is no right to a particular
evidentiary ruling in a Chapter 980 discharge petition trial.
¶45 Knipfer's reasons for distinguishing Mary F.-R. are
unpersuasive. First, he argues that Mary F.-R. is
distinguishable because the Daubert evidentiary standard, unlike
a six-person, non-unanimous jury, directly impacts the right to
physical liberty that is at stake in a commitment proceeding.
He contends that the evidence considered by a jury more directly
impacts the outcome of a commitment proceeding than the size or
unanimity of a jury does. We reject this basis for
distinguishing Mary F.-R. Knipfer does not persuade us that the
pre-Daubert standard more directly impacts his liberty interest
in a discharge trial than Mary F.-R. being tried by a non-
unanimous, six-person jury in an original commitment trial.
Indeed, the jury standard at issue in Mary F.-R. is more closely
related to the liberty interest at stake in an original
commitment proceeding than in a discharge trial. Moreover, that
jury standard, under Wis. Stat. § 51.20(11), applies only to
commitment proceedings brought under Wis. Stat. ch. 51, whereas
the Daubert standard is a rule of evidence which is generally
applicable in all proceedings, whether civil or criminal.
¶46 Knipfer's other ground for distinguishing Mary F.-R.
and applying strict scrutiny is that the law at issue in Mary
F.-R. differentiated between two groups that were not similarly
situated (Chapter 51 committed persons and Chapter 980 committed
persons), whereas the law at issue here differentiates between
two groups that are similarly situated (persons whose Chapter
27
Nos. 2013AP225 & 2013AP578
980 commitment was initiated before February 1, 2011, and
persons whose Chapter 980 commitment was initiated on or after
that date). We also disagree with this argument for applying
strict scrutiny because strict scrutiny does not apply if
neither a fundamental right is implicated nor a suspect class is
discriminated against. See Smith, 323 Wis. 2d 377, ¶12. A
court determines whether differently-treated groups are
similarly situated and hence, whether equal protection is
violated, by applying a particular level of judicial scrutiny.
See Plyler v. Doe, 457 U.S. 202, 216-18 (1982); Mary F.-R., 351
Wis. 2d 273, ¶55 ("'[W]hen properly understood and applied,
"similarly situated" is another way of stating the fundamental
values of the Equal Protection Clause.'") (quoting Giovanna
Shay, Similarly Situated, 18 Geo. Mason L. Rev. 581, 615
(2011)); Smith, 323 Wis. 2d 377, ¶15 ("The equal protection
clause . . . 'is designed to assure that those who are similarly
situated will be treated similarly.'") (quoting Treiber v.
Knoll, 135 Wis. 2d 58, 68, 398 N.W.2d 756 (1987)).
¶47 Knipfer's reliance on cases where courts applied
strict scrutiny in the Chapter 980 context requires further
explanation. The cases relied upon by Knipfer challenged
procedural aspects of Chapter 980 commitment which directly
impacted one's right to freedom from bodily restraint, whereas
the application of a particular rule of evidence is much further
removed from that direct impact on restraint of freedom. See
West, 336 Wis. 2d 578, ¶5 (challenging law that placed burden of
proof on committed person seeking supervised release); Post, 197
28
Nos. 2013AP225 & 2013AP578
Wis. 2d at 292-93 (challenging Chapter 980 commitment in
general); Williams, 249 Wis. 2d 1, ¶¶2-3 (challenging
prohibition on filing a petition for supervised release within
first 18 months of commitment). Further, the courts in those
cases "assumed, without deciding" that strict scrutiny was the
appropriate level of judicial scrutiny for those equal
protection claims. See West, 336 Wis. 2d 578, ¶¶91-99; Post,
197 Wis. 2d at 321; Williams, 249 Wis. 2d 1, ¶11.18 Such an
assumption is hardly a conclusion that strict scrutiny is the
applicable standard in the cases at issue. In the present
cases, rational basis review is appropriate because the Daubert
standard is a generally applicable rule of evidence that does
not directly impact one's right to freedom from bodily
restraint. See Mary F.-R., 351 Wis. 2d 273, ¶38.
¶48 In sum, we hold that rational basis review applies to
Knipfer's equal protection and substantive due process claims
and to Alger's equal protection claim.
2. Whether Rational Basis Review Is Satisfied
¶49 Our analysis applying rational basis review is the
same for Knipfer's substantive due process claim as for Alger's
18
Knipfer asserts that this court in State v. Post held,
rather than assumed without deciding, that strict scrutiny
applied to a substantive due process claim challenging ch. 980
commitment in general. See State v. Post, 197 Wis. 2d 279, 302,
541 N.W.2d 115 (1995). However, even if that interpretation of
Post is correct, strict scrutiny does not apply in the present
cases because the failure to apply the Daubert evidentiary
standard to a Chapter 980 discharge petition does not directly
impact a fundamental right.
