2014 WI 71

SUPREME COURT OF WISCONSIN

CASE NO.: 2012AP2170 

COMPLETE TITLE: In re the commitment of Joseph J. Spaeth:

State of Wisconsin,

 Petitioner-Appellant,

 v.

Joseph J. Spaeth,

 Respondent-Respondent.

ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED: July 16, 2014

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: March 13, 2014 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Winnebago

JUDGE: Thomas J. Gritton

JUSTICES:

CONCURRED: 

DISSENTED: PROSSER, J., ABRAHAMSON, C.J., BRADLEY, J., 

dissent. (Opinion filed.)

NOT PARTICIPATING: 

ATTORNEYS:

For the petitioner-appellant, the cause was argued by 

Warren D. Weinstein, assistant attorney general, with whom on 

the briefs was J.B. Van Hollen, attorney general.

For the respondent-respondent, there was a brief by Shelley 

M. Fite, assistant state public defender, and oral argument by 

Shelley M. Fite.
2014 WI 71

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2012AP2170

(L.C. No. 2010CI1)

STATE OF WISCONSIN : IN SUPREME COURT

In re the commitment of Joseph J. Spaeth:

State of Wisconsin,

 Petitioner-Appellant,

 v.

Joseph J. Spaeth,

 Respondent-Respondent.

FILED

JUL 16, 2014

Diane M. Fremgen

Clerk of Supreme Court

APPEAL from a judgment and order of the Circuit Court for 

Winnebago County, Thomas J. Gritton, Judge. Reversed and cause 

remanded. 

¶1 MICHAEL J. GABLEMAN, J. This case is before the 

court on certification by the court of appeals pursuant to Wis. 

Stat. § 809.61 (2011-2012). 

¶2 The question before us is whether a petition filed 

under Wis. Stat. ch. 980 ("Chapter 980") can be invalidated when 

the conviction recited in the petition is later reversed. In 
No. 2012AP2170 

2

order to seek commitment of a sexually violent person under 

Chapter 980, the State must file a petition that meets the 

requirements of Wis. Stat. § 980.02 (2009-10).1 One such 

requirement is that the State allege the individual has 

committed a sexually violent offense, which we refer to as a 

"predicate offense."2 Wis. Stat. § 980.02(2)(a). The central 

dispute between the parties in this case is what is necessary to 

satisfy this statutory requirement. The State argues that if 

the petition met the statutory requirements in Wis. Stat. 

§ 980.02 at the time it was filed, it is irrelevant if the 

conviction for the predicate offense recited in the petition is 

later reversed. Spaeth argues that, because his conviction for 

the predicate offense was later reversed, the State's Chapter 

980 petition is insufficient to support commitment. 

¶3 We hold that the sufficiency of a Chapter 980 petition 

should be assessed as of the time of filing. At the time the 

State's petition was filed, the statutory requirements in Wis. 

Stat. § 980.02 were satisfied. We therefore hold that the 

Chapter 980 petition to commit Spaeth should not have been 

dismissed. Accordingly, we reverse the circuit court's order to 

dismiss the petition, and we remand for further proceedings 

consistent with this opinion.

 

1 All subsequent references to the Wisconsin Statutes are to 

the 2009-10 version unless otherwise indicated. 

2 See State v. Gilbert, 2012 WI 72, ¶51, 342 Wis. 2d 82, 816 

N.W.2d 215 (adopting the term "predicate offense" to refer to 

the sexually violent offense recited in a Chapter 980 petition).
No. 2012AP2170 

3

I. FACTS AND PROCEDURAL HISTORY

¶4 The facts in this case are undisputed. In 1993, the 

defendant, Joseph J. Spaeth ("Spaeth"), was convicted of firstdegree sexual assault of a child ("the 1993 conviction") in 

violation of Wis. Stat. § 948.02(1) (1991-92). Spaeth was 

paroled on the 1993 conviction in 2004. In February 2006, 

Spaeth submitted to an annual polygraph examination that was 

required under the terms of his parole. During the examination, 

Spaeth admitted that, while wrestling and tickling his minor 

relatives, he had "touch[ed] or brush[ed] their buttocks, breast 

and vaginal areas." As a result of these statements, Spaeth's 

parole in the 1993 conviction was revoked. 

¶5 In addition to the revocation of his parole, Spaeth's 

statements during the polygraph examination and his subsequent 

statements to police also resulted in new charges in April 2006. 

In July 2007, a jury convicted Spaeth of four counts of sexual 

assault of a child under 13 years of age in violation of Wis. 

Stat. § 948.02(1) (2005–06).3 On October 20, 2008, Spaeth's 

convictions were vacated by the circuit court due to prejudicial 

and extraneous information in the jury room.4 The State amended 

the charges from the 2007 case, and in March 2009, Spaeth pled 

no contest to four counts of child enticement contrary to Wis. 

Stat. § 948.07(1) ("the 2009 convictions"). 

 

3 The Honorable Thomas J. Gritton presided. 

4 In June 2008, prior to the circuit court's October 2008 

vacatur of the 2007 jury convictions, Spaeth was discharged from 

his sentence for the 1993 conviction. However, Spaeth remained 

in custody as a result of the April 2006 charges.
No. 2012AP2170 

4

¶6 On November 2, 2010, the State filed a petition to 

commit Spaeth as a sexually violent person pursuant to Wis. 

Stat. § 980.02. The petition alleged, in pertinent part:

The Respondent, Joseph J. Spaeth, has been convicted 

of a sexually violent offense(s). Specifically, on or 

about July 3, 2007, in Winnebago County Circuit Court 

File No. 06CF350, the Respondent was convicted of four 

(4) counts of Child Enticement-Sexual Contact in 

violation of Wisconsin Statute Section 948.07(1).

Although the petition refers to convictions occurring on July 3, 

2007, this appears to be an error, as Spaeth was convicted of 

the charges recited in the petition——four counts of child 

enticement——in March 2009. As discussed above, the July 3, 2007 

convictions were for four counts of sexual assault of a child, 

and these convictions were vacated by the circuit court on 

October 20, 2008. We assume for the purposes of this opinion 

that the State refers to the 2009 convictions in its petition. 

¶7 At the time the State's petition was filed, Spaeth was 

scheduled for release from detention on the 2009 convictions on 

November 9, 2010. In response to the State's petition, however, 

Spaeth was transferred to a Department of Health and Family 

Services facility. 

¶8 In July 2012, this court reversed Spaeth's March 2009 

convictions, holding that they were derived from compelled 

testimony.5 The State dismissed the charges against Spaeth the 

following month. Subsequently, the State informed the circuit 

 

5 State v. Spaeth, 2012 WI 95, ¶79, 343 Wis. 2d 220, 819 

N.W.2d 769.
No. 2012AP2170 

5

court that it intended to proceed with Spaeth's Chapter 980 

commitment, and the State sought to amend the Chapter 980 

petition to include Spaeth's 1993 conviction.6 Spaeth opposed 

this amendment and argued that the Chapter 980 petition must be 

dismissed.

¶9 In September 2012, the circuit court denied the 

State's proposed amendment and dismissed the petition. The 

circuit court reasoned that, while there was "a legitimate basis 

for the State to bring this action" at the time the petition was 

filed, once the March 2009 convictions were reversed and the 

charges dismissed, the State could no longer rely on those 

convictions as a predicate offense to support its petition. In 

addition, the circuit court concluded that amending the petition 

to include the 1993 conviction would not correct the deficiency, 

because Spaeth was not in custody for that offense at the time 

the petition was filed as required under Wis. Stat. 

§ 980.02(1m). 

