State v. Jamie Lane Stephenson

2020 WI 92

• Court: Wisconsin Supreme Court
• Decided: December 18, 2020
• Docket: 2018AP002104
• Status: Published

Opinion

2020 WI 92

SUPREME COURT OF WISCONSIN CASE NO.: 2018AP2104

COMPLETE TITLE: In re the commitment of Jamie Lane Stephenson:

State of Wisconsin, Petitioner-Respondent, v. Jamie Lane Stephenson, Respondent-Appellant-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 389 Wis. 2d 322,935 N.W.2d 842 PDC No:2019 WI App 63 - Published

OPINION FILED: December 18, 2020 SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 14, 2020

SOURCE OF APPEAL: COURT: Circuit COUNTY: Dunn JUDGE: Rod W. Smeltzer

JUSTICES: REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court, in which ROGGENSACK, C.J., ZIEGLER, HAGEDORN, and KAROFSKY, JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion in which DALLET, J., joined. NOT PARTICIPATING:

ATTORNEYS:

For the respondent-appellant-petitioner, there were briefs filed by Jefren E. Olsen assistant state public defender. There was an oral argument by Jefren E. Olsen.

For the petitioner-respondent, there was a brief filed by Donald V. Latorraca, assistant attorney general; with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Donald V. Latorraca. 2020 WI 92

NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2018AP2104 (L.C. No. 2011CI1)

STATE OF WISCONSIN : IN SUPREME COURT

In re the commitment of Jamie Lane Stephenson:

State of Wisconsin, FILED Petitioner-Respondent, DEC 18, 2020 v. Sheila T. Reiff Clerk of Supreme Court Jamie Lane Stephenson,

Respondent-Appellant-Petitioner.

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court, in which ROGGENSACK, C.J., ZIEGLER, HAGEDORN, and KAROFSKY, JJ., joined. ANN WALSH BRADLEY, J., filed a dissenting opinion in which DALLET, J., joined.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 REBECCA GRASSL BRADLEY, J. Jamie Lane Stephenson

seeks review of the court of appeals decision1 affirming the

circuit court's denial2 of his Chapter 980 petition for discharge

1State v. Stephenson, 2019 WI App 63, 389 Wis. 2d 322, 935 N.W.2d 842. 2The Honorable Rod W. Smeltzer, Dunn County Circuit Court, presided. No. 2018AP2104

from his commitment as a sexually violent person. Stephenson

raises three issues. First, he contends that Chapter 980

requires the State to present expert testimony in order to prove

he is dangerous because his mental disorder makes it more likely

than not that he will re-offend in a sexually violent manner.

Because the State failed to do so, Stephenson asserts there is

insufficient evidence to continue his Chapter 980 commitment.

Second, Stephenson asks this court to overrule the sufficiency-

of-the-evidence standard of review this court adopted in Curiel.3

Third, he claims that even if expert testimony is not required,

and even if we do not overrule Curiel, the evidence was

nevertheless insufficient to support the circuit court's

decision denying his petition for discharge.

¶2 We hold the State is not required to present expert

testimony to prove the required dangerousness element in Wis.

Stat. § 980.01(7) (2017-18).4 We further reject Stephenson's

request to overrule Curiel and, instead, reaffirm Curiel's

holding that the appropriate standard of review to use in Chapter 980 cases is the sufficiency-of-the—evidence test set

forth in our criminal law. Finally, we hold the evidence of

record satisfies the sufficiency-of-the-evidence standard. We

affirm the decision of the court of appeals.

I. BACKGROUND

3In re Commitment of Curiel, 227 Wis. 2d 389, 597 N.W.2d 697 (1999). 4All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated.

2 No. 2018AP2104

¶3 Stephenson has a lengthy history of committing sexual

assaults. In 2000, when he was 15 years old, the State charged

Stephenson with three counts of fourth-degree sexual assault.

One of these charges resulted in a delinquency adjudication. In

2001, Stephenson sexually assaulted a high school classmate. In

that case, Stephenson led the student to a secluded area of the

high school, forcefully pushed her up against a wall, pulled

down her pants, and began engaging in forced intercourse.

Stephenson was subsequently adjudicated delinquent for second-

degree sexual assault of a child.

¶4 In 2004, Stephenson engaged in sexual intercourse with

two 15-year-old girls. The State charged Stephenson with two

counts of second-degree sexual assault of a child, and he later

pled guilty to two counts of fourth-degree sexual assault of a

child. The circuit court placed him on two years of probation.

Also in 2004, Stephenson engaged in sexual intercourse with a

12-year-old girl in Minnesota when he was 19 years old. The

State of Minnesota charged Stephenson with one count of second- degree criminal sexual conduct. Stephenson was ultimately

convicted of this charge and placed on 25 years of probation.

¶5 In 2007, Stephenson corresponded with a 14-year-old

girl over the internet and lied to her about his age. When he

eventually met her face-to-face, Stephenson pinned her down and

forced her to engage in sexual intercourse. That same year,

Stephenson restrained a 16-year-old girl and forcibly engaged in

sexual intercourse with her while her parents were away. The girl was eventually able to escape. 3 No. 2018AP2104

¶6 For these incidents in 2007, the State charged

Stephenson with two counts of sexual assault of a child.

Stephenson subsequently pled guilty to one count of second-

degree sexual assault of a child and, in 2009, was sentenced to

two years of initial confinement followed by four years of

extended supervision. In 2011, as Stephenson's release date

neared, the State filed a petition to qualify Stephenson as a

"sexually violent person," pursuant to Wis. Stat. ch. 980. The

circuit court committed Stephenson to a secure mental health

facility.

¶7 In 2017, Stephenson petitioned the circuit court to

discharge him from commitment. The State opposed Stephenson's

release. The circuit court considered his petition and

conducted a discharge trial. In order to continue Stephenson's

commitment on the basis that he remained a "sexually violent

person," the State was required to prove three elements by clear

and convincing evidence: (1) that he has been convicted of a

sexually violent offense [hereinafter the "first element"],5 (2) that he has a mental disorder that predisposes him to acts of

sexual violence [hereinafter the "second element"],6 and (3) that

he is dangerous to others because the mental disorder makes it

more likely than not that he will engage in one or more future

5"Sexually violent offense" is defined in Wis. Stat. § 980.01(6). 6In full, "mental disorder" is defined as a "congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence." Wis. Stat. § 980.01(2).

4 No. 2018AP2104

acts of sexual violence [hereinafter the "third element"]. Wis.

Stat. § 980.01(7).

¶8 At the discharge trial, there was no dispute over the

first element: Stephenson had been convicted of a host of

sexually violent offenses. In order to establish the second

element, the State introduced testimony from an expert witness,

Donn Kolbeck, a psychologist employed by the Department of

Health Services (DHS) who had previously evaluated Stephenson.

Kolbeck testified that he diagnosed Stephenson with two

qualifying mental disorders: (1) Other Specified Personality

Disorder, with antisocial and borderline features, and (2)

Alcohol Abuse Disorder.

¶9 Kolbeck testified that Stephenson's personality

disorder meant that he possesses an "enduring pattern of inner

experience and behavior that deviates . . . markedly from the

expectations of the individual's culture leading to

impairments[] in cognitions, emotions, interpersonal

functioning, and impulse control." Kolbeck further stated that Stephenson exhibits "a long history of deceitfulness, conning

and manipulation in the context of sexually violent behaviors,

impulsivity, irritability, consistent irresponsibility, and a

lack of remorse." According to Kolbeck, Stephenson's

personality disorder "has a direct causal connection to [his]

sexually violent behaviors in the community."

