PUBLISHED OPINION
Case No.: 95-0664
Complete
Title
of
Case:IN RE THE
COMMITMENT OF GOODSON:
PHILIP ARREOLA, CHIEF OF POLICE
FOR THE CITY OF MILWAUKEE,
AND THE CITY OF MILWAUKEE,
Appellants-Cross Respondents,
E. MICHAEL McCANN, DISTRICT ATTORNEY
OF MILWAUKEE COUNTY,
Co-Appellant-Cross Respondent,
v.
STATE OF WISCONSIN,
Plaintiff-Respondent-Cross
Respondent,
RICHARD LEE GOODSON,
Defendant-Respondent-Cross Appellant.
Submitted
on Briefs: December 12, 1995
COURT COURT OF
APPEALS OF WISCONSIN
Opinion
Released: January 18, 1996
Opinion
Filed: January
18, 1996
Source
of APPEAL Appeal from an order
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Dodge
(If
"Special" JUDGE: Andrew
P. Bissonnette
so
indicate)
JUDGES: Eich,
C.J., Dykman and Sundby, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the appellants-cross respondents
the cause was submitted on the briefs of Grant F. Langley, city attorney
of Milwaukee, with Linda Uliss Burke, assistant city attorney.
For the co-appellant-cross respondent the
cause was submitted on the brief of E. Michael McCann, district attorney
of Milwaukee County, with Jane Vinopal, assistant district attorney.
Respondent
ATTORNEYSFor the plaintiff-respondent-cross
respondent the cause was submitted on the brief of James E. Doyle,
attorney general, with Sally L. Wellman, assistant attorney
general.
COURT OF
APPEALS DECISION DATED AND
RELEASED January
18, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-0664
STATE OF WISCONSIN IN
COURT OF APPEALS
IN RE
THE COMMITMENT OF GOODSON:
PHILIP
ARREOLA, CHIEF OF POLICE
FOR
THE CITY OF MILWAUKEE,
AND
THE CITY OF MILWAUKEE,
Appellants-Cross Respondents,
E. MICHAEL McCANN,
DISTRICT ATTORNEY
OF MILWAUKEE COUNTY,
Co-Appellant-Cross Respondent,
v.
STATE
OF WISCONSIN,
Plaintiff-Respondent-Cross Respondent,
RICHARD LEE GOODSON,
Defendant-Respondent-Cross Appellant.
APPEAL
from an order of the circuit court for Dodge County: ANDREW P. BISSONNETTE, Judge.
Reversed and remanded.
Before
Eich, C.J., Dykman and Sundby, JJ.
EICH,
C.J. The City of Milwaukee and its
chief of police, Philip Arreola, and E. Michael McCann, district attorney of
Milwaukee County, appeal from a dispositional order of the Dodge County Circuit
Court placing Robert L. Goodson, a person found to be "sexually
violent" under the Sexual Predator Law, ch. 980, Stats., on supervised release in Milwaukee
County.[1] They argue that the order should be vacated
because they received no notice of the court's hearings concerning Goodson's
release. They also contend that we
should reverse because no plan for Goodson's release was prepared by the
Department of Health and Social Services (DHSS) and the Milwaukee County
Department of Social Services, as required by § 980.06(2)(c), Stats.[2]
We
conclude that the applicable statutes neither require nor provide for the
notice argued by McCann and Arreola. We
also conclude, however, that other portions of the law requiring DHSS and the
county to which such offenders are proposed to be released to prepare and
submit a supervision plan to the court were not complied with, and that that
failure deprived the trial court of competency to order Goodson's release to
Milwaukee County. We therefore reverse
the order and remand to the court for further proceedings in compliance
therewith.
The
statutory scheme for commitment of "sexually violent" persons is
somewhat complicated and warrants discussion.
Chapter
980, Stats., sets forth the
commitment procedures. When a person
convicted of a sexually violent offense is nearing release from prison, the
agency having the authority or duty to release the person is required to notify
the justice department and "each appropriate district attorney" of
the impending release, providing basic information as to the conviction and
related matters. Section 980.015, Stats.
Either the justice department or the district attorney of either the
county of conviction or the county in which the person resides (or will be
placed upon release) may then file a petition with the circuit court alleging
that the person is a "sexually violent person" as defined in the
statute,[3]
and seeking his or her commitment to DHSS for either institutional placement or
supervised release. Sections 980.02 and
980.05, Stats.
If,
after trial, it is determined that the person is a sexually violent person, the
court is required to order him or her committed to the custody of DHSS
"for control, care and treatment until such time as the person is no
longer a sexually violent person."
