Majority opinion by Justice Crooks; concurrence by Chief Justice Abrahamson; additional concurrence by Justice Ziegler (joined by Justices Roggensack and Gableman)
The issues in this case spring from State v. Post, 197 Wis. 2d 279, 318-319, 541 N.W.2d 115 (1995)(“persons committed under Chapters 51 and 980 are similarly situated for purposes of equal protection comparison) and State v. Bush, 2005 WI 103,¶17, 283 Wis. 2d 90, 699 N.W.2d 80 (a defendant cannot “waive” [sic] a facial challenge to the constitutionality of a statute). This decision retreats from Post and dodges Bush–at least for now.
Issue: Right to 12-person jury. Is equal protection of the laws violated when § 51.20, which provides for a 6-person jury and a 5/6ths verdict for persons subject to involuntary mental commitments, is compared to Chapter 980, which provides for a 12-person jury and a unanimous verdict for someone involuntarily committed as a sexually violent person? The answer, say all 7 justices, applying the “rational basis” test is “no”:
¶60 In sum, we find that although the governmental purposes of § 51.20 and Chapter 980 as well as the individuals subject to these civil involuntary commitment statutes share some overlapping goals and characteristics, Mary F.-R. has failed to prove the unconstitutionality of Wis. Stat. § 51.20(11) beyond a reasonable doubt. The differences in the jury provisions available to those committed under Wis. Stat. § 51.20(11) and Chapter 980 are rationally related to the difference in treatment needs and level of dangerousness presented by each group, as well as stricter rules concerning confinement in Chapter 980 commitments. The legislature has addressed these differences by imposing greater liberty restrictions on individuals subject to Chapter 980 commitments. The added protection of a 12-person unanimous jury is rationally related to such increased liberty restrictions imposed on Chapter 980 committees when compared to the lesser liberty deprivation experienced by individuals committed under Chapter 51.
Issue: Forfeiture. Whether an elderly, pro se litigant who made 5 separate requests for a 12-person jury for her Chapter 51 commitment trial, forfeited her equal protection challenge when the lawyer who eventually represented her at trial failed to make a contemporaneous objection to the impanelment of a 6-person jury? Four justices (Crooks, Abrahamson, Bradley and Prosser) declined to address either the issue or Bush. Slip op. ¶34. They chose instead to reach the merits of the equal protection challenge.
Justices Ziegler, Roggensack and Gableman, unimpressed with Mary F-R’s perseverance, glossed over her many written and oral requests for a 12-person jury and zeroed in on her failure to object at the moment the 6-person jury was impaneled. Failure to object = forfeiture (not waiver), they said. Slip op. ¶77. But they also tipped their hand re what Bush actually stands for (which has been fuzzy):
¶76. . . Bush does not stand for the proposition that every facial challenge to any one procedural statute necessarily impacts the subject matter jurisdiction of the court. In fact, Bush challenged the constitutionality of the entirety of Chapter 980, not just a procedural provision of that chapter.
So that’s what 3 justices think about Bush. What do the other 4 think? We’ll have to wait for the next case to present the forfeiture issue to SCOW.