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SCOW upholds constitutionality of Ch. 51 recommitment statute

Waupaca County v. K.E.K., 2021 WI 9, 2/9/21, affirming an unpublished COA opinion, 2018AP1887; case activity

Waupaca County sought to extend Kate’s initial commitment for one year. The County’s examiner and witnesses agreed that she had not been dangerous during her initial commitment. She had taken her medication and was doing really well. She even agreed to take medication going forward, provided that it was not the one that had caused horrible side effects because it made her feel better. The circuit court recommitted her because the doctor opined that she would stop treatment in the future and become a proper subject of commitment. She challenged the constitutionality of §51.20(1)(am) on its face and as applied under the 14th Amendment. In a 5-2 decision, SCOW upheld the statute.

Kate’s challenge rested on two SCOTUS cases. O’Connor v. Donaldson, 422 U.S. 563, 575 (1975) held that under the 14th Amendment the government cannot commit a person for being mentally ill. She must also be “dangerous.” Even if an original commitment was founded on a constitutionally adequate basis, the commitment cannot constitutionally continue “after that basis no longer exists.”

A later case, Foucha v. Louisiana, 504 U.S. 71, 78 (1992) held that the government cannot hold a person who is mentally ill unless it establishes both “current mental illness and dangerousness.” Foucha explained that this requires evidence that the person is “demonstrably dangerous.”

In Wisconsin, a court may initially commitment a person who is both mentally ill and dangerous for 6 months under one of the 5 standards of dangerousness on §51.20(1)(a)2.a-e. Each of these 5 standards requires the county to prove “recent acts or omissions” of dangerousness.

A court may extend that commitment for up to 1 year under §51.20(1)(am), an alternate standard, which explicitly relieves the county of the proving “recent acts or omissions” required for an initial commitment.  The county simply has to put on an examiner who says that if treatment were withdrawn there is a substantial probability the person would be committed again.  When? The statute does not say.

Kate argued that §51.20(1)(am)’s provision that expressly relieves the county of the obligation to prove recent acts or omissions (or even recent treatment records) violates O’Connor‘s and Foucha‘s “current” dangerousness requirement and hence the 14th Amendment.

SCOW rejected this argument because it had already “authoritatively interpreted” §51.20(1)(am) in Portage County v. J.W.K., 2019 WI 54, ¶24, 386 Wis. 2d 672, 927 N.W.2d 509, and it saw no special reason for departing from the interpretation now. Opinion, ¶23. 

J.W.K. did not involve any challenge to the constitutionality of §51.20(1)(am). It did not address or even cite O’Connor. And it rested on the erroneous assumption that the legislature enacted §51.20(1)(am) to prevent a revolving door of commitment, release, recommitment. As the dissent points out, there is no evidence of the legislature’s intent for §51.20(1)(am). One might add that basing a decision on what the legislature may have intended, rather than what it wrote, violates the off-cited State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110 not to mention Scalia’s proclamation: “It is the law that governs not the intent of the lawgiver . . . ” Antonin Scalia, A Matter of Interpretation, at 17 (Princeton University Press, 1997).

Kate argued that §51.20(1)(am) also violated the 14th Amendment’s equal protection clause. A recommitment under §51.20(1)(am) and a 5th standard commitment under §51.20(1)(a)2.e are both preemptive commitments–meaning that the government is confining a mentally ill person before he actually becomes dangerous. However, the 5th standard requires the government to prove recent acts or omissions, but the recommitment standard does not.

SCOW held that while these two classes of individuals are similarly situated, the legislature had a rational basis for not requiring the government to prove recent acts or omissions for a recommitment.

By enacting this alternative means of showing dangerousness, the legislature conceivably could have wanted——and likely did want—— to give counties a more realistic basis by which to prove current dangerousness when it is likely the committed individual would discontinue treatment if no longer committed. See J.W.K., 386 Wis. 2d 672, ¶24 (“[Wisconsin Stat. § 51.20(1)(am)] merely acknowledges that an individual may still be dangerous despite the absence of recent acts, omissions, or behaviors exhibiting dangerousness outlined in § 51.20(1)(a)2.a.-e.”). Opinion, ¶36.

Lastly, Kate argued that if §51.20(1)(am) was facially constitutional, then it was unconstitutional as applied to her case. A facial challenge requires proof that the law cannot be enforced under any circumstances. An as-applied challenge argues that the statute is unconstitutional as applied to the facts of a specific case.  Kate argued that even if §51.20(1)(am) is facially constitutional, it is unconstitutional applied to her case because the evidence was insufficient to commit her under O’Connor, Foucha and the 14th Amendment. SCOW declared this a “disguised argument” that the evidence was insufficient under § 51.20(1)(am) and refused to address it. Opinion, ¶6, ¶44.

This is an important point for future cases. Kate did not argue that the evidence was insufficient under §51.20(1)(am). She argued that it was insufficient under the 14th Amendment. The majority did not address the sufficiency of the evidence under either standard. It punted. Thus, this decision does not preclude a future litigant from challenging the sufficiency of the evidence under §51.20(1)(am) or the 14th Amendment where the person has not exhibited dangerousness during her expiring commitment and she is medication compliant. SCOW’s only pronouncement on the evidence required to satisfy §51.20(1)(am) is the recent defense win Langlade Cnty. v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277.

Justice Dallet wrote a dissenting opinion joined by Justice Kaorfsky. Dallet would declare §51.20(1)(am) unconstitutional on its face because it eliminates the constitutionally required showing of current dangerousness and requires only a showing that the person “was or might become dangerous.” In fact, in §51.20(1)(am) the legislature redefined the term “current” dangerousness to mean “might become dangerous if hypothetical future conditions are met.” Dallett argued that there is nothing “unrealistic” about requiring “evidence of current dangerous behavior to show that someone is currently dangerous.”

Dallet noted that J.W.K. made no pronouncement on the constitutionality of §51.20(1)(am) and thus did not bind the majority in this case. In fact, contrary to the language of §51.20(1)(am), J.W.K. held that a court cannot extend a commitment if its only evidence of dangerousness is that which led to the initial commitment. She acknowledged the concern that a person released from commitment might stop taking medication and become a proper subject for commitment again. However, while it may be more expedient to just keep people committed, that practice violates the 14th Amendment.



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