                                                                        2015 WI 3

                  SUPREME COURT                OF      WISCONSIN
CASE NO.:                   2013AP225 & 2013AP578
COMPLETE TITLE:             In re the commitment of Michael Alger:

                            State of Wisconsin,
                                      Petitioner-Respondent,
                                 v.
                            Michael Alger,
                                      Respondent-Appellant-Petitioner.
                            ------------------------------------------------
                            In re the commitment of Ronald Knipfer:

                            State of Wisconsin,
                                      Petitioner-Respondent,
                                 v.
                            Ronald Knipfer,
                                      Respondent-Appellant-Petitioner.

                              REVIEW OF A DECISION OF THE COURT OF APPEALS
                             (Reported at 352 Wis. 2d 145, 841 N.W.2d 329)
                                       (Ct. App. 2013 – Published)
                                         PDC No.: 2013 WI App 148
                             ---------------------------------------------
                              REVIEW OF A DECISION OF THE COURT OF APPEALS
                             (Reported at 352 Wis. 2d 563, 842 N.W.2d 526)
                                       (Ct. App. 2014 – Published)
                                          PDC No.: 2014 WI App 9

OPINION FILED:              January 20, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:              October 2, 2014

SOURCE OF APPEAL:
   COURT:                   Circuit/Circuit
   COUNTY:                  Outagamie/Dane
   JUDGE:                   John A. Des Jardins/Nicholas McNamara

JUSTICES:
   CONCURRED:
   DISSENTED:               ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
                            filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For      respondent-appellant-petitioner           Michael   Alger,    there
were    briefs         by    Steven   D.   Phillips,    assistant   state    public
defender. Oral argument by Steven D. Phillips.
    For   respondent-appellant-petitioner   Ronald   Knipfer,   there
were briefs by Donald T. Lang, assistant state public defender,
and oral argument by Donald T. Lang.


    For the petitioner-respondent in both cases, the cause was
argued by Nancy A. Noet, assistant attorney general, with whom
on the briefs was J.B. Van Hollen, attorney general.




                                2
                                                                     2015 WI 3
                                                           NOTICE
                                             This opinion is subject to further
                                             editing and modification.   The final
                                             version will appear in the bound
                                             volume of the official reports.
Nos.     2013AP225 & 2013AP578
(L.C. Nos.   2004CV654 & 2002CI3)

STATE OF WISCONSIN                       :            IN SUPREME COURT

In re the commitment of Michael Alger:

State of Wisconsin,
                                                                FILED
             Petitioner-Respondent,
                                                           JAN 20, 2015
       v.
                                                              Diane M. Fremgen
Michael Alger,                                             Clerk of Supreme Court


             Respondent-Appellant-Petitioner.


In re the commitment of Ronald Knipfer:

State of Wisconsin,

             Petitioner-Respondent,

       v.

Ronald Knipfer,

             Respondent-Appellant-Petitioner.




       REVIEW of a decision of the Court of Appeals.          Affirmed.



       ¶1    ANNETTE KINGSLAND ZIEGLER, J.        This is a review of
two published decisions of the court of appeals, State v. Alger,
                                                   Nos.    2013AP225 & 2013AP578



2013 WI App 148, 352 Wis. 2d 145, 841 N.W.2d 329, and State v.

Knipfer, 2014 WI App 9, 352 Wis. 2d 563, 842 N.W.2d 526.1                    In

Alger the court of appeals affirmed the Outagamie County Circuit

Court's2 order denying Michael Alger's ("Alger") petition for

discharge from involuntary commitment under Wis. Stat. ch. 980

as   a    sexually   violent     person,    as   defined     in   Wis.    Stat.

§ 908.01(7) (2011-12).3        In Knipfer the court of appeals affirmed

the Dane County Circuit Court's4 order denying Ronald Knipfer's

("Knipfer") petition for discharge from involuntary commitment

under Wis. Stat. ch. 980 as a sexually violent person.

     ¶2     Both Alger and Knipfer argue that the circuit courts

erred by refusing to apply the             Daubert5 evidentiary standard
     1
       We consolidated these two cases after                   oral   argument
because they present similar issues and facts.
     2
         The Honorable John A. Des Jardins presided.
     3
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated. Wisconsin Stat.
§ 980.01(7) provides:

          "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.
     4
         The Honorable Nicholas McNamara presided.
     5
       See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597
(1993) (holding that, under the Federal Rules of Evidence,
expert   testimony   must  be   reliable  and   relevant  to   be
admissible).


                                      2
                                                            Nos.   2013AP225 & 2013AP578



under Wis. Stat. § 907.02(1)6 to the State's expert witnesses who

testified in their Chapter 980 discharge petition trials.                           The

legislature provided that the Daubert standard, which requires

that       particularized     standards        be     met    before      an   expert's

testimony can be admitted, would "first apply                         to actions or

special proceedings that are commenced on the effective date of

this subsection [February 1, 2011]."                  2011 Wis. Act 2, § 45(5).7

Both       Alger   and   Knipfer   argue       that    the     Daubert    evidentiary

standard should have applied to the State's expert testimony at

       6
           Wisconsin Stat. § 907.02(1) provides:

            If scientific, technical, or other specialized
       knowledge will assist the trier of fact to understand
       the evidence or to determine a fact in issue, a
       witness qualified as an expert by knowledge, skill,
       experience,   training,  or   education,  may  testify
       thereto in the form of an opinion or otherwise, if the
       testimony is based upon sufficient facts or data, the
       testimony is the product of reliable principles and
       methods, and the witness has applied the principles
       and methods reliably to the facts of the case.

Wisconsin Stat.          § 907.02(1)   was adopted by 2011 Wis. Act 2,
§ 34M.
       7
           2011 Wis. Act 2, § 45(5) provides:

            CIVIL ACTIONS.       The treatment of sections
       230.85(3)(b),    802.10(7),    809.103(2)(a),    814.04
       (intro.),     814.29(3)(a),    895.043(6),     895.044,
       895.045(3), 895.046, 895.047, and 907.03 of the
       statutes, the renumbering and amendment of sections
       907.01 and 907.02 of the statutes, and the creation of
       sections 907.01(3) and 907.02(2) of the statutes first
       apply to actions or special proceedings that are
       commenced on the effective date of this subsection.

The effective date was the following day, February 1, 2011.                         See
Wis. Stat. § 991.11.


                                           3
                                                             Nos.   2013AP225 & 2013AP578



trial      on   their   Chapter       980   discharge        petitions    because     the

petitions commenced "actions" or "special proceedings" after the

Daubert      standard's       first   date       of   applicability.8         Alger    and

Knipfer further argue that their constitutional right to equal

protection was violated when the Daubert evidentiary standard

did not apply to and thus bar the State's expert testimony in

their      Chapter    980     discharge     petition        trials.9     Knipfer      also

argues that his constitutional right to due process was violated

because the circuit court did not apply the Daubert standard to

the   State's        expert    testimony     in       his    Chapter    980   discharge

petition trial.10

      8
       The court of appeals held that Alger conceded that his
discharge petition did not commence a special proceeding. State
v. Alger, 2013 WI App 148, ¶11, 352 Wis. 2d 145, 841 N.W.2d 329.
Knipfer's argument also centers on whether the discharge
petition commenced an "action."   Nevertheless, we will address
whether Alger's and Knipfer's Chapter 980 discharge petitions
commenced "special proceedings."
      9
       Although Alger and Knipfer seem to argue that the mere
failure   to   apply  the   Daubert evidentiary  standard  was
unconstitutional, their argument seems to hinge on their view
that the State's expert testimony would have been inadmissible
under the Daubert standard.
      10
       The   Fourteenth   Amendment   to   the   United   States
Constitution provides in part, "No State shall . . . deprive any
person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal
protection of the laws."   U.S. Const. amend. XIV, § 1. Article
I, Section 1 of the Wisconsin Constitution provides: "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."
This court has held that the Wisconsin Constitution's due
process clause is the substantial equivalent of the federal due
                                                     (continued)
                                             4
                                                                  Nos.    2013AP225 & 2013AP578



       ¶3     The State argues that the Daubert evidentiary standard

does not apply to Alger's and Knipfer's petitions to discharge

their Wis. Stat. ch. 980 commitments.                            The State contends that

those discharge petitions did not commence "actions" or "special

proceedings."             Instead,       the     State        argues,        those       discharge

petitions are part of the underlying Chapter 980 commitments,

which    commenced           several    years        before      the     Daubert     standard's

first date of applicability.                     The State also argues that the

legislature had a rational basis for not applying the Daubert

standard      to       the     State's    expert           witnesses         in    Alger's     and

Knipfer's Chapter 980 discharge petition trials such that no

violation of equal protection or due process occurred.

       ¶4     We      conclude     that    the        Daubert      evidentiary            standard

under Wis. Stat. § 907.02(1) does not apply to expert testimony

in Alger's and Knipfer's Wis. Stat. ch. 980 discharge petition

trials      because      their     discharge          petitions        did    not    "commence"

"actions"        or     "special       proceedings."              The     Daubert         standard

applies to "actions" or "special proceedings" commenced on or
after February 1, 2011.                  The original Chapter 980 commitments

here     began        several    years     before          the    Daubert         standard    was

adopted,      and      although        Alger's       and     Knipfer's        petitions      seek

relief from those original commitments, those filings do not

constitute       the     "commencement"          of     an    "action"        or     a   "special

process clause.    State v. West, 2011 WI 83, ¶5 n.2, 336
Wis. 2d 578, 800 N.W.2d 929 (citation omitted). This court's
interpretation is the same for the state and federal equal
protection clauses. Id. (citation omitted).


                                                 5
                                                          Nos.     2013AP225 & 2013AP578



proceeding."        We also conclude that because the legislature had

a   rational       basis   for    not   applying       the     Daubert      evidentiary

standard     to     expert     testimony       in    post-Daubert         Chapter        980

discharge petitions that seek relief from pre-Daubert Chapter

980 commitments, no violation of equal protection or due process

occurred.

                    I.     FACTUAL AND PROCEDURAL BACKGROUND

                                  A. State v. Alger

      ¶5     It     is   undisputed     that    Alger        was   deemed     to    be    a

sexually violent person and was involuntarily committed under

Wis. Stat. ch. 980 on May 10, 2005.                   He has been under Chapter

980 commitment ever since.

      ¶6     In the six years between his Chapter 980 commitment

and Wisconsin's adoption of the Daubert evidentiary standard,

Alger      filed     one   petition      for        discharge       and     much    other

correspondence with the committing court.                     The Daubert standard

was   not    a     Wisconsin     evidentiary        standard       during    any    prior

proceeding in Alger's Chapter 980 commitment.
      ¶7     On April 21, 2011, about two months after Wisconsin

adopted the Daubert evidentiary standard, Alger filed a petition

for discharge from his Chapter 980 commitment.                            The petition

relied on Alger's expert's opinion that Alger was no longer a

sexually violent person.            The State's expert opined that Alger

was still a sexually violent person and should not be discharged

from Chapter 980 commitment.

