                                                               2017 WI 21

                  SUPREME COURT             OF    WISCONSIN
CASE NO.:               2013AP950
COMPLETE TITLE:         In re the commitment of Thornon F. Talley:

                        State of Wisconsin,
                                  Petitioner-Respondent,
                             v.
                        Thornon F. Talley,
                                  Respondent-Appellant-Petitioner.

                          REVIEW OF A DECISION OF THE COURT OF APPEALS

OPINION FILED:          March 9, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          November 10, 2016

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Dane
   JUDGE:               Sarah B. O’Brien

JUSTICES:
   CONCURRED:           Abrahamson, J. joined by Bradley, A. W. J.,
                        concurring (Opinion filed);
                        Zieger, J. joined by Gableman, J., concurring
                        (Opinion filed)
  DISSENTED:
  NOT PARTICIPATING:

ATTORNEYS:


       For the respondent-appellant-petitioner, there was a brief
by David R. Karpe, Elliot M. Fink and Karpe Law Office, Madison,
and oral        argument by David R. Karpe


       For      the    petitioner-respondent     the   cause   was   argued   by
Daniel J. O’Brien, assistant attorney general, with whom on the
brief was Brad D. Schimel, attorney general
                                                                           2017 WI 21
                                                                     NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.     2013AP950
(L.C. No.   2004CI01)

STATE OF WISCONSIN                               :            IN SUPREME COURT

In re the commitment of Thornon F. Talley:


State of Wisconsin,                                                     FILED
            Petitioner-Respondent,
                                                                     MAR 9, 2017
      v.
                                                                      Diane M. Fremgen
                                                                   Clerk of Supreme Court
Thornon F. Talley,

            Respondent-Appellant-Petitioner.




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



      ¶1    REBECCA     GRASSL    BRADLEY,    J.       In     this     review     of    a

Chapter     980   petition       for    discharge,       we     consider       whether

"socializing more with peers," "join[ing] a fitness group," and

increased    communication       from   family   members        are    changes      from

which   a   factfinder    could    determine     Thornon        F.    Talley     is    no

longer a sexually violent person.            We conclude that these facts,

which resulted in no change to the evaluating psychologist's

ultimate conclusion or overall risk assessment, are not enough
to satisfy the      statutory threshold for a discharge hearing set
                                                                       No.   2013AP950



forth   in   Wis.    Stat.     § 980.09(2)     (2011-12).1        We     affirm   the

unpublished     court    of    appeals       decision,2   which    affirmed       the

circuit court order3 denying Talley's petition for a discharge

hearing.

                                 I.   BACKGROUND

        A.   Initial Commitment and Early Discharge Petitions

    ¶2       Talley has been adjudicated delinquent or convicted of

sexually     violent    offenses      three      times,    resulting         in   his

incarceration.       As Talley's release date approached on his last

offense, the State filed a petition for Chapter 980 commitment.

Talley did not contest the petition, and in 2005, the circuit

court ordered Talley committed "to the Department of Health and

Family Services for control, care and treatment until such time

as [he] is no longer a sexually violent person."

    ¶3       Since     being     committed,       Talley     received         annual

reexaminations under Wis. Stat. § 980.07, and he filed several

petitions seeking discharge.             Talley's 2005 and 2006 discharge

petitions were dismissed at Talley's request.                The circuit court

    1
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.     Although both
parties refer to revisions to Wis. Stat. § 980.09 effective
December 14, 2013, see 2013 Wis. Act. 84, neither party asks the
court to decide whether the new version of § 980.09 should be
applied retroactively here. Thus, we apply the 2011-12 version
of the statutes, which was in effect both when Talley filed this
petition and when the circuit court summarily denied it.
    2
       See State v. Talley, No. 2013AP950, unpublished order,
(Wis. Ct. App. Oct. 19, 2015).
    3
        The Honorable Sarah B. O'Brien of Dane County presided.


                                         2
                                                                       No.    2013AP950



terminated his 2007 discharge petition because the psychologist

who conducted the reexamination of Talley never filed a report.

                        B.     The 2008 Discharge Petition

       ¶4     Talley's 2008 discharge petition was tried to a court

in May 2009.      At trial, the State's expert, Dr. William Schmitt,

testified that Talley did not satisfy the criteria for discharge

because:       (1)     Talley      had   Paraphilia    Not   Otherwise       Specified

(NOS), Exhibitionism,4 and Antisocial Personality Disorder, each

of which is a mental disorder that affected his emotional or

volitional capacity and predisposed Talley to commit sexually

violent acts; and (2) Talley fell into the risk category of

being more likely than not to commit another sexually violent

offense if discharged.             Dr. Schmitt explained that, as recently

as February 2009, Talley exposed his erections and talked about

them with female staff; those exhibitionistic actions amounted,

in essence, to "engaging in sexual behavior with a nonconsenting

person."         By     "continu[ing]        to    expose    himself     within     an

institution,"         Talley    showed    ongoing     "difficulty   managing       his
sexual urges and behaviors."               Dr. Schmitt opined that Talley's

high       psychopathy       and    sexual       deviance,   evidenced        by   his



       4
       The Exhibitionism related to Talley's repeated acts of
exposing his erect penis, openly masturbating, attempting to
have female staff or treatment providers notice he had an
erection, and attempting to engage women in discussions about
his erections. His Exhibitionism during confinement resulted in
repeated misconduct reports and multiple convictions for lewd
and lascivious behavior.


                                             3
                                                                     No.      2013AP950



behaviors, made him more likely than not to commit a sexually

violent offense if discharged.

      ¶5    Talley's expert, Dr. Hollida Wakefield, agreed that

Talley had Antisocial Personality Disorder and Exhibitionism,

but she opined that neither disorder predisposed Talley to acts

of sexual violence.           She testified that Exhibitionism is not a

sexually     violent     act,     and    although      Antisocial       Personality

Disorder may cause an individual to be sexually violent, it

requires    the   presence      of    both      high   psychopathy      and    sexual

deviance.    Dr. Wakefield agreed Talley had high psychopathy, but

she   did   not   find   sexual      deviance;      therefore,    she   concluded,

Talley was not more likely than not to commit a sexually violent

offense.