Section 980.06(1), Stats. The commitment order may call for either
institutional care in a "secure mental health unit or facility" or
"supervised release" to the community. Section 980.06(2)(b). In
deciding between institutionalization and release, the court may consider, among
other things,
the nature and circumstances of the behavior that was
the basis of the allegation in the petition [that the person is sexually
violent], ... the person's mental history and present mental condition, where
the person will live, how the person will support himself or herself, and what
arrangements are available to ensure that the person has access to and will
participate in necessary treatment.
Id.
If
the court finds that supervised release is appropriate, it is required to
notify DHSS, and DHSS is required to work with the social services agency in
the county in which the person will be residing to prepare a release plan and
present it to the court for approval within twenty-one days. Section 980.06(2)(c), Stats.
The plan identifies the supervision conditions and the treatment and
services the community will provide to the person.[4] Id. The county designated by DHSS may refuse to prepare the plan,
however, in which case DHSS must attempt to arrange for another county to do so
and, presumably, to accept the person. Id. If DHSS is unable to locate a county that
will agree to participate, the court "shall designate a county department
to prepare the plan ... and place the person on supervised release in that
county." Id. If that, too, proves unsuccessful, the court
may order a county to prepare the plan and accept the person for supervised
release. Id.[5]
Finally,
§ 980.06(2)(d), Stats.,
provides, among other things, that "[b]efore a person is placed on
supervised release by the court under this section, the court shall so notify
the municipal police department and county sheriff for the municipality and
county in which the person will be residing."
The
facts of this case are undisputed. In
July 1994, the Department of Corrections, as required by § 980.015, Stats., notified the justice department
and the Dodge County district attorney that Goodson, who had been convicted of
sexually violent crimes in that county, would soon be released from
prison. The district attorney then
petitioned the court to determine Goodson to be a sexually violent person under
ch. 980, and the case proceeded to a trial to the court. At the trial's conclusion, the court ruled
that Goodson was a sexually violent person as defined in § 980.01(7), Stats., and scheduled a dispositional
hearing for December 22. At the
hearing, the Dodge County district attorney stipulated to Goodson's supervised
release to Milwaukee County. The trial
court found that such release would be appropriate but did not notify DHSS to
prepare a plan in cooperation with the Milwaukee County social services agency
as required by § 980.06(2)(c), Stats. Instead, the court entered an order finding
that Goodson was an appropriate subject for supervised release based on his
involvement in drug and alcohol rehabilitation programs, his "good
correctional record," his previous stable employment, and the report of
the State's "examining psychologist" containing "favorable
information regarding [his] treatment progress." The order released Goodson to Milwaukee County and imposed
various "conditions," including "sex offender treatment"
and counseling.
After
the order was issued, the court wrote to Chief Arreola and the Milwaukee County
sheriff, notifying them of the ch. 980 proceedings and the order for supervised
release, as required by § 980.06(2)(d), Stats. District Attorney McCann was never
notified.
When
McCann learned of the court's dispositional order, he moved to vacate it on
grounds that he had neither been notified of Goodson's anticipated release to
Milwaukee County nor been given an opportunity to be heard on the subject prior
to the order's entry. Arreola moved to
vacate the order on similar grounds.
The trial court denied both motions.
I. Notice to
McCann
McCann
claims that he was entitled to notice of the hearing on Dodge County's petition
under § 980.015, Stats.,
which governs commencement of the commitment process. The statute provides that if an agency "with the authority
or duty to release or discharge" a person "who may meet the criteria
for commitment as a sexually violent person," the agency "shall
inform each appropriate district attorney and the department of justice
regarding the person as soon as possible beginning 3 months prior to [the
release or discharge]." Section
980.015(1) and (2). The agency--in this
case, DHSS--is required to provide the district attorney and department of
justice with "[t]he person's name, identifying factors, anticipated future
residence and offense history," together with applicable documentation of
the person's treatment and "adjustment to ... institutional
placement." Section 980.015(3)(a) and
(b).
In
denying McCann's motion to vacate the dispositional order, the trial court
interpreted § 980.015, Stats.,
as relating only to the notice of the person's impending release to the agency
authorized by § 980.02, Stats.,
to commence the commitment proceedings: the department of justice or the
district attorney of the county of the person's conviction, residence or
placement.
We
are, of course, not bound by the trial court's interpretation of a statute;
statutory interpretation involves questions of law which we decide
independently. Minuteman, Inc. v.
Alexander, 147 Wis.2d 842, 853, 434 N.W.2d 773, 778 (1989). We are satisfied, however, that the trial
court properly read and applied the statutes.
Considered
as a whole, and in the order they appear in the chapter, §§ 980.015 and
980.02, Stats., plainly
contemplate a process whereby: (1) the agency about to release a person who may
meet the requirements for commitment as a sexually violent person is required
to notify the department of justice and the "appropriate" district
attorney of that impending release, and to provide a summary of identifying
information; and then (2) upon receipt of that information, either the
department of justice or the district attorney in the county of conviction, or the
county in which the person will reside or be placed upon discharge, may elect
to petition the court for commitment.
