Winnebago County v. Christopher S. , 366 Wis. 2d 1 ( 2016 )

2016 WI 1SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP1048
COMPLETE TITLE: In the matter of the mental commitment of
Christopher S.:
Winnebago County,
Petitioner-Respondent,
v.
Christopher S.,
Respondent-Appellant.
ON CERTIFICATION FROM THE COURT OF APPEALS
(No Cites)
OPINION FILED: January 5, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 18, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Winnebago
JUDGE: Scott C. Woldt
JUSTICES:
CONCURRED:
CONCUR & DISSENT: ABRAHAMSON, A.W.BRADLEY, J.J., concur and
dissent. (Opinion Filed)
NOT PARTICIPATING: R.G. BRADLEY, did not participate.
ATTORNEYS:
For the respondent-appellant, there were briefs by Kaitlin
A. Lamb, assistant state public defender and oral argument by
Kaitlin A. Lamb.
For the petitioner-respondent, there was a brief by James
A. Kearney, assistant corporation counsel, and oral argument by
James A. Kearney.
An amicus curiae brief was filed by Maura F.J. Whelan,
assistant attorney general, and Brad D. Schimel, attorney
general, on behalf of the Wisconsin Department of Justice.
2
2016 WI 1NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP1048
(L.C. No. 2012ME5572)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the mental commitment of
Christopher S.:
Winnebago County, FILED
Petitioner-Respondent,
JAN 5, 2016
v.
Diane M. Fremgen
Clerk of Supreme Court
Christopher S.,
Respondent-Appellant.
APPEAL from orders issued by the Circuit Court for
Winnebago County, Scott C. Woldt, Judge. Affirmed.
¶1 MICHAEL J. GABLEMAN, J. This is a review of a
circuit court's1 order for the involuntary commitment of an
inmate to a mental health facility, order for the involuntary
1
The Honorable Scott C. Woldt, Winnebago County Circuit
Court, presided.
No. 2014AP1048
administration of psychotropic medication and treatment to that
inmate, and order denying postcommitment relief. The involuntary
commitment of an inmate of the Wisconsin state prison system for
mental health care is governed by Wis. Stat.
§ 51.20(1)(ar)(2013-14).2 The involuntary administration of
2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
For clarity and consistency, we will refer to Wis. Stat.
§ 51.20(1)(ar) as either Wis. Stat. § 51.20(1)(ar) or the inmate
commitment statute. It contains the following:
(ar) If the individual is an inmate of a state
prison, the petition may allege that the inmate is
mentally ill, is a proper subject for treatment and is
in need of treatment. The petition shall allege that
appropriate less restrictive forms of treatment have
been attempted with the individual and have been
unsuccessful and it shall include a description of the
less restrictive forms of treatment that were
attempted. The petition shall also allege that the
individual has been fully informed about his or her
treatment needs, the mental health services available
to him or her under this chapter and that the
individual has had an opportunity to discuss his or
her needs, the services available to him or her and
his or her rights with a licensed physician or a
licensed psychologist. The petition shall include the
inmate's sentence and his or her expected date of
release as determined under s. 302.11 or 302.113,
whichever is applicable. The petition shall have
attached to it a signed statement by a licensed
physician or a licensed psychologist of a state prison
and a signed statement by a licensed physician or a
licensed psychologist of a state treatment facility
attesting to either of the following:
1. That the inmate needs inpatient treatment at a
state treatment facility because appropriate treatment
is not available in the prison.
(continued)
2
No. 2014AP1048
medication or treatment3 to an individual is governed by Wis.
Stat. § 51.61(1)(g).4 While Christopher S. ("Christopher") was
2. That the inmate's treatment needs can be met
on an outpatient basis in the prison.
3
Stedman's Medical Dictionary defines medication as "[t]he
act of medicating," or "[a] medicinal substance, or medicament."
Stedman's Medical Dictionary 1077 (27th ed. 2000).
It defines psychotropic as "[c]apable of affecting the
mind, emotions, and behavior; denoting drugs used in the
treatment of mental illnesses." Id. at 1480.
And it defines treatment as "[m]edical or surgical
management of a patient." Id. at 1866. The definition refers to
"therapy, therapeutics." Therapy means "[t]he treatment of
disease or disorder by any method," or "[i]n psychiatry, and
clinical psychology, a short term for psychotherapy." Id. at
1821. Finally, psychotherapy means "[t]reatment of emotional,
behavioral personality, and psychiatric disorders based
primarily upon verbal or nonverbal communication and
interventions with the patient, in contrast to treatments
utilizing chemical and physical measures." Id. at 1479.
4
For clarity and consistency, we will refer to Wis. Stat.
§ 51.61(1)(g) as either Wis. Stat. § 51.61(1)(g) or the
involuntary medication and treatment statute. It reads as
follows:
Except as provided in sub. (2), each patient
shall:
. . . .
(g) Have the following rights, under the
following procedures, to refuse medication and
treatment:
1. Have the right to refuse all medication and
treatment except as ordered by the court under subd.
2., or in a situation in which the medication or
treatment is necessary to prevent serious physical
harm to the patient or others. . . .
. . . .
(continued)
3
No. 2014AP1048
serving his sentence for mayhem, Winnebago County filed a
petition for the examination of a state prison inmate pursuant
to Wis. Stat. § 51.20(1)(ar). The County sought commitment in
the Wisconsin Resource Center ("WRC")5 because Christopher was
suffering from mental illness and because the WRC could meet
Christopher's treatment needs. In addition, the County filed a
4. For purposes of a determination under subd. 2.
or 3., an individual is not competent to refuse
medication or treatment if, because of mental illness,
developmental disability, alcoholism or drug
dependence, and after the advantages and disadvantages
of and alternatives to accepting the particular
medication or treatment have been explained to the
individual, one of the following is true:
a. The individual is incapable of expressing an
understanding of the advantages and disadvantages of
accepting medication or treatment and the
alternatives.
b. The individual is substantially incapable of
applying an understanding of the advantages,
disadvantages and alternatives to his or her mental
illness, developmental disability, alcoholism or drug
dependence in order to make an informed choice as to
whether to accept or refuse medication or treatment.
5
"The Wisconsin Resource Center (WRC) is administered by
the Wisconsin Department of Health Services in partnership with
the Wisconsin Department of Corrections. [The] WRC is a
specialized mental health facility established as a prison under
s. 46.056, Wisconsin Statutes." Wis. Dep't of Health Servs.,
https://www.dhs.wisconsin.gov/wrc/index.htm (last visited Nov.
6, 2015); see also Wis. Stat. § 46.056(1) ("[T]he department
shall have responsibility for administering the [WRC] as a
correctional institution that provides psychological
evaluations, specialized learning programs, training and
supervision for inmates whose behavior presents a serious
problem to themselves or others in the state prisons and whose
mental health needs can be met at the center.").
4
No. 2014AP1048
petition for the involuntary administration of psychotropic
medication and treatment pursuant to Wis. Stat.
§ 51.61(1)(g)4.b.
¶2 The circuit court granted the County's petition for
the involuntary commitment of Christopher for mental health care
as well as the County's petition for the involuntary
administration of psychotropic medication and treatment to
Christopher. Christopher filed a postcommitment motion
challenging both orders. The circuit court denied the motion,
and Christopher appealed. The court of appeals certified the
case to this court pursuant to Wis. Stat. § 809.61. We accepted
certification on May 11, 2015.
¶3 Christopher makes three arguments on appeal. First, he
argues that Wis. Stat. § 51.20(1)(ar) violates his substantive
due process rights and is, therefore, facially unconstitutional.
More specifically, Christopher claims that Wis. Stat.
§ 51.20(1)(ar) is unconstitutional because it authorizes the
involuntary commitment of an inmate without first finding the
inmate dangerous.
¶4 Second, Christopher argues in the alternative that if
we refuse to hear his constitutional challenge, we should
consider whether his trial attorney performed ineffectively by
failing to challenge the constitutionality of Wis. Stat.
§ 51.20(1)(ar). Christopher makes clear that he raises his
ineffective assistance of counsel argument only if we refuse to
hear his constitutional challenge. Because we address the merits
5
No. 2014AP1048
of Christopher's constitutional claim,6 we will not address his
claim of ineffective assistance of counsel.
¶5 Third, Christopher contends that the circuit court
erred when it concluded that Christopher was incompetent to
refuse psychotropic medication and treatment pursuant to Wis.
Stat. § 51.61(1)(g). Christopher relies on our decision in
Outagamie County v. Melanie L., 2013 WI 67, 349 Wis. 2d 148, 833
N.W.2d 607, to challenge the way the circuit court applied the
evidence presented at the involuntary medication and treatment
hearing to the requirements contained in Wis. Stat.
§ 51.61(1)(g). More specifically, Christopher argues that the
evidence presented at the involuntary medication and treatment
hearing did not support a finding that the County complied with
the statutory requirements contained in Wis. Stat.
§ 51.61(1)(g)4.b.
¶6 We pause briefly to point out what Christopher does
not argue. Christopher does not make an as applied challenge
against Wis. Stat. § 51.20(1)(ar), the inmate commitment
6
Christopher did not raise his facial challenge prior to
making his postcommitment motion. Nonetheless, review is
appropriate because "a facial challenge is a matter of subject
matter jurisdiction and cannot be waived." State v. Bush, 2005
WI 103, ¶¶17, 14-19, 283 Wis. 2d 90, 699 N.W.2d 80 (citing State
v. Cole, 2003 WI 112, ¶46, 464 Wis. 2d 520, 665 N.W.2d 328).
6
No. 2014AP1048
statute.7 Additionally, Christopher does not in any way challenge
the constitutionality of the involuntary medication or treatment
statute, Wis. Stat. § 51.61(1)(g).