      ¶6    At the end of the trial, the circuit court determined

"the evidence clearly and convincingly show[ed] that Mr. Talley

[was] still a sexually violent person."                 The circuit court made

several findings about Talley:              (1) he had been convicted three

times of sexually violent offenses; (2) he had a mental disorder
that predisposed him to committing sexually violent acts; (3)

his   Exhibitionism       replaced      sexual      violence     because      of   his

confinement;      (4)    he   "clearly      enjoy[ed]     exposing      himself     to

others"; (5) he had not completed treatment; and (6) he remained

a danger to others because his mental disorder made "it more

likely than not that he will engage in future acts of sexual

violence."     Although the circuit court agreed with Dr. Wakefield

that Talley's Exhibitionism is not a                   violent   sexual act,        it
accepted    the   explanation        that       Exhibitionism    likely       replaced
                                            4
                                                                             No.     2013AP950



sexual assault because Talley "ha[d] not had an opportunity to

sexually assault" while confined.                 Ultimately, the circuit court

placed greater weight on Talley's history of sexual violence and

his "antisocial conduct in custody," which was "largely sexual

in nature."

                       C.     The 2010 Discharge Petition

      ¶7      In 2010, Dr. Richard Elwood conducted Talley's annual

reexamination and concluded Talley was not a sexually violent

person and not more likely than not to re-offend.                             He diagnosed

Talley     with     Antisocial       Personality         Disorder       and        Borderline

Personality        Disorder      but     did      not     find        Exhibitionism         or

Paraphilia NOS.         In Dr. Elwood's opinion, Exhibitionism required

exposure to strangers, and Talley's exposures were to treatment

center workers, who were not strangers to him.                          Dr. Elwood also

expressed      doubt     about       Talley's     continued          predisposition          to

sexual violence, noting the record lacked sufficient evidence to

prove Talley engaged in the Exhibitionism for sexual arousal

purposes.         Observing      that    Exhibitionism           is    not     a    sexually
violent offense, Dr. Elwood added that Talley's exposures to

women    he   knew     "may    not    even    have      been   sexually        motivated."

Despite Talley's "moderate to very-high range" of psychopathy,

Dr.        Elwood        could          not       conclude            that           Talley's

"offenses . . . clearly           establish       sexual       deviance."             In    his

static risk assessment, Dr. Elwood concluded that, "Talley poses

a high risk of committing another sex offense but not that he

poses a high risk of committing a sexually violent offense."
The     doctor's     dynamic     risk        assessment        did     not    alter        that
                                              5
                                                                           No.     2013AP950



conclusion.     His report acknowledged that Talley had not made

significant progress in treatment, but Dr. Elwood nevertheless

concluded    "Talley       is   not     a   sexually       violent   person"       because

"Talley would not more likely than not commit another sexually

violent offense if he were released and given the opportunity."

    ¶8      Talley's 2010 discharge petition based on Dr. Elwood's

report   asserted      a    "significant           change    in    diagnoses,"       which

Talley contended warranted a discharge hearing.                              Based on a

comprehensive    review         of   the    court    record,       the    circuit    court

rejected    Talley's       request      and   denied       the    petition       without   a

hearing.     The court's review included the "dozen" evaluations

dating back to Talley's initial confinement.                             Given Talley's

consistent diagnosis "with antisocial personality disorder and

borderline      personality             disorder,"          the      court        assigned

significance    to     the       fact       that    most    experts       found     Talley

predisposed to "future acts of sexual violence."

    ¶9      Also important to the circuit court was the fact that

Dr. Elwood, like Dr. Wakefield, agreed that Talley had both
personality     disorders,           and    the     circuit       court    had     already

rejected Dr. Elwood's opinion that the disorders do not make

Talley a likely violent re-offender.                  As the court explained:

    All experts agree that when there is a combination of
    high psychopathy and sexual deviance, the risk of
    future acts of sexual violence is increased.    At the
    2009 trial Dr. Schmitt opined that Mr. Talley had both
    high psychopathy and sexual deviance; Dr. Wakefield
    was not sure that sexual deviance was present.       I
    concluded that this combination is present in Mr.
    Talley, thus increasing his risk of re-offense.     In
    the present report Dr. Elwood disagrees, concluding

                                              6
                                                                                   No.     2013AP950


       that Mr. Talley's sex offenses do not clearly
       establish sexual deviance.   However this is the same
       evidence I rejected at the discharge trial.
Because Dr. Elwood's report "contain[ed] no new evidence" and

the    circuit     court        had     already       "considered         and    rejected"        the

opinion that Talley's "personality disorders do not predispose

him    to    violent       sexual       offending,"          the    circuit       court     denied

Talley's petition on the grounds that it did "not allege facts

from which the court or jury might conclude that Mr. Talley's

condition has changed since the date of his initial commitment
so that he no longer meets the criteria for commitment."

                           D.    The 2011 Discharge Petition

       ¶10    In 2011, Talley filed another petition for discharge

based on Dr. Elwood's 2011 reexamination report.                                   Dr. Elwood's

risk    assessment         and    conclusion          were    unchanged         from      his    2010

report.        The    circuit         court      nevertheless         decided        to    hold    a

discharge hearing because it had been two years since Talley's

last hearing, it appeared from Dr. Elwood's report that Talley

had    stopped       publicly           masturbating,         and        the    "'science'        of

predicting risk has continued to evolve."
       ¶11    At the jury trial in January 2012, Lloyd Sinclair, the

program director for the detention center where Talley resided,

described the treatment program available to Talley, who was

assigned      to     the    program        for    patients          with       normal     or     high

intelligence who have high psychopathy.                            The program consists of

three phases.          Phase One addresses self-management and how to

live    a    responsible         life     in    day-to-day         functioning.            Once     a
patient      completes          Phase    One,     he    moves       to     Phase    Two,        which

                                                  7
                                                                                 No.    2013AP950



focuses      on     the    specific       sex    offense     component       of    treatment.

When a patient completes Phase Two, he moves to Phase Three,

which combines lessons from the first two phases to ensure the

patient will not re-offend when released.                             Sinclair testified

that       Talley    remained        in    Phase      One,    and     at     times      refused

treatment         altogether.               Talley's         "continue[d] . . . sexual

misbehavior" "raise[d]               alarms"     at   the     treatment      center.           For

example, Talley had repeatedly exposed his erect penis to female

staff, and "if a male [came] into the room, Mr. Talley cover[ed]

up."       Sinclair explained that if Talley wants to be discharged

he needs "to make progress [in treatment] and show that he's

managing himself better."

       ¶12       Dr. Anthony Jurek testified for the State.                             He told

the    jury      that     Talley     had    Exhibitionism,       Paraphilia            NOS,   and

Antisocial Personality disorder with Borderline features.                                      He

testified:

           Talley        has   three      mental     disorders        that       impair       his

            emotional or volitional capacity and predispose him to
            commit acts of sexual violence.

