Commitment petition not moot if subject of petition sent back to prison 

By Joe Forward, Legal Writer, State Bar of Wisconsin

April 20, 2011 – In a case of first impression, an appeals court recently concluded that commitment petitions for sexually violent persons do not become moot if the Department of Health Services doesn’t have immediate power to take custody of those eventually committed.

Under Wis. Stat. section 980.06, a court must order that sexually violent persons be placed in institutional care, under the custody of the Department of Health Services (DHS), “until such time as the person is no longer a sexually violent person.”

Before Carl Gilbert and Price Hunt were released from prison on parole and extended supervision, respectively, the state filed section 980.02 petitions to have both committed to an institution as sexually violent persons. The court ordered both be evaluated.

While detained for evaluation, both were revoked from parole and extended supervision and sent back to the custody of the Department of Corrections (DOC). While in DOC custody, the commitment proceedings continued, resulting in commitment orders.

Gilbert remained in DOC custody until the commitment proceedings concluded. He filed a post-conviction motion, asserting the commitment proceedings became moot when his parole was revoked because immediate commitment to DHS custody was impossible.

Similarly, the court ordered that Hunt serve the remainder of his re-confinement term before commitment to DHS custody. Hunt moved to dismiss on the same grounds.

On appeal, both Gilbert and Hunt argued that ch. 980 petitions should have been dismissed because their return to DOC custody “eliminated the possibility of placing them in immediate DHS custody, as required by Wis. Stat. § 980.06.” The circuit courts rejected that argument.

In the consolidated appeal of State v. Gilbert and State v. Hunt, 2010AP594 & 2010AP1155 (April 12, 2011), the District I Wisconsin Court of appeals affirmed, concluding that “commitment proceedings can occur while the subject of the proceedings is incarcerated.”

Even though section 980.06 provides that a court must order a sexually violent person “to be committed to the custody of the [DHS] for control, care, and treatment,” Judge Joan Kessler explained, section 980.065 “allows DHS to house committed persons in a DOC secure facility or a secure mental health unit.”

In addition, Judge Kessler explained that other ch. 980 provisions and overall legislative intent allow DHS to use detention facilities operated by others during commitment proceedings.

“Had the legislature intended to require dismissal of the petition when the subject of the petition was returned to prison, it could have easily said so,” Kessler wrote. “In the context of dismissal provisions, the lack of such a provision is persuasive evidence of intent directly contrary to that argued by appellants.”