source: Caselaw Access Project

author: PATIENCE DRAKE ROGGENSACK, J. LOUIS B. BUTLER, JR., J.

license: Public Domain

text:
    State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Timothy Scott Bailey Smith, Sr., Defendant-Appellant.

    Supreme Court

      No. 2003AP1698-CR.

      Oral argument January 7, 2005.

      Decided July 6, 2005.

    2005 WI 104
    (Also reported in 699 N.W.2d 508.)

      For the plaintiff-respondent-petitioner the cause was argued by James M. Freimuth, assistant attorney general, with whom on the briefs was Peggy A. Lauten-schlager, attorney general.
    For the defendant-appellant there was a brief and oral argument by Patrick M. Donnelly, assistant state public defender.

       Motion for reconsideration denied 9-30-05.

   PATIENCE DRAKE ROGGENSACK, J.

¶ 1. The State of Wisconsin requests review of a published decision of the court of appeals, State v. Smith, 2004 WI App 116, 275 Wis. 2d 204, 685 N.W2d 821. The court of appeals reversed a judgment of the circuit court for Green County, the Honorable James R. Beer, presiding, convicting Timothy Smith, Sr. of two felony counts of failure to pay child support, contrary to Wis. Stat. § 948.22(2) (2001-02). The State argues that the court of appeals erred in concluding that the circuit court violated the constitutional principles articulated in United States v. Gaudin, 515 U.S. 506 (1995), by declining to submit a question to the jury on whether child support was ordered by a "court of competent jurisdiction," as used in § 948.22(1)(a). The State also argues that the court of appeals erred in concluding that the circuit court erroneously exercised its discretion in admitting a copy of a certified copy of a Maine court's child support order.

¶ 2. We conclude that whether a court of competent jurisdiction issued the child support order underlying a prosecution for the crime of failure to pay child support is not an element of that crime. Therefore, the constitutional principles discussed in Gaudin were not implicated when the circuit court declined to submit a question to the jury in that regard. In addition, we conclude that the circuit court did not erroneously exercise its discretion in admitting Exhibit 3, a copy of a certified copy of the Maine court's child support order, as it was admissible pursuant to Wis. Stat. § 909.015(1) and (7). Accordingly, we reverse the decision of the court of appeals and affirm the judgment of the circuit court.

I. BACKGROUND

¶ 3. Timothy Smith ("Smith") and Denise Smith were married in Connecticut in 1977. They had three children. In 1989, they were divorced by a district court in Waldo County, Maine. The divorce judgment did not order Smith to pay child support.

¶ 4. Denise Smith and the children subsequently moved to Wisconsin. In February 1992, a Green County child support case manager filed a petition for child support against Smith on Denise Smith's behalf in the circuit court for Green County. The petition was later transmitted to the Maine Department of Human Services, pursuant to the Uniform Reciprocal Enforcement of Support Act ("URESA"). On October 1, 1992, Smith met with an employee of the Maine Department of Human Services at the Sagadahoc County courthouse, and on the same day, he stipulated to the superior court of Sagadahoc County, Maine's order requiring him to pay $68 per week in child support.

¶ 5. On October 12, 1999, Smith was charged in Green County with two felony counts of failure to pay child support, contrary to Wis. Stat. § 948.22(2), based on allegations that he had not paid child support between July 1, 1996 and August 18, 1997 and again between February 17, 1998 and July 2, 1999.

¶ 6. In pretrial motions and argument, Smith asked the circuit court to conclude that the 1992 Maine court order was invalid. He asserted various reasons for the order's alleged invalidity: (1) it was issued by a court in Sagadahoc County, rather than a court in Waldo County; therefore, it was not issued by a court of competent jurisdiction; (2) his agreement to pay $68 per week in child support was the result of his meeting with an employee of the Maine Department of Human Services, whom Smith contended had no authority to "prosecute" the URESA petition; therefore, the order was invalid; and (3) the Maine court order did not state under which provision of Maine or federal law it was proceeding upon; therefore, it was not a lawful order. Smith asserted these attacks on the Maine order were appropriate because the third element necessary to prove a Wis. Stat. § 948.22(2) violation is that he knew or reasonably should have known that he was legally obligated to pay child support. Smith contended that because he did not believe the order was valid, that affected his state of mind in regard to the third element. Therefore, the question of the order's validity was a proper subject for the jury.

¶ 7. The prosecutor characterized Smith's theories as a disguised collateral attack on the Maine order, an attack he argued should not be permitted because Smith pursued a remedy in the Maine courts. The prosecutor pointed out that Smith admitted that once the support order began to be enforced, he had challenged it in Maine courts, but after losing, he did not complete an appeal. The circuit court concluded that whether the Maine order was valid was a question for the court. The court concluded that it would give "full faith and credit" to the Maine order, which the court determined was a legal question, and it refused to permit Smith to "collaterally attack" the order.

¶ 8. The case was tried before a jury. At trial, Smith shifted his method of attacking the Maine court order somewhat by asking the court to instruct the jury that it was required to find, as an element of the offense, that a court of competent jurisdiction issued the October 1, 1992 child support order. The circuit court declined, concluding that the question of whether the Maine child support order was issued by a court of competent jurisdiction was a legal question that the court had already determined. Additionally, Smith objected to the admission of Exhibit 3, a copy of a certified copy of the Maine child support order, arguing that the document had not been properly authenticated. The circuit court overruled that objection as well.

¶ 9. The jury found Smith guilty of both counts of failure to pay child support, and the circuit court sentenced Smith and filed a judgment of conviction. Smith appealed the judgment, and the court of appeals reversed. The State then petitioned this court for review, which we granted.

II. DISCUSSION

A. Constitutional Challenge

¶ 10. The court of appeals relied on the United States Supreme Court's decision in Gaudin in reaching its conclusion that the circuit court violated Smith's constitutional rights by declining to submit a jury question about whether a court of competent jurisdiction had ordered him to pay child support. In Gaudin, the Supreme Court explained that the Fifth and Sixth Amendments to the United States Constitution "require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." Id. at 510; see also In re Winship, 397 U.S. 358, 364 (1970) ("[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."). We similarly have held that "where the finder of fact is a jury, rather than a judge, proof of all essential elements must be tendered to the jury." State v. McAllister, 107 Wis. 2d 532, 533, 319 N.W.2d 865 (1982) (citations omitted).

¶ 11. In Gaudin, the defendant had been charged with making false statements on federal loan documents. Gaudin, 515 U.S. at 508. The parties did not dispute that the "materiality" of those statements was an element of that offense and that the government bore the burden of proving "materiality." Id. at 509. Rather, in Gaudin, the parties disputed whether the element of "materiality" must be submitted to the jury for determination. Id. The government argued, in part, that the question of "materiality" is a legal question and as such, a question for the court, not the jury, to determine. Id. at 511. However, the Supreme Court held that the determination of "materiality" was a mixed question of fact and law. Id. at 512. The Supreme Court then concluded that all elements of a crime must go to the jury, even those elements that involve a mixed question of fact and law. Accordingly, the Supreme Court held that the jury should have determined whether the defendant's statements were "material." Id. at 512-14.

¶ 12. In the present case, the posture of the question differs from that in Gaudin because Smith and the State dispute whether the question at issue, i.e., whether a "court of competent jurisdiction" issued the Maine child support order, is an element of the crime of failure to pay child support. Because we determine that the question of whether a court of competent jurisdiction ordered Smith to pay child support is not an element of the crime at issue, we also conclude that the constitutional principles articulated in Gaudin are not implicated.

1. Standard of review

¶ 13. Because determination of the statutory elements of a crime is a question of law, our review is de novo. State v. Ruesch, 214 Wis. 2d 548, 552-53, 571 N.W2d 898 (Ct. App. 1997) (citation omitted).

2. Elements of the crime

¶ 14. In McAllister, as in the present case, we were asked to determine the "essential elements" of a crime, and we were asked to do so for the same purpose as in the present case, that is, to decide whether a circuit court had failed to submit an element to the jury for determination, thereby violating the defendant's right to have "proof of all essential elements . . . tendered to the jury." McAllister, 107 Wis. 2d at 533. We began our analysis in McAllister by noting the definition of "crime" provided for by the legislature in Wis. Stat. § 939.12. Id. at 535. Section 939.12 in relevant part provides, "A crime is conduct which is prohibited by state law and punishable by fine or imprisonment or both." (Emphasis added.) Then, to determine the elements of the crime in question in McAllister, we proceeded to examine the statute pursuant to which the defendant had been convicted in order to determine what conduct the statute prohibited, noting that the ordinary sense of the meaning of the word "element" is "the incidents of conduct giving rise to the prosecution," McAllister, 107 Wis. 2d at 535, 538.

¶ 15. Here, too, we examine the statute providing for the crime, Wis. Stat. § 948.22(2), to determine the elements of the crime of failure to pay child support, and we focus on the conduct that is prohibited therein. Section 948.22(2) in pertinent part provides, "Any person who intentionally fails for 120 or more consecutive days to provide spousal, grandchild or child support which the person knows or reasonably should know the person is legally obligated to provide is guilty ...." On the face of § 948.22(2), the elements of this crime are: (1) an intentional failure to provide child support; (2) that continued for 120 or more consecutive days; and (3) actual or constructive knowledge of the legal obligation to provide support. The Jury Instructions Committee has come to the same conclusion, proposing these same three elements in Wisconsin Jury Instructions — Criminal 2152.

