Town of Mentor v. State

2021 WI App 85

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2020AP1681

Complete Title of Case:

TOWN OF MENTOR,

APPELLANT,

V.

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

CHARLES MONTGOMERY,

RESPONDENT-RESPONDENT.

Opinion Filed: November 11, 2021
Submitted on Briefs: May 12, 2021

JUDGES: Blanchard, P.J., Kloppenburg, and Graham, JJ.

Appellant
ATTORNEYS: On behalf of the appellant, the cause was submitted on the briefs of
Anders B. Helquist of Weld Riley, S.C., Eau Claire.

Respondent
ATTORNEYS: On behalf of the petitioner-respondent, the cause was submitted on the
brief of Gabe Johnson-Karp, assistant attorney general, and Joshua L.
Kaul, attorney general.

On behalf of the respondent-respondent, the cause was submitted on
the brief of Jefren E. Olsen, assistant state public defender of Madison.
2021 WI App 85

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 11, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1681 Cir. Ct. No. 2001CI1

STATE OF WISCONSIN IN COURT OF APPEALS

TOWN OF MENTOR,

APPELLANT,

V.

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

CHARLES MONTGOMERY,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Wood County:
ROBERT J. SHANNON, Judge. Affirmed.

Before Blanchard, P.J., Kloppenburg, and Graham, JJ.
No. 2020AP1681

¶1 BLANCHARD, P.J. This chapter 980 commitment case began in
2001 with the filing of a petition in the circuit court requesting that Charles
Montgomery be committed as a sexually violent person. See WIS. STAT. ch. 980
(2019-20).1 The court ordered Montgomery civilly committed to a secure mental
health facility. In June 2020, after Montgomery and the State reached a stipulation
that he met the criteria for supervised release, the court issued an order under
which Montgomery’s residential placement would be in the Town of Mentor, in
Clark County. The court based this decision on a placement report compiled by a
temporary county-created committee that identified the residence as suitable for
Montgomery’s placement and a supervised release plan written by the Wisconsin
Department of Health Services. The Town filed a motion requesting that the court
allow it to intervene in this case as a matter of right. The court denied the motion
and the Town appeals.

¶2 The Town argues that it is entitled to intervene to advance the
position that, under pertinent provisions of chapter 980, Montgomery’s proposed
placement in the Town is improper. We conclude that, when the Town’s
intervention interest is properly understood, the Town fails to meet at least one of
the four required elements to establish entitlement to intervention as a matter of
right under WIS. STAT. § 803.09(1). Specifically, the Town fails to show that
Montgomery’s placement in the Town may as a practical matter impair its ability
to protect its only asserted interest in this case.

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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No. 2020AP1681

¶3 The Town also argues that Montgomery does not meet the
qualifications for supervised release and that this supports the Town’s motion for
intervention. We conclude that the Town forfeited this argument for intervention
because it failed to raise it in the circuit court and we decline to disregard
forfeiture under the circumstances of this case. Accordingly, we affirm.

BACKGROUND

¶4 Montgomery was convicted in 1994 of two counts of second degree
sexual assault of a child. The State petitioned in 2001 for an order committing
Montgomery as a sexually violent person. See WIS. STAT. § 980.01(6)(a), (7);
WIS. STAT. § 980.02(2). At a trial in 2002, a jury found that Montgomery was a
sexually violent person and the circuit court issued a judgment and order
committing him for treatment in a secure mental health facility. See WIS. STAT.
§§ 980.05-.06.

¶5 Pursuant to WIS. STAT. § 980.07(1), Montgomery was subject to
psychological examinations at least once every 12 months to determine if he
qualified either for full discharge from his commitment or for placement on
supervised release. See also WIS. STAT. §§ 980.08(4)(cg), 980.09(3).
Consistently, from 2003 to early 2019, Montgomery’s psychological examiners
concluded that he had not met the statutory criteria for supervised release,
specifically because he had not made “significant progress in treatment.” See
§ 980.08(4)(cg)1.2 However, beginning in 2013, these same examination reports

2
WISCONSIN STAT. § 980.04(4)(cg) provides:

(continued)

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No. 2020AP1681

began reflecting the conclusion that Montgomery’s risk of committing another
sexually violent act was no longer “more likely than not” and in that way tended to
support the conclusion that Montgomery was appropriate for outright discharge
from his commitment. See State v. Stephenson, 2019 WI App 63, ¶12, 389
Wis. 2d 322, 935 N.W.2d 842, aff’d, 2020 WI 92, ¶2, 394 Wis. 2d 703, 951
N.W.2d 819 (to prevail against a discharge petition, the State must prove by clear
and convincing evidence that the committed person still meets the criteria for
commitment, including that the person is dangerous to others because of a mental
disorder that makes it more likely than not that the person would engage in one or
more future acts of sexual violence).

The court may not authorize supervised release unless,
based on all of the reports, trial records, and evidence presented,
the court finds that all of the following criteria are met:

1. The person is making significant progress in
treatment and the person’s progress can be sustained while on
supervised release.

2. It is substantially probable that the person will not
engage in an act of sexual violence while on supervised release.

3. Treatment that meets the person’s needs and a
qualified provider of the treatment are reasonably available.

4. The person can be reasonably expected to comply
with his or her treatment requirements and with all of his or her
conditions or rules of supervised release that are imposed by the
court or by the department.

5. A reasonable level of resources can provide for the
level of residential placement, supervision, and ongoing
treatment needs that are required for the safe management of the
person while on supervised release.

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¶6 At several points between 2009 and 2013, Montgomery petitioned
for discharge and the circuit court denied each petition. See WIS. STAT. § 980.09.
In 2018, represented by counsel, Montgomery filed the petition for discharge that
eventually led to the Town’s motion to intervene as a matter of right and this
appeal. While Montgomery’s petition was still pending, the next two regularly
scheduled psychological examinations occurred. A March 2019 examination
report concluded that Montgomery met all the criteria needed for supervised
release except one. The exception was that, despite Montgomery’s “improved
treatment participation,” he was “not yet demonstrating significant progress in
treatment.” An October 2019 examination report by the same examiner
determined for the first time that he met all of the criteria for supervised release.