¶7 We proceed to consider two issues raised by
Christopher. The first is whether Wis. Stat. § 51.20(1)(ar)
violates an inmate's substantive due process rights and is,
therefore, facially unconstitutional. The second is whether the
circuit court erred when it found that Winnebago County
established by clear and convincing evidence that Christopher
was incompetent to refuse psychotropic medication and treatment.
¶8 As to the first issue, we hold that Wis. Stat.
§ 51.20(1)(ar) is facially constitutional because it is
reasonably related to the State's legitimate interest in
providing care and assistance to inmates suffering from mental
illness. As to the second issue, we affirm the circuit court
because it did not err when it found by clear and convincing
evidence that Christopher was incompetent to refuse psychotropic
medication and treatment.
7
Christopher has filed a motion to strike a portion of
Winnebago County's response brief that argues, "Wis. Stat.
§ 51.20(1)(ar) is not unconstitutional as applied to Christopher
S." Christopher did not raise an as applied challenge in the
court of appeals, nor did he raise an as applied challenge
before this court. At oral argument, both parties agreed that
the motion to strike should be granted. We grant the motion to
strike and, therefore, will not consider an as applied challenge
against Wis. Stat. § 51.20(1)(ar).
7
No. 2014AP1048
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶9 At all times relevant to these proceedings,
Christopher was an inmate of the Wisconsin state prison system.
In 2005, Christopher was convicted of mayhem as a repeater, in
violation of Wis. Stat. § 940.21 (2001-02).8 As a result of his
conviction, Christopher was sentenced to twenty years of
confinement, consisting of ten years of incarceration followed
by ten years of extended supervision.
¶10 In 2012, Fox Lake Correctional Institution received a
complaint from Christopher that his cellmate sexually assaulted
him. Subsequent to his complaint, Fox Lake Correctional
Institution transferred Christopher to the WRC in Winnebago
County.
¶11 Dr. Michlowski, medical director for the WRC, spoke
with Christopher soon after he was admitted. Dr. Michlowski
outlined his conversation with Christopher in a letter to Mr.
Bartow, director of the WRC. In the letter, Dr. Michlowski
wrote, "[Christopher] understood that he was being referred to
the WRC because he is 'being commissioned' by the 'military
command to produce castings,' for 'engineering purposes.'"
Subsequent interactions between Christopher and WRC personnel
revealed that Christopher believed he was "programmed by
8
The mayhem statute, Wis. Stat. § 940.21 (2001-02) states,
"Whoever, with intent to disable or disfigure another, cuts or
mutilates the tongue, eye, ear, nose, lip, limb, or other bodily
member of another, is guilty of a Class B felony."
8
No. 2014AP1048
'Special Operations,'" and he "insisted that there [were] chips
in his hands and shoulder." Eventually, doctors x-rayed
Christopher's hand in an effort to convince Christopher of his
need for psychotropic medication.9 The x-ray came back normal,
but Christopher disregarded it because "the x-ray can't
penetrate Beryllium."
¶12 In his letter, Dr. Michlowski also informed Mr. Bartow
of an incident that occurred on September 16, 2012. On that day,
an officer at the WRC ordered Christopher to eat in the dayroom.
Christopher refused that order and began to "posture and loudly
indicate that the officer giving him the order had raped
[Christopher] while [Christopher] was in the military." Dr.
Michlowski requested via his letter that "[the County] petition
the court to find that [Christopher] is suffering from a major
mental illness (presently psychotic)." In that same letter, Dr.
Michlowski mentioned that Christopher was seeing Dr. Keshena but
that Christopher "made it clear to [Dr. Keshena] that he does
not believe he has any psychotic problems." Finally, Dr.
Michlowski opined that "[Christopher] is clearly delusional at
this time and although he did consider taking medication several
weeks ago, his illness at this time is clearly precluding him
from acting in his own best interest."
9
Christopher had previously told Dr. Michlowski that "if
the x-ray turned out to be normal that he would be more inclined
to accept a trial of medication."
9
No. 2014AP1048
¶13 On November 2, 2012, Dr. Maria Murgia de Moore
conducted a two-hour clinical interview with Christopher. She
did so at the request of the WRC. Based on this interview, a
review of the WRC's records, and discussions with WRC staff, Dr.
Murgia de Moore concluded that Christopher "suffers from a major
mental illness (Psychotic Disorder, Not Otherwise Specified)
that is characterized by disorganized speech, disorganized
thinking, delusions, and poor judgment." Finally, Dr. Murgia de
Moore recommended that Christopher be committed and further
recommended that he be treated with appropriate psychotropic
medications.
¶14 Later that November, Winnebago County filed a petition
for the involuntary commitment of Christopher pursuant to Wis.
Stat. § 51.20(1)(ar) as well as a petition for the involuntary
administration of psychotropic medication and treatment to
Christopher pursuant to Wis. Stat. § 51.61(1)(g)4.b. Following a
probable cause hearing, the court ordered Drs. J.R. Musunuru and
Yogesh Pareek to examine Christopher for the purpose of
determining his mental condition.
¶15 Dr. Musunuru conducted a one-hour interview with
Christopher and also reviewed his medical records from the WRC.
In his letter to the court, Dr. Musunuru described Christopher
as "mildly anxious," "irritable," "distractib[le]," "extremely
paranoid," "preoccupied with persecution, mistrust, and [the
idea that] someone is going to hurt him," and "vague about his
hallucinations." In that same letter, Dr. Musunuru diagnosed
Christopher with "Schizophrenia Paranoid type," which is "a
10
No. 2014AP1048
substantial disorder of thought, mood, perception, which grossly
impairs judgment, behavior, capacity to recognize reality, or
the ability to meet the ordinary demands of life." Based on this
diagnosis, Dr. Musunuru recommended psychotropic medication and
noted that "the advantages and disadvantages and the
alternatives to accepting particular medications [were]
explained to the subject in detail[]." However, Dr. Musunuru
also found that "the subject holds patently false beliefs about
the treatment recommended medications, which prevent an
understanding of the legitimate risk and benefits. They are
denial of illness and trust in his delusions." As a result, Dr.
Musunuru concluded that "due to the subject's mental illness,
the subject is substantially incapable of applying an
understanding of the advantages, disadvantages, and alternatives
to make an informed choice as to accept or refuse medications."
¶16 Similarly to Dr. Musunuru, Dr. Pareek conducted a one-
hour interview with Christopher and also reviewed Christopher's
medical records from the WRC. In a letter to the circuit court,
Dr. Pareek diagnosed Christopher with "Schizophrenia chronic
paranoid type" and noted that "[Christopher] has no insight into
his mental illness and he does not accept that he needs to be
treated." Finally, Dr. Pareek recommended that Christopher be
committed and medicated.
¶17 On December 21, 2012, a jury trial was held for the
purpose of determining whether Christopher should be
11
No. 2014AP1048
involuntarily committed under Wis. Stat. § 51.20(1)(ar).10
Christopher was present for trial, but he did not testify.
Winnebago County called two witnesses, Drs. Keshena and
Musunuru.
¶18 Dr. Keshena testified that she had reviewed
Christopher's medical records, observed him, and conducted a
mental-status evaluation on him. Based on this, she diagnosed
Christopher with "psychosis" and noted that Christopher's
psychosis "grossly" impairs "his capacity to recognize reality."
Additionally, Dr. Keshena testified that she believed that
Christopher was a proper subject for treatment and that his type
of illness responded well to treatment. She further testified
that she had attempted less restrictive forms of treatment with
Christopher, but those forms were unsuccessful.11 Finally, Dr.
Keshena testified that she had fully informed Christopher about
his treatment needs, the availability of mental health services,
his rights, and his ability to discuss this information with
her.
¶19 Dr. Musunuru testified that he reviewed Christopher's
records and conducted an interview with Christopher. Based on
10
The sole issue for the jury was whether the County proved
the requirements outlined in Wis. Stat. § 51.20(1)(ar).
11
The petition stated, "appropriate less restrictive forms
of treatment were attempted with the subject inmate and were
unsuccessful, including: voluntary treatment with psychotropic
med[ication]s and voluntary transfer to special unit within the
institution for spec[ial] care of mental illness."
12
No. 2014AP1048
this, he concluded that Christopher "suffers from a major mental
illness" called "schizophrenia paranoid type." Dr. Musunuru
further testified that Christopher's illness substantially
impairs his "judgment, behavior, capacity to recognize reality,
and also, [his] ability to meet [the] ordinary demands of life."
Like Dr. Keshena, Dr. Musunuru testified that Christopher was a
proper subject for treatment.
¶20 While the jury was deliberating, the circuit court
conducted a bench trial for the purpose of determining whether
to grant the County's petition for the involuntary
administration of psychotropic medication and treatment pursuant
to Wis. Stat. § 51.61(1)(g)4.b.12 The County called Dr. Keshena
as a witness. Dr. Keshena testified that she had an opportunity
to explain to Christopher the advantages, disadvantages, and
alternatives to medication. Further, she testified that
Christopher was substantially incapable of applying an
understanding of the advantages, disadvantages, and alternatives
to his mental illness in order to make an informed choice as to
whether to refuse psychotropic medications. Finally, on cross-
examination, she explained that Christopher was previously on
lithium and that Christopher told her he did not have side
12
Unlike the inmate commitment statute, the involuntary
medication or treatment statute does not contain a right to a
jury trial. Wisconsin Stat. § 51.61(1)(g)3., outlines the
involuntary medication or treatment hearing requirements: "The
hearing under this subdivision shall meet the requirements of
s. 51.20(5), except for the right to a jury trial." (Emphasis
added.)
13
No. 2014AP1048
effects from the lithium but that he also believed it was a
placebo.
¶21 That same day, the jury reached a verdict. The jury
made five findings: (1) Christopher was mentally ill, (2)
Christopher was a proper subject for treatment and in need of
treatment, (3) Christopher was an inmate of the Wisconsin state
prison system, (4) appropriate less restrictive forms of
treatment were attempted with Christopher but were unsuccessful,
and (5) Christopher was fully informed of his treatment needs,
the mental health services available to him, his rights, and
Christopher had an opportunity to discuss his needs, the
services available, and his rights with a licensed physician.13
In accordance with the jury's findings, the circuit court
granted the County's petition for involuntary commitment for six
months.14 The court ordered Christopher committed to the WRC.