¶10 With regard to the other qualifying mental disorder,

Kolbeck testified that, while Stephenson's symptoms were in remission given his controlled environment, Stephenson's "use of 5 No. 2018AP2104

alcohol . . . was a condition that predisposed him to engage in

acts of sexual violence." He further testified that

Stephenson's alcohol consumption grew heavily over time,

progressing to "frequent intoxication" during his life.

According to Kolbeck, Stephenson also admitted that he had

"never committed a crime sober" and that he was still "capable

of social drinking" in the community.

¶11 Additionally, Kolbeck testified regarding Stephenson's

numerous rule violations while committed. Noting that

Stephenson's anti-social traits were "still active," Kolbeck

explained that Stephenson repeatedly covered his room window

with a towel, despite contrary instructions from staff. When

confronted with this violation, Stephenson lied, claiming this

behavior had been allowed by other unit staff members.

Additionally, while in confinement, Stephenson had been cited

repeatedly for trying to obtain property that he was not allowed

to have. In one case, Stephenson violated the rules by ordering

women's lingerie——an item expressly prohibited under the facility's policies.

¶12 Kolbeck also stated that Stephenson produced a

concerning result on a non-suppressed penile plethysmograph

test, during which Stephenson became aroused by stimuli

"depicting teenager coercive interactions" as well as by graphic

depictions of "victims crying or in some form of suffering"

related to sexual deviancy. Kolbeck testified that Stephenson

tested highly on measures of psychopathy, as quantified by the Psychopathy Checklist—Revised (PCL-R). While most individuals 6 No. 2018AP2104

in the "prison population" score "roughly 23" on the PCL-R,

Stephenson scored a "29," which is "consistent with a high

degree of psychopathy." Kolbeck opined that these indicators

suggest that Stephenson manifests characteristics of shallow

affect, grandiosity, and manipulation.

¶13 Next, Kolbeck addressed the third element: whether

Stephenson's mental disorder makes it more likely than not that

he will engage in one or more future acts of sexual violence.

In opining on this issue, Kolbeck employed two actuarial risk

instruments to measure Stephenson's risk of future

dangerousness: the Static-99R and the Violence Risk Scale—Sex

Offense Version (VRS-SO). Based on these assessment tools,

Kolbeck concluded that Stephenson had a 41 percent probability

of re-offending. Importantly, Kolbeck defined "re-offense" as

the probability of Stephenson being arrested or charged with a

sexual crime, not his actual likelihood of committing future

acts of sexual violence. Stephenson's score on this instrument

(41 percent) was lower than the "more likely than not" standard required for the third element. As a result, Kolbeck concluded

that, under this measure, Stephenson did not satisfy the third

element.

¶14 Following Kolbeck's testimony, Stephenson introduced

his own expert witness, Courtney Endres, a psychologist whose

evaluation of Stephenson supported his discharge petition. With

respect to the second element, Endres testified that Stephenson

"no longer meets the criteria for a mental disorder as defined under Wisconsin Chapter 980." As to the third element, Endres 7 No. 2018AP2104

opined that Stephenson's "risk falls below the threshold" and

that he "is not likely to reoffend in the future." Although

Endres used the same Static-99R and VRS-SO instruments employed

by Kolbeck, Endres applied slightly different risk assessment

factors and determined that Stephenson posed a 10 percent risk

of re-offense over five years and a 17 percent risk over ten

years. Accordingly, Endres concluded that Stephenson no longer

met the statutory criteria for commitment as a sexually violent

person.

¶15 Stephenson also presented testimony from Darren

Matusen, a psychologist at Stephenson's treatment facility.

Matusen explained Stephenson's intensive three-phase treatment

program during commitment and stated that Stephenson was in

phase three of this program. He opined that Stephenson had made

progress in his treatment, even though he "is still callous at

times." He also stated that, while Stephenson "has a history of

minimizing the seriousness of his sexual offenses," he has more

recently "acknowledged that adolescents are incapable of consent" and has "taken responsibility" for his crimes. Matusen

also testified that, during the previous year, Stephenson

assessed his own risk of re-offending as a "five out of ten"

chance.

¶16 After hearing all of the testimony, the circuit court

denied Stephenson's discharge petition, finding that he remained

a sexually violent person. The court ruled that, based upon

Kolbeck's testimony, Stephenson suffers from both of the aforementioned mental disorders and "does have a risk to 8 No. 2018AP2104

reoffend." Nonetheless, the circuit court acknowledged that

Stephenson "has made significant progress" in his treatment and

therefore granted him supervised release pursuant to Wis. Stat.

§ 980.08(4)(cg).

¶17 Following the circuit court's determination,

Stephenson filed a motion for postcommitment relief. In his

motion, Stephenson conceded the first two elements of the

criteria for commitment as a "sexually violent person,"

challenging only the third element. Stephenson argued the State

failed to meet its burden of proof on the third element because

no expert testified that he was more likely than not to commit a

future act of sexual violence. Specifically, Kolbeck testified

that Stephenson's risk of arrest or conviction for committing

future acts of sexual violence was only 41 percent, a figure

failing to satisfy the "more likely than not" standard,

Stephenson argued. Stephenson further claimed that, even if

expert testimony was not required for the third element, the

State's evidence was insufficient to prove that Stephenson was dangerous. The circuit court denied this motion, holding that

the State was not required to present expert testimony on the

third element and that the State presented sufficient evidence

to deny his discharge. Stephenson appealed, and the court of

appeals affirmed the circuit court's ruling. We granted

Stephenson's petition for review.

II. STANDARD OF REVIEW

¶18 Stephenson asks this court to interpret Wisconsin's sexually violent person commitment laws under Wis. Stat. ch. 980 9 No. 2018AP2104

and to consider whether expert testimony is required to continue

a commitment. This court reviews questions of statutory

interpretation "independently, [while] . . . benefit[ing] from

the decisions by the court of appeals and circuit court." In re

Commitment of Talley, 2017 WI 21, ¶24, 373 Wis. 2d 610, 891

N.W.2d 390; see also Racine Cnty. v. Oracular Milwaukee, Inc.,

2010 WI 25, ¶24, 323 Wis. 2d 682, 781 N.W.2d 88. Additionally,

Stephenson asks this court to overrule Curiel and adopt a

different standard of reviewing whether the evidence is

sufficient to uphold the factfinder's determination that a

person is sexually violent. The standard of review we apply

presents a question of law that we review de novo. See In re

Commitment of Curiel, 227 Wis. 2d 389, ¶¶52-53, 597 N.W.2d 697

(1999).

III. DISCUSSION

A. Expert Testimony for Chapter 980 Proceedings

¶19 Stephenson contends that, during Chapter 980 discharge

trials, the State must present expert testimony to satisfy its burden of establishing the third element: that the committee is

dangerous to others because his mental disorder makes it more

likely than not that he will engage in one or more future acts

of sexual violence. Wis. Stat. § 980.01(7). Stephenson asserts

that, because the State's expert witness failed to testify

Stephenson was "more likely than not to reoffend," the circuit

court wrongfully denied his petition for discharge. We are not

persuaded.