¶10 The State appealed the circuit court's ruling, and the 

court of appeals certified the appeal to this court. 

II. STANDARD OF REVIEW

¶11 Under Wis. Const. art. VII, § 3(3), by accepting a

certified appeal, this court acquires jurisdiction of the entire 

 

6 The record is unclear regarding whether the State intended 

to replace the 2009 convictions with the 1993 conviction as the 

predicate offense, or to simply include the 1993 conviction as 

an additional predicate offense. However, in light of our 

holding, the distinction is irrelevant.
No. 2012AP2170 

6

appeal, not merely the questions certified. State v. Henley, 

2010 WI 97, ¶28, 328 Wis. 2d 544, 787 N.W.2d 350.

¶12 This case requires us to interpret Chapter 980, which 

governs the civil commitment of sexually violent persons. 

Statutory interpretation is a question of law that this court 

reviews de novo. Crown Castle USA, Inc. v. Orion Constr. Grp., 

LLC, 2012 WI 29, ¶12, 339 Wis. 2d 252, 811 N.W.2d 332. While we 

interpret statutes independently, we benefit from the analyses 

of lower courts. Id.

III. DISCUSSION

¶13 The question before us is whether a Chapter 980 

petition that was sufficient at the time it was filed is 

invalidated when the conviction recited in the petition is later 

reversed. The State argues that the validity of the petition 

should be assessed at the time of filing. Later reversal of the 

conviction recited in the petition is irrelevant, according to 

the State, because pursuant to this court's decision in State v. 

Carpenter, 197 Wis. 2d 252, 541 N.W.2d 105 (1995), and the court 

of appeals' decision in State v. Virlee, 2003 WI App 4, 259 

Wis. 2d 718, 657 N.W.2d 106, a court should consider only the 

facts that existed when the petition was filed. The State 

maintains that its petition satisfied the statutory requirements 

of Wis. Stat. § 980.02(1m)-(2) because Spaeth was in custody for 

a sexually violent offense at the time the petition was filed. 

Therefore, the State contends that the circuit court improperly 

examined the petition based on the facts at the time the State 

moved to amend, rather than at the time the petition was filed. 
No. 2012AP2170 

7

¶14 Spaeth argues the circuit court properly considered 

the fact that his 2009 convictions were vacated, because if the 

predicate offense recited in the petition is no longer valid, 

there is no basis for Spaeth's commitment.

¶15 We conclude that the State's petition satisfies the 

requirements of Wis. Stat. § 980.02 and was not invalidated by 

the reversal of Spaeth's 2009 convictions. We begin in Part A 

by reviewing the statutory requirements for Chapter 980 

commitment. In Part B, we address whether the circuit court 

properly dismissed the State's Chapter 980 petition. We 

conclude that if a Chapter 980 petition satisfies the statutory 

requirements in Wis. Stat. § 980.02 at the time it is filed, it 

will not be invalidated if the conviction recited in the 

petition is later reversed. Consequently, we determine that the 

State's petition should not have been dismissed.7

A. Requirements for Chapter 980 Commitment

¶16 Chapter 980 provides the State with a mechanism to 

commit, for the purpose of treatment, individuals found to be 

"sexually violent person[s]" to the custody of the Department of 

Health and Family Services. Wis. Stat. § 980.06. The State 

 

7 In holding that the State's petition meets the statutory 

requirements in Wis. Stat. § 980.02, we merely determine that 

the State's petition is sufficient to proceed to the next step 

in the Chapter 980 commitment process. The State still bears 

the burden of establishing "probable cause to believe that the 

person named in the petition is a sexually violent person" at a 

probable cause hearing, Wis. Stat. § 980.04(3), and if it does 

so, the State must prove these allegations "beyond a reasonable 

doubt" at trial. Wis. Stat. § 980.05(3)(a). 
No. 2012AP2170 

8

must seek this commitment by filing a petition pursuant to the 

requirements of Wis. Stat. § 980.02. Among other things, Wis. 

Stat. § 980.02 explains that a valid Chapter 980 petition must 

"be filed before the person is released or discharged."8 Wis. 

Stat. § 980.02(1m). In addition, Wis. Stat. § 980.02(2)(a) 

directs that a Chapter 980 petition must allege one of the 

following criteria:

1. The person has been convicted of a sexually 

violent offense.

2. The person has been found delinquent for a 

sexually violent offense. 

3. The person has been found not guilty of a 

sexually violent offense by reason of mental disease 

or defect.

The petition must also "state with particularity essential facts 

to establish probable cause to believe the person is a sexually 

violent person." Wis. Stat. § 980.02(3). 

 

8 The dissent notes that in Gilbert, we explained that in 

addition to alleging a sexually violent offense in the petition, 

the petition must be "'filed before the person is released or 

discharged' from the sentence for that sexually violent 

offense." Gilbert, 2012 WI 72, ¶51 (citing Wis. Stat. 

§ 980.02(1m)); dissent, ¶57. We do not dispute that "the 

sexually violent offense that is a basis for the petition under 

§ 980.02 must be the same offense for which the person is 

confined at the time of the petition's filing." Dissent, ¶57. 

However, the confinement requirement does not extend to the 

probable cause hearing under Wis. Stat. § 980.04 or trial under 

Wis. Stat. § 980.05. As discussed below, nothing in Chapter 980 

provides that the State may produce evidence at the probable 

cause hearing and trial only if that evidence was first recited 

in the petition. Thus, the State may introduce additional 

evidence at these proceedings not connected to the individual's 

confinement at the time the petition was filed. 
No. 2012AP2170 

9

¶17 Once a Chapter 980 petition is filed, the circuit 

court "shall hold a hearing to determine whether there is 

probable cause to believe that the person named in the petition 

is a sexually violent person." Wis. Stat. § 980.04(2a). If 

probable cause is found, a trial must commence within 90 days 

after the probable cause hearing. Wis. Stat. § 980.05(1). At 

trial, the State "has the burden of proving beyond a reasonable 

doubt that the person who is the subject of the petition is a 

sexually violent person." Wis. Stat. § 980.05(3)(a). "If a 

court or jury determines that [the individual] is a sexually 

violent person" under the statutory definition, then the court 

must order commitment pursuant to Wis. Stat. § 980.06.

¶18 We now turn to the sufficiency of the State's Chapter 

980 petition and examine whether the petition was invalidated by 

this court's reversal of Spaeth's 2009 convictions.9

B. The State's Chapter 980 Petition

¶19 In its petition, the State explained Spaeth had been 

convicted of a sexually violent offense, and he was in custody 

for that offense at the time the petition was filed. The 

circuit court nevertheless dismissed the State's Chapter 980 

petition because the 2009 convictions were later reversed and 

the case dismissed. 

¶20 We conclude that the circuit court erred in dismissing 

the Chapter 980 petition based on the fact that the underlying 

 

9 As discussed supra ¶6, we assume the convictions recited 

in the petition are Spaeth's 2009 convictions. 
No. 2012AP2170 

10

predicate offense was later vacated. To determine whether a 

Chapter 980 petition meets the statutory requirements in Wis. 

Stat. § 980.02, a court should consider the sufficiency of the 

allegations in the petition at the time the petition was filed. 

Subsequent facts that impact the status of the allegations in 

the petition may be relevant at trial under Wis. Stat. § 980.05, 

but they will not invalidate a petition that met the 

requirements of Wis. Stat. § 980.02 at the time of filing. In 

reaching this conclusion, we examine the statute's plain 

language, relevant precedent, and finally, Chapter 980's 

underlying purpose.

1. Petitions Filed Under Wis. Stat. § 980.02

¶21 We begin our analysis by examining the statutory 

requirements to file a Chapter 980 petition in Wis. Stat. 