At
the time the § 980.015 notice is to issue--"as soon as possible beginning
3 months prior to the applicable [discharge] date"--no court hearing of
any kind is either pending or scheduled, for there is no "case." The district attorney receiving the notice
of the person's release from prison has not yet exercised his or her discretion
to petition for commitment under § 980.02, Stats. It is thus not even known whether commitment
proceedings will be instituted, much less which county might, at the conclusion
of such proceedings, be designated as the county of placement. As the trial court noted in its decision, to
require notice to the district attorney of the receiving county before any
proceedings are commenced--and before the identity of the receiving county is
known--would require that notices be sent to any one (or all) of three-score or
more district attorneys around the state.
According to the court, this would be the equivalent of requiring
"notices ... to be given by a non-party to the lawsuit to another
non-party to the lawsuit ... before the lawsuit is ever filed ...." We think the analogy is apt.
The
§ 980.015 notice is plainly intended to facilitate commencement of the
commitment proceedings by the "appropriate" district attorney: the
district attorney in the county of conviction or the county to which the prison
authorities propose to release the person.
In this case, that release notice was sent to the "appropriate
district attorney"--the district attorney of Dodge County, the county in
which Goodson's convictions were entered.
We
conclude, therefore, that § 980.015, Stats.,
did not require notice to the Milwaukee County district attorney prior to
commencement of these proceedings, or even prior to the hearing to determine
commitment or placement.[6]
II. Notice to
Arreola
Arreola
bases his argument that he was entitled to pre-hearing notice of the commitment
proceedings on language in § 980.06(2)(d), Stats., that states, "Before a person is placed on
supervised release by the court under this section, the court shall so notify
the municipal police department and county sheriff for the municipality and
county in which the person will be residing."
We
begin by noting the placement of that provision in the statutory scheme. It does not appear in the sections governing
either the petition for commitment or the trial of ch. 980 proceedings. Rather, it appears in the concluding
subsection--following the provisions setting forth the criteria for supervised
release, those defining the content and requirements of supervised-release
orders, and those governing preparation of a release plan by DHSS and the
receiving county. Section 980.06(2)(b)
and (c), Stats. It is only then--after the court determines
that supervised release to a particular county is appropriate and that county
has either agreed or been ordered to prepare a plan and accept the person under
§ 980.06(2)(c)-- that the court is required by § 980.06(2)(d) to "so
notify the ... police department and county sheriff" in that county.
So
considered, § 980.06(2)(d), Stats.,
on its face, does not relate to the right to be heard at either the hearing on
the merits of the commitment proceeding or the dispositional hearing. The statutes are structured so that the
trial court first determines whether institutionalization is necessary or
whether supervised release is appropriate.
If the court finds release to be appropriate under the statutory
criteria, it must notify DHSS, and DHSS is to work with the receiving county to
develop the release plan. Even then, as
we have indicated, the designated county can decline to receive the
person. If it does decline, DHSS is
directed to seek the agreement of another county to accept placement. And, failing that, the court may order a
specific county to prepare a plan for the person's supervised release in that
county. Section 980.06(2)(c).
It
is only after all these proceedings are completed and the receiving county has
been finally designated that the court is required to notify law enforcement
authorities in the receiving county of the person's actual release. Considered in context, § 980.06(2)(d), Stats., exists to ensure that law
enforcement agencies in the community in which a sexually violent person is to
be placed have notice of that placement in order that they might take
appropriate precautions and make appropriate provisions to secure the safety of
the community. The statute does not
give such agencies the right to be heard on the merits of the commitment or the
ultimate disposition, however; the legislature has plainly left those decisions
to health and correctional professionals and to the court. We conclude, therefore, that
§ 980.06(2)(d) did not require notice to Arreola prior to the hearings in
this matter.
Whether
a law structured to allow a sexually violent person's release into a community
without giving the law enforcement authorities in that community the right to
be heard on the question is a wise one, or, as McCann and Arreola assert, an
unwise one, is not for us to say. That
is a judgment for the legislature to make, not the courts. We read statutes; we do not write them. And we read them only for the purpose of
ascertaining the legislature's intent in enacting them. In determining that intent, our first resort
is to the language of the statute.
"If the statute is clear on its face, our inquiry as to the
legislature's intent ends and we must simply apply the statute to the facts of
the case." Interest of Peter
B., 184 Wis.2d 57, 70-71, 516 N.W.2d 746, 752 (Ct. App. 1994). We do not look behind the plain language of
a statute, and the statutes argued by McCann and Arreola in support of their
claimed entitlement to pre-hearing notice of ch. 980 commitment proceedings do
not so provide.
