2018 WI 40

SUPREME COURT OF WISCONSIN

CASE NO.: 2015AP330 & 2015AP1311

COMPLETE TITLE: In re the commitment of David Hager, Jr.:

State of Wisconsin,

 Petitioner-Respondent-Petitioner,

 v.

David Hager, Jr.,

 Respondent-Appellant.

------------------------------------------------

In re the commitment of Howard Carter:

State of Wisconsin,

 Petitioner-Respondent,

 v.

Howard Carter,

 Respondent-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS

Reported at 373 Wis. 2d 692, 892 N.W.2d 740

(2015AP330) and 372 Wis. 2d 722, 892 N.W.2d 754

(2015AP1311)

PDC No: 2017 WI App 8 – Published (2015AP330) 

and 2017 WI App 9 – Published (2015AP1311)

OPINION FILED: April 19, 2018

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: November 1, 2017

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Chippewa (2015AP330), Brown (2015AP1311)

JUDGE: James M. Isaacson (2015AP330), Kendall M. Kelley 

(2015AP1311)

JUSTICES:

CONCURRED: KELLY, J., concurs, joined by R.G. BRADLEY, J. 

(opinion filed).

DISSENTED: ABRAHAMSON, J., dissents, joined by A.W. 

BRADLEY, J. (opinion filed).

NOT PARTICIPATING: 

ATTORNEYS:

For the petitioner-respondent-petitioner (2015AP330), there 

were briefs filed by Thomas J. Balistreri, assistant attorney 
2

general, and Brad D. Schimel, attorney general. There was an 

oral argument by Donald V. Latorraca, assistant attorney 

general.

For the respondent-appellant (2015AP330), there was a brief 

filed by and an oral argument by Andrew R. Hinkel, assistant 

state public defender.

For the respondent-appellant-petitioner (2015AP1311), there 

were briefs filed by Len Kachinsky and Kachinsky Law Offices, 

Neenah. There was an oral argument by Len Kachinsky.

For the petitioner-respondent (2015AP1311), there was a 

brief filed by Thomas J. Balistreri, assistant attorney general, 

and Brad D. Schimel, attorney general. There was an oral 

argument by Donald V. Latorraca, assistant attorney general.
2018 WI 40

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2015AP330 & 2015AP1311

(L.C. No. 2007CI1 & 2007CI3)

STATE OF WISCONSIN : IN SUPREME COURT

In re the commitment of David Hager, Jr.:

State of Wisconsin,

 Petitioner-Respondent-Petitioner,

 v.

David Hager, Jr.,

 Respondent-Appellant.

FILED

APR 19, 2018

Sheila T. Reiff

Clerk of Supreme Court

In re the commitment of Howard Carter:

State of Wisconsin,

 Petitioner-Respondent,

 v.

Howard Carter,

 Respondent-Appellant-Petitioner.
Nos. 2015AP330 & 2015AP1311 

2

REVIEW of two decisions of the Court of Appeals. Reversed 

and cause remanded in State v. Hager; Affirmed in State v. 

Carter. 

¶1 MICHAEL J. GABLEMAN, J. This is a review of two 

published decisions of the court of appeals, State v. Hager, 

2017 WI App 8, 373 Wis. 2d 692, 892 N.W.2d 740, and State v. 

Carter, 2017 WI App 9, 373 Wis. 2d 722, 892 N.W.2d 754.1 Both 

cases involve the discharge procedure for a person civilly 

committed as a sexually violent person pursuant to Wis. Stat. 

ch. 980 (2015-16) ("Chapter 980").2 David Hager, Jr., and Howard 

Carter both filed petitions for discharge from commitment as 

sexually violent persons pursuant to Wis. Stat. § 980.09 with 

the Chippewa County Circuit Court3 and Brown County Circuit 

Court,4 respectively, and both petitions were denied. Hager and 

Carter appealed.

¶2 In Hager, the court of appeals reversed, concluding 

that the circuit court erred in two ways: (1) by considering 

evidence unfavorable to Hager's discharge petition; and (2) by 

weighing the evidence in favor of the discharge petition against 

 

1 We consolidated these two cases after oral argument 

because they present similar issues and facts.

2 All subsequent references to the Wisconsin Statutes are to 

the 2015-16 version unless otherwise indicated.

3 The Honorable James. M. Isaacson presiding.

4 The Honorable Kendall M. Kelley presiding.
Nos. 2015AP330 & 2015AP1311 

3

the evidence opposed. Hager, 373 Wis. 2d 692, ¶5. Based on its 

review of the record, the court of appeals concluded that Hager 

had satisfied his burden of production5 and reversed and remanded 

the matter to the circuit court with instructions to conduct a 

discharge trial pursuant to Wis. Stat. § 980.09(3)-(4). Id. In 

Carter, the court of appeals affirmed the circuit court, 

concluding that Carter had not satisfied the standard it had 

established in Hager. Carter, 373 Wis. 2d 722, ¶3.

¶3 Both cases involve the proper interpretation of Wis. 

Stat. § 980.09(2), as amended by 2013 Wis. Act 84,6 which 

establishes the procedures for discharge from commitment. 

Carter raises two additional issues before this court: (1) 

whether § 980.09(2) violates the right to due process of law as 

guaranteed by the Fourteenth Amendment to the United States 

Constitution and Article I, Section 1 of the Wisconsin 

Constitution; and (2) whether Act 84 applies retroactively to 

Carter. We review this last issue, whether Act 84 applies 

retroactively to Carter, through the lens of ineffective 

 

5 The party carrying the burden of production must 

"introduce enough evidence on an issue to have the issue decided 

by the fact-finder" and not by the court in a pre-trial ruling. 

Black's Law Dictionary 236 (10th ed. 2014).

The party carrying the burden of persuasion must "convince 

the fact-finder to view the facts in a way that favors that 

party." Black's Law Dictionary 236 (10th ed. 2014).

6 For clarity, we refer to the entire section, as amended, 

as "Wis. Stat. § 980.09(2)," and refer to the specific 

amendments made to § 980.09(2) by Act 84 simply as "Act 84."
Nos. 2015AP330 & 2015AP1311 

4

assistance of counsel because Carter's counsel did not contest 

the application of the amended standard to Carter. See State v. 

Erickson, 227 Wis. 2d 758, 768, 596 N.W.2d 749 (1999).

¶4 We hold as to both Hager and Carter that the court of 

appeals erred in concluding that Wis. Stat. § 980.09(2) limits 

circuit courts to considering only the evidence favorable to 

petitions for discharge. We hold that circuit courts are to 

carefully examine, but not weigh, those portions of the record 

they deem helpful to their consideration of the petition, which 

may include facts both favorable as well as unfavorable to the 

petitioner.

¶5 We further hold that Wis. Stat. § 980.09(2) does not 

violate the constitutional right to due process of law as 

guaranteed by the Fourteenth Amendment to the United States 

Constitution and Article I, Section 1 of the Wisconsin 

Constitution, and furthermore, Carter's counsel was not 

ineffective for failing to challenge retroactive application of 

Act 84 to Carter.

¶6 As to Hager, we reverse the decision of the court of 

appeals and remand the matter to the circuit court for further 

proceedings consistent with this opinion; as to Carter, we 

affirm the decision of the court of appeals, albeit on different 

grounds.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. State v. Hager
Nos. 2015AP330 & 2015AP1311 

5

¶7 Hager was involuntarily committed in 2008 as a 

sexually violent person pursuant to Chapter 9807 as he neared the 

completion of prison sentences he was serving as a result of 

having been convicted of two sexual offenses. 

¶8 He filed the discharge petition we consider herein on 

February 27, 2014. Hager attached to the petition the report of 

Hollida Wakefield, M.A. In her report, Wakefield concluded that 

Hager did not satisfy the third criterion for commitment because 

he was not likely to engage in acts of sexual violence. She 

based this conclusion on the results of two actuarial 

instruments, the Static-99R and MATS-1.8

 

7 The State must prove three criteria in order to commit a 

person as a sexually violent person pursuant to Chapter 980:

(1) The person was "convicted of a sexually violent 

offense," was "found delinquent of a sexually violent 

offense," or was "found not guilty of a sexually 

violent offense by reason of mental disease or 

defect."

(2) "The person has a mental disorder."

(3) "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). In order to initially commit an 

individual pursuant to Chapter 980, the State must prove these 

elements beyond a reasonable doubt. Wis. Stat. § 980.05(3)(a). 

In order to continue commitment, the State must prove the same 

three elements by clear and convincing evidence at the discharge 

trial. Wis. Stat. § 980.09(3).

8 Understanding this decision requires a grasp of both 

actuarial instruments and their use in Chapter 980 proceedings.

