                                                        2018 WI 40

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2015AP330 & 2015AP1311
COMPLETE TITLE:        In re the commitment of David Hager, Jr.:

                       State of Wisconsin,
                                 Petitioner-Respondent-Petitioner,
                            v.
                       David Hager, Jr.,
                                 Respondent-Appellant.

                       ------------------------------------------------
                       In re the commitment of Howard Carter:

                       State of Wisconsin,
                                 Petitioner-Respondent,
                            v.
                       Howard Carter,
                                 Respondent-Appellant-Petitioner.

                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 373 Wis. 2d 692, 892 N.W.2d 740
                       (2015AP330) and 372 Wis. 2d 722, 892 N.W.2d 754
                                          (2015AP1311)
                        PDC No: 2017 WI App 8 – Published (2015AP330)
                           and 2017 WI App 9 – Published (2015AP1311)

OPINION FILED:         April 19, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         November 1, 2017

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Chippewa (2015AP330), Brown (2015AP1311)
   JUDGE:              James M. Isaacson (2015AP330), Kendall M. Kelley
                       (2015AP1311)

JUSTICES:
   CONCURRED:          KELLY, J., concurs, joined by R.G. BRADLEY, J.
                       (opinion filed).
  DISSENTED:           ABRAHAMSON, J., dissents, joined by A.W.
                       BRADLEY, J. (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:


       For the petitioner-respondent-petitioner (2015AP330), there
were briefs filed by Thomas J. Balistreri, assistant attorney
general, and Brad D. Schimel, attorney general.                   There was an
oral    argument      by   Donald   V.       Latorraca,   assistant     attorney
general.


       For the respondent-appellant (2015AP330), there was a brief
filed by and an oral argument by Andrew R. Hinkel, assistant
state public defender.


       For the respondent-appellant-petitioner (2015AP1311), there
were briefs filed by Len Kachinsky and Kachinsky Law Offices,
Neenah.       There was an oral argument by Len Kachinsky.


       For    the   petitioner-respondent        (2015AP1311),    there   was   a
brief filed by Thomas J. Balistreri, assistant attorney general,
and    Brad    D.   Schimel,   attorney      general.     There   was   an   oral
argument by Donald V. Latorraca, assistant attorney general.




                                         2
                                                                   2018 WI 40
                                                           NOTICE
                                             This opinion is subject to further
                                             editing and modification.   The final
                                             version will appear in the bound
                                             volume of the official reports.
No.    2015AP330 & 2015AP1311
(L.C. No.   2007CI1 & 2007CI3)

STATE OF WISCONSIN                       :            IN SUPREME COURT

In re the commitment of David Hager, Jr.:



State of Wisconsin,
                                                                FILED
            Petitioner-Respondent-Petitioner,
                                                           APR 19, 2018
      v.
                                                              Sheila T. Reiff
David Hager, Jr.,                                          Clerk of Supreme Court


            Respondent-Appellant.




In re the commitment of Howard Carter:



State of Wisconsin,

            Petitioner-Respondent,

      v.

Howard Carter,

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



      REVIEW of two decisions of the Court of Appeals.                            Reversed

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

Carter.



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

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

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

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

cases     involve    the     discharge       procedure        for   a    person    civilly

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

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

Carter both filed petitions for discharge from commitment as

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

the   Chippewa      County       Circuit     Court3    and     Brown     County    Circuit

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

Carter appealed.

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

that the circuit court erred in two ways:                           (1) by considering
evidence unfavorable to Hager's discharge petition; and (2) by

weighing the evidence in favor of the discharge petition against

      1
       We consolidated these two cases after                             oral     argument
because they present similar issues and facts.
      2
       All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
      3
          The Honorable James. M. Isaacson presiding.
      4
          The Honorable Kendall M. Kelley presiding.


                                             2
                                                             Nos.   2015AP330 & 2015AP1311



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

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

had satisfied his burden of production5 and reversed and remanded

the matter to the circuit court with instructions to conduct a

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

Carter,   the      court     of    appeals       affirmed         the     circuit       court,

concluding that Carter had not satisfied the standard it had

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

    ¶3     Both cases involve the proper interpretation of Wis.

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

establishes       the     procedures     for         discharge        from       commitment.

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

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

guaranteed    by    the     Fourteenth      Amendment         to    the    United       States

Constitution       and     Article     I,       Section       1     of     the     Wisconsin

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

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

retroactively       to     Carter,     through        the      lens       of     ineffective


    5
       The party carrying the burden of production must
"introduce enough evidence on an issue to have the issue decided
by the fact-finder" and not by the court in a pre-trial ruling.
Black's Law Dictionary 236 (10th ed. 2014).

     The party carrying the burden of persuasion must "convince
the fact-finder to view the facts in a way that favors that
party." Black's Law Dictionary 236 (10th ed. 2014).
    6
       For clarity, we refer to the entire section, as amended,
as "Wis. Stat. § 980.09(2)," and refer to the specific
amendments made to § 980.09(2) by Act 84 simply as "Act 84."


                                            3
                                                         Nos.    2015AP330 & 2015AP1311



assistance of counsel because Carter's counsel did not contest

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

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

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

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

circuit courts to considering only the evidence favorable to

petitions for discharge.            We hold that circuit courts are to

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

they deem helpful to their consideration of the petition, which

may include facts both favorable as well as unfavorable to the

petitioner.

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

violate    the     constitutional     right       to   due      process      of    law   as

guaranteed    by    the    Fourteenth      Amendment      to     the   United       States

Constitution       and    Article     I,       Section    1     of     the     Wisconsin

Constitution,       and     furthermore,         Carter's        counsel          was    not

ineffective for failing to challenge retroactive application of

Act 84 to Carter.
    ¶6      As to Hager, we reverse the decision of the court of

appeals and remand the matter to the circuit court for further

proceedings      consistent    with     this      opinion;       as    to    Carter,     we

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

grounds.