¶7 The State and Montgomery reached a stipulation under which
Montgomery withdrew his pending petition for discharge, Montgomery agreed to
pursue supervised release under WIS. STAT. § 980.08, and the State agreed that it
would not object to that request. The parties stipulated that Montgomery “can
meet his burden of proof” to merit supervised release.

¶8 In November 2019, the circuit court issued an order that
acknowledged the parties’ stipulation and determined that Montgomery had
proven his qualification for supervised release by clear and convincing evidence.
Based on this determination and pursuant to WIS. STAT. § 980.08(4), the court in
the same order directed the following. First, Montgomery’s statutorily determined
“county of residence,” Clark County, was to prepare a placement report, relying

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No. 2020AP1681

on a temporary committee composed of county and state officials.3 See WIS.
STAT. § 980.08(4)(dm)1. (establishing membership and function of temporary
committee to determine residential option for county-resident supervisee). The
committee’s placement report would identify “an appropriate option for
community placement” (i.e., a place for him to reside while under supervision)
that would address considerations under § 980.08(4)(dm) that included the
potential for proximity to such areas as public parks or schools. Second, after
receiving the placement report, the Wisconsin Department of Health Services was
to prepare a supervised release plan pursuant to § 980.08(4)(f).4

¶9 After the circuit court issued these directives, but before the
committee submitted its placement report, a February 2020 examination report
was generated based on a regularly scheduled psychological examination. It
concluded that Montgomery was not eligible for supervised release because he
was “not yet making significant progress in treatment.” However, the report
indicated that the examiner was aware of the court’s supervised release decision
and did not “disagree with that ruling.” The examiner further concluded that it
was “substantially probabl[e] that Mr. Montgomery will not engage in an act of
sexual violence while on supervised release.”

3
Pursuant to statutory standards, the state department of health services determined that
Montgomery’s “county of residence” was Clark County. See WIS. STAT. §§ 980.01(1h), 980.105.
The Town does not challenge this particular determination.

All references to “the county” and “the committee” in this opinion are to Clark County
and the temporary placement committee of county and state officials that the county created
pursuant to court order and WIS. STAT. § 908.08(4)(dm).
4
From this point forward we will refer to the Wisconsin Department of Health Services,
as opposed to any county-level department, as “the department.” See WIS. STAT. §§ 980.01(1h),
980.08(4)(dm).

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No. 2020AP1681

¶10 Pursuant to the circuit court’s November 2019 order and WIS. STAT.
§ 980.08(4)(dm)1., Clark County formed the required temporary placement
committee. In a placement report, the committee identified a residence in the
Town that it determined was appropriate under the requirements in § 980.08. The
placement report indicated that the committee had consulted with the Clark
County Sheriff’s Department, satisfying its obligation under § 980.08(4)(dm)2. to
“consult with a local law enforcement agency having jurisdiction over the
residential option.” After receiving the placement report, the department
submitted to the circuit court a supervised release plan for this same proposed
residential placement.

¶11 In June 2020, the circuit court approved the department’s plan and
entered an order for supervised release. See WIS. STAT. § 980.08(4)(g). The court
stayed the order for 60 days to give the department time to prepare the residence
for placement and to issue required notices.

¶12 The Town moved for intervention as a matter of right in July 2020.
See WIS. STAT. § 803.09(1).5 In August 2020, after the expiration of the circuit
court’s stay, the court held a hearing on the Town’s motion, heard objections from
Montgomery and the State, and denied the motion. In making its ruling the court

5
The Town did not move for permissive intervention under WIS. STAT. § 803.09(2),
which permits circuit courts to allow intervention when “[u]pon timely motion … a movant’s
claim or defense and the main action have a question of law or fact in common.” See City of
Madison v. WERC, 2000 WI 39, ¶11 n.11, 234 Wis. 2d 550, 610 N.W.2d 94 (“While intervention
as a matter of right requires a person to be necessary to the adjudication of the action, permissive
intervention requires a person to be merely a proper party.”).

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No. 2020AP1681

noted, with agreement by the parties, that Montgomery had in fact been released
and placed under supervision at the residence in the Town.6

¶13 The Town appeals. The State and Montgomery have each filed a
respondent’s brief in this appeal.

DISCUSSION

¶14 The Town contends that the circuit court erred in denying its motion
to intervene as a matter of right. Our supreme court has explained that a movant
for intervention as a matter of right “must satisfy” each of the following elements:
(1) the motion is timely; (2) “the movant claims an interest sufficiently related to
the subject of the action”; (3) “disposition of the action may as a practical matter
impair or impede the movant’s ability to protect that interest”; and (4) “the
existing parties do not adequately represent the movant’s interest.” Helgeland v.
Wisconsin Muns., 2008 WI 9, ¶¶38-39, 307 Wis. 2d 1, 745 N.W.2d 1 (footnotes
omitted); see also WIS. STAT. § 803.09(1).

¶15 The Town contends that it meets each requirement because its
motion to intervene: (1) was timely filed; (2) identifies the Town’s interest as
being the protection of the public in the Town; (3) alleges that the proposed
placement option for Montgomery approved by the circuit court fails to comply
with WIS. STAT. § 980.08 in several ways and that denying the Town the ability to
intervene and raise alleged non-compliance with § 980.08 provisions impairs the
Town’s ability to protect its identified interest; and (4) alleges that the State has

6
We observe that neither the State nor Montgomery argues that this appeal is moot and
we do not address potential mootness.

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No. 2020AP1681

not adequately represented the Town’s identified interest because the State
allowed violations of the requirements established in § 980.08.

¶16 Montgomery argues that the Town fails to meet any of the four
required elements for intervention under WIS. STAT. § 803.09(1) as set forth in
Helgeland. He contends that the Town’s stated interest in public protection in the
Town lacks a statutory basis and is too general in nature. Montgomery further
contends that the Town forfeited, by failing to raise in the circuit court, any
argument for intervention based on the position that Montgomery does not qualify
for supervised release. The State argues that, when the Town’s interest in this case
is properly understood as being limited to the correct application of all pertinent
provisions in WIS. STAT. ch. 980, the Town fails to show either that this limited
interest in intervening would be impaired by the disposition of those proceedings
or that the State has inadequately represented the Town’s limited interest.