(continued)
Nos. 2015AP330 & 2015AP1311 

6

¶9 The circuit court denied Hager's petition because 

Wakefield's report did not indicate any change in Hager; rather, 

the circuit court found "Mr. Hager is still the same person he 

was." The circuit court was not persuaded that the development 

of the Static-99R9 constituted a change in professional knowledge 

sufficient to warrant a discharge trial under the standard 

 

Often (as here), the only testimony in a Chapter 980 

proceeding is expert testimony. The only witnesses are 

examiners, who describe the sexually violent person's history, 

offer diagnoses as to his mental condition, and opine about his 

dangerousness.

In the 1990s, researchers began developing and releasing 

tools meant to give an objective picture of a sexually violent 

person's risk of reoffending. These tools, sometimes called 

actuarial instruments, ask a series of questions about the 

sexually violent person's history and, based on the answers, 

place the sexually violent person in a particular category, 

usually indicated by a number. Generally, a sexually violent 

person assigned a higher number is believed to present a greater 

risk, on average, than a sexually violent person assigned a 

lower number.

The developers of these instruments also released tables 

indicating the re-offense rates for groups of sexually violent 

people assigned particular numbers. Thus, for example, a score 

of 3 on the RRASOR (one of the first actuarial instruments 

developed) corresponded with a group of offenders of whom 24.8 

percent would reoffend within five years. Those in the business 

of evaluating sex offenders for commitment often rely on these 

numbers in performing their assessments.

The two actuarial instruments relied on by Hager and 

Carter, the Static-99R and MATS-1, are relatively new. Neither 

existed at the time Hager and Carter were first committed.

9 The circuit court did not make any findings regarding the 

MATS-1 in either its original decision or its decision on the 

motion for reconsideration.
Nos. 2015AP330 & 2015AP1311 

7

established in State v. Combs, 2006 WI App 137, ¶32, 295 

Wis. 2d 457, 720 N.W.2d 684.10 The court did not find "any 

change in the expert's knowledge of Mr. Hager or his offense."

¶10 Hager filed a motion for reconsideration, which was 

denied. In its order denying Hager's motion for 

reconsideration, the circuit court amended its reasoning 

slightly, indicating that it had "tr[ied] to weigh [the] 

reports," and concluded that Hager did not satisfy his burden of 

production. This appeal followed.

¶11 The court of appeals determined that Act 84 did not 

abrogate our decision in State v. Arends, 2010 WI 46, 325 

Wis. 2d 1, 784 N.W.2d 513. Accordingly, the court of appeals 

applied our holding in Arends——that circuit courts are not to 

weigh11 the evidence in favor of the petition against the 

evidence opposed——to Hager. Hager, 373 Wis. 2d 692, ¶4. 

Rather, Act 84 both increased the burden of production necessary 

for committed individuals to receive a discharge trial and 

 

10 In Combs, the court of appeals interpreted a prior 

version of Wis. Stat. § 980.09(2) to require the petitioner to 

present "something more" than facts and professional knowledge 

considered at the last discharge trial in order to obtain a new 

discharge trial. State v. Combs, 2006 WI App 137, ¶32, 295 

Wis. 2d 457, 720 N.W.2d 684. Thus, new facts regarding the 

petitioner's condition (e.g., treatment milestones) or new 

research regarding likelihood to reoffend (e.g., new actuarial 

tools) would satisfy this standard. Id.

11 A circuit court weighs evidence when it "accept[s] one 

version of facts, [and] reject[s] another." State v. Stietz, 

2017 WI 58, ¶18, 375 Wis. 2d 572, 895 N.W.2d 796 (quoting State 

v. Mendoza, 80 Wis. 2d 122, 152, 258 N.W.2d 260 (1977)). 
Nos. 2015AP330 & 2015AP1311 

8

codified certain cases, namely Combs and its progeny. Id., 

¶¶32, 40-41. The court further concluded that Act 84 did not 

change our holding in Arends that circuit courts are limited to 

considering only the items in the record favorable to the 

petitioner. Id., ¶37. Under the court of appeals' reading of 

Wis. Stat. § 980.09(2), Hager had alleged sufficient new facts 

to warrant a discharge trial because Wakefield's report 

satisfied the criteria set forth in Combs by including new 

scientific research; namely, the Static-99R and MATS-1. The 

court of appeals reversed and remanded the matter to the circuit 

court with instructions to conduct a discharge trial. Id., 

¶¶45-46.

B. State v. Carter

¶12 Carter was involuntarily committed as a sexually

violent person under Chapter 980 in 2009 as he neared the 

completion of prison sentences he was serving as a result of 

convictions of multiple sexual offenses.

¶13 He filed the discharge petition we consider herein on 

December 13, 2013, which was the day before Act 84's 

publication. Carter's attorney never challenged the application 

of the new standard to Carter.

¶14 Carter attached to his petition the report of Dr. 

Diane Lytton, Ph.D. Dr. Lytton concluded that Carter did not 

satisfy the third criterion for commitment. She based this 

conclusion on three opinions. First, Dr. Lytton stated that in 
Nos. 2015AP330 & 2015AP1311 

9

her professional opinion, one of Carter's diagnosed mental 

disorders, paraphilia not otherwise specified, nonconsent,12 is 

not properly applied to a person such as Carter, who has 

forcibly raped another. Second, Dr. Lytton opined that Carter's 

other diagnosed mental disorder, antisocial personality 

disorder,13 does not make it likely he will engage in acts of 

sexual violence. Third, Dr. Lytton opined that, based upon her 

application of the Static-99R and MATS-1 assessments, Carter is 

not likely to engage in acts of sexual violence.

¶15 The circuit court concluded that Dr. Lytton's report 

was insufficient to satisfy the Act 84 standard. The court 

observed that relevant information from Carter's past did not 

appear in Dr. Lytton's report. The court also noted the lack of 

citation and analysis regarding the validity of the Static-99R 

and MATS-1, which Dr. Lytton had relied on heavily in her 

 

12 Dr. Lytton did not define paraphilia, not otherwise 

specified, nonconsent. Dr. Woodley defined it as "intense, 

recurrent sexually arousing . . . fantasies, urges, or behaviors 

to other than consenting adults . . . which the person acted 

on . . . ." See also American Psychiatric Association, 

Diagnostic and Statistics Manual of Mental Disorders 705 (5th 

ed. 2013).

13 Dr. Lytton did not define antisocial personality 

disorder. Dr. Woodley defined it as "a long-term maladaptive 

pattern of behavior involving . . . the following: repeated 

unlawful acts, deceitfulness, violating the rights and safety of 

others, impulsivity or failure to plan ahead, repeated lying, 

consistent irresponsibility, and lack of remorse for harming 

others." See also American Psychiatric Association, Diagnostic 

and Statistics Manual of Mental Disorders 659 (5th ed. 2013).
Nos. 2015AP330 & 2015AP1311 

10

report. The court described Dr. Lytton's report as "essentially 

an unsupported assertion."

¶16 Carter then filed a post-commitment motion alleging 

that the circuit court's denial of a discharge trial was 

improper for four reasons: (1) the court committed plain error 

in applying Act 84 to Carter; (2) Wis. Stat. § 980.09(2) 

violates his right to due process; (3) he received ineffective 

assistance of counsel because his attorney failed to contest 

application of Act 84 to Carter; and (4) he received ineffective 

assistance of counsel because his attorney failed to contest 

application of Wis. Stat. § 907.02(1), the rule of evidence 

governing expert testimony,14 to the expert reports filed in 

Carter's case. The circuit court denied the motion, concluding: 

(1) Act 84 is procedural, and thus applies retroactively to 

Carter; (2) § 980.09(2) does not violate Carter's right to due 

process because he can still obtain a discharge trial upon 

making a sufficient showing; (3) Carter's counsel was not 

deficient for failing to challenge the application of Act 84 

because the act did apply retroactively, and——even if his 

 

14 Carter appealed the circuit court's conclusion that his 

trial counsel was not ineffective for failing to contest the 

application of Wis. Stat. § 907.02(1) to the expert reports in 

his case. State v. Carter, 2017 WI App 9, ¶10 n.4, 373 

Wis. 2d 722, 892 N.W.2d 754. However, he does not raise this 

issue for our review, and we do not consider it further. See

State v. Sulla, 2016 WI 46, ¶7 n.5, 369 Wis. 2d 225, 880 

N.W.2d 659 (quoting Jankee v. Clark Cty., 2000 WI 64, ¶7, 235 

Wis. 2d 700, 612 N.W.2d 297) ("If an issue is not raised in the 

petition for review or in a cross petition, 'the issue is not 

before us.'").
Nos. 2015AP330 & 2015AP1311 

11

counsel's performance had been deficient in this regard——Carter 

suffered no prejudice because the court would have denied the 

petition even if it had used the prior standard; and (4) 

Carter's counsel was not deficient for failing to object to 

application of § 907.02(1) to the expert reports as the decision 

to do so was a legitimate strategic decision based on counsel's 

assessment that application of § 907.02(1) usually accrued to 

the benefit of the committed person, and, furthermore, Carter 

suffered no prejudice because the court would have made the same 

conclusions about Dr. Lytton's report under the prior standard. 