29
Nos. 2013AP225 & 2013AP578
and Knipfer's equal protection claims. See Smith, 323
Wis. 2d 377, ¶¶12, 16. To resolve the substantive due process
and equal protection claims, we must determine whether a
legitimate governmental interest is rationally furthered by the
failure to apply the Daubert evidentiary standard to Alger's and
Knipfer's Chapter 980 discharge petitions. See id., ¶12.
¶50 Rational basis review is deferential to the
legislature. Id., ¶17. A legislative classification satisfies
rational basis review if "'any reasonably conceivable state of
facts . . . could provide a rational basis for the
classification.'" Mary F.-R., 351 Wis. 2d 273, ¶52 (quoting
F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993)). The
legislature need not have actually based its decision on the
reason conceived by a reviewing court. Id. (citing Beach
Commc'ns, 508 U.S. at 315). Alger and Knipfer bear the "high
burden" of proving that the failure to apply the Daubert
evidentiary standard to expert testimony in their Chapter 980
discharge petition trials is unconstitutional beyond a
reasonable doubt. Smith, 323 Wis. 2d 377, ¶18.
¶51 Alger and Knipfer19 argue that the failure to apply the
Daubert evidentiary standard to expert testimony in their
Chapter 980 discharge petition trials violates equal protection
because it arbitrarily differentiates between discharge
19
Although Knipfer argues that we should apply strict
scrutiny, he also argues that he should prevail even if we apply
rational basis review.
30
Nos. 2013AP225 & 2013AP578
proceedings based upon when their underlying commitment
proceedings began. Alger and Knipfer provide a hypothetical
scenario in which the State files a Wis. Stat. ch. 980
commitment petition against Person A in January 2011 and files
one against Person B in February 2011. Under this hypothetical
scenario, both of these persons are committed and have discharge
proceedings at the same time as each other. Alger and Knipfer
argue that it would be unconstitutionally arbitrary to apply the
Daubert standard to the discharge proceedings of Person B while
applying the pre-Daubert standard to the discharge proceedings
of Person A.
¶52 In his brief, "Alger concedes the state did have a
legitimate interest in seeking to prevent the revision of [Wis.
Stat. §] 907.02 from applying 'midstream' to litigation that was
already pending (or even concluded) at the time this legislation
was enacted." Alger argues that, in such litigation, attorneys
would have prepared expert testimony in reliance on the pre-
Daubert standard that was then in place. Because applying the
Daubert standard to such litigation would be unfair and
disruptive and would waste judicial resources, Alger concedes
that the legislature lawfully prohibited application of the
Daubert standard to such litigation. Similarly, Knipfer admits
that "the legislature might have had a valid reason not to
extend the Daubert standard to pending litigation insofar as
litigants may have already relied upon the [pre-Daubert]
standard in filing pleadings and preparing for trial."
31
Nos. 2013AP225 & 2013AP578
¶53 However, Alger and Knipfer contend, the reasons for
refusing to apply the Daubert evidentiary standard "midstream"
to pending litigation do not apply to their Chapter 980
discharge petition trials. Alger and Knipfer reason that,
because they filed their discharge petitions after the Daubert
standard's first date of applicability, they and the State did
not prepare any expert testimony for their discharge petition
trials in reliance on the pre-Daubert standard. Alger and
Knipfer therefore argue that the failure to apply the Daubert
standard to expert testimony in their discharge petition trials
is not rationally related to achieving a legitimate governmental
interest.
¶54 The State argues that the failure to apply the Daubert
evidentiary standard to expert testimony in Alger's and
Knipfer's Chapter 980 discharge petition trials satisfies
rational basis review and is therefore constitutional. The
State argues that the legislature had to draw the line somewhere
and the line it drew has a rational basis. The State reasons
that the legislature's application of the Daubert standard to
"actions" and "special proceedings" commenced on or after
February 1, 2011, promoted efficiency and predictability and
avoided difficulties involved with a rule that allows for
retroactive application of the Daubert standard.