¶17 We conclude that the Town fails to show that its intervention
interest, as properly understood, would be practically impaired by Montgomery’s
placement. We further conclude that the Town forfeited any argument that it is
entitled to intervene as a matter of right so that it can argue to the circuit court that
Montgomery does not qualify for supervised release and we decline to disregard
forfeiture under the circumstances here. Before explaining our conclusions further
and addressing the Town’s arguments, we provide the standard of review in
addition to other legal standards bearing on intervention as a matter of right under
WIS. STAT. § 803.09(1).

I. Legal Standards

¶18 Aside from a circuit court’s determination about the timeliness of a
motion to intervene, we review de novo whether a party has met the required

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No. 2020AP1681

elements for intervention under WIS. STAT. § 803.09(1). See Armada Broad., Inc.
v. Stirn, 183 Wis. 2d 463, 470, 516 N.W.2d 357 (1994); Helgeland, 307 Wis. 2d
1, ¶41.7 Statutory interpretation presents issues of law that we review
independently. See State v. McGee, 2017 WI App 39, ¶11, 376 Wis. 2d 413, 899
N.W.2d 396.

¶19 Turning to intervention under WIS. STAT. § 803.09(1), there is “‘no
precise formula for determining whether a potential intervenor meets the
requirements’” of the statute. Helgeland, 307 Wis. 2d 1, ¶40 (quoted source
omitted). Our supreme court has explained that the intervention statute

“attempts to strike a balance between two conflicting public
policies.” On the one hand, “[t]he original parties to a
lawsuit should be allowed to conduct and conclude their
own lawsuit....” On the other hand, “persons should be
allowed to join a lawsuit in the interest of the speedy and
economical resolution of controversies.”

Id. (footnotes and quoted sources omitted).

7
Montgomery argued in the circuit court that the Town’s motion was untimely, noting
that the court’s June 5, 2020 order approved the department’s supervised release plan and that the
court’s stay had expired by the time of the circuit court hearing addressing the Town’s
intervention motion. We do not address whether the Town’s motion was timely because the
circuit court did not make any clear determination on this issue and timeliness in this context is a
determination for the circuit court to make in its discretion. See Armada Broad., Inc. v. Stirn,
183 Wis. 2d 463, 471, 516 N.W.2d 357 (1994) (“The question of timeliness is left to the
discretion of the circuit court.”).

Separately, while our review of each requirement aside from timeliness is de novo, the
analysis can depend on factual findings made by the circuit court that we will not disturb unless
the findings are clearly erroneous. See Helgeland v. Wisconsin Muns., 2008 WI 9, ¶41, 307
Wis. 2d 1, 745 N.W.2d 1; Armada Broad., Inc., 183 Wis. 2d at 471. On a related note, our
analysis is generally to be “holistic, flexible, and highly fact-specific.” Helgeland, 307 Wis. 2d
1, ¶40 (footnote omitted). However, we do not discern that the circuit court here made factual
findings that are significant to our analysis and the parties do not dispute any material issues of
fact.

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No. 2020AP1681

¶20 As noted, the movant must meet each of the four requirements for
intervention. Nevertheless, the requirements “need not be analyzed in isolation
from one another, and a movant’s strong showing with respect to one requirement
may contribute to the movant’s ability to meet other requirements as well.” Id.,
¶39. Thus, while we discuss some of the requirements here separately, “there is
interplay between [them]; the requirements must be blended and balanced to
determine” whether the Town has a right to intervene. See id. We provide
additional standards regarding the individual elements of a motion to intervene as
a matter of right as needed below.

II. Analysis

¶21 We now preview two subsections of analysis. We first address the
Town’s argument for intervention as a matter of right under WIS. STAT.
§ 803.09(1) on the ground that the Town is entitled to argue to the circuit court
that Montgomery’s placement at the proposed residence within the Town’s
boundaries does not comply with WIS. STAT. § 980.08(4)(dm). We explain why,
as properly understood, the nature and extent of the Town’s “sufficiently related”
interest in the circuit court’s resolution of Montgomery’s supervised release
proceedings relate exclusively to ensuring that the court complies with the
requirements governing the supervised release process in § 980.08(4). Based on
that understanding of the Town’s only “sufficiently related” interest, the Town’s
argument fails for the following reason: The Town does not show that its ability
to protect its only properly understood interest is impaired as a practical matter by
Montgomery’s residential placement in the Town under § 980.08(4)(dm).

¶22 We next address why we conclude that the Town forfeited a separate
argument for intervention by failing to raise it in the circuit court and that the

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No. 2020AP1681

circumstances here do not call for us to disregard forfeiture. Specifically, we
reject based on forfeiture the Town’s argument that it should be allowed to
intervene in order to argue to the circuit court that Montgomery does not qualify
for supervised release under WIS. STAT. § 980.08(4)(cg) based on the conclusions
of the February 2020 examination report. We also explain briefly that we would
affirm on the merits of this forfeited issue if we were to reach it.

Town’s Claimed Interest That Is Sufficiently Related To The Action

¶23 In order to properly analyze the Town’s preserved argument for
intervention, we begin by identifying the extent to which the Town claims an
interest that is “sufficiently related to the subject matter of the action.” See
Helgeland, 307 Wis. 2d 1, ¶38.

¶24 As with the intervention analysis as a whole, the “sufficiently
related” interest element must be addressed in a practical rather than a technical
manner, and in a way that is both flexible and fact-specific. See id., ¶¶43-44. The
focus of this requirement is on the movant’s “‘stated interest in intervention’” as
viewed in light of the competing policies that are being balanced by WIS. STAT.
§ 803.09(1), as noted above. See Helgeland, 307 Wis. 2d 1, ¶44 (quoted source
omitted). Our supreme court has further explained regarding sufficiently related
interests:

[A] claimed interest does not support intervention if it is
only remotely related to the subject of the action. There
must be some sense in which the interest is “of such direct
and immediate character that the intervenor will either gain
or lose by the direct operation of the judgment.” A movant
may intervene as of right when the movant needs “to
protect a right that would not otherwise be protected in the
litigation.”

Id., ¶45 (footnotes and quoted sources omitted).