      ¶8     On July 29, 2011, Alger filed a motion in limine to
exclude the State's expert testimony at the discharge petition
                                           6
                                                            Nos.   2013AP225 & 2013AP578



trial on the ground that the testimony did not meet the newly

adopted Daubert evidentiary standard.                     The State responded and

argued that the Daubert standard did not apply because Alger's

underlying      commitment      began      before    the     Daubert       standard    was

first applicable, and that the discharge petition was not a new

"action" or "special proceeding."                   On November 18, 2011, Alger

filed a supplemental memorandum in support of his motion in

limine in which he also argued that his constitutional right to

equal protection would be violated if the Daubert standard did

not apply to the State's expert testimony in his Chapter 980

discharge petition trial.               On November 23, 2011, Alger filed

another Chapter 980 discharge petition and that petition was

merged with his previously filed discharge petition.

    ¶9      On January 30, 2012, the circuit court denied Alger's

motion     in    limine.      The     court       concluded        that    the     Daubert

evidentiary       standard    did     not    apply     to    Alger's       Chapter     980

discharge petition.          The court reasoned that Alger's discharge

petition, although filed after the Daubert standard was first
applicable, was part of the underlying Chapter 980 commitment

proceeding that began when the State filed "[a] petition for a

commitment      trial   under      [Wis.    Stat.    §]     980.02"       several    years

before the Daubert standard was even adopted.                          The court also

concluded that the failure to apply the                       Daubert       standard to

Alger's Chapter 980 discharge petition did not violate equal

protection.

    ¶10     On    August     20,    2012,       Alger's     Chapter       980    discharge
petition    was    tried     before     a    six-person        jury.        Two     expert
                                            7
                                                              Nos.    2013AP225 & 2013AP578



witnesses testified on behalf of Alger and two experts testified

on behalf of the State.              The jury found that Alger still met the

criteria for Chapter 980 commitment.                      On August 22, 2012, the

court entered an order denying Alger's Chapter 980 discharge

petition.

       ¶11   On November 19, 2013, the court of appeals affirmed

the circuit court's order denying Alger's Chapter 980 discharge

petition.

       ¶12   On December 18, 2013, Alger petitioned this court for

review, which we granted on May 23, 2014.

                                  B. State v. Knipfer

       ¶13   It     is    undisputed      that      Knipfer    was     deemed   to    be   a

sexually violent person and was involuntarily committed under

Wis. Stat. ch. 980 on                October 1, 2003.                He has been under

Chapter 980 commitment ever since.

       ¶14   In the seven and a half years between his Chapter 980

commitment and Wisconsin's adoption of the Daubert evidentiary

standard, Knipfer filed three petitions for discharge and much
other correspondence with the committing court.                              The Daubert

standard was not a Wisconsin evidentiary standard during any

prior proceeding in Knipfer's Chapter 980 commitment.

       ¶15   On May 11, 2012, more than one year after Wisconsin

adopted      the    Daubert      evidentiary          standard,       Knipfer    filed     a

petition      for        discharge    from         his   involuntary        Chapter      980

commitment.         The petition relied on Knipfer's expert's opinion

that   Knipfer      was     no   longer    a       sexually   violent     person.        The


                                               8
                                                                 Nos.    2013AP225 & 2013AP578



State's expert opined that Knipfer was still a sexually violent

person and should not be discharged from Chapter 980 commitment.

      ¶16    Knipfer argued that the Daubert evidentiary standard

applied     to    the   State's         expert    testimony        in     his    Chapter    980

discharge petition trial such that the State's expert would be

precluded        from        testifying.           He     also          argued     that     his

constitutional rights to equal protection and due process would

be violated if the Daubert standard did not apply to exclude

that expert testimony.

      ¶17    The State argued that the Daubert evidentiary standard

did   not   apply       to    expert      testimony     in       Knipfer's       Chapter    980

discharge        petition         trial    because,       like          Alger's     discharge

petition, Knipfer's discharge petition did not commence a new

"action" or "special proceeding," and Knipfer's rights to equal

protection and due process were not thereby violated.

      ¶18    On September 14, 2012, the circuit court held a bench

trial on Knipfer's Chapter 980 discharge petition.                                 The court

held that the Daubert evidentiary standard did not apply to the
State's expert testimony in the discharge petition trial because

Knipfer's discharge petition was essentially a motion within the

Chapter     980    commitment           action,     not      a     separate        action    or

proceeding.        The court also held that the failure to apply the

Daubert     standard         to   the     expert    testimony           in   the    discharge

petition trial did not violate Knipfer's equal protection or due

process rights.              On September 20, 2012, the court held that

Knipfer still met the criteria for Chapter 980 commitment and
entered an order denying Knipfer's discharge petition.
                                              9
                                                                Nos.    2013AP225 & 2013AP578



      ¶19      On December 23, 2013, the court of appeals affirmed

the     circuit       court's      order      denying          Knipfer's          Chapter       980

discharge petition.

      ¶20      On January 27, 2014, Knipfer petitioned this court for

review, which we granted on May 23, 2014.

                                       II.     ANALYSIS

                      A. Standard of Review and Principles of
                               Statutory Interpretation
      ¶21      The     interpretation         and       application          of     a     statute
present questions of law that this court reviews de novo while

benefitting        from      the   analyses        of    the    court       of    appeals       and

circuit     court.           State    v.     Ziegler,          2012    WI    73,        ¶37,    342

Wis. 2d 256,         816     N.W.2d 238      (citing       Heritage         Farms,       Inc.    v.

Markel      Ins.      Co.,    2012     WI    26,        ¶24,    339     Wis. 2d 125,            810

N.W.2d 465).          This court begins statutory interpretation 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.          "Statutory language is given its common, ordinary,

and accepted meaning, except that technical or specially-defined
words     or    phrases        are     given       their        technical         or      special

definitional meaning."               Id.    We interpret statutory language in

relation to surrounding or closely-related statutes.                                    Id., ¶46.

"Where statutory language is unambiguous, there is no need to

consult extrinsic sources of interpretation, such as legislative

history."       Id.

      ¶22      The constitutionality of a statute is also a question
of law that this court reviews de novo while benefitting from

                                              10
                                                                  Nos.    2013AP225 & 2013AP578



the analyses of the court of appeals and circuit court.                                       State

v. Smith, 2010 WI 16, ¶8, 323 Wis. 2d 377, 780 N.W.2d 90 (citing

State     v.    Weidner,     2000       WI     52,        ¶7,     235     Wis. 2d 306,          611

N.W.2d 684;       State     v.     Janssen,          219        Wis. 2d 362,           370,     580

N.W.2d 260 (1998)).          A statute is presumed constitutional.                              Id.

(citing Janssen, 219 Wis. 2d at 370).                            A party challenging a

statute's       constitutionality            bears    a    heavy        burden    to    overcome

that presumption.          Id. (citing State v. Cole, 2003 WI 112, ¶11,

264 Wis. 2d 520, 665 N.W.2d 328).                    A party challenging a statute

does    not     overcome    the     presumption             of     constitutionality             by

establishing that a statute's constitutionality is doubtful or

that a statute is probably unconstitutional.                              Id. (citing Cole,

264    Wis. 2d 520,       ¶11).         "Instead,          the     party      challenging        a

statute's       constitutionality            must    'prove        that     the    statute       is

unconstitutional       beyond       a    reasonable             doubt.'"         Id.    (quoting

Cole, 264 Wis. 2d 520, ¶11).

  B. Whether the Daubert Evidentiary Standard Applies to Alger's
           and Knipfer's Chapter 980 Discharge Petitions
       ¶23     In short, Alger and Knipfer argue that the Daubert
evidentiary standard applies to the State's expert testimony in

their Chapter 980 discharge petition trials.                              They contend that

their Chapter 980 discharge petitions "commenced" "actions" or

"special proceedings" after February 1, 2011, the first date of

the    Daubert     standard's      applicability.                  They     argue      that    the

State's      initial   petitions         for        Chapter       980     commitment          began

separate actions that concluded when the circuit courts ordered
Alger     and     Knipfer     to        be     committed          in      2005      and       2003,

                                               11
                                                            Nos.   2013AP225 & 2013AP578



respectively.       Alger and Knipfer reason that the circuit courts'

initial commitment orders were final because they had a right to

appeal    from    the   orders,    and     a    final     order    "disposes    of   the

entire matter in litigation as to one or more of the parties."

Wis. Stat. § 808.03(1).            They further contend that a committing

court's continuing administrative authority over a Wis. Stat.

ch. 980 commitment does not mean that a discharge petition is

part of the underlying commitment proceeding.                       They reason that

a committing court generally takes no action with respect to a

Chapter    980    committed   person       until      the    person    petitions     the

court.    They assert that Chapter 980 discharge proceedings are

separately governed by their own set of rules and procedures.

Alger    and     Knipfer   also     note       that   a     Chapter    980    discharge

petition must allege that the petitioner's condition has changed

since being committed.             For these reasons, Alger and Knipfer

assert that the Daubert evidentiary standard should apply to the

State's expert testimony in their Chapter 980 discharge petition

trials despite the fact that it did not apply to the initial
commitment.

    ¶24        Alger and Knipfer further argue that failing to apply

the Daubert evidentiary standard to their Chapter 980 discharge

petitions at issue results in the pre-Daubert standard applying

to every discharge petition they might file during their present

commitments,       even    those    petitions         filed    decades       after   the




                                           12
                                                      Nos.   2013AP225 & 2013AP578



Daubert standard was adopted.          They contend that the legislature

did not intend that absurd result.11

      ¶25       The State argues that the Daubert evidentiary standard

does not apply to expert testimony in Alger's and Knipfer's

Chapter 980 discharge petition trials.              The State responds that

a Chapter 980 discharge petition does not "commence" an "action"

or a "special proceeding."           Instead, according to the State, a

discharge petition seeks relief from a Chapter 980 commitment.

The   State      asserts   that   applying    the   pre-Daubert    standard    to

Chapter 980 discharge petitions filed years after the Daubert

standard was adopted would not be absurd because when a court

reviews     a    Chapter   980    discharge    petition,     it   may    consider

evidence that was admitted in a commitment hearing or prior

discharge hearing under the pre-Daubert standard.                       The State




      11
       Knipfer makes an additional argument that the Daubert
evidentiary standard should apply to expert testimony at his
Chapter 980 discharge petition trial because amendments to
procedural rules generally apply retroactively.    E.g., Trinity
Petroleum, Inc. v. Scott Oil Co., 2007 WI 88, ¶40, 302
Wis. 2d 299, 735 N.W.2d 1 ("The general, well-recognized rule in
Wisconsin jurisprudence is that 'if a statute is procedural or
remedial, rather than substantive, the statute is generally
given retroactive application.'") (quoting Gutter v. Seamandel,
103 Wis. 2d 1, 17, 308 N.W.2d 403 (1981)).        However, that
general rule is inapplicable if the amendment's text explains
when the new rule first applies.     See id., ¶¶34-39.    In the
present cases, that general rule is inapplicable because the
legislature explained that the Daubert standard would "first
apply to actions or special proceedings that are commenced on
the effective date of this subsection."       2011 Wis. Act 2,
§ 45(5).