                   I.    FACTUAL AND PROCEDURAL BACKGROUND

                              A.    State v. Hager




                                           4
                                                 Nos.   2015AP330 & 2015AP1311



     ¶7     Hager   was     involuntarily    committed       in   2008   as    a

sexually violent person pursuant to Chapter 9807 as he neared the

completion of prison sentences he was serving as a result of

having been convicted of two sexual offenses.

     ¶8     He filed the discharge petition we consider herein on

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

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

Hager did not satisfy the third criterion for commitment because

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

based     this   conclusion     on   the    results     of    two    actuarial

instruments, the Static-99R and MATS-1.8



     7
       The State must prove three criteria in order to commit a
person as a sexually violent person pursuant to Chapter 980:

     (1)    The person was "convicted of a sexually violent
            offense," was "found delinquent of a sexually violent
            offense," or was "found not guilty of a sexually
            violent offense by reason of mental disease or
            defect."

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

     (3)    "The person is dangerous to others because the
            person's mental disorder makes it likely that he or
            she will engage in acts of sexual violence."

Wis. Stat. § 980.02(2).     In order to initially commit an
individual pursuant to Chapter 980, the State must prove these
elements beyond a reasonable doubt. Wis. Stat. § 980.05(3)(a).
In order to continue commitment, the State must prove the same
three elements by clear and convincing evidence at the discharge
trial. Wis. Stat. § 980.09(3).
     8
       Understanding this decision requires a grasp of both
actuarial instruments and their use in Chapter 980 proceedings.

                                                                    (continued)
                                      5
                                                 Nos.    2015AP330 & 2015AP1311



     ¶9     The    circuit   court   denied   Hager's     petition     because

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

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

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

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

sufficient    to   warrant   a   discharge    trial     under   the   standard



     Often (as      here), the only testimony in a Chapter 980
proceeding is       expert testimony.     The only witnesses are
examiners, who     describe the sexually violent person's history,
offer diagnoses     as to his mental condition, and opine about his
dangerousness.

     In the 1990s, researchers began developing and releasing
tools meant to give an objective picture of a sexually violent
person's risk of reoffending.     These tools, sometimes called
actuarial instruments, ask a series of questions about the
sexually violent person's history and, based on the answers,
place the sexually violent person in a particular category,
usually indicated by a number.     Generally, a sexually violent
person assigned a higher number is believed to present a greater
risk, on average, than a sexually violent person assigned a
lower number.

     The developers of these instruments also released tables
indicating the re-offense rates for groups of sexually violent
people assigned particular numbers. Thus, for example, a score
of 3 on the RRASOR (one of the first actuarial instruments
developed) corresponded with a group of offenders of whom 24.8
percent would reoffend within five years. Those in the business
of evaluating sex offenders for commitment often rely on these
numbers in performing their assessments.

     The two actuarial instruments relied on by Hager and
Carter, the Static-99R and MATS-1, are relatively new. Neither
existed at the time Hager and Carter were first committed.
     9
       The circuit court did not make any findings regarding the
MATS-1 in either its original decision or its decision on the
motion for reconsideration.


                                      6
                                                              Nos.      2015AP330 & 2015AP1311



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

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

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

      ¶10    Hager filed a motion for reconsideration, which was

denied.            In     its     order        denying            Hager's       motion        for

reconsideration,          the    circuit          court     amended           its     reasoning

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

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

production.        This appeal followed.

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

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

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

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

weigh11     the    evidence      in    favor      of    the       petition      against       the

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

Rather, Act 84 both increased the burden of production necessary

for   committed         individuals      to    receive        a    discharge         trial   and

      10
       In Combs, the court of appeals interpreted a prior
version of Wis. Stat. § 980.09(2) to require the petitioner to
present "something more" than facts and professional knowledge
considered at the last discharge trial in order to obtain a new
discharge trial.    State v. Combs, 2006 WI App 137, ¶32, 295
Wis. 2d 457, 720 N.W.2d 684.     Thus, new facts regarding the
petitioner's condition (e.g., treatment milestones) or new
research regarding likelihood to reoffend (e.g., new actuarial
tools) would satisfy this standard. Id.
      11
       A circuit court weighs evidence when it "accept[s] one
version of facts, [and] reject[s] another."     State v. Stietz,
2017 WI 58, ¶18, 375 Wis. 2d 572, 895 N.W.2d 796 (quoting State
v. Mendoza, 80 Wis. 2d 122, 152, 258 N.W.2d 260 (1977)).


                                              7
                                                            Nos.    2015AP330 & 2015AP1311



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

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

change our holding in Arends that circuit courts are limited to

considering    only      the     items     in     the     record    favorable       to     the

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

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

to   warrant      a     discharge         trial    because         Wakefield's          report

satisfied   the       criteria      set    forth     in    Combs    by    including        new

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

court of appeals reversed and remanded the matter to the circuit

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

¶¶45-46.

                               B.    State v. Carter

     ¶12    Carter      was    involuntarily            committed        as   a    sexually

violent    person      under   Chapter       980     in    2009     as   he   neared       the

completion of prison sentences he was serving as a result of

convictions of multiple sexual offenses.

     ¶13    He filed the discharge petition we consider herein on
December    13,       2013,    which        was    the      day     before        Act     84's

publication.      Carter's attorney never challenged the application

of the new standard to Carter.

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

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

satisfy the third criterion for commitment.                              She based this

conclusion on three opinions.                First, Dr. Lytton stated that in




                                             8
                                                           Nos.       2015AP330 & 2015AP1311



her   professional       opinion,        one       of   Carter's       diagnosed    mental

disorders, paraphilia not otherwise specified, nonconsent,12 is

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

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

other      diagnosed      mental         disorder,         antisocial         personality

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

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

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

not likely to engage in acts of sexual violence.