¶ 16. A requirement that a court of competent jurisdiction has issued the child support order is found in the definitions section of the statute, Wis. Stat. § 948.22(1). Section 948.22(l)(a) provides:

'Child support' means an amount which a person is ordered to provide for support of a child by a court of competent jurisdiction in this state or in another state, territory or possession of the United States, or, if not ordered, an amount that a person is legally obligated to provide under s. 49.90.

This provision, whether a court of competent jurisdiction issued the child support order, focuses on the characteristics of a court. By contrast, elements of a crime generally are focused on a defendant's conduct. See McAllister, 107 Wis. 2d at 535, 538. For example, in order to violate § 948.22(2), a defendant must intentionally fail to pay, the failure to pay must continue for 120 consecutive days and the defendant must have known or reasonably should have known of the obligation to pay. All of the acts described in subsection (2) focus on the conduct of the defendant, while the phrase relied on by Smith focuses on the characteristics of a court. This leads us to conclude that the phrase is not an element of the crime of failure to pay child support under § 948.22(2). Therefore, the circuit court was not required to give the jury instruction Smith requested in order to satisfy the constitutional requirement that each element of the crime for which a defendant is charged he tendered to the jury. See Gaudin, 515 U.S. at 510; McAllister, 107 Wis. 2d at 532.

¶ 17. Our inquiry, however, does not end there. Smith argues that in Wis. Stat. § 948.22(l)(a), "court of competent jurisdiction" encompasses the concepts of personal jurisdiction, subject matter jurisdiction and a court's "competency," while the State counters that the phrase refers only to a court's subject matter jurisdiction.

¶ 18. To briefly review, subject matter jurisdiction refers to the power of a court to decide certain types of actions. United States v. Morton, 467 U.S. 822, 828 (1984); Kohler Co. v. Wixen, 204 Wis. 2d 327, 336, 555 N.W.2d 640 (Ct. App. 1996); 21 C.J.S. Courts § 10 (1990) ("Jurisdiction of the subject matter is the power to hear and determine cases of the general class to which the proceedings in question belong."). Personal jurisdiction, on the other hand, refers to a court's power "to enter a judgment in personam against an individual party." Kohler, 204 Wis. 2d at 336; accord 21 C.J.S. Courts § 11 ("Jurisdiction of the person is the power of a court to bring before it the person to be affected by the judgment . .. and to render a judgment binding on such person."). However, a court's "competency," as the term is understood in Wisconsin, is not jurisdictional at all, but instead, is defined as "the power of a court to exercise its subject matter jurisdiction" in a particular case. Kohler, 204 Wis. 2d at 337. For example, we have explained that a court may lose its "competency" to adjudicate a particular case if it fails to comply with a variety of statutory procedures, including certain time limitations. Village of Trempealeau v. Mikrut, 2004 WI 79, ¶¶ 12-13, 273 Wis. 2d 76, 681 N.W2d 190.

¶ 19. The legislature has used the phrase "court of competent jurisdiction" in numerous Wisconsin statutes. The parties have not pointed to a single Wisconsin appellate court decision that interprets this phrase in a Wisconsin statute, and our review of Wisconsin case law also has not revealed such a decision.

¶ 20. However, even if we were to conclude, which we do not, that the phrase "court of competent jurisdiction" encompasses one or any number of the characteristics proposed by the parties (i.e., subject matter jurisdiction, personal jurisdiction or competency), the presence or absence of these characteristics is a question of law, to be determined by a court. See Van Deurzen v. Yamaha Motor Corp. USA, 2004 WI App 194, ¶ 9, 276 Wis. 2d 815, 688 N.W.2d 777 (in regard to subject matter jurisdiction); see Marsh v. Farm Bureau Mut. Ins. Co., 179 Wis. 2d 42, 52, 505 N.W.2d 162 (Ct. App. 1993) (in regard to personal jurisdiction); State v. Bollig, 222 Wis. 2d 558, 563, 587 N.W.2d 908 (Ct. App. 1998) (in regard to competence). The only exception would be if Smith had alleged historical facts inconsistent with the Maine court's jurisdiction that the State disputes. However, we are not presented with any factual disputes about which court actually issued the child support order.

¶ 21. And finally, we agree with the circuit court's conclusion that Smith's requested jury instruction was an impermissible collateral attack on the validity of the Maine court order in a proceeding to enforce that order. As has been explained:

A collateral attack is an "attempt to avoid, evade or deny the force and effect of a judgment in an indirect manner and not in a direct proceeding prescribed by law and instituted for the purpose of vacating, reviewing, or annulling it."

State v. Bouzek, 168 Wis. 2d 642, 644-45, 484 N.W.2d 362 (Ct. App. 1992) (quoting Schramek v. Bohren, 145 Wis. 2d 695, 713, 429 N.W.2d 501 (Ct. App. 1988)). Bouzek arose from enforcement proceedings on a harassment injunction. Initially, Bouzek had consented to the issuance of the injunction and negotiated a plea agreement wherein he pled guilty to the violation of the injunction. Bouzek, 168 Wis. 2d at 643. After sentencing, he sought to vacate his conviction on the grounds that the underlying injunction was improperly issued. Id. The court of appeals did not address the merits of Bouzek's arguments because it concluded that the argument constituted an impermissible collateral attack. Id. at 644.

¶ 22. Here, Smith did not plead guilty to failing to pay child support. However, he stipulated to the Maine court's order when it was entered, and after it began to be enforced, he participated in Maine courts to challenge the order's validity. He lost his challenge in Maine and did not pursue an appeal of that judgment. Therefore, the Maine court judgment that is dispositive for purposes of our review is the judgment that held that the Maine court child support order was validly issued. The question of the subject matter jurisdiction of the Maine court decisions is now barred by claim preclusion because when the Maine court held that the child support order was enforceable, that determination necessarily included the determination that the court had subject matter jurisdiction to issue the order. See Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 550, 525 N.W.2d 723 (1995) (claim preclusion determines all matters litigated). As Restatement (Second) of Judgments explains:

Whether a court whose jurisdiction has been invoked has subject matter jurisdiction of the action is a legal question that may be raised by a party to the action or by the court itself. When the question is duly raised, the court has the authority to decide it. A decision of the question is governed by the rules of res judicata and hence ordinarily may not be relitigated in a subsequent action.

Restatement (Second) of Judgments, § 11 cmt. c (1982). Wisconsin follows the Restatement's determination that a decision on the question of subject matter jurisdiction is subject to principles of claim preclusion. See H.N.T. v. State, 125 Wis. 2d 242, 250-51, 371 N.W.2d 395 (Ct. App. 1985). Therefore, while we agree that an order entered without jurisdiction is void and may be challenged at any time, see Neylan v. Vorwald, 124 Wis. 2d 85, 99, 368 N.W.2d 648 (1985), Smith did challenge the child support order in Maine. The resulting judgment confirmed the validity of the child support order. Because he did not appeal the judgment, the principles of claim preclusion are operative to settle the question of whether the child support order was issued by a court of competent jurisdiction. See State v. Donohue, 11 Wis. 2d 517, 523-24, 105 N.W.2d 844 (1960). Accordingly, the circuit court correctly denied Smith's requested jury instruction.

¶ 23. In sum, whether a court of competent jurisdiction ordered a defendant to pay child support is not an element of the crime of failure to pay child support and therefore, a question in that regard need not have been submitted to the jury as an element of the crime. Further, because Smith has not identified a historical fact inconsistent with an incident of the Maine court's jurisdiction that he and the State dispute, whether a court of competent jurisdiction ordered him to pay child support was a purely legal question for the court to determine.

B. Admissibility of Evidence

¶ 24. The State also challenges the court of appeals' reversal of the circuit court's decision to admit Exhibit 3, a copy of a certified copy of the Sagadahoc County, Maine court order. The order requires Smith to pay $68 per week in child support, beginning October 1, 1992, and it is signed both by a justice of the superior court in Maine and by Smith, attesting to his agreement with the order.

¶ 25. At trial, an employee of the clerk's office of the circuit court for Green County, Jean Cook, testified. Cook explained that before working for the clerk of court's office, she was a child support case manager, and in that capacity she assisted Denise Smith in preparing and filing a petition for child support under federal URESA law. Cook described the URESA petition process that was in place in 1992 and followed in Denise Smith's case, which started with a petition being prepared in Green County and then approved by the circuit court for Green County and sent to Maine. Later, on February 1, 1993, a certified copy of the Maine order was received and placed in the file of the circuit court for Green County, numbered 92-FA-021.

¶ 26. In the course of her testimony, Cook located the certified copy of the Maine order in the circuit court's case file 92-FA-021. She identified the official raised seal of the Maine clerk of court's office, as well as an attestation from that office that the order was a true copy. She also testified that she did not receive a judicial certificate indicating that the attestation was in proper form. Additionally, she compared Exhibit 3 and the certified copy of the Maine order in file 92-FA-021, and she testified that Exhibit 3 was a true and accurate copy of the certified copy of the Maine order.