                                       13
                                                          Nos.    2013AP225 & 2013AP578



rejects      the     notion     that    the    pre-Daubert        standard    was   so

deficient that its continued application would be absurd.

       ¶26    We    conclude     that    the    Daubert      evidentiary      standard

under Wis. Stat. § 907.02(1) does not apply to expert testimony

in Alger's and Knipfer's Chapter 980 discharge petition trials

because their Chapter 980 discharge petitions did not "commence"

"actions"      or    "special    proceedings."         Instead,       the    discharge

petitions are part of the underlying Chapter 980 commitments

that    occurred      several     years       before   the       Daubert    standard's

initial applicability on February 1, 2011.

       ¶27    In analyzing the arguments, we must first define the

relevant        words:        "commence,"        "actions,"          and      "special

proceedings."12          In     Alger,    the     court      of    appeals     defined

"commence" as "'begin; start[.]'"                 Alger, 352 Wis. 2d 145, ¶12

(quoting       New     Oxford      American        Dictionary         343     (2001)).

"Accordingly, Wis. Stat. § 907.02(1) first applies to [actions

or special proceedings] begun or started on February 1, 2011."

Id.    We agree.
       ¶28    "'An action is an ordinary proceeding in a court of

justice by which a party prosecutes another for the enforcement

or protection of a right, the redress or prevention of a wrong,

or the punishment of a public offense.'"                  Ruediger v. Sheedy, 83

Wis. 2d 109, 121, 264 N.W.2d 604 (1978) (quoting State ex rel.

Ashley v. Circuit Court for Milwaukee Cnty., 219 Wis. 38, 43,


       12
            See supra note 7.


                                          14
                                                                  Nos.   2013AP225 & 2013AP578



261 N.W. 737 (1935)).             The word "action" "refer[s] to an entire

proceeding,       not    to    one     or       more   parts      within       a    proceeding."

State ex rel. Henderson v. Raemisch, 2010 WI App 114, ¶22, 329

Wis. 2d 109,       790     N.W.2d 242.                 "The    word      'action'            in    the

Wisconsin      statutes        denotes       the      entire     controversy            at    issue."

Id.,     ¶23   (emphasis        added)          (quoting       Gowan     v.        McClure,       185

Wis. 2d 903,      912,     519    N.W.2d 692            (Ct.     App.    1994))          (quotation

marks omitted); see also id. (stating that "action" "refers to

an entire proceeding, lawsuit or controversy").                                For example, a

motion to establish paternity is not an action.                                DiBenedetto v.

Jaskolski,       2003     WI    App      70,       ¶¶25-26,        261   Wis. 2d 723,              661

N.W.2d 869.       Similarly, a probate matter is not an action.                                    See

Estate of Stoeber v. Pierce, 36 Wis. 2d 448, 452, 153 N.W.2d 599

(1967).

       ¶29 A special proceeding, like an action, is a stand-alone

proceeding that is not part of an existing case.                                        Black's Law

Dictionary 1398 (10th ed. 2014) (A special proceeding is "[a]

proceeding       that    can    be     commenced          independently            of    a    pending
action     and     from        which        a    final        order      may        be       appealed

immediately.");          Wellens        v.       Kahl      Ins.       Agency,           Inc.,      145

Wis. 2d 66,       69,    426    N.W.2d 41          (Ct.     App.      1988)        ("[A]      special

proceeding [is] one occurring entirely outside the underlying

action . . . ."); Ryder v. Soc'y Ins., 211 Wis. 2d 617, 619, 565

N.W.2d 277 (Ct. App. 1997) (citing Black's Law Dictionary 1084

(5th ed. 1979); Voss v. Stoll, 141 Wis. 267, 271, 124 N.W. 89

(1910))    ("Special          proceedings          [do]    not     include         matters        that
[are] incident to an existing action.").                              Examples of special
                                                 15
                                                                   Nos.    2013AP225 & 2013AP578



proceedings include a stand-alone proceeding for contempt or to

condemn land, Wellens, 145 Wis. 2d at 69; a non-party's motion

to intervene, id.; a voluntary assignment for the benefit of

creditors,         Wisconsin       Brick        &        Block     Corp.        v.    Vogel,        54

Wis. 2d 321, 324-25, 195 N.W.2d 664 (1972); and a proceeding to

obtain discovery of books.                 Ernst v. The Steamer "Brooklyn", 24

Wis.   616,     616-17     (1869).         These          examples        demonstrate        how     a

special      proceeding    involves         a       separate       filing       outside      of    an

action.

       ¶30    By    contrast,      the     following             are      not   deemed       to    be

special      proceedings:      a    motion           for    costs      and      attorney         fees,

Ryder, 211 Wis. 2d at 619; a motion to vacate a judgment on the

ground of excusable neglect, Wellens, 145 Wis. 2d at 70; and a

party's motion to make a non-party into a party.                                           State v.

Wisconsin Tel. Co., 134 Wis. 335, 341, 113 N.W. 944 (1907).

Similarly, a motion for postconviction relief "is a part of the

original criminal action," and "is not a separate proceeding."

Wis.   Stat.       § 974.06(2).          All        of     these    examples         are    neither
actions nor special proceedings but rather, involve a filing

made within an action.

       ¶31    In light of the foregoing definitions and examples,

Alger's and Knipfer's Chapter 980 discharge petitions do not

"commence" an "action" or a "special proceeding" because the

discharge      petitions       could        not          exist     without           the    initial

commitments and are "a part of" the initial commitments.                                     Hence,

even though the requests for discharge are seeking relief from
commitments,        the   requests       are         necessarily           dependent        on    and
                                                16
                                                           Nos.   2013AP225 & 2013AP578



tethered to the original commitments.                    A discharge petition does

not "start" or "begin" an "action" or a "special proceeding" but

rather, it is more akin to a motion within an existing matter.

A discharge proceeding is "incident to an existing action" and

does not stand alone or exist "entirely outside the original

action."     See Ryder, 211 Wis. 2d at 619; Wellens, 145 Wis. 2d at

69.     Instead, Alger's and Knipfer's discharge petitions are a

part    of   the    "entire       controversy       at    issue,"    the    underlying

Chapter 980 commitments.             See Henderson, 329 Wis. 2d 109, ¶23.

The    analogy     between    a    Chapter    980    discharge       petition     and   a

motion for postconviction relief is particularly apt as each

seeks relief from a final order without directly challenging the

final    order.       See    Wis.    Stat.    § 974.06(1),          (2);   Wis.     Stat.

§ 980.09(1).        A Chapter 980 discharge petition, like a motion

for postconviction relief, does not "commence" an "action" or a

"special proceeding."

       ¶32   Stated differently, a Chapter 980 discharge petition

is necessarily tied to the underlying petition for commitment
and commitment order in multiple ways.                      Because a Chapter 980

discharge petition seeks discharge from commitment, a Chapter

980     discharge    petition       cannot     exist       unless     a    person    was

committed in a Chapter 980 action.              See State v. Arends, 2010 WI

46, ¶15, 325 Wis. 2d 1, 784 N.W.2d 513 ("If the State wishes to

commit a sexually violent offender, it must file a [commitment]

petition . . . .").          A valid Chapter 980 commitment order cannot

otherwise be terminated without a court order discharging that
person from commitment; such discharge orders most often result
                                         17
                                                               Nos.    2013AP225 & 2013AP578



from a discharge petition and trial.                        See Wis. Stat. §§ 980.06,

980.09; Arends, 325 Wis. 2d 1, ¶¶17, 33 n.19.                          Rather than being

a discrete action or proceeding that ends with a commitment

order, a Chapter 980 commitment action is an ongoing process

that    potentially           extends    far     beyond      the     original   commitment

order.

       ¶33        Further, the Chapter 980 discharge petition process

necessarily relates back to the prior proceedings in the initial

court file.            For example, a Chapter 980 discharge petition must

allege facts that suggest that the petitioner'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," such

that he or she is no longer a sexually violent person.                                  Wis.

Stat. § 980.09(1) (2013-14) (emphases added).                           When reviewing a

Chapter          980   discharge      petition,       a     "court    may    consider    the

record, including evidence introduced at the initial commitment
trial or the most recent trial on a petition for discharge,

[and] any current or past [annual reexamination] reports filed

under       s.    980.07 . . . ."13            Wis.   Stat.     § 980.09(2)      (2013-14)

(emphases added).

       13
       Every 12 months after a person has been committed under
Wis. Stat.    ch. 980, the Department of Health Services
("Department") must reexamine the person and make a report of
the reexamination.   Wis. Stat. § 980.07(1), (2).    During the
annual reexamination, the Department must also make a report on
the person's treatment progress.   Wis. Stat. § 980.07(4).   The
                                                     (continued)
                                               18
                                                             Nos.    2013AP225 & 2013AP578



      ¶34     Moreover, the court that originally committed a person

under      Chapter    980    retains   administrative             authority      over    that

person      during    the    period    of   commitment.             For     example,      the

committing court may order the committed person to be reexamined

at any time.           Wis. Stat. § 980.07(3).                The committing court

receives copies of the Department of Health Services' annual

reexamination         report    and    progress        treatment       report       on    the

committed person.14            See    Wis. Stat. § 980.07(6)(a) (2013-14).

Every      petition    for     supervised    release         or     discharge      must    be

submitted to the committing court.                      Wis. Stat. §§ 980.08(1),

980.09(1).       After receiving a petition for supervised release,

the     committing      court     appoints       an     expert        to     examine      the

petitioner and holds a hearing on the petition.                                  Wis. Stat.

§ 980.08(3)(a),        (4)(a)    (2013-14).            The   committing          court   also

reviews      a   discharge       petition        and     oversees          any    necessary

discharge hearing or trial.                 § 980.09(1), (2), (3).                  Each of

these proceedings is part and parcel of the initial Chapter 980

action rather than the commencement of an action or a special
proceeding.

      ¶35     The foregoing discussion demonstrates that a Chapter

980 discharge petition does not "commence" an "action" or a


Department must submit each reexamination report and treatment
progress   report to   the  committing  court.     Wis.  Stat.
§ 980.07(6)(a) (2013-14). The committing court may order a
reexamination at any time while the person is committed.
§ 980.07(3).
      14
           See supra note 13 for a discussion of these reports.


