Wisconsin Statutes

Wis. Stat. § 980.09 (2026)

Petition for discharge

✓ current as of July 2026

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980.09980.09 Petition for discharge.

980.09(1)(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 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.

980.09(1m)(1m)

980.09(1m)(a)(a) If the person files a petition for discharge under sub. (1) without counsel, the court shall serve a copy of the petition and any supporting documents on the district attorney or department of justice, whichever is applicable. If the person petitions for discharge under sub. (1) through counsel, his or her attorney shall serve the district attorney or department of justice, whichever is applicable.

980.09(1m)(b)(b) If the person files a petition for a discharge under sub. (1) without counsel, as soon as circumstances permit, the court shall refer the matter to the authority for indigency determinations under s. 977.07 (1) and appointment of counsel under s. 977.05 (4) (j).

980.09(1m)(c)(c) If a person files a petition for discharge under sub. (1), the person may use experts or professional persons to support his or her petition. The district attorney or the department of justice may use experts or professional persons to support or oppose any petition filed under sub. (1).

980.09(1m)(d)(d) After receiving a petition for discharge under sub. (1) and upon the request of the person filing the petition, unless the court previously appointed an examiner under s. 980.031 (3) or 980.07 (1) for the current reexamination period, the court shall appoint for the person an examiner having the specialized knowledge determined by the court to be appropriate. If an examination conducted under s. 980.07 (1) within the 6 months preceding the filing of the petition supports discharge, the court may appoint the examiner who conducted that examination as the examiner for the person. The examiner shall have reasonable access to the person for purposes of examination and to the person’s past and present treatment records, as defined in s. 51.30 (1) (b), and patient health care records, as provided in s. 146.82 (2) (c). The county shall pay the costs of an examiner appointed under this paragraph as provided under s. 51.20 (18) (a).

980.09(2)(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.

980.09(3)(3) The court shall hold a trial within 90 days of the determination that 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 as a sexually violent person. At trial, the state has the burden of proving by clear and convincing evidence that the person meets the criteria for commitment as a sexually violent person.

980.09(4)(4) If the court or jury is satisfied that the state has not met its burden of proof under sub. (3), the person shall be discharged from the custody of the department. If the court or jury is satisfied that the state has met its burden of proof under sub. (3), the court shall proceed under s. 980.08 (4) to determine whether to modify the person’s existing commitment order by authorizing supervised release, unless the person waives consideration of the criteria in s. 980.08 (4) (cg). If the person waives consideration of these criteria, the waiver is a denial of supervised release for purposes of s. 980.08 (1).

980.09(5)(5) If a court orders discharge of a committed person under this section, the court shall stay the execution of the order so that the department may comply with its statutory duties under s. 980.11 (2) and (3). The stay of execution may not exceed 10 working days and shall be for as short a period as necessary to permit the department to comply with s. 980.11 (2) and (3).

980.09 HistoryHistory: 1993 a. 479; 1999 a. 9; 2003 a. 187; 2005 a. 434; 2013 a. 84 ss. 10 to 12, 21 to 25; 2013 a. 168 s. 20.

980.09 AnnotationPersons committed under this chapter must be afforded the right to request a jury for discharge hearings under this section. State v. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995), 94-2356.

980.09 AnnotationProgress in treatment is one way of showing that a person is not still a sexually violent person under former sub. (2) (a), 2001 stats. A new diagnosis is another. A new diagnosis need not attack the original finding that a person was sexually violent, but focuses on the present and is evidence of whether the person is still a sexually violent person. State v. Pocan, 2003 WI App 233, 267 Wis. 2d 953, 671 N.W.2d 860, 02-3342.

980.09 AnnotationUnder sub. (1), the circuit court engages in a paper review of the petition only, including its attachments, to determine whether it 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. This review is a limited one aimed at assessing the sufficiency of the allegations in the petition. If the petition does allege sufficient facts, the circuit court proceeds to a review under sub. (2). State v. Arends, 2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 513, 08-0052.

980.09 AnnotationSub. (2) requires the circuit court to review specific items enumerated in that subsection. The court need not seek out items not already within the record. Nevertheless, the court may request additional enumerated items not previously submitted and also has the discretion to conduct a hearing to aid in the court’s determination. The court’s task is to determine whether the petition and the additional supporting materials before the court contain 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. State v. Arends, 2010 WI 46, 325 Wis. 2d 1, 784 N.W.2d 513, 08-0052.