¶17 The court of appeals affirmed, concluding that the 

amendments made by Act 84 did apply retroactively, therefore 

Carter's counsel was not deficient for failing to challenge 

retroactive application of Act 84. Carter, 373 Wis. 2d 722, 

¶22. The court of appeals further concluded that Wis. Stat. 

§ 980.09(2) does not violate the right to due process because, 

contrary to Carter's arguments before that court, § 980.09(2) 

does not require circuit courts to weigh evidence. Id., ¶20. 

Because Carter did not contend that he had met the burden as 

established in Act 84,15 the court of appeals treated its holding 

that the amendments made by Act 84 applied to Carter as 

dispositive of his appeal. Id., ¶21.

II. STANDARD OF REVIEW

 

15 In his opening brief to the court of appeals, Carter 

"reluctantly" agreed with the State that he did not satisfy Act 

84's burden. Before this court, Carter argues that he satisfies 

Act 84's burden as interpreted by the court of appeals in Hager. 
Nos. 2015AP330 & 2015AP1311 

12

¶18 This case requires us to interpret Wis. Stat. 

§ 980.09(2) to determine the burden of production a petitioner 

must satisfy in order to receive a discharge trial. Statutory 

interpretation is a question of law we review de novo. Arends,

325 Wis. 2d 1, ¶13. We give words their "common, ordinary, and 

accepted meaning" unless a technical or specialized meaning 

applies. State ex rel. Kalal v. Circuit Court for Dane Cty., 

2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret 

the statute in its full context in order to avoid creating 

absurd results or rendering any statutory language surplusage. 

Id., ¶46. Though legislative intent may illuminate what the 

words of a statute mean, "it is the enacted law, not the 

unenacted intent, that is binding . . . ." Id., ¶44.

¶19 We then determine whether Hager and Carter are 

entitled to discharge trials. We review the circuit court's 

determination of whether the statutory criteria for a discharge 

trial have been met de novo. Combs, 295 Wis. 2d 457, ¶21. 

¶20 Carter alleges that Wis. Stat. § 980.09(2) violates 

the right to due process. The constitutionality of a statute is 

a question of law we review de novo. State v. Alger, 2015 WI 3, 

¶22, 360 Wis. 2d 193, 858 N.W.2d 346. A party challenging the 

constitutionality of a statute carries a heavy burden to 

overcome the presumption of constitutionality. Id. In a facial 

challenge, such as the one Carter makes, the "challenger must 

establish, beyond a reasonable doubt, that there are no possible 

applications or interpretations of the statute which would be 

constitutional." State v. Cole, 2003 WI 112, ¶30, 264 
Nos. 2015AP330 & 2015AP1311 

13

Wis. 2d 520, 665 N.W.2d 328 (quoting State v. Wants, 224 

Wis. 2d 679, 690, 592 N.W.2d 645 (Ct. App. 1999)).16

¶21 Carter alleges that his counsel was ineffective for 

failing to contest the application of Act 84 to his discharge 

petition. Ineffective assistance of counsel is a mixed question 

of law and fact. State v. Lombard, 2004 WI 95, ¶46, 273 

Wis. 2d 538, 684 N.W.2d 103. The circuit court's factual 

findings as to what counsel did and did not do are upheld unless 

clearly erroneous. Id. "Whether counsel's performance was 

ineffective is a question of law we review de novo." Id.

III. ANALYSIS

¶22 The consolidated appeals of Hager and Carter present 

three issues for our review. First, we must determine how 

circuit courts are to apply the "would likely conclude" standard 

in Wis. Stat. § 980.09(2). Next, we consider whether 

§ 980.09(2) violates the right to due process. Finally, we 

address whether Carter's counsel was ineffective for failing to 

contest retroactive application of Act 84 to Carter.

A. Wisconsin Stat. § 980.09(2) Permits Circuit Courts to 

Consider the Entire Record, but Not to Weigh the Evidence Within 

It, to Determine Whether the Statutory Criteria for a Discharge 

Trial have been Met.

1. The changes made to Wis. Stat. § 980.09(2) by Act 84.

 

16 This is in contrast to an as-applied challenge, which 

requires the court to determine whether a statute may be 

constitutionally applied to the challenger under the facts of 

the particular case. State v. Hamdan, 2003 WI 113, ¶43, 264 

Wis. 2d 433, 665 N.W.2d 785.
Nos. 2015AP330 & 2015AP1311 

14

¶23 In order to fully appreciate the changes made to Wis. 

Stat. § 980.09(2) by Act 84, we first set forth the statutory 

criteria for a discharge trial as they existed prior to the 

changes made to them by Act 84. Prior to those changes, the 

relevant portion of § 980.09 stated:

The court shall deny the [discharge] petition under 

this section without a hearing unless the petition 

alleges facts from which the court or jury may 

conclude the person's condition has changed since the 

date of his or her initial commitment order so that 

the person does not meet the criteria for commitment 

as a sexually violent person.

(2) The court . . . may hold a hearing to determine if 

it contains facts from which the court or jury may 

conclude that the person does not meet the criteria 

for commitment as a sexually violent person. In 

determining under this subsection whether facts exist 

that might warrant such a conclusion, the court shall 

consider any current or past reports filed under s. 

980.07, relevant facts in the petition and in the 

state’s written response, arguments of counsel, and 

any supporting documentation provided by the person or 

the state.

Wis. Stat. § 980.09(1)-(2) (2005-06) (emphasis added).17 We 

construed this as creating a two-part review process. Arends, 

325 Wis. 2d 1, ¶3.

¶24 Wisconsin Stat. § 980.09(1) (2005-06) first required a 

paper review to determine whether the petition presented facts 

such that the trier of fact "may conclude" that the person no 

 

17 Even though Wis. Stat. § 980.09 (2005-06) does not 

contain any subsection (1), we will refer to the paragraph 

preceding subsection (2) as subsection (1), as we did in Arends. 

State v. Arends, 2010 WI 46, ¶23 n.16, 325 Wis. 2d 1, 784 

N.W.2d 513. 
Nos. 2015AP330 & 2015AP1311 

15

longer fit the criteria for commitment, Arends, 325 Wis. 2d 1, 

¶27, analogous to a motion to dismiss for failure to state a 

claim pursuant to Wis. Stat. § 802.06(2)(a)(6), id., ¶29.

¶25 Second, Wis. Stat. § 980.09(2) (2005-06) required 

circuit courts to determine whether the record contained facts 

that could allow a trier of fact to find that the petitioner was 

no longer a sexually violent person. Arends, 325 Wis. 2d 1, 

¶38. Circuit courts were not to weigh any evidence, but merely 

review the record for any facts in support of discharge. Id., 

¶40. We viewed this level of review as analogous to a motion to 

dismiss at the close of evidence pursuant to Wis. Stat. 

§ 805.14(4). Id., ¶42.

¶26 The legislature amended Wis. Stat. § 980.09 in 2013. 

2013 Wis. Act 84. The current version states:

(1) The court shall deny the [discharge] petition 

under this section without a hearing unless the 

petition alleges facts from which the court or jury 

would likely conclude the person's condition has 

changed since the most recent order denying a petition 

for discharge after a hearing on the merits, or since 

the date of his or her initial commitment order if the 

person has never received a hearing on the merits of a 

discharge petition, so that the person no longer meets 

the criteria for commitment as a sexually violent 

person.

. . .

(2) In reviewing the petition, the court may hold a 

hearing to determine if the person's condition has 

sufficiently changed such that a court or jury would 

likely conclude the person no longer meets the 

criteria for commitment as a sexually violent person. 

In determining under this subsection whether the 

person's condition has sufficiently changed such that 

a court or jury would likely conclude that the person 
Nos. 2015AP330 & 2015AP1311 

16

no longer meets the criteria for commitment, the court 

may consider the record, including evidence introduced

at the initial commitment trial or the most recent 

trial on a petition for discharge, any current or past 

reports filed under s. 980.07, relevant facts in the 

petition and in the state's written response, 

arguments of counsel, and any supporting documentation 

provided by the person or the state.

Wis. Stat. § 980.09(1), (2) (2015-16) (emphasis added).

2. Circuit courts may consider the entire record when deciding 

whether the statutory criteria for a discharge trial have been 

met.

¶27 Hager and Carter argue that circuit courts are 

permitted to consider only those portions of the evidentiary 

record favorable to discharge when considering a petition for 

discharge from commitment filed pursuant to Wis. Stat. § 980.09. 