¶55 We hold that the legislature's decision to apply the
Daubert evidentiary standard to "actions" or "special
proceedings" "commenced" on or after February 1, 2011, satisfies
rational basis review and therefore is constitutional. Alger
32
Nos. 2013AP225 & 2013AP578
correctly concedes that ensuring the fair treatment of
litigants, avoiding the disruption of pending litigation, and
preserving judicial resources are legitimate governmental
interests. See State ex rel. Schatz v. McCaughtry, 2003 WI 80,
¶43, 263 Wis. 2d 83, 664 N.W.2d 596 ("The State has a legitimate
interest in . . . preserving judicial resources.") (citing State
ex rel. Khan v. Sullivan, 2000 WI App 109, ¶10, 235 Wis. 2d 260,
613 N.W.2d 203). See also supra ¶¶36-37 (noting that applying
the Daubert standard to Alger's and Knipfer's Chapter 980
discharge petitions could have caused confusion and difficulty).
¶56 Further, the legislature's decision to apply the
Daubert evidentiary standard to "actions" or "special
proceedings" "commenced" on or after February 1, 2011, is
rationally related to achieving those legitimate governmental
interests. The legislature could have rationally believed that
retroactively applying a new rule of evidence to pending
litigation would be unfair to litigants, waste judicial
resources, and disrupt that litigation by resulting in motions,
appeals, and retrials. See Martin v. Richards, 192 Wis. 2d 156,
201, 531 N.W.2d 70 (1995) (explaining that "retroactive
legislation presents unique constitutional problems in that it
often unsettles important rights" and may result in
"unfairness").
¶57 When determining which cases will be subject to a new
rule of evidence, the legislature is not constitutionally
required to differentiate between various types of cases and
retroactively apply the new rule to some types of cases and not
33
Nos. 2013AP225 & 2013AP578
others. Instead, the legislature may differentiate between
cases that were commenced before and after a particular date and
may apply the new rule of evidence to only cases that were
commenced after that date. See Sperry & Hutchinson Co. v.
Rhodes, 220 U.S. 502, 505 (1911) ("[T]he 14th Amendment does not
forbid statutes and statutory changes to have a beginning, and
thus to discriminate between the rights of an earlier and later
time."); Plankinton Packing Co. v. Wis. Tax Comm'n, 198 Wis.
368, 373, 224 N.W. 121 (1929) (upholding a law that applied a
higher interest rate to tax deficiencies that were assessed
before 1927 than to those assessed in or after 1927); Montgomery
Ward & Co. v. DOR, 142 Wis. 2d 772, 778-82, 419 N.W.2d 348 (Ct.
App. 1987) (upholding a law that applied a higher interest rate
to tax deficiencies that were assessed on or after August 1,
1981, than to tax deficiencies that were assessed before that
date). Therefore, in the present cases, the legislature's
decision to apply the Daubert evidentiary standard to "actions"
and "special proceedings" that were commenced on or after
February 1, 2011, survives constitutional scrutiny. See Banas
v. State, 34 Wis. 2d 468, 473, 149 N.W.2d 571 (1967) (The
legislature has the "power to make reasonable rules for limiting
the admission of evidence and to make valid classifications of
people for that purpose.").
¶58 We also conclude that application of the Daubert
evidentiary standard to these Chapter 980 discharge petition
trials is a "midstream" application of that standard to pending
litigation. Alger's and Knipfer's contrary conclusion is based
34
Nos. 2013AP225 & 2013AP578
on the mistaken premise that the only expert testimony relevant
to their Chapter 980 discharge petitions is the expert testimony
proffered at their discharge petition trials. But we have
already concluded that a Chapter 980 discharge petition is part
of a pending commitment action. As we explained earlier, when
reviewing a Chapter 980 discharge petition, a court often
considers expert testimony from a prior discharge proceeding or
the initial commitment trial. See Wis. Stat. § 980.09(1), (2).
The State's experts at Alger's and Knipfer's original Chapter
980 commitment trials were not subject to the Daubert
evidentiary standard. The Daubert standard did not apply to any
previous proceeding in Alger's and Knipfer's cases. However, a
Chapter 980 discharge petition requires that an expert render an
opinion based in part upon the previous determination of
continued commitment. The fact that a petition for discharge
requires an expert to evaluate and review prior expert opinions
and whether commitment is still warranted, militates in favor
of, not against, having the same legal standard apply. Thus, we
reject Alger's and Knipfer's contention that their Chapter 980
discharge petitions were not part of a pending action that could
be disrupted by "midstream" application of a new rule of
evidence.20 Moreover, as was previously discussed, this kind of
20
Even if a Chapter 980 commitment is unlike other types of
pending litigation that could be disrupted by "midstream"
application of a new rule of evidence, the legislature's
decision to apply the Daubert evidentiary standard to "actions"
or "special proceedings" commenced on or after February 1, 2011,
is still constitutional under rational basis review. A
(continued)
35
Nos. 2013AP225 & 2013AP578
expert testimony in a Chapter 980 case will often meet the
Daubert standard even though it was admitted under the pre-
Daubert standard. See supra ¶37.