§ 980.02. Statutory interpretation "begins with the language of 

the statute. If the meaning of the statute is plain, we 

ordinarily stop the inquiry." State ex rel. Kalal v. Circuit 

Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 

N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶43, 236 

Wis. 2d 211, 612 N.W.2d 659). In addition to the plain language 

of the statute, "scope, context, and purpose are perfectly 

relevant to a plain-meaning interpretation of an unambiguous 

statute . . . ." Id. at ¶48.

¶22 Wisconsin Stat. § 980.02(1m) provides that a Chapter 

980 petition must "be filed before the person is released or 

discharged." (Emphasis added). To assess whether the custody 

requirement in Wis. Stat. § 980.02(1m) is satisfied, a court 
No. 2012AP2170 

11

must simply ask whether the petition was filed while the person 

was still in custody for the predicate offense. Nothing in 

Chapter 980 suggests that a subsequent change in circumstances 

must render the petition invalid.10 Likewise, Wis. Stat. 

§ 980.02(2) provides that "[a] petition filed under this section 

shall allege" a predicate offense. The provision does not state 

that later reversal of the conviction for the predicate offense 

will invalidate the petition, and we will not read requirements 

into a statute that do not exist. If the statutory requirements 

are met, the State may proceed to a probable cause hearing, 

 

10 On the contrary, various provisions in Chapter 980 

demonstrate that a subsequent reversal of the conviction recited 

in a petition does not automatically invalidate the petition. 

For instance, Wis. Stat. § 980.101 addresses the scenario where 

an individual has been committed under Chapter 980 and the 

conviction for the predicate offense recited in the petition is 

later reversed. The statute explains that if "there are other 

judgments relating to a sexually violent offense committed by 

the person that have not been reversed, set aside, or vacated" 

and that were not recited in the State's initial petition for 

commitment, "the court shall determine whether to grant the 

person a new trial . . . ." Wis. Stat. § 980.101(2)(b). 

Although this provision does not apply here because Spaeth has 

not been committed at trial, it demonstrates that reversal of a 

conviction for a predicate offense will not conclusively 

terminate the State's petition. See State ex rel. Kalal v. 

Circuit Court for Dane Cnty., 2004 WI 58, ¶46, 271 Wis. 2d 633, 

681 N.W.2d 110 ("statutory language is interpreted . . . not in 

isolation but as part of a whole . . . ."). Moreover, 

§ 980.101(2)(b) informs us this is especially true in cases such 

as Spaeth's, where the State can point to an additional 

conviction for a sexually violent offense to support commitment.

Other provisions in Chapter 980 permit commitment of an 

individual who has never been convicted of a sexually violent 

offense at all. See Wis. Stat. §§ 980.01(7), .02(2)(a)(3) 

(allowing Chapter 980 commitment for individuals found not 

guilty due to insanity, illness, or mental disease or defect). 
No. 2012AP2170 

12

where it must establish "probable cause to believe that the 

person named in the petition is a sexually violent person." 

Wis. Stat. § 980.04(2)(a). 

¶23 The dissent alleges that the petition is invalid 

because a vacated conviction cannot "support probable cause to 

believe the person is a sexually violent person" as required 

under Wis. Stat. § 980.02(3). Dissent, ¶58. We disagree. The 

relevant inquiry is whether, at the time of filing, the facts 

recited in the petition satisfied the statutory requirements in

Wis. Stat. § 980.02. Here, the petition relied on a conviction 

for a sexually violent offense that was vacated nearly two years 

after the petition was filed. Thus, at the time of filing, the 

petition recited sufficient facts to satisfy the probable cause 

standard in Wis. Stat. § 980.02(3). 

¶24 We further note that the requirements in Wis. Stat. 

§ 980.02 pertain to the petition only. In asking whether a 

petition satisfies this statutory provision, we do not look 

ahead to the standard for a probable cause hearing under Wis. 

Stat. § 980.04 or a trial under Wis. Stat. § 980.05, which will 

necessarily contain testimony and other evidence that may differ 

from the bare bones allegations in the State's petition. If the 

strength of the State's case has changed because the conviction 

in the petition was reversed, that becomes a matter to be 

considered by the trier of fact, beginning with the probable 

cause hearing. Wisconsin Stat. § 980.04(2)(a) unequivocally 

states, "[w]henever a petition is filed under s. 980.02, the 

court shall hold a hearing to determine whether there is 
No. 2012AP2170 

13

probable cause to believe that the person named in the petition 

is a sexually violent person." (Emphasis added). 

¶25 The dissent also asserts that "[t]he offense listed in 

the petition is the offense on which the state must defend its 

petition and then demonstrate probable cause." Dissent, ¶61. 

To address the dissent's position, we will begin by briefly 

discussing the statutory history of Chapter 980. In 2006, the 

legislature amended the proof requirement in Wis. Stat. 

§ 980.05(3)(a). Prior to this amendment, the statute provided: 

"At a trial on a petition under this chapter, the petitioner has 

the burden of proving the allegations in the petition beyond a 

reasonable doubt." Wis. Stat. § 980.05(3)(a) (2003-04). 

However, subsequent to the 2006 amendment, the State is now 

required to prove only "that the person who is the subject of 

the petition is a sexually violent person." Wis. Stat. 

§ 980.05(3)(a). The State is thus no longer limited to the 

facts in its petition in order to establish a case for 

commitment at trial. 

¶26 While the amendment of Wis. Stat. § 980.05(3)(a) 

pertained only to Chapter 980 trials, no parallel requirement 

ever existed for a probable cause hearing under Wis. Stat. 

§ 980.04 that would preclude the State from introducing evidence 

not recited in the petition. Thus, the State is not foreclosed 

from producing additional evidence at either the probable cause 

hearing or at trial, or both, to support its petition. 

¶27 The dissent can point to no provision in Chapter 980 

that confines the State to its allegations in the petition 
No. 2012AP2170 

14

during later proceedings. Indeed, such a restriction would 

unnecessarily inhibit the State by prohibiting the introduction 

of evidence that may emerge after the State's petition has been 

filed, such as additional sexually violent conduct. Our role is 

to interpret statutes as they are written. If the legislature 

wishes to amend the statute, it may do so, but unlike the 

dissent, we will not base our interpretation of unambiguous 

statutory language on what the legislature "suggest[ed]"11 or 

"impl[ied]."12 We are charged simply with determining whether 

the State's petition met the statutory requirements in Chapter 

980, and the answer is plainly, "yes." 13 

2. Application of Wis. Stat. § 980.02 in Prior Cases

¶28 Our statutory interpretation of Chapter 980 is 

consistent with precedent concluding that a later change in 

circumstances will not invalidate a petition if it was valid at 

the time of filing. For instance, in State v. Carpenter, 197 

Wis. 2d 252, the Department of Corrections ("DOC") recalculated 

the defendant's mandatory release date based on a court of 

 

11 Dissent, ¶¶57, 59.

12 Dissent, ¶56.

13 We note this court has previously held that Spaeth's 

statements leading to the 2009 convictions constituted compelled 

testimony, the fruits of which are inadmissible at trial. 

Spaeth, 343 Wis. 2d 220, ¶¶58, 67. Thus, the State must rely on 

other evidence to establish "probable cause to believe that the 

person named in the petition is a sexually violent person" at 

the probable cause hearing, and, if it is successful in so 

doing, to prove its allegations "beyond a reasonable doubt" at 

trial. Wis. Stat. §§ 980.04(3), .05(3)(a). 
No. 2012AP2170 

15

appeals decision that was later reversed by this court. We 

examined the facts as they existed "[a]t the time the petition 

was initiated" and concluded that the State's Chapter 980 

petition was valid even though, as in this case, the defendant's 

detention was predicated upon a decision that was later 

reversed. Id. at 275. We explained, "[t]he fact that this 

court ultimately reversed the court of appeals' decision does 

not render the DOC['s detention] 'illegal.'" Id.