           "[A] person's history of sexual offenses is important

            because       if    an   individual        is     caught       for    the     sexual

            behavior and they're sanctioned for it, they should learn

            from that experience.               It should be less likely that they

            engage in behavior that can cause them sanctions in the

            future."

           When a person "continues to offend over and over again"
            it    indicates        the     person     is     unable    "to       change       that
                                                 8
                                                                            No.     2013AP950



          behavior, and it's a critical element of the diagnostic

          formulation but also plays into the risk assessment."

          Successful participation in treatment, in contrast, can

          suggest a reduced risk of re-offending.                         But Talley had

          not   successfully         participated           in     treatment,       and     he

          committed       dozens    of   sexual          misconduct       offenses    while

          confined.

         Talley's exhibitionistic behavior has a sexual overtone

          to it.      He exposes himself for sexual gratification.

         "[T]he     deviance      underl[ying]           the    Exhibitionism       is    the

          same deviance that underlies the earlier sexual offenses

          of record."

    ¶13     Moreover,       Dr.     Jurek         expected       that,    if   no     longer

confined, Talley would go beyond Exhibitionism and return to

committing sexually violent offenses.                           According to actuarial

risk instruments, Talley was more likely than not to commit acts

of sexual violence if discharged.                    In response to Dr. Elwood's

opinion    that      Exhibitionism       is       inapplicable        because       Talley's
exposures are not to strangers, Dr. Jurek explained the only

reason Talley is not exposing to strangers is because he is

confined:       "So if he has the opportunity to expose himself to

strangers,      he    certainly      will.         But    where     no    strangers       are

available, he will expose himself to unsuspecting staff."

    ¶14     Dr.       Elwood       testified        for         Talley.        On     direct

examination,         he   indicated      that        he     diagnosed       Talley        with

Antisocial      Personality         Disorder        and      Borderline        Personality
Disorder, but unlike Dr. Jurek, did not diagnose Talley with
                                              9
                                                                         No.        2013AP950



Paraphilia NOS or Exhibitionism.                Although Dr. Elwood explained

his   strict        application      of        the     DSM-IV         definition          for

Exhibitionism       as   "expos[ing]           one's     self     to     unsuspecting

strangers,"    he    also    acknowledged        that,    in    light     of    Talley's

"difficulty with sexual activities and sexual urges," "Dr. Jurek

ma[d]e a good point that it may be better to make a broader

interpretation of [Exhibitionism] in penal situations or when

they're incarcerated" because when an individual is confined,

"all of the residential staff are known to you, so there can't

be a stranger."

      ¶15   When     asked   about   Dr.       Jurek's        opinion    that        Talley

exposed himself for sexual gratification, Dr. Elwood answered,

"I just don't think I have sufficient evidence to determine"

whether Talley's arousal was tied to the exposure or his self-

manipulation.       Dr. Elwood could not "say for sure that [Talley]

was being aroused specifically by the exposing itself."                                  When

asked whether Talley was sexually deviant, Dr. Elwood responded:

      I couldn't say.     I'm not saying he's not sexually
      deviant. I don't have evidence to say that. But I do
      not think I have sufficient evidence to say that he
      meets the usual criteria for sexual deviance as
      identified in the literature. . . . He certainly has
      some evidence of something.
      ¶16   Talley's     attorney    then       asked    Dr.     Elwood        to    assess

Talley's risk of engaging in future sexually violent acts:                               "So

without     that    deviance    finding        and     what     you    found        in    the

actuarial tables, do you feel Mr. Talley presents a risk of

sexual violence in the future?             I guess [to] what degree do you
feel he presents a sexual risk—a risk of sexual violence?"                                Dr.

                                          10
                                                                    No.        2013AP950



Elwood answered, "I think I can best say I don't know."                             When

Talley's lawyer asked, "And why is that?", Dr. Elwood responded,

"I just don't think that the evidence to me is clear enough to

say    that."       Dr.   Elwood     talked    about   Talley's     risk       of    re-

offending being "well over 51 percent."                  Talley's lawyer then

tried to clarify:

       Q [Talley's attorney:] So clearly there's a risk of
         reoffense, but the risk of deviance is not more
         likely than not in your opinion?

       A [Dr. Elwood:] I think it's important to distinguish
         between my saying that it's not over 51 percent and
         saying I do not have enough evidence to say that it
         is over 51 percent.

       Q [Talley's attorney:]         Okay.

       A    [Dr. Elwood:]    At this point I'm saying that I
            cannot say to a degree of professional confidence
            that it exceeds 51 percent likelihood of committing
            another sexually violent act.
Dr. Elwood further explained that, in the absence of evidence to

"support      a    reasonable    conclusion     that   the   person       meets      the

criteria, then the conclusion is they do not meet the criteria."
When       asked   whether      he   thought    Talley's     commitment         should

continue, Dr. Elwood testified, "I would only say that he does

not meet, in my opinion, the definition of a sexually violent

person in Chapter 980."

       ¶17    On     cross-examination,        Dr.     Elwood      made        several

concessions.         He   acknowledged    that    Talley     (1)   has     a    mental

disorder that predisposes him to commit acts of sexual violence;

(2) falls into the "extremely high" category "on the actuarial
tools for future risk to reoffend;" (3) has not completed sex

                                         11
                                                                               No.    2013AP950



offender treatment; and (4) fondled himself when appearing by

phone       for    a    court     proceeding,         an    incident    that   led     another

psychologist to opine that Talley had "extraordinarily pressing

sexual urges and deficient impulse control."                               Importantly, Dr.

Elwood confirmed he was not testifying that Talley would not

commit sexually violent acts if released; rather, he simply did

not believe there was "enough evidence to opine that" he would.

       ¶18        The jury found Talley was "still a sexually violent

person,"          and     the    circuit    court          denied    his    2011     discharge

petition.          Talley's motion for postcommitment relief was denied

in February 2013, and the court of appeals rejected Talley's

appeal in a published decision in December 2014.                               See State v.

Talley, 2015 WI App 4, 359 Wis. 2d 522, 859 N.W.2d 155 (Ct. App.

2014).

                           E.     The 2012 Discharge Petition

       ¶19        In    July     2012,   Talley       filed    the     discharge      petition

underlying our current review.                    The 2012 petition relied on Dr.

