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SCOW to address process for expulsion from treatment court

State v. Michael A. Keister, 2017AP1618-CR, state’s petition for review granted 9/4/2018; case activity (including briefs)

Issues (based on the state’s petition for review )

  1. Does a person have a fundamental liberty interest in participation in a treatment court funded by the state and county when he or she is charged with an offense involving violent conduct as defined in § 165.95(1)(a) (2015-16)?
  2. Does § 165.95 (2015-16), the statute creating DOJ’s grant funding for treatment courts, violate procedural due process because it does not procedures for treatment courts to follow in expelling a participant?

The court of appeals dismissed the appeal in this case as moot, but the state has successfully urged the supreme court to take a look at the case anyway because of the significance of the questions presented. Understanding those questions requires some background.

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. Before he consummated that deal, however, he picked up battery and strangulation/suffocation charges in Sauk County. Under § 165.95, the statute under which the Iowa County treatment court was partially funded, the conduct underlying the new Sauk charges made him a “violent offender” and thus ineligible for treatment court. See § 165.95(1)(a) and (3)(c). So the Iowa prosecutor moved to expel Keister from treatment court, asserting the mere fact he was charged with violent offenses, as evidenced by the new criminal complaint from Sauk County, was enough to expel him. (Expulsion would also undo his deal for drug court on the new Iowa County charges.)

In response Keister argued he had a fundamental liberty interest in remaining in treatment court because expulsion would mean jail time, and because he hadn’t been convicted of the Sauk County charges, there had to be a hearing to determine whether he actually committed the conduct before he could be expelled. And, he argued, because § 165.95 didn’t protect his right to be in treatment court by providing for such a process, the statute is 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 and making the case moot.

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