¶ 27. Smith argues that Exhibit 3 should not have been admitted into evidence because it did not comply with 28 U.S.C. § 1738 (2002). The State counters that the exhibit did not need to comply with that federal law and was admissible under Wisconsin statutes, including Wis. Stat. § 909.015(1) and (7). We agree.

1. Standard of review

¶ 28. "We review a circuit court's decision to admit or exclude evidence under an erroneous exercise of discretion standard." Martindale v. Ripp, 2001 WI 113, ¶ 28, 246 Wis. 2d 67, 629 N.W.2d 698.

2. Authentication

¶ 29. Smith argues that the authentication provision of 28 U.S.C. § 1738 must be met for a Wisconsin court to admit an out-of-state court order into evidence. 28 U.S.C. § 1738 provides in relevant part:

The records and judicial proceedings of any court of any ... State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.

(Emphasis added.) Smith contends that, pursuant to 28 U.S.C. § 1738, the Maine court order should not have been admitted without a judge's certification that the Maine court's clerk's attestation was in proper form.

¶ 30. However, as other courts have recognized, 28 U.S.C. § 1738 does not provide the exclusive basis for authenticating a sister state's court order. See Donald v. Jones, 445 F.2d 601, 606 (5th Cir. 1971); State v. Wolfskill, 421 S.W.2d 193, 195-96 (Mo. 1967); Price v. Price, 447 N.E.2d 769, 772 (Ohio Ct. App. 1982); Murphy v. Murphy, 581 P.2d 489, 492 (Okla. Ct. App. 1978). As the Fifth Circuit Court of Appeals explained in Donald:

28 U.S.C. 1738 . . . was enacted to implement the full, faith, and credit clause of the United States Constitution by providing a way of exemplifying the records of judicial proceedings held in one state so that such records would be admissible in later judicial proceedings held in another state. Thus, this statute merely means full, faith, and credit must be given if certain requirements are met. However, evidence of judicial proceedings may be admissible if less is shown than the statute requires when it conforms to the rules of evidence of the state where the trial is being held.

Donald, 445 F.2d at 606 (emphasis added). Accordingly, we are not required to apply the authentication requirement of 28 U.S.C. § 1738 to the Maine court order at issue here, and we instead turn to the authentication requirements found in Wisconsin statutes.

¶ 31. Wisconsin Stat. § 909.01 provides, "The requirements of authentication or identification as a condition precedent to admissibility are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." (Emphasis added.) Wisconsin Stat. § 909.015 provides examples of authentication that, while not exclusive, satisfy the requirements of § 909.01. For example, § 909.015(1) provides that the matter in question is what its proponent claims when "[t]estimony of a witness with knowledge that a matter is what it is claimed to be" is presented. Furthermore, § 909.015(7), entitled "Public records or reports," provides another example: "Evidence that a writing authorized by law to be recorded or filed and in fact is recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept."

¶ 32. Here, the State claimed that Exhibit 3 was a copy of the court order issued in Maine. Cook, an employee of the clerk of circuit court's office, testified that the certified copy of the Maine court order, with the raised seal of that court, was in the circuit court's file for the underlying child support case, 92-FA-021. She compared that certified copy with Exhibit 3 and verified that Exhibit 3 was a copy of the certified copy of the Maine order. Therefore, she had knowledge, and testified accordingly, that the certified copy of the Maine court order had been found in the public office where an item of its nature is kept and that Exhibit 3 was a copy of that order.

¶ 33. We note additionally that Smith did not object that Exhibit 3 was a copy of the certified copy, rather than the actual certified copy of the Maine order. Regardless, Wis. Stat. § 910.03 provides for admission of a duplicate to the same extent as an original unless circumstances, which are not implicated here, are present. Accordingly, the circuit court did not erroneously exercise its discretion in admitting Exhibit 3.

III. CONCLUSION

¶ 34. In sum, we conclude that whether a court of competent jurisdiction issued the child support order underlying a prosecution for the crime of failure to pay child support is not an element of that crime. Therefore, the constitutional principles discussed in Gaudin were not implicated when the circuit court declined to submit a question to the jury in that regard. In addition, we conclude that the circuit court did not erroneously exercise its discretion in admitting Exhibit 3, a copy of a certified copy of the Maine court's child support order, as it was admissible pursuant to Wis. Stat. § 909.015(1) and (7). Accordingly, we reverse the decision of the court of appeals and affirm the judgment of the circuit court.

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

LOUIS B. BUTLER, JR., J.

¶ 35. (concurring in part, dissenting in part). The majority concludes that whether a "court of competent jurisdiction" issued a child support order is not an element of the crime of failure to pay child support under Wis. Stat. § 948.22. Majority op., ¶ 2. With this conclusion, I agree. The crime of felony child support contains the following elements: (1) that the defendant intentionally failed to provide child support; (2) that the intentional failure to provide support continued for 120 or more consecutive days; and (3) that the defendant knew or reasonably should have known that he was legally obligated to provide child support. See Wis JI — Criminal 2152 (2001); Wis. Stat. § 948.22(l)(a) (2001-02).

¶ 36. The majority then concludes that because proof that a court of competent jurisdiction issued a child support order is not an element of the offense of failure to pay child support, the circuit court was not required to give the jury instruction requested by Smith in order to satisfy the constitutional requirement that each element of the crime for which a defendant is charged be tendered to the jury. Majority op., ¶ 16. The second conclusion does not follow the first. Even though there is no separate element for a court of competent jurisdiction, Smith has nonetheless been deprived of jury consideration of the first and third elements of the offense as they relate to the validity of a child support order itself. Accordingly, while I agree that the decision of the court of appeals must be reversed with respect to its handling of the sufficiency of the evidence claim, I respectfully dissent from that portion of the majority opinion that affirms the trial court.

¶ 37. Prior to trial for two counts of failure to pay child support, Timothy Smith challenged the validity of the Maine child support order he was accused of violating on multiple grounds. First, because his divorce took place in the district court of Waldo County, Maine, Smith argued that the Sagadahoc County Superior Court in Maine that issued the child support order was 'not a "court of competent jurisdiction" as that term is used in Wisconsin's failure to pay child support crime. See Wis. Stat. § 948.22(l)(a). Second, he argued that the Maine Department of Human Services had no authority to prosecute the Uniform Reciprocal Enforcement of Support Act (URESA) petition, rendering the child support order invalid. Third, Smith argued that the Maine child support court order was unlawful because it did not state on which provision of law it was based.

¶ 38. Smith specifically argued that his challenges to the Maine child support order went to the third element necessary to prove the charges against him, namely, that he knew or reasonably should have known that he was legally obligated to pay child support. He argued that if he did not believe the order to be valid, then he lacked the intent necessary to constitute the third element. Thus, Smith argued, the question on the validity of the child support order was a fact question for the jury because it ultimately determines whether he had the requisite criminal state of mind.

¶ 39. The trial court concluded that whether the Maine child support order was valid was a question for the court, not the jury. The court gave "full faith and credit" to the Maine order, and refused to permit Smith to collaterally attack the order. The trial court further refused to instruct the jury on the issue or to allow the defendant to present direct evidence on the issue. State v. Smith, 2004 WI App 116, ¶ 3, 275 Wis. 2d 204, 685 N.W.2d 821. The trial court also refused to instruct the jury that it was required to find, as a separate element of the offense, that a court of competent jurisdiction issued the child support order. The court only allowed Smith to present evidence as to the general concepts involved with jurisdiction, in addition to why he believed he was not legally obligated to comply with the child support order. Id.

¶ 40. The court of appeals reversed the trial court, concluding that there are four elements to this offense, including that a court of competent jurisdiction issued the child support order. Id., ¶ 9. This court's majority correctly determines that there are only three elements, those stated in Wis JI — Criminal 2152. Majority op., ¶ 15. With that conclusion in hand, however, both decisions miss the import of Smith's argument.

¶ 41. As noted above, the crime of felony child support contains the following elements: (1) that the defendant intentionally failed to provide child support; (2) that the intentional failure to provide support continued for 120 or more consecutive days; and (3) that the defendant knew or reasonably should have known that he was legally obligated to provide child support. See Wis JI — Criminal 2152. As is evident, for Smith to have committed this offense, he had to intentionally fail to provide child support, which he knew or reasonably should have known that he was legally obligated to provide. The State had to prove that Smith had actual or constructive notice of a legal obligation to provide child support. Whether such an obligation actually existed, therefore, cuts to the heart of Smith's legal defense.

¶ 42. To begin with, "child support" is defined in pertinent part as "an amount which a person is ordered to provide for support of a child by a court of competent jurisdiction in this state or in another state . . . ." Wis. Stat. § 948.22(l)(a). In order to intentionally fail to provide child support, a court of competent jurisdiction had to issue such an order. Otherwise, by definition, no offense could have been committed. Child support is part of the first element of this offense. One cannot intentionally fail to pay that which does not exist. Absent a valid order, Smith simply has no legal obligation whatsoever.

