2021 WI 9
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP1887
COMPLETE TITLE: In the matter of the mental commitment of
K.E.K.:
Waupaca County,
Petitioner-Respondent,
v.
K.E.K.,
Respondent-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 389 Wis. 2d 104,
936 N.W.2d 405
(2019 – unpublished)
OPINION FILED: February 9, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 17, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waupaca
JUDGE: Vicki L. Clussman
JUSTICES:
ZIEGLER, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., ANN WALSH BRADLEY, REBECCA GRASSL
BRADLEY, and HAGEDORN, JJ., joined. DALLET, J., filed a
dissenting opinion, in which KAROFSKY, J., joined
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
filed by Colleen D. Ball, assistant state public defender. There
was an oral argument by Colleen D. Ball.
For the petitioner-respondent, there was a brief filed by
David G. Been, Waupaca corporation counsel. There was an oral
argument by David G. Been.
2021 WI 9
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP1887
(L.C. No. 2017ME44)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the mental commitment of
K.E.K.:
Waupaca County, FILED
Petitioner-Respondent,
FEB 9, 2021
v.
Sheila T. Reiff
Clerk of Supreme Court
K.E.K.,
Respondent-Appellant-Petitioner.
ZIEGLER, J., delivered the majority opinion of the Court, in
which ROGGENSACK, C.J., ANN WALSH BRADLEY, REBECCA GRASSL
BRADLEY, and HAGEDORN, JJ., joined. DALLET, J., filed a
dissenting opinion, in which KAROFSKY, J., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an
unpublished decision of the court of appeals, Waupaca Cnty. v.
K.E.K., No. 2018AP1887, unpublished slip op. (Wis. Ct. App.
Sept. 26, 2020), affirming the Waupaca County circuit court's1
1 The Honorable Vicki L. Clussman presided.
No. 2018AP1887
order extending K.E.K.'s involuntary commitment2 pursuant to Wis.
Stat. § 51.20(13)(g)3. (2017-18).3
¶2 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.4 Specifically, she claims that the standard under
Wisconsin Stat. § 51.20, as well as the case law, uses
2
"recommitment" and "extension of a commitment" interchangeably,
and we do as well. See Portage Cnty. v. J.W.K., 2019 WI 54, ¶1
n.1,
386 Wis. 2d 672,
927 N.W.2d 509; see also
Wis. Stat.
§§ 51.20(13)(g)2r., 3.
All subsequent references to the Wisconsin Statutes are to
3
the 2017-18 version unless otherwise indicated.
We note that K.E.K.'s petition for review also included a
4
question involving the circuit court's competency to exercise
subject matter jurisdiction over K.E.K.'s extension proceeding.
However, K.E.K. did not develop, nor discuss in any way, this
argument in her briefs. Accordingly, we will not consider it.
See Serv. Emp. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶24,
393
Wis. 2d 38,
946 N.W.2d 35 ("We do not step out of our neutral
role to develop or construct arguments for parties; it is up to
them to make their case.").
2
No. 2018AP1887
§ 51.20(1)(am) violates due process5 and equal protection of the
laws6 and is thus unconstitutional on its face and as applied.7
¶3 However, similar to an initial commitment, a
recommitment requires a showing of mental illness and current
dangerousness. A recommitment petition must "establish the same
elements with the same quantum of proof" as an initial
commitment. Waukesha Cnty. v. J.W.J., 2017 WI 57, ¶20, 375
5 K.E.K. specifically alleges that Wis. Stat. § 51.20(1)(am)
violates substantive due process. Substantive due process
derives from the Fifth and Fourteenth Amendments to the United
States Constitution. See U.S. Const. amend. V ("No person
shall . . . be deprived of life, liberty, or property, without
due process of law."); amend. XIV, § 1 ("[N]or shall any State
deprive any person of life, liberty, or property, without due
process of law."). "Substantive due process provides protection
from 'certain arbitrary, wrongful government actions.'" State
ex rel. Greer v. Wiedenhoeft, 2014 WI 19, ¶57,
353 Wis. 2d 307,
845 N.W.2d 373 (quoting State v. Schulpius,
2006 WI 1, ¶33,
287
Wis. 2d 44,
707 N.W.2d 495).
6 The right to equal protection of the laws arises from the
Fourteenth Amendment to the United States Constitution. See
U.S. Const. amend. XIV, § 1 ("No State shall . . . deny to any
person within its jurisdiction the equal protection of the
laws.").
7 K.E.K. also asserts that Wis. Stat. § 51.20(1)(am)
violates the Privileges or Immunities Clause of the Fourteenth
Amendment. The Privileges or Immunities Clause provides, "No
State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States."
U.S. Const. amend. XIV, § 1. K.E.K. asserts that "when [her]
brief invokes substantive due process, she is also invoking the
Privileges or Immunities Clause." Beyond this cursory
statement, she does not develop her argument based on the text
and history of the Privileges or Immunities Clause.
Accordingly, we will not develop this argument and decline to
entertain K.E.K.'s Privileges or Immunities Clause claims. See
Vos,
393 Wis. 2d 38, ¶24.
3
No. 2018AP1887
Wis. 2d 542, 895 N.W.2d 783. The initial commitment requires
proof that the individual is mentally ill, a proper subject for
treatment, and currently dangerous. See
Wis. Stat. § 51.20(1);
Portage Cnty. v. J.W.K.,
2019 WI 54, ¶16,
386 Wis. 2d 672,
927
N.W.2d 509. 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."
