In re the commitment of David Hager, Jr.: State of Wisconsin, Petitioner-Respondent,
David Hager, Jr., Respondent-Appellant.
for publication in the official reports.
from orders of the circuit court for Chippewa County Cir. Ct.
No. 2007CI1 JAMES M. ISAACSON, Judge. Reversed and cause
remanded for further proceedings.
Stark, P. J., Hruz and Seidl, JJ.
J. David Hager, Jr.
appeals an order denying without a trial his 2014 petition
seeking discharge from his WIS. STAT. ch. 980 commitment as a
"sexually violent person." Hager also appeals the order
denying his motion for reconsideration.
Hager and the State dispute the effects of certain amendments
to the discharge statute, WIS. STAT. § 980.09, enacted
as part of a legislative overhaul of ch. 980 in 2013. See
generally 2013 Wis. Act 84 (hereinafter, "Act
84"). Act 84 changed the standards under both §
980.09(1) and (2) for the circuit court's determination
of whether a petitioner will receive a discharge trial. Those
subsections now require the court to determine whether, at an
ensuing discharge trial, a factfinder "would likely
conclude" the petitioner no longer meets the criteria
for commitment as a sexually violent person. The previous
"may conclude" standard required the court to
determine whether it was merely possible for the factfinder
to conclude as such.
At oral argument in this case, the parties generally agreed
the legislature's substitution of a "would likely
conclude" standard for the former "may
conclude" standard accomplished a material increase in
the burden of production necessary to obtain a discharge
trial under both levels of review in WIS. Stat. §
980.09(1) and (2). However, the State also argues the
amendments to § 980.09(2) now require the circuit court
to weigh the facts in support of the petition against facts
unfavorable to the petition in ascertaining whether a
factfinder would likely conclude discharge is required. The
State argues the amendments to § 980.09(2) effectively
abrogated State v. Arends, 2010 WI 46, 325 Wis.2d 1,
784 N.W.2d 513');">784 N.W.2d 513.
We disagree and conclude the process set forth in
Arends largely remains good law. The changes to WIS.
STAT. § 980.09(2) as a whole do not permit circuit
courts to "weigh" the evidence favorable to the
petition against the evidence unfavorable to it. Rather, the
amendments clarify the statute so as to reflect judicial
interpretations of the statutory language since the last
major revisions in 2006. At the same time, the amendments
undisputedly increase the petitioner's burden of
production to convince a circuit court that all evidence
within the record favorable to the petitioner, including
those facts submitted with the petition, establishes a
reasonable likelihood of success at a discharge trial.
Applying this interpretation of WIS. STAT. § 980.09(2)
to Hager's petition and the facts of record, we conclude
the circuit court erred as a matter of law in failing to set
the matter of Hager's discharge for trial. The petition
was supported by an expert report applying two actuarial risk
instruments that were not available at the time of
Hager's initial commitment trial. This new research,
combined with changes the expert observed in Hager following
his commitment, led this expert to conclude that Hager's
lifetime risk of committing another sexually violent offense
fell below the requisite fifty percent threshold. This
evidence, considered in light of the facts of record, was
evidence from which a factfinder "would likely
conclude" Hager no longer qualified as a "sexually
violent person" under WIS. STAT. ch. 980. We therefore
remand for the circuit court to hold a discharge trial in
accordance with § 980.09(3) through (5), at which a jury
will determine whether Hager no longer meets the criteria to
be civilly committed under WIS. STAT. ch. 980. BACKGROUND
Hager was convicted in 1995 of three counts of incest with a
child. He was civilly committed as a sexually violent person
on September 17, 2008, following a jury trial. At the
commitment trial, Dr. Christopher Tyre testified as the
State's expert psychologist, while Dr. Robert Barahal
testified on Hager's behalf.
Doctor Tyre evaluated Hager in 2004 and 2007. He diagnosed
Hager with paraphilia, not otherwise specified, and a
personality disorder, not otherwise specified, the latter
with antisocial and borderline features. Tyre concluded
these disorders predisposed Hager to commit acts of sexual
violence. Tyre also concluded Hager was more likely than not
to commit a future act of sexual violence. Tyre based this
opinion in part on Hager's performance on three actuarial
risk instruments, the RRASOR, the Static-99, and the
MnSOST-R. Hager's scores on these instruments equated to
a "high risk or medium high risk" when compared to
their respective offender samples.
Doctor Barahal diagnosed Hager with pedophilia, which
predisposed Hager to commit sexually violent acts, and also
substance abuse and a learning disability. Like Tyre, Barahal
evaluated Hager's reoffense risk using the RRASOR and
Static-99 actuarial instruments. Barahal agreed that these
instruments placed Hager in a high to medium-high risk
category. However, Barahal did not believe there was
sufficient evidence "to conclude either way"
whether Hager's reoffense risk exceeded fifty percent.
Hager filed a petition for discharge each year from 2009 to
2011, each time voluntarily withdrawing the petition prior to
receiving a discharge trial. Hager voluntarily withdrew his
2011 petition prior to a discharge trial despite the
State's concession that his petition, together with the
accompanying reexamination report by licensed psychologist
Hollida Wakefield, was legally sufficient to warrant such a
trial. In 2012, Hager filed a pro se discharge
petition, which the State opposed and which the circuit court
denied as supported only by Hager's own self-evaluation.