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¶25 To repeat, the Town identifies its claimed interest for purposes of
intervention as the protection of the public in the Town. The Town’s arguments
regarding how its claimed interest is sufficiently related to the circuit court’s
decision regarding Montgomery’s potential supervised release essentially fall into
two, related categories. First, the Town notes that this safety interest is consistent
with one of the policy goals of chapter 980 generally, and with supervised release
under WIS. STAT. § 980.08 specifically, and argues that it is therefore entitled to
pursue its interest in ensuring that the requirements of § 980.08 are met in this
case. See State v. Rachel, 2010 WI App 60, ¶18, 324 Wis. 2d 465, 782 N.W.2d
443 (“‘the principal purposes of … ch. 980 are the protection of the public and the
treatment of convicted sex offenders who are at a high risk to reoffend in order to
reduce the likelihood that they will engage in such conduct in the future’” (quoting
State v. Carpenter, 197 Wis. 2d 252, 271, 541 N.W.2d 105 (1995))). Second, the
Town argues that its stated interest in protecting the public in the Town is
implicated by the prospect that a person who has been committed following acts of
sexual violence against minors, and who at least in this case presents some risk of
relapsing into sexually violent behavior, may be placed under supervised release in
a Town residence.

¶26 However, as the State and Montgomery note, allowing a
municipality to take a generalized position against the placement of a WIS. STAT.
ch. 980 supervisee anywhere within its boundaries based on a broad interest in
protecting the safety of persons within those boundaries runs contrary to the
current scheme of WIS. STAT. § 980.08. That scheme provides a detailed
procedure for the consideration and identification of potential placement
residences for supervisees and specifically requires that each supervisee be placed
somewhere in his or her county of residence. See § 980.08(dm)-(g). Further,

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No. 2020AP1681

allowing intervention based on such a generalized interest would justify every
municipality in the supervisee’s county of residence being allowed to intervene to
offer the circuit court reasons why his or her residential placement within their
boundaries would risk the safety of all persons within their boundaries. That
result would upset the balance of policies that WIS. STAT. § 803.09(1) attempts to
strike. Put another way, any advocacy by the Town against placing Montgomery
in the Town other than by merely insisting on compliance with pertinent
provisions of § 980.08 would not be advocacy for a result that can be “‘gain[ed] or
lo[st]’” and is not a “‘right’” of the Town that can “‘be protected in the
litigation.’” See Helgeland, 307 Wis. 2d 1, ¶45 (quoted source omitted).8

¶27 At times, the Town appears to take the categorical position that,
contrary to any narrowing of its interest, our decision in McGee establishes that,
under all circumstances, a municipality must be allowed to intervene when a
person committed under WIS. STAT. ch. 980 is placed in that municipality. See
McGee, 376 Wis. 2d 413, ¶¶3 & n.1, 22 (concluding that the county and town of
placement could intervene in proceedings under § 980.08 (2015-16)). Under this
view, McGee stands for the proposition that any arguable failure to follow “the
mandatory supervised release criteria and procedures in Chapter 980” would only
add to an already sufficient, virtually automatic case for municipal intervention.

8
We consider it significant that WIS. STAT. § 980.135 prohibits municipalities from, in
pertinent part, “enforc[ing] an ordinance or resolution that restricts or prohibits a sex offender
from residing at a certain location … so long as” the supervisee is released under WIS. STAT.
§ 980.08 and “is in compliance with all court orders issued under this chapter.” This reflects a
legislative intent to limit municipal involvement in chapter 980 placements of supervisees to
situations in which there is an issue recognizable under the specific procedures and standards of
chapter 980, even though § 980.135 does not specifically refer to the concept of intervention.

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However, in light of statutory changes made by the legislature in the wake of
McGee, that case does not stand for either of these two propositions.

¶28 McGee was decided when the WIS. STAT. ch. 980 framework was
different. It is true that the court in McGee acknowledged that the town and the
county seeking intervention there each had a “‘substantial interest in the well-
being of the residents and property located within its boundaries.’” See McGee,
376 Wis. 2d 413, ¶24 (quoted source omitted). Yet we recognized that other,
narrower interests of the town and the county in that case further supported
intervention, as recognized in WIS. STAT. § 980.08(4) (2015-16). Under the then-
current version of § 980.08(4), the circuit court was required to “authorize … any
local governmental unit in the county of intended placement”—which under some
circumstances could be distinct from the county of residence—“to submit
prospective” residences for supervised placement to the court. See
§ 980.08(4)(cm)-(d) (2015-16); McGee, 376 Wis. 2d 413, ¶¶6, 13. Given this
framework, the county and municipality of placement in McGee each had not only
an interest in “having a meaningful opportunity to be involved in McGee’s
placement process,” but further each was “statutorily entitled to be heard” on the
issue of placement within its boundaries. McGee, 376 Wis. 2d 413, ¶24. The
current version of § 908.08 retains a requirement that the municipality of
placement must be notified before the placement occurs, although not before
supervised release is ordered or a county placement report submitted. See
§ 980.08(6m). However, the current version no longer provides for participation
by the municipality in the process of determining a placement residence. See
§ 980.08(4)(dm). In sum, under current ch. 980 law, unlike the law at the time of
McGee, the Town’s role here as a potential intervenor would not be as a statutorily
mandated participant, but instead as an interested party seeking to make arguments

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about whether the existing parties had taken sufficient steps to see that the
statutory process has been complied with.

¶29 At the same time, however, we now briefly explain that we do not
apply a possible categorical argument by Montgomery, which would preclude
intervention by municipalities in WIS. STAT. § 980.08 proceedings based on the
legislative changes made after McGee. Montgomery appears at times to take the
position that changes to WIS. STAT. ch. 980 after McGee are meant to
automatically disallow municipalities from being able to show a sufficiently
related interest for intervention in the supervised release process. As part of this
argument, Montgomery may mean to suggest that the Town must identify an
interest in the proceedings based on an explicit reference in § 980.08 giving
municipalities such as the Town an active role in the supervised release process.