10 No. 2018AP2104

¶20 In essence, Stephenson asks this court to breathe

requirements into a Wisconsin statute that are textually absent.

Nowhere does Wis. Stat. ch. 980 require expert testimony for

determinations of a committee's dangerousness, nor should this

court invade the province of the legislature to create a rule

out of whole cloth. Indeed, the legislature is capable of

enacting such language if it chooses. In Wis. Stat.

§ 980.07(1), for example, the legislature requires that expert

examiners conduct "reexamination[s] of the person's mental

condition . . . [every] 12 months to determine whether the

person has made sufficient progress for the court to consider

whether the person should be . . . discharged." Similarly, the

legislature expressly invites courts to hear expert testimony

when a committee denies the facts in a petition alleging that he

is sexually violent. Wis. Stat. § 980.031.7 Not so for

§ 980.09. While this court could mandate expert witness

testimony to support the third element, we decline to do so.

"The requirement of expert testimony is an extraordinary one, and [it is applied] by the trial court only when unusually

complex or esoteric issues are before the jury." White v.

Leeder, 149 Wis. 2d 949, 960, 440 N.W.2d 557 (1989).8 This court

"If a person who is the subject of a petition filed under 7

§ 980.02 denies the facts alleged in the petition, the court may appoint at least one qualified licensed physician, licensed psychologist, or other mental health professional to conduct an examination of the person's mental condition and testify at trial." Wis. Stat. § 980.031.

The dissent cites the "Basic Guide to Wisconsin Small 8

Claims Actions" for the proposition that Wisconsin "acknowledges 11 No. 2018AP2104

rightly refuses to read words into a statute that are simply not

there, and this case is no exception. See Bruno v. Milwaukee

Cnty., 2003 WI 28, ¶16, 260 Wis. 2d 633, 660 N.W.2d 656.

¶21 As a general matter, expert testimony may be

admissible at trials if, inter alia, "scientific, technical, or

other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue." Wis.

Stat. § 907.02(1).9 But within the context of Chapter 980,

the need for" expert testimony from a "full-time mechanic or a repair person" in a "motor vehicle faulty repair case." Dissent, ¶¶58-59. Neither the guide nor Wisconsin law says that. Setting aside the fact that "[t]his document is only a general guide" and not the law, the language cited by the dissent simply says that if a party is planning to present the testimony of an expert witness, it is "almost always necessary" to have the expert testify in person:

Having the expert witness testify in person is almost always necessary. Merely repeating what your expert told you will probably not be allowed. A written statement or affidavit from the expert witness will not be sufficient.

While "My Cousin Vinny" certainly established how compelling expert testimony can be regarding the characteristics of a car, the dissent's claim that "this court acknowledges the need for an expert to testify even in a small claims motor vehicle faulty repair case" is plainly wrong.

9 Contrary to the dissent's construction of Wis. Stat. § 907.02(1), nothing in the text of this statute requires the admission of expert testimony; to the contrary, its language is permissive rather than mandatory, affording the trial court the discretion to admit expert testimony if it will "assist the trier of fact":

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, 12 No. 2018AP2104

determinations of future dangerousness rest soundly within the

purview of lay factfinders. Courts recognize factfinders to be

quite adept at understanding how an individual's criminal

history, admissions of wrongdoing (or lack thereof), performance

on supervision, or progress in treatment inform his likelihood

of committing future acts of violence. See, e.g., State v.

Randall, 2011 WI App 102, ¶¶9-10, 19, 336 Wis. 2d 399, 802

N.W.2d 94 (holding that, in a case involving a petitioner's

commitment on grounds of insanity, the factfinder properly

concluded that the petitioner's past crimes and poor behavior

during commitment showed that he "still pose[d] a danger to

society"); Estelle v. Smith, 451 U.S. 454, 472 (1981)

(discussing the important role of a factfinder in assessing an

individual's future danger to society).

¶22 In this case, Kolbeck testified that, based on

calculations using Static-99R and VRS-SO, Stephenson had a 41

percent risk of re-offending, which he defined as the risk of

being arrested and charged with a crime of sexual violence. While this is below the threshold of "more likely than not," a

factfinder could reasonably determine that other evidence,

separate from these actuarial instruments, weighs in favor of

experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.

13 No. 2018AP2104

continued commitment based on the likelihood of Stephenson

committing future acts of sexual violence, regardless of whether

he ultimately faced arrest or charges as a result. For example,

Kolbeck testified that Stephenson scored disproportionately high

on measures of psychopathy, repeatedly violated the treatment

facility's policies, and generated a concerning result on his

non-suppressed penile plethysmograph test. Weighing these

additional factors falls squarely within the comprehension and

competency of lay factfinders. After all, in a variety of other

sorts of cases, a factfinder's principal duty involves reviewing

the entire panorama of evidence, weighing its significance, and

drawing conclusions therefrom.10 See, e.g., Jackson v. Virginia,

443 U.S. 307, 318-19 (1979) (discussing how factfinders must

weigh the evidence and draw reasonable inferences in criminal

trials); Lang v. Lowe, 2012 WI App 94, ¶¶16-18, 344 Wis. 2d 49,

820 N.W.2d 494 (discussing how factfinders appropriately weigh

evidence in civil actions).

¶23 No Wisconsin appellate court has ever required trial courts to hear expert testimony on the third element. More than

two decades ago, this court expressly declined to create such a

rule and held that the circuit court properly considered the

10Of course, this is not to say that a factfinder would not benefit from hearing expert testimony on the third element. As the State admits, it may often prove difficult for the State to demonstrate without an expert a committee's likelihood of engaging in future acts of sexual violence sufficient to render him dangerous to others. But to mandate expert testimony is an entirely different matter.

14 No. 2018AP2104

State's other evidence——namely, that the committee had a 25-year

criminal history, was deliberately violating his rules of

supervision, and was in denial of his need for treatment. In re

Commitment of Kienitz, 227 Wis. 2d 423, ¶31, 597 N.W.2d 712

(1999) (stating that, "[b]ecause there was expert testimony on

the issue of future acts of sexual violence in this case," it

need not opine on whether "expert testimony is required as a

matter of law."). Likewise, the United States Supreme Court has

never required experts to testify on "future dangerousness"

either. In Estelle v. Smith, 451 U.S. 454, 472 (1981), the

Court held that, on the issue of capital sentencing procedures

(which require a determination of "dangerousness"), "the jury's

resolution of the future dangerousness issue is in no sense

confined to the province of psychiatric experts." In another

case, the Court stated that experts should not have the only say

in whether or not an individual is dangerous, given that lay

juries and courts can "sensibly" arrive at such conclusions.

Barefoot v. Estelle, 463 U.S. 880, 896 (1983) (superseded by statute on other grounds).

¶24 Stephenson relies heavily upon Wal-Mart Stores, Inc.

v. LIRC, 2000 WI App 272, 240 Wis. 2d 209, 621 N.W.2d 633, as

well as Brown County Human Services v. B.P., 2019 WI App 18, 386

Wis. 2d 557, 927 N.W.2d 560, for his assertion that the State is

required "to present expert opinion testimony that the

respondent is dangerous." Both cases are inapposite. In Wal-

Mart Stores, an employee brought an employment discrimination suit alleging that his employer fired him because of his 15 No. 2018AP2104

obsessive-compulsive disorder (OCD). 240 Wis. 2d 209, ¶¶2-3.