¶59 Our rejection of Alger's and Knipfer's equal
protection challenges and Knipfer's substantive due process
challenge is even supported by cases in which Wisconsin courts
upheld changes to Chapter 980 procedures under strict scrutiny.
See West, 336 Wis. 2d 578, ¶¶98-99 (upholding a statute that
placed the burden of proof on a Chapter 980 committed person who
petitions for supervised release); Williams, 249 Wis. 2d 1, ¶20
(upholding an 18-month waiting period for petitioning for
supervised release). We conclude that the failure to apply the
Daubert evidentiary standard to expert testimony at Alger's and
Knipfer's Chapter 980 discharge petition trials satisfies
rational basis review. Further, the petitioners in Williams and
West challenged unique procedures applicable to Chapter 980,
whereas Alger's and Knipfer's challenges center on a generally
applicable rule of evidence.
¶60 In sum, we hold that the failure to apply the Daubert
evidentiary standard to expert testimony in Alger's and
Knipfer's Chapter 980 discharge petition trials satisfies
rational basis review, and therefore survives constitutional
scrutiny.
legislative enactment can be rationally related to achieving a
legitimate governmental interest even if it is overinclusive.
See Vance v. Bradley, 440 U.S. 93, 108 (1979).
36
Nos. 2013AP225 & 2013AP578
III. CONCLUSION
¶61 We conclude that the Daubert evidentiary standard
under Wis. Stat. § 907.02(1) does not apply to expert testimony
in Alger's and Knipfer's Wis. Stat. ch. 980 discharge petition
trials because their discharge petitions did not "commence"
"actions" or "special proceedings." The Daubert standard
applies to "actions" or "special proceedings" commenced on or
after February 1, 2011. The original Chapter 980 commitments
here began several years before the Daubert standard was
adopted, and although Alger's and Knipfer's petitions seek
relief from those original commitments, those filings do not
constitute the "commencement" of an "action" or a "special
proceeding." We also conclude that because the legislature had
a rational basis for not applying the Daubert evidentiary
standard to expert testimony in post-Daubert Chapter 980
discharge petitions that seek relief from pre-Daubert Chapter
980 commitments, no violation of equal protection or due process
occurred.
By the Court.—The decisions of the court of appeals are
affirmed.
37
No. 2013AP225 & 2013AP578.ssa
¶62 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). The
majority disregards its own reasoning to reach a result its
opinion does not support.
¶63 It might be difficult to determine in some cases
whether a particular proceeding is a special proceeding.1
Nevertheless, when I apply the majority opinion's definition of
a "special proceeding" to the instant cases, the most legally
sound conclusion is that proceedings on a Chapter 980 petition
for discharge are special proceedings.
¶64 Wisconsin Stat. § 907.02(1) (2011-12) sets forth the
Daubert standard for the admissibility of expert testimony.2 In
enacting this statute, the legislature decreed that the Daubert
standard first applies "to actions or special proceedings that
are commenced on the effective date of this subsection [February
1, 2011]."3
¶65 Michael Alger and Ronald Knipfer, hereinafter referred
to as the petitioners, filed Chapter 980 discharge petitions
after February 1, 2011. Thus, whether the Daubert standard
applies to their discharge proceedings turns on whether these
petitions "commenced" "actions" or "special proceedings" under
1
See Ernst v. The Steamer "Brooklyn", 24 Wis. 616, 617
(1869) ("It may not be easy in all cases to determine what is a
special proceeding.").
2
See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 589-90 (1993).
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
3
2011 Wis. Act 2, § 45(5).
1
No. 2013AP225 & 2013AP578.ssa
the session law adopting the Daubert standard in Wis. Stat.
§ 907.0(1).4
¶66 All Chapter 980 proceedings are included in the
Wisconsin Judicial Benchbook in its section on special
proceedings. After a careful examination of the definition of
"special proceeding" in Black's Law Dictionary, which the
majority opinion employs; the case law regarding special
proceedings on which the majority opinion relies; the detailed
provisions of Chapter 980 governing commitment proceedings and
discharge proceedings; and the legislative purpose for adopting
the Daubert standard, I conclude that the petitioners commenced
special proceedings by filing their Chapter 980 petitions for
discharge. Thus, the Daubert standard should have been applied
at the proceedings on the petitioners' discharge petitions. The
majority opinion's contrary conclusion is unpersuasive.
¶67 Accordingly, I would remand the instant cases to their
respective circuit courts to determine whether the challenged
testimony satisfies the Daubert standard.