                                            19
                                                                  Nos.   2013AP225 & 2013AP578



"special proceeding," but rather, it is more akin to a motion or

petition    in     an   existing         action.             A    Chapter    980       discharge

petition    does      not    seek    relief          independently          of   the     "entire

controversy" of the underlying commitment.                          Therefore, a Chapter

980   discharge       petition      is    part        of    the    underlying         commitment

action    and    does       not   "commence"           an     "action"      or     a    "special

proceeding."          See    Henderson,         329        Wis. 2d 109,      ¶23       (The   word

"action"     "refers         to     an      entire           proceeding,         lawsuit       or

controversy."); Black's Law Dictionary 1398 (10th ed. 2014) (A

special proceeding "can be commenced independently of a pending

action . . . .").           Stated differently, a Chapter 980 discharge

petition is neither a separate "action" nor is it a "special

proceeding" because it does not "occur[] entirely outside the

underlying [Chapter 980] action."                          See Wellens, 145 Wis. 2d at

69.

      ¶36   We also disagree with Alger and Knipfer that failing

to apply the Daubert evidentiary standard to the State's expert

testimony in their Chapter 980 discharge petition trials is an
absurd result that the legislature did not intend.                                    First, the

plain language of 2011 Wisconsin Act 2, § 45(5) states that the

Daubert     standard        first        applies        to       "actions"       or     "special

proceedings" "commenced" on February 1, 2011.                             Second, the pre-

Daubert     standard        was   not      so        deficient      that     its       continued

application      to     Alger's     and     Knipfer's             Chapter    980       discharge

petition trials would be absurd.                       Alger and Knipfer opine that

the Daubert standard is an entirely new and higher standard for
expert opinions to be admissible.                     If it is as Alger and Knipfer
                                                20
                                                           Nos.   2013AP225 & 2013AP578



suggest applying the Daubert standard could inject significant

confusion and difficulty in review of the original Chapter 980

commitment        because   it       would    confound      competing       standards.

Specifically, the post-Daubert experts would be reviewing, in

part, the pre-Daubert expert opinions to render an opinion as to

whether the committed person's condition has changed such that

he or she is no longer a sexually violent person.

      ¶37    The     reality    is    that    this   kind    of    expert    testimony

offered at a Chapter 980 hearing or trial may be admissible

regardless of which standard applies.                      See Fed. R. Evid. 702

advisory committee's notes (2000 amendments) ("A review of the

caselaw      after    Daubert    shows       that    the    rejection       of   expert

testimony is the exception rather than the rule.                           Daubert did

not   work    a    'seachange        over    federal   evidence       law . . . .'")

(quoting     United     States       v.   14.38    Acres    of    Land    Situated   in

Leflore Cnty., Miss., 80 F.3d 1074, 1078 (5th Cir. 1996)).                           For

example, the testimony offered in the cases at issue is from

licensed psychologists who hold doctoral degrees.                           Even pre-
Daubert, circuit courts served a gate-keeping function.                              The

pre-Daubert standard required that (1) expert testimony assist

the trier of fact; (2) expert testimony be based on "scientific,

technical, or other specialized knowledge"; and (3) an expert be

qualified      "by     knowledge,         skill,     experience,         training,   or

education."        Wis. Stat. § 907.02 (2009-10).                 Post-Daubert, the

expert testimony at issue would be subject to an additional

"reliability" component.              But a hearing is not always required
for expert testimony to be admitted under the Daubert standard.
                                             21
                                                     Nos.   2013AP225 & 2013AP578



Daniel D. Blinka, The Daubert Standard in Wisconsin: A Primer,

Wis. Lawyer, Mar. 2011 (citing United States v. Pena, 586 F.3d

105, 110-11 (1st Cir. 2009)).           Contrary to Alger's and Knipfer's

suggestion, the State's expert testimony is not the kind of

"junk science" that is rejected by the Daubert standard.

    ¶38     Accordingly, we conclude that the Daubert evidentiary

standard in Wis. Stat. § 907.02(1) does not apply to the expert

testimony    in    Alger's    and     Knipfer's     Chapter    980    discharge

petition trials.

        C. Whether the Failure to Apply the Daubert Evidentiary
        Standard to Alger's and Knipfer's Chapter 980 Discharge
          Petitions Violates Equal Protection and Due Process
    ¶39     To determine the merits of an equal protection claim

or a substantive due process claim,15 we must first determine

which    level    of     judicial    scrutiny      applies.        Smith,      323

Wis. 2d 377,      ¶12.       If   the   challenged     legislation      neither

implicates   a    fundamental       right    nor   discriminates     against    a

    15
       Knipfer alleges violations of substantive and procedural
due process. "Under a procedural due process analysis, we must
determine first whether there exists a liberty interest of which
the individual has been deprived, and if so, whether the
procedures   used   to  deprive   that   liberty   interest  were
constitutionally sufficient."      West, 336 Wis. 2d 578, ¶83
(citing Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460
(1989)). Although Knipfer has a protectable liberty interest in
freedom from bodily restraint, id., ¶85, he has no protectable
interest in the Daubert evidentiary standard.       See Brown v.
Watters, 599 F.3d 602, 616 (7th Cir. 2010).        Therefore, the
failure to apply the Daubert standard to Knipfer's Chapter 980
discharge petition does not violate his right to procedural due
process.   See West, 336 Wis. 2d 578, ¶89.    Alger does not rely
on due process at all. Accordingly, our analysis will focus on
substantive due process and equal protection.


                                        22
                                                    Nos.   2013AP225 & 2013AP578



suspect class, we apply rational basis review rather than strict

scrutiny to the legislation.16              Id.   A law subject to strict

scrutiny will be upheld "only if narrowly tailored 'to serve a

compelling state interest.'"           State v. Mary F.-R., 2013 WI 92,

¶35, 351 Wis. 2d 273, 839 N.W.2d 581 (quoting City of Cleburne,

Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)).                     We

will uphold legislation under rational basis review "unless it

is 'patently arbitrary' and bears no rational relationship to a

legitimate government interest."              Smith, 323 Wis. 2d 377, ¶12

(quoting State v. McManus, 152 Wis. 2d 113, 131, 447 N.W.2d 654

(1989)) (quotation marks omitted).

               1. Which Level of Judicial Scrutiny Applies?

    ¶40    Knipfer17 argues that strict scrutiny applies to the

failure   to   apply   the   Daubert    evidentiary    standard     to   expert

testimony in his Chapter 980 discharge petition trial because


    16
        A law that implicates a fundamental right is not
necessarily subject to strict scrutiny. Whether strict scrutiny
applies sometimes depends on the degree to which the law burdens
a fundamental right. See Burdick v. Takushi, 504 U.S. 428, 434
(1992) (strict scrutiny applies to "'severe' restrictions" on
the fundamental right to vote, and rational basis review applies
to "'reasonable, nondiscriminatory restrictions'" on that right)
(citations omitted); Zablocki v. Redhail, 434 U.S. 374, 386-88
(1978) (rational basis review applies to "reasonable regulations
that do not significantly interfere with" the fundamental right
to   marry,  and   strict  scrutiny   applies  to   a  law   that
"significantly interferes" with that right) (citations omitted).
    17
       The court of appeals held that Alger conceded that
rational basis review applies. See Alger, 352 Wis. 2d 145, ¶25.
Our strict scrutiny and rational basis analysis applies to Alger
and Knipfer alike.


                                       23
                                                                   Nos.    2013AP225 & 2013AP578



Chapter        980     commitment            implicates     his    fundamental          right        to

freedom from bodily restraint.                          Knipfer relies on cases where

courts "assumed, without deciding" that strict scrutiny applied

to     claims         challenging         the     constitutionality            of     aspects        of

Chapter 980 commitment.                   See State v. West, 2011 WI 83, ¶91, 336

Wis. 2d 578,           800       N.W.2d 929;       State    v.    Post,     197      Wis. 2d 279,

321, 541 N.W.2d 115 (1995); State v. Williams, 2001 WI App 263,

¶11,     249        Wis. 2d 1,         637    N.W.2d 791.        Knipfer     also      relies        on

Foucha         v.     Louisiana,         where     the     Supreme      Court        stated        that

involuntary            civil          commitment         implicates        an        individual's

"fundamental" right to freedom from bodily restraint.                                   Foucha v.

Louisiana, 504 U.S. 71, 80 (1992).                          Knipfer does not argue that

a suspect class has been discriminated against.

         ¶41    The State argues that rational basis review applies

because the failure to apply the Daubert evidentiary standard to

expert     testimony             in    Knipfer's    Chapter       980     discharge         petition

trial does not implicate a fundamental right or discriminate

against a suspect class.                     The State relies on Mary F.-R., where
we applied rational basis review to a challenge against the use

of   a    non-unanimous               six-person     jury    in    a    Wis.      Stat.      ch.     51

commitment hearing.

         ¶42    We     conclude         that     rational     basis       review      applies        to

Alger's and Knipfer's constitutional claims because the failure

to apply the Daubert evidentiary standard to expert testimony in

a Chapter 980 discharge                      petition trial        does not implicate a

fundamental right.                    Our decision in Mary F.-R. is instructive.
In     that         case,    a    circuit        court     ordered      Mary        F.-R.     to     be
                                                   24
                                                                    Nos.    2013AP225 & 2013AP578



involuntarily committed under Wis. Stat. § 51.20 for treatment

for her mental illness after a six-person jury unanimously found

that    she     qualified       for       such    commitment.               Mary      F.-R.,      351

Wis. 2d 273, ¶¶2, 6.             Mary F.-R. appealed the commitment order.

Before    this      court,     she    argued          that    § 51.20(11)           violated      her

right    to    equal     protection         because          it     authorized        Chapter     51

commitment      based     on    a    six-person          non-unanimous              jury   verdict.

Id., ¶2.        Her equal protection claim rested on the fact that

potential      Wis.     Stat.       ch.    51    committed           persons        were    treated

differently than potential Wis. Stat. ch. 980 committed persons

because the latter persons had a statutory right to a unanimous

12-person jury at their commitment hearings.                                Id., ¶¶1-2.          Mary

F.-R. argued that this court should apply strict scrutiny to

§ 51.20(11)         because      Chapter         51      commitment             implicates        her

fundamental right to freedom from bodily restraint.                                  Id., ¶36.

       ¶43     We held that rational basis review was the appropriate

level    of    judicial      scrutiny.            Id.,       ¶38.      We       recognized       that

"liberty is a fundamental right," id. (citing Foucha, 504 U.S.
at   86),     and     "involuntary        civil        commitment          is   a    'significant

deprivation of liberty.'"                 Id. (quoting Addington v. Texas, 441

U.S. 418, 425 (1979)).                However, rational basis review applied

because       "Mary    F.–R.'s       challenge         relate[d]           only     to     the   jury

procedures available for initial commitment hearings under Wis.

