Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them.
Majority: Justice Annette Ziegler (26 pages), joined by Justices Patience Roggensack, Ann Walsh Bradley, Rebecca Grassl Bradley, and Brian Hagedorn
Dissent: Justice Rebecca Dallet (13 pages), joined by Justice Jill Karofsky
This is a review of an unpublished decision of the court of appeals, Waupaca Cnty. v. K.E.K....affirming the Waupaca County circuit court's order extending K.E.K.'s involuntary commitment....
K.E.K. challenges the commitment extension arguing that Wis. Stat. §51.20(1)(am), the statute upon which the County relied to prove K.E.K.'s dangerousness, is both facially unconstitutional and unconstitutional as applied to this case because the statute does not require a sufficient showing of current dangerousness as exhibited by recent acts of dangerousness....
Section 51.20(1)(am) provides an alternative path to prove current dangerousness provided the evidence demonstrates "a substantial likelihood, based on the subject individual's treatment record, that the individual would be a proper subject for commitment if treatment were withdrawn...."
We affirm the decision of the court of appeals.
On November 22, 2017, Waupaca County (the County) filed an initial petition seeking to commit K.E.K....On December 8, 2017, the circuit court held a jury trial on the County's petition for initial commitment. The jury entered the verdict that K.E.K. was mentally ill, a danger to herself and others, and a proper subject for treatment. On the basis of this jury verdict, the circuit court entered an Order of Commitment, committing K.E.K. for six months.
On May 22, 2018, the County filed a petition seeking to extend K.E.K.'s commitment. The petition alleged: (1) K.E.K. was "currently under an order of commitment"; (2) K.E.K. was "mentally ill, developmentally disabled or drug dependent, and a proper subject for treatment"; (3) K.E.K. was "dangerous because there [was] a substantial likelihood, based on [K.E.K.'s] treatment record, that [K.E.K.] would be a proper subject for commitment if treatment were withdrawn"; and (4) that "a recommitment of [K.E.K. was] recommended . . . for the protection of society, [K.E.K.], or both...."
At the conclusion of the testimony, the circuit court found that K.E.K. would be a proper subject for recommitment. The court specifically found that "the county has met its burdens in showing that if treatment were withdrawn, that [K.E.K.] would be a proper subject for a commitment...."
K.E.K. is challenging her recommitment on the basis that Wis. Stat. §51.20(1)(am) is unconstitutional facially and as applied. Section 51.20 "governs involuntary civil commitments for mental health treatment...."
K.E.K. argues that her recommitment is unconstitutional because Wis. Stat. §51.20(1)(am): (A) violates her right to due process by allowing her to be committed without a showing of current dangerousness; (B) violates her right to equal protection of the law by allowing commitment under circumstances different than those existing under the fifth standard of dangerousness; and (C) is unconstitutional as applied to the specific facts of her case.
K.E.K. asserts that §51.20(1)(am) does not require a showing of current dangerousness because it does not require the government to prove recent acts or omissions. However, this position misconstrues what § 51.20(1)(am) and due process require. Section 51.20(1)(am) is facially constitutional because it requires a showing of mental illness and current dangerousness, as due process demands....
As we stated in (Portage County v) J.W.K., at a recommitment proceeding, "the County may, as an alternative to the options outlined in § 51.20(1)(a)2.a.-e., prove dangerousness by showing 'a substantial likelihood, based on the subject individual's treatment record, that the individual would be a proper subject for commitment if treatment were withdrawn.
We decline to create, from whole-cloth, a constitutional requirement that a county use recent acts or omissions at a commitment extension proceeding. Instead, we rely on the options the legislature provided to the counties to prove current dangerousness....It is the definitions and requirements the legislature chose that must comport with due process, not the novel requirement that K.E.K. proposes....
We determine that the state has a reasonable basis for treating...those committed under Wis. Stat. § 51.20(1)(am) differently. The purpose of § 51.20(1)(am) "is to allow extension of a commitment when the patient's condition has not improved enough to warrant discharge. Because of the therapy received, evidence of recent action exhibiting 'dangerousness' is often nonexistent. Therefore, the emphasis is on the attendant consequence to the patient should treatment be discontinued...." The legislature conceivably could have wanted – and likely did want – to give counties a more realistic basis by which to prove current dangerousness when it is likely the committed individual would discontinue treatment if no longer committed..... As the court of appeals previously explained:
The clear intent of the legislature in amending [Wis. Stat. § 51.20(1)(am)] was to avoid the "revolving door" phenomena whereby there must be proof of a recent overt act to extend the commitment but because the patient was still under treatment, no overt acts occurred and the patient was released from treatment only to commit a dangerous act and be recommitted. The result was a vicious circle of treatment, release, overt act, recommitment. The legislature recognized the danger to the patients and others of not only allowing for, but requiring, overt acts as a prerequisite for further treatment.
Accordingly, we hold that addressing the "revolving door" phenomena is a reasonable basis for the different evidentiary avenues of § 51.20(1)(am)....