¶29 Carpenter was subsequently applied by the court of 

appeals in State v. Virlee, 259 Wis. 2d 718. In Virlee, the 

defendant was awarded a sentence credit that moved his mandatory 

release date to a date prior to when the State filed its Chapter 

980 petition. Nevertheless, the court of appeals determined 

that the State satisfied the requirements in Wis. Stat. § 980.02 

because the petition was valid at the time it was filed. The 

court reasoned that "the trial court's subsequent modification 

of Virlee's sentence does not change the fact the State filed 

the petition within ninety days14 of his actual release from 

prison." Id., ¶18. Likewise, our reversal of Spaeth's 2009 

convictions——which were the predicate offenses in the State's 

Chapter 980 petition——does not somehow immunize Spaeth from a 

potential Chapter 980 commitment when he was in custody for a 

sexually violent offense at the time the State filed its 

petition. 

 

14 Chapter 980 was amended in 2006. Prior to the 

amendment, the statute required a petition to be filed when 

"[t]he person is within 90 days of discharge or release . . . ." 

Wis. Stat. § 980.02(2)(ag) (2003-04). 
No. 2012AP2170 

16

¶30 As we explained in State v. Gilbert, there are only 

two means by which a court may dismiss a Chapter 980 petition: 

"1) failure to find probable cause 'to believe that the person 

is a sexually violent person' under § 980.04(3), or 2) failure 

to prove 'beyond a reasonable doubt that the person is a 

sexually violent person' under § 980.05(5)." State v. Gilbert, 

2012 WI 72, ¶29, 342 Wis. 2d 82, 816 N.W.2d 215. Later reversal 

of the conviction for the predicate offense recited in the 

petition, without more, is simply not an appropriate ground for 

dismissal of the petition.15 

3. The Purpose of Chapter 980

¶31 We may also look to a statute's purpose in examining 

its plain meaning. Kalal, 271 Wis. 2d 633, ¶48 (A statute's 

"purpose [is] perfectly relevant to a plain-meaning 

interpretation of an unambiguous statute . . . ."). The primary 

goals of Chapter 980 are "1) the treatment of sexually violent 

persons, and 2) the protection of society from those persons." 

Gilbert, 342 Wis. 2d 82, ¶23. Our reasoning is consistent with, 

and supports, the purpose of Chapter 980. 

¶32 The State is required to file its Chapter 980 petition 

"before the person is released or discharged." Wis. Stat. 

§ 980.02(1m). The State is aided in satisfying this requirement 

by Wis. Stat. § 980.015, which requires the agency with custody 

over a sexually violent offender to notify the State within 90 

 

15 This is in part because, under Wis. Stat. § 980.04(2)(a), 

a probable cause hearing must be held "[w]henever a petition is 

filed . . . ." 
No. 2012AP2170 

17

days of the prisoner's impending discharge or release. Wis. 

Stat. § 980.015(2)(a). The practical effect of this provision 

is the State will generally have a 90-day window in which to 

file its Chapter 980 petition and pursue commitment of an 

individual that it believes is sexually violent. It is 

therefore essential for the State to be able to rely on the 

facts as they exist at the time the petition is filed. 

¶33 As illustrated by Carpenter and Virlee, any number of 

conceivable circumstances may arise after a Chapter 980 petition 

has been filed that relate to its underlying allegations. Under 

Spaeth's reasoning, if such circumstances arise after the 

individual has been released from custody, the State would be 

unable to pursue commitment of the individual even though it 

complied with all the statutory requirements in Chapter 980. In 

other words, if a later change in circumstances could invalidate 

a petition that was otherwise valid at the time of filing, the 

State would be at risk of losing its ability to commit a 

sexually violent person through no fault of its own, and even 

though the State met all the statutory requirements to proceed 

to commitment. Such an outcome would be contrary to the primary 

purpose of Chapter 980, which is "to treat sexually violent 

persons and to protect society from the dangers posed by those 

persons." State v. West, 2011 WI 83, ¶27, 336 Wis. 2d 578, 800 

N.W.2d 929; see also Kalal, 271 Wis. 2d 633, ¶46 (We must 

interpret statutes "reasonably, to avoid absurd or unreasonable 

results").

4. Application
No. 2012AP2170 

18

¶34 Applying our reasoning to the facts of this case, we 

conclude that the State's petition met the statutory 

requirements at the time it was filed and should not have been 

dismissed.16 First, the petition was filed before Spaeth was 

"released or discharged" pursuant to Wis. Stat. § 980.02(1m). 

In addition, Spaeth was "convicted of a sexually violent 

offense"——the 2009 convictions——pursuant to Wis. Stat. 

§ 980.02(2)(a)(1). The State filed a valid petition based on 

the facts as they existed at the time. The fact that Spaeth's 

conviction was later overturned unquestionably impacts the 

strength of the State's case for his commitment, but this does 

not negate the validity of the State's petition at the time of 

filing.

IV. CONCLUSION

¶35 We hold that the sufficiency of a Chapter 980 petition 

should be assessed as of the time of filing. At the time the 

State's petition was filed, the statutory requirements in Wis. 

Stat. § 980.02 were satisfied. We therefore hold that the 

Chapter 980 petition to commit Spaeth should not have been 

dismissed. Accordingly, we reverse the circuit court's order to 

 

16 The State makes the alternative argument that, even if 

the petition was insufficient because the 2009 convictions were 

reversed, the circuit court nevertheless erred in denying its 

motion to amend the petition and include the 1993 conviction. 

Because we conclude that the State's petition met the statutory 

requirements and should not have been dismissed, we need not 

address whether the State should have been granted leave to 

amend.
No. 2012AP2170 

19

dismiss the petition, and we remand for further proceedings 

consistent with this opinion.

By the Court.—The order of the circuit court is reversed, 

and the cause is remanded. 
No. 2012AP2170.dtp

1

¶36 DAVID T. PROSSER, J. (dissenting). The question 

presented in this case is whether a petition filed pursuant to 

Wis. Stat. § 980.02 (Chapter 980 petition) for the civil 

commitment of a sexually violent person must be dismissed when 

the conviction for the predicate offense has been reversed and 

the charges dismissed. The majority concludes that when 

assessing a Chapter 980 petition, a reviewing court may focus on 

the sufficiency of the petition solely at the time it was filed, 

Majority op., ¶35, enabling the State to prove a different 

sexually violent offense at the probable cause hearing and at 

trial, even if the different sexually violent offense could not 

have been listed in the original petition. Because I strongly 

disagree with this conclusion and believe that a petition must 

remain viable in its original form or be amended to make it 

viable, I respectfully dissent.

FACTUAL AND PROCEDURAL BACKGROUND

¶37 Joseph J. Spaeth (Spaeth) was charged with firstdegree sexual assault of a child1 in 1992 and convicted of the 

offense in 1993 (1993 conviction). Twice, on January 9, 2003, 

and again on July 12, 2004, a Department of Corrections (DOC) 

evaluator determined that Spaeth did not meet the criteria for 

commitment under Wis. Stat. ch. 980; thus, on August 8, 2004, 

DOC released Spaeth on parole.