§ 51.20(1)(am).
¶4 Accordingly, we conclude that K.E.K. is unable to
prove that Wis. Stat. § 51.20(1)(am) cannot be enforced under
any circumstances because due process and the statute both
require a showing of mental illness and current dangerousness.
As such, K.E.K.'s facial due process challenge fails.
¶5 Moreover, Wis. Stat. § 51.20(1)(am) creates an
alternative path 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. Thus, the state has a rational basis for treating
those recommitted under § 51.20(1)(am) and those committed under
§ 51.20(1)(a)2.e. differently.
¶6 Finally, K.E.K.'s as-applied constitutional challenges
are disguised sufficiency of the evidence challenges. Her
argument is that she does not meet the statutory standard for
dangerousness, not that Wis. Stat. § 51.20(1)(am) is
unconstitutional when applied to K.E.K.'s specific facts.
4
No. 2018AP1887
¶7 Therefore, we conclude that Wis. Stat. § 51.20(1)(am)
is facially constitutional and that K.E.K.'s as-applied
constitutional challenges fail. Accordingly, we affirm the
decision of the court of appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶8 On November 22, 2017, Waupaca County (the County)
filed an initial petition seeking to commit K.E.K. under Wis.
Stat. § 51.20(1)(a)2.e., the "fifth standard."8 On December 8,
8 The "fifth standard" provides that "an individual, other
than an individual who is alleged to be drug dependent or
developmentally disabled," is considered "dangerous" if:
after the advantages and disadvantages of and
alternatives to accepting a particular medication or
treatment have been explained to him or her and
because of mental illness, evidences either
incapability of expressing an understanding of the
advantages and disadvantages of accepting medication
or treatment and the alternatives, or substantial
incapability of applying an understanding of the
advantages, disadvantages, and alternatives to his or
her mental illness in order to make an informed choice
as to whether to accept or refuse medication or
treatment; and evidences a substantial probability, as
demonstrated by both the individual's treatment
history and his or her recent acts or omissions, that
the individual needs care or treatment to prevent
further disability or deterioration and a substantial
probability that he or she will, if left untreated,
lack services necessary for his or her health or
safety and suffer severe mental, emotional or physical
harm that will result in the loss of the individual's
ability to function independently in the community or
the loss of cognitive or volitional control over his
or her thoughts or actions. The probability of
suffering severe mental, emotional or physical harm is
not substantial under this subd.2.e. if reasonable
provision for the individual's care or treatment is
available in the community and there is a reasonable
5
No. 2018AP1887
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.
¶9 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." Attached to the
petition was an evaluation conducted by K.E.K.'s case manager.
probability that the individual will avail himself or
herself of these services or if the individual is
appropriate for protective placement under ch. 55.
Food, shelter or other care that is provided to an
individual who is substantially incapable of obtaining
food, shelter or other care for himself or herself by
any person other than a treatment facility does not
constitute reasonable provision for the individual's
care or treatment in the community under this
subd.2.e. The individual's status as a minor does not
automatically establish a substantial probability of
suffering severe mental, emotional, or physical harm
under this subd.2.e.
Wis. Stat. § 51.20(1)(a)2.e.
6
No. 2018AP1887
In this evaluation, K.E.K.'s case manager states, in part, "[A]t
this time, this worker believes that without a commitment,
[K.E.K.] would leave the facility she is living at, stop taking
her medications, and repeat all behaviors that were the cause of
the filing for the commitment in 2017."
¶10 The circuit court held a hearing on the extension
petition on June 6, 2018.9 At the hearing, the court heard from
the County's psychiatrist, who testified that K.E.K. "suffers
from schizophrenia, paranoid type." He further opined about
K.E.K.'s actions if K.E.K. were no longer committed:
Well, I've explained I do believe she's improved
with her current treatment interventions care and safe
keeping at this group home, Evergreen and with
medications. But she has distinctive lack of insight
into her mental illness and that impedes her treatment
in general.
And so if she is off commitment or if treatment
is withdrawn, she will, in my opinion, almost
certainly stop her medications, she will almost
certainly leave Evergreen. She mentioned to me that
she would live with family in Illinois, but her mother
cited advancing age, and just being uncomfortable with
the stress of this, due to her mother's age. So I
don't think she has any kind of set housing set-up.
And I'm concerned that off mediations, which I believe
she would stop them, and without stable housing, she
would decompensate and become a proper subject for
commitment, in my opinion, again.
The court also heard from K.E.K.'s case manager. She testified
that she believed "an extension is warranted because without the
treatment and care that [K.E.K.'s] receiving
The day before the extension hearing, K.E.K. waived her
9
right to a jury trial, instead opting for a bench trial.
7
No. 2018AP1887
currently, . . . [K.E.K.] will no longer take her medications,
become more unstable, and potentially [sic] a danger to herself
as a result of that." The court also heard from the manager of
K.E.K.'s group home and K.E.K. herself.
¶11 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." Relying
on the recommitment standard from Wis. Stat. § 51.20(1)(am), the
court found that K.E.K. was currently dangerous and ordered her
commitment be extended for 12 months.
¶12 K.E.K. appealed the circuit court's commitment
extension order, challenging the constitutionality of Wis. Stat.
§ 51.20(1)(am). On September 26, 2019, the court of appeals
affirmed, holding, in relevant part, that § 51.20(1)(am) does
not violate due process facially nor as applied to K.E.K.