¶ 43. The July Instructions Committee certainly recognized the fact that the question of whether a valid support order existed might come into play. In defining the first element concerning the intentional failure to provide support, the Committee noted as follows: "For purposes of instructing the jury, the Committee concluded that definition of 'support' would rarely be necessary in the usual case. Should the facts present an issue, the statutes referenced in subs. (l)(a) and (c) may offer some guidance . . . ." See Wis JI — Criminal 2152 cmt. n.4. Smith attempted to raise facts that would present the issue, but was thwarted by the trial court. Smith set forth his theory that the Maine order was not valid, but was not allowed to present any evidence to the jury. He requested the court to define "child support," consistent with the Committee's note that the statute may offer some guidance, but the trial court declined to do so. In short, he was precluded from presenting a defense against one of the essential elements that the State had to prove: whether he intentionally failed to provide child support.

¶ 44. The trial court did allow Smith to present evidence as to why he believed he was not legally obligated to comply with the child support order. Without being able to challenge the order itself, and without child support being defined for the jury, his defense to the third element was likewise completely undercut. There was simply no way for the jury to understand the basis of his challenge regarding his knowledge, actual or constructive, of an obligation that he posited did not exist. The jury was not informed that the order had to be issued by a court of competent jurisdiction.

¶ 45. Jurisdictional challenges to the validity of foreign judgments are a legitimate matter of inquiry whenever the enforcement of the foreign judgment is sought. Hansen v. McAndrews, 49 Wis. 2d 625, 630, 183 N.W.2d 1 (1971). While the general rule precludes collateral attacks of a valid judgment, when a court acts in excess of its jurisdiction its orders and judgments are void and may be challenged at any time. Kohler Co. v. DILHR, 81 Wis. 2d 11, 25, 259 N.W2d 695 (1977). The fact that a party is dilatory or lackadaisical in his or her efforts to overturn the judgment is irrelevant. Id. " 'It is the duty of the court to annul an invalid judgment.'" Id. (quoting Halbach v. Halbach, 259 Wis. 329, 331, 48 N.W2d 617 (1951)).

¶ 46. Void judgments cannot be validated by consent, ratification, waiver, or estoppel. Kohler, 81 Wis. 2d at 25. Void judgments may also be attacked collaterally, id., including foreign judgments. See West v. West, 82 Wis. 2d 158, 262 N.W.2d 87 (1978)

¶ 47. Smith has directly challenged the authority of the Sagadahoc Superior Court to issue the child support order. Accordingly, he was not precluded from collaterally attacking the validity of that order if that court acted in excess of its jurisdiction. By not allowing Smith to present evidence in support of his challenge, and by refusing to instruct the jury as to the definition of "child support," the trial court effectively impaired Smith's right to defend against the first element of the offense.

¶ 48. Due process protects a person from conviction except "upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 365 (1970); see also State v. Smith, 117 Wis. 2d 399, 415, 344 N.W.2d 711 (Ct. App. 1983). The State had the burden of proving that Smith intentionally failed to provide child support in this matter, as well as his actual or constructive knowledge of his legal obligation to provide that support. The trial court failed to correctly instruct the jury with respect to the first element by refusing to define "child support." Omissions in jury instructions are subject to a harmless error analysis. See State v. Harvey, 2002 WI 93, ¶ 6, 254 Wis. 2d 442, 647 N.W2d 189. I conclude that the error cannot be harmless where, as here, not only was the jury not instructed with respect to the definition of child support, but also the defense was precluded from presenting evidence with respect to the first and third elements.

¶ 49. The majority briefly discusses how the concept of a "court of competent jurisdiction" encompasses the concepts of personal jurisdiction, subject matter jurisdiction, and a court's competency. Majority op., ¶¶ 18-20. As the majority correctly notes, subject matter jurisdiction is the power of the courts to hear and determine cases of the general class to which the proceedings belong. United States v. Morton, 467 U.S. 822, 828 (1984); Kohler Co. v. Wixen, 204 Wis. 2d 327, 336, 555 N.W.2d 640 (Ct. App. 1996). Personal jurisdiction refers to a court's power to enter a judgment against an individual party. Kohler, 204 Wis. 2d at 336. A court's competency is not jurisdictional, but is defined as "the power of a court to exercise its subject matter jurisdiction" in a particular case. Id. at 337.

¶ 50. In Wisconsin, Article VII, Section 8 of the Wisconsin Constitution provides that: "[e]xcept as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state." See also Village of Trempealeau v. Mikrut, 2004 WI 79, ¶ 8, 273 Wis. 2d 76, 681 N.W.2d 190. Thus, "[n]o circuit court is without subject matter jurisdiction to entertain actions of any nature whatsoever." Mueller v. Brunn, 105 Wis. 2d 171, 176, 313 N.W.2d 790 (1982). But see State v. Bush, 2005 WI103, _ Wis. 2d _, 699 N.W.2d 80 (released this same date). This constitutional rule regarding Wisconsin jurisdiction has not always been in effect, however, as our constitution was amended in 1977 to create a unified court system with original jurisdiction vested wholly in the circuit court. See Eberhardy v. Cir. Ct. for Wood Co., 102 Wis. 2d 539, 550-51, 307 N.W.2d 881 (1981). Prior to that time, jurisdiction existed within the Supreme Court, circuit courts, probate courts, county courts, municipal courts, and with justices of the peace. See Wis. Const, art. VII, § 8 (1975) and Wis. Stat. ch. 252 (1975) (circuit courts); Wis. Stat. ch. 253 (1975) (county courts); Wis. Const. art. VII, § 2 (municipal courts); Wis. Const. art. VII, § 16 (1975) (tribunals of conciliation); Wis. Const, art. VII, § 15 (1965) (justices of the peace); Wis. Const, art. VII, § 14 (judges of probate). Our current jurisprudence regarding subject matter jurisdiction and a court's competence to act in furtherance of that jurisdiction may not have been applicable prior to the creation of the unified court system.

¶ 51. Similarly, Wisconsin's unified court system is not necessarily the rule in other jurisdictions. Issues of subject matter jurisdiction and a court's competency to exercise that jurisdiction may carry very different meanings in other states. Smith has every right to put the State to its burden of proof. That includes challenging the order for child support in the first instance.

¶ 52. I agree with the majority that the court of appeals' decision must be reversed as to the sufficiency of evidence claim, but would nevertheless affirm the court of appeals determination that reversal of the trial court is warranted, and remand this matter to the circuit court for a new trial.

¶ 53. For the foregoing reasons, I respectfully concur in part, and dissent in part, and would remand this matter to the circuit court for a new trial.

       All further references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. The petitioner was charged under Wis. Stat. § 948.22(2) for conduct that allegedly occurred during two different time periods: (1) between July 1,1996 and August 18,1997 and (2) between February 17,1998 and July 2, 1999. The 2001-02 version of § 948.22(l)(a) and (2) is the same as the prior versions in effect during those time periods in all respects material to this review. Compare § 948.22(1) (a) and (2) (2001-02) with § 948.22(1) (a) and (2) (1999-00), § 948.22(1)(a) and (2) (1997-98), and § 948.22(l)(a) and (2) (1995-96).

       Smith has never contended that the Maine court order did not direct him to pay support for his children. Rather, he has contended that the court that did so used its authority improperly for the reasons set out above.

       From this discussion, it is unclear whether the circuit court is referring to the original Maine order, the judgment holding that order valid or both Maine decisions.

       The Fifth Amendment to the United States Constitution provides in relevant part:
      No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger ....
      The Sixth Amendment to the United States Constitution provides in relevant part:
      In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him ....

       The defendant had been charged with violating 18 U.S.C. § 1001 (1988), which provided:
      Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious-or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

        United States v. Gaudin, 515 U.S. 506, 509 (1995) (quoting 18 U.S.C. § 1001) (emphasis added).

       In State v. McAllister, 107 Wis. 2d 532, 319 N.W2d 865 (1982), the defendant had been convicted of violating Wis. Stat. § 346.63(1), which then provided, "No person may drive or operate a motor vehicle while under the influence of an intoxicant or a controlled substance." Id. at 532 n.1 (quoting § 346.63(1)). We concluded that the two elements of the offense that needed to be proven to sustain a judgment of conviction and submitted to the jury were: "(1) driving or operating a motor vehicle, and (2) doing so while under the influence of an intoxicant." Id. at 535.

       The Wisconsin Criminal Jury Instructions Committee has articulated the elements of Wis. Stat. § 948.22 as: "1. The defendant intentionally failed to provide (spousal) (child) support .... 2. The failure to provide support continued for 120 or more consecutive days. 3. The defendant (knew) (reasonably should have known) that (he) (she) was legally obligated to provide the (spousal) (child) support." Wis JI — Criminal 2152 (footnote omitted).
      We have recognized that the work of the Wisconsin Criminal Jury Instructions Committee, while not precedential, may be persuasive. State v. Olson, 175 Wis. 2d 628, 642 n.10, 498 N.W.2d 661 (1993).

       Text searches of electronic databases of Wisconsin statutes indicate that the phrase "court of competent jurisdiction" is used 175 times in 153 different Wisconsin statutes.

       The court of appeals has considered the phrase "court of competent jurisdiction" in the context of deciding that a forum selection clause of a guaranty conferred the right to exercise personal jurisdiction by consent. Kohler Co. v. Wixen, 204 Wis. 2d 327, 337, 555 N.W.2d 640 (Ct. App. 1996). The Kohler decision concerned contract law and did not interpret the phrase "court of competent jurisdiction" in a statute. Id.