¶38 Eighteen months later, on February 15, 2006, Spaeth 

was directed to meet with his parole agent to participate in a 

compulsory polygraph examination. During the examination 

 

1 Wis. Stat. § 948.02(1) (1991-92).
No. 2012AP2170.dtp

2

process, he admitted to his agent that he "may have brushed up 

against his nieces and nephews [sic] vaginas or butts or breast 

area." State v. Spaeth, 2012 WI 95, ¶11, 343 Wis. 2d 220, 819 

N.W.2d 769. Inasmuch as Spaeth was prohibited from having 

unsupervised contact with minors and engaging in physical 

contact with minors, the agent immediately commenced parole 

revocation proceedings by asking Oshkosh police to take Spaeth 

into custody. Id., ¶¶9-11.

¶39 On May 8, 2006, the Wisconsin Division of Hearings and 

Appeals revoked Spaeth's parole for the 1993 conviction. He was 

eventually discharged from the 1993 conviction in June 2008.

¶40 It should be noted that the State could have filed a 

Chapter 980 petition against Spaeth before he was discharged in 

2008. But the State had different plans.

¶41 When Oshkosh police took Spaeth into custody on the 

parole revocation hold, they questioned him to provide grounds 

for new criminal charges. After receiving a Miranda2 warning, 

Spaeth admitted to an Oshkosh detective that on February 11, 

2006, he started tickling his niece at his brother's house, and 

"his hand brushed up against her vagina, buttocks, and chest." 

He indicated that a similar incident took place on February 14, 

2006, with three of his nieces.

¶42 On April 25, 2006, the State filed a complaint 

charging Spaeth with four counts of sexual assault of a child 

under 13 years of age as a persistent repeater contrary to Wis. 

Stat. §§ 948.02(1), 939.50(3)(b), 939.62(2m)(b)2. On July 3, 

 

2 Miranda v. Arizona, 384 U.S. 436 (1966).
No. 2012AP2170.dtp

3

2007, a jury found Spaeth guilty on all four counts, and a 

judgment of conviction was filed on July 5, 2007 (2007 

convictions).

¶43 On October 20, 2008, the circuit court vacated 

Spaeth's 2007 convictions because it discovered that the jury 

had been exposed to prejudicial information regarding Spaeth's 

status as a convicted sex offender. See Spaeth, 343 

Wis. 2d 220, ¶24.

¶44 On March 13, 2009, Spaeth pled no contest to four 

counts of child enticement contrary to Wis. Stat. § 948.07(1) 

(2005-06). The court entered a judgment of conviction on those 

four counts on May 8, 2009 (2009 convictions). The court 

sentenced Spaeth to five years of initial confinement and ten 

years of extended supervision for each count, to run 

concurrently with all other counts. Because of the length of 

his custody before these convictions, Spaeth was eligible for 

1254 days of sentence credit.

¶45 On October 22, 2010, a DOC evaluator created a report 

diagnosing Spaeth with paraphilia not otherwise specified3——a 

condition that the evaluator believed qualified as a mental 

disorder under Wis. Stat. ch. 980. Thereafter, on November 2, 

 

3 The evaluator stated, "The essential features of a 

Paraphilia are recurrent, intense sexually arousing fantasies, 

sexual urges, or behaviors generally involving 1) nonhuman 

objects, 2) the suffering or humiliation of oneself or one's 

partner, or 3) children or other nonconsenting persons, that 

occur over a period of at least 6 months." The "not otherwise 

specified" designation means that the person's presentation is 

consistent with the general guidelines for a mental disorder but 

that there are atypical or mixed symptoms.
No. 2012AP2170.dtp

4

2010, the State filed a Chapter 980 petition to commit Spaeth as 

a "sexually violent person." The petition alleged the 2009 

convictions as the "predicate offense"4 and noted that Spaeth was 

set to be released from the sentence imposed for these 

convictions on or about November 9, 2010. In response to the 

Chapter 980 petition, the circuit court issued an order 

transferring Spaeth from DOC to a facility approved by the 

Department of Health and Family Services (DHFS).

¶46 Spaeth had appealed his 2009 convictions. On July 13, 

2012, this court reversed these convictions on grounds that they 

were derived from compelled testimony to his parole agent and 

therefore could not be used against Spaeth in a later criminal 

trial. Spaeth, 343 Wis. 2d 220, ¶79. When the case was 

remanded to Winnebago County, the district attorney dismissed 

the charges. The reversal and the dismissal wholly vacated the 

2009 convictions.

¶47 Despite the reversal of the predicate offense and the 

dismissal of those charges, the State filed a letter with the 

circuit court on August 15, 2012, asserting that the State 

intended to proceed with the Chapter 980 petition. In the 

letter, the State said that it would rely on the 1993 conviction 

to prove that Spaeth is a sexually violent person.

 

4 For the predicate offense, the petition alleged that "on 

or about July 3, 2007, in Winnebago County Circuit Court File 

No. 06CF350, the Respondent was convicted of four (4) counts of 

Child Enticement-Sexual Contact in violation of Wisconsin 

Statute Section 948.07(1)." Spaeth was actually convicted of 

the four counts of child enticement in 2009.
No. 2012AP2170.dtp

5

¶48 On August 16, 2012, Spaeth responded to the State in a 

letter that was treated as a motion to dismiss. Spaeth argued 

that the 2009 convictions were the only offenses listed in the 

Chapter 980 petition, and they could not form the basis for 

commitment because those convictions were reversed. In 

addition, Spaeth contended that since he had been discharged 

from the sentence for the 1993 conviction, that conviction could 

not be the predicate offense, as he was not in prison for that 

offense when the Chapter 980 petition was filed. 

¶49 The circuit court granted Spaeth's motion to dismiss 

in a written order on September 7, 2012. The court agreed with 

Spaeth that the dismissed 2009 convictions could not be the 

predicate offense for the Chapter 980 petition, and the State 

could not amend the petition to use the 1993 case as the 

predicate offense because Spaeth was not in custody for that 

offense when the petition was filed.5 The court stayed its order 

pending appeal. Thus, during this entire appeal, Spaeth has 

remained at Sand Ridge Secure Treatment Center under the 

supervision of DHFS.

INTERPRETATION OF CHAPTER 980

¶50 This case requires an interpretation of Wis. Stat. ch. 

980. "[S]tatutory interpretation 'begins with the language of 

the statute.'" State ex rel. Kalal v. Circuit Court for Dane 

Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 

(citations omitted). We interpret statutory language in context 

 

5 See supra, paragraph 40.
No. 2012AP2170.dtp

6

and "to avoid absurd or unreasonable results." Id., ¶46 

(citations omitted).

¶51 Chapter 980 allows the state to petition for the civil 

commitment of sexually violent persons. See generally Wis. 

Stat. ch. 980; see also State v. Carpenter, 197 Wis. 2d 252, 

259, 541 N.W.2d 105 (1995). The term "sexually violent person" 

is defined in the chapter as follows:

"Sexually violent person" means a person who has 

been convicted of a sexually violent offense, has been 

adjudicated delinquent for a sexually violent offense, 

or has been found not guilty of or not responsible for 

a sexually violent offense by reason of insanity or 

mental disease, defect, or illness, and who is 

dangerous because he or she suffers from a mental 

disorder that makes it likely that the person will 

engage in one or more acts of sexual violence.

Wis. Stat. § 980.01(7). 

¶52 As noted, the commitment process begins with the 

filing of a petition, under Wis. Stat. § 980.02. Section 

980.02(2) reads in part:

(2) A petition filed under this section shall 

allege that all of the following apply to the person 

alleged to be a sexually violent person:

(a) The person satisfies any of the 

following criteria:

1. The person has been convicted of a 

sexually violent offense.[

6]

. . . .