K.E.K., No. 2018AP1887, ¶¶33-40, 46-50.
¶13 On October 30, 2019, K.E.K. petitioned this court for
review. We held the petition in abeyance pending resolution of
Winnebago County v. C.S., 2020 WI 33,
391 Wis. 2d 35,
940
N.W.2d 875. After this court's decision in C.S., K.E.K. filed a
motion to amend her petition for review. Her new petition
alleged that
Wis. Stat. § 51.20(1)(am) violated due process, the
8
No. 2018AP1887
Fourteenth Amendment's Privileges or Immunities Clause,10 and the
Equal Protection Clause. We granted K.E.K.'s motion to amend
her petition and granted review.
II. STANDARD OF REVIEW
¶14 K.E.K. brings facial and as-applied constitutional
challenges to Wis. Stat. § 51.20(1)(am). A facial challenge
claims the law is "unconstitutional on its face." League of
Women Voters of Wis. Educ. Network, Inc. v. Walker,
2014 WI 97,
¶13,
357 Wis. 2d 360,
851 N.W.2d 302 (quoting State v. Wood,
2010 WI 17, ¶13,
323 Wis. 2d 321,
780 N.W.2d 63). "Under a
facial challenge, the challenger must show that the law cannot
be enforced under any circumstances." C.S.,
391 Wis. 2d 35, ¶14
(quoting Winnebago Cnty. v. Christopher S.,
2016 WI 1, ¶34,
366
Wis. 2d 1,
878 N.W.2d 109). A statute under review is presumed
constitutional when challenged facially.11
Id.
10As we stated above, K.E.K. did not develop this argument,
and we do not address her Privileges or Immunities Clause claim.
See supra, ¶2 n.7.
11The parties dispute what burden of proof must be shown to
prove a statute is unconstitutional. Relying on this court's
precedent, the County argues that K.E.K. must prove the statute
is unconstitutional beyond a reasonable doubt. See Winnebago
Cnty. v. C.S., 2020 WI 33, ¶14,
391 Wis. 2d 35,
940 N.W.2d 875;
Mayo v. Wis. Injured Patients & Families Comp. Fund,
2018 WI 78,
¶27,
383 Wis. 2d 1,
914 N.W.2d 67. Relying on federal
precedent, K.E.K. counters and argues that she must only make a
"plain showing" or "clearly demonstrate" that the law violates
the federal Constitution. See United States v. Morrison,
529
U.S. 598, 607 (2000); Nat'l Fed'n of Indep. Bus. v. Sebelius,
567 U.S. 519, 538 (2012). We need not resolve this dispute in
this case because the law is constitutional under either
standard.
9
No. 2018AP1887
¶15 "In contrast, in an as-applied challenge, we assess
the merits of the challenge by considering the facts of the
particular case in front of us 'not hypothetical facts in other
situations.'" League of Women Voters, 357 Wis. 2d 360, ¶13
(quoting Wood,
323 Wis. 2d 321, ¶13). "[W]hile we presume the
statute is constitutional, 'we do not presume that the State
applies statutes in a constitutional manner.'" Mayo v. Wis.
Injured Patients & Families Comp. Fund,
2018 WI 78, ¶56,
383
Wis. 2d 1,
914 N.W.2d 678 (quoting Tammy W-G. v. Jacob T.,
2011
WI 30, ¶48,
333 Wis. 2d 273,
797 N.W.2d 854).
¶16 Under either type of challenge, "the constitutionality
of a statute is a question of law we review de novo." C.S., 391
Wis. 2d 35, ¶13.
¶17 K.E.K.'s argument requires us to interpret Wis. Stat.
§ 51.20(1)(am). "[S]tatutory interpretation is a question of
law we review de novo." J.W.K.,
386 Wis. 2d 672, ¶10. However,
we have already interpreted § 51.20(1)(am). See id., ¶¶19, 23-
24. "[W]here a statute has been authoritatively interpreted by
this court, the party challenging that interpretation must
establish that our prior interpretation was 'objectively
wrong.'" State v. Breitzman,
2017 WI 100, ¶5 n.4,
378
Wis. 2d 431,
904 N.W.2d 93; see also Johnson Controls, Inc. v.
Emp'rs Ins. of Wausau,
2003 WI 108, ¶94,
264 Wis. 2d 60,
665
N.W.2d 257; Progressive N. Ins. Co. v. Romanshek,
2005 WI 67,
¶45,
281 Wis. 2d 300,
697 N.W.2d 417.
10
No. 2018AP1887
III. ANALYSIS
¶18 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." State v. Dennis H.,
2002 WI 104, ¶14,
255 Wis. 2d 359,
647 N.W.2d 851. The statute
"contains five different definitions or standards of
dangerousness for purposes" of an initial commitment. Id.;
see also § 51.20(1)(a)2.a.-e. After an initial commitment, a
county can seek an extension of a commitment for "a period not
to exceed one year." § 51.20(13)(g)1., 3. At a recommitment
proceeding, a county may prove current dangerousness under
either the five standards of dangerousness under
§ 51.20(1)(a)2.a.-e. or under those five standards in
combination with § 51.20(1)(am). J.W.K.,
386 Wis. 2d 672, ¶18;
Langlade Cnty. v. D.J.W.,
2020 WI 41, ¶50,
391 Wis. 2d 231,
942
N.W.2d 277. Pursuant to § 51.20(1)(am), a county has an
alternative avenue for proving dangerousness at an extension
proceeding:
If the individual has been the subject of inpatient
treatment for mental illness . . . immediately prior
to commencement of the proceedings as a result
of . . . a commitment or protective placement ordered
by a court under this section . . . the requirements
of a recent overt act, attempt or threat to act under
par. (a)2.a. or b., pattern of recent acts or
omissions under par. (a)2.c. or e., or recent behavior
under par. (a)2. d. may be satisfied by 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.
