State v. McGee (In re McGee)

376 Wis.2d 413

899 N.W.2d 396

2017 WI App 39

IN RE the COMMITMENT OF Michael L. MCGEE:

State of Wisconsin, Petitioner-Respondent,

County of Kenosha, Intervenor-Appellant-Cross-Respondent,

v.Michael L. McGee, Respondent-Respondent-Cross-Appellant.

Appeal No. 2016AP1082

Court of Appeals of Wisconsin.

Submitted on Briefs: March 14, 2017

Opinion Filed: May 17, 2017

On behalf of the intervenor-appellant-cross-respondent, the cause was submitted on the briefs of Jennifer J. Kopp of Kenosha County Corporation Counsel's Office, Kenosha.

On behalf of the respondent-respondent-cross-appellant, the cause was submitted on the briefs of Jefren E. Olsen, assistant state public defender of Madison.

Before Neubauer, C.J., Reilly, P.J., and Gundrum, J.

REILLY, P.J.

¶1 The placement of a sexually violent person back into the community is a difficult and thankless task. Wisconsin law requires that a sexually violent person that is suitable for supervised release is to be placed back into their county of residence unless "good cause" is shown to place him or her in another county. In this appeal we address the statutory requirements that a court must comply with before placing a sexually violent person outside of the committing court's county.

¶2 Michael L. McGee was committed as a sexually violent person in 2004 by the Racine County Circuit Court. McGee's county of residence is Racine County. Kenosha County learned in May 2016 that Racine County planned to place McGee in Kenosha County. Kenosha County moved to rescind the approved plan to place McGee in Kenosha on the grounds that Kenosha County did not receive statutory notice nor was it allowed the statutory right to participate in McGee's supervised release plan. We agree with Kenosha County and vacate the supervised release plan approved by the Racine County Circuit Court.

Background

¶3 McGee was convicted in 1987 of second-degree sexual assault and burglary in Racine County after he forcibly entered a stranger's residence, threatened her, and raped her while her child was in the home. In 1992, after being released on parole, McGee was charged, again in Racine County, with fourth-degree sexual assault of an adult female acquaintance and first-degree sexual assault of a child. The charges were dismissed; however, McGee's parole was revoked as a result of the charges and he was returned to prison. In anticipation of McGee's release, the Racine County district attorney in 2003 filed a petition under WIS. STAT . ch. 980 (2015-16),¹ seeking a civil commitment to detain McGee as a sexually violent person, which was granted by the court.

¶4 A person determined to be a sexually violent person is committed to the custody of the Department of Health Services (DHS) and is required to be initially placed in a secure mental health facility. WIS. STAT . §§ 980.05, 980.06, 980.065. A sexually violent person has the right to petition the court that committed him for "supervised release," which allows a sexually violent person to reside in the community rather than in a secure mental health facility. WIS. STAT . § 980.08(1). The sexually violent person remains in the custody and under the supervision of DHS while on supervised release. See § 980.08(6m). The approval process for a supervised release plan involves a comprehensive study of the sexually violent person and the suitability of the proposed residence in the community where the sexually violent person will live.

¶5 In order to grant supervised release, the committing court must find that the sexually violent person has met all the criteria under WIS. STAT . § 980.08(4)(cg). McGee petitioned for supervised release in November 2013, and for purposes of this appeal, it is undisputed and we accept that McGee met his burden to prove that he was suitable for supervised release under § 980.08(4)(cg). See § 980.08(4)(cj).

¶6 WISCONSIN STAT . § 980.08(4)(cm) requires that a committing court "shall" select the county of the sexually violent person's residence for placement on supervised release "[u]nless the court has good cause to select another county." The statutes do not define what constitutes "good cause" for placing a sexually violent person in another county. McGee, as a resident of Racine County, was, therefore, required to be placed in Racine County unless the court had "good cause to select another county." See id. The Racine County Circuit Court, DHS, and the district attorney of Racine all agreed in June 2015, without an evidentiary hearing, that there was no suitable residence for McGee in all of Racine County because zoning ordinances throughout Racine prohibited the placement of sexually violent persons. See § 980.08(4)(cm) (2013-14). In June 2015, the Racine County parties decided that Kenosha County may have a residence for McGee. Kenosha County was not consulted.