We disagree. The language of § 980.09(2) permits circuit courts 

to consider the entire record——not just the facts favorable to 

the petitioner——when determining whether the statutory criteria 

for a discharge trial have been met. The legislature set forth 

a broad scope of materials circuit courts may consider:

In determining . . . whether the person's condition 

has sufficiently changed such that a court or jury 

would likely conclude that the person no longer meets 

the criteria for commitment, the court may consider 

the record, including evidence introduced at the 

initial commitment trial or the most recent trial on a 

petition for discharge, any current or past reports 

filed under § 980.07, relevant facts in the petition 

and in the state's written response, arguments of 

counsel, and any supported documentation provided by 

the person or the state. 

Wis. Stat. § 980.09(2). The result of a plain reading of "the 

court may consider the record" is that courts are free to review 

everything in the record, no matter whether it is beneficial or 
Nos. 2015AP330 & 2015AP1311 

17

detrimental to the petitioner's cause. In order to illustrate 

the breadth of materials circuit courts may consider, the 

legislature included a host of examples of such materials, which 

by their nature will contain facts detrimental to the 

petitioner, including (1) "evidence introduced at the initial 

commitment trial or the most recent trial on a petition for 

discharge"; (2) "any current or past reports filed under 

§ 980.07"; (3) "relevant facts . . . in the state's written 

response"; (4) "arguments of counsel"; and (5) "any supporting 

documentation provided by . . . the state." Id. If, as Hager 

and Carter contend, circuit courts were limited to considering 

the facts favorable to the petitioner, the legislature would 

have had no reason to list these materials as examples of what 

courts may consider during their review of the discharge 

petition. Accordingly, we reject Hager and Carter's proposed 

interpretation because we conclude that it would impermissibly 

render this language surplusage. Kalal, 271 Wis. 2d 633, ¶46.

3. We conclude that circuit courts may not weigh the evidence 

in determining whether the statutory criteria for a discharge 

trial have been met.

¶28 Hager and Carter argue that circuit courts may not 

weigh the evidence in favor of a discharge petition against the 

evidence opposed to the petition when determining whether the 
Nos. 2015AP330 & 2015AP1311 

18

committed person has met his burden of production. We agree.18 

The court of appeals correctly held that Act 84 does not permit, 

much less require, circuit courts to weigh the evidence when 

they consider whether the statutory criteria for a discharge 

trial have been met. As we held in Arends, if the legislature 

wanted circuit courts to weigh evidence, it could use 

appropriate terms of art such as "probable cause" or 

"preponderance of the evidence" to so indicate. Arends, 325 

Wis. 2d 1, ¶37. It did not use such terms in previous 

iterations of Wis. Stat. § 980.09(2), and it did not elect to do 

so in Act 84, either.

¶29 The legislature did not provide a definition for what 

it meant when it directed circuit courts to "consider" the 

record. Such being the case, we may ascertain the term's plain 

and ordinary meaning through sources such as dictionaries. 

Kalal, 271 Wis. 2d 633, ¶¶45, 53. "Consider" has many 

dictionary definitions, but all coalesce around the concept of 

careful or attentive examination. See, e.g., Black's Law 

 

18 We note that in its briefs to us, the State withdrew its 

argument that Act 84 requires circuit courts to weigh the 

evidence, and now concedes that Wis. Stat. § 980.09(2) does not 

allow circuit courts to weigh the evidence. We choose to 

address this issue because to do so is helpful to our analysis 

of the proper application of § 980.09(2). See State v. Hunt, 

2014 WI 102, ¶42 n.11, 360 Wis. 2d 576, 851 N.W.2d 434 ("we are 

not bound by a party's concession of law").
Nos. 2015AP330 & 2015AP1311 

19

Dictionary 306 (6th ed. 1990)19 ("To fix the mind on, with a view 

to careful examination; to examine"); The New Century Dictionary

310 (1952) ("To view attentively, or scrutinize; also, to 

contemplate mentally").

¶30 This leads us to the conclusion that when they review 

petitions for discharge, courts are to carefully examine, but 

not weigh, those portions of the record they deem helpful to 

their consideration of the petition, including facts both 

favorable as well as unfavorable to the petitioner. That is, 

circuit courts cannot "accept one version of facts, [and] reject 

another." State v. Stietz, 2017 WI 58, ¶18, 375 Wis. 2d 572, 

895 N.W.2d 796 (quoting State v. Mendoza, 80 Wis. 2d 122, 152, 

258 N.W.2d 260 (1977)). However, as we recognized in Arends, 

courts need not "take every document a party submits at face 

value" but should scrutinize the submissions to ensure they 

contain facts "upon which a trier of fact could reasonably

rely." Arends, 325 Wis. 2d 1, ¶39 (emphasis added). 

¶31 We note that by holding that the plain language of 

Wis. Stat. § 980.09(2) does not allow circuit courts to weigh 

the evidence, we not only correctly apply the plain meaning of 

the statute, we also avoid constitutional conflict. This is so 

because the effect of allowing circuit courts to weigh the 

 

19 More recent editions of Black's Law Dictionary do not 

contain a definition for "consider." See Black's Law Dictionary

370 (10th ed. 2014); Black's Law Dictionary 347 (9th ed. 2009); 

Black's Law Dictionary 324 (8th ed. 2004); Black's Law 

Dictionary 300 (7th ed. 1999). 
Nos. 2015AP330 & 2015AP1311 

20

evidence would be to impermissibly shift the burden of 

persuasion to the committed person to prove he is no longer a 

sexually violent person. See Arends, 325 Wis. 2d 1, ¶¶40-41; cf

State v. West, 2011 WI 83, ¶81, 336 Wis. 2d 578, 800 N.W.2d 929 

(construing supervised release statute to place burden of 

persuasion on the committed person because the statute requires 

circuit courts to weigh evidence and make certain factual 

findings to grant supervised release). Shifting the burden of 

persuasion for discharge to the committed person is 

impermissible because to do so would violate the committed 

person's right to due process. See infra, ¶¶41-48. While 

avoidance of constitutional conflict does not drive our reading 

of the statute, where we can reasonably adopt a saving 

construction of a statute to avoid a constitutional conflict, we 

do so. Milwaukee Branch of NAACP v. Walker, 2014 WI 98, ¶¶63-

64, 357 Wis. 2d 469, 851 N.W.2d 262 (citing McConnell v. Fed. 

Election Comm'n, 540 U.S. 93, 180 (2003), and Semtek Int'l Inc. 

v. Lockheed Martin Corp., 531 U.S. 497, 503 (2001)). Therefore, 

our construction of § 980.09(2) to preclude circuit courts from 

weighing the evidence is commanded by both the plain language of 

the statute and the constitution. 

4. Applying Wis. Stat. § 980.09(2)

a. Application of Wis. Stat. § 980.09(2) to Hager

¶32 Both the court of appeals and the circuit court 

applied an incorrect interpretation of Wis. Stat. § 980.09(2) to 

Hager's petition. The court of appeals erred in concluding that 
Nos. 2015AP330 & 2015AP1311 

21

courts may consider only the evidence in the record favorable to 

the petitioner. The circuit court erred when it "weigh[ed] 

[the] reports." Though we could independently consider the 

record to determine whether a factfinder "would likely conclude" 

that Hager no longer meets the criteria for commitment, we 

determine that the better course as to Hager is to remand this 

matter to the circuit court "so that it may have an opportunity 

to conduct a review under § 980.09(2) following the procedures 

and applying the standards we announce today." Arends, 325 

Wis. 2d 1, ¶48.

b. Application of Wis. Stat. § 980.09(2) to Carter

¶33 In Carter's case, we see no need for remand, as the 

circuit court properly applied Wis. Stat. § 980.09(2) to 

Carter's discharge petition. Our consideration of the record 

satisfies us that the circuit court carefully examined, but did 

not weigh, those portions of the record it deemed helpful to its 

consideration of the petition, including facts both favorable as 

well as unfavorable to the petitioner. 

¶34 First, it considered "the most recent reports, and 

generally, the file as well." Next, it did not weigh the 

evidence. The circuit court did not "accept one version of 

facts, [and] reject another." Stietz, 375 Wis. 2d 572, ¶18. 

Rather, it concluded that the lack of supporting analysis for 

Dr. Lytton's conclusions meant that a factfinder could not 

"reasonably rely" on the report in reaching its conclusion. 

Arends, 325 Wis. 2d 1, ¶39.
Nos. 2015AP330 & 2015AP1311 

22

B. Wisconsin Stat. § 980.09(2) Does Not Violate the Right to 

Due Process of Law.

