|
COURT OF APPEALS DECISION DATED AND FILED November 26, 2002 Cornelia G. Clark Clerk of Court of Appeals |
|
NOTICE |
|
|
|
This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
|
����������� APPEAL from a judgment of the circuit court for Eau Claire County:� william m. gabler, Judge.� Reversed and cause remanded with directions.�
����������� Before Cane, C.J., Hoover, P.J., and Wedemeyer, J.
�1����������������������� PER CURIAM. Thomas H. Bush appeals a judgment committing him as a sexually violent person under ch. 980.� He argues that:� (1) Wis. Stat. � 51.37(8)(b)[1] compels disqualification of the State�s expert witnesses and if that statute does not apply, his due process and equal protection rights were violated; (2) the State failed to present sufficient evidence that he suffered from a mental disorder that rendered him unable to control his behavior such that it is much more likely than not that he will engage in future acts of sexual violence; and (3) the State failed to establish that the petition was filed within ninety days of Bush�s release date.� The State concedes that it did not prove that he was within ninety days of release and requests a remand for fact-finding on that issue.� We conclude that a remand is necessary for fact-finding on that issue and reject Bush�s other arguments.[2]�
�2����������������������� Wisconsin Stat. � 51.37(8)(b) delineates procedures for prisoners held in State treatment facilities pursuant to concurrent mental health commitments who are approaching their release date but need additional psychiatric care.� The procedures for civil commitment set out in Wis. Stat. � 51.20 are utilized except that �no physician or psychologist who is connected with a state prison, Winnebago or Mendota Mental Health Institute or any county jail or house of correction may be appointed as an examiner.�� Bush argues that � 51.37(8)(b) disqualifies the State�s expert witnesses because they are associated with the Wisconsin Resource Center or Mendota Mental Health Institute.� He also argues that � 51.61, patients rights, applies to prisoners� initial ch. 980 proceedings.�
�3����������������������� Bush�s arguments fail for two reasons.� First, Wis. Stat. ch. 980 directs the Department of Health and Family Services to have close connections with the experts who conduct evaluations.� Wisconsin Stat. � 980.04(4) directs the department to promulgate rules that provide qualifications for these experts and � 980.12(1) directs the department to pay for the cost of evaluations.� The legislature did not intend that the evaluators would have no connection with State institutions as would be required if Wis. Stat. � 51.37(8)(b) applied.� Second, Wis. Stat. � 51.61 enumerates specific patient rights without directly or indirectly referring to � 51.37(8)(b).� The right to examination by experts who are not associated with the department is not included in that list of enumerated rights, evidencing the legislature�s intent to exclude that right.� See C.A.K. v. State, 154 Wis. 2d 612, 621, 453 N.W.2d 897 (1990).�
�4����������������������� Failure to apply Wis. Stat. � 51.37(8)(b) to sexual predators does not violate their due process rights.� There is no constitutional right to a court appointed independent evaluator.� Due process is synonymous with fundamental fairness.� See State v. Sorenson, 2002 WI 78, �25, 254 Wis. 2d 54, 646 N.W.2d 354.� Bush procured the services of two expert witnesses who testified on his behalf and challenged the State�s experts� analyses.� Fundamental fairness does not demand further examination by an expert who has no affiliation with the State, nor does it compel disqualification of the State�s experts.�
�5����������������������� Bush�s equal protection rights were not violated by allowing the State to call experts who are affiliated with State treatment facilities.� Although there are some similarities between prisoners who are subject to commitment under Wis. Stat. � ch. 980 and those who are subject to commitment under Wis. Stat. ch. 51, substantial differences justify the legislature�s decision to allow examination by experts who are affiliated with state institutions.� Evaluation of prisoners alleged to be sexual predators is a specialized inquiry with a smaller pool of experts from which to choose.� The difficulty of locating qualified experts and the expense of independent evaluation justify using experts that have some connection with state institutions that treat sexual predators.� The legislature�s decision not to apply all of the procedures of ch. 51 to cases under ch. 980 is justified by sexual predators� unique treatment needs and the highly specialized qualifications of the small group of therapists qualified to perform the evaluations.� See State v. Williams, 2001 WI App 263, �16, 249 Wis. 2d 1, 637 N.W.2d 791.
�6����������������������� The State presented sufficient evidence to support the jury�s finding that Bush suffers from a mental disorder that creates a substantial probability that he will engage in acts of sexual violence.� The State�s experts testified that Bush suffers from numerous mental disorders, pedophilia, voyeurism, sexual sadism, exhibitionism, paraphilia NOS (not otherwise specified) and alcoholism.� Each of the State�s five evaluators concluded that Bush presented a high risk to reoffend.�
�7����������������������� Bush�s experts attacked the State�s experts� actuarial data, arguing that the State�s experts� instruments could not be used to predict whether a specific individual had a certain percentage for reoffending, but rather whether he fit into a category of individuals whose risk of reoffending was high.� Bush complains that the State�s experts� tests lacked national standards for their use, allowable error rates and a comparable population base, and that the actuarials are based upon static rather than dynamic factors.� The State�s experts testified to the validity of their methods.� It is the jury�s function to weigh the credibility of the witnesses and the weight to be accorded their testimony.� See State v. Curiel, 227 Wis. 2d 389, 421, 597 N.W.2d 697 (1999).�
�8����������������������� In addition to the experts� opinions, the State presented sufficient evidence that Bush was highly likely to reoffend.� See State v. Kienitz, 221 Wis. 2d 275, 304, 585 N.W.2d 609 (Ct. App. 1998).� Bush repeatedly engaged in sexually violent offenses over several decades.� He was convicted of at least nine such offenses.� Each time he was released from prison or a treatment facility, he reoffended.� He has been offered sex offender treatment on at least nine occasions and completed one of the programs, but continued to attempt to acquire deviant materials while incarcerated.� Several of his violations occurred while he was under court supervision or in treatment programs.� Bush�s personal history and the failure of various treatment programs supports the verdict.
�9����������������������� Finally, Bush is entitled to remand for a trial to determine whether he was within ninety days of release or discharge when this action was commenced.� See In re Commitment of Thiel, 2001 WI App 52, �31, 241 Wis. 2d 439, 625 N.W.2d 321.� We reverse the judgment on that basis alone.
����������� By the Court.�Judgment reversed and cause remanded with directions.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)5.
[1] All references to the Wisconsin Statutes are to the 1999-2000 version.�
[2] In his initial brief, Bush also argued that amendments to Wis. Stat. ch. 980 enacted in 1999 Wis. Act 9, � 9223(2)(ag) constituted an ex post facto law and violated Bush�s due process and equal protection rights.� He also argued that ch. 980 is unconstitutional because lack of volitional control is not an element.� After Bush filed his brief-in-chief, the Wisconsin Supreme Court and this court released decisions that reject those arguments.� See State v. Laxton, 2002 WI 82 �2, 254 Wis. 2d 185, 647 N.W.2d 784; State v. Rachel, 2002 WI 81 ��60, 66-68, 254 Wis. 2d 215, 647 N.W.2d 762; State v. Williams, 2001 WI App 263 �20, 249 Wis. 2d 1, 637 N.W.2d 791.� We are bound by that precedent and will not individually address those issues.