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SCOW will review more constitutional challenges to ch. 51’s recommitment scheme

Waupaca County v. K.E.K., 2018AP1887, petition for review of an unpublished court of appeals decision granted 7/24/20; case activity

Issues presented:

  1. Did the circuit court lose competency to conduct a recommitment hearing because the County did not file the evaluation of K.E.K. at least 21 days before the expiration of her commitment, as required by § 51.20(13)(g)2r.?
  2. Is the recommitment standard in § 51.20(1)(am) facially unconstitutional under the 14th Amendment  because it violates the guarantees of substantive due process and equal protection of the law or abridges the privileges or immunities of citizens?
  3. Is the recommitment standard in § 51.20(1)(am) unconstitutional as applied to K.E.K.?

We briefly interrupt our dog days hiatus to bring you the late-breaking news about this PFR grant. This case raises fundamental issues about ch. 51 proceedings that practitioners should be aware of so they can consider preserving them for review in pending cases.

Taking the constitutional issues first, K.E.K. challenges the constitutionality of the recommitment standard by building from the case law upholding § 51.20(1)(a)2.e., the so-called “fifth standard” for initial commitment. State v. Dennis H., 2002 WI 104, 255 Wis. 2d 359, 647 N.W.2d 851. That standard allows commitment based on a prediction of dangerousness about the person grounded in his or her treatment history plus recent acts or omissions. The recommitment standard under § 51.20(1)(am), on the other hand, is all about prediction of dangerousness should treatment be withdrawn. The recommitment standard allows the prediction to stand in the place of proof of acts or omissions, and it appears to employ a less stringent standard of prediction—a mere “substantial likelihood” versus the fifth standards “substantial probability.”

K.E.K. argues this lesser standard allows recommitment of someone like her, who hasn’t recently exhibited any dangerousness and isn’t dangerous because she is voluntarily engaged in treatment. Thus, the recommitment standard violates substantive due process on its face, or at least as applied to her (thus the third listed issue), and impermissibly treats persons subject to recommitment differently and unequally than persons subject to initial commitment under the fifth standard.

What about the privileges and immunities claim, you ask? Some justices are skeptical that the 14th Amendment protects something called substantive due process, and think the privileges or immunities clause was the real grounding for the challenges she was making. Winnebago County v. C.S., 2020 WI 33, ¶¶57-61 (R.G. Bradley, J., dissenting) & 74-76 (Hagedorn, J., dissenting), 391 Wis. 2d 35, 940 N.W.2d 875. In light of that development, K.E.K. moved to amend the petition to include a privileges or immunities claim. The court granted that motion, so beyond a ruling on the substance of K.E.K.’s constitutional arguments, this decision might be the occasion for more sparring about what the 14th Amendment means in Wisconsin.

Turning back to the first issue: Under i§ 51.20(13)(g)2r. the county was required to file an evaluation regarding recommitment at least 21 days before expiration of the current commitment, and it indisputably blew that deadline in this case. The court of appeals held it didn’t deprive the circuit court of competency to proceed because the statute itself says failure to comply with the deadline doesn’t deprive the court of “jurisdiction.” Jurisdiction is different than competency, though, as the supreme court has been at pains to make clear. Jurisdiction is about the power of the court to address the subject matter of the case at all; competency is about the power to exercise jurisdiction in a particular case, and turns on compliance with procedural rules about bringing and litigating the case. City of Eau Claire v. Booth, 2016 WI 65, ¶7, 370 Wis. 2d 595, 882 N.W.2d 738. The court of appeals rejected K.E.K.’s argument that “jurisdiction” means “jurisdiction,” and essentially rewrote the statute by adding the words “competency to exercise” in front of the word “jurisdiction.” Courts are not supposed to rewrite statutes, so we’ll see if the supreme court excises the language added by the court of appeals.

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