Elwood's annual reexamination of Talley and his report dated
July    3,        2012.         Dr.   Elwood's     2012       report    reached      the   same

ultimate      conclusion          and    overall       risk    assessment      as    his   2011

report:       "Mr. Talley would more likely than not commit another

sex offense but would not more likely than not commit another

sexually violent offense"; thus, "Mr. Talley is not a sexually

violent person."

       ¶20        There was no change between the 2011 and 2012 reports

as     to    the        facts    underlying       the       "Static    (historical)        Risk
Factors."          Both the 2011 and 2012 reports disclose that Talley
                                                 12
                                                                    No.    2013AP950



scored in "the very high risk range" on the Static-99R test,

putting him at "a 68% chance" of being "charged with another sex

offense within 10 years of release from custody."

       ¶21       With respect to the "Dynamic Risk Factors," there was

no change in Elwood's 2011 and 2012 reports concerning Talley's

ability to self-regulate his behavior and act with regard for

the consequences of his actions.               Likewise, there was no change

with   respect       to   treatment     completion    because   Talley     had   not

completed treatment.

       ¶22       The only change in the 2012 report fell under the

"Social      &    Emotional    Functioning"    subset    of   the   dynamic      risk

factors.          The note identified three particular changes:                  (1)

Talley "socialize[d] more with peers in his treatment group";

(2) he "joined a fitness group"; and (3) "more members of his

family" have been "communicating with him."                       Based on those

changed facts, Dr. Elwood "concluded that Mr. Talley has made

recent progress to reduce his risk" on the social and emotional

subset of the dynamic risk factors.                 Talley's reported progress
did not, however, change Dr. Elwood's overall risk assessment or

ultimate         conclusion,    which    remained     identical     to    the    2011

report.

       ¶23       The circuit court denied Talley's petition seeking a

discharge hearing because Dr. Elwood reached the same ultimate

conclusion in his two previous reports——the very conclusion a




                                          13
                                                                    No.     2013AP950



jury rejected just six months earlier.5                Talley appealed, and the

court of appeals affirmed in a summary disposition order, which

concluded     that    the     changes     in     the   2012     report    did    "not

constitute a significant change from the facts that the jury

rejected in the 2011 petition."                  We granted Talley's petition

for review.

                                  II.    DISCUSSION

                             A.   Standard of Review

     ¶24    This case involves the interpretation and application

of Wis. Stat. § 980.09(2), which is a question of law we review

independently, although we benefit from the decisions by the

court of appeals and circuit court.                 See State v. Arends, 2010

WI 46, ¶13, 325 Wis. 2d 1, 784 N.W.2d 513.

                                   B.    Analysis

     ¶25    Talley contends his petition alleged enough facts to

warrant a discharge hearing.6                  He expresses concern that the

court of appeals erroneously measured Talley's facts against a

"significant"        fact    standard      not    found    in     the    applicable
statutory     language.           We    hold    that   Talley's     petition      for

discharge   failed      to    satisfy     the     statutory     threshold       for   a


     5
       Our reference to six months shall not be construed to set
any type of time parameter; rather, it is noted solely to show
that, very recently, a jury rejected the same opinion Dr. Elwood
gives here.
     6
       A discharge hearing is "a trial on the merits of the
discharge petition."    State v. Arends, 2010 WI 46, ¶1, 325
Wis. 2d 1, 784 N.W.2d 513.


                                          14
                                                      No.     2013AP950



discharge hearing.     We also hold the court of appeals' use of

the word "significant" does not alter the outcome.

   1.   Statutory Standard for Discharge Hearing Not Satisfied

    ¶26     Wisconsin Stat. § 980.09 provides, as material:

         (1)   A   committed  person   may   petition   the
    committing court for discharge at any time. The court
    shall deny the 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 shall review the petition within 30
    days and 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. If the court determines that the petition
    does not contain facts from which a court or jury may
    conclude that the person does not meet the criteria
    for commitment, the court shall deny the petition. If
    the court determines that facts exist from which a
    court or jury could conclude the person does not meet
    criteria for commitment the court shall set the matter
    for hearing.
(Emphasis added.)

    ¶27     In State v. Arends, this court described the "two-step

process" for determining whether a person committed under Wis.

Stat. ch. 980 (2005-06) is entitled to a discharge hearing on a

petition.    Arends, 325 Wis. 2d 1, ¶¶3-5.    The first step is a
"paper review of the petition only, including its attachments"


                                 15
                                                                   No.     2013AP950



under Wis. Stat. § 980.09(1), and if the circuit court concludes

the petition sufficiently "alleges facts from which a reasonable

trier of fact could conclude that the petitioner does not meet

the criteria for commitment as a sexually violent person" the

circuit court proceeds to the second step, a review under Wis.

Stat. § 980.09(2).         Arends, 325 Wis. 2d 1, ¶¶3-5.              The second

step involves an expanded review of the petition, with "all past

and   current    reports    filed   under      [Wis.   Stat.]   § 980.07,"       and

other supporting documentation in the record, to determine if

these materials "contain any facts from which a reasonable trier

of fact could conclude that the petitioner does not meet the

criteria for commitment as a sexually violent person."7                    Arends,

325 Wis. 2d 1, ¶5.

      ¶28   Here, the record suggests, and the parties concede,

the circuit court's decision denying Talley a discharge hearing

involved    a   review    under   Wis.    Stat.     § 980.09(2),   rather       than

§ 980.09(1).        The    standard      the    legislature     pronounced       in

§ 980.09(2) is straightforward:               After considering all of the
materials in the record, the court "shall deny the petition" if

it "determines that the petition does not contain facts from

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

the   criteria    for    commitment."         The   circuit   court      held   that


      7
       Wisconsin Stat. § 980.09(2) uses the terms "could" and
"may" interchangeably.   See Arends, 325 Wis. 2d 1, ¶¶37 n.20,
41, 43.    As pointed out in Arends, the "slightly different
iterations" are "non-substantive word-choice variances."  Id.,
¶37 n.20.


                                         16
                                                                    No.   2013AP950



Talley's    2012      petition   did   not     warrant   a   discharge    hearing

because it contained the same ultimate conclusion and overall

risk assessment rejected by a jury six months earlier.                         The

court found Talley's three self-reported changes would not lead

a factfinder to conclude Talley is no longer sexually violent.

We agree with the circuit court's assessment.8

     ¶29    The    only   new    facts   in     Talley's     2012   petition   are

located under the "Social & Emotional Functioning" subset of the

dynamic risk factors section of Dr. Elwood's report.                       Talley

reported that he was "socializing more with peers," he "joined a

fitness group," and "more members of his family [] recently

began communicating with him."                Dr. Elwood labeled these facts

"recent progress to reduce risk" specifically on the social and

emotional functioning component, but Dr. Elwood's overall risk

assessment and ultimate conclusion remained unchanged since his

2011 report.       As noted, a jury already rejected that conclusion

in January 2012.

