well you're your counsel if you could approach those who are going to argue amplification the parties agree that you must be especially around person in this case and you must be one to be placed on a conditional release and you must be especially one person to remain unconditional release and with that in mind the legislature enacted numerous there may be a situation as we said in our brief where someone may be revoked where there's not a rule violation for example if their level of supervision was not able to be that but even then you look at condition number three and it says you know you must only comply with behavior monitoring you must fully comply with supervision you must fully comply with polygraphs and then you look down i believe it's number thirty eight in any event the rules of conditional release allow the department of human services to impose additional discretionary restrictions and in this case all of those were bad and the state did not seek to put any further restrictions or conditions this conditional release even though it could have under that rule well let me ask you this if the circumstances hypothetically where conditional release is granted but circumstances factors arise after the fact that lead the people who made that decision to to think of made that recommendation to think that it was it probably read it what recourse would they have for somebody under the civil practice law to if there was a judgment that should not have been entered that relief can be sought intersection to force you know one of the state did not seek relief from the judgment in this case if they're saying that he was did not disclosing things prior to being conditional released then that would seem to be a basis perhaps for saying that it was far away concealed and extending the duration of filing for two forty one so in a situation like that yes they would have that remedy would have been able to do it to fourteen zero one they would have been able to vacate the judgment if that's something that they thought that they could prove but that's not what they didn't this case they tried to revoke his conditional release under section forty before and that's was present before the case supreme court and he said sometimes there's a non constitutional question in a constitutional question there are so closely related that you really can't separate the two apart and to get to sufficiency of the evidence really have to know what the safety of others mean how do you measure whether there was sufficient evidence to prove well let me encourage you to go to the second and talk about the insufficiency based on the specific findings that the court made regarding whether o the conditions short in this case we well we set forth that the safety of others must mean something that is beyond the required dangerousness that comes with every special down person being on conditional release the legislature that these people were dangerous they knew they had mental disorders but they nonetheless intended for them to be unconditionally so starting with that baseline when we look at the trial court's finding here it was insufficient and part of the reason that it was insufficient is that the trial court found that mr rendon had fully complied with treatment he had fully complied with behavioral monitoring it fully complied with supervision with polygraph testing so we have the court relying on these alleged fill polygraphs while at the same time making a finding that condition number three which requires attendance and full participation with polygraph examinations was not violet and that's a contradiction within you how do you square i do you square that with the testimony that there was deception involved and some critical areas in the polygraphs that were given well i'm not sure that that testimony was admitted for its truth if the doctor were to consider that in coming to his opinion that  perhaps mr endo was not fully disclosing nonetheless we have a polygraph being given and whether or not he's failing it or there's deception indicated or he didn't tell the entire truth it's not clear what that means within the record but in any event he's disclosing after the polygraph before the polygraph and we look at the conditional release plan the first page of the conditional release plan says you know part of what we're doing here is a polygraph need to ensure compliance and to promote transparency so who is out there disclosing and dr smith admitted that he said yes he's making progress it's a made up down pattern but he's continued to make progress in treatment and then tied in together with the case of people versus williams with this court recently decided i know is that it was vacated by the supreme court or remanded for reconsideration but it would seem that the rationale there and internally contradictory findings of the circuit court would remain in effect even in light of people we fernandes there was a statement made if it was by judge people in the record below where he indicated that to the defendant he was speaking to the defendant directly that  e there had been some of the people in his circumstance who were on conditional release who had been you know where that had been ended and they were free after a period of time have you had their experience you know you folks do this work i believe there has been before i joined working with these folks that there was somebody who was discharged after a conditional release so someone can be discharged and that if they complete the treatment and the y go through treatment and then they would eventually be looking to get this chars and details just for the moment if you could as to what penalties were paid by mr rand on h and he was brought in under the section of on persons act following a parole or a case and so he's been in since one thousand nine hundred eight until two thousand and ten when he gets conditional release and then he's on home confinement essentially the whole time and part of the reason for the home confinement according to the doctors was that he had failed polygraph so while he was