¶30 If Montgomery aims for this categorical rule, we reject it. As the
Town notes, one general rule is that a potential intervenor as of right “need not
demonstrate that it has a judicially enforceable right to challenge” the decision at
issue. See Wolff v. Town of Jamestown, 229 Wis. 2d 738, 745, 601 N.W.2d 301
(Ct. App. 1999). Further, as noted above, Helgeland calls for a non-technical,
pragmatic analysis, one that tends to avoid the application of categorical rules.
See Helgeland, 307 Wis. 2d 1, ¶43. For these reasons, we do not determine that a
municipality in the position of the Town here could under no circumstances be
entitled to intervention as a matter of right, at least when the motion to intervene is
based on the purported identification of a genuine dispute as to whether WIS.
STAT. § 980.08 procedure had been properly followed. As the Town notes, courts
weighing intervention-as-of-right motions in this context should be mindful of the
observation in McGee that “[s]afety is a paramount consideration in the placement

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No. 2020AP1681

of sexually violent persons … and, therefore, compliance with the statutory
provisions is critical.” See McGee, 376 Wis. 2d 413, ¶11.

¶31 We now return to the specific interest that the Town here asserts as
its basis for intervention as a matter of right. At times, the Town appears to rely
on McGee to support a broad right of intervention in this context. At other times,
it appears to retreat from that position. In any case, by the time of its reply brief,
the Town clarifies that its claimed interest, while connected to the broader theme
of public safety in the Town, is limited to “ensuring Chapter 980’s placement
procedures are followed when a [WIS. STAT. § 980.08 supervisee] is placed in the
Town on supervised release.” That is, the Town acknowledges that it seeks to
intervene for the purpose of arguing to the circuit court why Montgomery should
not be placed at the proposed residence in the Town under the framework of
§ 980.08.

¶32 To that end, the Town heavily rests its arguments for intervention on
the premise that procedural requirements of WIS. STAT. § 980.08 were violated
here, in particular and as discussed below that the committee failed to comply with
the § 980.08(4)(dm) placement procedures in multiple ways. From this premise,
the Town argues that these purported placement-procedures violations show
(1) that the Town’s interest in compliance has not been adequately represented and
(2) that the Town’s ability to protect its interest is impaired by Montgomery’s
resulting placement in the Town. Based on these purported compliance failures,
the Town contends that the circuit court should not have approved either the

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committee’s placement report identifying the placement residence in the Town or
the department’s release plan keyed to that identified residence.9

¶33 Having identified the extent of the Town’s claimed interest that is
sufficiently related to Montgomery’s placement proceedings, we next determine
whether the Town’s claim for intervention meets the intervention element related
to the potential impairment of its ability to protect that claimed interest.10

Impairment Of Ability To Protect Claimed Interest

¶34 As noted above, the Town contends that alleged violations of
statutory procedures by the committee in reaching its placement recommendation
supports the Town’s motion for intervention based on its interest in ensuring
compliance with WIS. STAT. § 980.08 procedure. The Town seeks intervention in
order to show the circuit court that there were two violations of the procedural
requirements in para. (4)(dm). First, the Town contends that the placement of
Montgomery’s residence within 1,500 feet of an All-Terrain Vehicle (ATV) route
violates § 980.08(4)(dm)1.a., which requires that the committee ensure that
Montgomery be placed “not less than 1,500 feet from any school premises, child

9
Given the Town’s exclusive focus on committee compliance with WIS. STAT.
§ 980.08(4)(dm), we do not determine whether there could have been other bases for the Town to
support intervention as a matter of right within the framework of § 980.08.
10
Because we resolve the Town’s argument for intervention based on WIS. STAT.
§ 980.08(4)(dm) on the ground that the impaired-ability element for intervention as of right is not
met, we do not address the State’s argument that the Town’s interest in compliance with
§ 980.08(4)(dm) was adequately represented by an existing party. See Helgeland, 307 Wis. 2d 1,
¶39 (all four elements must be shown). Similarly, in briefly addressing the merits of the Town’s
forfeited argument based on § 980.08(4)(cg), we address only the Town’s failure to establish that
the State did not adequately represent the Town’s interests at the stage of proceedings when the
circuit court determined whether Montgomery qualified for supervised release.

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No. 2020AP1681

care facility, public park, place of worship, or youth center.” Second, the Town
contends that the committee failed to “consult with a local law enforcement
agency having jurisdiction over the residential option” as required by
§ 980.08(4)(dm)2. in preparing the placement report. We conclude that, when the
Town’s interest is properly framed as ensuring compliance with the procedures set
forth in WIS. STAT. ch. 980, the Town fails to establish that its ability to protect
that interest would be practically impaired by the disposition of the action. The
fatal defect in the Town’s argument is that it fails to establish any violation of the
§ 980.08(4)(dm) procedural requirements.

¶35 The Town emphasizes that our review of the denial of its
intervention motion does not call on us to resolve the merits of its arguments that
the circuit court should not have ordered Montgomery to be placed at the proposed
residence. It is true that we do not resolve the merits of the court’s placement
decision. See Helgeland, 307 Wis. 2d 1, ¶9 (noting that the court would not
address the constitutional merits issue underlying the motion for intervention).
However, the Town’s preserved argument for reversal of the circuit court’s
intervention decision rests heavily on the premise that the committee did not
comply with WIS. STAT. § 980.08, and the Town bears the burden of showing that
the disposition of Montgomery’s supervised release and placement would impair
the Town’s ability to protect its interest in ensuring statutory compliance. See
Helgeland, 307 Wis. 2d 1, ¶38. Further, the Town’s arguments regarding the
committee’s alleged noncompliance all depend on uncontested facts about the
proposed placement residence as they relate to the pertinent provisions of
§ 980.08. See State v. James P., 2004 WI App 124, ¶2, 274 Wis. 2d 494, 684
N.W.2d 164 (“Application of a statute to uncontested facts is a legal issue.”).
Under these circumstances, if the uncontested facts show that the committee

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No. 2020AP1681

actually complied with the provisions as a matter of law, then it follows that
Montgomery’s placement in the Town could not leave the Town’s interest
unprotected in the manner that it argues occurred.

