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SCOW: Ch. 51’s inmate commitment procedure is constitutional

Winnebago County v. Christopher S., 2016 WI 1, on certification from the court of appeals, and affirming the circuit court’s orders for commitment and involuntary medication; majority opinion by Justice Gableman, concurrence/dissent by Justice Abrahamson; case activity

The provisions of ch. 51 allowing the involuntary mental health commitment of prison inmates without a finding of dangerousness does not violate substantive due process because the statute’s provisions are reasonably related to a legitimate state interest.

Generally, a person can be involuntarily committed for mental health treatment only if a court finds the person is: 1) mentally ill; 2) a proper subject for treatment; and 3) dangerous to self or others. § 51.20(1)(a). But § 51.20(1)(ar) establishes a different standard for the involuntary commitment of state prison inmates. The big difference between the two standards—and the difference at issue in this case—is that commitment of an inmate doesn’t require a finding of dangerousness. Christopher claims the absence of a required finding of dangerousness renders § 51.20(1)(ar) facially unconstitutional.

As the court of appeals noted in its certification (at 5-7), the threshold question is what level of scrutiny applies to Christopher’s challenge: strict scrutiny, because commitment impinges on a person’s fundamental liberty interest; or the much more forgiving rational basis scrutiny? A majority of the supreme court says rational basis scrutiny is appropriate:

¶37 “[F]or the ordinary citizen, commitment to a mental hospital produces ‘a massive curtailment of liberty,’ and in consequence ‘requires due process protection.'” Vitek v. Jones, 445 U.S. 480, 491 (1980) [cited and quoted sources omitted]; Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (noting that the due process clause contains a substantive component that includes a right to freedom from restraint)). This is because “[f]reedom from physical restraint is a fundamental right that ‘has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.'”… State v. Post, 197 Wis. 2d 279, 302, 541 N.W.2d 115 (1995) (quoting Foucha, 504 U.S. at 80).

¶38     For example, in … Post, .., we applied strict scrutiny to a substantive due process challenge to Chapter 980, Wisconsin’s sexually violent person commitment statute. 197 Wis. 2d at 302. We did so because the statute implicated a fundamental right, the right to be free from physical restraint. Id. But Post is distinguishable from Christopher’s case. Chapter 980 allows the State to petition for the commitment of a sexually violent person…. If the petition is granted, and all of the necessary procedures are met, a sexually violent person can be committed when his or her sentence expires. Thus, under Chapter 980, a person is subject to commitment following the expiration of his or her criminal sentence. In contrast, Wis. Stat. § 51.20(1)(ar) applies only while the individual is serving his or her sentence.

¶39     This distinction is important because “a valid criminal conviction and a prison sentence extinguish a defendant’s right to freedom from confinement.” Vitek, 445 U.S. at 493 [cited sources omitted] …. “Such a conviction and sentence sufficiently extinguish a defendant’s liberty ‘to empower the State to confine him in any of its prisons.'”… Vitek, 445 U.S. at 493 ([quoted source omitted]). To be clear, we are not suggesting that an inmate loses all, or even most, of his or her constitutional rights while he or she is serving his or her sentence. Rather, a prison inmate “retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Turner v. Safley, 482 U.S. 78, 95 (1987) (alteration in original) (internal quotation marks omitted) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)).


¶42    Like the Supreme Court, we assess the extent of an inmate’s rights in the context of the inmate’s confinement. We recognize that “[c]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Post, 197 Wis. 2d at 302 (alteration in original) (internal quotation marks omitted) ([quoted source omitted]). However, when we look at an inmate’s liberty right in the context of his or her confinement, we conclude that his or her specific right to freedom from physical restraint is already curbed because he or she is incarcerated…. Indeed, the very nature of incarceration encompasses physical restraint. Because inmates have a qualified right to freedom from physical restraint and because Wis. Stat. § 51.20(1)(ar) applies only to inmates, we hold that rational basis review applies to Wis. Stat. § 51.20(1)(ar)….

Having decided rational basis scrutiny applies, the majority easily finds that § 51.20(1)(ar) is rationally related to the legitimate state interest of caring for and assisting individuals who suffer from mental illness, an interest particularly strong in the prison context because the prison system has an obligation to provide medical treatment to those in its custody. (¶¶44-46). Thus, Christopher’s facial challenge fails. (¶47).

Christopher also challenged the sufficiency of the evidence for the involuntary medication order, relying on Outagamie County v. Melanie L., 2013 WI 67, 349 Wis. 2d 148, 833 N.W.2d 607. The court rejects this claim. Unlike Melanie L., in this case the County’s examiners (with the prompting of the entirely leading questions asked by the County’s attorney (¶54)) gave testimony that tracked the language of § 51.61(1)(g)4(intro.) and b. Therefore the record shows the examiners applied the proper standard in forming their opinion about Christopher’s competency to refuse medication. (¶¶49-56).

Justice Abrahamson (joined by Justice Ann Walsh Bradley) concurs in the majority’s application of Melanie L. (¶¶93-96) but dissents from the majority’s conclusion that rational basis scrutiny applies the substantive due process issue. The dissent notes that while Washington v. Harper, 494 U.S. 210 (1999), applied rational basis scrutiny to the involuntary medication of dangerous inmates, the later cases of Riggins v. Nevada, 504 U.S. 127, 135 (1992), and Sell v. United States, 539 U.S. 166, 179 (2003), suggest the state must show an “essential” or “overriding” interest, at least in the context of the involuntary medication of inmates. (¶¶67-77). Though the majority stresses that Christopher didn’t challenge the constitutionality of the involuntary medication statute, the dissent points out that the commitment and medication orders were, in this case as in virtually all other ch. 51 cases, “intimately intertwined” (¶82) and therefore the heightened standard should apply to all aspects of the statutory commitment scheme (¶¶78-84). Moreover, the dissent concludes, § 51.20(1)(ar) doesn’t pass muster under the heightened standard and so is invalid. (¶¶85-91).

A note to practitioners: The court’s opinion refers to “Christopher S.” though it perhaps should refer instead to “C.S.” Rule 809.81(8) was amended effective July 1, 2015, to require briefs and opinions in confidential cases (like ch. 51 proceedings) to refer only to an individual’s initials. See Sup. Ct. Order No. 14-01, 2015 WI 21, at 6. True, this case was commenced long before the amendments took effect; the order amending the rule, however, provides that the changes “shall apply to proceedings commenced after the effective date of this rule and, insofar as is just and practicable, to proceedings pending on the effective date.” Id. at  9 (emphasis added). Was it not “just and practicable” for the court to follow the new rule here, given that the certification (issued before the rule change took effect) referred to Christopher S.? Maybe, though the court doesn’t say. Maybe the court simply overlooked the new requirement. Whatever the case, we’ll take this opportunity to remind lawyers filing appellate briefs in ch. 51 and other confidential cases to follow the requirements created by Order 14-01.

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