¶13 A party may challenge a law or government action as being unconstitutional on its face. Under such a challenge, the challenger must show that the law cannot be enforced “under any circumstances.” See Olson v. Town of Cottage Grove, 2008 WI 51, ¶44 n.9, 309 Wis. 2d 365, 749 N.W.2d 211 (explaining differences between facial and as-applied challenges). If a challenger succeeds in a facial attack on a law, the law is void “from its beginning to the end.” State ex rel. Comm’rs of Pub. Lands v. Anderson, 56 Wis. 2d 666, 672, 203 N.W.2d 84 (1973) (Anderson). In contrast, in an as-applied challenge, we assess the merits of the challenge by considering the facts of the particular case in front of us, “not hypothetical facts in other situations.” State v. Hamdan, 2003 WI 113, ¶43, 264Wis. 2d 433, 665 N.W.2d 785. Under such a challenge, the challenger must show that his or her constitutional rights were actually violated. If a challenger successfully shows that such a violation occurred, the operation of the law is void as to the party asserting the claim. See Anderson, 56 Wis. 2d at 672.
Due Process – Generally
¶17 An individual’s substantive and procedural due process rights are rooted in the Fourteenth Amendment to the United States Constitution, and Article I, Section 1 of the Wisconsin Constitution.  Kenosha County Dep’t of Human Servs. v. Jodie W., 2006 WI 93, ¶39 & n.17, 293 Wis. 2d 530, 716 N.W.2d 845. “The right to substantive due process addresses ‘the content of what government may do to people under the guise of the law.'” Dane County Dep’t of Human Servs. v. Ponn P., 2005 WI 32, ¶19, 279 Wis. 2d 169, 694 N.W.2d 344 (quoting Reginald D. v. State, 193 Wis. 2d 299, 307, 533 N.W.2d 181 (1995)). An individual’s substantive due process rights protect against a state action that is arbitrary, wrong, or oppressive, without regard for whether the state implemented fair procedures when applying the action. Ponn P., 279 Wis. 2d 169, ¶19 (citing Monroe County Dep’t of Human Servs. v. Kelli B., 2004 WI 48, ¶19, 271 Wis. 2d 51, 678 N.W.2d 831). In contrast, the question of fairness is addressed as a matter of procedural due process. In other words, even if a challenge that a government action deprives “‘a person of life, liberty, or property survives substantive due process scrutiny, it must still be implemented in a fair manner.'” State v. Laxton, 2002 WI 82, ¶10 n.8, 254 Wis. 2d 185, 647 N.W.2d 784 (quoting United States v. Salerno, 481 U.S. 739, 746 (1987)). We begin with Wood’s challenge under substantive due process principles.
Binding Authority – Federal Court Decision
“As an initial matter, federal district court cases are not binding authority on this court. See State v. Mechtel, 176 Wis. 2d 87, 94-95, 499 N.W.2d 662 (1993),” ¶18. (Thus, Wisconsin is not required to follow a district court decision invalidating a statute, id.)
Mechtel itself leaves little room for doubt on the general principle: “determinations on federal questions by either the federal circuit courts of appeal or the federal district courts are not binding upon state courts.” Habeas is different, at least with respect to the immediate litigant, 176 Wis. 2d 95-96. Indeed, there have been instances in which the habeas litigant was granted relief, but Wisconsin courts refused to apply to other litigants the holding established in the habeas case. To take but one example: McMorris v. Israel, 643 F.2d 458 (1981) (defense right to admit favorable polygraph result), subsequently deemed by Wisconsin supreme court to have “erred” by virtue of “a mistaken interpretation” of prior caselaw, State v. Dean, 103 Wis.2d 228, 307 N.W.2d 628, 642 (1981). Makes for an interesting federal problem, though: a federal court declares a Wisconsin statute unconstitutional, and the Wisconsin court says, we don’t care.
NGI Commitments – Forced Medication – Constitutionality of § 971.17(3)(c) re: Finding of Dangerousness
¶25 To summarize, Harper, Riggins, and Sell compel the following conclusions. First, a person competent to make medical decisions has a “significant” liberty interest in avoiding forced medication of psychotropic drugs. See Harper, 494 U.S. at 221. Second, in light of that interest, the state may not order the administration of psychotropic drugs to a mentally ill individual unless it demonstrates an overriding justification to administer the drugs and a determination of medical appropriateness. See Riggins, 504 U.S. at 135. The incursions that substantive due process permits largely depend on what the state’s overriding interest entails. For example, in the context of a mentally ill inmate or detainee in a jail or prison, where the safety and security of the institution is the state’s interest, one way the state can establish an overriding justification addressing that interest is to demonstrate that the person is dangerous to self or others and, considering less intrusive alternatives, that medication is in the person’s medical interest. See Riggins, 504 U.S. at 134-35;Harper, 494 U.S. at 225-26. In other contexts, however, such as when the state seeks to administer medication to render a nonviolent detainee competent to stand trial, dangerousness need not be demonstrated; rather, a finding that the administration of drugs will affect the defendant’s rights to a fair trial is sufficient. See Sell, 539 U.S. at 180-81.