13
The jury's findings tracked the requirements outlined in
Wis. Stat. § 51.20(1)(ar).
14
The court's role at the end of the jury trial includes
the following:
[A]t the conclusion of the proceedings, the court
shall . . . [i]f the individual is an inmate of a
state prison and the allegations under sub. (1)(a) or
(ar) are proven, order commitment to the department
and either authorize the transfer of the inmate to a
state treatment facility or if inpatient care is not
needed authorize treatment on an outpatient basis in
the prison . . . .
Wisconsin Stat. § 51.20(13)(a)(4) (emphasis added).
14
No. 2014AP1048
¶22 The court also granted the County's petition for the
involuntary administration of psychotropic medication and
treatment, concluding that "[Christopher] does not have an
understanding of the advantages and disadvantages of the
medication." The court added, "I find that the medication has a
therapeutic value and would not hinder his ability to
participate in future legal proceedings, and therefore, issue a
medication order." According to the court's written order,
Christopher was incompetent to refuse psychotropic medication
and treatment because he "is substantially incapable of applying
an understanding of the advantages, disadvantages, and
alternatives to [his] condition in order to make an informed
choice as to whether to accept or refuse psychotropic
medications." Both the commitment order and the medication order
were subsequently extended after the original orders expired.
¶23 Christopher's attorney filed a postcommitment motion
challenging the court's order for the involuntary commitment of
Christopher and order for the involuntary administration of
psychotropic medication and treatment to Christopher. The
circuit court denied postcommitment relief; it concluded that
Christopher's motion was moot because he appealed only the
original commitment and medication orders, which had already
expired. The circuit court did not address the merits of
Christopher's argument that Wis. Stat. § 51.20(1)(ar) violated
the constitution. Christopher appealed, and the court of appeals
certified the case to this court. We accepted certification.
15
No. 2014AP1048
II. DISCUSSION
¶24 We first discuss whether Wis. Stat. § 51.20(1)(ar)
violates an inmate's substantive due process rights and is,
therefore, facially unconstitutional. We hold that Wis. Stat.
§ 51.20(1)(ar) is facially constitutional because it is
reasonably related to the State's legitimate interest in
providing care and assistance to inmates suffering from mental
illness. We then consider whether the circuit court erred when
it found that Winnebago County established by clear and
convincing evidence that Christopher was incompetent to refuse
psychotropic medication. We hold that the circuit court did not
err because the medical expert's undisputed testimony
sufficiently addressed and met the requirements outlined in Wis.
Stat. § 51.61(1)(g)4.b.
A. THE RELEVANT STATUTES
¶25 Because it is important to understand the commitment
and treatment process, we take a moment to outline the way the
relevant statutes work.
¶26 A county may petition for the involuntary commitment
of an individual under Wis. Stat. § 51.20(1). Wisconsin Stat.
§ 51.20 is titled "involuntary commitment for treatment." It
governs how and when the State may seek the involuntary
commitment of a person, except when that person is an inmate of
the Wisconsin state prison system. Wisconsin Stat. § 51.20(1)
16
No. 2014AP1048
carves out a special subsection, subsection (1)(ar), which
governs the involuntary commitment of inmates of the Wisconsin
state prison system. To commit someone under Wis. Stat.
§ 51.20(1), a court must conclude that the person is (1)
mentally ill, developmentally disabled, or drug dependent; (2) a
proper subject for treatment; and (3) dangerous.15
¶27 In contrast, to commit an inmate under Wis. Stat.
§ 51.20(1)(ar), a county must show that (1) the individual is an
inmate of the Wisconsin state prison system; (2) the inmate is
mentally ill; (3) the inmate is a proper subject for treatment
and is in need of treatment; (4) appropriate less restrictive
forms of treatment were attempted with the inmate, and they were
unsuccessful; (5) the inmate was fully informed about his
treatment needs, the mental health services available, and his
rights; and (6) the inmate had an opportunity to discuss his
treatment needs, the services available, and his rights with a
15
Wisconsin Stat. § 51.20(1) contains the following
requirements:
(1) Petition for examination. (a) Except as provided
in pars. (ab), (am), and (ar), every written petition
for examination shall allege that all of the following
apply to the subject individual to be examined:
1. The individual is mentally ill or, except as
provided under subd. 2. e., drug dependent or
developmentally disabled and is a proper subject for
treatment.
2. The individual is[, because he or she does any
of the following,] dangerous . . . .
17
No. 2014AP1048
psychologist or a licensed physician.16 Both Wis. Stat.
§ 51.20(1) and Wis. Stat. § 51.20(1)(ar) are treatment focused;
these statutes emphasize that a person is being committed
because he or she has a mental illness and needs treatment to
help that illness.
¶28 However, Wis. Stat. § 51.61, titled "patient rights,"
states that an individual has "the right to refuse all
medication and treatment." Wis. Stat. § 51.61(1)(g)(1). If an
individual invokes his or her right, then the County can
petition for the involuntary administration of medication or
treatment to an individual pursuant to Wis. Stat. § 51.61(1)(g).
Wisconsin Stat. § 51.61(1)(g) does not carve out a special
subsection for inmates, so the requirements to prove
incompetency to refuse medication and treatment are the same for
everyone (inmates and non-inmates alike). To prove incompetency,
the County must show that "because of mental illness,
developmental disability, alcoholism or drug dependence, and
after the advantages and disadvantages of and alternatives to
accepting the particular medication or treatment [were]
explained to the individual," the individual is either
(1) "incapable of expressing an understanding of the advantages
and disadvantages of accepting medication or treatment and the
16
Unlike Wis. Stat. § 51.20(1), which requires a finding of
dangerousness, Wis. Stat. § 51.20(1)(ar) does not require such a
finding. According to Christopher, it is this absence of a
required finding of dangerousness that renders Wis. Stat.
§ 51.20(1)(ar) facially unconstitutional.
18
No. 2014AP1048
alternatives," or (2) "substantially incapable of applying an
understanding of the advantages, disadvantages and alternatives
to his or her mental illness, developmental disability,
alcoholism or drug dependence in order to make an informed
choice as to whether to accept or refuse medication or
treatment." Wis. Stat. § 51.61(1)(g)4.a., b.
¶29 To summarize, an inmate can be involuntarily committed
under Wis. Stat. § 51.20(1)(ar) only when the State satisfies a
hefty set of requirements. Moreover, an inmate is committed so
he or she can receive treatment for his or her mental illness.
But, if the inmate invokes his or her right to refuse treatment,
then the State will need to petition for the involuntary
administration of medication or treatment to that inmate.
B. MOOTNESS
1. This Case Is Moot, But We Will Address The Issues Because
They Are Of Great Public Importance And Are Likely To Evade
Review.
¶30 Before we review the merits of Christopher's
constitutional challenge, we first address whether this case is
moot. At the postcommitment motion hearing, Winnebago County
argued that this case was moot because Christopher's original
commitment order had already expired prior to the filing of his
motion for postcommitment relief. The circuit court agreed. We
agree with the circuit court's conclusion that this case is
moot; however, we take up Christopher's claims because they
19
No. 2014AP1048
qualify for review under two of the four exceptions to the
general rule barring consideration of moot claims.
¶31 An issue is moot "when a determination is sought upon
some matter which, when rendered, cannot have any practical
legal effect upon a then existing controversy." In re Sheila W.,
2013 WI 63, ¶4, 348 Wis. 2d 674, 835 N.W.2d 148 (per curiam). We
have stated that there is an "apparent lack of a live
controversy" when an appellant appeals an order to which he or
she is no longer subjected. In re Mental Commitment of Aaron
J.J., 2005 WI 162, ¶3, 286 Wis. 2d 376, 706 N.W.2d 659 (per
curiam) (noting that the case implicated a potential issue of
mootness because Aaron was no longer subject to a commitment
order, but dismissing the case as improvidently granted due to
inadequate development of the legal arguments); see Sheila W.,
348 Wis. 2d 674, ¶4 ("In this case, no determination of this
court will have any practical legal effect upon an existing
controversy because the order being appealed has expired."). In
Christopher's case, the issues are moot because he is no longer
subject to the orders being appealed.
¶32 Nevertheless, we may decide an otherwise moot issue if
it
(1) is of great public importance; (2) occurs so
frequently that a definitive decision is necessary to
guide circuit courts; (3) is likely to arise again and
a decision of the court would alleviate uncertainty;
or (4) will likely be repeated, but evades appellate
review because the appellate review process cannot be
completed or even undertaken in time to have a
practical effect on the parties.
20
No. 2014AP1048
Melanie L., 349 Wis. 2d 148, ¶80 (citing State v. Morford, 2004
WI 5, ¶7, 268 Wis. 2d 300, 674 N.W.2d 349). We conclude that the
issues presented are of great public importance as they would
affect a large number of persons in the Wisconsin State prison
system.17 Moreover, we conclude that the issues are likely to
evade appellate review "in many instances because the order[s]
appealed from will have expired before an appeal is completed."
Id. We therefore consider the issues Christopher asks us to
review.