11
No. 2018AP1887
Wis. Stat. § 51.20(1)(am).
¶19 We later explained that this section works in
combination with the five standards of dangerousness,
specifically focusing on the standard set forth in Wis. Stat.
§ 51.20(1)(a)2.d.:
[W]e focus on whether the introduced testimony meets
the standard for dangerousness set by Wis. Stat.
§ 51.20(1)(a)2.d., as viewed through the lens of
§ 51.20(1)(am). That is, the testimony must provide
sufficient evidence to support the conclusion that
D.J.W. would be "unable to satisfy basic needs for
nourishment, medical care, shelter or safety without
prompt and adequate treatment so that a substantial
probability exists that death, serious physical
injury, serious physical debilitation, or serious
physical disease will imminently ensue[,]"
§ 51.20(1)(a)2.d., if treatment were withdrawn.
§ 51.20(1)(am).
D.J.W., 391 Wis. 2d 231, ¶50. Accordingly,
Wis. Stat.
§ 51.20(1)(am) works in combination with the five standards to
provide counties with an alternative avenue for proving
dangerousness.
¶20 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;12 and (C) is
12 This court discussed the requirements for the fifth
standard in Dennis H., stating:
12
No. 2018AP1887
unconstitutional as applied to the specific facts of her case.
We disagree and uphold the statute against her due process,
equal protection, and as-applied challenges.
A. Due Process
¶21 K.E.K. argues that Wis. Stat. § 51.20(1)(am) violates
her constitutional right to due process. 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. Accordingly, K.E.K. cannot show that
§ 51.20(1)(am) "cannot be enforced under any circumstances."
The fifth standard permits commitment only when a
mentally ill person needs care or treatment to prevent
deterioration but is unable to make an informed choice
to accept it. This must be "demonstrated by both the
individual's treatment history" and by the person's
"recent acts or omissions." Wis. Stat.
§ 51.20(1)(a)2.e. [(1999-2000).] It must also be
substantially probable that if left untreated, the
person "will suffer severe mental, emotional or
physical harm" resulting in the loss of the "ability
to function independently in the community" or in the
loss of "cognitive or volitional control." Id. Only
then may the individual be found "dangerous" under the
fifth standard.
State v. Dennis H., 2002 WI 104, ¶39,
255 Wis. 2d 359,
647
N.W.2d 851.
13
No. 2018AP1887
1. Wisconsin Stat. § 51.20(1)(am) requirements
¶22 Statutory interpretation "begins with the language of
the statute." State ex rel. Kalal v. Circuit Court for Dane
Cnty., 2004 WI 58, ¶45,
271 Wis. 2d 633,
681 N.W.2d 110
(internal quotations omitted). If its meaning is plain, then
our inquiry ends.
Id. We give statutory language "its common,
ordinary, and accepted meaning."
Id. We give "technical or
specially-defined words or phrases" their "technical or special
definitional meaning."
Id. "Context is important to meaning."
Id., ¶46. Accordingly, we interpret statutory language "not in
isolation but as part of a whole." Id. For the whole statute
to have meaning, we must "give reasonable effect to every word"
and "avoid surplusage." Id.
¶23 However, when we have already authoritatively
interpreted a statute, we are bound to follow that
interpretation unless there is a special justification to depart
from our earlier interpretation. See Johnson Controls, 264
Wis. 2d 60, ¶94; Progressive N. Ins. Co.,
281 Wis. 2d 300, ¶45.
Because we already interpreted
Wis. Stat. § 51.20(1)(am) in
J.W.K., we must follow our previous interpretation of
§ 51.20(1)(am).
¶24 As we stated in 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.'" J.W.K., 386
14
No. 2018AP1887
Wis. 2d 672, ¶19. "[P]aragraph (am) functions as an alternative
evidentiary path, reflecting a change in circumstances
occasioned by an individual's commitment and treatment." Id.
¶25 However, each recommitment, including those where the
County utilizes Wis. Stat. § 51.20(1)(am), "requires the County
to prove the same elements with the same quantum of proof
required for the initial commitment." Id., ¶24. An initial
commitment requires a county to prove that the individual is
mentally ill, a proper subject for commitment, and currently
dangerous. See § 51.20(1); J.W.K.,
386 Wis. 2d 672, ¶16. We
explained that:
The dangerousness standard is not more or less onerous
during an extension proceeding; the constitutional
mandate that the County prove an individual is both
mentally ill and dangerous by clear and convincing
evidence remains unaltered. Each extension hearing
requires proof of current dangerousness. It is not
enough that the individual was at one point a proper
subject for commitment. The County must prove the
individual "is dangerous." The alternate avenue of
showing dangerousness under paragraph (am) does not
change the elements or quantum of proof required. It
merely acknowledges that an individual may still be
dangerous despite the absence of recent acts,
omissions, or behaviors exhibiting dangerousness
outlined in § 51.20(1)(a)2.a.-e.
J.W.K., 386 Wis. 2d 672, ¶24 (citations omitted).