disclosing he's still in home confinement while he's in the t f he does not violate any rules has come through the testimony of dr smith that there were never a rule violation in his twelve years at the treatment detention facility and we go through to conditional release no problem with his supervision no problem with  behavioral monitoring so while you know even if there is a concern the fact of the matter is that he's on conditional release in his home on g p s he's being monitored and that evidence right there shows why the safety of others that there was insufficient evidence to meet that standard and like to turn back to the unconstitutionally vague argument as i think it ties in a little bit with this officials the evidence if we look at the timeline in this case the state first got a polygraph and may thirtieth of two thousand and eleven and they said that you know he had failed this polygraph we felt three questions dr smith looked at that and he says that mr unknown continue to go on conditional release and that's in june seventh of two thousand  others i'm i believe that statute was repealed by the legislature after this case in re towards the sea that said that the definition of dangerous conduct in the civil commitment statute of the mental health code was unconstitutionally vague he said it could apply to you know merely unusual behavior and that for that reason it was unconstitutionally vague and they also said that a need for definite standards was heightened in a case involving psychology and psychology of psychiatry and that is precisely the case here where there needs to be so is it your argument that to meet constitutional muster they ha specifically detail and exclusive lists of what type of behavior would constitute a threat to the public i think that would be one way to do it because the only way to do it how else would you suggest they could do it was so some sort of guidelines on you know if somebody is fully complying with their conditions of release what types of behavior or generally even generally what types of behavior would withdraw when the safety of others in the world threaten isn't even in there it could be implied but the safety of others is undefined well so is reasonable doubt reasonable doubt is also one defined yeah but i think that there's a more of an ordinary common sense meaning that if you ask i'd love to hear it because i've been reading it for years and years and i've read the supreme court u s supreme court's decisions on the on the matter and nobody can agree what reasonable doubt means other than reasonable doubt and isn't this somewhere and if it's not similar how is it this summer all one ways this summer is that that standard has been around for so long on this undefined term safety of others and it gives no guidelines one first rate which is what the constitution requires and i think that's clear when you look at the specific instances of this case judge apparently not even finding probable cause fast forward to two thousand and twelve we have a almost identical petition and there is a finding that his conditional release should be revoked because the safety of others requires it so there's grossly disparate situations resulting from similar allegations and that is what is not allowed under the constitution for decisions to be made based upon private conception such standard of review and then issues of course decision the court decided in one part of the order that there was no clear and convincing proof offered by the state that he had violated any terms of the conditional release but at the same time the court found that the safety of others was threatened as a result of what the defendant had done during the course of being in this conditional release what's our standard of review we submit to the court of the standard of review would be the novel in this that's you know understood and i'm not talking about the past to solve them but just talking about the decision that the court made that there were no violations but still the safety of others was implicated well i'm not sure that the trial court's finding in order to get to the sufficiency of the evidence we do have to do some statutory construction first and of course the purpose is to figure out what the intent of the legislature is and the legislature wrote the statute as disjunctive it says that conditional release can be a condition is violated or if the safety of others require said and for that reason people be williams which respondent cited in his reply brief isn't helpful to this question at all if the statutes disjunctive then the trial court's finding that no condition was violated but the safety of others still requires revocation doesn't create the kind of internal contradiction that the williams court found look what the legislature intended by having the safety of others there is it's a catch all provision we did copy this off of wisconsin as we copied our entire p p statutory scheme from wisconsin and they agree it's a catch all provision it's for things that can't be anticipated by the list of conditions now when the conditional release agents are putting together this plan they do their best to try to anticipate what's going to come up and they do how many of them there are but plenty there are quite a few and they're trying to anticipate what his behavior is going to be unconditional release and what problems might arise but they can anticipate everything for example in condition free it says you have to fully participate in polygraphs oh i don't know what they thought fully participate meant but apparently they did not anticipate that he was going to try to manipulate the polygraph results by shuffling to speak same thing with the the fear was for someone whose feet show yes but it did lead to them not being able to get reliable results on the polygraph and he admitted that the reason he was doing this was because he thought he wasn't going to pass now i don't to submit to each question before they decide to give up and move on the other problem with the list of conditions as it can't be exclusive