       Here, while Smith characterizes the "court of competent jurisdiction" question in his case as a factual dispute in his briefing to this court, he has not identified any historical facts regarding any incident of jurisdiction that are in dispute. Smith does explain that at the circuit court, he argued that a superior court of Sagadahoc County, Maine was not a court of competent jurisdiction to issue the child support order pursuant to a URESA request because a district court in Waldo County, Maine had earlier granted the divorce decree without ordering child support. This would generally be deemed an issue of subject matter jurisdiction, as it regards the power of a particular court to hear and determine a particular type of case. The parties do not dispute that a district court in Waldo County, Maine granted the divorce decree. They also do not dispute that a superior court in Sagadahoc County, Maine issued the child support order. As such, there is no dispute of historical fact. All that is at issue, is which court should have issued the child support order, which is a legal question. Such a legal question regarding jurisdiction is for court, not jury, determination.

       Wisconsin's nomenclature for res judicata is "claim preclusion." Northern States Power Co. v. Bugher, 189 Wis. 2d 541, 549-50, 525 N.W.2d 723 (1995).

       The dissent misses the import of the Maine court judgment that held the child support order was valid. Instead of examining the effect of that judgment, the dissent sets out principles for collaterally attacking a void judgment. Dissent, ¶¶ 45-46. But the judgment is not void, and the child support order's validity is confirmed by that judgment.

       All further references to the United States Code are to the 2002 version unless otherwise noted.

       All references to the Wisconsin Statutes are to the 2001-02 version.

       The court of appeals' decision with respect to sufficiency of the evidence was premised on its erroneous conclusion that the State had to prove as one of the elements that a court of competent jurisdiction issued an order requiring the defendant to provide child support. State v. Smith, 2004 WI App 116, ¶ 9, 275 Wis. 2d 204, 685 N.W2d 821. Because the State failed to present the jury with any evidence as to the laws of Maine, or give to the jury sufficient facts from which it could have resolved the questions of subject matter and personal jurisdiction concerning whether the court which issued the order was one of competent jurisdiction, the court of appeals reasoned that the evidence was insufficient. Id., ¶ 33. Because that court mischaracterized the elements that had to be proved, it similarly mischaracterized the evidence needed by the State to prove its case. I would reverse the court of appeals' decision with respect to sufficiency of the evidence.

       Without assessing the validity of Smith's argument, I note that Maine's judicial system is comprised of a supreme court and two different trial courts, superior courts, and district courts. Me. Rev. Stat. Ann. tit. 4, §§ 1-57 (West 2004) (supreme court); Me. Rev. Stat. Ann. tit. 4, §§ 101-121 (West 2004) (superior courts); Me. Rev. Stat. Ann. tit. 4, §§ 151-184 (West 2004) (district courts). Within the district court is a family division. Me. Rev. Stat. Ann. tit. 4, § 183 (West 2004). According to the family division's rules, the family division has jurisdiction over child support. Rules for the Family Division of the Maine District Court, I.A.

       Smith currently argues that if the Maine Superior Court lacked the authority to issue the child support order for any reason, a criminal charge cannot stand.

       The second element is not at issue in this case.

        Kehl v. Britzman, 258 Wis. 513, 516, 46 N.W2d 841 (1951). Accordingly, I agree with the majority that Smith is precluded from challenging either the authority of the Maine Department of Human Services to prosecute the URESA petition or the fact that the Maine child support order was unlawful because it did not state on which provision of law it was based. Majority op., ¶¶ 21 — 22.1 respectfully disagree with the majority's collateral attack analysis with respect to jurisdictional challenges, however.

       This court has previously indicated that if a jurisdictional issue has been fully litigated in a foreign court and is not subject to collateral attack in that state, then the forum court is bound by the judgment as to jurisdiction. Hansen v. McAndrews, 49 Wis. 2d 625, 630, 183 N.W.2d 1 (1971). Nevertheless, this court noted exceptions to this rule that included relief from a void judgment which appears or purports to be valid, particularly when due process is violated. Id. at 630 n.5, 631 and 637. Thus, even though Smith failed to follow through with his appeal in Maine, he is not precluded from raising his challenge to the Maine court's jurisdiction here.

       It is not unusual to find definitions of essential elements or essential facts in the standard jury instructions. Indeed, the standard instructions are full of such examples. For example, "truant" as part of the third element of the offense is defined in Wis JI — Criminal 2173, Contributing to Truancy. The definitions of "drive" and "operated" are included with respect to the first element throughout the drunk driving and prohibited alcohol concentration instructions. See Wis JI — Criminal 2660, etc. "Sexual intercourse" and "sexual contact" are defined throughout the sexual assault instructions with respect to that element. See Wis JI — Criminal 1200, etc. These examples are not meant to be exhaustive. They are illustrative of the fact that this court and the Jury Instructions Committee have long recognized the importance of defining legal terms to the jury so that it can better understand the elements of the crime charged in fulfilling its decision-making function. The jury should have been so instructed in this case.

       Wisconsin Const, art. VII, § 8 (1975), stated:
      The circuit courts shall have original jurisdiction in all matters civil and criminal within this state, not excepted in this constitution, and not hereafter prohibited by law; and appellate jurisdiction from all inferior courts and tribunals, and a supervisory control over the same. They shall also have the power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and all other writs necessary to carry into effect then-orders, judgments and decrees, and give them a general control over inferior courts and jurisdictions.

       Wisconsin Const, art. VII, § 2 (1975), stated in part:
      The judicial power of this state, both as to matters of law and equity, shall be vested in a supreme court, circuit courts, and courts of probate. The legislature may also vest such jurisdiction as shall be deemed necessary in municipal courts, and may authorize the establishment of inferior courts in the several counties, cities, villages or towns, with limited civil and criminal jurisdiction. Provided, that the jurisdiction which may be vested in municipal courts shall not exceed in their respective municipalities that of circuit courts in their respective circuits as prescribed in this constitution; and that the legislature shall provide as well for the election of judges of the municipal courts as of the judges of inferior courts, by the qualified electors of the respective jurisdictions. The term of office of the judges of the said municipal and inferior courts shall not be longer than that of the judges of the circuit courts.

       Wisconsin Const, art. VII, § 16 (1975), provided;
      The legislature shall pass laws for the regulation of tribunals of conciliation, defining their powers and duties. Such tribunals may be established in and for any township, and shall have power to render judgment to be obligatory on the parties when they shall voluntarily submit their matter in difference to arbitration, and agree to abide the judgment or assent thereto in writing.

       Wisconsin Const, art. VII, § 15 (1965), read:
      The electors of the several towns at their annual town meeting, and the electors of cities and villages at their charter elections except in cities of the first class, shall, in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be for 2 years and until their successors in office shall be elected and qualified. In case of an election to fill a vacancy occurring before the expiration of a full term, the justice elected shall hold for the residue of the unexpired term. Their number and classification shall be regulated by law. And the tenure of 2 years shall in no wise interfere with the classification in the first instance. The justices thus elected shall have such civil and criminal jurisdiction as shall be prescribed by law.

       Wisconsin Const, art. VII, § 14 (1975), stated:
      There shall be chosen in each county, by the qualified electors thereof, a judge of probate, who shall hold his office for two years and until his successor shall be elected and qualified, and whose jurisdiction, powers and duties shall be prescribed by law. Provided, however, that the legislature shall have power to abolish the office of judge of probate in any county, and to confer probate powers upon such inferior courts as may be established in said county.

        See also Wisconsin Const, art. VII, § 2 (1975).


author: LOUIS B. BUTLER, JR., J.

text:
    In re the Commitment of Thomas H. Bush: State of Wisconsin, Petitioner-Respondent, v. Thomas H. Bush, Respondent-Appellant-Petitioner.
    Supreme Court

      No. 2003AP2306.

      Oral argument April 29, 2005.

      Decided July 6, 2005.

    2005 WI 103
    (Also reported in 699 N.W.2d 80.)

      For the respondent-appellant-petitioner there were briefs by Robert G. LeBell and Kostich, LeBell, Dobroski & Morgan LLP, Milwaukee, and oral argument by Robert G. LeBell.

    For the petitioner-respondent the cause was argued by Sally L. Wellman, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
   LOUIS B. BUTLER, JR., J.

¶ 1. Thomas H. Bush seeks review of a published court of appeals decision that affirmed a circuit court's order denying two pretrial motions challenging the constitutionality of Wis. Stat. ch. 980 (chapter 980) (2001-02). State v. Bush, 2004 WI App 193, 276 Wis. 2d 806, 688 N.W.2d 752 (Bush III). The court of appeals concluded that Bush was procedurally barred from raising a constitutional challenge against chapter 980. Id., ¶ 19.

¶ 2. Bush asks this court to reverse the court of appeals' decision and hold that he is not procedurally barred from bringing this constitutional claim. Bush further asks this court to conclude that chapter 980 is facially unconstitutional on substantive due process grounds in that it does not require proof of a "recent overt act" when there has been a break in the offender's incarceration and the offender has been reincarcerated for nonsexual behavior.