C. WHETHER WIS. STAT. § 51.20(1)(ar) IS FACIALLY CONSTITUTIONAL.
1. Standard Of Review
¶33 "The constitutionality of a statute is a question of
law that we review de novo." State v. Wood, 2010 WI 17, ¶15, 323
Wis. 2d 321, 780 N.W.2d 63 (citing State v. Hansford, 219
Wis. 2d 226, 234, 580 N.W.2d 171 (1998)). "Further, we review a
statute under the presumption that it is constitutional." Id."Every presumption must be indulged to sustain the law if at all
possible and, wherever doubt exists as to a legislative
enactment's constitutionality, it must be resolved in favor of
17
For example, in June 2008, Wisconsin housed 22,451
inmates. Dep't of Corrs. & Dep't of Health Servs., An
Evaluation: Inmate Mental Health Care 26 (2009),
legis.wisconsin.gov/lab/reports/09-4Full.pdf. Of those inmates,
6,957 were suffering from mental illness. Id. That is nearly
one-third of the inmate population. Id.21
No. 2014AP1048
constitutionality." In re Commitment of Dennis H., 2002 WI 104,
¶12, 255 Wis. 2d 359, 647 N.W.2d 851 (internal quotation marks
omitted) (quoting State v. Carpenter, 197 Wis. 2d 252, 263-64,
541 N.W.2d 105 (1995)). "To overcome that presumption, a party
challenging a statute's constitutionality bears a heavy burden"
because "it is insufficient for the party challenging the
statute to merely establish that the statute's constitutionality
is doubtful or that the statute is probably unconstitutional";
rather, "the party challenging a statute's constitutionality
must 'prove that the statute is unconstitutional beyond a
reasonable doubt.'" State v. Smith, 2010 WI 16, ¶8, 323
Wis. 2d 377, 780 N.W.2d 90 (quoting State v. Cole, 2003 WI 112,
¶11, 264 Wis. 2d 520, 665 N.W.2d 328). "[I]n the context of a
challenge to the constitutionality of a statute, the phrase
'beyond a reasonable doubt' expresses the 'force or conviction
with which a court must conclude, as a matter of law, that a
statute is unconstitutional before the statute or its
application can be set aside.'" League of Women Voters of
Wisconsin Educ. Network, Inc. v. Walker, 2014 WI 97, ¶17, 357
Wis. 2d 360, 851 N.W.2d 302 (quoting Dane Cnty. Dep't of Human
Servs. v. Ponn P., 2005 WI 32, ¶16, 279 Wis. 2d 169, 694
N.W.2d 344). In short, Christopher "bears a heavy burden"
because he must prove that Wis. Stat. § 51.20(1)(ar) is
unconstitutional beyond a reasonable doubt.
22
No. 2014AP1048
2. Facial Challenge Requirements
¶34 A party may challenge a law or government action as
being unconstitutional by bringing a facial challenge. Wood, 323
Wis. 2d 321, ¶13. A facial challenge to a statute is an "uphill
endeavor." Dennis H., 255 Wis. 2d 359 ¶5. Under a facial
challenge, "the challenger must show that the law cannot be
enforced 'under any circumstances.'" Wood, 323 Wis. 2d 321, ¶13
(quoting Olson v. Town of Cottage Grove, 2008 WI 51, ¶44 n.9,
309 Wis. 2d 365, 749 N.W.2d 211). "If a challenger succeeds in a
facial attack on a law, the law is void 'from its beginning to
the end.'" Id. (quoting State ex rel. Comm'rs of Pub. Lands v.
Anderson, 56 Wis. 2d 666, 672, 203 N.W.2d 84 (1973)). Here,
Christopher claims that Wis. Stat. § 51.20(1)(ar) is facially
unconstitutional because it violates an inmate's substantive due
process rights by allowing for the involuntary commitment of an
inmate without first finding the inmate dangerous. Christopher
faces an "uphill battle" because to succeed on his claim he must
show that Wis. Stat. § 51.20(1)(ar) is unconstitutional under
all circumstances.
3. Constitutional Overview Of Substantive Due Process Rights
¶35 "The Due Process Clauses of the United States and
Wisconsin Constitutions protect both substantive and procedural
due process rights." State v. Luedtke, 2015 WI 42, ¶74, 362
Wis. 2d 1, 863 N.W.2d 592 (internal quotation marks omitted)
(quoting State ex rel. Greer v. Wiedenhoeft, 2014 WI 19, ¶55,
353 Wis. 2d 307, 845 N.W.2d 373, reconsideration denied sub
nom., Greer v. Wiedenhoeft, 2014 WI 50, 354 Wis. 2d 866, 848
23
No. 2014AP1048
N.W.2d 861). Specifically, these rights are "rooted in the
Fourteenth Amendment to the Constitution, and Article I, Section
1 of the Wisconsin Constitution."18 Wood, 323 Wis. 2d 321, ¶17.
Substantive due process rights "protect against state action
that is arbitrary, wrong, or oppressive," id., by "forbid[ding]
a government from exercising power without any reasonable
justification in the service of a legitimate governmental
objective," Luedtke, 362 Wis. 2d 1, ¶74 (internal quotation
marks omitted) (quoting State v. Radke, 2003 WI 7, ¶12, 259
Wis. 2d 13, 657 N.W.2d 66).
4. Rational Basis Review Applies.
¶36 We begin our analysis, as we must, by determining the
appropriate level of scrutiny to apply to Wis. Stat.
§ 51.20(1)(ar), the inmate commitment statute. "If the
challenged legislation neither implicates a fundamental right
nor discriminates against a suspect class, we apply rational
basis review rather than strict scrutiny to the legislation." In
re Commitment of Alger, 2015 WI 3, ¶39, 360 Wis. 2d 193, 858
N.W.2d 346. A law subject to rational basis review will be
upheld "unless it is patently arbitrary and bears no rational
relationship to a legitimate government interest." Id. (internal
18
In general, the United States Constitution and the
Wisconsin Constitution provide substantively similar due process
guarantees. State v. Wood, 2010 WI 17, ¶17 n.9, 323 Wis. 2d 321,
780 N.W.2d 63. Compare U.S. Const. Amend. XIV, with Wis. Const.
Art. I, § 1. "Accordingly, we do not distinguish between those
constitutional protections in this case." Id.
24
No. 2014AP1048
quotation marks omitted) (quoting Smith, 323 Wis. 2d 377, ¶12).
Moreover, "[a] legislative classification satisfies rational
basis review if 'any conceivable state of facts . . . could
provide a rational basis for the classification.'" Alger, 360
Wis. 2d 193, ¶50 (alteration in original) (emphasis added)
(quoting State v. Mary F.-R., 2013 WI 92, ¶52, 351 Wis. 2d 273,
839 N.W.2d 851). In contrast, "[a] law subject to strict
scrutiny will be upheld 'only if narrowly tailored to serve a
compelling state interest.'" Id. (quoting Mary F.-R., 351
Wis. 2d 273, ¶35). Christopher does not argue that Wis. Stat.
§ 51.20(1)(ar) discriminates against a suspect class; therefore,
we will examine only whether Wis. Stat. § 51.20(1)(ar)
implicates a fundamental right.
¶37 "[F]or the ordinary citizen, commitment to a mental
hospital produces 'a massive curtailment of liberty,' and in
consequence 'requires due process protection.'" Vitek v. Jones,
445 U.S. 480, 491 (1980) (citation omitted) (first quoting
Humphrey v. Cady, 405 U.S. 504, 509 (1972); then quoting
Addington v. Texas, 441 U.S. 418, 425 (1979)); Foucha v.
Louisiana, 504 U.S. 71, 80 (1992) (noting that the due process
clause contains a substantive component that includes a right to
freedom from restraint)). This is because "[f]reedom from
physical restraint is a fundamental right that 'has always been
at the core of the liberty protected by the Due Process Clause
25
No. 2014AP1048
from arbitrary governmental action.'"19 State v. Post, 197
Wis. 2d 279, 302, 541 N.W.2d 115 (1995) (quoting Foucha, 504
U.S. at 80).
¶38 For example, in State v. Post, 197 Wis. 2d 279, 541
N.W.2d 115 (1995), we applied strict scrutiny to a substantive
due process challenge to Chapter 980, Wisconsin's sexually
violent person commitment statute. 197 Wis. 2d at 302. We did so
because the statute implicated a fundamental right, the right to
be free from physical restraint. Id. But Post is distinguishable
from Christopher's case. Chapter 980 allows the State to
petition for the commitment of a sexually violent person.20 If
the petition is granted, and all of the necessary procedures are
met, a sexually violent person can be committed when his or her
sentence expires. Thus, under Chapter 980, a person is subject
to commitment following the expiration of his or her criminal
sentence. In contrast, Wis. Stat. § 51.20(1)(ar) applies only
while the individual is serving his or her sentence.
19
The due process "liberty" right is called many different
things: freedom from physical restraint, freedom from bodily
restraint, freedom from confinement, and the right to be at
liberty.
20
For a brief overview of Chapter 980, see In re Commitment
of Gilbert, 2012 WI 72, ¶¶21, 23, 342 Wis. 2d 82, 816 N.W.2d 215("[C]h. 980 provides for the involuntary commitment of certain
individuals who are found to be sexually violent persons. As
such, ch. 980 prescribes a detailed procedure that the State
must follow in order to commit a sexually violent person."
(citation omitted)).
26
No. 2014AP1048
¶39 This distinction is important because "a valid
criminal conviction and a prison sentence extinguish a
defendant's right to freedom from confinement." Vitek, 445 U.S.
at 493 (citing Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1,
7 (1980) ("But the conviction, with all its procedural
safeguards, has extinguished that liberty right: '[G]iven a
valid conviction, the criminal defendant has been
constitutionally deprived of his liberty.'" (quoting Meachum v.
Fano, 427 U.S. 215, 224 (1976) ("But given a valid conviction,
the criminal defendant has been constitutionally deprived of his
liberty to the extent that the State may confine him and subject
him to the rules of its prison system . . . .")))); see also
Johnson v. California, 543 U.S. 499, 510 (2005) ("This is
because certain privileges and rights must necessarily be
limited in the prison context."); In re Commitment of West, 2011
WI 83, ¶85, 336 Wis. 2d 578, 800 N.W.2d 929 (holding that a
liberty interest in freedom from confinement is not absolute).