Stat. § 51.20 and not to the use of involuntary commitments in

general."       Id.     "There is no right to a 12–person jury in civil

proceedings such as here."                  Id. (citing State v. Huebner, 2000
WI 59, ¶¶17-19, 235 Wis. 2d 486, 611 N.W.2d 727).                                        Mary F.-R.
                                                 25
                                                                    Nos.   2013AP225 & 2013AP578



did   not    argue      that    the     challenged            legislation         discriminated

against a suspect class.               Id.

      ¶44    Like in Mary F.-R., rational basis review applies in

the present cases because the challenged legislation does not

implicate the fundamental right to freedom from bodily restraint

and there is no fundamental right to a particular evidentiary

standard.     Like Mary F.-R., Knipfer does not challenge "the use

of involuntary commitments in general."                             Id.     Instead, Knipfer

challenges        the    unavailability                of     the     Daubert        evidentiary

standard in his Chapter 980 discharge petition trial. Knipfer

has   no    constitutional        right          to    have    the     Daubert       evidentiary

standard apply.          Brown v. Watters, 599 F.3d 602, 616 (7th Cir.

2010).      Knipfer      argues        that       strict      scrutiny       applies    because

"evidentiary       standards . . . directly                    impact       the      substantive

nature of the evidence that can ultimately be submitted and

considered by the finder of fact."                            If Knipfer were correct,

then every evidentiary ruling in a Chapter 980 hearing or trial

could be subject to strict scrutiny.                            Precedent and the fact
that deference is due to a circuit court's evidentiary ruling

would militate otherwise.                   See State v. Mark, 2006 WI 78, ¶35,

292 Wis. 2d 1, 718 N.W.2d 90 (stating that a circuit court's

evidentiary       ruling,       even        in     a    Chapter       980    proceeding,      is

generally     reviewed         under    a        deferential        standard).         Although

Chapter     980    involuntary          commitment            implicates       the    right    to

freedom from bodily restraint, the availability of the Daubert

evidentiary       standard       in     a     Chapter         980    proceeding       does    not
implicate that right so as to trigger strict scrutiny.                                 See Mary
                                                  26
                                                             Nos.   2013AP225 & 2013AP578



F.-R., 351 Wis. 2d 273, ¶38.                There is no right to a particular

evidentiary ruling in a Chapter 980 discharge petition trial.

    ¶45     Knipfer's reasons for distinguishing                      Mary F.-R.         are

unpersuasive.             First,      he     argues         that     Mary        F.-R.    is

distinguishable because the Daubert evidentiary standard, unlike

a six-person, non-unanimous jury, directly impacts the right to

physical liberty that is at stake in a commitment proceeding.

He contends that the evidence considered by a jury more directly

impacts the outcome of a commitment proceeding than the size or

unanimity        of   a   jury      does.        We        reject    this    basis       for

distinguishing Mary F.-R.            Knipfer does not persuade us that the

pre-Daubert standard more directly impacts his liberty interest

in a discharge trial than Mary F.-R. being tried by a non-

unanimous,       six-person      jury   in    an   original         commitment      trial.

Indeed, the jury standard at issue in Mary F.-R. is more closely

related     to    the     liberty    interest         at    stake    in     an    original

commitment proceeding than in a discharge trial.                          Moreover, that

jury standard, under Wis. Stat. § 51.20(11), applies only to
commitment proceedings brought under Wis. Stat. ch. 51, whereas

the Daubert standard is a rule of evidence which is generally

applicable in all proceedings, whether civil or criminal.

    ¶46     Knipfer's other ground for distinguishing Mary F.-R.

and applying strict scrutiny is that the law at issue in Mary

F.-R. differentiated between two groups that were not similarly

situated (Chapter 51 committed persons and Chapter 980 committed

persons), whereas the law at issue here differentiates between
two groups that are similarly situated (persons whose Chapter
                                            27
                                                                  Nos.    2013AP225 & 2013AP578



980   commitment        was    initiated        before          February        1,    2011,     and

persons whose Chapter 980 commitment was initiated on or after

that date).          We also disagree with this argument for applying

strict   scrutiny        because       strict       scrutiny          does      not     apply   if

neither a fundamental right is implicated nor a suspect class is

discriminated against.                See   Smith,        323     Wis. 2d 377, ¶12.               A

court    determines           whether       differently-treated                      groups     are

similarly      situated        and    hence,        whether        equal        protection       is

violated, by applying a particular level of judicial scrutiny.

See Plyler v. Doe, 457 U.S. 202, 216-18 (1982); Mary F.-R., 351

Wis. 2d 273,      ¶55       ("'[W]hen       properly           understood        and     applied,

"similarly situated" is another way of stating the fundamental

values   of    the     Equal       Protection       Clause.'")            (quoting       Giovanna

Shay,    Similarly          Situated,    18     Geo.       Mason         L.    Rev.     581,    615

(2011));      Smith,    323     Wis. 2d 377,             ¶15    ("The         equal    protection

clause . . . 'is designed to assure that those who are similarly

situated      will     be     treated    similarly.'")                (quoting        Treiber    v.

Knoll, 135 Wis. 2d 58, 68, 398 N.W.2d 756 (1987)).
      ¶47     Knipfer's        reliance       on     cases        where        courts     applied

strict   scrutiny       in     the    Chapter       980        context        requires   further

explanation.           The    cases     relied       upon        by      Knipfer      challenged

procedural     aspects        of     Chapter       980    commitment           which     directly

impacted one's right to freedom from bodily restraint, whereas

the application of a particular rule of evidence is much further

removed from that direct impact on restraint of freedom.                                        See

West, 336 Wis. 2d 578, ¶5 (challenging law that placed burden of
proof on committed person seeking supervised release); Post, 197
                                              28
                                                           Nos.   2013AP225 & 2013AP578



Wis. 2d at     292-93      (challenging         Chapter      980        commitment    in

general);      Williams,        249      Wis. 2d 1,          ¶¶2-3        (challenging

prohibition on filing a petition for supervised release within

first 18 months of commitment).                 Further, the courts in those

cases "assumed, without deciding" that strict scrutiny was the

appropriate        level   of    judicial       scrutiny          for    those     equal

protection claims.         See West, 336 Wis. 2d 578, ¶¶91-99; Post,

197 Wis. 2d at 321; Williams, 249 Wis. 2d 1, ¶11.18                              Such an

assumption is hardly a conclusion that strict scrutiny is the

applicable    standard     in   the     cases    at    issue.       In    the    present

cases, rational basis review is appropriate because the Daubert

standard is a generally applicable rule of evidence that does

not   directly       impact     one's    right        to   freedom        from    bodily

restraint.     See Mary F.-R., 351 Wis. 2d 273, ¶38.

      ¶48    In sum, we hold that rational basis review applies to

Knipfer's equal protection and substantive due process claims

and to Alger's equal protection claim.

              2. Whether Rational Basis Review Is Satisfied
      ¶49    Our    analysis    applying      rational      basis       review   is   the

same for Knipfer's substantive due process claim as for Alger's

      18
       Knipfer asserts that this court in State v. Post held,
rather than assumed without deciding, that strict scrutiny
applied to a substantive due process claim challenging ch. 980
commitment in general. See State v. Post, 197 Wis. 2d 279, 302,
541 N.W.2d 115 (1995). However, even if that interpretation of
Post is correct, strict scrutiny does not apply in the present
cases because the failure to apply the Daubert evidentiary
standard to a Chapter 980 discharge petition does not directly
impact a fundamental right.


                                         29
                                                               Nos.    2013AP225 & 2013AP578



and   Knipfer's       equal        protection         claims.           See     Smith,       323

Wis. 2d 377, ¶¶12, 16.              To resolve the substantive due process

and   equal       protection       claims,       we     must     determine       whether       a

legitimate governmental interest is rationally furthered by the

failure to apply the Daubert evidentiary standard to Alger's and

Knipfer's Chapter 980 discharge petitions.                          See id., ¶12.

      ¶50    Rational        basis      review          is      deferential           to     the

legislature.        Id., ¶17.        A legislative classification satisfies

rational basis review if "'any reasonably conceivable state of

facts . . . could           provide         a         rational         basis         for     the

classification.'"           Mary     F.-R.,       351    Wis. 2d 273,          ¶52    (quoting

F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993)).                                    The

legislature need not have actually based its decision on the

reason     conceived    by     a    reviewing         court.          Id.     (citing      Beach

Commc'ns, 508 U.S. at 315).                 Alger and Knipfer bear the "high

burden"     of    proving     that    the       failure        to     apply    the        Daubert

evidentiary standard to expert testimony in their Chapter 980

discharge        petition      trials        is       unconstitutional            beyond       a
reasonable doubt.       Smith, 323 Wis. 2d 377, ¶18.

      ¶51    Alger and Knipfer19 argue that the failure to apply the

Daubert     evidentiary        standard         to     expert       testimony        in     their

Chapter 980 discharge petition trials violates equal protection

because      it     arbitrarily         differentiates                between        discharge


      19
       Although Knipfer argues that we should apply strict
scrutiny, he also argues that he should prevail even if we apply
rational basis review.


                                             30
                                                             Nos.    2013AP225 & 2013AP578



proceedings        based    upon        when     their       underlying           commitment

proceedings began.              Alger and Knipfer provide a hypothetical

scenario      in   which    the     State       files    a    Wis.        Stat.    ch.     980

commitment petition against Person A in January 2011 and files

one against Person B in February 2011.                    Under this hypothetical

scenario, both of these persons are committed and have discharge

proceedings at the same time as each other.                          Alger and Knipfer

argue that it would be unconstitutionally arbitrary to apply the

Daubert standard to the discharge proceedings of Person B while

applying the pre-Daubert standard to the discharge proceedings

of Person A.

       ¶52    In his brief, "Alger concedes the state did have a

legitimate interest in seeking to prevent the revision of [Wis.

Stat. §] 907.02 from applying 'midstream' to litigation that was

already pending (or even concluded) at the time this legislation

was enacted."        Alger argues that, in such litigation, attorneys

would have prepared expert testimony in reliance on the pre-

Daubert standard that was then in place.                       Because applying the
Daubert      standard      to    such     litigation         would     be    unfair        and

disruptive and would waste judicial resources, Alger concedes

that   the    legislature        lawfully       prohibited      application          of    the

Daubert standard to such litigation.                    Similarly, Knipfer admits

that   "the    legislature        might   have     had   a    valid       reason     not    to

extend the Daubert standard to pending litigation insofar as

litigants      may   have       already        relied    upon       the     [pre-Daubert]

standard in filing pleadings and preparing for trial."