¶ 3. Although the State argues that Bush has waived the issue regarding his constitutional challenge to chapter 980, we reach the issue's merits. We conclude that due process does not require a showing of a recent overt act when there is a break in the offender's incarceration and the offender is subsequently reincarcerated for nonsexual behavior in order to prove current dangerousness. We decline to adopt a bright-line rule that requires current dangerousness to be proven by a particular type of evidence. Accordingly, we affirm the decision of the court of appeals.

HH

¶ 4. The following facts are undisputed and were stipulated to by the parties at trial:

Mr. Bush was convicted in 1988 of attempted second degree sexual assault, which, the state maintains, is the predicate act authorizing the filing of the original petition for a Chapter 980 commitment. Subsequent to his 1988 conviction, Mr. Bush was paroled and was permitted to leave the State of Wisconsin in 1992. He was arrested in 1992 for operating under the influence, but was acquitted of that charge. As a direct result of his arrest for the operating under the influence charge, he was returned to the State of Wisconsin to face revocation proceedings. Ultimately, he was revoked as a result of drinking related events. At no time was he charged with any new sexually violent offense after the 1988 assault. His revocation was as a consequence to non-sexually assaultive behavior. These violations did not constitute recent overt acts of sexual violence. No evidence was provided in the petition to reflect that the respondent committed any "recent overt act," nor was any evidence, consistent with a "recent overt act," introduced at the time of the probable cause hearing.

¶ 5. The following additional facts are also helpful for our analysis. When Bush was arrested for attempted second-degree sexual assault in 1988, he had been placed on parole just 26 days prior for a conviction of attempted first-degree sexual assault. Prior to his 1988 conviction, Bush was convicted of numerous sex-related offenses, which include: two counts of sexual assault, three counts of sexual perversion, three counts of disorderly conduct (including a "Peeping Tom" offense), two counts of second-degree criminal sexual conduct, and two counts of attempted sexual assault. By 1988, Bush had been incarcerated or under probation and parole community supervision almost continuously in Illinois, Michigan, Minnesota, and Wisconsin since his first conviction in 1966. Aside from these convictions, Bush admitted committing other deviant sexual behavior than that for which he had been arrested.

¶ 6. In 1992, while serving the sentence for his 1988 conviction, Bush completed the Oshkosh Sex Offender Treatment Program. He was placed on parole to attend the Behavioral Medicine Institute of Atlanta, Georgia. He successfully completed the inpatient component of the Georgia program, but failed to comply with the requirements of the outpatient program, in violation of the conditions of his parole, by purchasing a sports car without knowledge or permission of the program, drinking alcohol, and getting in a car accident. His parole was revoked and he was incarcerated again in Wisconsin.

¶ 7. In addition to Bush's prior convictions, since at least 1978, Bush's psychiatric evaluations have expressed the opinion that Bush is among those sexual offenders who are the least likely to change their behavior. More recent evaluations conducted in 1996 and 1997 recommended that Bush be closely supervised and identified Bush as posing a high risk of recidivism, despite his extensive participation in sex-offender treatment. Furthermore, while incarcerated, Bush continued to demonstrate behavior that is predictive of the likelihood that he will reoffend. For example, Bush was reprimanded in 1995 for attempting to purchase pornography and for corresponding by mail with a person who was engaged in "grooming a boy for sexual purposes."

¶ 8. In 1997, while Bush remained incarcerated for his 1988 offense, the State filed a chapter 980 petition, alleging that Bush was still sexually violent. See Bush III, 276 Wis. 2d 806, ¶ 3; see also State v. Bush, No. 1997AP3454, unpublished slip op. (Wis. Ct. App. Dec. 22,1998) (Bush I). Following the trial on that petition, the jury found that Bush was sexually violent. See Bush III, 276 Wis. 2d 806, ¶ 3. Bush appealed and the court of appeals reversed his commitment because of a prejudicial jury instruction. Id.

¶ 9. In 2000, Bush was retried and a second jury came to the same conclusion. Id., ¶ 4. Bush again appealed, arguing that: (1) the State's expert witnesses should have been disqualified; (2) the State failed to present sufficient evidence to meet chapter 980's requirements; and (3) the State failed to file the petition within the requisite 90 days. State v. Bush, No. 2001AP588, unpublished slip op. at ¶ 1 (Wis. Ct. App. Nov. 26, 2002) (Bush IT)- The court of appeals affirmed in all respects except whether the State had filed the chapter 980 petition in a timely manner. See Bush III, 276 Wis. 2d 806, ¶ 4. On remand, the trial court determined that the State had complied with the filing requirements of chapter 980. Id., ¶ 4.

¶ 10. In August 2002, Bush filed a petition for release under Wis. Stat. § 980.09(2). Bush III, 276 Wis. 2d 806, ¶ 5. In the pretrial motions, Bush argued, in pertinent part, that he had been denied due process because chapter 980 failed to require proof of a recent overt act. Id. The circuit court for Eau Claire County, Honorable William M. Gabler, denied Bush's pretrial motions, and a jury determined that Bush was still sexually violent. Id., ¶ 6. His petition for discharge was therefore denied. Id.

¶ 11. Bush again appealed, renewing his argument he made for the first time in the circuit court that chapter 980 is unconstitutional because it does not require a recent overt act. The State argued that Bush should not be allowed to attack the underlying commitment on constitutional grounds because he should have made this challenge in his two prior appeals. Id., ¶ 7. The court of appeals agreed with the State and concluded that Bush was procedurally barred from raising the issue of the constitutionality of chapter 980. Id., ¶¶ 8, 19.

¶ 12. Bush seeks review, and we affirm.

J — i HH

¶ 13. Bush challenges the constitutionality of chapter 980 on due process grounds, alleging that the statute fails to require a finding of a recent overt act. The constitutionality of a statute is a question of law which we review de novo. State v. Randall, 192 Wis. 2d 800, 824, 532 N.W.2d 94 (1995). This court has already determined that the State has dual interests under the statute to protect the public from the dangerously mentally disordered and to provide care and treatment to those with mental disorders that predispose them to sexual violence. State v. Post, 197 Wis. 2d 279, 302, 541 N.W.2d 115 (1995). The Supreme Court has recognized both of these interests as legitimate, the first under a state's police powers and the latter under its parens patriae powers. Id. (citing Addington v. Texas, 441 U.S. 418, 426 (1979)). Thus, the issue is whether chapter 980 is narrowly tailored under the circumstances in this case to serve these compelling state interests. Id.

l — l HH l — i

¶ 14. Before addressing the merits of Bush's argument, we first address a procedural issue. Relying on State v. Trochinski, 2002 WI 56, 253 Wis. 2d 38, 644 N.W.2d 891, State v. Molitor, 210 Wis. 2d 415, 565 N.W.2d 248 (Ct. App. 1997), and State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528, 280 N.W.2d 316 (Ct. App. 1979), Bush asserts that facial challenges to the constitutionality of a statute present issues of subject matter jurisdiction which cannot be waived, notwithstanding his failure to raise that challenge in his earlier appeals.

¶ 15. The State, on the other hand, argues that the law in this area lacks clarity and is inconsistent. While the State recognizes the validity of those cases relied upon by Bush, it nevertheless suggests that those cases have not always been followed. Moreover, the State argues that another line of cases, culminating in this court's decision last term in Village of Trempealeau v. Mikrut, 2004 WI 79, ¶¶ 2, 30, 273 Wis. 2d 76, 681 N.W.2d 190, suggest that pursuant to Article VII, Section 8 of the Wisconsin Constitution, "no circuit court is without subject matter jurisdiction to entertain actions of any nature whatsoever." Mikrut, 273 Wis. 2d 76, ¶ 8; see Mueller v. Brunn, 105 Wis. 2d 171, 175, 313 N.W.2d 790 (1982); Eberhardy v. Cir. Ct. for Wood Co., 102 Wis. 2d 539, 307 N.W.2d 881 (1981).

¶ 16. We agree with the State that the jurisprudence concerning subject matter jurisdiction and a circuit court's competence to exercise its subject matter jurisdiction is murky at best. Nevertheless, we have recently resolved this area as Bush suggests, and we reaffirm those decisions here.

¶ 17. In both State v. Cole, 2003 WI 112, ¶ 46,264 Wis. 2d 520, 665 N.W.2d 328, and Trochinski, 253 Wis. 2d 38, ¶ 34 n.15, this court concluded that while an "as applied" challenge to the constitutionality of a statute may be waived, a facial challenge is a matter of subject matter jurisdiction and cannot be waived. The logic behind this conclusion is entirely consistent with Article VII, Section 8 of the Wisconsin Constitution. Article VII, Section 8 states that "[e]xcept as otherwise provided by law," circuit courts have original jurisdiction "in all matters civil and criminal." If a statute is unconstitutional on its face, any action premised upon that statute fails to present any civil or criminal matter in the first instance. As the court of appeals correctly noted in Skinkis, if the facial attack on the statute were correct, the statute would be null and void, and the court would be without the power to act under the statute. Skinkis, 90 Wis. 2d at 538. This is contrasted from an "as applied" challenge, where the court initially has jurisdiction over the subject matter, as the statute is valid upon its face.