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

was insufficient to satisfy the Act 84 standard.                                 The court

observed that relevant information from Carter's past did not

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

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

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



      12
       Dr. Lytton did not define paraphilia, not otherwise
specified, nonconsent.    Dr. Woodley defined it as "intense,
recurrent sexually arousing . . . fantasies, urges, or behaviors
to other than consenting adults . . . which the person acted
on . . . ."        See also American Psychiatric Association,
Diagnostic and Statistics Manual of Mental Disorders 705 (5th
ed. 2013).
      13
       Dr.   Lytton   did  not   define  antisocial   personality
disorder.   Dr. Woodley defined it as "a long-term maladaptive
pattern of behavior involving . . . the following:       repeated
unlawful acts, deceitfulness, violating the rights and safety of
others, impulsivity or failure to plan ahead, repeated lying,
consistent irresponsibility, and lack of remorse for harming
others."   See also American Psychiatric Association, Diagnostic
and Statistics Manual of Mental Disorders 659 (5th ed. 2013).


                                               9
                                                           Nos.      2015AP330 & 2015AP1311



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

an unsupported assertion."

       ¶16      Carter then filed a post-commitment motion alleging

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

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

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

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

assistance of counsel because his attorney failed to contest

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

assistance of counsel because his attorney failed to contest

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

governing        expert    testimony,14       to   the    expert      reports     filed   in

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

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

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

process      because      he    can   still    obtain     a    discharge      trial     upon

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

deficient for failing to challenge the application of Act 84
because      the    act    did    apply    retroactively,            and——even     if     his

       14
       Carter appealed the circuit court's conclusion that his
trial counsel was not ineffective for failing to contest the
application of Wis. Stat. § 907.02(1) to the expert reports in
his case.    State v. Carter, 2017 WI App 9, ¶10 n.4, 373
Wis. 2d 722, 892 N.W.2d 754.   However, he does not raise this
issue for our review, and we do not consider it further.    See
State v. Sulla, 2016 WI 46, ¶7 n.5, 369 Wis. 2d 225, 880
N.W.2d 659 (quoting Jankee v. Clark Cty., 2000 WI 64, ¶7, 235
Wis. 2d 700, 612 N.W.2d 297) ("If an issue is not raised in the
petition for review or in a cross petition, 'the issue is not
before us.'").


                                              10
                                                             Nos.   2015AP330 & 2015AP1311



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

suffered no prejudice because the court would have denied the

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

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

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

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

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

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

suffered no prejudice because the court would have made the same

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

       ¶17    The    court   of    appeals        affirmed,      concluding     that    the

amendments made by Act 84 did apply retroactively, therefore

Carter's      counsel      was   not    deficient       for    failing    to    challenge

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

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

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

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

does not require circuit courts to weigh evidence.                              Id., ¶20.
Because Carter did not contend that he had met the burden as

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

that    the    amendments        made   by     Act      84    applied    to    Carter   as

dispositive of his appeal.              Id., ¶21.

                             II.    STANDARD OF REVIEW

       15
       In his opening brief to the court of appeals, Carter
"reluctantly" agreed with the State that he did not satisfy Act
84's burden. Before this court, Carter argues that he satisfies
Act 84's burden as interpreted by the court of appeals in Hager.


                                             11
                                                               Nos.     2015AP330 & 2015AP1311



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

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

must satisfy in order to receive a discharge trial.                                   Statutory

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

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

accepted     meaning"      unless       a    technical         or     specialized          meaning

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

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

the   statute     in   its      full    context         in    order     to    avoid    creating

absurd results or rendering any statutory language surplusage.

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

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

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

      ¶19    We     then      determine       whether          Hager       and      Carter    are

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

determination of whether the statutory criteria for a discharge

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

      ¶20    Carter alleges that Wis. Stat. § 980.09(2) violates
the right to due process.               The constitutionality of a statute is

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

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

constitutionality          of    a     statute         carries      a      heavy     burden    to

overcome the presumption of constitutionality.                               Id.    In a facial

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

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

applications or interpretations of the statute which would be
constitutional."              State     v.    Cole,          2003     WI     112,     ¶30,    264
                                              12
                                                             Nos.    2015AP330 & 2015AP1311



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

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

      ¶21     Carter alleges that his counsel was ineffective for

failing to contest the application of Act 84 to his discharge

petition.      Ineffective assistance of counsel is a mixed question

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

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

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

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

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

                                        III.   ANALYSIS

      ¶22     The consolidated appeals of Hager and Carter present

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

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

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

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

address whether Carter's counsel was ineffective for failing to

contest retroactive application of Act 84 to Carter.

    A. Wisconsin Stat. § 980.09(2) Permits Circuit Courts to
Consider the Entire Record, but Not to Weigh the Evidence Within
 It, to Determine Whether the Statutory Criteria for a Discharge
                       Trial have been Met.
     1.     The changes made to Wis. Stat. § 980.09(2) by Act 84.


      16
       This is in contrast to an as-applied challenge, which
requires the court to determine whether a statute may be
constitutionally applied to the challenger under the facts of
the particular case.    State v. Hamdan, 2003 WI 113, ¶43, 264
Wis. 2d 433, 665 N.W.2d 785.


                                               13
                                               Nos.   2015AP330 & 2015AP1311



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

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

criteria for a discharge trial as they existed prior to the

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

relevant portion of § 980.09 stated:

       The court shall deny the [discharge] petition under
       this section without a hearing unless the petition
       alleges facts from which the court or jury may
       conclude the person's condition has changed since the
       date of his or her initial commitment order so that
       the person does not meet the criteria for commitment
       as a sexually violent person.

       (2) The court . . . may hold a hearing to determine if
       it contains facts from which the court or jury may
       conclude that the person does not meet the criteria
       for commitment as a sexually violent person. In
       determining under this subsection whether facts exist
       that might warrant such a conclusion, the court shall
       consider any current or past reports filed under s.
       980.07, relevant facts in the petition and in the
       state’s written response, arguments of counsel, and
       any supporting documentation provided by the person or
       the state.
Wis.    Stat.   § 980.09(1)-(2)   (2005-06)   (emphasis    added).17     We

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

325 Wis. 2d 1, ¶3.

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

paper review to determine whether the petition presented facts

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

       17
       Even though Wis. Stat. § 980.09 (2005-06) does not
contain any subsection (1), we will refer to the paragraph
preceding subsection (2) as subsection (1), as we did in Arends.
State v. Arends, 2010 WI 46, ¶23 n.16, 325 Wis. 2d 1, 784
N.W.2d 513.


