State v. Talley (In re Commitment of Talley)

359 Wis.2d 522

859 N.W.2d 155

In re the COMMITMENT OF Thornon F. TALLEY.

State of Wisconsin, Petitioner–Respondent

v.Thornon F. Talley, Respondent–Appellant.^†

No. 2013AP492.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 8, 2014.

Opinion Filed Dec. 4, 2014.

On behalf of the respondent-appellant, the cause was submitted on the briefs of David R. Karpe of Karpe Law Office, Madison.

On behalf of the petitioner-respondent, the cause was submitted on the briefs of Daniel J. O'Brien, assistant attorney general, and J.B. Van Hollen, attorney general.

Before LUNDSTEN, HIGGINBOTHAM and SHERMAN, JJ.

Opinion

LUNDSTEN, J.

Thornon Talley appeals the circuit court's order continuing his Wis. Stat. ch. 980 commitment after he unsuccessfully petitioned for discharge from the commitment. He also appeals an order denying his motion for post-commitment relief. Talley challenges Wis. Stat. § 980.09(3) as facially unconstitutional because it denies due process. More specifically, Talley argues that the statute is defective because it requires only clear and convincing evidence instead of proof beyond a reasonable doubt. The State disagrees, and additionally argues that Talley forfeited his facial challenge by failing to raise that challenge at his discharge trial.¹

¶ 2 We decline to rely on the State's forfeiture argument, observing that this argument seems difficult to reconcile with our supreme court's decision in State v. Bush, 2005 WI 103, 283 Wis.2d 90, 699 N.W.2d 80. In Bush, the court held that “a facial [constitutional] challenge is a matter of subject matter jurisdiction and cannot be waived.” Id., ¶ 17. Ultimately we assume, without deciding, that Talley did not forfeit his facial challenge to Wis. Stat. § 980.09(3). Proceeding to the merits, we reject Talley's challenge because we conclude that, under Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979), the clear and convincing evidence standard satisfies due process at a Wis. Stat. ch. 980 discharge trial.

Background

¶ 3 Talley was committed as a sexually violent person under Wis. Stat. ch. 980 in 2005. He petitioned for discharge in June 2011, alleging that he no longer met the commitment criteria.

¶ 4 Wisconsin Stat. ch. 980 provides that, at an initial commitment trial, the State must prove the applicable commitment criteria beyond a reasonable doubt. See Wis. Stat. § 980.05(3)(a). However, as we have indicated, at a discharge trial the standard of proof is clear and convincing evidence. See Wis. Stat. § 980.09(3).

¶ 5 At Talley's trial on his petition for discharge, the circuit court instructed the jury on the clear and convincing evidence standard in accordance with Wis. Stat. § 980.09(3). The jury found that Talley continued to meet the commitment criteria, and the circuit court entered an order continuing Talley's commitment.

¶ 6 Talley filed a post-commitment motion arguing that the clear and convincing evidence standard in Wis. Stat. § 980.09(3) is unconstitutional because it deprives individuals committed under Wis. Stat. ch. 980 of the right to due process. The circuit court rejected Talley's challenge on the merits, and denied Talley's motion.²

Discussion

¶ 7 Talley argues, as he did in his post-commitment motion, that Wis. Stat. § 980.09(3) is facially unconstitutional because it deprives individuals committed under Wis. Stat. ch. 980 of the right to due process. The State disagrees, and additionally argues as a preliminary matter that Talley forfeited his constitutional challenge to § 980.09(3) by failing to raise that challenge at his discharge trial. We decline to rely on the State's forfeiture argument, but we agree with the circuit court and the State that Talley's due process challenge fails on its merits.

A. State's Forfeiture Argument

¶ 8 We begin with the State's forfeiture argument. Talley does not dispute that he failed to raise his challenge at his discharge trial, but argues that a facial challenge to a statute cannot be forfeited under the supreme court's decision in Bush, 283 Wis.2d 90, 699 N.W.2d 80.

¶ 9 Although we decline to rely on the State's forfeiture argument, we choose to comment on it. While we have difficulty seeing how the State's forfeiture argument can be reconciled with Bush, there seem to be persuasive policy reasons to apply forfeiture here.

¶ 10 Those reasons include that, if Talley had raised his constitutional challenge at his discharge trial, and the circuit court had agreed with Talley, it appears that the circuit court could have efficiently remedied the situation by instructing the jury on the beyond a reasonable doubt standard.See State v. Post, 197 Wis.2d 279, 328–29, 541 N.W.2d 115 (1995) (observing that the court “has previously construed deficient statutes to include constitutionally required procedures,” and construing a prior version of Wis. Stat. ch. 980 to include the right to a jury trial even though ch. 980 did not provide for it). Moreover, as the State points out, applying the forfeiture rule in situations like the one here prevents “sandbagging.” That is, it prevents a litigant from strategically withholding a constitutional objection and then, if unhappy with the outcome at trial, raising the objection afterward in hopes of obtaining a reversal. In short, it appears that the policy reasons underlying forfeiture apply here. Requiring a timely objection would seem to “promote both efficiency and fairness.” See State v. Erickson, 227 Wis.2d 758, 766, 596 N.W.2d 749 (1999).