980.09 AnnotationSub. (2) explicitly prescribes a different procedure than that for summary judgment set forth in s. 802.08. As such, summary judgment is not available in discharge proceedings under this section. The state’s burden of proof is implicated only during a hearing under sub. (3). When a trial court granted summary judgment prior to a hearing under sub. (3), no one could say with any certainty whether the state possessed enough evidence to meet its burden of proof. State v. Allison, 2010 WI App 103, 329 Wis. 2d 129, 789 N.W.2d 120, 09-1232.

980.09 AnnotationA research paper is not sufficient evidence to demonstrate that a sex offender’s condition has changed. New actuarial research, absent a psychological examination, is not enough to demonstrate that an offender is no longer a sexually violent person. State v. Richard, 2011 WI App 66, 333 Wis. 2d 708, 799 N.W.2d 509, 10-1188.

980.09 AnnotationThe only reasonable construction of the “condition has changed” in sub. (1) is that it encompasses all the changes that a fact finder could determine result in the person not meeting the criteria for commitment as a sexually violent person. This language includes not only a change in the person himself or herself, but also a change in the professional knowledge or research used to evaluate a person’s mental disorder or dangerousness if the change is such that a fact finder could conclude the person does not meet the criteria for commitment. The circuit court may not deny a discharge petition without a hearing if the petition alleges facts from which a fact finder could determine that, as a result of any one of those changes, the person does not meet the criteria for a sexually violent person. State v. Ermers, 2011 WI App 113, 336 Wis. 2d 451, 802 N.W.2d 540, 10-2634.

980.09 AnnotationWhen determining whether to hold a hearing on a petition for discharge, the circuit court must determine whether the petitioner has set forth new evidence, not considered by a prior trier of fact, from which a reasonable trier of fact could conclude that the petitioner does not meet the criteria for commitment as a sexually violent person. 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 sub. (2). A doctor’s further reflection on past scoring of a test is not sufficient for a new discharge hearing because it is not new professional knowledge or research about how to predict dangerousness. State v. Schulpius, 2012 WI App 134, 345 Wis. 2d 351, 825 N.W.2d 311, 11-2565.

980.09 AnnotationA petition alleging a change in a sexually violent person’s status based upon a change in the research or writings on how professionals are to interpret and score actuarial instruments is sufficient for a petitioner to receive a discharge hearing, if it is properly supported by a psychological evaluation applying the new research. State v. Richard, 2014 WI App 28, 353 Wis. 2d 219, 844 N.W.2d 370, 12-2748.

980.09 AnnotationThe clear and convincing evidence standard under sub. (3) satisfies due process at a discharge trial under this chapter. State v. Talley, 2015 WI App 4, 359 Wis. 2d 522, 859 N.W.2d 155, 13-0492.

980.09 AnnotationThe petitioner’s socializing more with peers, joining a fitness group, and increased communication from family members were not changes from which a factfinder could determine that the petitioner was no longer a sexually violent person. These facts, which resulted in no change to the evaluating psychologist’s ultimate conclusion or overall risk assessment, were not enough to satisfy the statutory threshold for a discharge hearing set forth in former sub. (2), 2011 stats. State v. Talley, 2017 WI 21, 373 Wis. 2d 610, 891 N.W.2d 390, 13-0950.

980.09 AnnotationSub. (2) allows a circuit court 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. A circuit court may carefully examine those portions of the record the court considers helpful to its consideration of the petition, which may include facts both favorable and unfavorable to the petitioner. State v. Hager, 2018 WI 40, 381 Wis. 2d 74, 911 N.W.2d 17, 15-0330.

980.09 Annotation2013 Wis. Act 84 increased the burden of production under sub. (2) necessary for a committed individual to receive a discharge trial. The burden of production is a procedural matter that does not implicate a committed individual’s fundamental right to freedom from bodily restraint and does not violate the right to due process. State v. Hager, 2018 WI 40, 381 Wis. 2d 74, 911 N.W.2d 17, 15-0330.

980.09 AnnotationThe state is not required to present expert testimony in order to meet its burden of proof on the question of future dangerousness in discharge proceedings under this chapter. State v. Stephenson, 2019 WI App 63, 389 Wis. 2d 322, 935 N.W.2d 842, 18-2104.

