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SCOW: There’s no fundamental right to participate in treatment court

State v. Michael A. Keister, 2019 WI 26, 3/19/19, reversing a court of appeals order dismissing the appeal and vacating a circuit court order; case activity (including briefs)

The statute providing for grants to set up treatment courts, § 165.95, does not create a fundamental liberty interest for defendants to participate in treatment court and does not itself need to define the procedures for expulsion from treatment court.

Keister was admitted to a treatment court in Iowa County based on the fact he was on supervision for a drug conviction in Sauk County. Shortly thereafter, he picked up drug charges in Iowa County, and he negotiated a deal for drug court on those charges. However, he then picked up battery and strangulation/suffocation charges in Sauk County. The Iowa County treatment court was partially funded with a grant under § 165.95, a “violent offender” is ineligible for treatment court. See § 165.95(1)(bg) and (3)(c). The conduct underlying Keister’s new Sauk charges made him a “violent offender,” so the Iowa prosecutor moved to expel him from treatment court, apparently believing the mere fact Keister was charged with violent offenses, as evidenced by the new criminal complaint from Sauk County, was enough to make him ineligible.

In response, Keister argued he had a fundamental liberty interest in remaining in treatment court because expulsion would mean jail time. Further, he argued, because he hadn’t been convicted of the Sauk County charges, there had to be a hearing to determine whether he actually committed the offenses before he could be expelled. Because § 165.95 didn’t protect his right to be in treatment court by providing due process before he was expelled, he claimed the statute was unconstitutional. The circuit court agreed and dismissed the expulsion motion. The state appealed, but during briefing the Sauk County charges were dismissed, removing the basis for the expulsion motion; so the court of appeals dismissed the appeal as moot.

In the supreme court everyone agrees that § 165.95 doesn’t by itself create any substantive rights and doesn’t need to set out an expulsion process:

¶9      The circuit court held that because Keister could be sentenced to jail for possession of heroin if he were to be expelled from the Iowa County Drug Treatment Program, Wis. Stat. § 165.95 implicated a fundamental liberty interest. Keister now concedes and the State agrees that § 165.95 does not create a fundamental liberty interest. We concur that § 165.95[,] which helps fund, but does not create, drug treatment programs, is not so rooted in the traditions and conscience of our people so as to create a fundamental liberty interest. It is therefore sufficient that § 165.95 be rationally related to a legitimate government interest. Section 165.95(3)(b) provides that the grant program is designed to “promote public safety, reduce prison and jail populations, reduce prosecution and
incarceration costs, reduce recidivism, and improve the welfare of participants’ families by meeting the comprehensive needs of participants.” We conclude that the State has a rational basis to exclude violent offenders from drug treatment programs because they may have additional treatment and supervision needs and may also have their progress in the treatment court program hampered by the possibility of incarceration in a pending case.

¶10      The circuit court further concluded that because Wis. Stat. § 165.95 does not provide procedures for expulsion from drug treatment programs for persons labeled “violent offenders,” the statute violated Keister’s procedural due process rights. To prove a procedural due process violation, a party must show “a deprivation by state action of a constitutionally protected interest in ‘life, liberty or property’ without due process of law.” Thorp v. Town of Lebanon, 2000 WI 60, ¶53, 235 Wis. 2d 610, 612 N.W.2d 59 (quoted source omitted).

¶11      The parties concede that because Wis. Stat. § 165.95 is a funding statute, it need not set forth procedures for expulsion in order to survive a procedural due process challenge. We agree. Section 165.95 gives discretion to the individual counties to define rules and procedures for their treatment programs, including expulsion procedures. We decline to address the procedures used by Iowa County regarding expulsion from the Iowa County Drug Treatment Court program because those procedures are not in the record and Keister himself was never subject to those procedures…. We decline to exercise our superintending authority here, as suggested by Keister, because the “necessities of justice” do not require it. Arneson v. Jezwinski, 206 Wis. 2d 217, 225, 556 N.W.2d 721 (1996).

Because the supreme court doesn’t clarify what process is due to a treatment court participant facing expulsion, we’ll have to wait for another case raising that issue. In the meantime, if you’re representing a client in that situation, Keister’s brief lays out the case for why mere allegations of violent conduct aren’t sufficient and why there must be a process akin to that required for revocation of probation, parole, or extended supervision under Morrissey v. Brewer, 408 U.S. 471 (1972).

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