¶35 Carter argues that Wis. Stat. § 980.09(2) violates the 

right to due process of law as guaranteed by the Fourteenth 

Amendment to the United States Constitution20 and Article I, 

Section 1 of the Wisconsin Constitution.21 He argues that "Act 

84 pushes [Chapter 980] . . . down the slippery slope of 

unconstitutional preventative detention and violates due 

process" by shifting the burden of persuasion to the petitioner 

to prove he is no longer a sexually violent person. In essence, 

Carter argues, Act 84 makes "discharge without approval from the 

State practically impossible," unless we adopt the court of 

appeals' construction in Hager.

¶36 The State argues that rational basis scrutiny applies 

because the procedures for obtaining a discharge trial do not 

"implicate[] a fundamental right or discriminate[] against a 

protected class." Carter argues that "[a] strict scrutiny 

 

20 The Fourteenth Amendment to the United States 

constitution states, in relevant part: "[n]o State 

shall . . . deprive any person of life, liberty, or property, 

without due process of law . . . ." U.S. Const. amend. XIV, 

§ 1. 

21 Article I, Section 1 of the Wisconsin Constitution 

states: "All people are born equally free and independent, and 

have certain inherent rights; among these are life, liberty and 

the pursuit of happiness; to secure these rights, governments 

are instituted, deriving their just powers from the consent of 

the governed." The protections afforded by Article I, Section 1 

of the Wisconsin Constitution are the "substantial equivalent" 

to those afforded by the Fourteenth Amendment to the United 

States Constitution. Neiman v. Am. Nat'l Prop. & Cas. Co., 

2000 WI 83, ¶8, 236 Wis. 2d 411, 613 N.W.2d 160.
Nos. 2015AP330 & 2015AP1311 

23

analysis is appropriate in Chapter 980 cases because of the 

liberty interest involved." 

¶37 We agree with the State and conclude that rational 

basis review applies. Involuntary commitments in general 

implicate the fundamental right to be free from bodily 

restraint. Alger, 360 Wis. 2d 193, ¶44. However, the 

procedures used in commitment proceedings do not implicate a 

fundamental right. See id. (citing Milwaukee Cty. v. Mary F.-

R., 2013 WI 92, ¶38, 351 Wis. 2d 273, 839 N.W.2d 581). 

¶38 For example, in Alger, the committed person alleged 

that he was entitled to application of the amended version of 

Wis. Stat. § 907.02, which regulates the admissibility of expert 

testimony, in his discharge trial. Id., ¶2. We determined that 

he was not entitled to application of the amended statute. Id., 

¶38. The committed person further alleged that his right to due 

process required applying the amended version of the statute, 

and that it implicated a fundamental right triggering strict 

scrutiny. Id., ¶40. We held that "[a]lthough Chapter 980 

involuntary commitment implicates the right to freedom from 

bodily restraint, the availability of the [amended version of 

§ 907.02] in a Chapter 980 proceeding does not implicate that 

right so as to trigger strict scrutiny." Id., ¶44. 

Consequently, "[t]here is no right to a particular evidentiary 

[standard] in a Chapter 980 discharge petition trial." Id.

¶39 Similarly, the burden of production required to obtain 

a discharge trial is a procedural matter that does not implicate 

the committed person's fundamental right to freedom from bodily 
Nos. 2015AP330 & 2015AP1311 

24

restraint. Consequently, we apply rational basis review as we 

did in Alger. Under rational basis review, legislation is 

constitutional "unless it is 'patently arbitrary' and bears no 

rational relationship to a legitimate government interest." 

Id., ¶39 (quoting State v. Smith, 2010 WI 16, ¶12, 323 

Wis. 2d 377, 780 N.W.2d 90).

¶40 The right to due process includes the right to both 

substantive due process as well as procedural due process. 

Substantive due process protects individuals from government 

action that "abridges the Constitution's fundamental constraints 

upon the content of what government may do to people under the 

guise of law" even if the action "adher[es] to the forms of 

law." State v. Laxton, 2002 WI 82, ¶10 n.8, 254 Wis. 2d 185, 

647 N.W.2d 784 (quoting Reginald D. v. State, 193 Wis. 2d 299, 

307, 533 N.W.2d 181 (1995)). Procedural due process requires 

that government action "be implemented in a fair manner." Id.

(citing United States v. Salerno, 481 U.S. 739 (1987)).

1. Act 84 does not violate the right to substantive due 

process.

¶41 The right to substantive due process requires that the 

State carry the burden of persuasion at the initial commitment 

trial and at every subsequent discharge trial. Addington v. 

Texas, 441 U.S. 418, 431-32 (1979); Foucha v. Louisiana, 504 

U.S. 71, 81-82 (1992). The right to substantive due process is 

not violated, however, if committed persons carry a burden of 

production to ensure that a discharge trial would be worthwhile. 

State v. Post, 197 Wis. 2d 279, 327, 541 N.W.2d 115 (1995).
Nos. 2015AP330 & 2015AP1311 

25

¶42 We have recognized that Chapter 980 "passes 

constitutional muster because the physical confinement of the 

individual is linked to the dangerousness of the committed 

person." State v. Rachel, 2002 WI 81, ¶66, 254 Wis. 2d 215, 657 

N.W.2d 762; see also Combs, 295 Wis. 2d 457, ¶28 (citing Post, 

197 Wis. 2d at 307 n.14, 313-16, 325-27) (internal quotes 

omitted) ("[P]eriodic re-examination and . . . hearing[s] for 

discharge . . . are among the protections that the supreme court 

has considered significant in concluding that Wis. Stat. ch. 980 

does not violate . . . the right to due process."). An 

important consideration in this regard is the availability of 

various "methods . . . for regularly determining the 

dangerousness of the person and reducing or removing the 

physical restrictions when the person is less or no longer 

dangerous." Rachel, 254 Wis. 2d 215, ¶66. 

¶43 The fundamental structure of Wis. Stat. § 980.09——

which we have consistently held comports with due process——was 

not changed by Act 84. See, e.g., Post, 197 Wis. 2d at 327. 

Under both the Act 84 standard and the prior standard, the 

committed person receives a discharge trial only upon satisfying 

a burden of production; if the burden of production is met, a 

discharge trial is conducted where the State must prove by clear 

and convincing evidence that the person continues to meet the 

three criteria for commitment. Compare Wis. Stat. § 980.09 

(2005-06) with Wis. Stat. § 980.09 (2015-16). Because we 

conclude that § 980.09(2) does not permit circuit courts to 

weigh the evidence, Act 84 has not shifted the burden of 
Nos. 2015AP330 & 2015AP1311 

26

persuasion to the committed person, as the legislativelyimposed burden on the committed person is not to convince the 

factfinder that he is no longer sexually dangerous. Rather, his 

burden is to demonstrate to the circuit court that he is likely 

to succeed at a discharge trial. "The principles of due process 

are not violated if a burden of production——as opposed to a 

burden of persuasion——is placed on the" committed person to 

present "some" evidence that he will prevail at a discharge 

trial. State v. Shulz, 102 Wis. 2d 423, 430, 307 N.W.2d 151 

(1981) (applying doctrine in context of affirmative defenses in 

criminal proceedings). 

¶44 The changes made by Act 84 are rationally related to 

at least two legitimate government interests: (1) protection of 

the public, State ex rel. Marberry v. Macht, 2003 WI 79, ¶30, 

262 Wis. 2d 720, 665 N.W.2d 155; and (2) conserving public 

resources, see Arends, 325 Wis. 2d 1, ¶22. Act 84 is reasonably 

related to protecting the public because it ensures a discharge 

trial only when a committed person presents sufficient facts to 

show that his condition has changed; as we identified in 

Marberry, "[r]elease of a [person committed pursuant to Chapter] 

980 . . . whose dangerousness or mental disorder has not abated 

[does not] serve[] to protect the public . . . ." Marberry, 262 

Wis. 2d 720, ¶30 (quoting State ex rel. Marberry v. Macht, 2002 

WI App 133, ¶39, 254 Wis. 2d 690, 548 N.W.2d 522 (Brown, J., 

concurring in part, dissenting in part)). Further, Act 84 is 
Nos. 2015AP330 & 2015AP1311 

27

reasonably related to conserving public resources because it 

ensures that a discharge trial occurs only when the committed 

person demonstrates a likelihood of success in a discharge 

trial. 

2. Act 84 does not violate the right to procedural due process.

¶45 Procedural due process claims are analyzed by 

balancing three factors:

(1) the private interest that will be affected by the 

state action;

(2) the risk of an erroneous deprivation of the 

private interest through the procedures utilized and 

the probable value of added or substitute procedural 

safeguards; and 

(3) the state's interest, which includes the function 

involved and the fiscal and administrative burdens 

that the added or substitute procedural requirements 

would impose.

State v. Kaminski, 2009 WI App 175, ¶13, 322 Wis. 2d 653, 777 

N.W.2d 654 (quoting Patterson v. Bd. of Regents, 119 

Wis. 2d 570, 580-81, 350 N.W.2d 612 (1984)).