The court of appeals held that the employee needed to present

expert testimony in order to prove that his OCD caused the

behavior that led to his firing. Id., ¶16. While the

employee's therapist testified regarding the employee's OCD

diagnosis, she provided no evidence that the OCD caused the

behaviors triggering his firing. Id., ¶23. In the absence of

such expert testimony, the court of appeals concluded the Labor

and Industry Review Commission erred in determining that Wal-

Mart discriminated against the employee on the basis of his

disability. Id., ¶1. Similarly, the court of appeals in B.P.

decided that a parent facing termination of parental rights

needed to present expert testimony to support his assertion that

his psychological condition caused him not to visit or

communicate with his child. 386 Wis. 2d 557, ¶48. Without such

expert testimony, the court concluded that the trier of fact

would have to speculate. Id., ¶49. Unlike either of those

cases, in this Chapter 980 proceeding, an expert witness did supply the causal link between Stephenson's mental disorder and

his prior sexually violent behaviors. Kolbeck testified that

Stephenson's personality disorder "has a direct causal

connection to [his] sexually violent behaviors in the

community."

¶25 Notwithstanding this linkage established by expert

testimony, Stephenson nevertheless argues that the holdings of

Wal-Mart Stores and B.P. should prohibit a factfinder from determining that a committee is dangerous to others without an 16 No. 2018AP2104

expert witness opining that the committee's mental disorder

makes it more likely than not that he will engage in one or more

future acts of sexual violence. We disagree. The rule applied

in Wal-Mart Stores and B.P. does not fit the factfinder's

determination under Wis. Stat. § 980.01(7). Unlike the third

element of that statute, the inquiries requiring expert

testimony in Wal-Mart Stores and B.P. were entirely

retrospective, involving whether mental health conditions caused

behaviors that had already occurred. The issue in Wal-Mart

Stores was whether the employee's past conduct was caused by his

mental disorder; similarly, the issue in B.P. was whether the

parent's past conduct was caused by his psychological condition—

—both decidedly different inquiries than in Chapter 980 cases,

in which any proffered expert testimony would inform the

committee's propensity to commit future acts of sexual violence.

In other words, the court of appeals deemed expert testimony

necessary to establish a causal link between the employee's

disorder and the conduct for which he was fired in Wal-Mart Stores, as well as to establish a causal link between the

father's psychological condition and the conduct for which the

State sought to terminate his parental rights in B.P. Both of

these considerations fall beyond the competence of the lay

factfinder, who, without expert testimony, cannot determine

whether a mental health condition or a disorder did in fact

cause particular behaviors. In contrast, the third element

under Wis. Stat. § 980.01(7) asks the factfinder to make a risk assessment regarding the likelihood the committee will engage in 17 No. 2018AP2104

future acts of sexual violence, a predictive determination long

regarded as well within the province of the lay factfinder.

¶26 Significantly, Chapter 980 cases involve a multitude

of supplemental evidence pertinent to the third element that is

simply irrelevant in employment discrimination and termination

of parental rights cases. In discharge proceedings, the State

typically presents evidence of the committee's progress in

treatment, his performance on psychometric evaluations, and the

nature of his mental disorder. The factfinder in Chapter 980

cases has a comprehensive range of evidence at its disposal when

assessing whether an individual's mental disorder makes it more

likely than not that he will re-offend in a sexually violent

manner——a characteristic often lacking in ordinary civil

disputes involving psychological evaluations. In this respect,

among others, Chapter 980 cases are an entirely different

species of law compared to ordinary civil disputes. After all,

"[t]he primary goals and purposes of ch. 980 are to treat

sexually violent persons and to protect society from the danger posed by those persons," and the array of evidence available to

factfinders reflects these consequential aims. In re Commitment

of West, 2011 WI 83, ¶27, 336 Wis. 2d 578, 800 N.W.2d 929.

¶27 Nonetheless, Stephenson maintains that the language of

Wis. Stat. § 980.01(7) suggests that expert testimony is

required to prove that an individual is dangerous to others

because his mental disorder makes it more likely than not that

he will commit future acts of sexual violence. Stephenson's argument rests upon his interpretation of language in State v. 18 No. 2018AP2104

Sorenson, 2002 WI 78, ¶20, 254 Wis. 2d 54, 646 N.W.2d 354,

indicating that § 980.05(4) "contemplates that the state must

put forth expert evidence showing the respondent's mental

disorder." According to Stephenson's argument, because the

statute directly links the mental disorder to the individual's

likelihood to re-offend in a sexually violent manner, if expert

testimony is required to prove the existence of a mental

disorder, expert testimony must also be required for the third

element. We are unpersuaded.

¶28 As a preliminary matter, whether Wis. Stat. §

980.05(4) requires expert testimony to establish a committee's

mental disorder was not an issue before the court in Sorenson.

It is not necessary for us to resolve that issue in this case

either. As Stephenson concedes, Kolbeck's diagnoses supply

sufficient evidence to establish that Stephenson has a mental

disorder that predisposes him to acts of sexual violence. The

State's expert linked Stephenson's mental disorder with his

potential for recidivism (thereby satisfying the second element) and it was the factfinder's role to then determine whether

19 No. 2018AP2104

Stephenson's mental disorder made him more likely than not to

commit a future act of sexual violence (the third element).11

¶29 As Chapter 980 makes clear, a "mental disorder" is a

"congenital or acquired condition affecting the emotional or

volitional capacity that predisposes a person to engage in acts

of sexual violence." Wis. Stat. § 980.01(2) (emphasis added).

Accordingly, when an expert testifies to a committee's mental

disorder, he establishes that the committee has a predisposition

for acts of sexual violence. The next statutory step involves

assessing the likelihood the committee will commit such acts in

the future. Logically, when ascertaining a committee's

potential for committing acts of sexual violence in the future,

the factfinder necessarily ties its determination to the

predisposition produced by the mental disorder. In other words,

when providing testimony sufficient to establish the second

element, the expert lays the foundation for any forthcoming

evidence pertinent to the third element. Because the

determination of whether the committee is more likely than not to engage in future acts of sexual violence remains squarely

The dissent misconstrues the court's statutory analysis 11

by suggesting that the "majority's interpretation of Wis. Stat. § 980.01(7) erroneously collapses the required statutory elements from three to two." Dissent, ¶61. Of course, simply because expert testimony is not required for the third element does not mean that the element falls away. The dissent misunderstands the simple issue in this case, which is whether expert testimony is necessary to determine whether it is more likely than not that the committee will engage in future acts of sexual violence. The court's conclusion that the answer to this inquiry falls within the purview of the factfinder does not mean this statutory element disappears.

20 No. 2018AP2104

within the purview of the factfinder, expert testimony on the

third element may inform the factfinder's decision but it is not

necessary to conclude that a person is sexually violent.