     ¶30    Our review thus focuses on whether the 2012 petition's
three new facts, when considered together with our comprehensive

review     of   the    entire    record——including         every    psychological

examination report, every treatment report, and the transcripts

     8
       Talley argues the circuit court failed to review all the
past and current reports in the record and asks us to remand so
the circuit court may do so.        Although the record is not
entirely clear in this regard, there is no need for the remand
Talley requests.    We conducted a comprehensive review of the
evidence, which we may do, see Arends, 325 Wis. 2d 1, ¶48, and
reached the same conclusion as the circuit court.


                                         17
                                                                          No.     2013AP950



from Talley's 2009 bench trial and 2012 jury trial——lead to a

determination     that    a   reasonable         factfinder      "may       [or    could]

conclude" Talley is no longer a sexually violent person.                                  We

conclude these three facts in the 2012 reexamination report do

not satisfy the statutory standard because no reasonable jury

could find that they may mean Talley is no longer a sexually

violent person——particularly when these facts did not alter Dr.

Elwood's prior ultimate conclusion or overall risk assessment,

and where a jury just six months earlier rejected Talley's claim

that he is no longer a sexually violent person.

      ¶31   These facts do not impact any of the three criteria

for   commitment,     which     require        proof    that:       (1)     Talley       was

convicted   of    a   sexually      violent          offense;   (2)    he       currently

suffers from a mental disorder that affects his emotional or

volitional capacity, making him predisposed to commit acts of

sexual   violence;      and   (3)   the    mental        disorder     makes       it   more

likely than not that Talley will engage in more acts of sexual

violence.    See Wis. Stat. §§ 980.01(7), 980.02(2), 980.05(3)(a);
see also Wis. JI—Civil 2506 (2015).                    Criteria (1) and (2) are

undisputed; the only disagreement centers on criterion (3).

      ¶32   Nothing in the record suggests that the advent of the

three facts proffered here may (or could) cause a factfinder to

now conclude that Talley's mental illness will no longer make it

more likely than not that he will commit a sexually violent

offense.     At   the    2012    trial,        Dr.     Elwood   explained         that    he

resolved the third factor in favor of Talley only because he did
not have enough information to decide one way or the other;
                                          18
                                                                         No.   2013AP950



unsurprisingly, this testimony failed to convince the jury that

Talley overcame his predisposition to commit sexually violent

acts.        Since the jury's verdict, Talley reported that he is

"socializing more with peers," he "joined a fitness group," and

"more members of his family [] recently began communicating with

him."        Critically,     these    facts     did   not    alter     Dr.     Elwood's

recently rejected assessment of Talley's risk of re-offending.

      ¶33     We    are   not   convinced      that   Talley's     three       reported

facts——which do not relate to his propensity to commit sexually

violent acts——may result in a jury or court making a different

determination,        absent    any   change     in   diagnosis,       overall     risk

assessment, or ultimate conclusion.                In eleven years, Talley has

not   successfully        completed     treatment;     he    has   not     even   begun

sexual-offender-specific treatment because he has not progressed

beyond the first phase of the treatment program.                         He continues

to engage in sexual misbehavior and Exhibitionism, which all but

two     of    the   psychologists       involved      here    opined      reflects     a

confined person's substitute for sexually violent acts.
      ¶34     Finally,     case   law    supports      the    conclusion        that   a

person       committed    under    Chapter      980   is     not   entitled       to   a

discharge hearing where the current petition contains the same

ultimate conclusion and overall risk assessment a trier of fact

previously rejected.            See State v. Schulpius, 2012 WI App 134,

¶4, ¶¶34-35, 345 Wis. 2d 351, 825 N.W.2d 311 ("[T]he petitioner

must also produce some new evidence, not previously considered

by a trier of fact, which demonstrates that he does not meet the
criteria for commitment under Wis. Stat. ch. 980."); State v.
                                          19
                                                                             No.     2013AP950



Kruse, 2006 WI App 179, ¶35, 296 Wis. 2d 130, 722 N.W.2d 742

("[A]n expert's opinion must depend upon something more than

facts, professional knowledge, or research that was considered

by an expert testifying in a prior proceeding that determined

the person to be sexually violent." (quoting State v. Combs,

2006 WI App 137, ¶¶32-33, 295 Wis. 2d 457, 720 N.W.2d 684)).

"An expert's opinion that is not based on some new fact, new

professional knowledge, or new research is not sufficient for a

new    discharge       hearing         under    § 980.09(2)."           Schulpius,          345

Wis. 2d 351, ¶35.              The court of appeals reached this conclusion

in Schulpius, Kruse, and Combs because "it serves the purpose of

ensuring that a person who is not sexually violent does not

continue in commitment, while avoiding continual re-litigation

of issues."         Combs, 295 Wis. 2d 457, ¶33.

       ¶35     Talley's         2012     petition       is     based        on     the     same

information         that   a    jury    previously      rejected,       plus       three    new

social facts that did not move Dr. Elwood to alter his opinion

and are not the type of facts that would demonstrate Talley is
no    longer    a    sexually      violent      person.        The     three       new   facts

presented      in     Talley's         petition,      therefore,       do    not    merit     a

discharge hearing.             Dr. Elwood's ultimate conclusion and overall

risk    assessment         are    exactly       the     same    as     those       the     jury

considered in finding Talley remains a sexually violent person.

Talley's       increased        socialization,         family    communication,             and

fitness pursuits do not elevate the petition to one "from which

a court or jury may [or could] conclude that the person does not
meet the criteria for commitment."                     See Wis. Stat. § 980.09(2).
                                               20
                                                                          No.     2013AP950



When new facts do not change the doctor's ultimate conclusion or

overall risk assessment and that doctor's conclusion has already

been    rejected      by    a    jury,   we       are    not   convinced       the    three

additional facts asserted here could result in a jury finding in

the     petitioner's        favor.           Accordingly,       the    circuit        court

correctly complied with the statute's directive that it "shall

deny" the petition without a hearing.