K.E.K. also challenges Wis. Stat. § 51.20(1)(am)'s constitutionality as applied to her. She claims that, based on the specifics of her case, § 51.20(1)(am) violates due process, the Privileges or Immunities Clause, and the Equal Protection Clause. She argues that, because she was not dangerous to herself or others, "§ 51.20(1)(am) plainly, clearly, and beyond a reasonable doubt violates the 14th Amendment as applied to the facts of [her] case." This argument, however, advances an evidentiary sufficiency challenge under the guise of as-applied constitutional challenges. Accordingly, K.E.K.'s as-applied constitutional challenges to §51.20(1)(am) fail because they are sufficiency of the evidence challenges, not constitutional challenges....
The majority fails to engage in any real analysis of whether this type of "alternative" evidence passes constitutional muster. It does not. Section 51.20(1)(am) is facially unconstitutional because it eliminates the constitutionally required showing of current dangerousness in favor of "alternative" evidence that shows only that a person was or might become dangerous....
Constitutional due process protections...have not always been the law in Wisconsin, and vestiges of our troubling history in this area remain. In the early 1970s, Wisconsin became the epicenter of civil commitment reform following a class-action lawsuit that contested Wisconsin's mental health commitment procedures. See Lessard, 349 F. Supp. 1078. There, a three-judge federal panel enjoined Wisconsin's commitment laws because Alberta Lessard, like many committed before her, was denied a series of key procedural protections:
"There is nothing unrealistic about a standard of proof that requires evidence of current dangerous behavior to show that someone is currently dangerous." – Justice Rebecca Dallet
The majority opinion errs in its premise that we "authoritatively determined" in J.W.K. that Wis. Stat. § 51.20(1)(am) is constitutional. There, however, we interpreted the language of § 51.20(1)(am) only to determine whether J.W.K.'s appeal challenging the sufficiency of the evidence was moot. We made no pronouncement either way about its constitutionality – an unsurprising result given that J.W.K. did not raise a constitutional challenge....
A proper examination of the plain language of § 51.20(1)(am) reveals that it is facially unconstitutional because it allows the government to involuntarily commit someone who is not currently dangerous. Section 51.20(1)(am) substitutes the recent-act-or-omission requirements of § 51.20(1)(a)2. with a showing that there is a "substantial likelihood," based on the subject individual's treatment record, that the individual "would be a proper subject for commitment if treatment were withdrawn." (Emphases added.) The use of "would be" in tandem with an "if" clause forms a "future unreal conditional." As the label implies, such sentences deal with hypothetical futures based on some condition not currently present. This phrasing redefines "is dangerous" to mean "might be dangerous if some future conditions are met...."
K.E.K.'s commitment extension illustrates just how divorced predictions about future dangerousness are from current dangerousness. Both the County's psychiatrist, Dr. Marshall Bales, and K.E.K.'s behavioral health case manager, Heather Van Kooy, confirmed that K.E.K was stable in an outpatient facility. They explained that K.E.K. was responding to treatment, that she had been taking her medication, and that she had committed no recent violent or threatening acts. Dr. Bales pointedly stated that K.E.K. had "not been dangerous over the last number of months." Although he noted that K.E.K. lacked insight into her mental illness and that she still talked and giggled to herself, he acknowledged that those symptoms are not necessarily dangerous behaviors. Ms. Van Kooy agreed that K.E.K.'s symptoms had not manifested in any dangerous behaviors or threats of harm to herself or others. Far from showing that K.E.K. was currently dangerous, Dr. Bales's and Ms. Van Kooy's testimony exemplify the disconnect between predictions about future dangerousness permitted under § 51.20(1)(am) and actual evidence of current dangerousness required by the Constitution and our precedent.
Failing to grapple with that disconnect, the majority opinion offers two last-ditch, but unavailing, arguments for upholding Wis. Stat. § 51.20(1)(am). First, it upholds § 51.20(1)(am) on the grounds that it "give[s] counties a more realistic basis by which to prove dangerousness." More realistic than what is unclear. Notwithstanding, there is nothing unrealistic about a standard of proof that requires evidence of current dangerous behavior to show that someone is currently dangerous. If the government has no such evidence, perhaps the committed individual is, in fact, not currently dangerous.
To that, the majority opinion responds with its second defense of § 51.20(1)(am): the "revolving door" phenomena. This justification posits that without the "alternative" evidence permitted under § 51.20(1)(am), committed individuals will enter a "vicious circle of treatment, release, overt act, recommitment." Setting aside the fact that this judicially crafted rationale lacks any basis in the text or legislative history of § 51.20(1)(am), it does nothing to address the fact that § 51.20(1)(am) impermissibly redefines "currently dangerous." Instead, it assumes the truth of the constitutional violation – that the individual is not presently dangerous – while excusing that violation because the previously committed individual may meet the commitment requirements again....
I understand, to a point, the policy concerns underlying this revolving door reality for some. I recognize that an individual released from a mental health commitment may at some point cease treatment and again become a proper subject for commitment. I also recognize that simply extending an individual's commitment may be more expedient than having to start the commitment process anew should an individual's condition significantly deteriorate.
The Constitution, however, yields to neither good intentions nor expediency. Its protections are all the more important when faced with well-intentioned and efficient practices that ultimately amount to a violation of an individual's fundamental liberty. Therefore, as concerning as the revolving door phenomenon may be, it cannot justify depriving individuals of their liberty without due process.
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