¶36 In assessing the Town’s arguments for intervention based on aspects
of the placement process, we assume without deciding that the State, which in the
words of WIS. STAT. § 803.09(1) is an “existing part[y]” in this action, was not
charged by law with ensuring that the county, through the committee that it
created, complied with its obligations under WIS. STAT. § 980.08(4)(dm) and that
the State’s interest in the county’s compliance was not “identical” to the Town’s.
Based on these assumptions, the Town does not need to rebut a presumption of
adequate representation, noted in Helgeland, as to those placement procedures.
See Helgeland, 307 Wis. 2d 1, ¶¶89-91. This is because the only entity arguably
charged with ensuring compliance with para. (4)(dm) placement procedures, the
county through its committee, is not an existing party. Even with these
assumptions in favor of the Town, we conclude that the Town fails to show that
the committee did not fulfill its duties and we conclude further that this amounts to
a failure to show that the Town’s interest in ensuring compliance with the
requirements of para. (4)(dm) was impaired by the circuit court’s decisions
regarding Montgomery’s placement.

¶37 The following is additional background. The placement report states
that the committee “consulted with the Clark County Sheriff’s Office and
requested an investigation of the [placement residence] and surrounding area to
determine whether the property meets statutory criteria for the placement of a
serious child sex offender under [WIS. STAT. §] 980.08(4)(dm)1.a.-c.” The
placement report further includes a brief assessment written by a Clark County
sheriff’s deputy following the deputy’s on-site survey of the placement residence.

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No. 2020AP1681

This assessment states that “[t]here were no residences within 1500 feet” of the
placement residence. The deputy notes that during a visit to the residence he
observed “children riding on a four-wheeler” at a residence more than 1,500 feet
away from the placement residence. The placement report also states that the
committee consulted with “Clark County Planning and Zoning” to obtain an
overhead map of the placement residence and its surroundings, which indicates
that the residence is not within 1,500 feet of the types of areas noted in
§ 980.08(4)(dm)1. such as schools or elder care facilities.

¶38 Continuing with additional background, the Town brought to the
circuit court’s attention that there is an ATV route that is an overlay on the road
where the deputy had observed children riding on an ATV, and that this ATV
route comes within 1,500 feet of the placement residence. The Town further
alleged that its police department had not been formally consulted regarding
Montgomery’s placement within the Town’s boundaries and thus the committee
failed to fulfill the requirement under WIS. STAT. § 980.08(4)(dm)2. that it “shall
consult with a local law enforcement agency having jurisdiction over the
residential option” “[w]hen preparing the [committee’s] report.”11 At the motion
hearing, both the State and Montgomery took the position that the committee had
complied with the pertinent statutory requirements, but neither party disputed the
Town’s allegations that the ATV route comes within 1,500 feet of the residential
placement address or that the Town’s police department had not been formally
consulted as part of the compilation of the report.

11
There is no dispute that at all relevant times the Town of Mentor contracted with the
Village of Merrillan’s police department to provide law enforcement services for the Town. For
ease of reference, we will refer to this as the Town’s police department.

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No. 2020AP1681

¶39 With this background in mind, we conclude that the Town fails to
establish the two ways in which it alleges that the committee’s actions failed to
comply with WIS. STAT. § 980.08(4)(dm).

¶40 First, the Town fails to show that the fact that the placement report
does not identify the ATV route’s proximity to the placement residence as an issue
demonstrates noncompliance with WIS. STAT. § 980.08(4)(dm). Under
§ 980.08(4)(dm)1.a., the legislature has designated the kinds of areas that must be
further than 1,500 feet from residential placement options. Most pertinent here,
this includes “school premises, child care facilit[ies], public park[s], place[s] of
worship, or youth center[s].” See § 980.08(4)(dm)1.a. We do not discern a
developed argument by the Town that a road’s public right-of-way being
designated as an ATV route would fit within the meaning of any statutorily named
area, and we see no basis to so conclude. While a major focus of
§ 980.08(4)(dm)1.a. is on areas that tend to be frequented by children, the statute
does not include more general catchall language matching what the Town refers to
broadly as “attractions for children.” Further, the statutory list of areas omits any
number of obvious areas that would fit such a broad category. Put differently, the
statute does not require that the committee must, as the Town puts it, “avoid areas
with children” in an absolute sense. Further, as Montgomery argues, the Town
fails to explain how an ATV route is different in kind for this purpose than
virtually all manner of roads and paths that young people would be expected to
sometimes ride or walk along.

¶41 The Town relies on a footnote of our decision in McGee in which we
concluded that the failure of a committee to include information about a bike trail
and nearby designated fishing area in the area of a supervised placement residence
violated reporting requirements in WIS. STAT. § 980.08(4)(f) (2015-16) that are in

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No. 2020AP1681

many respects substantially similar to the requirements of current WIS. STAT.
§ 980.08(4)(dm). See McGee, 376 Wis. 2d 413, ¶21 n.5 (citing § 980.08(4)(f)2.
(2015-16) (placement residence should be “not less than 1,500 feet from any …
public park”)). The Town specifically argues that, because we stated in McGee
that the existence of the nearby bike trail and fishing area was “vital” information
that had to be included in the placement report in McGee, it follows that the
committee here should have noted the proximity of the ATV route to the
placement residence and on that basis should have recommended a different
placement residence to the circuit court. See id., ¶¶9, 21 n.5. However, a
combination bike trail and fishing area is recognizable as being akin to a “public
park” that must be accounted for under both versions of the supervised placement
statute, in contrast with the mere designation of a public road’s right-of-way for
use by ATVs.

¶42 Moving to the local law enforcement consultation topic, to repeat,
the committee’s formal consultation was with the sheriff’s department and not
with the Town’s police department. There is no dispute that the sheriff’s
department has jurisdiction over the specific residence where Montgomery was
placed. See WIS. STAT. § 59.28(1) (“Sheriffs … shall keep and preserve the peace
in their respective counties”). The Town essentially contends that the sheriff’s
department is not sufficiently “local” for purposes of WIS. STAT.
§ 980.08(4)(dm)2. and that the Town’s police department is “the only true ‘local’
law enforcement.” As part of these contentions, the Town states (without dispute
from any party) that the sheriff’s department is located 20 miles from the

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No. 2020AP1681

placement residence, as compared to the Town’s police department, which is six
miles away.12

¶43 We agree with the State and Montgomery that it is significant that
WIS. STAT. § 980.08(4)(dm)2. charges the committee with consulting with “a local
law enforcement agency,” not “the … agency,” clearly contemplating situations in
which more than one agency has jurisdiction and qualifies as “local.” See State v.
Arberry, 2018 WI 7, ¶19, 379 Wis. 2d 254, 905 N.W.2d 832 (“‘The’ is a definite
article ‘used as a function word to indicate that a following noun … refers to …
something that is unique.’” (quoted source omitted)). Similarly, in looking to
closely related statutory language in a separate § 980.08 provision addressing local
law enforcement agencies, we see that the legislature has expressly referred to “the
municipal police department … for the municipality … in which the person will
be residing.” See § 980.08(6m). No such language is used here, only the more
general “local law enforcement agency.”

