DAs can't initiate Chapter 980 petitions.

Byline: David Ziemer

A district attorney cannot petition for commitment of a prisoner as a sexually violent person, in the absence of a referral from the Department of Corrections (DOC) to the Department of Justice (DOJ), the Wisconsin Supreme Court held on July 3.

Harris D. Byers was an incarcerated sex offender due to be released, and the Brown County district attorney filed a petition against him pursuant to Chapter 980, even though the DOC did not refer the case to the DOJ for filing. Byers moved to dismiss on that ground, but Judge William C. Griesbach denied the motion.

Byers unsuccessfully sought interlocutory review, and on the second day of trial, the parties entered an agreement, under which Byers admitted to being a sexually violent person, and the State agreed not to oppose conditional release.

Nevertheless, the court ordered institutional confinement. Byers appealed, and the court of appeals affirmed in a decision recommended for publication, but not published by the Publication Committee.

The Supreme Court accepted Byers' petition for review, and reversed the court of appeals in a decision by Justice Ann Walsh Bradley.

Legislative History

Section 980.02(1) provides, in relevant part, "A petition alleging that a person is a sexually violent person may be filed by one of the following: (a) The department of justice at the request of [the DOC]... (b) If the department of justice does not file a petition under par. (a), the district attorney..."

The court began by examining the legislative history. The court found that the original language of the law provided that a petition could be filed by (a) the district attorney; or (b) the DOJ, at the request of a district attorney or the DOC.

From this, the court concluded, "A review of the placement of the provisions, together with the legislative history, reflects an intent to create a step-by-step process that must be followed before a district attorney has authority to file a petition. Under this step-by-step process, the initial step is that the agency with jurisdiction evaluates the person to be released to determine whether the person may meet the criteria for commitment as a sexually violent person. If the agency determines that the person may meet the criteria, the agency requests that the DOJ file a petition. The DOJ can then file a petition or coordinate with one of the appropriate district attorneys regarding filing a petition. Alternatively, the DOJ can determine that a filing is not warranted despite the agency request, in which case one of the appropriate district attorneys can then file the petition on his or her own."

The court acknowledged that its interpretation elevates the role of DOC in determining when a Chapter 980 petition can be filed, but concluded there are several policy...