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Winnebago County v. Christopher S., 2014AP1048, certification granted 5/12/15

Click here for certification order; circuit court order affirmed, 2016 WI 1; click here for case activity

Issue (composed by the court of appeals):

This appeal raises an important issue of first impression regarding the constitutionality of a mental health treatment statute related to inmates within the Wisconsin state prison system.  The question presented is whether Wis. Stat. § 51.20(1)(ar) (2013-14) is facially unconstitutional on substantive due process grounds because it does not require that a court find an inmate dangerous prior to ordering the inmate civilly committed for treatment and authorizing the involuntary medication of the inmate.  A definitive answer to this question from the Wisconsin Supreme Court, along with a clear statement as to the appropriate level of constitutional scrutiny to apply in such a case, would be of great value to the bench, the bar, the legislature, and the citizenry.  Thus, we certify this appeal to the Wisconsin Supreme Court pursuant to Wis. Stat. Rule 809.61.

As noted above, the court of appeals is concerned about the proper constitutional scrutiny standard for this issue. The certification walks through several cases suggesting uncertainty on this point but concludes: “Rational basis review appears to be the correct standard under which to review § 51.20(1)(ar); however, a clear statement on the standard from the Wisconsin Supreme Court would be of value.” Certification at 7. See State v. Olson, 2006 WI App 32, ¶4, 290 Wis. 2d 202, 712 N.W.2d 61; State v. Dennis H., 2002 WI 104, ¶¶7, 8, 11, 255 Wis. 2d 359, 647 N.W.2d 851; and Washington v. Harper, 494 U.S. 210, 224 (1990).  Interestingly, the State concedes that Harper requires a dangerousness showing before an inmate is subjected to involuntary mental health treatment consisting of medication. The State claims §51.20(1)(ar) is nevertheless constitutional because it is “rationally related to the legitimate goal of providing mental health services to individuals already confined in secure correctional facilities.” Certification at 9. But Christopher and the court of appeals say the issue is commitment not confinement and whether substantive due process requires a dangerousness finding before the State may commit an inmate for treatment and medicate him against his will.

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