III. The Absence
of a Release Plan
As
a practical matter, if the plan-making requirements of § 980.06(2)(c), Stats., are followed in commitment
proceedings, the county intended as the receiving county will have notice of at
least the dispositional proceedings for, as we have noted above, the statute
not only directs DHSS to involve the county in planning for the person's
eventual release but gives the county the opportunity to decline to do so.
In
this case, however--and for reasons we have been unable to ascertain in the
record--those requirements were not followed.
The trial court never notified DHSS of its determination that Goodson
was an appropriate candidate for supervised release, and Milwaukee County was
not asked to assist in preparing a plan for Goodson's supervision, as required
by § 980.06(2)(c), Stats.
We
conclude, therefore, that the trial court erred when, for whatever reason, it
failed to follow the statutory procedure.
And because that procedure plainly contemplates a final order for
supervised release only after the receiving county has been designated through
the DHSS/county planning process--or, in default, by the court under
§ 980.06(2)(c), Stats.--the
trial court lacked competence to order Goodson's release to Milwaukee
County.
The
State concedes that the trial court failed to follow the requirements of
§ 980.06(2), Stats., in
issuing its order, acknowledging that "the provisions of sec. 980.06 were
not properly followed in this case."
It attempts to excuse the error, however, by a conclusory statement to
the effect that DHSS "has taken appropriate steps to assure that the
statute is followed in future cases ...."
We
reject the State's "we-won't-do-it-again" argument. The trial court's failure to follow plainly
prescribed procedures which we consider central to the supervised-release
process rendered it incompetent to order Goodson's release to Milwaukee County,
and requires that we reverse the order and remand to the court with directions
to implement the requirements and procedures of §§ 980.06(2)(c) and (d), Stats.
We do not disturb the trial court's findings on Goodson's eligibility
for supervised release in general, having rejected the appellants' arguments
that reversal of those findings are required as a result of their failure to
receive pre-hearing notice; we reverse only to permit the process to continue
from that point on, as required by statute.
By
the Court.—Order reversed and
cause remanded with directions.
[1] We note that the respondent State of
Wisconsin concedes, "[f]or purposes of this appeal," that Arreola and
McCann have standing to challenge the trial court's order. As a result, we neither consider nor decide
that issue.
[2] If, under ch. 980, Stats.--which we discuss in detail below--a person is
determined to be "sexually violent" as that term is defined in the statute,
the trial court may, as it attempted to do here, place the person on supervised
release in a particular county. Section
980.06(2)(c), Stats., requires
the court, upon a finding that the person is appropriate for supervised
release, to notify DHSS, and DHSS, in turn, is required to prepare a
supervision plan in conjunction with the social services department of the
county in which the person is to reside.
After the plan is completed and approved by the court, the person is
placed on supervised release in that county.
Id.
[3] The statute defines a "sexually violent
person" as follows: "[A] person who has been convicted of a sexually
violent offense ... and who is dangerous because he or she suffers from a
mental disorder that makes it substantially probable that the person will
engage in acts of sexual violence."
Section 980.01(7), Stats.
[4] It is important to note that under the
statutory scheme the court first determines whether the person is generally
suitable for supervised release; it then initiates the process of planning for
such release by notifying DHSS of its determination. The final order for release comes only after DHSS and the local
agency in the county DHSS has selected for release have prepared and filed a
release plan.
Under
the statute, the plan shall "address the person's need, if any, for
supervision, counseling, medication, community support services, residential
services, vocational services, and alcohol or other drug abuse
treatment." Section 980.06(2)(c), Stats.
[5] Section 980.06(2)(c), Stats., provides:
If the county department of the person's county of
residence declines to prepare a plan, the [state] department [of health and
social services] may arrange for another county to prepare the plan if that
county agrees to prepare the plan and if the person will be living in that county. If the department is unable to arrange for
another county to prepare a plan, the court shall designate a county department
to prepare the plan, order the county department to prepare the plan and place
the person on supervised release in that county.
[6] McCann argues that State ex rel. Zabel
v. Hannan, 219 Wis. 257, 262 N.W. 625 (1935), compels a different
result. In that case the prosecuting
district attorney challenged the defendant's release on parole because he had
not been notified of the parole hearing as required by law, and the supreme
court agreed, voiding the parole for lack of such notice. Id. at 265, 262 N.W. at 628.
Zabel is distinguishable, however, because notice to the
district attorney was specifically required by the parole statute: "`The
board ... may, upon ten days' written notice to the district attorney ...
who participated in the trial ..., parole any prisoner convicted of a
felony and imprisoned in the state prison ....'" Id. at 261, 262 N.W.2d at 626 (quoting § 57.06, Stats., (1935)) (emphasis added). In this case, as we have held, McCann had no
similar statutory right to notice of the commitment proceedings.