                                    14
                                                  Nos.   2015AP330 & 2015AP1311



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

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

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

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

circuit courts to determine whether the record contained facts

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

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

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

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

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

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

§ 805.14(4).      Id., ¶42.

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

2013 Wis. Act 84.       The current version states:

       (1) The court shall deny the [discharge] petition
       under this section without a hearing unless the
       petition alleges facts from which the court or jury
       would likely conclude the person's condition has
       changed since the most recent order denying a petition
       for discharge after a hearing on the merits, or since
       the date of his or her initial commitment order if the
       person has never received a hearing on the merits of a
       discharge petition, so that the person no longer meets
       the criteria for commitment as a sexually violent
       person.

       . . .

       (2) In reviewing the petition, the court may hold a
       hearing to determine if the person's condition has
       sufficiently changed such that a court or jury would
       likely conclude the person no longer meets the
       criteria for commitment as a sexually violent person.
       In determining under this subsection whether the
       person's condition has sufficiently changed such that
       a court or jury would likely conclude that the person

                                        15
                                            Nos.   2015AP330 & 2015AP1311


    no longer meets the criteria for commitment, the court
    may consider the record, including evidence introduced
    at the initial commitment trial or the most recent
    trial on a petition for discharge, any current or past
    reports filed under s. 980.07, relevant facts in the
    petition   and  in   the   state's   written response,
    arguments of counsel, and any supporting documentation
    provided by the person or the state.
Wis. Stat. § 980.09(1), (2) (2015-16) (emphasis added).

 2. Circuit courts may consider the entire record when deciding
 whether the statutory criteria for a discharge trial have been
                              met.
    ¶27   Hager   and   Carter   argue   that   circuit    courts    are

permitted to consider only those portions of the evidentiary

record favorable to discharge when considering a petition for

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

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

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

the petitioner——when determining whether the statutory criteria

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

a broad scope of materials circuit courts may consider:

    In determining . . . whether the person's condition
    has sufficiently changed such that a court or jury
    would likely conclude that the person no longer meets
    the criteria for commitment, the court may consider
    the record, including evidence introduced at the
    initial commitment trial or the most recent trial on a
    petition for discharge, any current or past reports
    filed under § 980.07, relevant facts in the petition
    and in the state's written response, arguments of
    counsel, and any supported documentation provided by
    the person or the state.
Wis. Stat. § 980.09(2).    The result of a plain reading of "the

court may consider the record" is that courts are free to review
everything in the record, no matter whether it is beneficial or

                                 16
                                                            Nos.   2015AP330 & 2015AP1311



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

the   breadth      of      materials    circuit      courts        may    consider,       the

legislature included a host of examples of such materials, which

by    their       nature     will    contain        facts     detrimental          to     the

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

commitment trial or the most recent trial on a petition for

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

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

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

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

and Carter contend, circuit courts were limited to considering

the facts favorable to the petitioner, the legislature would

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

courts      may    consider       during    their     review       of     the   discharge

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

interpretation because we conclude that it would impermissibly

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


 3. We conclude that circuit courts may not weigh the evidence
  in determining whether the statutory criteria for a discharge
                       trial have been met.
      ¶28     Hager and Carter argue that circuit courts may not

weigh the evidence in favor of a discharge petition against the

evidence opposed to the petition when determining whether the




                                            17
                                                               Nos.   2015AP330 & 2015AP1311



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

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

much less require, circuit courts to weigh the evidence when

they consider whether the statutory criteria for a discharge

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

wanted       circuit       courts      to    weigh        evidence,          it    could      use

appropriate         terms       of    art      such       as    "probable          cause"      or

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

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

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

so in Act 84, either.

       ¶29     The legislature did not provide a definition for what

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

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

and    ordinary       meaning        through      sources      such     as    dictionaries.

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

dictionary definitions, but all coalesce around the concept of

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




       18
       We note that in its briefs to us, the State withdrew its
argument that Act 84 requires circuit courts to weigh the
evidence, and now concedes that Wis. Stat. § 980.09(2) does not
allow circuit courts to weigh the evidence.       We choose to
address this issue because to do so is helpful to our analysis
of the proper application of § 980.09(2).   See State v. Hunt,
2014 WI 102, ¶42 n.11, 360 Wis. 2d 576, 851 N.W.2d 434 ("we are
not bound by a party's concession of law").


                                               18
                                                         Nos.    2015AP330 & 2015AP1311



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

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

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

contemplate mentally").

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

petitions for discharge, courts are to carefully examine, but

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

their      consideration      of    the    petition,      including        facts     both

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

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

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

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

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

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

value"     but    should    scrutinize     the   submissions        to    ensure     they

contain     facts    "upon    which    a   trier   of     fact    could     reasonably

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

      ¶31    We note that by holding that the plain language of
Wis. Stat. § 980.09(2) does not allow circuit courts to weigh

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

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

because     the    effect    of    allowing     circuit    courts     to    weigh    the


      19
       More recent editions of Black's Law Dictionary do not
contain a definition for "consider." See Black's Law Dictionary
370 (10th ed. 2014); Black's Law Dictionary 347 (9th ed. 2009);
Black's Law Dictionary 324 (8th ed. 2004); Black's Law
Dictionary 300 (7th ed. 1999).


                                           19
                                                                   Nos.   2015AP330 & 2015AP1311



evidence        would        be     to       impermissibly         shift        the    burden     of

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

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

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

(construing        supervised            release         statute     to    place       burden     of

persuasion on the committed person because the statute requires

circuit     courts        to      weigh       evidence      and     make    certain         factual

findings to grant supervised release).                             Shifting the burden of

persuasion         for         discharge           to     the      committed          person     is

impermissible           because         to    do   so    would     violate       the    committed

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

avoidance of constitutional conflict does not drive our reading

of   the    statute,           where         we    can    reasonably        adopt       a   saving

construction of a statute to avoid a constitutional conflict, we

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

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

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

v. Lockheed Martin Corp., 531 U.S. 497, 503 (2001)).                                   Therefore,
our construction of § 980.09(2) to preclude circuit courts from

weighing the evidence is commanded by both the plain language of

the statute and the constitution.