                                            31
                                                               Nos.    2013AP225 & 2013AP578



     ¶53       However, Alger and Knipfer contend, the reasons for

refusing to apply the Daubert evidentiary standard "midstream"

to   pending      litigation       do     not      apply       to    their    Chapter       980

discharge      petition    trials.            Alger      and    Knipfer       reason    that,

because they filed their discharge petitions after the Daubert

standard's first date of applicability, they and the State did

not prepare any expert testimony for their discharge petition

trials    in    reliance     on    the    pre-Daubert           standard.          Alger     and

Knipfer therefore argue that the failure to apply the Daubert

standard to expert testimony in their discharge petition trials

is not rationally related to achieving a legitimate governmental

interest.

     ¶54       The State argues that the failure to apply the Daubert

evidentiary       standard        to     expert       testimony        in     Alger's       and

Knipfer's       Chapter    980         discharge        petition       trials       satisfies

rational    basis     review      and    is     therefore       constitutional.             The

State argues that the legislature had to draw the line somewhere

and the line it drew has a rational basis.                             The State reasons
that the legislature's application of the Daubert standard to

"actions"       and   "special         proceedings"          commenced       on    or      after

February    1,    2011,    promoted       efficiency           and    predictability        and

avoided    difficulties        involved         with     a     rule    that       allows    for

retroactive application of the Daubert standard.

     ¶55       We hold that the legislature's decision to apply the

Daubert        evidentiary        standard         to        "actions"       or     "special

proceedings" "commenced" on or after February 1, 2011, satisfies
rational basis review and therefore is constitutional.                                  Alger
                                              32
                                                                 Nos.    2013AP225 & 2013AP578



correctly      concedes        that      ensuring          the     fair        treatment         of

litigants, avoiding the disruption of pending litigation, and

preserving       judicial       resources           are     legitimate              governmental

interests.       See State ex rel. Schatz v. McCaughtry, 2003 WI 80,

¶43, 263 Wis. 2d 83, 664 N.W.2d 596 ("The State has a legitimate

interest in . . . preserving judicial resources.") (citing State

ex rel. Khan v. Sullivan, 2000 WI App 109, ¶10, 235 Wis. 2d 260,

613 N.W.2d 203).         See also supra ¶¶36-37 (noting that applying

the    Daubert    standard      to      Alger's       and       Knipfer's           Chapter      980

discharge petitions could have caused confusion and difficulty).

       ¶56    Further,    the      legislature's            decision           to    apply       the

Daubert       evidentiary       standard            to      "actions"           or        "special

proceedings"      "commenced"          on   or      after       February        1,       2011,   is

rationally related to achieving those legitimate governmental

interests.       The legislature could have rationally believed that

retroactively      applying        a    new      rule      of     evidence          to    pending

litigation       would    be     unfair        to        litigants,        waste          judicial

resources, and disrupt that litigation by resulting in motions,
appeals, and retrials.             See Martin v. Richards, 192 Wis. 2d 156,

201,    531      N.W.2d 70      (1995)         (explaining              that        "retroactive

legislation presents unique constitutional problems in that it

often     unsettles       important           rights"           and      may         result       in

"unfairness").

       ¶57    When determining which cases will be subject to a new

rule    of    evidence,      the       legislature         is     not     constitutionally

required to differentiate between various types of cases and
retroactively apply the new rule to some types of cases and not
                                              33
                                                             Nos.    2013AP225 & 2013AP578



others.        Instead,    the       legislature      may    differentiate          between

cases that were commenced before and after a particular date and

may apply the new rule of evidence to only cases that were

commenced      after    that    date.        See    Sperry    &     Hutchinson         Co.   v.

Rhodes, 220 U.S. 502, 505 (1911) ("[T]he 14th Amendment does not

forbid statutes and statutory changes to have a beginning, and

thus to discriminate between the rights of an earlier and later

time."); Plankinton Packing Co. v. Wis. Tax Comm'n, 198 Wis.

368, 373, 224 N.W. 121 (1929) (upholding a law that applied a

higher    interest      rate    to    tax    deficiencies          that    were    assessed

before 1927 than to those assessed in or after 1927); Montgomery

Ward & Co. v. DOR, 142 Wis. 2d 772, 778-82, 419 N.W.2d 348 (Ct.

App. 1987) (upholding a law that applied a higher interest rate

to tax deficiencies that were assessed on or after August 1,

1981, than to tax deficiencies that were assessed before that

date).       Therefore,        in    the    present       cases,    the    legislature's

decision to apply the Daubert evidentiary standard to "actions"

and   "special       proceedings"          that    were    commenced       on     or    after
February 1, 2011, survives constitutional scrutiny.                               See Banas

v.    State,    34     Wis. 2d 468,         473,    149    N.W.2d 571       (1967)       (The

legislature has the "power to make reasonable rules for limiting

the admission of evidence and to make valid classifications of

people for that purpose.").

       ¶58   We    also   conclude          that   application        of    the        Daubert

evidentiary       standard     to    these    Chapter       980     discharge      petition

trials is a "midstream" application of that standard to pending
litigation.       Alger's and Knipfer's contrary conclusion is based
                                             34
                                                       Nos.    2013AP225 & 2013AP578



on the mistaken premise that the only expert testimony relevant

to their Chapter 980 discharge petitions is the expert testimony

proffered     at    their    discharge     petition   trials.        But   we     have

already concluded that a Chapter 980 discharge petition is part

of a pending commitment action.                 As we explained earlier, when

reviewing     a    Chapter    980    discharge      petition,    a    court     often

considers expert testimony from a prior discharge proceeding or

the initial commitment trial.              See Wis. Stat. § 980.09(1), (2).

The State's experts at Alger's and Knipfer's original Chapter

980    commitment        trials     were    not    subject     to    the      Daubert

evidentiary standard.         The Daubert standard did not apply to any

previous proceeding in Alger's and Knipfer's cases.                    However, a

Chapter 980 discharge petition requires that an expert render an

opinion     based    in     part    upon    the   previous     determination       of

continued commitment.             The fact that a petition for discharge

requires an expert to evaluate and review prior expert opinions

and whether commitment is still warranted, militates in favor

of, not against, having the same legal standard apply.                     Thus, we
reject Alger's and Knipfer's contention that their Chapter 980

discharge petitions were not part of a pending action that could

be    disrupted     by    "midstream"      application    of    a    new   rule    of

evidence.20       Moreover, as was previously discussed, this kind of

       20
       Even if a Chapter 980 commitment is unlike other types of
pending litigation that could be disrupted by "midstream"
application of a new rule of evidence, the legislature's
decision to apply the Daubert evidentiary standard to "actions"
or "special proceedings" commenced on or after February 1, 2011,
is still constitutional under rational basis review.           A
                                                     (continued)
                                           35
                                                                Nos.   2013AP225 & 2013AP578



expert   testimony      in    a    Chapter        980    case    will    often       meet   the

Daubert standard even though it was admitted under the                                      pre-

Daubert standard.       See supra ¶37.

       ¶59   Our     rejection           of     Alger's         and     Knipfer's       equal

protection     challenges          and    Knipfer's        substantive         due    process

challenge is even supported by cases in which Wisconsin courts

upheld changes to Chapter 980 procedures under strict scrutiny.

See West, 336 Wis. 2d 578, ¶¶98-99 (upholding a statute that

placed the burden of proof on a Chapter 980 committed person who

petitions for supervised release); Williams, 249 Wis. 2d 1, ¶20

(upholding     an    18-month           waiting     period       for    petitioning          for

supervised release).          We conclude that the failure to apply the

Daubert evidentiary standard to expert testimony at Alger's and

Knipfer's     Chapter        980        discharge       petition       trials     satisfies

rational basis review.             Further, the petitioners in Williams and

West   challenged     unique        procedures          applicable      to    Chapter       980,

whereas Alger's and Knipfer's challenges center on a generally

applicable rule of evidence.
       ¶60 In sum, we hold that the failure to apply the Daubert

evidentiary        standard        to     expert        testimony       in    Alger's       and

Knipfer's     Chapter        980        discharge       petition       trials        satisfies

rational     basis    review,       and       therefore     survives         constitutional

scrutiny.


legislative enactment can be rationally related to achieving a
legitimate governmental interest even if it is overinclusive.
See Vance v. Bradley, 440 U.S. 93, 108 (1979).


                                               36
                                                              Nos.   2013AP225 & 2013AP578



                                     III. CONCLUSION

       ¶61   We       conclude     that   the       Daubert      evidentiary      standard

under Wis. Stat. § 907.02(1) does not apply to expert testimony

in Alger's and Knipfer's Wis. Stat. ch. 980 discharge petition

trials    because        their     discharge     petitions        did   not    "commence"

"actions"        or     "special    proceedings."             The    Daubert      standard

applies to "actions" or "special proceedings" commenced on or

after February 1, 2011.               The original Chapter 980 commitments

here     began        several    years    before       the    Daubert     standard     was

adopted,     and       although     Alger's      and       Knipfer's    petitions      seek

relief from those original commitments, those filings do not

constitute       the     "commencement"        of     an    "action"    or    a   "special

proceeding."           We also conclude that because the legislature had

a   rational      basis     for     not   applying         the    Daubert     evidentiary

standard     to        expert    testimony       in    post-Daubert          Chapter   980

discharge petitions that seek relief from pre-Daubert Chapter

980 commitments, no violation of equal protection or due process

occurred.
       By the Court.—The decisions of the court of appeals are

affirmed.




                                            37
                                                    No.   2013AP225 & 2013AP578.ssa


     ¶62    SHIRLEY       S.    ABRAHAMSON,    C.J.       (dissenting).        The

majority disregards its own           reasoning to reach a result its

opinion does not support.

     ¶63    It    might    be   difficult     to    determine    in   some   cases

whether    a     particular     proceeding     is    a    special     proceeding.1

Nevertheless, when I apply the majority opinion's definition of

a "special proceeding" to the instant cases, the most legally

sound conclusion is that proceedings on a Chapter 980 petition

for discharge are special proceedings.

     ¶64    Wisconsin Stat. § 907.02(1) (2011-12) sets forth the

Daubert standard for the admissibility of expert testimony.2                    In

enacting this statute, the legislature decreed that the Daubert

standard first applies "to actions or special proceedings that

are commenced on the effective date of this subsection [February

1, 2011]."3

     ¶65    Michael Alger and Ronald Knipfer, hereinafter referred

to as the petitioners, filed Chapter 980 discharge petitions

after February 1, 2011.             Thus, whether the          Daubert   standard
applies to their discharge proceedings turns on whether these

petitions "commenced" "actions" or "special proceedings" under

     1
       See Ernst v. The Steamer "Brooklyn", 24 Wis. 616, 617
(1869) ("It may not be easy in all cases to determine what is a
special proceeding.").
     2
       See Daubert v. Merrell           Dow    Pharmaceuticals,        Inc.,   509
U.S. 579, 589-90 (1993).

     All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
     3
         2011 Wis. Act 2, § 45(5).