               2.    Court of Appeals' Use of "Significant"

       ¶36    Talley expresses concern about the court of appeals'

use    of    the    word    "significant"          in    its   opinion.         The   word

"significant" is not used in the statute, but it is a term

frequently used throughout the record in this case.                           Talley used

it in submitting his 2010 Petition, asserting that Dr. Elwood's

report contained a "significant change in diagnoses."                            The term

was    used    by    the     psychologists         and    treatment      providers        in

describing Talley's progress in treatment.                      For example, "Talley

is     not    considered         to   have     made      significant      progress        in

treatment."         Wisconsin Stat.          § 980.09 does not use the term
"significant"       in     setting    the     standard     required      to     warrant    a

discharge hearing.

       ¶37    Preferably, the court of appeals should have measured

Talley's petition against the actual text of the statute.                               The

court of appeals' use of the term "significant," however, does

not alter the outcome of this case because our application of

the    language     of     the   statutory        standard     results    in    the    same

conclusion reached by the court of appeals.                      The facts contained
in Talley's 2012 petition based on Dr. Elwood's report do not
                                             21
                                                                          No.    2013AP950



satisfy the statutory standard because "socializing more with

peers," "join[ing] a fitness group," and increased communication

from family members are not "facts from which a court or jury

may conclude that the person does not meet the criteria for

commitment."

            3.     Adding Adjectives to Statutory Standard

      ¶38   At oral argument in this case, the parties discussed

whether the "facts" under the statute must be "material" or "of

consequence"      in   order   to    trigger    a    discharge       hearing.          The

legislature did not use these terms, and we will not modify the

2011-12 Wisconsin Statutes to insert them.9                     Adding adjectives to

the statute is unnecessary to resolve this case.                                We simply

apply the statutory language the legislature chose and conclude

that the facts proffered here are not "facts from which a court

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

for   commitment."        Wis.      Stat.    § 980.09(2).            Therefore,        the

statutory standard was not satisfied and no discharge hearing

was required.
                               III.    CONCLUSION

      ¶39   Talley's 2012 petition for discharge differed in only

one   respect     from   his   2011    petition:          Dr.    Elwood       noted   some

"progress    to    reduce      risk"    under       the     "Social       &     Emotional


      9
       As explained supra, note 1, in 2013 the legislature
revised several portions of Chapter 980. Those changes included
an adjustment to the standard in Wis. Stat. § 980.09.     The new
statutory language in subsection (2) allows the court to assess
whether the person's condition has "sufficiently changed."


                                        22
                                                                              No.     2013AP950



Functioning"           component    of    the        dynamic    risk       factors    because

Talley reported he was "socializing more with peers," he had

"join[ed] a fitness group," and "more members of his family []

recently began communicating with him."                         Despite these changes,

Dr.   Elwood's         overall     risk   assessment         and    ultimate        conclusion

remained        unchanged      since      his    2011       report,        which    the     jury

rejected six months earlier when it found that Talley was still

a sexually violent person.

      ¶40       We   conclude      that    a    factfinder         could    not     determine,

based    on     these     three     facts,      that       Talley    no    longer     met    the

criteria for a sexually violent person.                             Thus, Talley's 2012

petition        does    not   satisfy      the       statutory      standard        needed   to

obtain      a    discharge        hearing.            Further,      although        the     term

"significant" does not appear in the language of that statute,

its use by the court of appeals in the summary disposition order

does not alter the outcome of this case.                             Both the court of

appeals and the circuit court correctly ruled that Talley's 2012

petition did not "contain facts from which a court or jury may
conclude        that"     Talley       "does         not    meet     the     criteria        for

commitment,"           Wis.   Stat.      § 980.09(2);          therefore,      the    circuit




                                                23
                                                                 No.   2013AP950



court     appropriately   denied   Talley's     2012   petition        without

holding a discharge hearing.10

     By    the   Court.—The   decision   of   the   court   of     appeals   is

affirmed.




     10
       This opinion cannot and should not be interpreted as the
concurrences speculate.   The opinion does not foreclose Talley
from satisfying the statutory threshold required for a discharge
hearing in a future petition where a psychologist finds he is no
longer a sexually violent person so long as his petition
satisfies    the   new   statutory    threshold   contained   in
§ 980.09(2)(2013-14). See supra n.9. In our current review, as
required by the 2011-12 version of § 980.09(2), we considered
whether Talley's three new facts and all of the psychological
reports in the record may lead a jury to conclude Talley was no
longer sexually violent.     We concluded the three new facts,
which do not impact the three criteria for commitment, see
supra, ¶31, together with Dr. Elwood's report (that was
essentially identical to the previous year's report which a jury
recently rejected), could not lead a jury to find in Talley's
favor.    Thus, Talley's petition did not warrant a discharge
hearing.

     Also, the opinion does not weigh evidence; it considers
whether all the materials in this record, listed in Wis. Stat.
§ 980.09(2), may lead a jury to find Talley is no longer a
sexually violent person.    That is what the 2011-12 version of
§ 980.09(2) required us to do.


                                    24
                                                                    No.   2013AP950.ssa




      ¶41   SHIRLEY S. ABRAHAMSON, J.               (concurring).         I too would

affirm the decision of the court of appeals.                    I do not, however,

join the opinion of the court because it strays too far from the

text of Wis. Stat. § 980.09(2) and fails to provide a practical,

sound interpretation and application of the statutory language

"facts   from    which    a   circuit      court    could    conclude       that    the

petitioner    does     not    meet   the       criteria   for    commitment        as   a

sexually     violent     person."       (Emphasis         added.)         Unlike    the

majority, I conclude that the "facts" must be relevant facts of

consequence to the issue at hand.                 Not just any old facts will

do.

      ¶42   Here are the words of Wis. Stat. § 980.09(2) (2011-12)

(emphasis added):

      (2) The court shall review the petition within 30 days
      and 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. If the court determines that the petition does
      not contain facts from which a court or jury may
      conclude that the person does not meet the criteria
      for commitment, the court shall deny the petition. If
      the court determines that facts exist from which a
      court or jury could conclude the person does not meet
      criteria for commitment the court shall set the matter
      for hearing.
      ¶43   It   is      important      to      recognize       that      Wis.     Stat.
§ 980.09(2) (2011-12) was revised in 2013 (effective Dec. 14,

                                           1
                                                                     No.    2013AP950.ssa


2013).1         Because of the revision, the majority opinion is limited

to interpreting and applying the pre-2013 statute.                         See majority

op.,       ¶1    n.1.       The   majority   opinion    interprets         the   2011-12

version         of   Wis.    Stat.   § 980.09(2)      and    does    not    govern   the

interpretation and application of the revised 2013 statute.                            I

address the 2011-12 version of Wis. Stat. § 980.09(2), as does

the majority opinion.