                        4.     Applying Wis. Stat. § 980.09(2)

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

     ¶32        Both     the      court       of   appeals       and      the    circuit       court

applied an incorrect interpretation of Wis. Stat. § 980.09(2) to
Hager's petition.              The court of appeals erred in concluding that
                                                   20
                                                              Nos.    2015AP330 & 2015AP1311



courts may consider only the evidence in the record favorable to

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

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

record to determine whether a factfinder "would likely conclude"

that    Hager    no    longer   meets      the    criteria           for   commitment,      we

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

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

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

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

Wis. 2d 1, ¶48.

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

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

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

Carter's discharge petition.                 Our consideration of the record

satisfies us that the circuit court carefully examined, but did

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

consideration of the petition, including facts both favorable as

well as unfavorable to the petitioner.
       ¶34    First,    it    considered      "the      most       recent        reports,   and

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

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

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

Rather, it concluded that the lack of supporting analysis for

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

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

Arends, 325 Wis. 2d 1, ¶39.


                                           21
                                                          Nos.    2015AP330 & 2015AP1311


  B.    Wisconsin Stat. § 980.09(2) Does Not Violate the Right to
                         Due Process of Law.
       ¶35     Carter argues that Wis. Stat. § 980.09(2) violates the

right to due process of law as guaranteed by the Fourteenth

Amendment       to   the   United   States      Constitution20         and   Article      I,

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

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

unconstitutional           preventative         detention        and     violates       due

process" by shifting the burden of persuasion to the petitioner

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

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

State       practically     impossible,"     unless     we    adopt      the    court     of

appeals' construction in Hager.

       ¶36     The State argues that rational basis scrutiny applies

because the procedures for obtaining a discharge trial do not

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

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

       20
       The   Fourteenth   Amendment   to    the  United   States
constitution   states,  in   relevant    part:     "[n]o   State
shall . . . deprive any person of life, liberty, or property,
without due process of law . . . ."     U.S. Const. amend. XIV,
§ 1.
       21
       Article I, Section 1 of the Wisconsin Constitution
states: "All people are born equally free and independent, and
have certain inherent rights; among these are life, liberty and
the pursuit of happiness; to secure these rights, governments
are instituted, deriving their just powers from the consent of
the governed." The protections afforded by Article I, Section 1
of the Wisconsin Constitution are the "substantial equivalent"
to those afforded by the Fourteenth Amendment to the United
States Constitution.     Neiman v. Am. Nat'l Prop. & Cas. Co.,
2000 WI 83, ¶8, 236 Wis. 2d 411, 613 N.W.2d 160.


                                           22
                                                         Nos.    2015AP330 & 2015AP1311



analysis is appropriate in Chapter 980 cases because of the

liberty interest involved."

       ¶37    We agree with the State and conclude that rational

basis    review      applies.          Involuntary      commitments      in    general

implicate      the     fundamental       right     to    be     free    from     bodily

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

procedures used in commitment proceedings do not implicate a

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

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

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

that he was entitled to application of the amended version of

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

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

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

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

process required applying the amended version of the statute,

and that it implicated a fundamental right triggering strict

scrutiny.       Id.,    ¶40.      We    held    that    "[a]lthough     Chapter      980
involuntary     commitment       implicates      the     right    to   freedom      from

bodily restraint, the availability of the [amended version of

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

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

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

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

       ¶39    Similarly, the burden of production required to obtain

a discharge trial is a procedural matter that does not implicate
the committed person's fundamental right to freedom from bodily
                                           23
                                                          Nos.   2015AP330 & 2015AP1311



restraint.       Consequently, we apply rational basis review as we

did    in    Alger.    Under     rational        basis    review,      legislation   is

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

rational      relationship     to    a    legitimate       government        interest."

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

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

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

substantive      due   process      as    well    as     procedural     due    process.

Substantive      due   process      protects      individuals         from   government

action that "abridges the Constitution's fundamental constraints

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

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

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

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

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

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

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

       1.    Act 84 does not violate the right to substantive due
                                 process.
       ¶41    The right to substantive due process requires that the

State carry the burden of persuasion at the initial commitment

trial and at every subsequent discharge trial.                           Addington v.

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

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

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

production to ensure that a discharge trial would be worthwhile.
State v. Post, 197 Wis. 2d 279, 327, 541 N.W.2d 115 (1995).

                                           24
                                                                  Nos.    2015AP330 & 2015AP1311



       ¶42     We     have         recognized          that       Chapter        980        "passes

constitutional muster because the physical confinement of the

individual       is       linked    to     the     dangerousness          of    the     committed

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

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

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

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

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

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

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

important consideration in this regard is the availability of

various         "methods . . . for                  regularly             determining           the

dangerousness          of    the        person     and      reducing       or    removing       the

physical       restrictions         when     the      person      is     less    or    no    longer

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

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

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

not changed by Act 84.                    See, e.g., Post, 197 Wis. 2d at 327.
Under    both       the    Act     84    standard      and     the     prior     standard,      the

committed person receives a discharge trial only upon satisfying

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

discharge trial is conducted where the State must prove by clear

and convincing evidence that the person continues to meet the

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

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

conclude       that       § 980.09(2)       does      not    permit       circuit      courts    to
weigh    the     evidence,         Act     84    has     not      shifted       the    burden    of
                                                 25
                                                           Nos.     2015AP330 & 2015AP1311



persuasion    to    the    committed      person,         as        the   legislatively-

imposed burden on the committed person is not to convince the

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

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

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

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

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

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

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

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

criminal proceedings).
     ¶44 The changes made by Act 84 are rationally related to

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

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

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

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

related to protecting the public because it ensures a discharge

trial only when a committed person presents sufficient facts to

show   that   his    condition      has    changed;            as    we   identified   in

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

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

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

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

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

concurring in part, dissenting in part)).                           Further, Act 84 is


                                          26
                                                        Nos.    2015AP330 & 2015AP1311


reasonably    related     to    conserving      public       resources       because   it

ensures that a discharge trial occurs only when the committed

person   demonstrates      a    likelihood       of    success      in   a    discharge

trial.