¶46 No party disputes that the private interest of liberty 

from physical restraint is a substantial interest. See id., 

("[The committed person] has correctly identified the strong 

liberty interest implicated by Wis. Stat. ch. 980 . . . ."). 

¶47 The risk of erroneous deprivation of liberty is slight 

because the standard ensures that a committed person receives a 

discharge trial when new facts are present that provide a 

likelihood of success at a discharge trial. The only way to 
Nos. 2015AP330 & 2015AP1311 

28

eliminate all risk of erroneous deprivation is to grant 

discharge trials on request no matter the facts alleged; 

however, this would infringe the State's interests in protecting 

the public from sexually violent offenders and preserving 

resources. Marberry, 262 Wis. 2d 720, ¶30 (recognizing that 

protecting the public from sexually violent persons is a 

legitimate government interest); State v. Velez, 224 Wis. 2d 1, 

12, 589 N.W.2d 9 (1999) (recognizing that "conserve[ing] scarce 

judicial resources" is a legitimate government interest). Act 

84 strikes a reasonable balance between ensuring committed 

persons are released when they are no longer sexually dangerous, 

protecting the public, and preserving scarce judicial resources 

by ensuring discharge trials occur only when the committed 

person is likely to succeed.

¶48 In light of the foregoing, we conclude that the 

requirements of an initial burden of production imposed upon 

Carter by § 980.09(2) do not violate the right to due process as 

guaranteed by the Fourteenth Amendment to the United States 

Constitution and Article I, Section 1 of the Wisconsin 

Constitution.

C. Carter's Counsel did not Perform Deficiently by Failing to 

Contest Application of Act 84 to Carter.

¶49 Carter alleges that his counsel was ineffective 

because he did not challenge the application of Act 84 to 

Carter's discharge petition, even though the petition was filed 

before Act 84's effective date.
Nos. 2015AP330 & 2015AP1311 

29

¶50 In order to prevail on his ineffective assistance of 

counsel claim, Carter must prove that his counsel performed 

deficiently and that the deficiency prejudiced him. State v. 

Lombard, 2004 WI 95, ¶49, 273 Wis. 2d 538, 684 N.W.2d 103 

(applying Strickland v. Washington, 466 U.S. 668, 687 (1984), to 

Chapter 980 commitment). If Carter fails to prove either 

deficient performance or prejudice, we need not consider the 

other. Id., ¶50. 

¶51 Though statutes generally apply prospectively, 

procedural and remedial statutes may apply retroactively. 

Trinity Petroleum, Inc. v. Scott Oil Co., 2007 WI 88, ¶40, 302 

Wis. 2d 299, 735 N.W.2d 1. We determine whether a statute 

applies retroactively in three steps. Id., ¶¶36-54. First, we 

examine the text of the statute for an express statement 

concerning retroactivity. Id., ¶36. If the statute does not 

contain an express statement concerning retroactivity, we 

determine whether the statute is procedural or substantive and 

apply a presumption of retroactivity to procedural statutes. 

Id., ¶40. If a statute is procedural, we determine whether one 

of three exceptions to retroactivity overcomes the presumption: 

interference with a vested right, interference with a 

contractual right, or imposition of an unreasonable burden. 

Id., ¶¶53-54. We conclude that Act 84 applies retroactively 

because it includes within it no statements concerning its 

retroactivity; the Act is procedural in nature; and none of the 

three exceptions to the presumption of retroactive application 

of procedural statutes are present. Accordingly, we hold that 
Nos. 2015AP330 & 2015AP1311 

30

Act 84 applies retroactively to Carter. Because Act 84 applies 

to Carter, his counsel could not have been deficient for failing 

to contest the retroactive application of Act 84 before the 

circuit court.

1. Act 84 contains no language concerning retroactive 

application.

¶52 We look first to the language of Act 84. Trinity 

Petroleum, 302 Wis. 2d 299, ¶36. We conclude that Act 84 does 

not contain any language concerning its retroactive application. 

See 2013 Wis. Act 84.

2. Act 84 is procedural.

¶53 Next, we consider whether Act 84 is substantive or 

procedural. Trinity Petroleum, 302 Wis. 2d 299, ¶39. If it is 

procedural, the presumption of retroactivity attaches; if it is 

substantive, the statute is presumed prospective. Id. 

Procedural statutes "prescribe[] the method . . . used in 

enforcing a right or remedy" whereas substantive statutes 

"create[], define[], and regulate[] rights and obligations." 

Id., ¶41 & n.25 (citing Betthauser v. Med. Protective Co., 172 

Wis. 2d 141, 147-48, 493 N.W.2d 40 (1992)).

¶54 Carter concedes that Act 84 is procedural. We agree. 

The substantive right at issue is the right to "an adversary 

hearing at which the State must prove by clear and convincing 

evidence that he [continues to be] demonstrably dangerous to the 

community." Foucha, 504 U.S. at 81. The substantive right is 

not to a certain burden of production to obtain the hearing 

described in Foucha. Post, 197 Wis. 2d at 327. Act 84 changes 
Nos. 2015AP330 & 2015AP1311 

31

the method used to determine whether he is entitled to a 

discharge trial, but does not change the nature of the discharge 

trial itself, and so is procedural in nature.

3. None of the exceptions to retroactivity overcome the 

presumption of retroactivity for procedural statutes.

a. Carter does not have a vested right to a discharge trial.

¶55 We turn next to a consideration of whether any of the 

three exceptions to retroactive application of a procedural 

statute overcome the presumption of retroactivity. Id., ¶53. 

The first exception precludes retroactive application of a 

procedural statute if such application would interfere with a 

vested right. Id., ¶54. A right becomes vested when it is 

"presently legally enforceable . . . not dependent on uncertain 

future events." Lands' End, Inc. v. City of Dodgeville, 2016 WI 

64, ¶68, 370 Wis. 2d 500, 881 N.W.2d 702.

¶56 Carter has a constitutional right to a discharge trial 

"under the appropriate circumstances." State v. Richard, 2014 

WI App 28, ¶17, 353 Wis. 2d 219, 844 N.W.2d 370. Indeed, this 

ability to obtain a discharge trial is fundamental to Chapter 

980's constitutionality. Id. However, a right cannot be vested 

if contingent on some uncertain future event. Lands' End, 370 

Wis. 2d 500, ¶50. 

¶57 Lands' End is instructive. In that case, Lands' End 

made a statutory offer of settlement for $724,000 pursuant to 
Nos. 2015AP330 & 2015AP1311 

32

Wis. Stat. § 807.01(4) (2009-10),22 which the defendant rejected. 

Id., ¶14. Lands' End eventually recovered $724,292.68. Id., 

¶16. Lands' End was thus entitled to interest on its judgment 

pursuant to § 807.01(4) because it recovered more than was 

offered in the statutory offer of settlement. Id., ¶17. The 

question was whether Lands' End was entitled to 12 percent 

interest pursuant to Wis. Stat. § 807.01(4) (2009-2010), which 

was in effect when Lands' End made its offer of settlement, or 

one percent plus prime pursuant to Wis. Stat. § 807.01(4) (2013-

14), which was in effect when judgment was entered in favor of 

Lands' End. See id., ¶¶17-18. We held that Lands' End was 

entitled to interest at the rate of one percent plus prime 

because the right to interest did not vest until a judgment 

exceeding the statutory offer was entered. Id., ¶72. That is, 

the right to interest on a judgment exceeding the statutory 

offer is contingent upon such a judgment being entered. Id. 

¶58 Similarly, Carter's right to a discharge trial was 

contingent on his meeting the burden of production set forth in 

Wis. Stat. § 980.09(2). We agree with the court of appeals that 

satisfying the burden of production as set out in § 980.09(2) 

constitutes the "appropriate circumstances" entitling a 

 

22 Wis. Stat. § 807.01 encourages settlement in civil 

actions by providing incentives for parties to make and accept 

settlement offers. Subsection four, at issue in Lands' End, 

Inc. v. City of Dodgeville, 2016 WI 64, 370 Wis. 2d 500, 881 

N.W.2d 702, awards interest from the date of a statutory offer 

of settlement if the prevailing party recovers more than was 

offered. § 807.01(4). 
Nos. 2015AP330 & 2015AP1311 

33

petitioner to a discharge trial. Carter, 373 Wis. 2d 722, ¶18. 

Thus, the right could not vest until Carter met that burden of 

production, which he has not done.

b. Carter does not have a contractual right to a discharge 

trial.

¶59 The second exception to retroactive application of a 

procedural statute is whether it interferes with a contractual 

right. Trinity Petroleum, 302 Wis. 2d 299, ¶53. No party 

claims that Carter had any contractual right to a discharge 

trial, and we cannot find any basis to conclude that he does.

c. Carter never articulates how retroactive application of Act 

84 unreasonably burdens him.