(b) The person has a mental disorder.

 

6 "Sexually violent offense" is defined in Wis. Stat. 

§ 980.01(6), which lists qualifying offenses.
No. 2012AP2170.dtp

7

(c) The person is dangerous to others 

because the person's mental disorder makes it likely 

that he or she will engage in acts of sexual violence.

Notably, the elements that must be listed in the petition are 

the same elements needed to prove that someone is a "sexually 

violent person." Compare Wis. Stat. § 980.02(2)(a)-(c), with

Wis. Stat. § 980.01(7).

¶53 Subsection (3) of § 980.02 then reads:

A petition filed under this section shall state 

with particularity essential facts to establish 

probable cause to believe the person is a sexually 

violent person. If the petition alleges that a

sexually violent offense or act that is a basis for 

the allegation under sub. (2)(a) was an act that was 

sexually motivated as provided under s. 980.01(6)(b), 

the petition shall state the grounds on which the 

offense or act is alleged to be sexually motivated.

¶54 Neither of these subsections——(2) or (3)——contains any 

temporal condition. But subsection (1m) does: "A petition filed 

under this section shall be filed before the person is released 

or discharged." Wis. Stat. § 980.02(1m).

¶55 Subsection (1m) is linked to Wis. Stat. § 980.015(2), 

which reads in part:

(2) If an agency with jurisdiction has control 

or custody over a person who may meet the criteria for 

commitment as a sexually violent person, the agency 

with jurisdiction shall inform each appropriate 

district attorney and the department of justice 

regarding the person as soon as possible beginning 90 

days prior to the applicable date of the following: 

(a) The anticipated discharge or release, 

on parole, extended supervision, or otherwise, from a 

sentence of imprisonment or term of confinement in 

prison that was imposed for a conviction for a 

sexually violent offense . . . .
No. 2012AP2170.dtp

8

¶56 The provisions quoted above imply that Wis. Stat. ch. 

980 follows a linear progression from notice that the person 

will be released from custody for conviction of a sexually 

violent offense to the filing of a petition to commit the person 

as a sexually violent person. The petition must identify the 

sexually violent offense, stating "with particularity essential 

facts to establish probable cause." Wis. Stat. § 980.02(3).

¶57 Previously, this court interpreted Wis. Stat. 

§ 980.02(1m) to mean that the petition must be filed before the 

person is released or discharged from the predicate offense 

listed in the ch. 980 petition. See State v. Gilbert, 2012 WI 

72, ¶51, 342 Wis. 2d 82, 816 N.W.2d 215. In Gilbert, the court 

stated that Wis. Stat. § 980.02(1m)-(2) "requires, inter alia, 

that the State prove that the person 'has been convicted of a 

sexually violent offense,' § 980.02(2)(a)1., and that the ch. 

980 petition must be 'filed before the person is released or 

discharged' from the sentence for that sexually violent offense, 

§ 980.02(1m)." Id., ¶51 (emphasis added). The statutory 

context and the court's statement in Gilbert strongly suggest 

that the sexually violent offense that is a basis for the 

petition under § 980.02 must be the same offense for which the 

person is confined at the time of the petition's filing. 

Moreover, to establish that the subject of the petition is a 

"sexually violent person," the state must show that the person 

has been convicted of the offense listed in the petition. Id. 

¶58 As noted above, a Chapter 980 petition must allege 

that all of the following apply:
No. 2012AP2170.dtp

9

(a) The person satisfies any of the following 

criteria: 

1. The person has been convicted of a 

sexually violent offense.

. . . .

(b) The person has a mental disorder. 

(c) The person is dangerous to others because 

the person's mental disorder makes it likely that he 

or she will engage in acts of sexual violence. 

Wis. Stat. § 980.02(2). Admittedly, § 980.02(2)(a)1. appears to 

require only an allegation that "[t]he person has been convicted 

of a sexually violent offense." Id. (emphasis added). However, 

the statute goes on to require that the "petition . . . shall 

state with particularity essential facts to establish probable 

cause to believe the person is a sexually violent person." Wis. 

Stat. § 980.02(3). Thus, the statute connects the allegation of 

the sexually violent offense in the petition to the probable 

cause determination at the hearing. Consequently, the 

allegations in the petition must support probable cause to 

believe the person is a sexually violent person. If the 

predicate offense listed in the petition is not a valid 

conviction, the petition is insufficient under Wis. Stat. 

§ 980.02(3).

¶59 After the Chapter 980 petition is filed, "the court 

shall review the petition to determine whether to issue an order 

for detention of the person who is the subject of the petition." 

Wis. Stat. § 980.04(1) (emphasis added). Thus, the court's 

determination regarding detention is tied to the predicate 

offense listed in the petition. The court must also "determine 
No. 2012AP2170.dtp

10

whether there is probable cause to believe that the person named 

in the petition is a sexually violent person." Wis. Stat. 

§ 980.04(2)(a). The requirement in Wis. Stat. § 980.02(3) that 

the petition allege facts to establish probable cause suggests 

that the probable cause determination must be based on the 

allegations in the petition. It is unlikely that the court 

would approve going to a probable cause hearing on one offense 

and then make a probable cause finding on a completely different 

offense.

¶60 Finally, at trial, "the petitioner has the burden of 

proving beyond a reasonable doubt that the person who is the 

subject of the petition is a sexually violent person." Wis. 

Stat. § 980.05(3)(a). If the fact finder determines that the 

person is a sexually violent person, "the court shall enter a 

judgment on that finding and shall commit the person as provided 

under s. 980.06." Wis. Stat. § 980.05(5).

¶61 Looking at the statute as a whole, it is evident that 

Chapter 980 centers around the sexually violent offense for 

which a person is confined at the time a Chapter 980 petition is 

filed. The agency with custody of the person must give notice 

to the department of justice and the district attorney that the 

person is about to be discharged or released from that sexually 

violent offense. Wis. Stat. § 980.015(2). The statute 

contemplates the state using that offense as the predicate 

offense. The offense listed in the petition is the offense on 

which the state must defend its petition and then demonstrate 

probable cause.
No. 2012AP2170.dtp

11

¶62 The majority asserts that this reading of the statute 

is mistaken——that the petition is separate from the probable 

cause hearing and the trial and that the predicate offense in 

the petition may be completely abandoned at the probable cause 

hearing and the trial.

THE PETITION TO COMMIT SPAETH

¶63 The State's petition to commit Spaeth was valid at the 

time it was filed in November 2010 because, at that time, Spaeth 

had been convicted of a sexually violent offense (the 2009 

convictions) and he was in confinement for that sexually violent 

offense.

¶64 The problem is that the listed predicate offense in 

the petition has been reversed and dismissed. It was reversed 

and dismissed before the circuit court made any finding of 

probable cause, and, of course, Spaeth's case never went to 

trial. Thus, however valid the petition was when it was filed, 

it will not be valid in a future probable cause hearing. The 

State cannot meet its burden by showing that Spaeth was 

convicted of a sexually violent offense that has been vacated.

¶65 Consequently, the State appears to have only two 

options in this case. The State can amend the petition in a 

manner that complies with the requirements of the statute, or it 

can persuade a court to interpret the statute so that there need 

be no connection between the sexually violent offense named in 

the petition and the sexually violent offense established at 

some later hearing. In short, either the petition must be 

amended so that the State can prove its essential elements, or 
No. 2012AP2170.dtp

12

the petition must be severed from future proceedings so that the 

State may prove a different offense.

¶66 The majority has chosen the second option. In my 

view, only the first option is permitted. If the State is 

unable to amend the petition, the petition is deficient and must 

be dismissed.