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

     ¶45     Procedural        due    process        claims     are      analyzed      by

balancing three factors:


     (1) the private interest that will be affected by the
     state action;

     (2) the risk of an erroneous deprivation of the
     private interest through the procedures utilized and
     the probable value of added or substitute procedural
     safeguards; and

     (3) the state's interest, which includes the function
     involved and the fiscal and administrative burdens
     that the added or substitute procedural requirements
     would impose.
State v. Kaminski, 2009 WI App 175, ¶13, 322 Wis. 2d 653, 777

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

Wis. 2d 570, 580-81, 350 N.W.2d 612 (1984)).
     ¶46     No party disputes that the private interest of liberty

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

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

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

     ¶47     The risk of erroneous deprivation of liberty is slight

because the standard ensures that a committed person receives a

discharge    trial   when      new    facts     are    present      that     provide    a
likelihood of success at a discharge trial.                         The only way to


                                           27
                                                                   Nos.    2015AP330 & 2015AP1311



eliminate         all     risk       of     erroneous           deprivation       is     to    grant

discharge         trials       on        request      no    matter       the     facts    alleged;

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

the    public       from        sexually         violent        offenders        and     preserving

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

protecting         the     public         from       sexually      violent        persons     is     a

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

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

judicial resources" is a legitimate government interest).                                          Act

84    strikes      a     reasonable            balance      between       ensuring       committed

persons are released when they are no longer sexually dangerous,

protecting the public, and preserving scarce judicial resources

by    ensuring      discharge             trials      occur      only     when    the    committed

person is likely to succeed.

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

requirements of an initial burden of production imposed upon

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

guaranteed        by     the    Fourteenth            Amendment      to    the    United      States
Constitution            and     Article         I,     Section       1     of    the     Wisconsin

Constitution.

 C.    Carter's Counsel did not Perform Deficiently by Failing to
              Contest Application of Act 84 to Carter.
       ¶49    Carter          alleges          that       his    counsel        was    ineffective

because      he    did        not    challenge        the       application      of     Act   84    to

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

before Act 84's effective date.



                                                     28
                                                                    Nos.      2015AP330 & 2015AP1311



    ¶50        In order to prevail on his ineffective assistance of

counsel      claim,      Carter          must    prove       that       his   counsel    performed

deficiently and that the deficiency prejudiced him.                                          State v.

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

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

Chapter      980     commitment).               If    Carter        fails       to    prove    either

deficient performance or prejudice, we need not consider the

other.       Id., ¶50.

    ¶51        Though         statutes           generally              apply        prospectively,

procedural         and     remedial         statutes          may        apply       retroactively.

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

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

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

examine      the     text      of    the        statute       for       an    express    statement

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

contain       an     express         statement          concerning            retroactivity,          we

determine whether the statute is procedural or substantive and

apply    a    presumption           of    retroactivity            to    procedural       statutes.
Id., ¶40.          If a statute is procedural, we determine whether one

of three exceptions to retroactivity overcomes the presumption:

interference          with      a        vested        right,           interference          with     a

contractual         right,     or        imposition          of    an    unreasonable         burden.

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

because      it     includes        within       it     no    statements          concerning         its

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

three exceptions to the presumption of retroactive application
of procedural statutes are present.                               Accordingly, we hold that
                                                  29
                                                         Nos.   2015AP330 & 2015AP1311



Act 84 applies retroactively to Carter.                   Because Act 84 applies

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

to contest the retroactive application of Act 84 before the

circuit court.

     1.     Act 84 contains no language concerning retroactive
                             application.
    ¶52     We look first to the language of Act 84.                         Trinity

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

not contain any language concerning its retroactive application.
See 2013 Wis. Act 84.

                           2.     Act 84 is procedural.

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

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

procedural, the presumption of retroactivity attaches; if it is

substantive,       the     statute      is     presumed     prospective.          Id.

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

enforcing     a    right     or    remedy"     whereas     substantive      statutes

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

Id., ¶41 & n.25 (citing Betthauser v. Med. Protective Co., 172
Wis. 2d 141, 147-48, 493 N.W.2d 40 (1992)).

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

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

hearing at which the State must prove by clear and convincing

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

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

not to a certain burden of production to obtain the hearing
described in Foucha.            Post, 197 Wis. 2d at 327.             Act 84 changes

                                          30
                                                    Nos.   2015AP330 & 2015AP1311



the    method    used    to   determine   whether   he     is   entitled   to   a

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

trial itself, and so is procedural in nature.

       3. None of the exceptions to retroactivity overcome the
         presumption of retroactivity for procedural statutes.
  a.    Carter does not have a vested right to a discharge trial.

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

three    exceptions      to   retroactive    application    of    a   procedural

statute overcome the presumption of retroactivity.                    Id., ¶53.
The    first    exception     precludes     retroactive    application     of   a

procedural statute if such application would interfere with a

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

"presently legally enforceable . . . not dependent on uncertain

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

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

       ¶56     Carter has a constitutional right to a discharge trial

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

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

ability to obtain a discharge trial is fundamental to Chapter
980's constitutionality.         Id.   However, a right cannot be vested

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

Wis. 2d 500, ¶50.

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

made a statutory offer of settlement for $724,000 pursuant to




                                       31
                                                               Nos.    2015AP330 & 2015AP1311



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

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

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

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

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

question       was    whether    Lands'      End    was       entitled     to   12    percent

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

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

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

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

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

entitled       to    interest    at    the   rate    of       one     percent     plus   prime

because the right to interest did not vest until a judgment

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

the right to interest on a judgment exceeding the statutory

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

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

contingent on his meeting the burden of production set forth in
Wis. Stat. § 980.09(2).               We agree with the court of appeals that

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

constitutes          the   "appropriate            circumstances"            entitling       a

       22
       Wis. Stat. § 807.01 encourages settlement in civil
actions by providing incentives for parties to make and accept
settlement offers.   Subsection four, at issue in Lands' End,
Inc. v. City of Dodgeville, 2016 WI 64, 370 Wis. 2d 500, 881
N.W.2d 702, awards interest from the date of a statutory offer
of settlement if the prevailing party recovers more than was
offered. § 807.01(4).


