Nov. 19, 2021 – State law does not allow the Town of Mentor to intervene as a matter of right in a case concerning the placement of a sexually violent person inside its boundaries, the Court of Appeals District IV has ruled.​​

In Town of Mentor v. State, 2020AP1681 (Nov. 11, 2021), a three-judge panel held that a Wood County Circuit Court judge was correct in denying a motion by the Town of Mentor to intervene in the case.

The case began when Charles Montgomery, who was committed as a sexually violent person in 2002, petitioned the circuit court to be discharged in 2018.

In October of 2019, an examiner determined that Montgomery met each of the statutory discharge criteria, Wis. Stat. section 980.08. Montgomery and the state then stipulated that Montgomery would withdraw his petition for discharge and seek supervised release under section 980.08, with the state agreeing not to oppose the release.

In an order issued in November 2019, the circuit court acknowledged the parties’ stipulation and determined that Montgomery had proven by clear and convincing evidence that he qualified for supervised release.

The court also directed Clark County – Montgomery’s country of residence as determined by the Department of Health Services (DHS) – to create a placement report using a committee made up of country and state officials. DHS would create a supervised release plan after it received the placement report.

In February 2020, a psychological examiner concluded that Montgomery wasn’t eligible for supervised release because he had yet to make significant progress in his treatment. But, the report showed, the examiner knew of the court’s release decision and didn’t disagree with it.

The committee formed by the county identified a residence in the Town of Mentor that met the criteria of section 980.08. According to the placement report, the committee had consulted with the Clark County Sheriff’s Department.

In June 2020, the circuit court approved the supervised release plan created by DHS and issued an order for Montgomery’s release.

Four-Part Test  

Under supreme court precedent and section 803.09(1), a party seeking to intervene in an action as matter of right must meet four requirements: file a timely motion; claim an interest sufficiently related to the subject of the action; show that disposition of the action might practically impair or impede the moving party’s ability to protect its interest; and show that the existing parties don’t adequately represent the moving party.

In an opinion written by Presiding Judge Brian Blanchard, the appellate panel held that the town failed to show that its interest would be practically impaired by Montgomery’s placement in the Town of Mentor. The panel also held that the town had forfeited its right to argue that Montgomery didn’t qualify for supervised release by not raising that issue with the trial court.  

The crux of the court’s decision was that for purposes of analyzing whether the town met the intervention test, its sufficiently related interest was limited to ensuring that the trial court followed the requirements for the supervised release process established in section 980.08(4).

The town claimed as its sufficiently related interest the protection of the public. But allowing the town to rely on such a general interest would be incongruent with section 980.08, Blanchard wrote.

“That scheme provides a detailed procedure for the consideration and identification of potential placement residences for supervisees and specifically requires that each supervisee be placed somewhere in his or her country of residence.”

“Further,” Blanchard wrote, “allowing intervention based on such a generalized interest would justify every municipality in the supervisee’s county of residence being allowed to intervene to offer the circuit court reasons why his or her residential placement within their boundaries would risk the safety of all persons within their boundaries. That result would upset the balance of polices that Wis. Stat. section 803.09(1) attempts to strike.”

Change to Statute Was Significant

The Wisconsin Court of Appeals has held that a town and county seeking intervention in a case concerning the release of sexually violent person under chapter 980 have a “substantial interest in the well-being of the residents and property located within its boundaries.”

But the legislature amended chapter 980 after that decision, Blanchard wrote, and eliminated a provision that required the circuit court to authorize any local government in the county to submit a list of prospective residences to the court.

That change, Blanchard wrote, meant that “the Town’s role here as a potential intervenor would not be as a statutorily mandated participant, but instead as an interested party seeking to make arguments about whether the existing parties had taken sufficient steps to see that the statutory process had been complied with.”

The appellate panel made clear that it was not holding that there were no circumstances under which a municipality could meet the four-part test and be allowed to intervene by right in an action related to the release and placement of a sexually violent person.

Which Local Law Enforcement Agency?

The town claimed that the requirements of section 980.08 were violated in two ways. The residence selected for Montgomery was 1,500 feet from roadside path on which children ride ATVs, and the county committee failed to consult with the town’s police department before writing the placement report.

An ATV route did not fit within the list of places in section 980.08(4)(dm) that must be located more than 1,500 from a sexually violent person’s potential placement, the appellate panel held.

That the county committee consulted the sheriff’s office and not the town’s police department did not violate section 980.08(4)(dm)2., the appellate panel held, because that subsection requires that a committee consult with “a local law enforcement agency,” not “the local law enforcement agency.”

Furthermore, elsewhere in chapter 980, the legislature referred to “the municipal police department … for the municipality … in which the person will be residing.”

“No such language is used here, only the more general ‘local law enforcement agency,’” Blanchard wrote.

The sheriff’s department counts as a “local law enforcement agency” for purposes of 980.08(d)(dm)2, the panel held, because “the only reasonable view is that the sheriff’s department is ‘local’ because it serves the needs of Clark County and not some large area,” Blanchard wrote.