¶ 18. This rule is also entirely consistent with our line of cases that recognize that a criminal complaint which fails to allege any offense known at law is jurisdictionally defective and void. See Champlain v. State, 53 Wis. 2d 751, 754, 193 N.W.2d 868 (1972); State v. Lampe, 26 Wis. 2d 646, 648, 133 N.W.2d 349 (1965). Once again, the premise behind the rule is simple. Circuit courts have original jurisdiction over all matters civil and criminal, except as otherwise provided by law. If a complaint fails to state an offense known at law, no matter civil or criminal is before the court, resulting in the court being without jurisdiction in the first instance.

¶ 19. We conclude that because Bush has facially challenged the constitutionality of chapter 980, his challenge goes to the subject matter jurisdiction of the court. Therefore, because challenges to subject matter jurisdiction cannot be waived, we reach the merits of his claim.

IV

¶ 20. We now consider the substance of Bush's argument. Chapter 980 applies only if an offender is a "sexually violent person." Wisconsin Stat. § 980.01(7) defines a sexually violent person as follows:

"Sexually violent person" means a person who has been convicted of a sexually violent offense, has been adjudicated delinquent for a sexually violent offense, or has been found not guilty of or not responsible for a sexually violent offense by reason of insanity or mental disease, defect, or illness, and who is dangerous because he or she suffers from a mental disorder that makes it likely that the person will engage in acts of sexual violence. (Emphasis added.)

¶ 21. Bush argues that Wis. Stat. chapter 980 is facially unconstitutional because it does not require a showing of a recent overt act to prove that an offender is currently dangerous. Specifically, Bush contends that chapter 980 violates due process because it fails to require a showing of a recent overt act to prove current dangerousness when there has been a break in the offender's incarceration and the offender has been reincarcerated for nonsexual behavior.

¶ 22. Bush asks this court to adopt the rationale used by the Washington Supreme Court in In re Albrecht, 51 P.3d 73 (Wash. 2002). In that case, the Washington Supreme Court concluded that when an offender has been released into the community and his or her release is revoked for a nonsexually violent act, due process requires that the state show a recent overt act by the offender. Albrecht, 51 P.3d at 78; see also In re Young, 857 P.2d 989, 1009 (Wash. 1993). The Washington Supreme Court reasoned that the constitutionality of an involuntary civil commitment is predicated on proof that the offender is dangerous and that his or her dangerousness is current. Albrecht, 51 P.3d at 76 (citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). Once an offender has been released into the community and is later incarcerated for a nonsexually violent offense, the offender "cannot necessarily be said to be currently dangerous." Id. at 78. Therefore, when an offender has been released into the community, due process is violated if the state has not demonstrated that the offender is currently dangerous, and the offender's current dangerousness must be demonstrated by a recent overt act. Id. at 76 (citing Young, 857 P.2d at 41-42). The Washington court stated: "The existence of a recent overt act. . . necessarily satisfies the dangerousness element required by due process [because] the recent overt act requirement directly and specifically speaks to a person's dangerousness." Id. at 78.

¶ 23. We decline to adopt Albrecht. Bush's argument, rooted in the Albrecht rationale, raises three problems. First, Bush's entire due process argument assumes that the mere fact that an offender has been granted parole constitutes a determination that the offender is no longer dangerous. Second, Bush asks this court to adopt an absolute, bright-line rule that specifies the particular evidence that will adequately show current dangerousness, limiting the factfinder's ability to determine the offender's current level of dangerousness. Third, Bush advocates an illogical standard by urging that this court require proof of a "recent overt act" while defining "recent" as the period of time when the offender is in the community, regardless of the passage of time between the parole revocation and the fifing of the involuntary civil commitment petition. We discuss each issue in turn.

A

¶ 24. At the outset, Bush's entire argument rests on the assumption that the parole board must have determined that Bush was no longer dangerous when it granted him parole in 1992. Bush asserts that the parole board would not have released him into the community on supervised parole if the board believed he was dangerous. Once the State presumably determined that Bush was no longer dangerous and released him into the community, Bush reasons, due process requires the State prove he had become dangerous subsequent to his release by showing a recent overt act.

¶ 25. The State contends that this rationale is unpersuasive because nothing in the record demonstrates why Bush was released on supervised parole.

¶ 26. As both parties correctly observe, the record is terse as to why Bush was paroled or on what basis that decision was made. In fact, the evidence contained in the record could lead to contradictory conclusions as to the parole board's rationale. On one hand, the record indicates that prior to his 1992 parole, Bush had made "excellent" progress with his sex-offender treatment, had become a "low risk to society," and was "not dangerous to others." This evidence may have led to the conclusion that Bush was no longer dangerous.

¶ 27. On the other hand, Bush was allowed to leave prison on supervised release in order to attend the Behavioral Medicine Institute of Atlanta, Georgia. According to the record, the Atlanta program is an advanced sex-offender treatment program that "treats the most chronic of cases and those that have proven unresponsive to previous treatments." In addition, the State imposed specific conditions of release upon Bush. As such, evidence in the record also supports a determination that Bush remained dangerous.

¶ 28. Therefore, we cannot conclude that the mere fact that the State granted Bush parole necessarily leads to the conclusion that he was no longer dangerous as that concept is used in chapter 980. The record is simply too barren for us to agree with that conclusion. Although the fact that the State placed Bush on supervised parole has probative value in undercutting the State's case, it is not a conclusive determination of Bush's dangerousness under chapter 980.

B

¶ 29. Bush advocates that we adopt a bright-line rule that requires a showing that he committed a recent overt act while on parole, regardless of any of his sexually violent behavior before, or after, the period of time he was on supervised parole in 1992. We agree with the State that due process does not require adoption of this bright-line rule.

¶ 30. We recognize that substantive as well as procedural limitations on a state's power to commit the dangerously mentally ill vary from jurisdiction to jurisdiction. Post, 197 Wis. 2d at 312 (citing Jackson v. Indiana, 406 U.S. 715, 736-37 (1972)). As such, the United States Supreme Court has refused to proscribe strict boundaries for legislative determinations of what is necessary for voluntary commitment. Id.

¶ 31. Moreover, the Court has cautioned that "an absolutist approach is unworkable" in a civil commitment analysis. Kansas v. Crane, 534 U.S. 407, 411 (2002). The Court concluded that "the Constitution's safeguards of human liberty in the area of mental illness and the law are not always best enforced through precise bright-line rules." Crane 534 U.S. at 413 (citing Kansas v. Hendricks, 521 U.S. 346, 359 (1997)). Bright-line rules present unworkable standards because their rigidity hampers the factfinder's ability to measure an individual's dangerousness. See State v. Laxton, 2002 WI 82, ¶ 21, 254 Wis. 2d 185, 647 N.W.2d 784.

¶ 32. Along similar lines, inhibiting a factfinder's evaluation of dangerousness through bright-line rules is problematic because chapter 980 is reserved for only the most dangerous offenders. See Post, 197 Wis. 2d at 307. Prior to commitment, chapter 980 requires the State to present evidence sufficient to allow the fact-finder to distinguish "a dangerous sexual offender who has serious difficulty controlling his or her behavior from a dangerous but typical recidivist." Laxton, 245 Wis. 2d 185, ¶ 23. This evaluation is not an exact science; the standard "risk assessment" used by expert witnesses for sexual offenders "takes into account all past violations of the law in attempting to evaluate the probability of future sexually assaultive behavior." State v. Franklin, 2004 WI 38, ¶ 22, 270 Wis. 2d 271, 677 N.W.2d 276.

¶ 33. Predicting an offender's dangerousness under chapter 980 is a complex evaluation. At trial, the factfinder is obligated to examine the totality of the offender's past actions and make a determination based on the offender's "relevant character traits and patterns of behavior," as to whether the offender's mental condition currently predisposes him or her to commit another sexually violent act. Id., ¶ 14 (holding that Wis. Stat. § 904.04(2) did not apply to chapter 980); State v. Kienitz, 227 Wis. 2d 423, 441, 597 N.W.2d 712 (1999) (reasoning that the factfinder has an obligation to weigh all the evidence presented). Ultimately, the question "is simply whether it is substantially probable that the person will engage in acts of sexual violence without regard to any specific restrictions, supervision or time frame." See State v. Thiel, 2004 WI App 140, ¶ 17, 275 Wis. 2d 421, 685 N.W.2d 890. Thus, we agree with the State that due process does not require that an evaluation of dangerousness be limited based on Bush's proposed bright-line rule.

C

¶ 34. Finally, we agree with the State that Bush advocates an illogical application of requiring recent overt acts to prove current dangerousness. Bush defines recent overt acts as including acts during the time he was on parole, which in this case was five years before the State filed the initial petition. His rationale is again based on Albrecht, where the Washington court found that to determine the offender's level of current dangerousness, the factfinder must rely on an offender's behavior when he or she is not incarcerated. Albrecht, 51 P.3d at 77. When an individual is continuously incarcerated, the only behavior available to the fact-finder is his or her behavior prior to incarceration. Id. But, under Albrecht, when the offender has been released back into the community, his or her behavior upon release is demonstrative of whether the offender continues to be dangerous. Id.

¶ 35. Looking to Bush's time on parole, without more, does not necessarily give the factfinder an adequate evaluation of Bush's current dangerousness for at least three reasons.