I
¶68 The majority opinion adopts the definition of "special
proceeding" in Black's Law Dictionary: "A proceeding that can
be commenced independently of a pending action and from which a
final order may be appealed immediately."5
4
See 2011 Wis. Act 2, § 45(5).
5
Black's Law Dictionary 1398 (10th ed. 2014).
2
No. 2013AP225 & 2013AP578.ssa
¶69 This definition contains two criteria. First, a
special proceeding "can be commenced independently of a pending
action."6 Second, a special proceeding must result in a "final
order" that can "be appealed immediately."7
¶70 I apply this definition to proceedings on a Chapter
980 discharge petition. I begin with the second criterion:
Special proceedings result in a final order that can be appealed
immediately.
¶71 Proceedings on a Chapter 980 discharge petition easily
meet this second criterion. A circuit court's decision granting
or denying a Chapter 980 petition for discharge is, by statute,
a final order that can be appealed immediately. See Wis. Stat.
§ 980.095(3) ("Any party may appeal an order under this
subsection as a final order under chs. 808 and 809.").
¶72 I now turn to the first criterion in the definition:
Special proceedings "can be commenced independently of a pending
action."8
¶73 There was no pending action when the petitions for
discharge were filed in the instant cases. After an individual
has been adjudicated a "sexually violent person" and the circuit
court has entered a judgment and commitment order, the original
6
Id.
7
Id.
8
Id.
3
No. 2013AP225 & 2013AP578.ssa
Chapter 980 commitment proceedings are at an end.9 If the
committed person wants to be discharged, the person must file a
petition in the committing court.10 In other words, the
commitment proceedings have ended by the time a petition for
discharge is filed.
¶74 I now tackle the phrase "commenced independently." In
the instant cases, this phrase must mean "commenced
independently of the original commitment proceedings."
¶75 The majority opinion concludes that proceedings on a
Chapter 980 discharge petition are not commenced independently
of the original commitment proceedings, but rather are part of
the original commitment proceedings.11 This is where the
majority opinion loses its way. The majority opinion departs
from its definition of "special proceeding" and does not adhere
to the cases it cites in support of its position.
9
See Wis. Stat. § 980.05(5) ("If the court or jury
determines that the person . . . is a sexually violent person,
the court shall enter a judgment on that finding and shall
commit the person as provided under s. 980.06. . . ."); Wis.
Stat. § 980.06 ("If a court or jury determines that the person
who is the subject of a petition under s. 908.02 is a sexually
violent person, the court shall order the person to be committed
to the custody of the department for control, care and
treatment . . . .").
10
See Wis. Stat. § 980.09(1) ("A committed person may
petition the committing court for discharge at any time. The
court shall deny the petition . . . unless the petition alleges
facts from which the court or jury may conclude the person's
condition has changed since the date of his or her initial
commitment order . . . .").
11
Majority op., ¶¶26, 31.
4
No. 2013AP225 & 2013AP578.ssa
¶76 The majority opinion cites several Wisconsin cases to
provide examples of special proceedings.12 These cases do not
support the majority opinion's application of the Black's Law
Dictionary definition of "special proceeding" to the instant
cases. Rather, the cases cited by the majority opinion support
the conclusion that proceedings on a Chapter 980 discharge
petition are special proceedings. See, for example, the
following:
• Ernst v. The Steamer "Brooklyn", 24 Wis. 616, 617 (1869),
provides three examples of proceedings that are "readily
recognized" as special proceedings: "proceedings to
attach for contempt, [proceedings] to obtain discovery of
books, [and] proceedings supplementary to an execution."
All three of these "readily recognized" special
proceedings relate to an underlying action but are
nevertheless treated as being commenced independently of
any other action or proceeding.
In a later case, Witter v. Lyon, 34 Wis. 564, 574
(1874), the court reaffirmed the determination in Ernst
that a proceeding "to obtain discovery of books" is a
special proceeding. The court expressly rejected the
contention that "there can be no special proceeding which
grows out of, or is connected with, a pending action."13
12
See majority op., ¶29.
13
Witter v. Lyon, 34 Wis. 564, 574 (1874).
5
No. 2013AP225 & 2013AP578.ssa
• In Voss v. Stoll, 141 Wis. 267, 271, 124 N.W.2d 89,
(1910), the court held that the proceeding required by
statute to "revive" a case on behalf of a party who died
after the case commenced is classified as a special
proceeding. The Voss court stated that "[t]he test to be
applied in determining the nature of any judicial remedy,
as regards whether it is a special proceeding, is whether
it is a mere proceeding in an action, or one
independent[] thereof or merely connected therewith."14
Thus, as in Ernst and Witter, the Voss court
acknowledged that special proceedings will often be
"connected" with another proceeding.