¶44 As to whether the sheriff’s department here is “local” for purposes of
the notification requirement in WIS. STAT. § 980.08(4)(dm)2., we note that “local”
generally means “of, relating to, or characteristic of a particular place[;] not
general or widespread,” or “primarily serving the needs of a particular limited

12
The Town appears to base an argument on law enforcement response time that we
reject as undeveloped. In referring to the relative distances between, on the one hand, the
placement residence and, on the other, the Town’s police department or the county’s sheriff’s
department, the Town takes the position that the sheriff’s department would necessarily have a
slower response time to calls for service at or around the placement residence. But the Town fails
to explain why, in the event of a call for service at or around the placement residence, the Town’s
police department would not respond rather than or in addition to the sheriff’s department. The
Town does not argue that its police department was not provided with some form of notice of the
residential placement under WIS. STAT. § 980.08(6m), nor does it argue that its police department
would be for some reason incapable of responding to calls for service.

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No. 2020AP1681

district.” Local, MERRIAM-WEBSTER.COM DICTIONARY, https://www.merriam-
webster.com/dictionary/local (last visited Nov. 9, 2021). Applying a plain
language interpretation to § 980.08(4)(dm)2., the only reasonable view is that the
sheriff’s department is “local” because it serves the needs of Clark County and not
some larger area. The Town fails to establish that the sheriff’s department is not
“a local law enforcement agency.”

Forfeiture

¶45 The Town asserts that it should be allowed to intervene because it
needs to advocate in the circuit court for the position that Montgomery does not
meet the criteria for supervised release provided in WIS. STAT. § 980.08(4)(cg).
The Town rests this assertion solely on the fact that the February 2020
examination report stated that Montgomery had not made “significant progress in
treatment.” Although aspects of the Town’s argument are unclear, it appears to
contend that the State did not adequately represent the Town’s interest under
§ 980.08(4)(cg) because the State did not change its position in the circuit court
based on the February 2020 examination report—that is, it did not argue based on
the examination report that the court should reverse course on granting
Montgomery supervised release. As part of this argument, the Town contends that
Montgomery’s purportedly improper supervised release impairs the Town’s ability
to advocate for its interest in the protection of the public in the Town under
§ 980.08(4)(cg). We reject this argument because the Town forfeited it by failing
to raise it in the circuit court and we decline to disregard forfeiture.

¶46 “As a general rule, issues not raised in the circuit court will not be
considered for the first time on appeal.” State v. Dowdy, 2012 WI 12, ¶5, 338
Wis. 2d 565, 808 N.W.2d 691. The purpose of this rule “is to enable the circuit

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No. 2020AP1681

court to avoid or correct any error as it comes up, with minimal disruption of the
judicial process and maximum efficiency.” State v. Counihan, 2020 WI 12, ¶26,
390 Wis. 2d 172, 938 N.W.2d 530. “Further, the forfeiture rule gives the parties
and the circuit court notice of an issue and a fair opportunity to address the
objection.” Id., ¶27.

¶47 The Town does not dispute Montgomery’s position that the Town
failed to raise any issue in the circuit court regarding Montgomery’s qualification
for supervised release under WIS. STAT. § 980.08(4)(cg) or that it otherwise called
attention to the February 2020 examination report. Indeed, the Town does not
dispute Montgomery’s contention that the Town explicitly disclaimed any
argument that Montgomery meets the elements for supervised release under
§ 980.08(4)(cg).

¶48 Instead of contesting the fact of forfeiture, the Town contends that
we should exercise our discretion to disregard it. See Counihan, 390 Wis. 2d 172,
¶27 (“The forfeiture rule is a rule of judicial administration, and thus a reviewing
court may disregard a forfeiture and address the merits of an unpreserved issue in
an appropriate case.”); Marotz v. Hallman, 2007 WI 89, ¶16, 302 Wis. 2d 428,
734 N.W.2d 411 (because rule against forfeiture does not relate to appellate
jurisdiction, an appellate court may in its discretion consider an issue not raised in
the circuit court). The Town notes that exercising the discretion to review a
forfeited issue may be appropriate “[w]hen an issue involves a question of law
rather than of fact, when the question of law has been briefed by both parties and
when the question of law is of sufficient public interest to merit a decision.” See
Marotz, 302 Wis. 2d 428, ¶16 (quoted source omitted; alteration in Marotz).
However, we conclude that the Town fails to show that it would be appropriate to
disregard forfeiture here.

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No. 2020AP1681

¶49 The Town observes that both issues—whether Montgomery qualifies
for supervised release and whether the Town is entitled to intervention as a matter
of right—have been fully briefed, and it suggests that both present exclusively
issues of law. It is true that the issue of whether a circuit court should grant a
petition for supervised release is an issue of law. See Rachel, 324 Wis. 2d 465,
¶19. However, our review of a circuit court’s supervised release decision is based
on a sufficiency-of-the-evidence standard that leaves for the circuit court, as the
trier of fact, the role of weighing evidence, including whether to accept or reject
expert opinions. See State v. Brown, 2005 WI 29, ¶¶40, 89, 279 Wis. 2d 102, 693
N.W.2d 715.13 This standard of review is significant here because it is not at all
clear how the State and the circuit court did in fact view, or could have reasonably
viewed, the February 2020 examination report. We do not know how the
examination report did or could reasonably affect the State’s decision to remain a
party to the stipulation with Montgomery or the court’s decision to accept the
stipulation and grant supervised release. Even putting aside the issue of whether
the State could properly disavow a written stipulation under these circumstances,
so far as we can tell on this record the State could have reasonably taken the
position that it was appropriate to stand by its stipulation with Montgomery
despite the conflicting expert opinion arising later in the proceedings. The