¶7 In February 2016, the legislature enacted amendments to WIS. STAT . ch. 980 to prohibit a court from making a finding of "good cause" based on local zoning ordinances related to sexually violent persons. WIS. STAT . § 980.08(4)(cm) ; 2015 Wis. Act 156, § 8 (Act 156).² The legislative purpose was to constrain the placement of a sexually violent person outside his or her home county. See Wisconsin Legislative Council Act Memo, 2015 Wis. Act 156, Residency Requirements for Sexually Violent Persons (Mar. 14, 2016).

¶8 On April 21, 2016, DHS presented a supervised release plan to the circuit court with a proposed residence for McGee in Kenosha County on Geneva Road in the Town of Wheatland, Wisconsin (the Wheatland property). In a letter to the court, Angie Serwa, supervised release specialist with DHS, represented that the supervised release plan was in compliance with the amended provisions of Act 156. The circuit court signed the order for supervised release on May 4, 2016. On May 18, 2016, Kenosha County filed a motion to intervene and stay enforcement of McGee's supervised release plan. Kenosha County argued that the supervised release plan was approved in contravention of the law as DHS and the circuit court failed to comply with WIS. STAT . § 980.08.

¶9 The circuit court granted Kenosha County's motion to intervene and scheduled an evidentiary hearing. Additional investigation revealed that the Wheatland property was within 1500 feet of a Kenosha County bike trail and near a fishing area, both of which are frequented by children and families. The Wheatland property was also adjacent to a residence that included a one-year-old male child. McGee's sex offender special bulletin notice explicitly states that his "[t]argeted victims" are "[a]dult females; prepubescent males." This information was not conveyed to the court in the supervised release plan that DHS presented for approval. The day before the hearing, the Racine County district attorney, for the first time, sent a letter to the court objecting to the supervised release plan, explaining that it "was not informed that the proposed placement was adjacent to a residence with a one-year-old child" and that it did not "believe that the plan meets the safety needs of the community."

¶10 The circuit court issued a written decision denying Kenosha County's motion to stay enforcement and concluded that the supervised release plan was appropriate for McGee at the Wheatland property. The court ordered McGee placed by DHS within ten days of the decision. Kenosha County appeals.³ McGee cross-appeals, challenging the circuit court's decision granting Kenosha County's petition to intervene in the supervised release proceeding.

Analysis

¶11 At the heart of this dispute is whether Kenosha County and others within Kenosha County were provided proper notice that McGee was to be placed within its borders and given an opportunity to be involved in the supervised release plan. Safety is a paramount consideration in the placement of sexually violent persons, see State v. Burris , 2004 WI 91, ¶¶35-36, 273 Wis. 2d 294, 682 N.W.2d 812, and, therefore, compliance with the statutory provisions is critical. We review a circuit court's approval of a supervised release plan under WIS. STAT . § 980.08(4)(g) for an erroneous exercise of discretion. State v. Thiel , 2012 WI App 48, ¶6, 340 Wis. 2d 654, 813 N.W.2d 709. Statutory interpretation, however, is a question of law we review de novo. State ex rel. Steldt v. McCaughtry , 2000 WI App 176, ¶11, 238 Wis. 2d 393, 617 N.W.2d 201. As we conclude that DHS and the circuit court failed to abide by the statutory requirements, we reverse and remand to vacate the approval of McGee's supervised release plan.

¶12 As an initial matter, we conclude that the circuit court erroneously exercised its discretion in finding "good cause" that Racine County had no residence for McGee. Act 156 clearly altered the grounds for finding good cause, and McGee's supervised release was subject to all of Act 156's amendments. See 2015 Wis. Act 156, § 16. The circuit court heard testimony in May 2016 from Dr. Stephen Kopetskie, the court assessment and community programs director at Sand Ridge Treatment Center, that there was no housing available in Racine County, but he also testified that the staff member responsible for conducting searches and "maintaining our residence search log" resigned in February 2016, so "the log is not as well kept as it was previously." The bare assertion, completely undermined by the process upon which it was based, is insufficient to establish good cause. The local ordinances in Racine County were no longer grounds for finding good cause under Act 156 at the time the court approved McGee's supervised release. We conclude that the circuit court erroneously exercised its discretion in finding good cause for placement outside Racine County.

¶13 In the event a court does have good cause to select a different county from a sexually violent person's county of residence, the court and DHS are obligated to involve the county of intended placement, its law enforcement, the local government where the proposed...