                                             32
                                                  Nos.    2015AP330 & 2015AP1311



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

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

production, which he has not done.

   b.     Carter does not have a contractual right to a discharge
                                 trial.
      ¶59    The second exception to retroactive application of a

procedural statute is whether it interferes with a contractual

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

claims that Carter had any contractual right to a discharge
trial, and we cannot find any basis to conclude that he does.

 c.     Carter never articulates how retroactive application of Act
                      84 unreasonably burdens him.
      ¶60    The final exception to retroactive application of a

procedural statute applies where a party faces an unreasonable

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

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

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

is a single sentence, stating:

      Carter submits the new burden imposed on him to
      warrant a discharge trial ("allegations of facts" or
      "change in a person's condition" from the record as a
      whole from which the court or jury would "likely"
      conclude the person's condition has changed since the
      most recent order denying a petition for discharge
      after   a  hearing  on   the  merits)  would   be  an
      unreasonable one.
Carter never articulates what about retroactive application of

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

that the enactment of Act 84 itself is the unreasonable burden.
The   mere    application   of   a    statute   that     provides    additional


                                       33
                                                             Nos.   2015AP330 & 2015AP1311



procedural     hurdles     to    achieve          a    desired       end    is     not   an

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

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

     ¶61   Furthermore, whether the aggrieved party could have

complied     with    the   new       statute      is    an     important       factor    in

determining whether retroactive application of a statute imposes

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

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

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

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

plaintiff since the plaintiff could have complied with the new

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

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

conclusions of law on the issue of unreasonable burden after

noting that whether the aggrieved party could have complied with

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

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

tailor his efforts to obtain a discharge trial around compliance
with Act 84.         This is demonstrated by the fact that Carter's

attorney   argued     Carter's       case    with      the    express      understanding

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

express understanding, as well as the fact that Carter never

develops any argument to the contrary, that we hold compliance

with Act 84 would not have placed an unreasonable burden on

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

Wis. 2d 351, 847 N.W.2d 352 (quoted source omitted) ("Typically,


                                            34
                                                      Nos.      2015AP330 & 2015AP1311



appellate courts do not take it upon themselves to create and

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

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

enumerated      exceptions     to    retroactivity         apply.        Thus,      the

presumption      of   retroactivity      controls         and     Act   84    applies

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

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

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

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

                               IV.    CONCLUSION

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

appeals   and    remand      the    matter    to    the    circuit      court    with

directions to apply the statute in accordance with the analysis

in this opinion to determine whether Hager is entitled to a

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

court of appeals because the circuit court applied the statute

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

    ¶64    We hold as to both Hager and Carter that the court of
appeals erred in concluding that Wis. Stat. § 980.09(2) limits

circuit courts to considering only the evidence favorable to

petitions for discharge.            We hold that circuit courts are to

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

they deem helpful to their consideration of the petition, which

may include facts both favorable as well as unfavorable to the

petitioner.

    ¶65    We further hold that Wis. Stat. § 980.09(2) does not
violate   the    constitutional       right    to   due      process     of   law    as
                                        35
                                                    Nos.   2015AP330 & 2015AP1311



guaranteed   by    the   Fourteenth     Amendment    to    the   United   States

Constitution      and    Article   I,    Section     1     of    the   Wisconsin

Constitution,      and    furthermore,       Carter's      counsel     was   not

ineffective for failing to challenge retroactive application of

Act 84 to Carter.



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

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

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

v. Carter is affirmed.




                                        36
                                                      No.   2015AP330 & 2015AP1311.dk




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

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

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

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

incompatible with the prescription that "circuit courts are to

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

helpful   to   their       consideration      of    the     petition,    which      may

include   facts     both    favorable    as    well    as    unfavorable       to   the

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

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

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

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

interested direct how courts are to review discharge petitions

in two important ways.         The first addresses the information the

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

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

the legislature amended how the court is to address each of
these topics.

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

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

    [T]he court may consider the record, including
    evidence introduced at the initial commitment trial or
    the most recent trial on a petition for discharge, any
    current or past reports filed under s. 980.07,
    relevant facts in the petition and in the state's
    written response, arguments of counsel, and any
    supporting documentation provided by the person or the
    state.



                                         1
                                                  No.    2015AP330 & 2015AP1311.dk


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

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

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

matter     whether    it     is   beneficial      or     detrimental        to    the

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

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

information the court is supposed to analyze.

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

analyze the information described by the first directive.                         The

purpose of the analysis is to determine what the jury would

likely conclude from that information:             "If the court determines

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

likely conclude       the person no longer meets the criteria for

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

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

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

the court would determine whether the petitioner had identified

"facts from which the court or jury may conclude that the person
does not meet the criteria for commitment as a sexually violent

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

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

     1
       Prior to 2013, this provision directed the court to
consider only a subset of the record. See Wis. Stat. § 980.09(2)
(2011-12).
     2
       Prior to the 2013 amendments, the court was to determine
only whether the petitioner had identified "facts from which the
court or jury may conclude that the person does not meet the
criteria for commitment as a sexually violent person."      Wis.
Stat. § 980.09(3) (2011-12).


                                       2
                                                      No.   2015AP330 & 2015AP1311.dk


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

identified by the first directive.

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

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

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

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

neither term addresses itself to the purpose of that scrutiny.

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

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

evidence    favors       the    petitioner     and    some     of     it   does    not?

Certainly, the instruction that courts are to examine "facts

both favorable as well as unfavorable to the petitioner" must

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

competition with another.

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

determine   what     a    fact-finder      would     likely    conclude     from   the

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

this analysis except that we are not to "weigh" the evidence.
Majority op., ¶28 ("Hager and Carter argue that circuit courts

may not weigh the evidence in favor of a discharge petition

against the evidence opposed to the petition when determining

whether the committed person has met his burden of production.

