Town of Mentor v. State

400 Wis.2d 138

968 N.W.2d 716

2021 WI App 85

TOWN OF MENTOR, Appellant,

v.STATE of Wisconsin, Petitioner-Respondent,Charles Montgomery, Respondent-Respondent.

Appeal No. 2020AP1681

Court of Appeals of Wisconsin.

Submitted on Briefs: May 12, 2021

Opinion Filed: November 11, 2021

On behalf of the appellant, the cause was submitted on the briefs of Anders B. Helquist of Weld Riley, S.C., Eau Claire.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Gabe Johnson-Karp, assistant attorney general, and Joshua L. Kaul, attorney general.

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

Before Blanchard, P.J., Kloppenburg, and Graham, JJ.

BLANCHARD, P.J.

¶1 This chapter 980 commitment case began in 2001 with the filing of a petition in the circuit court requesting that Charles Montgomery be committed as a sexually violent person. See WIS. STAT. ch. 980 (2019-20).¹ The court ordered Montgomery civilly committed to a secure mental health facility. In June 2020, after Montgomery and the State reached a stipulation that he met the criteria for supervised release, the court issued an order under which Montgomery's residential placement would be in the Town of Mentor, in Clark County. The court based this decision on a placement report compiled by a temporary county-created committee that identified the residence as suitable for Montgomery's placement and a supervised release plan written by the Wisconsin Department of Health Services. The Town filed a motion requesting that the court allow it to intervene in this case as a matter of right. The court denied the motion and the Town appeals.

¶2 The Town argues that it is entitled to intervene to advance the position that, under pertinent provisions of chapter 980, Montgomery's proposed placement in the Town is improper. We conclude that, when the Town's intervention interest is properly understood, the Town fails to meet at least one of the four required elements to establish entitlement to intervention as a matter of right under WIS. STAT. § 803.09(1). Specifically, the Town fails to show that Montgomery's placement in the Town may as a practical matter impair its ability to protect its only asserted interest in this case.

¶3 The Town also argues that Montgomery does not meet the qualifications for supervised release and that this supports the Town's motion for intervention. We conclude that the Town forfeited this argument for intervention because it failed to raise it in the circuit court and we decline to disregard forfeiture under the circumstances of this case. Accordingly, we affirm.

BACKGROUND

¶4 Montgomery was convicted in 1994 of two counts of second degree sexual assault of a child. The State petitioned in 2001 for an order committing Montgomery as a sexually violent person. See WIS. STAT. § 980.01(6)(a), (7) ; § 980.02(2). At a trial in 2002, a jury found that Montgomery was a sexually violent person and the circuit court issued a judgment and order committing him for treatment in a secure mental health facility. See WIS. STAT. §§ 980.05 -.06.

¶5 Pursuant to WIS. STAT. § 980.07(1), Montgomery was subject to psychological examinations at least once every 12 months to determine if he qualified either for full discharge from his commitment or for placement on supervised release. See also WIS. STAT. §§ 980.08(4)(cg), 980.09(3). Consistently, from 2003 to early 2019, Montgomery's psychological examiners concluded that he had not met the statutory criteria for supervised release, specifically because he had not made "significant progress in treatment." See § 980.08(4)(cg)1.² However, beginning in 2013, these same examination reports began reflecting the conclusion that Montgomery's risk of committing another sexually violent act was no longer "more likely than not" and in that way tended to support the conclusion that Montgomery was appropriate for outright discharge from his commitment. See State v. Stephenson , 2019 WI App 63, ¶12, 389 Wis. 2d 322, 935 N.W.2d 842, aff'd , 2020 WI 92, ¶2, 394 Wis. 2d 703, 951 N.W.2d 819 (to prevail against a discharge petition, the State must prove by clear and convincing evidence that the committed person still meets the criteria for commitment, including that the person is dangerous to others because of a mental disorder that makes it more likely than not that the person would engage in one or more future acts of sexual violence).