980.09 AnnotationAffirmed. 2020 WI 92, 394 Wis. 2d 703, 951 N.W.2d 819, 18-2104.

Notes of Decisions

Cited in 76 cases (10 in the last 5 years), 1995–2026 · leading case: State v. Hager (In Re Commitment of Hager), 911 N.W.2d 17 (Wis. 2018).

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State v. Hager (In Re Commitment of Hager), 911 N.W.2d 17 (Wis. 2018). · cites it 221× “¶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…”

In Re Commitment of Arends, 2010 WI 46 (Wis. 2010). · cites it 204× “[1] Daniel Arends was civilly committed in 2005 as a sexually violent person, and he petitioned for discharge under Wis. Stat. § 980.09 in 2007. *514 The circuit court reviewed the petition for discharge and three reports discussing Arends' propensity for sexual violence and his…”

State v. Thornon F. Talley, 2017 WI 21 (Wis. 2017). · cites it 121× “Although both parties refer to revisions to Wis. Stat. § 980.09 effective December 14, 2013, see 2013 Wis.”

State v. Hager, 2017 WI App 8 (Wis. Ct. App. 2017). · cites it 122× “Hager and the State dispute the effects of certain amendments to the discharge statute, Wis. Stat. § 980.09 , enacted as part of a legislative overhaul of ch.”

State v. Beyer, 2006 WI 2 (Wis. 2006). · cites it 100× “07 and the circuit court's probable cause hearing under Wis. Stat. § 980.09 (2)(a) to determine whether facts exist that warrant a hearing on whether Beyer is still a sexually violent person.”

State v. Ronald Knipfer, 2015 WI 3 (Wis. 2015). · cites it 35× “See Wis. Stat. § 980.09 (1), (2). The State's experts at Alger's and Knipfer's original Chapter 980 commitment trials were not subject to the Daubert evidentiary standard.”

In Re Commitment of Combs, 2006 WI App 137 (Wis. Ct. App. 2006). · cites it 45× “The circuit court held a probable cause hearing pursuant to Wis. Stat. § 980.09 (2)(a) 1 and determined that the re-examination report opining that Combs was not a sexually violent person did not show *460 probable cause to believe that he was no longer a sexually violent person.”

State v. Post, 541 N.W.2d 115 (Wis. 1995). · cites it 24× “Wis. Stat. § 980.09 (1). Mental reexaminations are conducted six months after the initial commitment and every year thereafter "for the purpose of determining whether the person has made sufficient progress to be entitled to transfer to a less restrictive facility, to supervised…”

In Re Commitment of Kruse, 2006 WI App 179 (Wis. Ct. App. 2006). · cites it 47× “The circuit court held a probable cause hearing under Wis. Stat. § 980.09 (2)(a) 1 following a six-month re-examination and concluded there was not probable cause to believe Kruse was no longer a sexually violent person.”

State v. Rachel, 2002 WI 81 (Wis. 2002). · cites it 24× “The other sections that related to petitions for supervised release and discharge, Wis. Stat. §§ 980.09 and 980.10, remained fundamentally unchanged.”

State v. Carter, 2017 WI App 9 (Wis. Ct. App. 2017). · cites it 38× “Carter contends his initial attorney rendered constitutionally ineffective assistance by failing to challenge the retroactive application of the then-recently amended Wis. Stat. § 980.09 to his discharge petition.”

State v. Thayer, 2001 WI App 51 (Wis. Ct. App. 2001). · cites it 37× “980 committed patient, appeals a trial court's orders denying his motion for an evidentiary hearing pursuant to Wis. Stat. § 980.09 (2)(b) (1997-98), 1 his petition for discharge and his motion for a new § 980.”

Show all 76 citing cases →

— Wis. Stat. § 980.09(1) — 20 cases

In Re Commitment of Arends, 2010 WI 46 (Wis. 2010). “[1] Daniel Arends was civilly committed in 2005 as a sexually violent person, and he petitioned for discharge under Wis. Stat. § 980.09 in 2007. *514 The circuit court reviewed the petition for discharge and three reports discussing Arends' propensity for sexual violence and his…”

State v. Ermers, 2011 WI App 113 (Wis. Ct. App. 2011).