¶26 Accordingly, as we authoritatively determined in
J.W.K., Wis. Stat. § 51.20(1)(am) merely provides an alternative
path for the County to prove current dangerousness——it does not
change the requirement that the County prove, by clear and
convincing evidence, that the individual is mentally ill, a
15
No. 2018AP1887
proper subject for treatment, and currently dangerous. Id. We
reaffirm that determination.
2. Due process and commitment proceedings
¶27 The Constitution forbids the government from
"depriv[ing] any person of life, liberty, or property, without
due process of law." U.S. Const. amend. V (applying the
prohibition to the federal government); amend. XIV, § 1
(applying the same to the States). "[C]ommitment for any
purpose constitutes a significant deprivation of liberty that
requires due process protection." J.W.K., 386 Wis. 2d 672, ¶16.
As we stated last term, "in a civil commitment case, due process
requires the [government] to prove by clear and convincing
evidence that the individual is both mentally ill and
dangerous." Marathon Cnty. v. D.K.,
2020 WI 8, ¶29,
390
Wis. 2d 50,
937 N.W.2d 901.
¶28 The United States Supreme Court established that,
before the government can commit someone and deprive that person
of liberty, "the [government] must prove by clear and convincing
evidence that [the individual] is demonstrably dangerous to the
community." Foucha v. Louisiana, 504 U.S. 71, 81 (1992).
K.E.K. asserts that this means the County must use recent acts
or omissions to prove she is "demonstrably dangerous." However,
no such requirement appears in Foucha, nor has the Court ever
required a specific type of evidence to prove current
dangerousness. Indeed, "[i]n this complicated and difficult
area, the Supreme Court 'has wisely left the job of creating
statutory definitions to the legislators who draft state laws.'"
16
No. 2018AP1887
Dennis H., 255 Wis. 2d 359, ¶38 (quoting State v. Post,
197
Wis. 2d 279, 304,
541 N.W.2d 115 (1995)). As such, 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——the
five standards from
Wis. Stat. § 51.20(1)(a)2.a.-e. and the
alternative evidentiary path from § 51.20(1)(am). It is the
definitions and requirements the legislature chose that must
comport with due process, not the novel requirement that K.E.K.
proposes.
3. Wisconsin Stat. § 51.20(1)(am) satisfies due process.
¶29 To satisfy due process, the government must prove that
the individual is both mentally ill and currently dangerous by
clear and convincing evidence. See Foucha, 504 U.S. at 81. We
have held that, at a recommitment proceeding, a county must meet
this due process standard. J.W.K.,
386 Wis. 2d 672, ¶24. Thus,
to succeed on a due process claim here, K.E.K. must prove that
Wis. Stat. § 51.20(1)(am) does not require a showing of current
dangerousness. K.E.K. cannot do so because, as this court
unanimously recognized, § 51.20(1)(am) creates an alternative
17
No. 2018AP1887
evidentiary path to prove current dangerousness. See J.W.K.,
386 Wis. 2d 672, ¶¶24, 34.13
¶30 Therefore, because Wis. Stat. § 51.20(1)(am) requires
proof of current dangerousness, it satisfies the Due Process
Clause's requirements. Accordingly, K.E.K. cannot show that
§ 51.20(1)(am) violates Due Process in all applications, so her
facial challenge fails.
B. Equal Protection
¶31 K.E.K. also alleges that Wis. Stat. § 51.20(1)(am)
violates her constitutional right to equal protection of the
laws by allowing for commitment under different standards than a
commitment under the fifth standard, § 51.20(1)(a)2.e. However,
the state14 has a rational basis for allowing these different
evidentiary standards. Accordingly, K.E.K.'s facial equal
protection claim fails.
¶32 K.E.K. claims that those recommitted under Wis. Stat.
§ 51.20(1)(am) and those committed under the fifth standard are
similarly situated, but that a county may commit someone under
13The majority opinion in J.W.K. stated that "[e]ach
extension hearing requires proof of current
dangerousness . . . . The County must prove the individual 'is
dangerous.' The alternate avenue of showing dangerousness under
paragraph (am) does not change the elements or quantum of proof
required." J.W.K., 386 Wis. 2d 672, ¶24 (citations omitted).
Similarly, the dissent described
Wis. Stat. § 51.20(1)(am) as
"creating an alternative path to prove current
dangerousness . . . ." Id., ¶35 (Dallet, J., dissenting).
14Although it is the counties who file petitions under Wis.
Stat. § 51.20, the state created the commitment scheme via
statute. Accordingly, the state must possess a rational basis
for any differential treatment, not the counties.
18
No. 2018AP1887
§ 51.20(1)(am) without proving the elements that we held are
necessary for a commitment under the fifth standard.15 K.E.K.
argues that the state does not have a rational basis for
requiring these elements for an initial commitment under the
fifth standard and a recommitment under § 51.20(1)(am). Thus,
she asserts, § 51.20(1)(am) violates her right to equal
protection of the laws.
¶33 "To prove an equal protection clause violation, the
party challenging a statute's constitutionality must show that
'the state unconstitutionally treats members of similarly
situated classes differently.'" State v. West, 2011 WI 83, ¶90,
336 Wis. 2d 578,
800 N.W.2d 929 (quoting Post,
197 Wis. 2d at
318). However, "[t]he right to equal protection does not
require that such similarly situated classes be treated
identically, but rather requires that the distinction made in
treatment have some relevance to the purpose for which
We described these necessary elements for a commitment
15
under the fifth standard in Dennis H.:
The fifth standard permits commitment only when a
mentally ill person needs care or treatment to prevent
deterioration but is unable to make an informed choice
to accept it. This must be "demonstrated by both the
individual's treatment history" and by the person's
"recent acts or omissions." It must also be
substantially probable that if left untreated, the
person "will suffer severe mental, emotional or
physical harm" resulting in the loss of the "ability
to function independently in the community" or in the
loss of "cognitive or volitional control."