13
In State v. Rachel, 2010 WI App 60, ¶19, 324 Wis. 2d 465, 782 N.W.2d 443, we
explained that the sufficiency-of-the-evidence standard articulated in State v. Brown, 2005 WI
29, 279 Wis. 2d 102, 693 N.W.2d 715, continues to apply to the determination of whether to
grant a petition for supervised release, despite the legislature’s decision to alter the burden so that
the committed person must prove by clear and convincing evidence that he or she qualifies for
supervised release. See also WIS. STAT. § 980.08(4)(cg)-(cj); State v. West, 2011 WI 83, ¶75 &
n.20, 336 Wis. 2d 578, 800 N.W.2d 929. For this reason, as noted in Rachel, we continue to
defer to circuit court determinations regarding the credibility of witnesses and evaluations of
evidence. See Rachel, 324 Wis. 2d 465, ¶20 (citing Brown, 279 Wis. 2d 102, ¶44).

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No. 2020AP1681

conflicting expert opinions in the most recent examination reports presented an
issue of fact that the State may well have reasonably anticipated that the circuit
court would resolve in Montgomery’s favor.

¶50 The Town also asserts that the issue of whether Montgomery is a
proper candidate for supervised release despite the dueling expert opinions
presents an issue of sufficient public interest to merit our disregarding its
forfeiture. But it fails to develop a supported argument to that effect. The Town
notes in passing that WIS. STAT. § 980.08(4)(cg) “will continue to govern sex
offender supervised releases into the foreseeable future,” but it does not explain
how our addressing the merits of its argument about Montgomery’s qualifications
would aid in developing the law regarding the application of the statute.

¶51 The Town further argues that, because the February 2020
examination report was sealed in the circuit court case file as a confidential
document, the Town had no way of knowing that Montgomery (according to the
Town) does not meet the criteria for supervised release until after the examination
reports became available to the Town through the record in this appeal.14
However, the Town again fails to develop a supported argument that this should
influence whether we apply the forfeiture rule here. In the absence of such an
argument, we are not persuaded that we should consider the Town’s reliance on
the February 2020 examination report as a basis to potentially “blindside” the

14
In opposing the Town’s motion to seal its brief and appendix in this appeal (which this
court denied), Montgomery briefly took the position that the Town should not have access to the
WIS. STAT. § 980.07 examination reports, which are confidential. However, in substantive
appellate briefing, neither the State nor Montgomery argues that we should disregard the Town’s
reliance on the examination reports because of their confidential nature and we do not further
address the confidential nature of the examination reports.

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No. 2020AP1681

circuit court with reversal. See State v. Rogers, 196 Wis. 2d 817, 827, 539
N.W.2d 897 (Ct. App. 1995) (“We will not … blindside [circuit] courts with
reversals based on theories which did not originate in their forum.”).

¶52 We now briefly explain why, if we were to address the merits of the
Town’s intervention argument based on the February 2020 examination report, we
would conclude that the Town has not shown that the State inadequately
represented the Town’s interest in the proceedings under WIS. STAT.
§ 980.08(4)(cg).

¶53 The Town contends that the State failed to fulfill its duty to see that
all standards for supervised release under WIS. STAT. § 980.08(4)(cg) were met,
but it does not dispute that the State had this duty. That is, the Town does not
dispute the position, shared by Montgomery and the State, that the State is charged
by § 980.08(4)(cg) with the duty of protecting the Town’s interest with respect to
whether Montgomery qualifies for supervised release. It is not disputed that the
State has this duty whether the Town’s interest in intervention is understood
broadly as seeking to protect the safety of all persons in the Town or, as we
explain above, understood narrowly as seeking to ensure compliance with each
pertinent provision in § 980.08(4)(cg). Given this concession by the Town, it
bears the burden of rebutting a presumption that the State adequately represented
the Town in protecting its interest. See Helgeland, 307 Wis. 2d 1, ¶¶89, 91.
Pertinent here, it can rebut this presumption by showing that there was improper
“collusion” between the State and Montgomery, that the State failed in its duties,
or that the State had interests that were adverse to the interest of the Town. See
id., ¶¶87, 89.

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No. 2020AP1681

¶54 The Town’s reliance on the purported significance of the February
2020 examination report to make this showing is problematic for the reasons noted
above—the Town does not show that the State was required to conclude that
Montgomery could not still meet his burden to qualify for supervised release under
WIS. STAT. § 980.08(4)(cg), given the circuit court’s role in weighing the
significance of relevant aspects of the examination reports.15 The Town points to
the State’s stipulation with Montgomery as evidence of the State’s interests being
adverse to the Town’s interest, although the Town acknowledges that the fact of a
stipulation could not be counted as “collusion per se.” In any case, whatever
argument the Town means to make on this point, the argument appears to have no
content beyond what we have addressed regarding the February 2020 examination
report. Moreover, all of the Town’s arguments about Montgomery’s qualification
for supervised release under para. (4)(cg) fail to persuasively respond to the
following reasonable position by the State: for the State to fulfill its specific duty
to protect public safety, it needed to balance the potential negative consequences
of Montgomery’s possible supervised release against the possibility that he might
obtain an order of outright discharge, under which he would not be subject to the
conditions of supervised release, which could carry different or additional negative
consequences. See WIS. STAT. §§ 980.08(6m)-(9) (provisions addressing
conditions imposed on supervised release and the violation of conditions),

15
It does not help the Town’s position that the writer of the February 2020 examination
report appeared to take the position that she would defer to the circuit court’s acceptance of the
conclusions in the October 2019 examination report. That is, after stating the conclusion that
Montgomery did not meet the criteria for supervised release, the writer also stated, “However, I
am aware that [Montgomery] was granted [supervised release] and I do not disagree with that
ruling.”

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No. 2020AP1681

980.09(4) (“If the court or jury is satisfied that the state has not met its burden of
proof …, the person shall be discharged from the custody of the department.”).

CONCLUSION

¶55 For all of these reasons, we affirm the circuit court’s denial of the
Town’s motion to intervene as a matter of right.

By the Court.—Order affirmed.

31