"Such a conviction and sentence sufficiently extinguish a
defendant's liberty 'to empower the State to confine him in any
of its prisons.'"21 Vitek, 445 U.S. at 493 (quoting Meachum, 427
21
Christopher cites a litany of cases to support his
argument that a state must prove that an inmate is dangerous
before he or she can be involuntarily committed. All are
distinguishable. O'Connor v. Donaldson, 422 U.S. 563 (1975), and
Addington v. Texas, 441 U.S. 418 (1979), addressed the
involuntary commitment of individuals who were not currently
serving sentences. The individuals committed in Addington and
O'Connor were not inmates. Jones v. United States, 463 U.S. 354(1983), and Foucha v. Louisiana, 504 U.S. 71 (1992), concerned
the involuntary commitment of individuals who were acquitted of
(continued)
27
No. 2014AP1048
U.S. at 224). To be clear, we are not suggesting that an inmate
loses all, or even most, of his or her constitutional rights
while he or she is serving his or her sentence. Rather, a prison
inmate "retains those [constitutional] rights that are not
inconsistent with his status as a prisoner or with the
legitimate penological objectives of the corrections system."
Turner v. Safley, 482 U.S. 78, 95 (1987) (alteration in
original) (internal quotation marks omitted) (quoting Pell v.
Procunier, 417 U.S. 817, 822 (1974)).
¶40 For example, in Washington v. Harper, 494 U.S. 210(1990), the Supreme Court of the United States addressed the
constitutionality of administering antipsychotic medications to
a prisoner against his will. 494 U.S. at 213. There, the Court
noted that the "respondent possesses a significant liberty
interest in avoiding the unwanted administration of
antipsychotic drugs," id. at 221, but went on to clarify that
"[t]he extent of a prisoner's rights under the Clause to avoid
the unwanted administration of antipsychotic drugs must be
defined in the context of the inmate's confinement," id. at 222(emphasis added). Thus, while an inmate does not lose all of his
a crime by reason of insanity. Again, the individuals committed
in Jones and Foucha were not inmates. For that reason, these
cases arguably require a finding of dangerousness when the State
seeks to commit an individual who is not an inmate (just as Wis.
Stat. § 51.20(1) requires a finding of dangerousness when the
State seeks to commit an individual who is not an inmate). But
these cases do not stand for the principle that a state must
prove dangerousness when the State seeks to commit an inmate.
28
No. 2014AP1048
or her rights, his or her rights must be viewed in light of his
or her "status as an inmate" and "the legitimate penological
objectives of the corrections system." Turner, 482 U.S. at 95.
¶41 As a result, the Court in Harper concluded that "[t]he
proper standard for determining the validity of a prison
regulation claimed to infringe on an inmate's constitutional
rights is to ask whether the regulation is 'reasonably related
to a legitimate penological interest.'"22 Id. at 223 (quoting
Turner, 482 U.S. at 89 ("If [other Supreme Court cases] have not
already resolved the question posed . . . , we resolve it now:
when a prison regulation impinges on inmates' constitutional
rights, the regulation is valid if it is reasonably related to a
legitimate penological interest.")). "This is true even when the
constitutional right claimed to have been infringed is
fundamental, and the State under other circumstances would have
22
We realize that Washington v. Harper, 494 U.S. 210 (1990)
and Turner v. Safley, 482 U.S. 78 (1986) dealt with prison
regulations and we deal here with a statute. Despite this
difference, we find both cases persuasive. The Turner Court
stated,
Running a prison is an inordinately difficult
undertaking that requires expertise, planning, and
commitment of resources, all of which are peculiarly
within the province of the legislative and executive
branches of government. Prison administration is,
moreover, a task that has been committed to the
responsibility of those branches, and separation of
powers concerns counsel a policy of judicial
restraint.
482 U.S. at 84-85 (emphasis added).
29
No. 2014AP1048
been required to satisfy a more rigorous standard of review."
Id. A reasonableness standard is appropriate because it balances
the principle that "inmates retain at least some constitutional
rights despite incarceration with the recognition that prison
authorities are best equipped to make difficult decisions
regarding prison administration." Id. at 223-24.
¶42 Like the Supreme Court, we assess the extent of an
inmate's rights in the context of the inmate's confinement. We
recognize that "[c]ivil commitment for any purpose constitutes a
significant deprivation of liberty that requires due process
protection." Post, 197 Wis. 2d at 302 (alteration in original)
(internal quotation marks omitted) (quoting Addington, 441 U.S.
at 425). However, when we look at an inmate's liberty right in
the context of his or her confinement, we conclude that his or
her specific right to freedom from physical restraint is already
curbed because he or she is incarcerated.23 Indeed, the very
23
We recognize that Christopher has an interest in avoiding
the "adverse social consequences" associated with mental health
commitments: "It is indisputable that commitment to a mental
hospital 'can engender adverse social consequences to the
individual' and that '[w]hether we label this phenomena 'stigma'
or choose to call it something else . . . we recognize that it
can occur and that it can have a very significant impact on the
individual.'" Vitek, 445 U.S. at 492 (alterations in original)
(quoting Addington, 441 U.S. at 425-26).
(continued)
30
No. 2014AP1048
nature of incarceration encompasses physical restraint. Because
inmates have a qualified right to freedom from physical
restraint and because Wis. Stat. § 51.20(1)(ar) applies only to
inmates, we hold that rational basis review applies to Wis.
Stat. § 51.20(1)(ar).24
5. We Determine That Wis. Stat. § 51.20(1)(ar) Is Facially
Constitutional Because It Is Reasonably Related To A Legitimate
State Interest.
¶43 We turn to the task of determining whether Wis. Stat.
§ 51.20(1)(ar) is reasonably related to a legitimate state
interest.
¶44 The State has more than a well-established and
legitimate interest; it has a "compelling" interest in providing
In addition, Christopher argues that inmates have an
interest in "avoiding the unwanted administration of
antipsychotic drugs" against their will. While this is certainly
true, it is not relevant to the present case. Again, Christopher
is challenging only the constitutionality of the involuntary
commitment statute under Wis. Stat. § 51.20(1)(ar), not the
involuntary medication statute under Wis. Stat. § 51.61(1)(g).
Thus, any interest that an inmate, including Christopher, has in
avoiding unwanted medication is not relevant to the question of
whether an inmate's involuntary commitment is unconstitutional.
24
Christopher contends that we should adopt intermediate
scrutiny because both an involuntary commitment order and an
involuntary medication order are at issue in this case. However,
Christopher is challenging only the constitutionality of the
involuntary commitment statute under Wis. Stat. § 51.20(1)(ar);
he is not challenging the constitutionality of the involuntary
medication or treatment statute under Wis. Stat. § 51.61(1)(g).
As such, this case does not provide an occasion for us to apply
any level of scrutiny to the involuntary medication or treatment
statute.
31
No. 2014AP1048
care and assistance to those who suffer from a mental disorder.
Post, 197 Wis. 2d at 303 ("We find the state's dual interests
represented by chapter 980 to be both legitimate and
compelling.");25 see also Dennis H., 255 Wis. 2d at 369 ("The
state has a well-established, legitimate interest under its
parens patriae power in providing care to persons unable to care
for themselves . . . ."); Vitek, 445 U.S. at 495 ("Concededly
the interest of the State in segregating and treating mentally
ill patients is strong."); O'Connor v. Donaldson, 422 U.S. 563,
575 (1975) ("That the State has a proper interest in providing
care and assistance to the unfortunate goes without saying.").
¶45 The State's interest in caring for and assisting
individuals who suffer from mental illness is particularly
strong in the context of a prison because "[a]n inmate must rely
on prison authorities to treat his medical needs; if the
authorities fail to do so, those needs will not be met." Estelle
v. Gamble, 429 U.S. 97, 103 (1976). Moreover, the State's
interest in caring for and assisting its inmates is not just an
25
In State v. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995),
the State's dual interests were (1) protecting the community
from the dangerously mentally disordered and (2) providing care
and treatment to those with mental disorders that predispose
them to sexual violence. 197 Wis. 2d at 302. We went on to say,
"The Supreme Court has recognized both of these interests as
legitimate, the first under the state's police power and the
latter under its parens patriae power." Id. (citing Addington,
441 U.S. at 426). Under the parens patriae power, the state has
a legitimate interest in "providing care to its citizens who are
unable because of emotional disorders to care for
themselves . . . ." Addington, 441 U.S. at 426.
32
No. 2014AP1048
interest; it is an obligation: "We confront here the State's
obligations, not just its interests. The State has undertaken
the obligation to provide prisoners with medical treatment
consistent not only with their own medical interests, but also
with the needs of the institution." Harper, 494 U.S. at 225(emphasis added). Thus, the State needs to properly care for
inmates suffering from mental illness while they are in the
custody of the State.
¶46 At oral argument, Winnebago County stated that "first
and foremost" the State has an interest in making sure its
inmates suffering from mental illness are "taken care of." Here,
the County has a legitimate interest in providing care and
assistance to inmates suffering from mental illness. Further, in
this case, caring for and assisting these inmates is more than
an interest; it is an obligation because as a result of his or
her incarceration, the inmate cannot obtain treatment on his or
her own. The State needs to provide it. Wisconsin Stat.
§51.20(1)(ar) is reasonably related to the State's interest
because it enables the State to fulfill its interest in
33
No. 2014AP1048
providing care and assistance to those inmates who need
treatment because they are suffering from a mental illness.26
¶47 To prevail on his constitutional challenge,
Christopher needed to prove that Wis. Stat. § 51.20(1)(ar) is
26
Christopher argues that Harper, requires the State to
prove dangerousness whenever it seeks to commit an inmate. In
Harper, the Supreme Court of the United States took up a due
process challenge to Policy 600.30, which allowed the State of
Washington to involuntarily administer antipsychotic medication
to an inmate against the inmate's will only if he or she (1)
suffered from a mental disorder and was (2) gravely disabled or
posed a serious likelihood of harm to himself, others, or their
property. 494 U.S. at 215 (emphasis added). To analyze the
inmate's claim, the Court considered both the inmate's
"significant interest in avoiding the unwanted administration of
antipsychotic drugs" and the State's interest in the safety and
security of its institution. Id. at 221, 225-26. There, the
Court required a finding of dangerousness because it resulted in
an "accommodation between an inmate's liberty interest in
avoiding the forced administration of antipsychotic drugs and
the State's interest in providing appropriate medical treatment
to reduce the danger that an inmate suffering from a serious
mental disorder represents to himself or others." Id. at 236(emphasis added).