As we have said, however, the supreme court in Bush held that “a facial challenge is a matter of subject matter jurisdiction and cannot be waived.” Bush, 283 Wis.2d 90, ¶ 17, 699 N.W.2d 80.³ More specifically, Bush involved a challenge to Wis. Stat. ch. 980 as violating due process by not requiring a finding of a recent overt act. See Bush, 283 Wis.2d 90, ¶¶ 13, 21, 699 N.W.2d 80. The State argued there that Bush's challenge came too late because Bush did not raise the challenge in two prior appeals. Id., ¶ 11. The court rejected the State's argument, explaining, in pertinent part:

In both State v. Cole, 2003 WI 112, ¶ 46, 264 Wis.2d 520, 665 N.W.2d 328, and Trochinski, 253 Wis.2d 38, ¶ 34 n. 15 [644 N.W.2d 891], this court concluded that while an “as applied” challenge to the constitutionality of a statute may be waived, a facial challenge is a matter of subject matter jurisdiction and cannot be waived.... If a statute is unconstitutional on its face, any action premised upon that statute fails to present any civil or criminal matter in the first instance. As the court of appeals correctly noted in Skinkis, if the facial attack on the statute were correct, the statute would be null and void, and the court would be without the power to act under the statute. Skinkis, 90 Wis.2d at 538 [280 N.W.2d 316]........

We conclude that because Bush has facially challenged the constitutionality of chapter 980, his challenge goes to the subject matter jurisdiction of the court. Therefore, because challenges to subject matter jurisdiction cannot be waived, we reach the merits of his claim.

Id., ¶¶ 17, 19; see also State v. Nelson, 2007 WI App 2, ¶ 7 n. 3, 298 Wis.2d 453, 727 N.W.2d 364 (WI App.2006) (relying on Bush and concluding that, “Because Nelson is making facial challenges to the constitutionality of chapter 980, the State's assertion that Nelson has waived his constitutional arguments lacks merit.”).

¶ 12 The State argues that Bush is distinguishable, seemingly suggesting that the facial problem alleged in that case could not be corrected in response to a timely objection and, therefore, the policy reasons underlying the forfeiture rule were not present in Bush. Another asserted distinction the State identifies is that Talley, unlike Bush, is not challenging the court's subject matter jurisdiction because Talley invoked the court's jurisdiction by initiating the discharge process and because Talley's constitutional challenge is merely “procedural.” However, the State's arguments, at best, amount to reasons why the supreme court should not have used sweeping forfeiture language; those arguments do not persuade us that we are not bound by the Bush court's seemingly unequivocal statement that “a facial challenge is a matter of subject matter jurisdiction and cannot be waived.” See Bush, 283 Wis.2d 90, ¶ 17, 699 N.W.2d 80.

¶ 13 The State also seems to argue that Talley's challenge is not actually a facial challenge. However, the State fails to supply any legal authority or coherent reasoning to support that argument. Talley is plainly arguing that Wis. Stat. § 980.09(3) can never be constitutionally applied as written; he is not simply arguing that the statute is unconstitutional only as applied to him or to a subset of individuals, or only under particular circumstances. See State v. Konrath, 218 Wis.2d 290, 304 n. 13, 577 N.W.2d 601 (1998) (“ ‘If a court holds a statute unconstitutional on its face, the state may not enforce it under any circumstances, unless an appropriate court narrows its application; in contrast, when a court holds a statute unconstitutional as applied to particular facts, the state may enforce the statute in different circumstances.’ ” (quoted source omitted)).

¶ 14 Finally, the State relies on the supreme court's decision in Milwaukee County v. Mary F.–R., 2013 WI 92, 351 Wis.2d 273, 839 N.W.2d 581. The State argues that, even assuming Talley's challenge is a facial one, Mary F.–R. shows that a challenge like Talley's can be forfeited. We disagree. Mary F.–R. does not modify Bush and does not otherwise support the State's forfeiture argument.⁴

¶ 15 Mary F.–R. involved a facial constitutional challenge to the six-person jury provision in the general civil commitment statutes, Wis. Stat. ch. 51. Mary F.–R., 351 Wis.2d 273, ¶¶ 1, 31, 839 N.W.2d 581. The county there argued that Mary F.-R. forfeited her challenge and that Bush was distinguishable because Mary F.-R. was not challenging the “entirety” of ch. 51. Mary F.–R.,...