¶67 The reason the State's options are limited is obvious. 

The State cannot proceed on a petition that relies on a vacated 

sexually violent offense. It is inconceivable that the State 

would ask a court to find probable cause that a person has been 

convicted of a sexually violent offense that has been reversed 

and dismissed. If this were possible, the State could proceed 

on an offense that was reversed after the person was exonerated 

on the basis of DNA evidence or reversed because of other 

indicia of actual innocence.

¶68 There are certainly situations in which an overturned 

conviction for a predicate offense may be retried. In such a 

case, a Chapter 980 petition may be filed during the person's 

confinement if the person is again convicted of a sexually 

violent offense. That was not possible in this case because the 

State had virtually no evidence with which to retry Spaeth, and 

thus it dismissed the charges against him.

¶69 Hence, it is necessary to examine the other options.

AMENDMENT

¶70 The State should be able to amend its petition so long 

as it is able to comply with the terms of the statute. This 

means that the State should be able to substitute a different 
No. 2012AP2170.dtp

13

sexually violent offense for the one in the petition so long as 

the person named in the petition was being "confined" for the 

substituted offense at the time the petition was filed.

¶71 The confinement prerequisite is set out in Wis. Stat. 

§ 980.015(2):

(2) If an agency with jurisdiction has control 

or custody over a person who may meet the criteria for 

commitment as a sexually violent person, the agency 

with jurisdiction shall inform each appropriate 

district attorney and the department of justice 

regarding the person as soon as possible beginning 90 

days prior to the applicable date of the following: 

(a) The anticipated discharge or release, 

on parole, extended supervision, or otherwise, from a 

sentence of imprisonment or term of confinement in 

prison that was imposed for a conviction for a 

sexually violent offense, from a continuous term of 

incarceration, any part of which was imposed for a 

sexually violent offense, or from a placement in a 

Type 1 prison under s. 301.048(3)(a)1., any part of 

which was required as a result of a conviction for a 

sexually violent offense. 

(b) The anticipated release from a juvenile

correctional facility, as defined in s. 938.02(10p), 

or a secured residential care center for children and 

youth, as defined in s. 938.02(15g), if the person was 

placed in the facility as a result of being 

adjudicated delinquent under s. 48.34, 1993 stats., or 

under s. 938.183 or 938.34 on the basis of a sexually 

violent offense. 

(c) The anticipated release of a person on 

conditional release under s. 971.17, the anticipated 

termination of a commitment order under 971.17, or the 

anticipated discharge of a person from a commitment 

order under s. 971.17, if the person has been found 

not guilty of a sexually violent offense by reason of 

mental disease or defect. 

(d) The anticipated release on parole or 

discharge of a person committed under ch. 975 for a 

sexually violent offense.
No. 2012AP2170.dtp

14

Wis. Stat. § 980.015(2).7

¶72 Paragraphs (a), (b), (c), and (d) all deal with 

persons about to be released from confinement for a sexually 

violent offense. Each person is confined for a sexually violent 

offense or for a sexually violent offense combined with one or 

more other offenses. Paragraph (a) speaks of a person who is 

about to be discharged or released "from a continuous term of 

incarceration, any part of which was imposed for a sexually 

violent offense." Wis. Stat. § 980.015(2)(a) (emphasis added). 

This language contemplates confinement for more than one 

sexually violent offense or confinement for a sexually violent 

offense and some other offense.

¶73 There is a reason why a person's confinement for a 

sexually violent offense at the time a Chapter 980 petition is 

filed is essential to the statutory scheme. Chapter 980 

commitment is a major departure from normal procedure. 

Normally, when a defendant completes the period of confinement 

required by his sentence, he is discharged or released into the 

community. Release under supervision is part of a standard 

bifurcated sentence. Outright discharge usually means that a 

person has "paid his debt to society" and is no longer under 

supervision.

¶74 Chapter 980 was designed to deal with the relatively 

small number of persons who are considered so dangerous that 

they must remain in confinement. The State asserts that these 

 

7 Wisconsin Stat. § 980.015(2) was expanded substantially in 

2006 by 2005 Wisconsin Act 434, §§ 75-78.
No. 2012AP2170.dtp

15

persons have a mental disorder that makes it likely that they 

will engage in additional acts of sexual violence. The State is 

required to prove to a neutral fact finder that the subject of 

the petition is a sexually violent person beyond a reasonable 

doubt. Wis. Stat. § 980.05(3)(a).

¶75 If the State has already released a person from 

confinement, it cannot easily contend that the person must still 

be confined. The State's argument would be inconsistent with 

its action. If a person has been released from state 

confinement, future state action must be grounded in what the 

person does in the community, not on predictions of what the 

person is likely to do. The prerequisite of confinement for a 

sexually violent offense also assures that people are not 

subject to commitment many years after they have been released 

from confinement in connection with a sexually violent offense.

¶76 In sum, Wis. Stat. § 980.015(2) requires that the 

sexually violent offense named in a Chapter 980 petition be a

sexually violent offense on which the person was confined at the 

time of filing. The statute sets a standard; it has been 

revised to allow some flexibility. The State cannot disregard 

this statutory prerequisite because it does not like the result 

any more than it can disregard the fact that its authority to 

file a petition is fundamentally diminished once it releases a 

person from confinement.

¶77 Once again, the State could have filed a Chapter 980 

petition while Spaeth was still in confinement for the 1993

conviction. It did not do so. It could have retried Spaeth on 
No. 2012AP2170.dtp

16

the 2009 convictions if it had the ability to do so. It didn't. 

The State's present predicament was created by the State and 

does not justify rewriting the statute.

THE MAJORITY OPINION

¶78 The majority disagrees and adopts the other option. 

It does not dismiss the petition or try to justify amending the 

petition. It looks backward, concluding that "[a]t the time the 

State's petition was filed, the statutory requirements in Wis. 

Stat. § 980.02 were satisfied. We therefore hold that the 

Chapter 980 petition to commit Spaeth should not have been 

dismissed." Majority op., ¶3. The case is remanded to the 

circuit court.

¶79 What the majority opinion fails to do is to look 

forward and provide clear guidance to the parties and the court.

¶80 The majority reports that "the State informed the 

circuit court that it intended to proceed with Spaeth's Chapter 

980 commitment, and the State sought to amend the Chapter 980 

petition to include Spaeth's 1993 conviction." Id., ¶8 

(emphasis added). In a footnote, the majority adds, "The record 

is unclear regarding whether the State intended to replace the 

2009 convictions with the 1993 conviction as the predicate 

offense, or to simply include the 1993 conviction as an 

additional predicate offense. However, in light of our holding, 

the distinction is irrelevant." Id., ¶8 n.6.

¶81 The majority cannot duck the responsibility of 

determining whether the State can rely in any respect on the 
No. 2012AP2170.dtp

17

2009 convictions as it goes forward to a probable cause hearing 

and a trial. The majority acknowledges:

[T]his court has previously held that Spaeth's 

statements leading to the 2009 convictions constituted 

compelled testimony, the fruits of which are 

inadmissible at trial. Thus, the State must rely on 

other evidence to establish "probable cause to believe 

that the person named in the petition is a sexually 

violent person" at the probable cause hearing, and, if 

it is successful in so doing, to prove its allegations 

"beyond a reasonable doubt" at trial.

Majority op., ¶27 n.13 (citations omitted). But it also 

interprets Wis. Stat. §§ 980.04(3) and 980.05(3)(a), saying that 

"the State is not foreclosed from producing additional evidence 

at either the probable cause hearing or at trial, or both, to 

support its petition." Id., ¶26; see also id., ¶16 n.8 (stating 

that "the State may introduce additional evidence at these 

proceedings not connected to the individual's confinement at the 

time the petition was filed"). The majority has not absolutely 

prohibited all use of the 2007 and 2009 "convictions" at the 

probable cause hearing or trial.