¶ 36. First, Bush's parole was not close in time to his chapter 980 trial. Bush was released into the community under supervised parole in early 1992. In less than a month, he violated specific conditions of his parole and was reincarcerated for his 1988 offense. Five years later, the State filed a petition to commit Bush under chapter 980. Bush asks this court to conclude that his behavior while on parole in 1992 should be the only reliable evidence for the factfinder to use in determining whether he was currently dangerous in 1997. His conduct during his parole merely establishes that he had difficulty in conforming his behavior to the law during his short release period.

¶ 37. Second, under Bush's approach, an offender's behavior while incarcerated would be irrelevant to support a determination of current dangerousness. However, the factfinder's analysis of an offender's current dangerousness is not limited to the offender's actions prior to his or her most recent incarceration and can include an offender's actions while incarcerated. See Franklin, 270 Wis. 2d 271, ¶ 22; State v. Zanelli, 212 Wis. 2d 358, 379-80, 569 N.W.2d 301 (Ct. App. 1997). Here, Bush has engaged in the following behavior while incarcerated: he was reprimanded for corresponding with a person who was "grooming a boy for sexual purposes," and he attempted to obtain pornographic materials. This behavior may bear on Bush's dangerousness, but the weight to be given to this behavior is for the factfinder.

¶ 38. Third, the sexually violent offense for which Bush is incarcerated may be relevant evidence of current dangerousness. Bush was eligible for a chapter 980 commitment only because he had been convicted of a sex-related crime. The fact that Bush was incarcerated for attempted sexual assault when the chapter 980 petition was filed is evidence of his dangerousness at that time. Although this conviction, on its face, "is not sufficient to establish beyond a reasonable doubt that the person has a mental disorder [as required for a chapter 980 commitment]," Wis. Stat. § 980.05(4), we conclude that evidence of Bush's 1988 conviction is a proper component of the evaluation of his current dangerousness.

¶ 39. Therefore, we conclude that due process does not require a showing of a recent overt act to prove current dangerousness when there has been a break in the offender's incarceration and the offender has been reincarcerated for nonsexual behavior. Because due process does not require this showing under these circumstances, we agree with the State that chapter 980 is accordingly narrowly tailored to serve a compelling state interest for purposes of Bush's challenge. Therefore, we reject Bush's argument that chapter 980 is facially unconstitutional on that basis.

V

¶ 40. In sum, we conclude that chapter 980 is not facially unconstitutional. We conclude that due process does not require proof of a recent overt act in evaluating the dangerousness of the offender when there has been a break in the offender's incarceration and the offender is reincarcerated for nonsexual behavior. Substantive due process allows for a chapter 980 commitment when there is sufficient evidence of current dangerousness. We decline to adopt any bright-line rule that requires current dangerousness to be proven by a particular type of evidence.

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

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise indicated.

       As seen below, Bush has had two commitment hearings, one in 1997 and another in 2000. The current appellate record does not contain the trial transcripts from the 2000 commitment hearing. Although we do have the exhibits and a list of which exhibits were admitted at trial, we do not know if any of the exhibits were admitted for limited purposes. We will assume that they were not. Further, we do not know if any exhibits from the prior commitment hearing in 1997 were incorporated by reference during the 2000 commitment hearing. As they are part of our record here, we will assume that they were. See State v. McAttee, 2001 WI App 262, ¶ 5 n.1, 248 Wis. 2d 865, 637 N.W.2d 774 ("It is the appellant's responsibility to ensure completion of the appellate record and when an appellate record is incomplete in connection with an issue raised by the appellant, we must assume that the missing material supports the trial court's ruling." (citation and quotations omitted)).

       Although driving while intoxicated does not necessarily raise concerns for sexually violent behavior, drinking and driving are a particularly dangerous combination for Bush. The record demonstrates that "Mr. Bush has specific triggers regarding his sex offender criminal activity which includes alcohol and fast cars."

       Wisconsin Stat. § 980.02(2) outlines the procedures for filing a petition alleging an offender is a sexually violent person as follows:
      (2) A petition filed under this section shall allege that all of the following apply to the person alleged to be a sexually violent person:
      (a) The person satisfies any of the following criteria:

        1. The person has been convicted of a sexually violent offense.
      2. The person has been found delinquent for a sexually violent offense.
      3. The person has been found not guilty of a sexually violent offense by reason of mental disease or defect.
      (ag) The person is within 90 days of discharge or release, on parole, extended supervision or otherwise, from a sentence that was imposed for a conviction for a sexually violent offense, from a secured correctional facility, as defined in s. 938.02 (15m), from a secured child caring institution, as defined in s. 938.02 (15g), or from a secured group home, as defined in s. 938.02 (15p), if the person was placed in the facility for being adjudicated delinquent under s. 938.183 or 938.34 on the basis of a sexually violent offense or from a commitment order that was entered as a result of a sexually violent offense.
      (b) The person has a mental disorder.
      (c) The person is dangerous to others because the person's mental disorder makes it likely that he or she will engage in acts of sexual violence.

       Wisconsin Stat. § 980.09(2) reads as follows:
      (a) A person may petition the committing court for discharge from custody or supervision without the secretary's approval. At the time of an examination under s. 980.07 (1), the secretary shall provide the committed person with a written notice of the person's right to petition the court for discharge over the secretary's objection. The notice shall contain a waiver of rights. The secretary shall forward the notice and waiver form to the court with the report of the department's examination under s. 980.07. If the person does not affirmatively waive the right to petition, the court shall set a probable cause hearing to determine whether facts exist that warrant a hearing on whether the person is still a sexually violent person. The committed person has a right to have an attorney represent him or her at the probable cause hearing, but the person is not entitled to be present at the probable cause hearing.
      (b) If the court determines at the probable cause hearing under par. (a) that probable cause exists to believe that the committed person is no longer a sexually violent person, then the court shall set a hearing on the issue. At a hearing under this paragraph, the committed person is entitled to be present and to the benefit of the protections afforded to the person under s. 980.03. The district attorney or the department of justice, whichever filed the original petition, shall represent the state at a hearing under this paragraph. The hearing under this paragraph shall be to the court. The state has the right to have the committed person evaluated by experts chosen by the state. At the hearing, the state has the burden of proving by clear and convincing evidence that the committed person is still a sexually violent person.
      (c) If the court is satisfied that the state has not met its burden of proof under par. (b), the person shall be discharged from the custody or supervision of the department. If the court is satisfied that the state has met its burden of proof under par. (b), the court may proceed to determine, using the criteria specified in s. 980.08(4)(b), whether to modify the person's existing commitment order by authorizing supervised release.

        See State v. Wilks, 121 Wis. 2d 93, 107, 358 N.W2d 273 (1984) (where court declined to address defendant's claim that loitering ordinance was unconstitutionally vague when raised for first time on appeal); In re Baby Girl K., 113 Wis. 2d 429, 448, 335 N.W.2d 846 (1983) (where court considered facial constitutional challenge raised for first time on appeal as discretionary but to be done if in best interests of justice); and Sambs v. City of Brookfield, 66 Wis. 2d 296, 314, 224 N.W.2d 582 (1975) (court declined to reach claim presented for first time on appeal that liabibty limits are unconstitutional, although it is not clear whether that challenge was facial or as applied). See also State v. Thomas, 128 Wis. 2d 93, 97-101, 381 N.W.2d 567 (Ct. App. 1985) (facial challenges that a statute is unconstitutionally vague go to subject matter jurisdiction).

       Under the Wisconsin Constitution, "[e]xcept as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state...." Wis. Const, art. VII, § 8.

       Common law principles of waiver generally apply to Bush's "as applied" constitutional challenge. See State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999) (noting that the waiver rule exists to promote efficiency and fairness); see also State v. Cole, 2003 WI 112, ¶ 46, 264 Wis. 2d 520, 665 N.W.2d 328, and State v. Trochinski, 2002 WI 56, ¶ 34 n.15, 253 Wis. 2d 38, 644 N.W.2d 891. Because Bush failed to raise this issue in his earlier appeals, and because we do not have all components of the record, we conclude that Bush has waived his as applied challenge. However, we decline to reach the question of whether a procedural bar, similar to one announced in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), applies.

       According to the Washington court, a "recent overt act" is "any act that has either caused harm of a sexually violent nature or creates a reasonable apprehension of such harm." In re Albrecht, 51 P.3d 73, 77 (Wash. 2002). When the individual has been continuously incarcerated, no evidence of a recent overt act is required because that would create an impossible standard. Id. at 77.

       In In re Young, 857 P.2d 989, 1009 (Wash. 1993), the Washington Supreme Court held that when an offender has been released from confinement since his or her last sex offense, but before sexually violent predator proceedings are initiated against him or her, the state had to prove he or she committed a recent overt act in order to establish dangerousness. The Washington Legislature amended its sexual predator commitment statute to reflect the court's decision. State v. Ward, 104 P.3d 751, 753 (Wash. Ct. App. 2005).

        See Kansas v. Crane, 534 U.S. 407, 412 (2002) (emphasizing the constitutional importance of the distinction between those who are dangerous sexual offenders and those more properly dealt with exclusively through criminal law. "That distinction is necessary lest 'civil commitment' become a 'mechanism for retribution or general deterrence' — functions properly those of criminal law, not civil commitment.").