                                        1
                                                      No.    2013AP225 & 2013AP578.ssa


the session law adopting the           Daubert         standard in Wis. Stat.

§ 907.0(1).4

     ¶66    All   Chapter    980    proceedings             are    included   in   the

Wisconsin     Judicial     Benchbook       in    its         section    on    special

proceedings.      After a careful examination of the definition of

"special     proceeding"    in     Black's      Law     Dictionary,       which    the

majority     opinion   employs;      the     case      law        regarding   special

proceedings on which the majority opinion relies; the detailed

provisions of Chapter 980 governing commitment proceedings and

discharge proceedings; and the legislative purpose for adopting

the Daubert standard, I conclude that the petitioners commenced

special proceedings by filing their Chapter 980 petitions for

discharge.     Thus, the Daubert standard should have been applied

at the proceedings on the petitioners' discharge petitions.                        The

majority opinion's contrary conclusion is unpersuasive.

     ¶67    Accordingly, I would remand the instant cases to their

respective circuit courts to determine whether the challenged

testimony satisfies the Daubert standard.
                                       I

     ¶68    The majority opinion adopts the definition of "special

proceeding" in Black's Law Dictionary:                  "A proceeding that can

be commenced independently of a pending action and from which a

final order may be appealed immediately."5




     4
         See 2011 Wis. Act 2, § 45(5).
     5
         Black's Law Dictionary 1398 (10th ed. 2014).


                                       2
                                                         No.    2013AP225 & 2013AP578.ssa


     ¶69       This    definition     contains      two        criteria.      First,   a

special proceeding "can be commenced independently of a pending

action."6       Second, a special proceeding must result in a "final

order" that can "be appealed immediately."7

     ¶70       I apply this definition to proceedings on a Chapter

980 discharge petition.               I begin with the second criterion:

Special proceedings result in a final order that can be appealed

immediately.

     ¶71       Proceedings on a Chapter 980 discharge petition easily

meet this second criterion.            A circuit court's decision granting

or denying a Chapter 980 petition for discharge is, by statute,

a final order that can be appealed immediately.                        See Wis. Stat.

§ 980.095(3)          ("Any   party   may       appeal     an     order    under    this

subsection as a final order under chs. 808 and 809.").

     ¶72       I now turn to the first criterion in the definition:

Special proceedings "can be commenced independently of a pending

action."8

     ¶73       There was no pending action when the petitions for
discharge were filed in the instant cases.                       After an individual

has been adjudicated a "sexually violent person" and the circuit

court has entered a judgment and commitment order, the original




     6
         Id.
     7
         Id.
     8
         Id.


                                            3
                                                   No.    2013AP225 & 2013AP578.ssa


Chapter     980     commitment    proceedings   are      at    an    end.9      If   the

committed person wants to be discharged, the person must file a

petition      in    the   committing    court.10         In     other     words,     the

commitment proceedings have ended by the time a petition for

discharge is filed.

      ¶74     I now tackle the phrase "commenced independently."                      In

the       instant     cases,     this   phrase        must       mean        "commenced

independently of the original commitment proceedings."

      ¶75     The majority opinion concludes that proceedings on a

Chapter 980 discharge petition are not commenced independently

of the original commitment proceedings, but rather are part of

the   original       commitment     proceedings.11            This   is      where   the

majority opinion loses its way.             The majority opinion departs

from its definition of "special proceeding" and does not adhere

to the cases it cites in support of its position.



      9
       See Wis. Stat. § 980.05(5) ("If the court or jury
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. § 980.06 ("If a court or jury determines that the person
who is the subject of a petition under s. 908.02 is a sexually
violent person, the court shall order the person to be committed
to the custody of the department for control, care and
treatment . . . .").
      10
       See Wis. Stat. § 980.09(1) ("A committed person may
petition the committing court for discharge at any time.    The
court shall deny the petition . . . 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 . . . .").
      11
           Majority op., ¶¶26, 31.


                                        4
                                                          No.    2013AP225 & 2013AP578.ssa


      ¶76    The majority opinion cites several Wisconsin cases to

provide examples of special proceedings.12                           These cases do not

support the majority opinion's application of the Black's Law

Dictionary       definition       of    "special      proceeding"        to    the    instant

cases.      Rather, the cases cited by the majority opinion support

the   conclusion      that      proceedings          on   a    Chapter     980    discharge

petition     are    special       proceedings.                See,   for      example,     the

following:

  •        Ernst v. The Steamer "Brooklyn", 24 Wis. 616, 617 (1869),

           provides three examples of proceedings that are "readily

           recognized"     as     special          proceedings:         "proceedings        to

           attach for contempt, [proceedings] to obtain discovery of

           books, [and] proceedings supplementary to an execution."

           All     three     of        these       "readily      recognized"          special

           proceedings     relate        to    an     underlying       action        but   are

           nevertheless treated as being commenced independently of

           any other action or proceeding.

                 In a later case, Witter v. Lyon, 34 Wis. 564, 574
           (1874), the court reaffirmed the determination in Ernst

           that a proceeding "to obtain discovery of books" is a

           special proceeding.             The court expressly rejected the

           contention that "there can be no special proceeding which

           grows out of, or is connected with, a pending action."13




      12
           See majority op., ¶29.
      13
           Witter v. Lyon, 34 Wis. 564, 574 (1874).


                                               5
                                                                No.    2013AP225 & 2013AP578.ssa


  •        In   Voss   v.    Stoll,           141       Wis. 267,      271,     124    N.W.2d 89,

           (1910), the court held that the proceeding required by

           statute to "revive" a case on behalf of a party who died

           after     the   case       commenced           is   classified        as    a     special

           proceeding.       The Voss court stated that "[t]he test to be

           applied in determining the nature of any judicial remedy,

           as regards whether it is a special proceeding, is whether

           it   is     a    mere        proceeding             in     an   action,         or    one

           independent[] thereof or merely connected therewith."14

                   Thus,    as     in     Ernst          and   Witter,         the    Voss      court

           acknowledged          that     special          proceedings         will     often     be

           "connected" with another proceeding.

  •        In   Wellens          v.     Kahl            Insurance      Agency,        Inc.,      145

           Wis. 2d 66, 426 N.W.2d 41 (Ct. App. 1988), the court of

           appeals     referred          to        contempt        proceedings        as     special

           proceedings, just as this court did in Ernst.                               A contempt

           proceeding       is     one        in    which      a      "court    of     record     []

           impose[s] a remedial or punitive sanction" for a person's
           misconduct or disobedience in a court proceeding.15                                      A

           contempt proceeding is therefore factually connected to a

           prior or pending action but is classified as a special

           proceeding.


      14
       Voss v. Stoll, 141 Wis. 267, 271, 124 N.W.2d 89 (1910)
(emphasis added).
      15
       See Wis. Stat. § 785.02 (regarding the power of the court
to punish for contempt of court); see also Wis. Stat. § 785.01
(defining "contempt of court").


                                                    6
                                                               No.    2013AP225 & 2013AP578.ssa


  •        In    Ryder       v.    Society    Insurance,             211   Wis. 2d 617,          565

           N.W.2d 277 (Ct. App. 1997), the court of appeals stated

           that "[s]pecial proceedings include[] all remedies that

           [a]re not ordinary actions."                       Chapter 980 petitions for

           discharge provide a remedy for institutionalized persons,

           and as we explain more fully later on, the legislature

           has       established          special    rules           applicable         to     these

           proceedings.

                     The   court     of    appeals       in    Ryder       also    stated       that

           matters "incident to an existing action" are not special

           proceedings.16           Again, as we explain more fully later on,

           proceedings on a Chapter 980 discharge petition are, by

           statute,          not    incident        to        the     original      commitment

           proceedings.             Rather,    they      are        separate      and    distinct

           proceedings.

      ¶77       In    sum,    the    case    law    demonstrates           that    proceedings

this court has previously classified as special proceedings have

a connection with prior or pending actions or proceedings but
are nevertheless viewed as independent special proceedings.

      ¶78       Furthermore, Chapter 980 makes clear that proceedings

on a discharge petition are governed by a set of statutory rules

and   procedures           different        from     (and       independent         of)        those

governing Chapter 980 commitment proceedings.                              Moreover, the two

proceedings examine the condition of the person at different

times.      Thus, although proceedings on a Chapter 980 discharge

      16
       Ryder v. Society                     Ins.,     211       Wis. 2d 617,            619,     565
N.W.2d 77 (Ct. App. 1997).


                                               7
                                                        No.   2013AP225 & 2013AP578.ssa


petition share a factual history with the original commitment

proceedings, they are nevertheless independent of the commitment

proceedings.

     ¶79    The provisions of Chapter 980 relating to the initial

commitment       proceedings     govern        notice    to    the    department    of

justice and district attorney;17 the contents and filing of a

petition alleging that a person is sexually violent;18 the rights

of persons subject to such petitions;19 examination of the person

alleged to be sexually violent;20 change of the place of jury

trial     from    another      county;21       "discovery       and    inspection";22

detention,        probable      cause      hearings,          and     transfer     for

examination;23 the commitment trial;24 commitment itself;25 and

various other procedural matters.26

     ¶80    In contrast, Wis. Stat. §§ 980.09 and 980.095 govern

proceedings       on   a   Chapter      980     discharge       petition.        These

provisions control the filing of a petition for discharge, its

     17
          Wis. Stat. § 980.015.
     18
          Wis. Stat. § 980.02.
     19
          Wis. Stat. § 980.03.
     20
          Wis. Stat. § 980.031.
     21
          Wis. Stat. § 980.034(1).
     22
          Wis. Stat. § 980.036.
     23
          Wis. Stat. § 980.04.
     24
          Wis. Stat. § 980.05.
     25
          Wis. Stat. § 980.06.
     26
          Wis. Stat § 980.038.


                                           8
                                                            No.   2013AP225 & 2013AP578.ssa


contents,   the       burden     of   proof,          the   appropriate        methods      for

demanding and selecting a jury, receipt of a jury verdict and

its effect, and the filing of postverdict motions and appeals

from orders granting or denying discharge.

    ¶81     The       differences      between          commitment       proceedings        and

proceedings      on    a   petition        for       discharge    are    substantial        and

significant,       demonstrating           that       proceedings       on     a     discharge

petition    are       separate    from      and        independent       of    the    initial

commitment.       For example:

    •       At    the      commitment       proceedings,          the    State       "has   the

            burden of proving beyond a reasonable doubt that the

            person . . . is           []    sexually         violent,"27       and     a    jury

            verdict on whether the State has met its burden "is

            not valid unless it is unanimous."28                        In contrast, at a

            proceeding on a petition for discharge, the State "has

            the burden of proving by clear and convincing evidence

            that the person meets the criteria for commitment as a

            sexually violent person,"29 and agreement by just five
            of the six jurors is sufficient for a verdict.30

    •       The    person      against       whom       a   petition     for       involuntary

            commitment has been filed is automatically entitled to



    27
         Wis. Stat. § 980.05(3)(a).
    28
         Wis. Stat. § 980.03(3).
    29
         Wis. Stat. § 980.09(3).
    30
         Wis. Stat. § 980.095(1)(c).