• In Wellens v. Kahl Insurance Agency, Inc., 145
Wis. 2d 66, 426 N.W.2d 41 (Ct. App. 1988), the court of
appeals referred to contempt proceedings as special
proceedings, just as this court did in Ernst. A contempt
proceeding is one in which a "court of record []
impose[s] a remedial or punitive sanction" for a person's
misconduct or disobedience in a court proceeding.15 A
contempt proceeding is therefore factually connected to a
prior or pending action but is classified as a special
proceeding.
14
Voss v. Stoll, 141 Wis. 267, 271, 124 N.W.2d 89 (1910)
(emphasis added).
15
See Wis. Stat. § 785.02 (regarding the power of the court
to punish for contempt of court); see also Wis. Stat. § 785.01
(defining "contempt of court").
6
No. 2013AP225 & 2013AP578.ssa
• In Ryder v. Society Insurance, 211 Wis. 2d 617, 565
N.W.2d 277 (Ct. App. 1997), the court of appeals stated
that "[s]pecial proceedings include[] all remedies that
[a]re not ordinary actions." Chapter 980 petitions for
discharge provide a remedy for institutionalized persons,
and as we explain more fully later on, the legislature
has established special rules applicable to these
proceedings.
The court of appeals in Ryder also stated that
matters "incident to an existing action" are not special
proceedings.16 Again, as we explain more fully later on,
proceedings on a Chapter 980 discharge petition are, by
statute, not incident to the original commitment
proceedings. Rather, they are separate and distinct
proceedings.
¶77 In sum, the case law demonstrates that proceedings
this court has previously classified as special proceedings have
a connection with prior or pending actions or proceedings but
are nevertheless viewed as independent special proceedings.
¶78 Furthermore, Chapter 980 makes clear that proceedings
on a discharge petition are governed by a set of statutory rules
and procedures different from (and independent of) those
governing Chapter 980 commitment proceedings. Moreover, the two
proceedings examine the condition of the person at different
times. Thus, although proceedings on a Chapter 980 discharge
16
Ryder v. Society Ins., 211 Wis. 2d 617, 619, 565
N.W.2d 77 (Ct. App. 1997).
7
No. 2013AP225 & 2013AP578.ssa
petition share a factual history with the original commitment
proceedings, they are nevertheless independent of the commitment
proceedings.
¶79 The provisions of Chapter 980 relating to the initial
commitment proceedings govern notice to the department of
justice and district attorney;17 the contents and filing of a
petition alleging that a person is sexually violent;18 the rights
of persons subject to such petitions;19 examination of the person
alleged to be sexually violent;20 change of the place of jury
trial from another county;21 "discovery and inspection";22
detention, probable cause hearings, and transfer for
examination;23 the commitment trial;24 commitment itself;25 and
various other procedural matters.26
¶80 In contrast, Wis. Stat. §§ 980.09 and 980.095 govern
proceedings on a Chapter 980 discharge petition. These
provisions control the filing of a petition for discharge, its
17
Wis. Stat. § 980.015.
18
Wis. Stat. § 980.02.
19
Wis. Stat. § 980.03.
20
Wis. Stat. § 980.031.
21
Wis. Stat. § 980.034(1).
22
Wis. Stat. § 980.036.
23
Wis. Stat. § 980.04.
24
Wis. Stat. § 980.05.
25
Wis. Stat. § 980.06.
26
Wis. Stat § 980.038.
8
No. 2013AP225 & 2013AP578.ssa
contents, the burden of proof, the appropriate methods for
demanding and selecting a jury, receipt of a jury verdict and
its effect, and the filing of postverdict motions and appeals
from orders granting or denying discharge.
¶81 The differences between commitment proceedings and
proceedings on a petition for discharge are substantial and
significant, demonstrating that proceedings on a discharge
petition are separate from and independent of the initial
commitment. For example:
• At the commitment proceedings, the State "has the
burden of proving beyond a reasonable doubt that the
person . . . is [] sexually violent,"27 and a jury
verdict on whether the State has met its burden "is
not valid unless it is unanimous."28 In contrast, at a
proceeding on a petition for discharge, the State "has
the burden of proving by clear and convincing evidence
that the person meets the criteria for commitment as a
sexually violent person,"29 and agreement by just five
of the six jurors is sufficient for a verdict.30
• The person against whom a petition for involuntary
commitment has been filed is automatically entitled to
27
Wis. Stat. § 980.05(3)(a).
28
Wis. Stat. § 980.03(3).