in part because the list of conditions has to be things that the conditional release agent can actually try to verify which is why one thing that that list has in common is it had to be concrete things if you show up for treatment yes do you have alcohol in your home no we can shop on that we can ask miss mitchell if you showed up for treat me we can search your parchman to see if alcohol is there one thing that we can't verify through the have to just close all of these fantasies you have if you don't disclose fantasies we deter that you will holding them you're in violation but if you disclose that we could use that also well in this trip to use your term that the problem is that he gets the credit for disclosing and throughout this nation's testimony and dr snus you can talk about they talk about him having an up and down sort of cycle progress in treatment it's good that he's disclosing what's bad is the fact that even when he's having these fantasies he's not intervening in the way that he's supposed to it's not enough to simply disclose this to run isn't a new s v p he's been through all the stages of cognitive behavioral therapy he's out on conditional release we expect more from him because movement is extremely restricted so yes but that is apparently preferable to being at rochelle so let me be me see if i can direct you your argument a little bit because i would again want to use your term internal contradiction and how are we supposed to square up what the court did here when the court says i find that the state did not provide clear and convincing evidence of any violation of the conditions of  release but on the same him when he talks about why he's a danger to the safety of others he's talking about ways in which he was in some ways not measuring up to those conditions well  that he may have been misleading them about whether or not a woman was actually in his apartment you know the kind of things that would be a violation of the conditions that the state really went that way they threw it in at the end violation for him to have a woman in his apartment the problem with that statement was i believe that was one of the questions on the polygraph that was later found to be deceptive but again that goes back to he's having off about having women in his apartment now he knows he's not supposed to have women in his apartment that would be a violation of the few others prong is there for the things that don't necessarily fit into a condition or things that we might say well that might fit under condition free but we can't necessarily prove that by their convincing evidence i don't know it just seems a little troubling that what we're essentially doing here is saying that we're going to revoke this conditional release because of what you're thinking about doing nothing you've done any oh well this is really the danger doesn't that defy him dangerous to others in some level i think that's one of the statutory interpretations that respondent suggests might be appropriate and what i'm asking for your view of well i think a lot of this is based on  a lot of the things that they revoke conditional release on aren't necessarily the same things that made him an s v p as mr johnson said we agree that his nest p p initial the conditional release revocation was based on things that aren't necessarily there for yes i would say that it's clear and convincing and then some in terms of his particular deceptions but when dr smith testifies about this this is why this is why conditional release is there we don't have to wait until he actually gets the point of committing a new offense in the wisconsin case which i believe is the only published case that interprets this kind of provision says we don't have to wait until he commits a new offense we have conditional release so that we can sort out this tentative situation where we can still monitor his behavior i'm sorry between that and acting in a socially unacceptable in the illegal and violent manner but it is a shorter step than for somebody who never has those fantasies in the first place so now you have somebody who is quote conditional release so he's monitored he's in his home he has his freedom is controlled he is given drugs for the purpose of basically making him an able to act out any sexual activity and believe that's the idea of l a guard but i think both of the w your view of this standard which is relatively are defined to become a danger to others well  this is an issue of first impressions out of play that hopefully this court can weigh in on that point that the wisconsin case does say that essentially it's anything that would be a danger to you that would indicate that he has become a danger to others now the fact that the  disjunctive between that and the conditions implies that these are things that aren't covered by the conditions which is why we suggested that the court interpret this as being things that are sort of outside the box that the conditions of release can put him in but that's still in play and the safety of team and that with each with each step of this you know some misbehavior he was getting closer and closer to real finding yes is it are we really i mean the unspoken that there is something there under this standard that there's something there that leads the state to say that this person is a potential danger to the public that without standards a trial judge would be impelled ordway's consider the idea well i don't know what i'm supposed to look at and if i appropriate way to judge whether someone has violated this the editor not even though i don't mean to imply that judgment was thinking about that but when you have a standard which is  defined haven't you really created something worse human behavior being what it is at least creates a very strong possibility that some judges somewhere will just say the path of least resistance is now i my watch we're going to call him back to answers that the first being bad parenting that didn't exactly happen in this case because as respondent pointed out the first time that the state addition the judge said