¶82 The majority should also discuss whether the petition 

can be amended or should be amended, so that the subject of the 

formerly valid petition has notice of what the State intends to 

prove.

¶83 The majority clearly understands that there had been 

no probable cause hearing and no trial. Looking forward, the 

State must show probable cause that Spaeth "has been convicted 

of a sexually violent offense." That offense cannot be the 2009 

convictions, which were vacated. The only other conviction is 
No. 2012AP2170.dtp

18

the 1993 conviction, but Spaeth was not in confinement for that 

conviction when the petition was filed.

¶84 The court must be saying that the State can rely on 

the 1993 conviction at his probable cause hearing and at his 

trial. This is completely abandoning the language relating to 

the probable cause hearing and the rationale of the statute. It 

is saying that once the State gets to the probable cause 

hearing, it can rely on any sexually violent offense, no matter 

what the circumstances, no matter how old the offense. Once the 

"conviction of a sexually violent offense" is cut from its 

statutory moorings, the State may prove any such offense that 

resulted in a conviction. Unless the majority requires some 

valid charging document such as an amended petition, the State 

has not given notice of the basis for the commitment proceeding 

and arguably may abandon any allegations in the formerly valid 

petition that it no longer wishes to utilize in its effort to 

commit Spaeth.

¶85 The majority attempts to justify this result by citing 

irrelevant authority. For instance, the majority references 

Wis. Stat. § 980.101(2)(b) to suggest that a reversal of a 

conviction for the predicate offense and the dismissal of the 

charges do not necessarily invalidate the Chapter 980 petition. 

Majority op., ¶22 n.10. Section 980.101(2)(b) reads:

If the sexually violent offense was the sole 

basis for the allegation under s. 980.02(2)(a) but 

there are other judgments relating to a sexually 

violent offense committed by the person that have not 

been reversed, set aside, or vacated, or if the 

sexually violent offense was not the sole basis for 

the allegation under s. 980.02(2)(a), the court shall 
No. 2012AP2170.dtp

19

determine whether to grant the person a new trial 

under s. 980.05 because the reversal, setting aside, 

or vacating of the judgment for the sexually violent 

offense would probably change the result of the trial.

Wisconsin Stat. § 980.101(2)(b). comes into play only after the 

state has complied with all sections of Wis. Stat. ch. 980 and 

obtained a commitment.8 In those circumstances, the vacatur does 

 

8 Wisconsin Stat. § 980.101(2) reads:

(2) If, at any time after a person is committed 

under s. 980.06, a judgment relating to a sexually 

violent offense committed by the person is reversed, 

set aside, or vacated and that sexually violent 

offense was a basis for the allegation made in the 

petition under s. 980.02(2)(a), the person may bring a 

motion for postcommitment relief in the court that 

committed the person. The court shall proceed as 

follows on the motion for postcommitment relief: 

(a) If the sexually violent offense was the 

sole basis for the allegation under s. 980.02(2)(a)

and there are no other judgments relating to a 

sexually violent offense committed by the person, the 

court shall reverse, set aside, or vacate the judgment 

under s. 980.05(5) that the person is a sexually 

violent person, vacate the commitment order, and 

discharge the person from the custody of the 

department. 

(b) If the sexually violent offense was the 

sole basis for the allegation under s. 980.02(2)(a)

but there are other judgments relating to a sexually 

violent offense committed by the person that have not 

been reversed, set aside, or vacated, or if the 

sexually violent offense was not the sole basis for 

the allegation under s. 980.02(2)(a), the court shall 

determine whether to grant the person a new trial 

under s. 980.05 because the reversal, setting aside, 

or vacating of the judgment for the sexually violent 

offense would probably change the result of the trial. 

(Emphasis added.) This statute applies to a person who has 

been committed under Wis. Stat. § 980.06. Spaeth has not 

been so committed.
No. 2012AP2170.dtp

20

not render the state's ongoing efforts to advance a Chapter 980 

petition noncompliant with the statute. Instead, it 

acknowledges that the committed person may no longer fit the 

definition of a sexually violent person and allows the court to 

consider whether a new trial is necessary. Thus, that section 

has no bearing here.

¶86 The majority also cites Carpenter and State v. Virlee, 

2003 WI App 4, 259 Wis. 2d 718, 657 N.W.2d 106.

¶87 In Carpenter, the defendant was paroled in 1993. 

Carpenter, 197 Wis. 2d at 260, 275. After the parole, the DOC 

recalculated Carpenter's mandatory release date based on a court 

of appeals decision and reincarcerated him. Id. This court 

later reversed that court of appeals decision and ordered that 

prisoners incarcerated due to that decision be released by July 

15, 1994; Carpenter was not released because the state filed a 

Chapter 980 petition on July 14, 1994. Id. at 260. Carpenter 

argued that his original release date in 1993 was the date that 

applied to the 90-day requirement for filing a Chapter 980 

petition and that the State filed the petition too late. Id. at 

275. This court determined that because DOC recalculated the 

parole date, Carpenter was within 90 days of discharge when the 

state filed the Chapter 980 petition even though this court 

ultimately reversed the court of appeals decision that justified 

DOC's recalculation. Id. 

¶88 Similarly, in the Virlee case, Virlee was initially set 

to be released from imprisonment for a sexually violent offense 

on December 24, 1999. Virlee, 259 Wis. 2d 718, ¶3. The state 
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filed a Chapter 980 petition on December 20. Id. The circuit 

court subsequently granted Virlee's motion for jail credit, 

which moved his mandatory release date up to November 14, over a 

month before the state filed the Chapter 980 petition. Id., 

¶¶3-5. The court of appeals cited Carpenter and determined that 

"the trial court's subsequent modification of Virlee's sentence 

does not change the fact the State filed the petition within 

ninety days of his actual release from prison." Id., ¶18. 

Thus, it did not matter that Virlee had technically completed 

his sentence; the state complied with the statute by filing 

within 90 days of Virlee's release. 

¶89 These cases are persuasive authority that courts may 

look at the sufficiency of a Chapter 980 petition at the time it 

was filed when the issue involves timing. In both cases, the 

state had no way of knowing that the time for filing the Chapter 

980 petition was going to change. The petitions were valid when 

they were filed and when they were acted on.

¶90 This case is materially different. Action on any 

Chapter 980 petition for Spaeth is ahead of us, not behind us. 

The State must disregard its predicate offense because its 

original offense has been vacated. It must prove its case in 

two future hearings. It must prove a case that complies with 

the law.

¶91 The majority cites policy to support its position: 

"[I]f a later change in circumstances could invalidate a 

petition that was otherwise valid at the time of filing, the 

State would be at risk of losing its ability to commit a 
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sexually violent person through no fault of its own . . . ." 

Majority op., ¶33. In this case, the majority cannot say with a 

straight face that the State is in its predicament "through no 

fault of its own." We expect the State to follow the law. It 

did not.

¶92 The majority seems unmoved by the fact that Spaeth has 

been in the custody of DHFS since November 2010 without having 

been given any evidentiary hearing and that his confinement from 

June 2007 until the reversal of his convictions was based almost 

entirely on illegally obtained evidence.

¶93 Chapter 980 has become a valuable component of 

Wisconsin law. It should not be altered permanently because the 

government screwed up. 

¶94 For the reasons stated, I respectfully dissent.

¶95 I am authorized to state that Chief Justice SHIRLEY S. 

ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.
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