Measured against these strictures, § 971.17(3)(c) is constitutional:
¶32 … Based on the operation of the statutory scheme, adjudging an individual NGI has the effect of holding that, because of mental illness, the individual commits crimes for which he or she lacks “substantial capacity either to appreciate the wrongfulness of his or her conduct or conform his or her conduct to the requirements of law.” Wis. Stat. § 971.15(1). In that way, institutions holding individuals adjudged NGI have a somewhat different interest than a prison would. In an institution such as Mendota, that interest is in treating the underlying mental illness in order to prevent more criminal behavior and prepare the individual for conditional release and for eventual release from the commitment.
¶33 In light of that overriding interest and the nature of original proceedings in which a defendant is adjudged NGI, we do not believe that a finding of present dangerousness is required when considering whether to issue an order to forcibly medicate such an individual. See Sell, 539 U.S. at 181-82 (a finding of dangerousness is not required where the relevant state interest is unrelated to institutional safety and security). The express findings required in Wis. Stat. § 971.17(3)(c) and articulated in § 971.16(3) are that the person cannot express an understanding of the advantages, disadvantages, and alternatives to medication or treatment or that he or she has such an understanding but cannot apply it to his or her mental illness in order to make an informed choice. We are satisfied that those findings strike the appropriate balance between the State’s overriding interest in medicating a forensic NGI patient and that patient’s interest in having the ability to refuse medication or treatment.
¶38 Those requirements, taken together, create at least an implicit finding of dangerousness, if not an express finding, that serves as a basis for a court to consider granting a motion for an involuntary medication order. In other words, those findings of dangerousness based on the original commitment under § 971.17(3) and based on the denial of a petition for conditional release under § 971.17(4)(d) continue to be present until they are changed or upset. With such a basis present, a court evaluating a motion for an involuntary medication order need not make separate or independent findings of dangerousness.
A finding of dangerousness, the court repeats, is simply not required, ¶¶40, 46. But such a finding is, the court goes on to say, embedded in the administrative directive (AD-11-97) followed by the institution before seeking involuntary medication, ¶¶41-46.
NGI Commitments – Forced Medication – Constitutionality of § 971.17(3)(c) re: Periodic Review
§ 971.17(3)(c) is constitutional with respect to the review process. Review of the decision to involuntarily medicate doesn’t require an “independent decisionmaker,” ¶64. And, administrative review 6 months after issuance of the order, with right of appeal to court, suffices for due process purposes, ¶¶65-66.
NGI Commitments – Assistance of Counsel: Physical Separation from Attorney at Hearing
Woods’ “remote” appearance by video at the hearing on judicial review of his forced medication order didn’t support a claim on ground of ineffective assistance, ¶¶70-78.
Woods relied on Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006), “in which the Seventh Circuit Court of Appeals held that an attorney who appeared on speaker phone at the defendant’s plea hearing presumptively provided ineffective assistance of counsel,” ¶75. But the Supreme Court reversed, in Wright v. Van Patten, 552 U.S. 120 (2008)—not on the merits of the issue, but on the purely procedural point that the 7th shouldn’t have reached the issue on habeas review. The court’s discussion now is entirely unsatisfactory, merely pointing out that Woods never requested an opportunity to confer privately with counsel, ¶77. As if acknowledging the short shrift it has just given to an issue that is both recurrent and significant, the court cautions, ¶77 n. 25:
To clarify, we conclude that Wood’s argument fails due to lack of prejudice. Because of that, we do not reach the important issue of what requirements the Sixth Amendment imposes on telephonic appearances to protect a defendant’s ability to privately consult with counsel and how those requirements apply to the first prong of the Strickland analysis.
Yeah, well, the court did more or less just reach “the important issue,” in the sense that it seemingly decided with virtually no discussion that an analysis of prejudice does apply. Perhaps it makes a difference who appears “remotely.” In this instance, counsel was in court, Wood appeared by video. By contrast, Van Patten was in court and his attorney appeared by phone. The 7th had held (again: reversed on procedural not substantive ground) that this setup amounted to denial of counsel, hence the error was “structural” and prejudice simply irrelevant. (“Physical presence is necessary not only so that counsel can keep an eye on the client and the prosecutor, but so the court can keep an eye on counsel. … Because the physical absence of counsel from a hearing where a defendant gives up his most valuable constitutional rights and admits his guilt to a serious charge is a structural defect, the district court erred in finding that the error could be analyzed under a harmless standard.”) Could be, then, that it’s the physical absence of counsel from court, and not the physical separation of counsel from client, that determines the analysis. And, of course, as the court just got done reminding, federal holdings don’t bind it anyway.