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Cout of Appeals certifies constitutional challenge to Chapter 51 provision

Winnebago County v. Christopher S., 2014AP1048, 4/1/15, District 2, click here for certification; certification granted 5/12/15, circuit court orders affirmed, 2016 WI 1


This appeal raises an important issue of first impression regarding the constitutionality of a mental health treatment statute related to inmates within the Wisconsin state prison system. The question presented is whether Wis. Stat. § 51.20(1)(ar) (2013-14) is facially unconstitutional on substantive due process grounds because it does not require that a court find an inmate dangerous prior to ordering the inmate civilly committed for treatment and authorizing the involuntary medication of the inmate. A definitive answer to this question from the Wisconsin Supreme Court, along with a clear statement as to the appropriate level of constitutional scrutiny to apply in such a case, would be of great value to the bench, the bar, the legislature, and the citizenry. Thus, we certify this appeal to the Wisconsin Supreme Court pursuant to Wis. Stat. Rule 809.61.

As noted above, the court of appeals is concerned about the proper constitutional scrutiny standard for this issue. The certification walks through several cases suggesting uncertainty on this point but concludes: “Rational basis review appears to be the correct standard under which to review § 51.20(1)(ar); however, a clear statement on the standard from the Wisconsin Supreme Court would be of value.” Certification at 7. See State v. Olson, 2006 WI App 32, ¶4, 290 Wis. 2d 202, 712 N.W.2d 61; State v. Dennis H., 2002 WI 104, ¶¶7, 8, 11, 255 Wis. 2d 359, 647 N.W.2d 851; and Washington v. Harper, 494 U.S. 210, 224 (1990). Interestingly, the State concedes that Harper requires a dangerousness showing before an inmate is subjected to involuntary mental health treatment consisting of medication. The State claims § 51.20(1)(ar) is nevertheless constitutional because it is “rationally related to the legitimate goal of providing mental health services to individuals already confined in secure correctional facilities.” Certification at 9. But Christopher and the court of appeals say the issue is commitment, not confinement, and whether substantive due process requires a dangerousness finding before the State may commit an inmate for treatment and medicate him against his will.

Pay special attention to footnote 5 of the certification. It highlights an additional issue for SCOW’s consideration—one that could have a much broader impact on Chapter 51 litigation:

Christopher also asserts on appeal that the County failed to show by clear and convincing evidence that he was incompetent to refuse medication or treatment because the testimony presented at the hearing on this issue “merely parroted the statutory language without providing details of the information Christopher was given” pursuant to Wis. Stat. § 51.61(1)(g)4. In light of the Wisconsin Supreme Court’s recent decision in Outagamie County v. Melanie L., 2013 WI 67, ¶¶67, 75-78, 94, 349 Wis. 2d 148, 833 N.W.2d 607, and the testimony presented to the circuit court on this issue in this case, Christopher’s assertion appears to have merit. Acceptance of this certification would provide the supreme court with an opportunity to clarify or expound upon Melanie L.

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