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Milwaukee County v. Mary F.-R., 2012AP958, petition for review granted, 2/11/13

Review of unpublished court of appeals decision; case activity

Issues (composed by On Point)

1. Whether there was sufficient proof that Mary F.-R. evidenced a “substantial probability of physical harm” to herself or others and was therefore dangerous under Wis. Stat. § 51.20(1)(a)(2).

2. Whether Wis. Stat. § 51.20(11) is an unconstitutional violation of equal protection because it provides for a jury of six in ch. 51 trials, while a person whose commitment is sought under ch. 980 is entitled to a jury of twelve.

Petitions for review aren’t posted on the court’s website, so issue-formulation requires some educated guesswork. The listed issues above are taken from the decision of the court of appeals. Whether Mary F.-R. has renewed both issues, or recast one or both in some way, remains to be seen. With that caveat, here’s some background.

As explained in our prior post about the case, the court of appeals rejected Mary F.-R.’s claim the evidence was insufficient to support the jury’s “dangerousness” finding. While the supreme court would not ordinarily grant review just to address sufficiency of the evidence in a particular case, this case does have the additional issue about the size of a jury under ch. 51. In any event,  some guidance on the question of what constitutes sufficient evidence to commit under § 51.20 would be welcome, as lawyers who handle ch. 51 cases sometimes marvel at how little evidence it takes.

On the second issue the basic argument is that persons committed under ch. 980 and ch. 51 are “similarly situated” for purposes of equal protection analysis, State v. Williams, 2001 WI App 263, 10, 249 Wis. 2d 1, 637 N.W.2d 791; thus, ch. 51 respondents should, like those under ch. 980, get a 12-person jury. The court of appeals held Mary F.-R. had forfeited the claim by not raising it in the trial court, but the supreme court can decide an issue even if it was not raised in the circuit court. County of Columbia v. Bylewski, 94 Wis. 2d 153, 171-72, 288 N.W.2d 129 (1980). If the issue was renewed in the petition for review, then, the supreme court will presumably reach it despite the forfeiture.

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