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

conclusion is it saw no legislative authorization to do so:

      As we held in Arends, if the legislature wanted
      circuit courts to weigh evidence, it could use
      appropriate terms of art such as "probable cause" or
      "preponderance of the evidence" to so indicate.    It
      did not use such terms in previous iterations of Wis.

                                           3
                                                          No.    2015AP330 & 2015AP1311.dk

      Stat. § 980.09(2), and it did not elect to do so in
      Act 84, either.
Id., ¶28 (internal citation omitted).

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

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

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

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

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

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

one of the very terms the court said indicates a legislative

direction to weigh evidence.                 Webster's Third New International

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

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

probable").

      ¶73    The other reason the court believes the evidence may

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

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

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

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

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

the burden of persuasion for discharge to the committed person

is impermissible because to do so would violate the committed

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

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

require the committed person to prove he is no longer sexually

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

elements     of    evidence      that    exist      in     tension.          Whether    the
petitioner       must    prove     he   is    no    longer       dangerous       is   not   a

                                             4
                                                                 No.   2015AP330 & 2015AP1311.dk


function of weighing, but of the standard the weighing must

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

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

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

petitioner to prove he is no longer dangerous.

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

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

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

petitioner no longer meets the criteria for commitment.                                             As

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

amount       of     experience         in     evaluating           whether         a     probability

warrants       a    new     trial.           In     the    "ineffective            assistance        of

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

when counsel's performance is both deficient and prejudicial.

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

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

the    result       of    the        trial    would       have       been    different        absent

counsel's deficient performance.                         See id. at 694.               We apply that
test     even      when     the       claimed       deficiency          is     the       failure    to

introduce helpful evidence or object to harmful evidence.                                           See

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

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

witness at trial to give testimony contradictory to that of the

State's eyewitness had a reasonable probability of affecting the

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

defendant);         State       v.    Krueger,          2008     WI App 162,           ¶¶17-18,     314
Wis. 2d 605, 762 N.W.2d 114 (holding that counsel's deficient

                                                    5
                                                                No.   2015AP330 & 2015AP1311.dk


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

witness     prejudiced        defendant        because      there        was       a       "reasonable

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

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

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

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

present at trial facts that would cast doubt on the credibility

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

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

thus constituting prejudice).

      ¶76     Conducting         the    prejudice      analysis             in    each          of    these

cases required the court to evaluate the effect of the disputed

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

had to weigh the evidence to determine whether its inclusion or

exclusion would have              been likely to bring                   about a different

result.       We have never said that the reasonable probability

standard requires the defendant to prove the result would be

different.          He    must    only      demonstrate          there       is        a   reasonable
probability it would be different.                     There is no reason we cannot

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

which   we    measure       the     weighed         evidence          does       not       exceed          the

legislatively prescribed "likelihood."

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

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

evidence      of     record       demonstrates         a    likelihood             (that             is,    a

reasonable         probability)        that     a     fact-finder            would          find           the
petitioner      no       longer    meets      the     criteria          for        commitment,               I

                                                6
                                        No.   2015AP330 & 2015AP1311.dk


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

because demonstrating a reasonable probability does not shift

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

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

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

prevents the court from weighing conflicting evidence.

    ¶78   I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins this concurrence.




                                  7
                                                         No.    2015AP330 & 2015AP1311.ssa




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

majority addresses a myriad of issues raised by amendments to

Chapter 980 of the statutes.              Although I largely disagree with

the majority's views of the constitutionality and legality of

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

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

Act 84 amendments to Wis. Stat. § 980.09.

       ¶80   The   majority        delivers      a       useless,        unworkable,      and

potentially unconstitutional standard for §§ 21 and 23 of the

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

helpful to the bench, bar, or litigants.

       ¶81   The   majority       concludes      that         the   2013    amendments     to

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

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

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

changed such that the petitioner no longer meets the statutory

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

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

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

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

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

petitioner must now produce a larger quantum of evidence such

that    a    reasonable         factfinder       would         likely       find     in   the

petitioner's favor.
       ¶82   How can a court determine what a jury "would likely

conclude" without weighing the evidence favorable to discharge
                                           1
                                                                No.      2015AP330 & 2015AP1311.ssa


against the evidence unfavorable to discharge?                                   Moreover, how is

this inquiry meaningfully different from a burden of persuasion

by a preponderance of evidence?                         Convincing a factfinder that a

proposition is more likely true than not true is literally what

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

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

the proposition that a petitioner must convince a judge is more

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

petitioner's favor at a discharge hearing.

     ¶83       The majority's interpretation of the amended statute

creates    additional           problems.           If        determining         whether      a     jury

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

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

legislature        raise       the     burden           of     production         further?           For

example,       what     principle           would       prevent          the    legislature          from

conditioning a Chapter 980 discharge hearing on a petitioner's

burden    to    first         produce       evidence          such       that    it    is    beyond    a

reasonable        doubt        that     a    jury        will        conclude         in     favor    of
petitioner?        Under the majority's interpretation, is it possible

to avoid weighing the evidence under a more stringent burden of

production?        At what point under the majority's interpretation

will a burden of production become so onerous as to necessitate

the weighing of evidence and constitute a burden of persuasion?

     ¶84       Rather than face reality and impart helpful direction

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

statute    requires           the     weighing          of    evidence          and    is    therefore
constitutionally suspect), the majority merely directs judges to

                                                    2
                                                     No.   2015AP330 & 2015AP1311.ssa


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

allegations     in   the   filings    and     the    evidence     in    the   record.

Majority op., ¶¶4, 29-30, 64.

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

direction to carefully examine but not weigh the evidence, the

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

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

statute.     Such a subterfuge is not helpful in understanding or

applying the statute.           If the amended statute truly does not

necessitate the weighing of evidence, then the majority should

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

§ 980.09 now requires without weighing evidence.

    ¶86    For the reasons set forth, I dissent.

    ¶87    I    am   authorized      to   state      that     Justice    ANN     WALSH

BRADLEY joins this dissent.




                                          3
    No.   2015AP330 & 2015AP1311.ssa




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