B. Sufficiency-of-the-Evidence in Chapter 980 Appeals

¶30 Stephenson next asks us to overrule Curiel and depart

from the sufficiency-of-the-evidence standard of review courts

have been using for over 20 years. Under Curiel, appellate

courts review Chapter 980 cases by asking whether "the evidence,

when viewed most favorably to the state and [the commitment], is

so insufficient in probative value and force that it can be said

as a matter of law that no trier of fact, acting reasonably,

could have found [the person sexually violent] beyond a

reasonable doubt" at an initial commitment trial and by "clear

and convincing evidence" at a discharge trial. See In re

Commitment of Curiel, 227 Wis. 2d 389, ¶52, 597 N.W.2d 697

(citation omitted); Wis. Stat. §§ 980.05(3) (at an initial

commitment trial, the State must prove "beyond a reasonable

doubt" that the individual is a sexually violent person) and 980.09(3) (at a discharge trial, the State must prove "by clear

and convincing evidence" that the individual still meets the

criteria for commitment as a sexually violent person). This

sufficiency-of-the-evidence test is the same standard that we

apply in reviewing criminal convictions. Curiel, 227

Wis. 2d 389, ¶53. Stephenson asks us to jettison this standard

and instead apply independent review to whether the evidence

satisfied the legal standard for dangerousness. We see no reason to do so. 21 No. 2018AP2104

¶31 In Curiel, the court concluded that, because Chapter

980 proceedings "share[] many of the same procedural and

constitutional features present in criminal prosecutions,"

courts must apply the criminal standard of review to Chapter 980

cases. Id., ¶54. Although it is true that Curiel partly relied

upon a now-repealed statute to support its holding,12 many of the

same rights recognized for criminal defendants continue to apply

to committees in Chapter 980 proceedings. As provided by Wis.

Stat. §§ 980.03(2) and (3), sexually violent offenders have the

right to remain silent, to be provided with counsel, to request

jury trials at initial commitment, to have the State prove

initial commitment "beyond a reasonable doubt," and to present

and cross-examine witnesses. Like criminal trials, Chapter 980

proceedings also demand that the State turn over "[a]ny

exculpatory evidence" which may inform a committee's right to

discharge. Wis. Stat. § 980.036(2)(j). Indeed, although

criminal trials and Chapter 980 proceedings possess important

differences (e.g., the latter is not for purposes of punishment), their relevant procedures are decidedly analogous——

a fact properly recognized by Curiel. If Chapter 980

proceedings and criminal actions "parallel" each other in

substantive respects, as Curiel noted, then it only makes sense

that these cases have mirroring standards for reviewing

Wisconsin Stat. § 980.05(1m) has since been legislatively 12

repealed. See 2005 Wis. Act 434 §§ 101, 131(1). This statute provided that "[a]ll constitutional rights available to a defendant in a criminal proceeding are available to the [individual subject to commitment proceedings]."

22 No. 2018AP2104

challenges to the sufficiency of the evidence. Curiel, 227

Wis. 2d 389, ¶55.

¶32 In asking this court to uproot established case law,

Stephenson omits any discussion of Wisconsin's commitment to the

doctrine of stare decisis. This court respects the doctrine of

stare decisis and will not overturn precedent absent a "special

justification." State v. Roberson, 2019 WI 102, ¶49, 389

Wis. 2d 190, 935 N.W.2d 813 (citation omitted). "This court

follows the doctrine of stare decicis scrupulously because of

[its] abiding respect for the rule of law," and "[this] court's

decision to depart from precedent is not to be made casually."

Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108,

¶94, 264 Wis. 2d 60, 665 N.W.2d 257; see also Progressive N.

Ins. v. Romanshek, 2005 WI 67, ¶41, 281 Wis. 2d 300, 697

N.W.2d 417. Typically, we explore five factors before deciding

whether to overturn precedent and we are "more likely" to do so

only "when one or more of the following circumstances is

present: (1) [c]hanges or developments in the law that have undermined the rationale behind the decision; (2) there is a

need to make a decision correspond to newly ascertained facts;

(3) there is a showing that the precedent has become detrimental

to coherence and consistency in the law; (4) the prior decision

is 'unsound in principle'; or (5) the prior decision is

'unworkable in practice.'" Bartholomew v. Wisconsin Patients

Comp. Fund & Compcare Health Servs. Ins. Corp., 2006 WI 91, ¶33,

293 Wis. 2d 38, 717 N.W.2d 21.

23 No. 2018AP2104

¶33 At no point does Stephenson grapple with these

factors. In particular, he never asserts why the current

standard is "unworkable" or "unsound," nor does he identify any

newly-ascertained facts about Chapter 980 proceedings or

inconsistencies in the law that would justify overturning

Curiel. At best, Stephenson's argument impliedly invokes the

first factor, based upon the state legislature's repeal of Wis.

Stat. § 980.05(1m) years after the Curiel decision. As

previously explained, this statutory change did nothing to

undermine the rationale underlying the Curiel decision. Chapter

980 proceedings have much in common with criminal actions,

warranting analogous standards of review. While this court is

not "barred from pursuing a sound and prudent course for the

sake of upholding its prior precedent," Stephenson's failure to

even mention the doctrine of stare decisis while urging us to

upend well-established precedent fatally foils his argument.

Johnson Controls, 264 Wis. 2d 60, ¶96.

C. The Evidence is Sufficient. ¶34 Stephenson further argues that, even without mandating

expert testimony for the third element or overturning Curiel,

the circuit court nonetheless lacked sufficient evidence to deny

his motion for postcommitment relief or to find that he remained

a sexually violent person.13 Again, we are not persuaded.

Stephenson concedes that he has been previously convicted 13

of a sexually violent offense and that he suffers from a mental disorder that predisposes him to acts of sexual violence.

24 No. 2018AP2104

¶35 Applying the Curiel standard, we will not reverse an

order denying a discharge motion based on insufficient evidence

"unless the evidence, viewed most favorably to the state and

[the commitment], is so insufficient in probative value and

force that it can be said as a matter of law that no trier of

fact, acting reasonably, could have found" the person sexually

violent by "clear and convincing evidence" at a discharge trial.

See Curiel, 227 Wis. 2d 389, ¶52 (citation omitted). The court

of appeals correctly concluded that the evidence was more than

sufficient to uphold the circuit court's denial of Stephenson's

petition for discharge.

¶36 The facts of this case disproportionately weigh

against Stephenson. First, Stephenson's criminal history proves

his penchant for re-offending in a sexually violent manner.

From 2000 to 2007, Stephenson was convicted six times for

violent sexual behavior against children. Some of these crimes

occurred while he was on probation for past offenses.

Furthermore, Stephenson's comments and conduct during his time in the treatment facility indicate he is still unable to control

his behavior. Stephenson repeatedly violated the rules of the

treatment facility and, at least on one occasion, attempted to

obtain sexually-suggestive clothing that he knew was banned.

When confronted with these indiscretions, Stephenson proceeded

to concoct lies and exhibit anti-social behavior.

¶37 Moreover, the results of Stephenson's non-suppressed

penile plethysmograph test also support the circuit court's finding. As Kolbeck testified, Stephenson became aroused by 25 No. 2018AP2104

stimuli "depicting teenager coercive interactions" as well as by

graphic depictions of "victims crying or in some form of

suffering." In addition, Stephenson scored highly on measures

of psychopathy, reflecting his propensity for exhibiting shallow

affect, grandiosity, and manipulation. These psychometric

scores correspond to Kolbeck's personal evaluations of

Stephenson, which show that he continually exhibited traits of

impulsivity, irritability, deceitfulness, and lack of remorse.

A reasonable factfinder could conclude, as did the circuit

court, that Stephenson would, more likely than not, act upon his

sexual urges if released into the community.