       1
       The statute            was    amended     in   2013   to     read    as   follows
(emphasis added):

       (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
       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.      If the court
       determines that the record does not contain facts from
       which a court or jury would likely conclude that the
       person no longer meets the criteria for commitment,
       the court shall deny the petition.       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.

     For two recent court of appeals cases applying the amended
statute, see In re Commitment of David Hager, Jr., No.2015AP330,
unpublished slip op. (Wis. Ct. App. Jan. 24, 2017) (recommended
for publication); In re Commitment of Howard Carter, 2015AP1311,
unpublished slip op. (Wis. Ct. App. Jan. 24, 2017) (recommended
for publication).


                                             2
                                                                    No.   2013AP950.ssa


      ¶44    Under Wis. Stat. § 980.09(2), the court decides as a

matter of law, independently of the circuit court and court of

appeals, whether facts exist from which a reasonable fact-finder

may   conclude      that   the   petitioner    does    or    does      not    meet    the

criteria for commitment.2

      ¶45    The majority opinion too often ties the "facts" in the

instant petition to the psychologist's ultimate conclusion or

overall     risk    assessment,    which     remained       the    same      since    the

psychologist's last report, or to a jury's recent denial of

Talley's prior petition.           See majority op., ¶¶1, 29, 30, 32-35,

39.

      ¶46    A     fact-finder    is   not    bound    by    the       psychologist's

ultimate     conclusion     or   overall     risk     assessment        or   the     last

jury's verdict; a fact-finder is bound by the "facts."                             True,

the   psychologist's       unchanged     conclusion       may     be    probative      of

whether     the    petitioner    still   meets      the     commitment       criteria.

But, to the extent that the majority opinion can be interpreted

as requiring a change in the psychologist's conclusions in order
for a court to rule in favor of a discharge hearing, the opinion

goes too far.3

      2
       The facts      alleged are accepted as true. The question of
law presented         to this court is the interpretation and
application of        Wis. Stat. § 980.09(2) to undisputed facts.
State v. Arends,      2010 WI 46, ¶13, 325 Wis. 2d 1, 784 N.W.2d 513.
      3
       "[T]he presence of evidence unfavorable to the petitioner—
—a re-examination report reaching a conclusion that the
petitioner was still more likely than not to sexually reoffend,
for example——does not negate the favorable facts upon which a
trier of fact might reasonably rely."     Arends, 325 Wis. 2d 1,
¶40.


                                         3
                                                                    No.    2013AP950.ssa


       ¶47   In addition to this misstep, the majority makes no

attempt to interpret and apply the statutory word "facts."

       ¶48   Unfortunately, the majority opinion refuses to limit

the facts required in the petition under Wis. Stat. § 980.09(2)

to "significant" facts or "material" facts.                       According to the

majority, "[a]dding adjectives to the statute is unnecessary to

resolve this case."        Majority op., ¶38.

       ¶49   This refusal is disingenuous.                   The majority opinion

readily accepts prior case law adding the word "new" to Wis.

Stat. § 980.09(2).         See majority op., ¶¶29, 30, 34, 35.                    Also,

the majority opinion seems to dismiss as "facts" Talley's self-

reported facts.          See majority op., ¶¶28, 32-33.                   The majority

opinion explains that it could not determine on the basis of the

facts that Talley was no longer a sexually violent person.                           See

majority     op.,    ¶¶36,      37,    40.       The    majority        reaches    this

conclusion    without      an    explanation.          Are    readers     supposed   to

infer that Talley's self-reported facts are to be ignored?

       ¶50   In   contrast      to    the    majority   opinion,     the     court   of
appeals      examined      the       petition     for        "significant"        facts.

Similarly, the State asserts that the facts in the petition must

be "material" facts and facts "of consequence."                           See majority

op., ¶¶36, 38.           But the majority opinion refuses to read the

word    "facts"     as    meaning      "significant"         or   "material"      facts

because, according to the majority opinion, the legislature did

not use the words "significant" or "material."                          See majority

op., ¶38.



                                             4
                                                                         No.      2013AP950.ssa


    ¶51     The    majority        opinion's          reasoning      for       refusing        to

interpret    the     statutory          word       "facts"     as      "significant"           or

"material"    is    specious.           The    applicable       statute,          Wis.     Stat.

§ 980.09(2), explicitly requires the court to consider "relevant

facts in the petition."4                Thus, the very text of § 980.09(2)

requires    the    facts    in    the    petition        to    be   "relevant"           to   the

contested    issue,    that       is,    facts       that     relate    to     whether        the

petitioner does or does not meet the criteria for commitment as

a sexually violent person.

    ¶52     Furthermore, Wis. Stat. § 980.09(2)'s use of the word

"facts" integrally incorporates the concept of relevancy.5                                    The

Wisconsin    Rules     of        Evidence          define     "facts"      as      facts      of

consequence to the determination of the action.6                                   "'Relevant

evidence'    means    evidence          having        any     tendency       to     make      the

existence    of     any     fact        that        is   of     consequence          to       the

determination of the action more or less probable than it would

be without the evidence."           Wis. Stat. § 904.01.
    4
       See also Arends, 325 Wis. 2d 1, ¶32 ("the court . . . is
required to examine . . . relevant facts in the petition and in
the State's written response.").
    5
       "[A]ny fact which tends to prove a material issue is
relevant, even though it is only a link in the chain of facts
which must be proved to make the proposition at issue appear
more or less probable.        Relevancy is not determined by
resemblance to, but by the connection with, other facts."
Oseman v. State, 32 Wis. 2d 523, 526, 145 N.W.2d 766 (1966)
(quoting 1 Ronald A. Anderson, Wharton's Criminal Evidence
§ 148, at 284-87 (12th ed. 1955) (quoted in Judicial Council
Committee's Note, 1974, Wis. Stat. Ann. § 904.01 (West 2000).
    6
       "Chapters 901 to 911 govern proceedings in the courts of
the state of Wisconsin except as provided in ss. 911.01 and
972.11." Wis. Stat. § 901.01.