29
Wis. Stat. § 980.09(3).
30
Wis. Stat. § 980.095(1)(c).
9
No. 2013AP225 & 2013AP578.ssa
a jury trial,31 while a committed person who files a
petition for discharge is entitled to a jury trial
only if "the petition alleges facts from which the
court or jury may conclude the person's condition has
changed since the date of his or her initial
commitment order . . . ."32
• The focus at the original commitment proceedings is on
the person's condition at the time of those
proceedings. The focus at discharge proceedings is on
the committed person's condition at the time the
discharge petition was filed. The circumstances that
existed at the time of commitment are no longer
dispositive.
• A petition for discharge must allege facts that are
new since the commitment order was entered.33 In other
words, the petition must include "something more than
facts, professional knowledge, or research that was
considered by an expert testifying in a prior
proceeding that determined the person to be sexually
violent" from which the jury or court could conclude
31
Wis. Stat. § 980.03(3).
32
Wis. Stat. § 980.09 (emphasis added).
33
Wis. Stat. § 980.09 (requiring the petitioner to allege
"facts from which the court or jury may conclude the person's
condition has changed since the date of his or her initial
commitment . . . ").
10
No. 2013AP225 & 2013AP578.ssa
that the person no longer meets the criteria for
commitment.34
¶82 These statutory provisions are persuasive evidence
that proceedings on a petition for discharge are separate from
and independent of the original commitment proceedings. They
persuade me that filing a petition for discharge commences (that
is, begins) a special proceeding to which the Daubert standard
applies.
¶83 It is a truism that without a Chapter 980 commitment
order, there would be no proceedings on a petition for
discharge. This connection does not, however, make a petition
for discharge or a proceeding on that petition "part of" the
initial commitment proceedings. Rather, Chapter 980
demonstrates that the two proceedings share a common factual
history but are independent and separate.
¶84 The purpose of the statute adopting the Daubert
standard and "the consequences of alternative interpretations"
also inform my interpretation.35 Courts decline to read statutes
in a way that produces absurd, implausible, or unreasonable
results, or results that are at odds with the legislative
purpose.36 Interpreting Wis. Stat. § 970.02(1) as applying the
34
State v. Combs, 2006 WI App 137, ¶32, 295 Wis. 2d 457,
720 N.W.2d 684; see also State v. Kruse, 2006 WI App 179, ¶35,
296 Wis. 2d 130, 722 N.W.2d 742.
35
Legue v. City of Racine, 2014 WI 92, ¶61, 357
Wis. 2d 250, 849 N.W.2d 837.
36
Hubbard v. Messer, 2003 WI 145, ¶9, 267 Wis. 2d 92, 673
N.W.2d 676.
11
No. 2013AP225 & 2013AP578.ssa
Daubert standard to proceedings on a petition for discharge
filed after February 1, 2011, avoids an absurd, unreasonable, or
implausible result clearly at odds with the legislature's
purpose and takes into consideration the consequences of
alternative interpretations.
¶85 The legislature adopted the Daubert standard as part
of broader tort reform legislation, obviously intending to
impose a more stringent standard to the admission of expert
testimony in Wisconsin. The legislature did not, however, limit
the Daubert standard to tort cases or even to civil cases. The
legislature adopted the Daubert standard for all cases, civil
and criminal.
¶86 The legislature adopted the Daubert standard to
"ensure that any and all scientific testimony or evidence
admitted is not only relevant, but reliable."37
¶87 The statute adopting the Daubert standard, Wis. Stat.
§ 907.02(1), provides as follows:
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.
(Emphasis added.)
37
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 589 (1993) (citations omitted).
12
No. 2013AP225 & 2013AP578.ssa
¶88 The standard for the admissibility of expert testimony
that applied when the petitioners were initially committed
lacked the reliability requirement set forth in Wis. Stat.
§ 907.02(1) (underlined above). This pre-Daubert standard
provided as follows:
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.38
¶89 As Professor Daniel D. Blinka explains, the Daubert
standard adopted by the Wisconsin legislature requires that
"[t]he expert's testimony [] be grounded in an accepted body of
learning or experience in the expert's field, and [that] the
expert [] explain how the conclusion is so grounded."39
¶90 When I examine the legislative purpose for adopting
the Daubert standard and "the consequences of alternative
interpretations" of the Daubert statute, the answer is clear:
The Daubert standard applies in the instant cases. It seems to
me the legislature would want to have only reliable expert
witnesses, whose testimony is grounded in an accepted body of
learning or experience in the expert's field, testify on behalf
38
Wis. Stat. § 907.02 (2003-04); Wis. Stat. § 907.02 (2005-
06).