Although he was represented by counsel at the time, Hager
filed another pro se discharge petition on October 18, 2013.
At Hager's attorney's request, the circuit court
appointed Wakefield to conduct a psychological examination on
Hager's behalf. Hager's counsel filed an amended
discharge petition on February 27, 2014, which was supported
by Wakefield's report.
In Wakefield's 2014 report, she concluded Hager's
"risk for reoffending is below the level of risk
required for commitment under Chapter 980." Wakefield
diagnosed Hager with a pedophilic disorder that predisposed
him to commit sexually violent offenses, but she opined that
the disorder had "decreased" in the past several
Although Wakefield agreed actuarial risk assessments are more
accurate than clinical judgment, she noted their limitations.
For example, Wakefield noted the instruments do not permit a
numerical calculation of a given individual's level of
risk, but rather they inform only what risk group the person
belongs to and the recidivism rate of that group. The
actuarial instruments measure only static factors, such as
criminal offense history, but an individual's dynamic
factors may increase or decrease the probabilities associated
with the group data.
Wakefield assessed Hager's reoffense risk using two
actuarial instruments that the experts at his initial
commitment trial had not used, the Static-99R and the MATS-1.
According to Wakefield's report, the Static-99 underwent
scoring revisions in 2009, with the resulting instrument
being called the Static-99R. Wakefield reported the original
Static-99 over-estimated recidivism, and new risk tables were
presented in the fall of 2008. Based on research published
after the Static-99R was released, Wakefield criticized the
Static-99R authors' recommendation that the scores of all
offenders referred for commitment be evaluated against a
"high risk/needs" subgroup. Wakefield, comparing
Hager to the "routine" or "aggregate"
group of sex offenders, noted that approximately fifteen to
thirty percent of sex offenders with a score similar to
Hager's sexually recidivated.
According to Wakefield, the MATS-1 was first published in
December 2010. The MATS-1 instrument uses the offender's
Static-99R score with the age item removed, and then uses
actual recidivism data from a group of over 9000 sex
offenders to arrive at-in the MATS-1 authors' opinion-a
better actuarial estimate of risk by accounting for the
effect of age generally on recidivism. Wakefield reported
that Hager is in the second age category (ages 40-49.9), and
"his risk level on the MATS-1 is 25.5% (with a 95%
confidence interval of 19% to 34%). This is similar to the
15% to 30% on the Static-99R."
In addition to changes in the actuarial instruments,
Wakefield opined that certain dynamic factors further reduced
Hager's reoffense risk since his initial commitment.
Although pedophilic disorder tends to be chronic, Wakefield
reported that deviant fantasies and behavior generally
decrease with age and that Hager's current sexual
fantasies are of age-appropriate women, with Hager passing a
polygraph test on this issue. Hager was also able to fully
suppress his responses to younger children, as measured by a
penile plethysmograph. He also repudiated his past distorted
attitudes about sexual entitlement and his belief that
children enjoy sex with adults.
The State filed a response urging the circuit court to deny
Hager's petition without holding a discharge trial. The
State argued Act 84 had "fundamentally changed the
standard for assessing a discharge petition's
sufficiency." Whereas the previous standard required the
circuit court to hold a discharge trial if there were facts
from which the factfinder "may conclude" the
person's condition had changed since his or her initial
commitment, the State pointed out that the new standard
required facts from which the factfinder "would likely
conclude" the person's condition had changed.
Compare WIS. STAT. § 980.09(1) and (2)
(2005-06) with Wis. STAT. § 980.09(1) and (2).
This change, the State argued, "invariably"
required the circuit court to "weigh the evidence in
support and in opposition to the petition, " thereby
abrogating Arends' holding that no such weighing
is to occur. See Arends, 325 Wis.2d 1, ¶40. The
State asserted that, under this standard, Hager's
petition failed because the Static-99 recidivism rates were
not "significantly different from the current Static-99R
rates for high risk high needs persons."
The circuit court denied Hager's amended discharge
petition following a non-evidentiary hearing. At the hearing,
the court remarked that Hager was "still the same person
he was." The court apparently accepted the State's
argument that there was no real difference between the
Static-99 and the Static-99R actuarial instruments, and
stated it was "not satisfied there has been any change
in the expert's knowledge of Mr. Hager or his
offense." Hager filed a reconsideration motion,
observing that the State was comparing the recidivism rates
from the Static-99 and the Static-99R's high risk/needs
subgroup, the use of which Wakefield had concluded was
inappropriate. Hager also observed the court had not
addressed Wakefield's use of the MATS-1. The circuit
court denied the reconsideration motion. Hager appeals.
On February 2, 2016, we certified this case and State v.
Carter, Appeal No. 2015AP1311, to the Wisconsin Supreme
Court. Our certification asked the supreme court to
"determine issues related to the effect of 2013 Wis. Act
84, " including whether the amendments to WIS. STAT.
§ 980.09(1) and (2) authorized the circuit court to
"weigh" the evidence, how such weighing was to be
accomplished, and whether the amended statute was
unconstitutional. The supreme court denied certification, and
we ordered oral argument. We now reverse the circuit
court's determination regarding the sufficiency of
Hager's petition. We remand for the court to hold ...