¶38 Perhaps most importantly, the circuit court afforded

appropriate weight to the results generated by Kolbeck's

actuarial instruments, in light of all of the evidence

presented. While Kolbeck's conclusion that Stephenson posed a

41 percent risk of being arrested and convicted of a crime of

sexual violence falls below the "more likely than not"

threshold, the statutory inquiry examines the likelihood Stephenson would commit future acts of sexual violence,

irrespective of whether he might be apprehended for, or

convicted of, such crimes. Taking into account the evidence as

a whole, a reasonable factfinder could conclude that Stephenson

met the "more likely than not" threshold for future

dangerousness. Given that Stephenson continually exhibited

traits of manipulation and deceit, a factfinder could reasonably

conclude that Stephenson's actual risk of committing future acts

26 No. 2018AP2104

of sexual violence, while nonetheless evading the law, was "more

likely than not."

¶39 Lastly, Kolbeck's testimony was sufficient to

establish the nexus between Stephenson's mental disorders and

his potential for recidivism. In particular, although

Stephenson's Alcohol Abuse Disorder was then in remission given

his confinement, Stephenson expressed a willingness to engage in

"social drinking" if released into the community——a troubling

statement for an individual who has "never committed a [sexual

assault] sober." Moreover, Kolbeck stated that Stephenson's

personality disorder "has a direct causal connection to [his]

sexually violent behaviors in the community"——an equally

disconcerting observation considering that Stephenson's anti-

social traits were "still active." Given these facts, a

reasonable factfinder could conclude, as the circuit court did,

that Stephenson would likely exhibit behaviors corresponding to

these disorders and thereby pose a danger to the community.

IV. CONCLUSION ¶40 We conclude the court of appeals did not err in

upholding the circuit court's order denying Stephenson's

petition for discharge from his Chapter 980 commitment. We

reject all three of Stephenson's arguments. First, we hold the

State is not required to present expert testimony to prove that

a person is dangerous because his mental disorder makes it more

manner. The statutes do not require expert testimony on that element and we decline to create a rule not set forth in the 27 No. 2018AP2104

text. Second, we reaffirm the sufficiency-of-the evidence test

articulated in Curiel as the appropriate standard of review for

challenges to a Chapter 980 commitment. Finally, our review of

the record reveals overwhelming evidence from which a reasonable

factfinder could have found that Stephenson continues to satisfy

the definition of a "sexually violent person." Accordingly, we

By the Court.—The decision of the court of appeals is

affirmed.

28 No. 2018AP2104.awb

¶41 ANN WALSH BRADLEY, J. (dissenting). In its

application, Chapter 980 of the Wisconsin Statutes rides on the

cusp between constitutionality and unconstitutionality.

Although civil in nature, it gives the government power to lock

up individuals indefinitely——including for life——even though

they have already completed their criminal sentence. All

recognize that a significant liberty interest is at stake here.

¶42 In order to ensure that Chapter 980 falls on the

constitutional side of the divide, enhanced procedural

safeguards are afforded to respondents. Rather than applying

the rules that normally attend a civil law proceeding, some

criminal law procedural safeguards are instead applied to

provide added protections in order to survive constitutional

challenges.

¶43 The majority opinion undermines this delicate balance

in two ways. First, it erroneously determines that expert

testimony is not required to establish the causal link that Wis.

Stat. § 980.01(7) requires: that the individual is more likely

than not to engage in future acts of sexual violence because of the diagnosed mental disorder. In reaching its erroneous

determination, the majority either ignores or misconstrues

precedent related to the necessity of expert testimony and

effectively collapses the elements for determining a sexually

violent person from three to two.

¶44 Additionally, the majority errs by perpetuating the

Curiel1 standard of review framework. Under the guise of

State v. Curiel, 227 Wis. 2d 389, 416-417, 597 N.W.2d 697 1

(1999). 1 No. 2018AP2104.awb

acknowledging the need for enhanced procedural safeguards

available to Chapter 980 respondents, the majority actually

leaves respondents with diminished protection. The standard of

review that it applies saddles the respondent with a nearly

insurmountable burden to overcome when reviewing the sufficiency

of the evidence.

¶45 By examining the causal requirement set forth in Wis.

Stat. § 980.01(7), and in light of what United States Supreme

Court precedent demands as well as what our Wisconsin precedent

and statutes require, I arrive at a conclusion contrary to that

of the majority. I determine that due process demands, and our

precedent and statutes require, that expert testimony be

presented in order to establish the causal link between an

individual's mental disorder and the risk that the individual is

more likely than not to engage in future acts of sexual

violence.

¶46 I further determine that when reviewing the

sufficiency of the evidence on the issue of future

dangerousness, appellate courts must apply a two-step standard of review that is applied in other cases of constitutional fact.

When applying this framework, questions of historical fact

should be accorded deference, while the question of whether the

facts meet a required legal standard presents a question of law

that is subject to independent appellate review. I see no

justification (and the majority offers none) for applying a more

onerous standard of review in Chapter 980 civil commitments than is applied in Chapter 51 civil commitments, which adhere to the

2 No. 2018AP2104.awb

two-step constitutional fact standard of review. See Langlade

Cnty. v. D.J.W., 2020 WI 41, ¶47, 391 Wis. 2d 231, 942 N.W.2d

277. In fact, any textual justification for reviewing Chapter

980 cases under a different standard than Chapter 51 cases

disappeared with the repeal of Wis. Stat. § 980.05(1m).

¶47 Accordingly, I respectfully dissent.

I

¶48 Wisconsin Stat. § 980.01(7) contains three elements

that the State must prove in order to continue Stephenson's

Chapter 980 commitment: (1) that he has been convicted of a

sexually violent offense; (2) that he suffers from a mental

disorder; and (3) that he is dangerous because his mental

disorder makes it more likely than not that he will engage in

future acts of sexual violence. § 980.01(7). At issue here is

whether expert testimony is necessary for the State to prove the

required causal link set forth in the third element.

¶49 At the discharge trial, both the State's expert and

Stephenson's expert agreed that Stephenson did not meet the

third element for continued commitment as a sexually violent person. The State introduced testimony from Dr. Don Kolbeck, a

psychologist, to establish the second element necessary to

commit Stephenson: that Stephenson suffers from a mental

disorder. See Wis. Stat. § 980.01(7). Dr. Kolbeck testified

that he had diagnosed Stephenson with two qualifying mental

disorders: (1) Other Specified Personality Disorder, with

antisocial and borderline features; and (2) Alcohol Abuse Disorder. Majority op., ¶8.

3 No. 2018AP2104.awb

¶50 In reaching his opinion that Stephenson did not meet

the criteria for the third element necessary to sustain his

continued commitment, Dr. Kolbeck discussed Stephenson's

progress during his course of treatment along with his

performance on two actuarial risk instruments: the Static-99R

and the Violence Risk Scale-Sex Offense Version (VRS-SO).2 The

test results indicated that Stephenson had a 41 percent

probability of sexual re-offense. Id., ¶13. When called upon

to give an opinion regarding the necessary third element, Dr.

Kolbeck concluded based on Stephenson's progress in treatment

and test results that he did not satisfy the more likely than

not standard for continued commitment. Id.; see Wis. Stat.

§ 980.01(1m) (defining "likely" as "more likely than not").

¶51 Stephenson introduced his own expert witness, Dr.