¶60 The final exception to retroactive application of a 

procedural statute applies where a party faces an unreasonable 

burden if required to comply with the new statute. Id. Carter 

never articulates what "burden" he believes was imposed, much 

less an unreasonable one. Carter's argument on this exception 

is a single sentence, stating:

Carter submits the new burden imposed on him to 

warrant a discharge trial ("allegations of facts" or 

"change in a person's condition" from the record as a 

whole from which the court or jury would "likely" 

conclude the person's condition has changed since the 

most recent order denying a petition for discharge 

after a hearing on the merits) would be an 

unreasonable one.

Carter never articulates what about retroactive application of 

Act 84 is an unreasonable burden on him. Instead, he argues 

that the enactment of Act 84 itself is the unreasonable burden. 

The mere application of a statute that provides additional 
Nos. 2015AP330 & 2015AP1311 

34

procedural hurdles to achieve a desired end is not an 

unreasonable burden. See Ten Mile Invs., LLC v. Sherman, 2007 

WI App 253, ¶11, 306 Wis. 2d 799, 743 N.W.2d 442. 

¶61 Furthermore, whether the aggrieved party could have 

complied with the new statute is an important factor in 

determining whether retroactive application of a statute imposes 

an unreasonable burden. Id.; Modica v. Verhulst, 195 

Wis. 2d 633, 645, 536 N.W.2d 466 (Ct. App. 1995) (citing Mosing 

v. Hagen, 33 Wis. 2d 636, 148 N.W.2d 92 (1967)) ("Such 

application . . . did not impose an unreasonable burden on the 

plaintiff since the plaintiff could have complied with the new 

statute."); see also Trinity Petroleum, 302 Wis. 2d 299, ¶¶85, 

89, 92 (remanding for circuit court to make findings of fact and 

conclusions of law on the issue of unreasonable burden after 

noting that whether the aggrieved party could have complied with 

the new statute was in dispute). Our review of the record 

demonstrates that Carter not only could have, but did in fact 

tailor his efforts to obtain a discharge trial around compliance 

with Act 84. This is demonstrated by the fact that Carter's 

attorney argued Carter's case with the express understanding 

that Act 84 applied to Carter's case. It is because of this 

express understanding, as well as the fact that Carter never 

develops any argument to the contrary, that we hold compliance 

with Act 84 would not have placed an unreasonable burden on 

Carter. See State v. Robinson, 2014 WI 35, ¶50, 354 

Wis. 2d 351, 847 N.W.2d 352 (quoted source omitted) ("Typically, 
Nos. 2015AP330 & 2015AP1311 

35

appellate courts do not take it upon themselves to create and 

develop arguments on a party's behalf.").

¶62 Based upon the foregoing, we conclude that none of the 

enumerated exceptions to retroactivity apply. Thus, the 

presumption of retroactivity controls and Act 84 applies 

retroactively to Carter's case. Because Carter's counsel could 

not have been deficient for failing to bring a meritless motion, 

Carter's ineffective assistance claim fails. State v. Allen, 

2017 WI 7, ¶46, 373 Wis. 2d 98, 890 N.W.2d 245.

IV. CONCLUSION

¶63 As to Hager, we reverse the decision of the court of 

appeals and remand the matter to the circuit court with 

directions to apply the statute in accordance with the analysis 

in this opinion to determine whether Hager is entitled to a 

discharge hearing. As to Carter, we affirm the decision of the 

court of appeals because the circuit court applied the statute 

correctly in rejecting Carter's request for a discharge hearing.

¶64 We hold as to both Hager and Carter that the court of 

appeals erred in concluding that Wis. Stat. § 980.09(2) limits 

circuit courts to considering only the evidence favorable to 

petitions for discharge. We hold that circuit courts are to 

carefully examine, but not weigh, those portions of the record 

they deem helpful to their consideration of the petition, which 

may include facts both favorable as well as unfavorable to the 

petitioner.

¶65 We further hold that Wis. Stat. § 980.09(2) does not 

violate the constitutional right to due process of law as 
Nos. 2015AP330 & 2015AP1311 

36

guaranteed by the Fourteenth Amendment to the United States 

Constitution and Article I, Section 1 of the Wisconsin 

Constitution, and furthermore, Carter's counsel was not 

ineffective for failing to challenge retroactive application of 

Act 84 to Carter.

By the Court.—The decision of the court of appeals in State 

v. Hager is reversed and cause remanded to the circuit court 

with directions; the decision of the court of appeals in State 

v. Carter is affirmed.
No. 2015AP330 & 2015AP1311.dk

1

¶66 DANIEL KELLY, J. (concurring). I join the court's 

opinion, except to the extent that it holds the court may not 

"weigh" evidence when it reviews a petition for discharge from a 

chapter 980 commitment. Honoring that proscription, I think, is 

incompatible with the prescription that "circuit courts are to 

carefully examine . . . those portions of the record they deem 

helpful to their consideration of the petition, which may 

include facts both favorable as well as unfavorable to the 

petitioner." Majority op., ¶4. Contrary to the court's 

conclusion, I believe the 2013 amendments to Wis. Stat. 

§ 980.09(2) not only allow weighing, they require it.

¶67 The parts of the statute in which we are immediately 

interested direct how courts are to review discharge petitions 

in two important ways. The first addresses the information the 

court is to examine. The second describes how the court is to 

analyze that information. This case is here because, in 2013, 

the legislature amended how the court is to address each of 

these topics.

¶68 As for the first directive, Wis. Stat. § 980.09(2) now 

says the court may "consider" a large universe of information:

[T]he court may consider the record, including 

evidence introduced at the initial commitment trial or

the most recent trial on a petition for discharge, any 

current or past reports filed under s. 980.07, 

relevant facts in the petition and in the state's 

written response, arguments of counsel, and any 

supporting documentation provided by the person or the 

state.
No. 2015AP330 & 2015AP1311.dk

2

Wis. Stat. § 980.02(2).1 The court concluded that "[t]he result 

of a plain reading of 'the court may consider the record' is 

that courts are free to review everything in the record, no 

matter whether it is beneficial or detrimental to the 

petitioner's cause." Majority op., ¶27. I agree that the 

purpose of the "may consider" directive is to identify the 

information the court is supposed to analyze.

¶69 The statute's second directive instructs the court to 

analyze the information described by the first directive. The 

purpose of the analysis is to determine what the jury would 

likely conclude from that information: "If the court determines 

that the record contains facts from which a court or jury would 

likely conclude the person no longer meets the criteria for 

commitment, the court shall set the matter for trial." Wis. 

Stat. § 980.09(2) (emphasis added).2 In the prior version of 

this statute, the standard was different. It used to be that 

the court would determine whether the petitioner had identified 

"facts from which the court or jury may conclude that the person 

does not meet the criteria for commitment as a sexually violent 

person." Wis. Stat. § 980.09(3) (2011-12) (emphasis added). So 

our task here was to explain how a reviewing court is supposed 

 

1 Prior to 2013, this provision directed the court to 

consider only a subset of the record. See Wis. Stat. § 980.09(2)

(2011-12).

2 Prior to the 2013 amendments, the court was to determine 

only whether the petitioner had identified "facts from which the 

court or jury may conclude that the person does not meet the 

criteria for commitment as a sexually violent person." Wis. 

Stat. § 980.09(3) (2011-12).
No. 2015AP330 & 2015AP1311.dk

3

to apply the new "would likely conclude" standard to the facts 

identified by the first directive.

¶70 Except we didn't analyze this change at all. Instead, 

we went back to the first directive to consider what it means to 

"consider" the record. We concluded it means "examine." I 

think that's a perfectly suitable synonym for "consider," but 

neither term addresses itself to the purpose of that scrutiny. 

To what end is one to examine the evidence? More to the point, 

what is one to do when the examination reveals that some of the 

evidence favors the petitioner and some of it does not? 

Certainly, the instruction that courts are to examine "facts 

both favorable as well as unfavorable to the petitioner" must 

mean more than acknowledging that one part of the record is in 

competition with another.

¶71 The statute says the purpose of our examination is to 

determine what a fact-finder would likely conclude from the 

evidence of record. The court says nothing about how to conduct 

this analysis except that we are not to "weigh" the evidence. 

Majority op., ¶28 ("Hager and Carter argue that circuit courts 

may not weigh the evidence in favor of a discharge petition 

against the evidence opposed to the petition when determining 

whether the committed person has met his burden of production. 

We agree."). Part of the reason the court reached this 

conclusion is it saw no legislative authorization to do so:

As we held in Arends, if the legislature wanted 

circuit courts to weigh evidence, it could use 

appropriate terms of art such as "probable cause" or 

"preponderance of the evidence" to so indicate. It 

did not use such terms in previous iterations of Wis. 
No. 2015AP330 & 2015AP1311.dk

4

Stat. § 980.09(2), and it did not elect to do so in 

Act 84, either.