                                               5
                                                                No.   2013AP950.ssa


       ¶53     The   State   uses   the   words    "material"   and    "facts   of

consequence" rather than the word "relevant" to describe the

statutory word "facts."          These words, "relevant" and "material,"

have       historically   been   used     interchangeably.7      The    following

definitions          of   "relevant"      and     "material,"    appearing      in

McCormick, Evidence (hornbook series), § 152, at 315-16, were

adopted by the court in State v. Becker, 51 Wis. 2d 659, 666-67,

188 N.W.2d 449 (1971):

       In the courtroom the terms relevancy and materiality
       are often used interchangeably, but materiality in its
       more precise meaning looks to the relation between the
       propositions for which the evidence is offered and the
       issues in the case.     If the evidence is offered to
       prove a proposition which is not a matter in issue nor
       probative of a matter in issue, the evidence is
       properly said to be immaterial. * * * Relevancy in
       logic is the tendency of evidence to establish a
       proposition which it is offered to prove.    Relevancy,
       as employed by judges and lawyers, is the tendency of
       the evidence to establish a material proposition.8




       7
       See 10 Ted M. Warshafsky & Frank T. Crivello II, Wisconsin
Practice Series:   Trial Handbook for Wisconsin Lawyers § 13.02
(3d ed. 2016) ("[A]lthough the distinction [between relevance
and materiality] is one of traditional logic and historical
interest, it has little substantive meaning in modern trial
practice.").
       8
       The Wisconsin Rules of Evidence do not refer to the
concept of materiality except in the Comment to Wis. Stat.
§ 904.01. See Wisconsin Rules of Evidence, 59 Wis. 2d R1, R67;
Judicial Council Committee's Note, 1974, Wis. Stat. Ann.
§ 904.01 (West 2000) (the Judicial Council Committee's Note
states that McCormick's view of the distinction between
materiality and relevancy is imported into Wis. Stat. § 904.01
by the phrase "that is of consequence to the determination of
the action.").

                                                                      (continued)
                                          6
                                                          No.   2013AP950.ssa


    ¶54    I agree with the State that the word "facts" in Wis.

Stat.   § 980.09(2)   means   "material   facts,"    or   if    the   reader

prefers, "relevant facts."

    ¶55    I conclude as a matter of law that the "facts" upon

which Talley relies are on the whole short-lived (the facts

occurred within the last six months), and considering the entire

record appear at this time minimal and inconsequential, and are

not facts from which a reasonable fact-finder may conclude that

Talley does not meet the criteria for commitment.

    ¶56    The majority opinion will take litigants and circuit

courts off course.      It overlooks the meaning of the statutory

word "facts" and fails to provide a practical, sound meaning of

the word "facts" used in Wis. Stat. § 980.09(2).

    ¶57    For the reasons set forth, I agree that the decision

of the court of appeals should be affirmed, but I do not join

the majority opinion.

    ¶58    I   am   authorized   to   state   that   Justice    ANN   WALSH

BRADLEY joins this concurring opinion.




     For a more recent discussion of relevancy and materiality,
see 1 McCormick on Evidence § 185, at 994-95 (Kenneth S. Broun
ed., 7th ed. 2013) ("There are two components to relevant
evidence: materiality and probative value. Materiality concerns
the fit between the evidence and the case.      It looks to the
relation between the propositions that the evidence is offered
to prove and the issues in the case. . . . The second aspect of
relevance is probative value, the tendency of evidence to
establish the proposition that it is offered to prove.")


                                      7
                                                                         No.   2013AP950.akz




    ¶59     ANNETTE       KINGSLAND     ZIEGLER,         J.     (concurring).              Like

the court, I conclude that Talley is not entitled to a discharge

hearing.     While I agree with much of the court's analysis, I

write to clarify the opinion and join the opinion only if it is

interpreted       consistent         with    this        concurrence.            In        this

concurrence, I will point out two concerns that I have with the

court's writing and why certain language of the opinion ought

not be misinterpreted.

    ¶60     First, the court's opinion could be read to suggest

that when a committed person relies in a petition for discharge

on the opinion of an evaluating psychologist that has already

been rejected by a trier of fact, only an appropriate change to

the evaluating psychologist's "ultimate conclusion or overall

risk assessment" can entitle that person to a discharge hearing

under     Wis.    Stat.      § 980.09.             I     cannot     accept       such        an

interpretation because doing so would be to write a limitation

in the statute.        To be clear, the plain language of the relevant
statute    can   entitle      a   person     to    a     discharge    hearing         if    the

petition    presents        "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(2).

    ¶61     If the court's opinion were read to require what it

might seem to suggest, committed persons like Talley would be

required to show more than the statute requires.                          Dr. Elwood has
already concluded that Talley would not more likely than not

                                             1
                                                                    No.    2013AP950.akz


commit another sexually violent offense and is not a sexually

violent person.         In the future, new facts strongly suggesting

that   Talley    does    not    meet    the     criteria     for    commitment      may

develop.     These facts, logically, might not change Dr. Elwood's

conclusion that Talley would not more likely than not commit

another sexually violent offense and is not a sexually violent

person.      I am concerned that the court's opinion could be read

to   preclude    a    discharge       hearing      under    those       circumstances,

merely because Dr. Elwood's "ultimate conclusion or overall risk

assessment" had not changed.              While a change to an evaluating

psychologist's "ultimate conclusion or overall risk assessment"

is certainly relevant to the question of whether Wis. Stat.

§ 980.09(2)     has   been     met,    such   a    change    is    not    a   necessary

condition of fulfillment of the statutory threshold.

       ¶62   Second, the court's opinion ought not be read to weigh

evidence     unfavorable     to   Talley      as   part     of    its    inquiry   into

whether Talley is entitled to a discharge hearing under Wis.

Stat. § 980.09(2), contrary to case law.                         Our discussion in
Arends explains the proper analysis:

            We reject the State's argument that the circuit
       court may weigh evidence favoring the petitioner
       directly against evidence disfavoring the petitioner.
       This is impermissible because the standard is not
       whether   the   evidence  more   heavily   favors   the
       petitioner, but whether the enumerated items contain
       facts that would allow a factfinder to grant relief
       for the petitioner.      If the enumerated items do
       contain   such   facts,  the   presence   of   evidence
       unfavorable to the petitioner——a re-examination report
       reaching a conclusion that the petitioner was still
       more likely than not to sexually reoffend, for
       example——does not negate the favorable facts upon
       which a trier of fact might reasonably rely.
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State v. Arends, 2010 WI 46, ¶40, 325 Wis. 2d 1, 784 N.W.2d 513

(footnote omitted).

    ¶63     I    doubt     the   court    intends   either   of    the    potential

defects     I    have     identified.          However,    the    possibility      of

confusion       remains.         Thus,    for    the   foregoing        reasons,   I

respectfully concur and write to clarify these areas of concern

so that the opinion of the court is not misinterpreted.

    ¶64     I    am     authorized   to    state    that   Justice      MICHAEL    J.

GABLEMAN joins this concurrence.




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