                                                 9
                                                     No.    2013AP225 & 2013AP578.ssa


           a jury trial,31 while a committed person who files a

           petition for discharge is entitled to a jury trial

           only if "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 . . . ."32

    •      The focus at the original commitment proceedings is on

           the   person's        condition         at      the    time       of      those

           proceedings.      The focus at discharge proceedings is on

           the   committed      person's         condition       at    the     time    the

           discharge petition was filed.                The circumstances that

           existed    at   the    time      of    commitment          are    no    longer

           dispositive.

    •      A petition for discharge must allege facts that are

           new since the commitment order was entered.33                       In other

           words, the petition must include "something more than

           facts,    professional knowledge,               or research that was

           considered      by    an    expert       testifying          in     a     prior
           proceeding that determined the person to be sexually

           violent" from which the jury or court could conclude




    31
         Wis. Stat. § 980.03(3).
    32
         Wis. Stat. § 980.09 (emphasis added).
    33
       Wis. Stat. § 980.09 (requiring the petitioner to allege
"facts from which the court or jury may conclude the person's
condition has changed since the date of his or her initial
commitment . . . ").

                                       10
                                                               No.    2013AP225 & 2013AP578.ssa


                    that    the     person    no    longer     meets        the    criteria     for

                    commitment.34

         ¶82        These    statutory        provisions       are     persuasive         evidence

that proceedings on a petition for discharge are separate from

and independent of the original commitment proceedings.                                        They

persuade me that filing a petition for discharge commences (that

is, begins) a special proceeding to which the Daubert standard

applies.

         ¶83        It is a truism that without a Chapter 980 commitment

order,         there        would     be     no    proceedings        on     a    petition     for

discharge.               This connection does not, however, make a petition

for discharge or a proceeding on that petition "part of" the

initial             commitment        proceedings.                 Rather,        Chapter       980

demonstrates that the two proceedings share a common factual

history but are independent and separate.

         ¶84        The     purpose    of     the        statute     adopting      the     Daubert

standard and "the consequences of alternative interpretations"

also inform my interpretation.35                         Courts decline to read statutes
in   a        way    that    produces        absurd,      implausible,       or    unreasonable

results,            or    results     that    are    at     odds     with    the       legislative

purpose.36               Interpreting Wis. Stat. § 970.02(1) as applying the

         34
       State v. Combs, 2006 WI App 137, ¶32, 295 Wis. 2d 457,
720 N.W.2d 684; see also State v. Kruse, 2006 WI App 179, ¶35,
296 Wis. 2d 130, 722 N.W.2d 742.
         35
       Legue v. City of                           Racine,     2014      WI       92,    ¶61,    357
Wis. 2d 250, 849 N.W.2d 837.
         36
       Hubbard v. Messer, 2003 WI 145, ¶9, 267 Wis. 2d 92, 673
N.W.2d 676.


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                                                           No.   2013AP225 & 2013AP578.ssa


Daubert     standard      to   proceedings      on     a    petition         for    discharge

filed after February 1, 2011, avoids an absurd, unreasonable, or

implausible        result      clearly    at    odds       with        the   legislature's

purpose     and     takes      into     consideration            the    consequences        of

alternative interpretations.

      ¶85    The legislature adopted the Daubert standard as part

of   broader      tort    reform      legislation,          obviously        intending      to

impose a     more stringent standard to the admission of expert

testimony in Wisconsin.            The legislature did not, however, limit

the Daubert standard to tort cases or even to civil cases.                                 The

legislature adopted the Daubert standard for all cases, civil

and criminal.

      ¶86    The     legislature         adopted     the         Daubert      standard      to

"ensure     that    any     and   all     scientific         testimony        or     evidence

admitted is not only relevant, but reliable."37

      ¶87    The statute adopting the Daubert standard, Wis. Stat.

§ 907.02(1), provides as follows:

      If   scientific,   technical,   or  other   specialized
      knowledge will assist the trier of fact to understand
      the evidence or to determine a fact in issue, a
      witness qualified as an expert by knowledge, skill,
      experience,   training,   or  education,  may   testify
      thereto in the form of an opinion or otherwise, if the
      testimony is based upon sufficient facts or data, the
      testimony is the product of reliable principles and
      methods, and the witness has applied the principles
      and methods reliably to the facts of the case.
(Emphasis added.)


      37
       Daubert v. Merrell Dow Pharmaceuticals,                                     Inc.,   509
U.S. 579, 589 (1993) (citations omitted).


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       ¶88    The standard for the admissibility of expert testimony

that    applied     when     the    petitioners        were    initially      committed

lacked      the   reliability       requirement       set     forth    in   Wis.   Stat.

§ 907.02(1)       (underlined        above).          This    pre-Daubert      standard

provided as follows:

       If   scientific,   technical,   or  other   specialized
       knowledge will assist the trier of fact to understand
       the evidence or to determine a fact in issue, a
       witness qualified as an expert by knowledge, skill,
       experience,   training,   or  education,  may   testify
       thereto in the form of an opinion or otherwise.38
       ¶89    As Professor Daniel D. Blinka explains, the Daubert

standard      adopted   by    the     Wisconsin       legislature      requires      that

"[t]he expert's testimony [] be grounded in an accepted body of

learning or experience in the expert's field, and [that] the

expert [] explain how the conclusion is so grounded."39

       ¶90    When I examine the legislative purpose for adopting

the    Daubert     standard        and    "the    consequences        of    alternative

interpretations" of the Daubert statute, the answer is clear:

The Daubert standard applies in the instant cases.                          It seems to

me    the    legislature     would       want    to   have    only    reliable     expert

witnesses, whose testimony is grounded in an accepted body of

learning or experience in the expert's field, testify on behalf



       38
            Wis. Stat. § 907.02 (2003-04); Wis. Stat. § 907.02 (2005-
06).
       39
       Daniel D. Blinka, The Daubert Standard in Wisconsin:    A
Primer, Wis. Lawyer, Mar. 2011, at 60 (quoting Fed. R. Evid. 702
advisory committee note (2000 amendment)) (first alteration in
original).


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of either the State or the petitioner in Chapter 980 discharge

petition proceedings.

          ¶91     The proceedings on a petition for discharge result in

either the release of a committed sex offender or the continued

institutionalization of that offender.                                A huge liberty interest

is    at        stake        in    Chapter       980        proceedings.              A     Chapter   980

commitment is indefinite in duration and is therefore tantamount

to    a        life    sentence       in     a   custodial          setting.               Consequently,

Chapter 980 reflects a "delicate balancing of the public safety

with individual liberty."40                      Based on the profound importance of

the interests at stake, it is only logical that the legislature

would seek to ensure the reliability of the expert testimony

presented             at     proceedings         on     a      Chapter          980        petition   for

discharge.

          ¶92         Why would the legislature apply the less stringent

relevance-based                   standard       rather        than       the         more     stringent

reliability-based                  standard      at     proceedings          on       a     Chapter   980

petition          for      discharge       filed        after       February          1,    2011?     The
simple, obvious answer is it would not.                                To fulfill the purpose

of    Chapter           980       discharge      proceedings,             the     Daubert       standard

should be used.

          ¶93     Furthermore,          the       majority          opinion's             interpretation

extends           the         application          of         the         pre-Daubert           standard

indefinitely.                Decades might pass between a commitment order and

the       filing        of     a    petition       for        discharge.              Why     would   the

          40
       State v. West, 2011 WI 83, ¶100, 336 Wis. 2d 578, 800
N.W.2d 929.


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legislature want to have different evidentiary rules applied for

many, many years into the future to persons similarly situated?

It would not.

      ¶94   Under the majority opinion's interpretation, discharge

proceedings for a person committed on January 31, 2011, and a

person committed on February 1, 2011, are governed by different

evidentiary     rules.         The    majority        opinion's       interpretation

creates     confusion    for    committed        persons,        lawyers,    and   the

courts.

      ¶95   With   these    implications         of     the     majority     opinion's

alternative interpretation in mind, I think it is clear that the

legislature would want expert testimony that is reliable under

Daubert presented at proceedings held on petitions for discharge

filed after February 1, 2011.

      ¶96   In sum, I conclude that the Daubert standard governs

the   expert    testimony      presented     at       the     proceedings     on   the

petitioners'    Chapter     980      discharge    petitions.           The    majority

opinion's contrary conclusion is unpersuasive.
                                        II

      ¶97   The petitioners also raise constitutional claims.                      The

constitutional     question       presented       is     whether      applying     the

Daubert standard to only those discharge petition proceedings

for which the original commitment proceedings commenced on or




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after February 1, 2011, violates the petitioners' constitutional

rights to equal protection and due process of law.41

       ¶98    The majority opinion determines that rational basis

review applies to the petitioners' constitutional claims because

applying      the    Daubert    standard         to    proceedings       on    a   discharge

petition only when the original commitment proceedings commenced

on or after February 1, 2011, neither "implicates a fundamental

right nor discriminates against a suspect class."42                           The majority

opinion further determines that "the legislature's decision to

apply       the    Daubert     []        standard      to    'actions'        or   'special

proceedings' 'commenced' on or after February 1, 2011, satisfies

rational basis review and therefore is constitutional."43

       ¶99    Because I conclude that the Daubert standard should

have    been      applied      at       the   proceedings         on   the    petitioners'

discharge         petitions,        I    need    not    reach      the       constitutional

questions presented.

       ¶100 Nevertheless, I disagree with the majority opinion's

conclusion on this point.                 Even if rational basis review is the
appropriate level of scrutiny, which is far from clear (a person


       41
       Specifically, Alger argues that applying the Daubert
standard to only those discharge petition trials for which the
original commitment action commenced on or after February 1,
2011, violates his constitutional right to equal protection.
Knipfer argues that applying the Daubert standard to only those
discharge petition trials for which the original commitment
action commenced on or after February 1, 2011, violates his
constitutional rights to equal protection and due process.
       42
            Majority op., ¶39; see also majority op., ¶42.
       43
            Majority op., ¶55.


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committed   under    Chapter   980    is       detained      indefinitely),     there

appears    to   be   no   rational    basis       for     applying     the     Daubert

standard to proceedings on a discharge petition only when the

original commitment proceedings commenced on or after February

1, 2011.    In my view, the legislative classification produced by

the   majority    opinion's    interpretation           of     2011   Wis.   Act   2,

§ 45(5) fails to pass constitutional muster.

      ¶101 For the reasons set forth, I dissent.

      ¶102 I    am   authorized      to    state    that       Justice   ANN    WALSH

BRADLEY joins this dissent.




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