Christopher's reliance on Harper is misguided for two
reasons. First, Harper is concerned with the administration of
antipsychotic medications, not the involuntary commitment of an
inmate. Second, Christopher ignores the fact that the legitimate
interest in Harper was the safety and security of the prison,
not the care and assistance of its mentally ill inmates. Harper
may require a finding of dangerousness when the State seeks to
involuntarily medicate an inmate and is solely relying on the
safety and security of the prison as its legitimate reason for
administering the antipsychotic medication. But Harper does not
address the issue of how a state may proceed vis-à-vis the
involuntary commitment of an inmate, nor does it address the
issue of how a state may proceed vis-à-vis the involuntary
administration of antipsychotic medication when the State's
interest is unrelated to the safety and security of the
institution.
34
No. 2014AP1048
unconstitutional under all circumstances. He also needed to
prove that Wis. Stat. § 51.20(1)(ar) is unconstitutional beyond
a reasonable doubt. Christopher has proved neither. Because we
can think of at least one "conceivable set of facts" where Wis.
Stat. § 51.20(1)(ar) is constitutional, namely where the State's
interest is in caring for and assisting inmates who suffer from
mental illness, Christopher has failed to prove that the statute
is unconstitutional under all circumstances. Accordingly, we
hold that Wis. Stat. § 51.20(1)(ar) is facially constitutional.
D. WHETHER THE CIRCUIT COURT ERRED.
¶48 We now turn to the issue of whether the circuit court
erred when it concluded that Winnebago County established by
clear and convincing evidence that Christopher was incompetent
to refuse psychotropic medication and treatment pursuant to Wis.
Stat. § 51.61(1)(g). Here, we are not assessing the
constitutionality of Wis. Stat. § 51.61(1)(g). Christopher does
not raise a constitutional challenge against Wis. Stat.
§ 51.61(1)(g). Rather, we examine whether the circuit court
erred when it concluded that the County met its burden of proof.
We turn to the merits of Christopher's argument.
1. Standard Of Review
¶49 Christopher argues that Winnebago County failed to
meet its burden of proving that he was incompetent to refuse
35
No. 2014AP1048
psychotropic medication and treatment as required by Wis. Stat.
§ 51.61(1)(g)4.b.27 Pursuant to that statute, it is the County
that "bears the burden of proving [Christopher] incompetent to
refuse medication by clear and convincing evidence." Melanie L.,
349 Wis. 2d 148, ¶37 (citing Wis. Stat. § 51.20(13)(e) (2009-
2010)).
¶50 "We will not disturb a circuit court's factual
findings unless they are clearly erroneous." Id., ¶38. Further,
"we accept reasonable inferences from the facts available to the
circuit court." Id. When "evaluating whether the County met its
burden of proof, a court must apply the facts to the statutory
standard in Wis. Stat. § 51.61(1)(g)4.b. and interpret the
statute." Id., ¶39. Finally, "applying facts to the standard and
interpreting the statute are questions of law that this court
reviews independently." Id. In short, the circuit court's
findings of fact are reviewed for clear error, but application
of those facts to the statute and interpretation of the statute
are reviewed independently.
2. We Determine That The Circuit Court Did Not Err When It
Concluded That Winnebago County Established By Clear And
27
In this case, the County sought to prove incompetency
under Wis. Stat. § 51.61(1)(6)4.b., which required the County to
prove that the "advantages and disadvantages of and alternatives
to accepting the particular medication or treatment [were]
explained to the [Christopher]" and that Christopher was
"substantially incapable of applying an understanding of the
advantages, disadvantages, and alternatives to [his] [mental
illness] in order to make an informed choice as to whether to
accept or refuse medication."
36
No. 2014AP1048
Convincing Evidence That Christopher Was Incompetent To Refuse
Psychotropic Medication And Treatment.
¶51 This case once again requires us to interpret Wis.
Stat. § 51.61(1)(g)4. Our decision in Melanie L. is most
instructive; thus, a brief recitation of the facts and the
holding is appropriate.
¶52 As is the case here, the issue in Melanie L. was
whether the County proved by clear and convincing evidence that
the individual was incompetent to refuse psychotropic medication
under Wis. Stat. § 51.61(1)(g)4. There, we held that the County
failed to meet its burden of proof:
In particular, the medical expert's terminology and
recitation of facts did not sufficiently address and
meet the statutory standard. Medical experts must
apply the standards set out in the competency statute.
An expert's use of different language to explain his
or her conclusions should be linked back to the
standards in the statute.
Melanie L., 349 Wis. 2d 148, ¶¶8-9, 97. In that case,
Melanie L.'s doctor (Dr. Dave) diagnosed her with "Psychotic
Disorder, NOS, a substantial disorder of thoughts and
perception, which grossly impairs her judgment, capacity to
recognize reality, [and] ability to care for herself." Id., ¶27
(alteration in original) (internal quotation marks omitted). His
report stated:
Melanie, based upon her educational background, was
able to express the benefits and risks of the
psychotropic medication; however, she is unable to
apply such understanding to her advantage and she is
considered to be not competent to refuse psychotropic
medication. . . . The patient would not comply with
37
No. 2014AP1048
psychotropic medication without [an] involuntary
medication order from the court.
Id. (alterations in original) (internal quotation marks
omitted). Further, at trial the doctor testified, "I do not
think that she's capable of applying the benefits of the
medication to her advantage." Id., ¶30 (emphasis added).
¶53 We summarized the testimony of Melanie L.'s doctor as
concluding that "Melanie was incapable of applying an
understanding of the medication 'to her advantage.'" See
id., ¶91. We took issue with the doctor's testimony and
specifically noted the following:
The corporation counsel posed a question to Dr. Dave
employing the statutory terms. When he did not receive
an answer in those terms, he should have required his
witness to expound upon his answer, so that the
circuit court and a reviewing court did not have to
speculate upon Dr. Dave's meaning. As the record
stands, we cannot be certain whether Dr. Dave was
applying the standard or changing the standard.
Id. In short, the County needed to "more carefully articulate[]
its case." Id., ¶95.
¶54 The present case is distinguishable from Melanie L.
because, here, the County carefully articulated its case by
adhering strictly to the standards set out in the competency
statute. In this case, Christopher's doctor's testimony closely
tracked the language of Wis. Stat. § 51.61(1)(g)4.b.:
Q. Dr. Keshena, in the course of your treatment of
[Christopher] have you had an opportunity to explain
to him the advantages, disadvantages, and alternatives
to the medication?
A. Yes.
38
No. 2014AP1048
Q. And after you've done that, in your opinion would
he be substantially incapable or substantially capable
of applying an understanding of the advantages,
disadvantages, and alternatives to his own conditions
in order to make an informed choice as to whether to
accept or refuse psychotropic medication?
A. He's not capable.
Q. So you're saying he's substantially incapable?
A. Yes.
Unlike in Melanie L., we do not have to "speculate upon [Dr.
Keshena's] meaning"; we are certain Dr. Keshena applied the
statutory standard.
¶55 In addition to Dr. Keshena's testimony, Dr. Musunuru's
report also tracked the statutory language. Dr. Musunuru's
report made six key findings: (1) "the advantages and
disadvantages and the alternatives to accepting particular
medication [were] explained to the subject in detail[]"; (2)
"the subject did not appear to understand the explanation"; (3)
"the subject holds patently false beliefs about the treatment
recommended medications, which prevent an understanding of the
legitimate risks and benefits"; (4) "due to the subject's mental
illness, the subject is substantially incapable of applying an
understanding of the advantages, disadvantages, and alternatives
to make an informed choice as to accept or refuse medications";
(5) "the subject has no insight into his illness due to his
mental illness"; and (6) "the subject is not competent to refuse
psychotropic medications."
¶56 Finally, Dr. Keshena's testimony was not disputed at
trial. In fact, cross-examination of Dr. Keshena, which brought
39
No. 2014AP1048
about the discussion of Christopher's prior experience with
lithium, provided further evidence that Christopher was
"substantially incapable of applying an understanding of the
advantages, disadvantages and alternatives to [his] mental
illness . . . in order to make an informed choice as to whether
to accept or refuse medication or treatment."28 These
uncontroverted statements establish that Christopher was
incompetent to refuse psychotropic medication and treatment, so
it was not necessary for Dr. Keshena to engage in a lengthier
discussion of her explanation of the advantages, disadvantages,
and alternatives. See Melanie L., 349 Wis. 2d 148, ¶67 ("Medical
professionals and other professionals should document the timing
and frequency of their explanations so that, if necessary, they
have documentary evidence to help establish this element in
court." (emphasis added)). Because these statements mirrored the
statutory standard, they met the statutory standard. Thus, the
circuit court did not err when it concluded that the County
proved by clear and convincing evidence that Christopher was
incompetent to refuse psychotropic medication and treatment as
required by Wis. Stat. § 51.61(1)(g)4.b.
28
During cross-examination, Dr. Keshena testified that
Christopher "was previously on lithium" and that Christopher
told her "he didn't have any side effects from that medication,
but he thought it was a placebo."