Id., ¶28 (internal citation omitted).

¶72 I disagree——the legislature did use such a term. In 

fact, that's the whole point of the newly-formulated second 

directive. We are supposed to determine whether, based on the 

evidence of record (both pro and con, according to the court), 

the fact-finder "would likely conclude" the petitioner no longer 

meets the criteria for commitment. "Likely" means "probable,"

one of the very terms the court said indicates a legislative 

direction to weigh evidence. Webster's Third New International 

Dictionary 1310 (1986) (defining "likely" in first definition as 

"of such a nature or so circumstanced as to make something 

probable").

¶73 The other reason the court believes the evidence may 

not be weighed is a legitimate concern for the petitioner's due 

process rights. The court says that "allowing circuit courts to 

weigh the evidence . . . shift[s] the burden of persuasion to 

the committed person to prove he is no longer a sexually violent 

person." Majority op., ¶31 (citation omitted). And "[s]hifting 

the burden of persuasion for discharge to the committed person 

is impermissible because to do so would violate the committed 

person's right to due process." Id. (citation omitted).

¶74 But the simple act of weighing, by itself, does not 

require the committed person to prove he is no longer sexually 

violent. "Weighing" refers to the process of resolving various 

elements of evidence that exist in tension. Whether the 

petitioner must prove he is no longer dangerous is not a 
No. 2015AP330 & 2015AP1311.dk

5

function of weighing, but of the standard the weighing must 

satisfy. If the statute required the court to find that the 

"weighed" evidence satisfied a "preponderance of the evidence"

standard, it would be fair to say the burden had shifted to the 

petitioner to prove he is no longer dangerous.

¶75 But Wis. Stat. § 980.09(2) does not contain that 

standard. It says, instead, that the court must determine 

whether the fact-finder would merely be likely to find the 

petitioner no longer meets the criteria for commitment. As 

discussed above, "likely" means "probable," and we have a fair 

amount of experience in evaluating whether a probability 

warrants a new trial. In the "ineffective assistance of 

counsel" context, Strickland v. Washington requires a new trial 

when counsel's performance is both deficient and prejudicial. 

See 466 U.S. 668, 687 (1984). We measure the "prejudice" prong 

of the test by asking whether it is "reasonably probable" that 

the result of the trial would have been different absent 

counsel's deficient performance. See id. at 694. We apply that 

test even when the claimed deficiency is the failure to 

introduce helpful evidence or object to harmful evidence. See 

e.g., State v. Jenkins, 2014 WI 59, ¶¶59-61, 355 Wis. 2d 180, 

848 N.W.2d 786 (holding "that the failure to call Jones as a 

witness at trial to give testimony contradictory to that of the 

State's eyewitness had a reasonable probability of affecting the 

result of the case" and was, therefore, prejudicial to the 

defendant); State v. Krueger, 2008 WI App 162, ¶¶17-18, 314 

Wis. 2d 605, 762 N.W.2d 114 (holding that counsel's deficient 
No. 2015AP330 & 2015AP1311.dk

6

performance in failing to object to testimony of a State's 

witness prejudiced defendant because there was a "reasonable 

probability that, but for trial counsel's error, the jury would 

have had a reasonable doubt respecting guilt"); State v. Jeannie 

M.P., 2005 WI App 183, ¶27, 286 Wis. 2d 721, 703 N.W.2d 694 

(holding "that trial counsel's failure to investigate and 

present at trial facts that would cast doubt on the credibility 

of the State's principal witnesses" produced a "reasonable 

probability [that] the jury would have acquitted the defendant,"

thus constituting prejudice).

¶76 Conducting the prejudice analysis in each of these 

cases required the court to evaluate the effect of the disputed 

evidence on the result of the trial. That is to say, the court 

had to weigh the evidence to determine whether its inclusion or 

exclusion would have been likely to bring about a different 

result. We have never said that the reasonable probability 

standard requires the defendant to prove the result would be 

different. He must only demonstrate there is a reasonable 

probability it would be different. There is no reason we cannot 

conduct the same analysis here, so long as the standard against 

which we measure the weighed evidence does not exceed the 

legislatively prescribed "likelihood."

¶77 Therefore, because the legislature amended Wis. Stat. 

§ 980.09(2) to require the court to determine whether the 

evidence of record demonstrates a likelihood (that is, a 

reasonable probability) that a fact-finder would find the 

petitioner no longer meets the criteria for commitment, I 
No. 2015AP330 & 2015AP1311.dk

7

conclude that the court is to weigh the evidence of record. And 

because demonstrating a reasonable probability does not shift 

the burden of persuasion to the petitioner, I conclude there is 

no due process violation. For these reasons, I join the court's 

opinion except with respect to its conclusion that § 980.09(2) 

prevents the court from weighing conflicting evidence.

¶78 I am authorized to state that Justice REBECCA GRASSL 

BRADLEY joins this concurrence.
No. 2015AP330 & 2015AP1311.ssa

1

¶79 SHIRLEY S. ABRAHAMSON, J. (dissenting). The 

majority addresses a myriad of issues raised by amendments to 

Chapter 980 of the statutes. Although I largely disagree with 

the majority's views of the constitutionality and legality of 

the amendments, I confine my dissent to the majority's 

instructions about implementing §§ 21 and 23 of the 2013 Wis. 

Act 84 amendments to Wis. Stat. § 980.09.

¶80 The majority delivers a useless, unworkable, and 

potentially unconstitutional standard for §§ 21 and 23 of the 

2013 Wis. Act 84 amendments to Wis. Stat. § 980.09 that is not 

helpful to the bench, bar, or litigants. 

¶81 The majority concludes that the 2013 amendments to 

Wis. Stat. § 980.09 require that a circuit court "carefully 

examine, but not weigh" the evidence in determining whether a 

jury "would likely conclude" that a petitioner's condition has 

changed such that the petitioner no longer meets the statutory 

criteria for commitment and should get a hearing. Majority op.,

¶4 (emphasis added). The majority describes the amendments as 

simply increasing the petitioner's burden of production——instead 

of being required to produce a quantum of evidence such that a 

reasonable factfinder could find in the petitioner's favor, the 

petitioner must now produce a larger quantum of evidence such 

that a reasonable factfinder would likely find in the 

petitioner's favor. 

¶82 How can a court determine what a jury "would likely 

conclude" without weighing the evidence favorable to discharge 
No. 2015AP330 & 2015AP1311.ssa

2

against the evidence unfavorable to discharge? Moreover, how is 

this inquiry meaningfully different from a burden of persuasion 

by a preponderance of evidence? Convincing a factfinder that a 

proposition is more likely true than not true is literally what 

it means to carry one's burden of persuasion by the 

preponderance of the evidence. In the context of Chapter 980, 

the proposition that a petitioner must convince a judge is more 

likely true than not true is that a jury will find in 

petitioner's favor at a discharge hearing. 

¶83 The majority's interpretation of the amended statute 

creates additional problems. If determining whether a jury 

"would likely conclude" in favor of petitioner is simply an 

increase in the petitioner's burden of production, could the 

legislature raise the burden of production further? For 

example, what principle would prevent the legislature from 

conditioning a Chapter 980 discharge hearing on a petitioner's 

burden to first produce evidence such that it is beyond a 

reasonable doubt that a jury will conclude in favor of 

petitioner? Under the majority's interpretation, is it possible 

to avoid weighing the evidence under a more stringent burden of 

production? At what point under the majority's interpretation 

will a burden of production become so onerous as to necessitate 

the weighing of evidence and constitute a burden of persuasion?

¶84 Rather than face reality and impart helpful direction 

to the bench and bar (or simply acknowledge that the amended 

statute requires the weighing of evidence and is therefore 

constitutionally suspect), the majority merely directs judges to 
No. 2015AP330 & 2015AP1311.ssa

3

"consider" or "carefully examine" (but not weigh) the 

allegations in the filings and the evidence in the record. 

Majority op., ¶¶4, 29-30, 64. 

¶85 In order to comply with the majority's useless 

direction to carefully examine but not weigh the evidence, the 

circuit court will simply use the words "consider" or "carefully 

examine" rather than the word "weigh" when applying the amended 

statute. Such a subterfuge is not helpful in understanding or 

applying the statute. If the amended statute truly does not 

necessitate the weighing of evidence, then the majority should 

better explain how a judge is to accomplish what Wis. Stat. 

§ 980.09 now requires without weighing evidence. 

¶86 For the reasons set forth, I dissent. 

¶87 I am authorized to state that Justice ANN WALSH 

BRADLEY joins this dissent.
No. 2015AP330 & 2015AP1311.ssa

1