State v. Hager, 2017 WI App 8 (Wis. Ct. App. 2017). “Hager and the State dispute the effects of certain amendments to the discharge statute, Wis. Stat. § 980.09 , enacted as part of a legislative overhaul of ch.”

State v. Ronald Knipfer, 2015 WI 3 (Wis. 2015). “See Wis. Stat. § 980.09 (1), (2). The State's experts at Alger's and Knipfer's original Chapter 980 commitment trials were not subject to the Daubert evidentiary standard.”

State v. Hager (In Re Commitment of Hager), 911 N.W.2d 17 (Wis. 2018). “¶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…”

— Wis. Stat. § 980.09(1)(a) — 1 case

State v. Byers, 2003 WI 86 (Wis. 2003).

— Wis. Stat. § 980.09(1)(b) — 1 case

State v. Byers, 2003 WI 86 (Wis. 2003).

— Wis. Stat. § 980.09(2) — 34 cases

State v. Thornon F. Talley, 2017 WI 21 (Wis. 2017). “Although both parties refer to revisions to Wis. Stat. § 980.09 effective December 14, 2013, see 2013 Wis.”

In Re Commitment of Combs, 2006 WI App 137 (Wis. Ct. App. 2006). “The circuit court held a probable cause hearing pursuant to Wis. Stat. § 980.09 (2)(a) 1 and determined that the re-examination report opining that Combs was not a sexually violent person did not show *460 probable cause to believe that he was no longer a sexually violent person.”

— Wis. Stat. § 980.09(2)(a) — 16 cases

State v. Thayer, 2001 WI App 51 (Wis. Ct. App. 2001). “980 committed patient, appeals a trial court's orders denying his motion for an evidentiary hearing pursuant to Wis. Stat. § 980.09 (2)(b) (1997-98), 1 his petition for discharge and his motion for a new § 980.”

State v. Beyer, 2006 WI 2 (Wis. 2006). “07 and the circuit court's probable cause hearing under Wis. Stat. § 980.09 (2)(a) to determine whether facts exist that warrant a hearing on whether Beyer is still a sexually violent person.”

State v. Paulick, 570 N.W.2d 626 (Wis. Ct. App. 1997).

State v. Thiel, 2001 WI App 32 (Wis. Ct. App. 2001).

In Re Commitment of Kruse, 2006 WI App 179 (Wis. Ct. App. 2006). “The circuit court held a probable cause hearing under Wis. Stat. § 980.09 (2)(a) 1 following a six-month re-examination and concluded there was not probable cause to believe Kruse was no longer a sexually violent person.”

— Wis. Stat. § 980.09(2)(b) — 11 cases

State v. Paulick, 570 N.W.2d 626 (Wis. Ct. App. 1997).

State v. Byers, 2003 WI 86 (Wis. 2003).

— Wis. Stat. § 980.09(2)(c) — 3 cases

State v. Mark, 2005 WI App 62 (Wis. Ct. App. 2005).

State v. Thiel, 2004 WI App 140 (Wis. Ct. App. 2004).

State v. Krueger, 2001 WI App 76 (Wis. Ct. App. 2001).

— Wis. Stat. § 980.09(3) — 12 cases

State v. Jamie Lane Stephenson, 2019 WI App 63 (Wis. Ct. App. 2019).

Wisconsin v. Talley, 2015 WI App 4 (Wis. Ct. App. 2014).

State v. Ermers, 2011 WI App 113 (Wis. Ct. App. 2011).

— Wis. Stat. § 980.09(4) — 3 cases

Belleau v. Wall, 132 F. Supp. 3d 1085 (E.D. Wis. 2015).

State v. Stanley E. Martin (Wis. Ct. App. 2021).

State v. Kenneth William Jaworski (Wis. Ct. App. 2022).

— Wis. Stat. § 980.09(4)(cg) — 1 case

State v. James L. Thorin (Wis. Ct. App. 2020).

— Wis. Stat. § 980.09(l)(a) — 1 case

State v. Byers, 2003 WI 86 (Wis. 2003).

— Wis. Stat. § 980.09(l)(b) — 1 case

State v. Byers, 2003 WI 86 (Wis. 2003).

— Wis. Stat. § 980.09(lm)(c) — 1 case

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.