40
No. 2014AP1048
IV. CONCLUSION
¶57 First, we hold that Wis. Stat. § 51.20(1)(ar) is
facially constitutional because it is reasonably related to the
State's legitimate interest in providing care and assistance to
inmates suffering from mental illness. Second, we affirm the
circuit court because it did not err when it found by clear and
convincing evidence that Christopher was incompetent to refuse
psychotropic medication and treatment. We therefore uphold the
circuit court's order for involuntary commitment, order for
involuntary medication and treatment, and order denying
postcommitment relief.
By the Court.—The circuit court's orders are affirmed.
¶58 REBECCA G. BRADLEY, J., did not participate.
41
No. 2014AP1048.ssa
¶59 SHIRLEY S. ABRAHAMSON, J. (concurring in part,
dissenting in part). At issue in this case are (1) whether Wis.
Stat. § 51.20(1)(ar), which permits the involuntary commitment
of mentally ill prisoners, is facially unconstitutional because
it does not require a finding of dangerousness to involuntarily
commit a prisoner; and (2) whether Winnebago County met its
burden of proof by clear and convincing evidence that the
defendant, Christopher S., was incompetent to refuse
psychotropic medication.
¶60 The majority opinion holds that Wis. Stat.
§ 51.20(1)(ar) is facially constitutional1 even though the
statute does not require a finding of dangerousness to
involuntarily commit a prisoner to a mental institution.2
Applying the rational basis test, the majority opinion concludes
that the involuntary commitment statute does not violate
substantive due process because it is reasonably related to a
legitimate state interest, namely "providing care and assistance
to [prisoners] suffering from mental illness."3
¶61 I write separately to make two points:
(1) Although several Wisconsin and United States Supreme
Court cases are informative, none clearly describes
the standard to be applied to a substantive due
1
Majority op., ¶8.
2
Majority op., ¶46 n.26.
3
Majority op., ¶8.
1
No. 2014AP1048.ssa
process challenge to a prisoner's involuntary
commitment to a mental institution. I conclude that
the State must show an "essential" or "overriding"
state interest——for example, ensuring prison safety or
security, or providing treatment to a gravely disabled
prisoner——to overcome a prisoner's significant,
constitutionally protected liberty interests in
avoiding involuntary commitment to a mental
institution and the stigma attached thereto. The
majority opinion does not interpret Wis. Stat.
§ 51.20(1)(ar) as requiring an "essential" or
"overriding" state interest to involuntarily commit a
prisoner to a mental institution. Unless it is so
interpreted, I conclude that the statute is
unconstitutional as a matter of substantive due
process.
(2) I concur in the majority opinion's conclusion that
Winnebago County met its burden of proving by clear
and convincing evidence that Christopher S. was
incompetent to refuse psychotropic medication as
required for involuntary medication under Wis. Stat.
§ 51.61(g).4 Nevertheless, in recognition of the
significant, constitutionally protected liberty
interests at play in involuntary medication
proceedings, the County and the circuit court should
take the time to make a record pursuant to Outagamie
4
Majority op., ¶57.
2
No. 2014AP1048.ssa
County v. Melanie L., 2013 WI 67, ¶67, 349
Wis. 2d 148, 833 N.W.2d 607.
¶62 For the reasons set forth, I dissent in part and write
separately.
I
¶63 Applying the rational basis test, the majority opinion
determines that Wis. Stat. § 51.20(1)(ar) is facially
constitutional because commitment under Wis. Stat.
§ 51.20(1)(ar) is reasonably related to the State's interest "in
providing care and assistance to [prisoners] suffering from
mental illness."5 The majority opinion also concludes that
substantive due process does not require a finding of
dangerousness in order to involuntarily commit a prisoner to a
mental institution.6
¶64 Despite acknowledging prisoners' constitutionally
protected liberty interests in being free from involuntary
commitment to a mental institution and the associated stigma,
the majority opinion gives the prisoner's liberty interest
little or no weight.
¶65 In a substantive due process challenge, a court must
first define the individual's protected constitutional interest
before identifying when, if at all, a competing state interest
might outweigh it. State v. Wood, 2010 WI 17, ¶18, 323
5
Majority op., ¶8.
6
Majority op., ¶¶42, 46 & n.26.
3
No. 2014AP1048.ssa
Wis. 2d 321, 780 N.W.2d 63 (quoting Washington v. Harper, 494
U.S. 210, 220 (1990)).
¶66 All persons, including prisoners, have a significant,
constitutionally protected liberty interest in avoiding
involuntary commitment to a mental institution and the stigma
often associated with such a commitment.7
¶67 The United States Supreme Court has not ruled on what
level of scrutiny applies when a court reviews a statute
implicating a prisoner's liberty interest in not being
involuntarily committed to a mental institution and experiencing
the associated stigma. Nonetheless, some guidance can be
derived from relevant case law.
¶68 In Vitek v. Jones, 445 U.S. 480 (1980), the United
States Supreme Court addressed the procedural due process
7
See, e.g., Sandin v. Conner, 515 U.S. 472, 479 n.4, 484
(1995) (describing a prisoner's interest in not being
transferred to a mental institution as a constitutionally
protected liberty interest and stating that involuntary
commitment to a mental institution is "'qualitatively different'
from the punishment characteristically suffered by a person
convicted of crime, and ha[ving] 'stigmatizing consequences.'")
(referencing Vitek v. Jones, 445 U.S. 480, 493-94 (1980) and
Washington v. Harper, 494 U.S. 210, 221-22 (1990)); Foucha v.
Louisiana, 504 U.S. 71, 79-80 (1992) (holding that given an
individual's liberty interests, an individual found not guilty
by reason of insanity could not continue to be confined after he
was no longer mentally ill and did not pose a danger to himself
or others); Vitek v. Jones, 445 U.S. 480, 493 (1980) (holding
that the involuntary transfer of a prisoner to a mental hospital
implicated a liberty interest protected by the due process
clause); Addington v. Texas, 441 U.S. 418, 425 (1979) (stating
that involuntary commitment "for any purpose constitutes a
significant deprivation of liberty that requires due process
protection" and may subject a committed individual to stigma
even after the commitment and criminal sentence have ended)).
4
No. 2014AP1048.ssa
protections required for involuntarily transferring a prisoner
to a mental institution. The Court determined that a prisoner
facing involuntary transfer to a mental institution has a
constitutionally protected liberty interest in avoiding the
deprivation of liberty and the stigma associated with such a
transfer.8 Prisoners have such liberty interests even though
they are imprisoned because a criminal sentence "do[es] not
authorize the State to classify [a prisoner] as mentally ill and
to subject him to involuntary psychiatric treatment without
affording him additional due process protections."9
Nevertheless, the Vitek Court did not state what level of
scrutiny applies when gauging the constitutionality of a statute
authorizing the involuntary commitment of a prisoner to a mental
institution.
¶69 In Washington v. Harper, 494 U.S. 210 (1990), the
United States Supreme Court applied rational basis scrutiny to a
prison regulation authorizing the involuntary medication of
dangerous or gravely disabled prisoners.10 The Court stated that
the rational basis test applied in light of the State's
interests in prison safety and security, even though prisoners
have a liberty interest in avoiding the involuntary
administration of antipsychotic medication.11 In applying the
8
Vitek, 445 U.S. at 494.
9
Vitek, 445 U.S. at 494.
10
Harper, 494 U.S. at 224, 226.
11
Harper, 494 U.S. at 223.
5
No. 2014AP1048.ssa
rational basis test to the challenged prison regulation, the
Harper Court described the state's interest——the safety of
prisoners and staff——as legitimate, important, and "necessarily
encompass[ing] an interest in providing [the mentally ill
prisoner] with medical treatment for his illness."12
¶70 Although Harper stated it was applying rational basis
scrutiny, the United States Supreme Court has subsequently
described Harper and other involuntary medication cases as
holding that involuntary medication of a prisoner is
impermissible absent an "essential" or "overriding" state
interest.13 See Sell v. United States, 539 U.S. 166, 179 (2003)
("[A]n individual has a constitutionally protected liberty
interest in avoiding involuntary administration of antipsychotic
drugs——an interest that only an 'essential' or 'overriding'
state interest might overcome.") (internal quotation marks
omitted); Riggins v. Nevada, 504 U.S. 127, 135 (1992) ("Under
Harper, forcing antipsychotic drugs on a convicted prisoner is
impermissible absent a finding of overriding justification and a
determination of medical appropriateness.").
¶71 Thus, Sell and Riggins (as well as State v. Wood, 2010
WI 17, ¶25, 323 Wis. 2d 321, 780 N.W.2d 63) incorporate the need
for an "essential" or "overriding" state interest, at least in
involuntary medication cases.
12
Harper, 494 U.S. at 225-26.
13
So has this court. See State v. Wood, 2010 WI 17, ¶¶19-
20, 22-25, 323 Wis. 2d 321, 780 N.W.2d 63 (discussing Harper,
Riggins, and Sell).
6
No. 2014AP1048.ssa
¶72 An "essential" or "overriding" state interest is not
required in applying rational basis scrutiny. In an ordinary
rational basis analysis, like the majority opinion conducts, a
court decides whether the challenged statute is rationally
related to a legitimate state interest.14 Thus, the United
States Supreme Court's requirement of an "essential" or
"overriding" state interest indicates that a more searching
analysis is required, at least when the State seeks to
involuntarily medicate a prisoner.
¶73 Involuntary medication and involuntary commitment to a
mental institution impose similar burdens on prisoners'
constitutionally protected liberty interests. As a result, the
two should be treated similarly in conducting a substantive due
process analysis.
¶74 Both involuntary medication and involuntary commitment
to a mental institution "exceed[] [a criminal] sentence in such
an unexpected manner as to give rise to protection by the Due
Process Clause of its own force . . . ."15
¶75 Both involuntary medication and involuntary commitment
to a mental institution are "'qualitatively different' from the
punishment characteristically suffered by a person convicted of
crime, and ha[ve] 'stigmatizing consequences.'"16 As a result,
14
See State v. Alger, 2015 WI 3, ¶39, 360 Wis. 2d 193, 858
N.W.2d 346.