no so at least in that case the judge had some idea of what was enough he wasn't apparently so only interested in oh god what's going to happen to me if this guy stays on again i didn't make the suggestion that  what judge mchale was writing hypothetically but i think that frankly that's our i've never been a judge but frankly i think that kind of consideration is would be present every time the judge made any sort of decision either in this context  well except though there are elements to crime and there is there is a better defined standard for most every crime as to what you must have beyond a reasonable doubt the sided occurred before you can convict someone of that here it's just the generalized statement that we have which could have compassed a lot of behavior i mean if you could say someone could say this if i saw a guy going down the street holding an automatic weapon in his hand which is legal in many many places now that person is a danger to society does the public respectfully i'm not even going to try and touch a gun but but but but you see what i'm saying there's lots of behavior that could lead someone to the conclusion i don't want to be anywhere near this person because this person is a danger to society facial challenge unless we find that is specific behavior it violates vagueness in that context but then when we're looking at vagueness we're not supposed to look at the terms in isolation we look at it in the context of the entire statute and the purpose of the legislation on conditional release and twelve have actually been discharged twelve so so i was told yesterday by r s v p people right but more when we don't want these things in isolation so the context is where a person of ordinary intelligence in his situation think well i can be deceptive on polygraphs and they won't think that that's a problem of being a danger to the safety of others he knows what leads to him being a danger that's the whole purpose of his cognitive behavioral therapy was for him to understand how his sexual fantasies and ignoring them and not intervening led him to the point where he committed his original fence so it's not so much a hypothetical what would a man off the street and i think that danger to the safe you know element you know there's an element of the dream police you know at play here where you know we're going to lock you up or to keep you away from everybody else because of what you're thinking in your head not necessarily what you're doing this is very very serious stuff on both sides of the debate here yes but you know when you when you have a circumstance like this where he did his time for the two very serious crimes that he was found guilty of forget about all this other stuff he claims to have done twenty thousand frottage incidents i mean you know but you know he did his time for the two things that he was convicted of he did all of that quote time simply being in s p p and he was fantasizing backsliding is enough to revoke your conditional release that seems a little down the rabbit hole to me i white characterized as a tough standard but i think it is deliberately written to be that way but i don't think it's unconstitutionally vague now mr reynolds is when he would usually went out on conditional release he did well for the first few months there were no problems he was being constantly monitored he was doing everything that he was supposed to do the longer he's out things start to happen he's failing out of line they instantly sent him back this did go on over multiple court dates multiple tests multiple reports from the doctors before it finally gets to the point and when he gets that point is the point of he's not just having these thoughts he's in his in his sexual and cycle he knows that he's in that cycle he's deliberately not doing what he's supposed to do to keep himself from acting out instead it's escalating too hard there's a woman walking past my apartment i wonder if i could get her to come up here that's work and that is well the first is that the state has told you that since this statute is phrased in the disjunctive that you can get revoked based on a rule violation or the safety of others that those two things cannot be internally contradictory as we suggested that they are that cannot be the case where the allegations about the safety of others are so related to his treatment and his supervision and the conditions of release so there is a comes what isn't there or is never grounds because it is this jump of saying it could be these conditions or it could be the safety of others and you could have behaviors which are not clear violations of the conditions which taken in the aggregate although not been taken individually would raise the specter of a danger to the public if this is that really what she's saying i'm not sure that that would be a proper definition for the safety of others if you look at the torso you see case what it says is you know if somebody is out there doing something unusual it's causing or something that's erratic that's not quite reaching a certain threshold but that's not something  can extinguish someone's liberty based on if it's not going up to meet the level of a rule violation but i'm not sure it's at the level it needs to be taking him out of commission or release and putting him back in a secur logical think extension of your argument that those factors that are listed as conditions are really the exclusive bases basis on which  conditional release can be revoked by and large i would say that's true especially when you consider that the department can make additional rules there and they can add on case specific rules as they did in this case  conditions right at the same time finite the treatment has been no evidence that he's not complied the treatment the second point i'll just make briefly is that the state had during the two thousand and eleven evaluation d you thank you both for a very frank presentation yeah i don't think i've ever seen a better briefing an argument and more difficult issue in my brief time on the court so thank you very much rich