Dennis H., 255 Wis. 2d 359, ¶39 (citation omitted).
19
No. 2018AP1887
classification of the classes is made." Id. Thus, the first
step in an equal protection claim is to identify similarly
situated, yet differently treated individuals. See Dennis H.,
255 Wis. 2d 359, ¶31; Post,
197 Wis. 2d at 318-19. The second
step is to determine if the government has an appropriate basis
for the different classifications and treatment. See Dennis H.,
255 Wis. 2d 359, ¶31.
¶34 Those committed under Wis. Stat. § 51.20(1)(am) and
those committed under the fifth standard are similarly situated.
A county, under either § 51.20(1)(am) or the fifth standard,
must prove exactly the same underlying elements with the same
quantum of proof required for commitment. See J.W.K.,
386
Wis. 2d 672, ¶24 ("The alternate avenue of showing dangerousness
under paragraph (am) does not change the elements or quantum of
proof required. It merely acknowledges that an individual may
still be dangerous despite the absence of recent acts,
omissions, or behaviors exhibiting dangerousness outlined in
§ 51.20(1)(a)2.a.-e."). Moreover, when a county uses
§ 51.20(1)(am), it does so in combination with the five
standards, including when a county commits someone under the
fifth standard through the lens of § 51.20(1)(am). See D.J.W.,
391 Wis. 2d 231, ¶50. That is, the two statutes work in concert
with each other, so those committed under either section face
nearly identical elements and restraints. Accordingly, a person
facing a commitment under the fifth standard and a person facing
an extension of a commitment under § 51.20(1)(am) are similarly
situated. Cf. Post,
197 Wis. 2d at 318-19 (holding that
20
No. 2018AP1887
"persons committed under chapters 51 and 980 are similarly
situated for purposes of an equal protection comparison").
¶35 Because those committed under Wis. Stat.
§ 51.20(1)(am) and those committed under the fifth standard are
similarly situated, we must evaluate whether the "statutorily
distinctive mechanisms for dealing with the two classes was
proper in light of the difference between the classifications."
West,
336 Wis. 2d 578, ¶92. "Whether a legislative distinction
between otherwise similarly situated persons violates equal
protection depends upon whether there is a reasonable basis to
support it." Dennis H.,
255 Wis. 2d 359, ¶31. "Where the
classification does not involve a suspect class, equal
protection is denied only if the legislature has made an
irrational or arbitrary classification."
Id. (quoting State ex
rel. Jones v. Gerhardstein,
141 Wis. 2d 710, 733,
416 N.W.2d 883
(1987)). Describing the power of the state to create different
classifications, we have stated:
"[T]he state retains broad discretion to create
classifications so long as the classifications have a
reasonable basis." Under the rational basis test, a
statutory classification is presumed to be proper. It
will be sustained if the reviewing court can identify
any reasonable basis to support it. Any doubt must be
resolved in favor of the reasonableness of the
classification and the constitutionality of the
statute in which it is made. A "legislative enactment
must be sustained unless it is 'patently arbitrary'
and bears no rational relationship to a legitimate
government interest."
Dennis H., 255 Wis. 2d 359, ¶32 (citations omitted).
Accordingly, we apply a rational basis level of scrutiny to Wis.
21
No. 2018AP1887
Stat. § 51.20(1)(am) and will sustain it if we can identify "any
reasonable basis to support" the different classifications.
¶36 We determine that the state has a reasonable basis for
treating those committed under the fifth standard and 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." M.J. v. Milwaukee
Cnty. Combined Cmty. Servs. Bd.,
122 Wis. 2d 525, 530-31,
362
N.W.2d 190 (Ct. App. 1984); see also J.W.K.,
386 Wis. 2d 672,
¶23. Thus, unlike the fifth standard, § 51.20(1)(am) applies
only to patients that are already receiving treatment. By
enacting this alternative means of showing dangerousness, the
legislature conceivably could have wanted——and likely did want——
to give counties a more realistic basis by which to prove
current dangerousness when it is likely the committed individual
would discontinue treatment if no longer committed. See J.W.K.,
386 Wis. 2d 672, ¶24 ("[Wisconsin Stat. § 51.20(1)(am)] merely
acknowledges that an individual may still be dangerous despite
the absence of recent acts, omissions, or behaviors exhibiting
dangerousness outlined in § 51.20(1)(a)2.a.-e."). As the court
of appeals previously explained:
22
No. 2018AP1887
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.
State v. W.R.B., 140 Wis. 2d 347, 351,
411 N.W.2d 142 (Ct. App.
1987). Accordingly, we hold that addressing the "revolving
door" phenomena is a reasonable basis for the different
evidentiary avenues of § 51.20(1)(am) and the fifth standard.
¶37 Accordingly, K.E.K. is unable to prove that the state
impermissibly treats those committed under Wis. Stat.
§ 51.20(1)(am) and those committed under the fifth standard
differently. Therefore, the statute does not violate K.E.K.'s
right to equal protection of the laws.
C. As Applied
¶38 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
23
No. 2018AP1887
constitutional challenges to § 51.20(1)(am) fail because they
are sufficiency of the evidence challenges, not constitutional
challenges.
