State must pay for housing ordered by circuit court judge, appeals court rules

By Gretchen Schuldt

The state must pay for a Kenosha county-built or designated residential facility for people on supervised release from civil commitments, the state Court of Appeals ruled last week.
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The three-judge panel found the state made "a critical and pervasive error" in its brief by mischaracterizing Circuit Judge Bruce E. Schroeder's order "as requiring the State to 'buy or build a residence to house sex offenders.'” 

The District II appellate judges were Mark D. Gundrum, Shelley A. Grogan, and Maria S. Lazar.

"The court’s orders did no such things," their unsigned opinion said. "They clearly identified Kenosha County as the entity responsible for all facets of the construction or placement of the contemplated structure .... The state's obligation under the orders was merely to pay whatever expenses the county incurred in construction or placement."

Schroeder issued his order in December 2021, after the county was unable to find appropriate housing for two men – Dale H. Peshek and Levin LeDoux – found to be suitable candidates for supervised release from their civil commitments as sexually violent persons.

The order was straightforward:

IT IS HEREBY ORDERED that the County of Kenosha is to construct or place a structure on the grounds of the Kenosha County Detention Center sufficient to meet their requirements under § 980.08(4)(dm), Wis. Stats., to identify an appropriate residential option.

IT IS FURTHER ORDERED that all expenses related to the construction or placement shall be borne by the State of Wisconsin and the County is to report back to the Court within 120 days of the date of this order as to the status of the construction or placement.

The state argued on appeal that it was protected through sovereign immunity, the idea that the state can decide when it can be sued for damages.

"The State’s sovereign immunity arguments cannot withstand scrutiny," the panel wrote.

The issue is not about money damages; it is about the state's statutory responsibility to treat sex offenders, the judges said.

​"(I)t should come as no surprise to the State that such a commitment carries with it financial obligations which it may not dodge under the guise of sovereign immunity," the panel said.  In addition, the judges said, the case does not involve a lawsuit against the state; instead, it is a part of the two men's commitment proceedings.

The appeals court also rejected the state's argument that a 2017 change in the commitment law shifted the responsibility for identifying residential placement to counties.

While that is correct, "the State fails to explain why this legislative change to the manner of locating a residence for persons found eligible for supervised release matters to the narrow funding question at issue in this appeal. ...DHS must pay for any programs or facilities necessary to place a person on supervised release."

The state's contention that there is inadequate funding to pay for the housing also was rejected by the panel. 

The state Supreme Court previously has ruled that "circuit courts could order the creation of facilities necessary for supervised release — adding that the necessary facilities could be ordered 'regardless of cost,'" the panel said.

"​We fail to see why those budgetary complications should control here," it said.