Courtney Endres, who disagreed with the State's expert as to the

second element and concluded that Stephenson "no longer [met]

the criteria for a mental disorder as defined under Wisconsin

Chapter 980." Majority op., ¶14. However, she agreed with Dr.

Kolbeck that Stephenson was unlikely to sexually re-offend and thus no longer met the statutory criteria for commitment as a

sexually violent person. Id. Endres used the same risk

assessment instruments employed by Dr. Kolbeck and determined

that Stephenson evinced a 10 percent risk of re-offense over

Dr. Kolbeck testified that the VRS-SO provides the best 2

framework for assessing dynamic risk among the available tools. Furthermore, he explained that it provides a meaningful quantification of risk reduction as a result of treatment progress.

4 No. 2018AP2104.awb

five years and 17 percent risk over ten years. Id. Despite

both experts testifying that Stephenson did not meet the third

element necessary for recommitment, the circuit court denied the

discharge petition. Id., ¶16.

II

¶52 With the relevant testimony in hand, I begin with an

examination of the of language of Wis. Stat. § 980.01(7). It

provides: "'Sexually violent person' means 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 likely that the person will engage in one or more acts

of sexual violence."

¶53 Importantly, the language of the statute requires that

there must be a causal nexus between the diagnosed mental

disorder and the likelihood of sexual re-offense. That is, in

order to be a "sexually violent person" within the meaning of

Wis. Stat. § 980.01(7), individuals must be more likely than not

to engage in future acts of sexual violence because they suffer

from a particular mental disorder. See Wis. Stat. § 980.01(1m). ¶54 Thus, the issue presented here is whether the answers

to the following questions are within the common knowledge of

the average lay person or do they require some technical

knowledge or expertise in order to establish the third element

necessary for Stephenson's continued commitment. The questions

are:

Does the mental illness ("other specified personality disorder, with antisocial and borderline features") cause

5 No. 2018AP2104.awb

Stephenson to be more likely than not to engage in future

acts of sexual violence?

Or, in the alternative, does the mental illness ("alcohol

abuse disorder") cause Stephenson to be more likely than

not to engage in future acts of sexual violence?

¶55 Although we engage in pages of analysis and legal

exegesis, the issue presented is really quite simply addressed.

Yes, expert testimony is required. Why? Because the answers

call for technical knowledge and expertise beyond that of the

average lay person. Such a conclusion is supported by the plain

language of Wis. Stat. § 907.02(1). This subsection states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.

¶56 Wisconsin courts have long held that expert testimony

is required "concerning matters involving special knowledge or

skill or experience upon subjects which are not within the realm

of the ordinary experience of mankind, and which require special

learning, study and experience." Cramer v. Theda Clark Mem'l

Hosp., 45 Wis. 2d 147, 150, 172 N.W.2d 427 (1969). This case

presents such a matter.

¶57 The testimony at issue in this case involves the interpretation of diagnostic tests and the application of data,

6 No. 2018AP2104.awb

principles, and methods to the facts of the case. Ultimately,

it requires a determination of whether a specific mental illness

will more likely than not cause an individual to engage in

future acts of sexual violence. This is hardly the daily fare

of the average lay person. Expert testimony on these subjects

is required, as they concern areas of specialized information

outside the realm of ordinary knowledge.

¶58 Such a conclusion is supported by instructions on this

court's website when it advises litigants that even in small

claims cases where special knowledge or skill is involved,

expert testimony is required to prove the case. For example, we

instruct litigants that in a small claims motor vehicle faulty

repair case that a "full-time mechanic or a repair person" may

be sufficient to qualify as the expert and that "[h]aving the

expert witness testify in person is almost always necessary"

(emphasis added). "Basic Guide to Wisconsin Small Claims

Actions", https://www.wicourts.gov/formdisplay/SC-

6000V_instructions.pdf?formNumber=SC-

6000V&formType=Instructions&formatId=2&language=en, at 10 (Nov. 2019).

¶59 For heaven's sake, if this court acknowledges the need

for an expert to testify even in a small claims motor vehicle

faulty repair case, then surely an expert is needed to opine on

the above technical question. Such an inquiry is firmly within

the realm of expert testimony.

¶60 Nevertheless, the State advances that expert testimony is not required to prove that a person's mental disorder will

7 No. 2018AP2104.awb

more likely than not cause the person to engage in future acts

of sexual violence. According to the State, the common

understanding of the jury is sufficient to evaluate the required

causal link between the mental disorder and the likelihood of

future sexually violent acts. The majority follows suit.

¶61 In the majority's view, by testifying to the second

element, the presence of a mental disorder, an expert "lays the

foundation for any forthcoming evidence pertinent to the third

element." Majority op., ¶29. In essence, the majority's

interpretation of Wis. Stat. § 980.01(7) erroneously collapses

the required statutory elements from three to two and thereby

renders the third element mere surplusage. This is quite a

leap. Our case law is clear that, "[s]tatutory language is read

where possible to give reasonable effect to every word, in order

to avoid surplusage." State ex rel. Kalal v. Cir. Ct. for Dane

Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110.

¶62 Compounding its error in failing to require expert

testimony on the third element, the majority conflates a

predisposition for acts of sexual violence with a likelihood that such acts will be committed. In the majority's view, when

an expert testifies to the presence of a qualifying mental

disorder, they additionally lay the foundation for the third

element, whether an individual has a likelihood of sexually

violent re-offense. Majority op., ¶28.

¶63 But the majority fails to recognize the distinction

between predisposition and probability. Although a respondent may have a predisposition toward acts of sexual violence, the

8 No. 2018AP2104.awb

third element of the Chapter 980 analysis is concerned with the

probability that sexually violent conduct will occur in the

future.

¶64 By conflating the second element of predisposition

with the third element of probability, the majority risks

raising due process concerns. The majority's belief that a lay

factfinder can independently discern the required causal link is

little more than a commentary on the ability of lay factfinders

to determine general dangerousness. While lay factfinders may

be competent to examine varied facts to assess general

dangerousness, that is not at issue in this case.

¶65 Chapter 980 cases present an inquiry different than

the general criminal law inquiry of future dangerousness and due

process concerns place different demands. In Chapter 980 cases,

"due process requires that the nature and duration of commitment

bear some reasonable relation to the purpose for which the

individual is committed." State v. Post, 197 Wis. 2d 279, 313,

541 N.W. 2d 115 (1995) (citation omitted). Chapter 980 passes

due process muster specifically because it requires a nexus between a respondent's mental disorder and the probability of

future dangerousness. State v. Laxton, 2002 WI 82, ¶22,

254 Wis. 2d 185, 647 N.W.2d 784. In other words, the mental

disorder must make the individual dangerous in a specific way as

opposed to the general dangerousness that accompanies any

analysis of potential recidivism. See Kansas v. Hendricks, 521

U.S. 346, 358 (1997). Such an inquiry mandates special expertise.

9 No. 2018AP2104.awb

¶66 Stephenson cites also to two Wisconsin cases for the

proposition that expert testimony must be presented when making

determinations about probability of sexually violent re-offense.

See Wal-Mart Stores, Inc. v. LIRC, 2000 WI App 272, 240 Wis. 2d

209, 621 N.W.2d 633; Brown Cnty. Human Servs. v. B.P., 2019 WI

App 18, 386 Wis. 2d 557, 927 N.W.2d 560. In both cases, the

courts determined that expert testimony was needed to establish

the causal link between an individual's mental disorder and the

conduct at issue.