¶39 A claim that a statute is unconstitutional as applied
is "a claim that a statute is unconstitutional on the facts of a
particular case or to a particular party." Voters with Facts v.
City of Eau Claire, 2018 WI 63, ¶60,
382 Wis. 2d 1,
913
N.W.2d 131 (quoting Olson v. Town of Cottage Grove,
2008 WI 51,
¶44 n.9,
309 Wis. 2d 365,
749 N.W.2d 211). Although these
claims operate on the basis of the "facts of a particular case,"
it does not transform the as-applied constitutional challenge
into an alternative means to attack the sufficiency of the
evidence.
¶40 K.E.K. asserts that "[i]t is undisputed that [she]
posed no danger to herself or others during her commitment."
This is not a challenge to the constitutionality of the statute
as applied to K.E.K.'s facts; it challenges the application of
the statute to the facts of this case. The statute has no
application, constitutional or otherwise, against those who are
not currently dangerous. See, e.g., D.J.W., 391 Wis. 2d 231,
¶59 (concluding the evidence was insufficient at a recommitment
hearing to prove dangerousness under
Wis. Stat. § 51.20(1)(am)).
If K.E.K. is not currently dangerous, the County has no power to
commit her under the statute. If the evidence is insufficient,
it does not mean the statute is unconstitutional——it merely
means that the County violated the statute.
24
No. 2018AP1887
¶41 Accordingly, K.E.K.'s as-applied constitutional
challenges fail. Her dispute is with the sufficiency of the
evidence, not with the constitutionality of Wis. Stat.
§ 51.20(1)(am).
IV. CONCLUSION
¶42 We conclude that K.E.K. is unable to prove that Wis.
Stat. § 51.20(1)(am) cannot be enforced under any circumstances
because due process and the statute both require a showing of
mental illness and current dangerousness. As such, K.E.K.'s
facial due process challenge fails.
¶43 Moreover, Wis. Stat. § 51.20(1)(am) creates an
alternative path 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. Thus, the state has a rational basis for treating
those recommitted under § 51.20(1)(am) and those committed under
§ 51.20(1)(a)2.e. differently.
¶44 Finally, K.E.K.'s as-applied constitutional challenges
are disguised sufficiency of the evidence challenges. Her
argument is that she does not meet the statutory standard for
dangerousness, not that Wis. Stat. § 51.20(1)(am) is
unconstitutional when applied to K.E.K.'s specific facts.
¶45 Therefore, we conclude that Wis. Stat. § 51.20(1)(am)
is facially constitutional and that K.E.K.'s as-applied
constitutional challenges fail. Accordingly, we affirm the
decision of the court of appeals.
25
No. 2018AP1887
By the Court.—The decision of the court of appeals is
affirmed.
26
No. 2018AP1887.rfd
¶46 REBECCA FRANK DALLET, J. (dissenting). The
Fourteenth Amendment to the United States Constitution prohibits
the government from involuntarily confining a person with a
mental illness unless it can prove that person is currently
dangerous. K.E.K. argues that Wis. Stat. § 51.20(1)(am)
(2017-18)1 is unconstitutional because it allows the government
to extend her commitment based not on her recent acts or
omissions but on a treatment record detailing past behaviors and
on predictions that, if no longer committed, she might behave
dangerously in the future. In the face of that constitutional
challenge, 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. Therefore, I respectfully
dissent.
K.E.K.'s challenge implicates only the first of the three
1
sentences in Wis. Stat. § 51.20(1)(am). If successful, her
challenge would void only that sentence because the other two
are distinct, separable, and not dependent on the first. See
State v. Hezzie R.,
219 Wis. 2d 848, 863,
580 N.W.2d 660 (1998)
("[P]art of a statute may be unconstitutional, and the remainder
may still have effect, provided the two parts are distinct and
separable and are not dependent upon each other." (quoting
Muench v. PSC, 261 Wis. 492, 515,
55 N.W.2d 40 (1952))).
Therefore, when I refer to § 51.20(1)(am), I refer only to its
first sentence.
1
No. 2018AP1887.rfd
I
¶47 The civil commitment of persons diagnosed with a
mental illness constitutes a government exercise of either its
parens patriae power to care for citizens unable to care for
themselves or its police power to prevent harm to the community.
See Addington v. Texas, 441 U.S. 418, 426 (1979). While both
are legitimate government interests, neither is boundless.
Involuntary mental health commitments are, after all, "a
significant deprivation of liberty." Id.; Vitek v. Jones,
445
U.S. 480, 491–92 (1980). They deprive persons of their most
basic and fundamental freedom "to go unimpeded about [their]
affairs" and to make decisions regarding their health. Lessard
v. Schmidt,
349 F. Supp. 1078, 1084 (E.D. Wis. 1972), vacated
and remanded on other grounds,
421 U.S. 957 (1975),
reinstated,
413 F. Supp. 1318 (E.D. Wis. 1976).
¶48 The Fourteenth Amendment to the United States
Constitution guarantees that no citizen may be involuntarily
committed without due process. See Vitek, 445 U.S. at 491–92
("[C]ommitment . . . produces 'a massive curtailment of
liberty,' and in consequence 'requires due process protection.'"