39
Daniel D. Blinka, The Daubert Standard in Wisconsin: A
Primer, Wis. Lawyer, Mar. 2011, at 60 (quoting Fed. R. Evid. 702
advisory committee note (2000 amendment)) (first alteration in
original).
13
No. 2013AP225 & 2013AP578.ssa
of either the State or the petitioner in Chapter 980 discharge
petition proceedings.
¶91 The proceedings on a petition for discharge result in
either the release of a committed sex offender or the continued
institutionalization of that offender. A huge liberty interest
is at stake in Chapter 980 proceedings. A Chapter 980
commitment is indefinite in duration and is therefore tantamount
to a life sentence in a custodial setting. Consequently,
Chapter 980 reflects a "delicate balancing of the public safety
with individual liberty."40 Based on the profound importance of
the interests at stake, it is only logical that the legislature
would seek to ensure the reliability of the expert testimony
presented at proceedings on a Chapter 980 petition for
discharge.
¶92 Why would the legislature apply the less stringent
relevance-based standard rather than the more stringent
reliability-based standard at proceedings on a Chapter 980
petition for discharge filed after February 1, 2011? The
simple, obvious answer is it would not. To fulfill the purpose
of Chapter 980 discharge proceedings, the Daubert standard
should be used.
¶93 Furthermore, the majority opinion's interpretation
extends the application of the pre-Daubert standard
indefinitely. Decades might pass between a commitment order and
the filing of a petition for discharge. Why would the
40
State v. West, 2011 WI 83, ¶100, 336 Wis. 2d 578, 800
N.W.2d 929.
14
No. 2013AP225 & 2013AP578.ssa
legislature want to have different evidentiary rules applied for
many, many years into the future to persons similarly situated?
It would not.
¶94 Under the majority opinion's interpretation, discharge
proceedings for a person committed on January 31, 2011, and a
person committed on February 1, 2011, are governed by different
evidentiary rules. The majority opinion's interpretation
creates confusion for committed persons, lawyers, and the
courts.
¶95 With these implications of the majority opinion's
alternative interpretation in mind, I think it is clear that the
legislature would want expert testimony that is reliable under
Daubert presented at proceedings held on petitions for discharge
filed after February 1, 2011.
¶96 In sum, I conclude that the Daubert standard governs
the expert testimony presented at the proceedings on the
petitioners' Chapter 980 discharge petitions. The majority
opinion's contrary conclusion is unpersuasive.
II
¶97 The petitioners also raise constitutional claims. The
constitutional question presented is whether applying the
Daubert standard to only those discharge petition proceedings
for which the original commitment proceedings commenced on or
15
No. 2013AP225 & 2013AP578.ssa
after February 1, 2011, violates the petitioners' constitutional
rights to equal protection and due process of law.41
¶98 The majority opinion determines that rational basis
review applies to the petitioners' constitutional claims because
applying the Daubert standard to proceedings on a discharge
petition only when the original commitment proceedings commenced
on or after February 1, 2011, neither "implicates a fundamental
right nor discriminates against a suspect class."42 The majority
opinion further determines that "the legislature's decision to
apply the Daubert [] standard to 'actions' or 'special
proceedings' 'commenced' on or after February 1, 2011, satisfies
rational basis review and therefore is constitutional."43
¶99 Because I conclude that the Daubert standard should
have been applied at the proceedings on the petitioners'
discharge petitions, I need not reach the constitutional
questions presented.
¶100 Nevertheless, I disagree with the majority opinion's
conclusion on this point. Even if rational basis review is the
appropriate level of scrutiny, which is far from clear (a person
41
Specifically, Alger argues that applying the Daubert
standard to only those discharge petition trials for which the
original commitment action commenced on or after February 1,
2011, violates his constitutional right to equal protection.
Knipfer argues that applying the Daubert standard to only those
discharge petition trials for which the original commitment
action commenced on or after February 1, 2011, violates his
constitutional rights to equal protection and due process.
42
Majority op., ¶39; see also majority op., ¶42.
43
Majority op., ¶55.
16
No. 2013AP225 & 2013AP578.ssa
committed under Chapter 980 is detained indefinitely), there
appears to be no rational basis for applying the Daubert
standard to proceedings on a discharge petition only when the
original commitment proceedings commenced on or after February
1, 2011. In my view, the legislative classification produced by
the majority opinion's interpretation of 2011 Wis. Act 2,
§ 45(5) fails to pass constitutional muster.
¶101 For the reasons set forth, I dissent.
¶102 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
17
No. 2013AP225 & 2013AP578.ssa
1