15
Sandin, 515 U.S. at 484 (citing Harper, 494 U.S. at 221-
22; Vitek, 445 U.S. at 493).
16
Sandin, 515 U.S. at 479 n.4 (quoting Vitek, 445 U.S. at
493-94).
7
No. 2014AP1048.ssa
the mere fact that a prisoner is serving a criminal sentence
does not authorize the State to designate the prisoner as
mentally ill, involuntarily commit him or her to a mental
institution, or involuntarily medicate him or her without
significant due process protections.17
¶76 Furthermore, involuntary commitment to a mental
institution under Wis. Stat. § 51.20(1)(ar) and involuntary
medication under Wis. Stat. § 51.61(1)(g) are significantly
intertwined, more than the majority opinion lets on.
¶77 The close relationship between Wis. Stat.
§ 51.20(1)(ar) and Wis. Stat. § 51.61(1)(g) (as demonstrated by
the facts of this case) further illustrates why requiring, as a
matter of substantive due process, an "essential" or
"overriding" state interest in both involuntary commitment and
involuntary medication cases is appropriate.
¶78 In the instant case, Christopher S. was ordered
involuntarily committed and involuntarily medicated in the same
proceeding, before the same judge, in the same court, on the
same day. A temporary involuntary medication order was also
entered during the pendency of Christopher S.'s involuntary
commitment proceedings.
¶79 While the jury was deliberating whether Christopher S.
should be involuntarily committed, the trial judge conducted a
bench trial to determine whether Christopher S. could be
involuntarily medicated. Based on the jury verdict, the trial
17
See Sandin, 515 U.S. at 484.
8
No. 2014AP1048.ssa
judge granted the petition for involuntary commitment for a six-
month period. The trial judge also issued an involuntary
medication order.
¶80 One of the requirements for involuntary commitment of
a prisoner to a mental institution under Wis. Stat.
§ 51.20(1)(ar) is that the prisoner be "a proper subject for
treatment and [be] in need of treatment."
¶81 For what treatment did the County seek to
involuntarily commit Christopher S.? The involuntary
administration of psychotropic medication.
¶82 Simply put, the County sought to involuntarily commit
Christopher S. for the purpose of treating him by involuntarily
administering psychotropic medication. Despite the majority
opinion's efforts to distinguish between the two statutes for
the purpose of its constitutional analysis, the two statutes
are, in fact, intimately intertwined.
¶83 Upon consideration of the case law and the
relationship between involuntary medication and involuntary
commitment, I conclude that when the State seeks to
involuntarily commit or involuntarily medicate a prisoner, an
"essential" or "overriding" state interest is required to
outweigh the prisoner's significant, constitutionally protected
liberty interests in avoiding involuntary medication or
involuntary commitment and the associated stigma.
¶84 Although I agree with the majority opinion that a
finding of dangerousness is not required to outweigh a
prisoner's constitutionally protected liberty interests, I
9
No. 2014AP1048.ssa
conclude that when the State seeks to involuntarily commit a
prisoner, the State must demonstrate an "essential" or
"overriding" state interest to outweigh the prisoner's
significant, constitutionally protected liberty interests in
avoiding involuntary commitment and the associated stigma. Such
an "essential" or "overriding" state interest may be, for
example, safeguarding the prison, prisoners, and staff against a
mentally ill prisoner who is dangerous to him or herself or
others, or providing treatment to a gravely disabled prisoner.
¶85 The majority opinion concludes the state's interest
"in providing care and assistance to [prisoners] suffering from
mental illness"18 is sufficient. Although the majority opinion
describes this state interest as "compelling,"19 providing
involuntary care and assistance to prisoners suffering from
mental illness, standing alone, is not an "essential" or
"overriding" state interest as these terms are used in the case
law. Providing involuntary care and assistance to prisoners
suffering from mental illness is not an "essential" or
"overriding" state interest unless the prisoner poses a danger
to self or others, is gravely disabled, or another "essential"
or "overriding" state interest exists.
¶86 The state's interest in providing care and assistance
to mentally ill prisoners (or others within the State's care) is
present in all involuntary commitment and involuntary medication
18
Majority op., ¶8.
19
Majority op., ¶44.
10
No. 2014AP1048.ssa
cases. The United States Supreme Court's involuntary medication
and involuntary commitment cases have, however, all focused on
state interests above and beyond providing care and assistance
to the mentally ill person. The Court has addressed, for
instance, "essential" or "overriding" interests such as ensuring
the safety and security of the prison, treating a gravely
disabled prisoner,20 restoring trial competency,21 or protecting
society and providing treatment to individuals found not guilty
by reason of insanity.22
¶87 If the state's interest in providing care and
assistance to mentally ill prisoners were sufficient to overcome
a prisoner's countervailing liberty interests, then a statute
permitting involuntary commitment or involuntary medication
based solely on a finding of mental illness would be
constitutionally permissible. However, a finding of mental
illness alone is not enough to support involuntary commitment.23
¶88 Unlike providing care and assistance to mentally ill
prisoners, ensuring the safety and security of prisons, prison
staff, and prisoners by removing dangerous (to self or others)
mentally ill prisoners, or providing care and treatment to
20
See Harper, 494 U.S. at 222-24.
21
See Sell, 539 U.S. at 178-80.
22
See Jones v. United States, 463 U.S. 354, 365-66 (1983).
23
See, e.g., O'Connor v. Donaldson, 422 U.S. 563, 575
(1975) (implying that a State's legitimate interests in
providing care and treatment could not overcome a person's
liberty interests).
11
No. 2014AP1048.ssa
gravely disabled prisoners, are "essential" and "overriding"
state interests. Wisconsin Stat. § 51.20(1)(ar) is not,
however, limited to circumstances in which "essential" and
"overriding" state interests are present.
¶89 On the contrary, Wis. Stat. § 51.20(1)(ar) does not
require the State or County to have any interest above and
beyond providing care and assistance to mentally ill prisoners.
The statute provides:
If the individual is an inmate of a state prison, the
petition may allege that the inmate is mentally ill,
is a proper subject for treatment and is in need of
treatment. The petition shall allege that appropriate
less restrictive forms of treatment have been
attempted with the individual and have been
unsuccessful and it shall include a description of the
less restrictive forms of treatment that were
attempted. The petition shall also allege that the
individual has been fully informed about his or her
treatment needs, the mental health services available
to him or her and his or her rights under this chapter
and that the individual has had an opportunity to
discuss his or her needs, the services available to
him or her and his or her rights with a licensed
physician or a licensed psychologist. The petition
shall include the inmate's sentence and his or her
expected date of release as determined under s. 302.11
or 302.113, whichever is applicable. The petition
shall have attached to it a signed statement by a
licensed physician or a licensed psychologist of a
state prison and a signed statement by a licensed
physician or a licensed psychologist of a state
treatment facility attesting either of the following:
1. That the inmate needs inpatient treatment at a
state treatment facility because appropriate
treatment is not available in the prison.
2. That the inmate's treatment needs can be met
on an outpatient basis in the prison.
12
No. 2014AP1048.ssa
¶90 As a result, the text of Wis. Stat. § 51.20(1)(ar) is
not rationally related to an "essential" or "overriding" state
interest. Pursuant to Wis. Stat. § 51.20(1)(ar), the State or
County may commit a mentally ill prisoner without any
"essential" or "overriding" state interest.
¶91 Because Wisconsin Stat. § 51.20(1)(ar) is not
reasonably related to an "essential" or "overriding" state
interest, I conclude Wis. Stat. § 51.20(1)(ar) is
unconstitutional as a matter of substantive due process.
II
¶92 Finally, I wish to offer a brief comment about
Christopher S.'s claim that the County did not show by clear and
convincing evidence that he was incompetent to refuse
psychotropic medication.
¶93 As I explained above, the jury trial regarding
Christopher's involuntary commitment took place the same day as
the bench trial regarding his involuntary medication. Only one
witness, Dr. Keshena, testified.
¶94 The direct examination of Dr. Keshena largely parroted
the language of Wis. Stat. § 51.61(1)(g)4.b., stating, in
relevant part:
Q. Dr. Keshena, in the course of your treatment of
[Christopher], have you had an opportunity to
explain to him the advantages, disadvantages, and
alternatives to the medication?
A. Yes.
Q. And after you've done that, in your opinion would
he be substantially incapable or substantially
capable of applying an understanding of the
advantages, disadvantages, and alternatives to
13
No. 2014AP1048.ssa
his own condition in order to make an informed
choice as to whether to accept or refuse
psychotropic medication?
A. He's not capable.
Q. So you're saying he's substantially incapable?
A. Yes.
¶95 Elsewhere in the record there is ample evidence that
the doctors who treated Christopher S. explained the advantages,
disadvantages, and alternatives to medication to him. The trial
judge was familiar with this evidence. As a result, I concur in
the majority opinion's conclusion that the County met its burden
of proving by clear and convincing evidence that Christopher S.
was incompetent to refuse psychotropic medication and treatment.
¶96 Nevertheless, I write separately to point out that the
majority opinion explains that Dr. Keshena's testimony was "not
disputed at trial," so it was "not necessary for Dr. Keshena to
engage in a lengthier discussion of her explanation of the
advantages, disadvantages, and alternatives" under Outagamie
County v. Melanie L., 2013 WI 67, ¶67, 349 Wis. 2d 148, 833
N.W.2d 607.24 Although lengthier discussion may not have been
necessary because of the record in this case, given the
significant constitutional rights at stake, the County should
develop a sufficient record to show that, for instance, the
person was advised of the advantages, disadvantages, and
alternatives to treatment in order to enable appellate review.
See Melanie L., 349 Wis. 2d 148, ¶67.
24
Majority op., ¶56.
14
No. 2014AP1048.ssa
¶97 For the reasons set forth, I dissent in part and write
separately.
¶98 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
15
No. 2014AP1048.ssa
1