Jan. 20, 2015 – The Wisconsin Supreme Court has ruled that the Daubert standard, which tests whether an expert is qualified to testify, did not apply in the discharge proceedings commenced by two defendants involuntarily committed as sexually violent.
In the consolidated cases of State v. Alger and State v. Knipfer, 2015 WI 3 (Jan. 20, 2015), a 5-2 majority ruled that Daubert did not apply because the underlying commitments were commenced several years before Daubert took effect, even though the discharge petitions were filed after Wisconsin adopted the Daubert standard.
“The Daubert standard applies to ‘actions’ or ‘special proceedings’ commenced on or after February 1, 2011,” wrote Justice Annette Ziegler. “The original Chapter 980 commitments here began several years before the Daubert standard was adopted. …”
Alger and Knipfer argued that the state’s expert testimony should have been barred under the Daubert standard, and failing to exclude it violated their constitutional right to equal protection and due process of law. The state argued that that Daubert standard, codified at Wis. Stat. section 907.02(1), didn’t apply to these particular proceedings.
The state also argued that the legislature had a rational basis for not applying the Daubert evidentiary standard to discharge petitions filed after the law took effect if the original commitment action against the individual was filed before Feb. 1, 2011.
Alger was originally committed as a sexually violent person in 2005. Knipfer was committed in 2003. After February 2011, both filed discharge petitions.
Both relied on opinions from experts who said they were no longer sexually violent. But the state produced experts who said they should not be discharged. In both cases, the jury found that the defendant’s met the criteria for continued involuntary commitment under Wis. Stat. Ch. 980 after the judge admitted the state’s expert testimony.
The supreme court majority affirmed. It defined the terms “commence,” “actions,” and “special proceedings,” and ultimately ruled that discharge petitions are tied to initial commitments and cannot be treated as separate “actions” or “special proceedings.”
“[E]ven though the requests for discharge are seeking relief from commitments, the requests are necessarily dependent on and tethered to the original commitments,” wrote Ziegler. “A discharge petition … is more akin to a motion within an existing matter.”
The majority rejected the argument that not applying the Daubert standard in all cases where a person was involuntarily committed before February 2011 would be absurd because commitments can last many years and Daubert sets a higher standard.
The majority noted that post-Daubert experts would be reviewing pre-Daubert expert opinions to determine whether a person’s condition has changed, injecting confusion based on competing standards. Only one standard should apply, the majority explained.
The majority also noted that it may not matter anyway in these types of cases. “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,” Ziegler wrote. “The State’s expert testimony is not the kind of ‘junk science’ that is rejected by the Daubert standard.”
Finally, the majority rejected Alger’s and Knipfer’s constitutional claims, determining the legislature had a “rational basis” for not applying the Daubert standard to involuntary commitment cases originally commenced before the Daubert standard took effect
“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,” Ziegler wrote.
Dissent
Chief Justice Shirley Abrahamson dissented, joined by Justice Ann Walsh Bradley, concluding that commitment discharge proceedings are “special proceedings,” and the Daubert standard applies to “special proceedings” commenced on or after Feb. 1, 2011.
The chief noted and the Chapter 980 proceedings are included in the Wisconsin Judicial Benchbook under “special proceedings.”
She also examined the term “special proceedings” under Black’s Law Dictionary, which says a special proceeding includes ones “that can be commenced independently of a pending action and from which a final order may be appealed immediately.”
“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,” Chief Justice Abrahamson wrote.
“The majority opinion departs from its definition of ‘special proceeding’ and does not adhere to the cases it cites in support of its position.” She would have remanded to determine whether the State’s expert testimony was admissible under Daubert.
The chief justice also said that even if rational basis review applies, “which is far from clear,” there does not appear to be a rational basis for applying the Daubert standard only to commitment proceedings originally commenced on or after Feb. 1, 2011.