¶6 At several points between 2009 and 2013, Montgomery petitioned for discharge and the circuit court denied each petition. See WIS. STAT. § 980.09. In 2018, represented by counsel, Montgomery filed the petition for discharge that eventually led to the Town's motion to intervene as a matter of right and this appeal. While Montgomery's petition was still pending, the next two regularly scheduled psychological examinations occurred. A March 2019 examination report concluded that Montgomery met all the criteria needed for supervised release except one. The exception was that, despite Montgomery's "improved treatment participation," he was "not yet demonstrating significant progress in treatment." An October 2019 examination report by the same examiner determined for the first time that he met all of the criteria for supervised release.

¶7 The State and Montgomery reached a stipulation under which Montgomery withdrew his pending petition for discharge, Montgomery agreed to pursue supervised release under WIS. STAT. § 980.08, and the State agreed that it would not object to that request. The parties stipulated that Montgomery "can meet his burden of proof" to merit supervised release.

¶8 In November 2019, the circuit court issued an order that acknowledged the parties’ stipulation and determined that Montgomery had proven his qualification for supervised release by clear and convincing evidence. Based on this determination and pursuant to WIS. STAT. § 980.08(4), the court in the same order directed the following. First, Montgomery's statutorily determined "county of residence," Clark County, was to prepare a placement report, relying on a temporary committee composed of county and state officials.³ See § 980.08(4)(dm)1. (establishing membership and function of temporary committee to determine residential option for county-resident supervisee). The committee's placement report would identify "an appropriate option for community placement" (i.e. , a place for him to reside while under supervision) that would address considerations under § 980.08(4)(dm) that included the potential for proximity to such areas as public parks or schools. Second, after receiving the placement report, the Wisconsin Department of Health Services was to prepare a supervised release plan pursuant to § 980.08(4)(f).⁴

¶9 After the circuit court issued these directives, but before the committee submitted its placement report, a February 2020 examination report was generated based on a regularly scheduled psychological examination. It concluded that Montgomery was not eligible for supervised release because he was "not yet making significant progress in treatment." However, the report indicated that the examiner was aware of the court's supervised release decision and did not "disagree with that ruling." The examiner further concluded that it was "substantially probabl[e] that Mr. Montgomery will not engage in an act of sexual violence while on supervised release."

¶10 Pursuant to the circuit court's November 2019 order and WIS. STAT. § 980.08(4)(dm)1., Clark County formed the required temporary placement committee. In a placement report, the committee identified a residence in the Town that it determined was appropriate under the requirements in § 980.08. The placement report indicated that the committee had consulted with the Clark County Sheriff's Department, satisfying its obligation under § 980.08(4)(dm)2. to "consult with a local law enforcement agency having jurisdiction over the residential option." After receiving the placement report, the department submitted to the circuit court a supervised release plan for this same proposed residential placement.

¶11 In June 2020, the circuit court approved the department's plan and entered an order for supervised release. See WIS. STAT. § 980.08(4)(g). The court stayed the order for 60 days to give the department time to prepare the residence for placement and to issue required notices.

¶12 The Town moved for intervention as a matter of right in July 2020. See WIS. STAT. § 803.09(1).⁵ In August 2020, after the expiration of the circuit court's stay, the court held a hearing on the Town's motion, heard objections from Montgomery and the State, and denied the motion. In making its ruling the court noted, with agreement by the parties, that Montgomery had in fact been released and placed under supervision at the residence in the Town.⁶

¶13 The Town appeals. The State and Montgomery have each filed a respondent's brief in this appeal.

DISCUSSION

¶14 The Town contends that the circuit court erred in denying its motion to intervene as a matter of right. Our supreme court has explained that a movant for intervention as a matter of right "must satisfy" each of the following elements: (1) the motion is timely; (2) "the movant claims an interest sufficiently related to the subject of the action"; (3) "disposition of the action may as a practical matter impair or impede the movant's ability to protect that interest"; and (4) "the existing parties do not adequately represent the movant's interest." Helgeland v. Wisconsin Muns. , 2008 WI 9, ¶¶38-39, 307 Wis. 2d 1, 745 N.W.2d 1 (footnotes omitted); see also WIS. STAT. § 803.09(1).

¶15 The Town contends that it meets each requirement because its motion to intervene: (1) was timely filed; (2) identifies the Town's interest as being the protection of the public in the Town; (3) alleges that the proposed placement option for Montgomery approved by ...