¶67 First, in Wal-Mart, an employee asserted that his

termination was improperly based on conduct resulting from his

mental disorder. Wal-Mart, 240 Wis. 2d 209, ¶25. The employee

suffered from obsessive compulsive disorder (OCD), the symptoms

of which include the high reactive behaviors that occasioned the

termination. Id., ¶2. At issue in the case was whether expert

testimony was required to establish the causal link between the

employee's mental disorder and the conduct for which he was

fired. Id., ¶11.

¶68 The court determined that expert testimony was indeed required to establish that conduct which formed the basis for

the employment termination was caused by the employee's

disability. Id., ¶¶16-17. Additionally, the court noted that,

"[i]nferring the required causal link from the evidence in the

present record, without expert testimony on the issue, is

speculation, not the drawing of a reasonable inference to which

we must defer." Id., ¶25.

10 No. 2018AP2104.awb

¶69 Second, B.P. involved a termination of parental rights

due to abandonment of a child. B.P., 386 Wis. 2d 557, ¶2. B.P.

raised a good cause defense to allegations that he had not

visited or communicated with his child for a six-month period by

claiming that his mental health diagnoses caused him to do so.

Id., ¶43. The court concluded that B.P. needed expert testimony

to relate his factual assertions to his good cause defense

because making such a causal link was outside of the ordinary

experience of humankind. Id., ¶¶48-49. Thus, in both Wal-Mart

and B.P., the court reasoned that the establishment of a causal

nexus between their conduct and a mental illness required the

submission of expert testimony.

¶70 The majority attempts to distinguish these cases,

contending that Stephenson's case is about future actions, not

past ones. Majority op., ¶25. True enough, but why does this

matter? If expert testimony is needed to look at a fully

developed fact record and make causal links with the benefit of

20/20 hindsight, then surely no less can be demanded when the

trier of fact looks forward on the same basis. III

¶71 The majority errs next in its discussion of Curiel and

the sufficiency of the evidence standard in Chapter 980 cases.

It perpetuates the Curiel criminal standard of review under

which appellate courts review Chapter 980 cases by asking

whether, "the evidence, when viewed most favorably to the state

and [the commitment], is so insufficient in probative value and force that it can be said as a matter of law that no trier of

11 No. 2018AP2104.awb

fact . . . could have found [the person sexually violent] beyond

a reasonable doubt . . . ." Majority op., ¶30; see State v.

Curiel, 227 Wis. 2d 389, 416-17, 597 N.W.2d 697 (1999).

¶72 On review, Curiel advocated a two-step constitutional

fact standard of review with facts being reviewed under a

deferential standard and the application of facts to the legal

standard being reviewed independently. Opposing this framework,

the State asserted that the criminal standard of review should

be applied.

¶73 The Curiel court applied the criminal standard of

review without engaging in much analysis. It decried that

although each party offered a standard of review, neither party

gave any rationale to support its position: "[a]side from

describing these competing standards of review, neither party

provides reasons why one or the other standard of review is

appropriate for ch. 980 proceedings." Curiel, 227 Wis. 2d at

416-17. The Curiel court opted for the criminal law standard of

review. At the time, the Curiel court's approach may have found

support in Wis. Stat. § 980.05(1m) (1995-96) which provided that, "[all] constitutional rights available to a defendant in a

criminal proceeding are available to the [individual subject to

commitment proceedings]." Majority op., ¶31 n.12. However,

Wis. Stat. § 980.05(1m) was repealed in 2005. See 2005 Wis. Act

434, § 101. Thus, any textual support for applying a more

onerous standard of review in Chapter 980 cases than that

applied in Chapter 51 cases disappeared with the repeal of the statute.

12 No. 2018AP2104.awb

¶74 The majority relies solely on Curiel to support its

conclusion. It opines that because Chapter 980 affords enhanced

procedural safeguards similar to those found in criminal

prosecutions, such as the right to counsel and the right to

remain silent, it follows that respondents in Chapter 980 cases

should be subject to the criminal standard of review. See

Majority op., ¶31. Therein lies the Achilles heel of the

majority's analysis.

¶75 Rather than providing more protection to the Chapter

980 respondent in order to successfully straddle the

constitutional divide, the majority actually provides less. The

criminal standard of review is more onerous than a

constitutional fact standard of review. It saddles the

respondent in a Chapter 980 commitment with a nearly

insurmountable burden to overcome when reviewing the sufficiency

¶76 Adopting the two-part standard of review in Chapter

980 cases is consistent with the way this court reviews civil

commitment proceedings under Wis. Stat. § 51.20. Both focus on a determination of dangerousness. In Langlade County v. D.J.W.,

this court concluded that "[a] determination of dangerousness is

not a factual determination, but a legal one based on underlying

facts." 391 Wis. 2d 231, ¶47. We concluded that the court of

appeals erred for doing the very thing that the majority does

today: "applying the standard of review for findings of fact to

a legal determination . . . ." Id.

13 No. 2018AP2104.awb

¶77 There is no reason to apply different standards of

review to assessments of the sufficiency of evidence of

dangerousness in Chapter 51 civil commitment and Chapter 980

civil proceedings. In both, the commitment implicates

fundamental due process rights because both potentially result

in a significant deprivation of liberty. Likely the majority

proffers no reason justifying such disparate treatment because

no reasonable explanation can be found.

¶78 I conclude that evidence supporting a finding of

dangerousness under Chapter 980 should be reviewed using the

constitutional fact standard. As explained above, due process

concerns circumscribe commitments under Chapter 980 to persons

who have a mental disorder that more likely than not will cause

them to commit future acts of sexual violence.

¶79 The Chapter 980 context is best served by adopting

this two-part standard with facts being reviewed under the

clearly erroneous standard and the application of those facts to

the legal standard being reviewed independently. As we

explained in State v. Phillips, such an approach serves the interests of greater uniformity of application and clarity in

the legal standard while taking into account the significant

liberty interests at stake in these proceedings:

[T]he principal reason for independent appellate review of matters of constitutional fact is to provide uniformity in constitutional decision-making. It is the duty of the reviewing court to independently apply constitutional principles to the facts as found by the circuit court because the scope of constitutional protections, representing the basic value commitments of our society, cannot vary from trial court to trial court, or from jury to jury. In applying the skeletal 14 No. 2018AP2104.awb

constitutional rule, appellate courts flesh out the rule and provide guidance to litigants, lawyers, and trial and appellate courts.

State v. Phillips, 218 Wis. 2d 180, 194, 577 N.W.2d 794 (1998)

(internal citations and quotations omitted).

¶80 In sum, for the reasons set forth above, I determine

that expert testimony is required to establish the causal link

between an individual's mental disorder and the risk that the

individual is more likely than not to engage in future acts of

sexual violence. Because no expert testimony was presented at Stephenson's discharge trial to support this requirement, I

conclude that the State failed to meet its burden of proof.

Additionally, I determine that the two-step constitutional fact

standard of review should be applied to sufficiency of evidence

challenges in Chapter 980 proceedings.

¶81 Accordingly, I respectfully dissent.

¶82 I am authorized to state that Justice REBECCA FRANK

DALLET joins this dissent.

15 No. 2018AP2104.awb