(quoted sources omitted)). Thus, an individual facing
commitment must have a meaningful opportunity to contest the
evidence against her. State v. Hanson, 98 Wis. 2d 80, 86,
295
N.W.2d 209 (Ct. App. 1980), aff'd,
100 Wis. 2d 549,
302
N.W.2d 452 (1981). And because an involuntary mental health
commitment is premised on either an individual's inability to
care for herself or her danger to the public, due process
2
No. 2018AP1887.rfd
dictates that the government must demonstrate, by clear and
convincing evidence, that the person is both mentally ill and
dangerous to herself or others.2 Marathon Cnty. v. D.K., 2020
WI 8, ¶¶27-28,
390 Wis. 2d 50,
937 N.W.2d 901 (citing O'Connor
v. Donaldson,
422 U.S. 563, 576 (1975) and Addington,
441 U.S.
at 432-33). As we recently held, the government must prove that
an individual is "current[ly] dangerousness"; "it is not enough
that the individual was" dangerous. Portage Cnty. v.
J.W.K.,
2019 WI 54, ¶24,
386 Wis. 2d 672,
927 N.W.2d 509.
There is no dispute that the Fourteenth Amendment
2
substantively protects the basic liberty of non-dangerous
individuals against the government's attempts to deprive them of
that liberty. See O'Connor v. Donaldson, 422 U.S. 563, 575-76
(1975); Vitek v. Jones,
445 U.S. 480, 491–92 (1980). There is
some debate, however, about whether it is the Fourteenth
Amendment's Due Process Clause or its Privileges or Immunities
Clause that prevents states from infringing on an individual's
inherent right to liberty. See, e.g., Planned Parenthood of Se.
Penn. v. Casey,
505 U.S. 833, 847-48 (1992) (explaining that the
Due Process Clause protects "a realm of personal liberty which
the government may not enter"); Winnebago Cnty. v. C.S.,
2020
WI 33, ¶¶47-70,
391 Wis. 2d 35,
940 N.W.2d 875 (Rebecca Grassl
Bradley, J., dissenting) (concluding that "liberty interests may
be vindicated under the Privileges or Immunities Clause"); Josh
Blackman & Ilya Shapiro, Keeping Pandora's Box Sealed:
Privileges or Immunities, the Constitution in 2020, and Properly
Extending the Right to Keep and Bear Arms to the States, 8 Geo.
J.L. & Pub. Pol'y 1, 64 (2010) ("The Privileges or Immunities
Clause is about individual liberty."). This academic debate has
no bearing on K.E.K.'s challenge. After all, this court has
already held that, based on the United States Supreme Court's
"due process" jurisprudence, the government must prove current
dangerousness. See Marathon Cnty. v. D.K., 2020 WI 8, ¶¶26-27,
390 Wis. 2d 50,
937 N.W.2d 901 (citing O'Connor,
422 U.S.
at 576). Support for this basic liberty may also be found in
the Wisconsin Constitution's protection of the people's
"inherent right[]" to "liberty." Wis. Const. art. I, § 1.
3
No. 2018AP1887.rfd
¶49 These constitutional due process protections, however,
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:
adequate notice of the proceedings against her;
a prompt probable-cause hearing, despite being
detained;
the ability to invoke her right against self-
incrimination or object to hearsay evidence;
a heightened burden of proof commensurate with the
deprivation of her liberty; and
her right to counsel.
Id. at 1090-1103. Lessard's victory led to certain procedural
changes, but our pre-Lessard ghosts continue to haunt us.
Indeed, as of 2015, Wisconsin involuntarily commits its citizens
diagnosed with mental illnesses at a higher rate than any other
state.3 Although we presume that the State's current mental
3 Wisconsin involuntarily commits roughly 44 of every 1,000
persons diagnosed with a serious mental health disorder, far
exceeding the average rate of other states (9 per 1,000).
Substance Abuse & Mental Health Servs. Admin., Civil Commitment
and the Mental Health Care Continuum: Historical Trends and
Principles for Law and Practice 12 (2019).
4
No. 2018AP1887.rfd
health commitment scheme is constitutional, we cannot ignore its
history to the contrary. See Winnebago Cnty. v. C.S., 2020
WI 33, ¶14,
391 Wis. 2d 35,
940 N.W.2d 875.
¶50 Today, mental health commitments begin with a six-
month initial commitment once the criteria set forth in Wis.
Stat. § 51.20(1)(a) are met. See § 51.20(13)(g)1. (limiting the
initial commitment period to not more than six months). As
discussed above, the government must show that the person is
both mentally ill and currently dangerous. § 51.20(1)(a);
D.K.,
390 Wis. 2d 50, ¶27. The government may prove the latter
requirement if it can show, by clear and convincing evidence,
that there is a substantial probability that, based on recent
acts or omissions, the person will cause physical harm to
herself or others in at least one of four ways.
§ 51.20(1)(a)2.a.-d. A fifth standard allows the government to
prove current dangerousness by showing a substantial probability
that, without treatment, an individual who has demonstrated an
"inability to make informed treatment decisions" will "further
decompensat[e]" to the extent that she cannot independently care
for herself, "as demonstrated by both the individual's treatment
history and his or her recent acts or omissions."
§ 51.20(1)(a)2.e.; State v. Dennis H.,
2002 WI 104, ¶¶20-24,
255
Wis. 2d 359,
647 N.W.2d 851.
¶51 After the initial six-month commitment period, the
government may extend the commitment for up to one year at a
time. See § 51.20(13)(g)1. & 3. At each extension hearing, the
government must again demonstrate both mental illness and
5
No. 2018AP1887.rfd
current dangerousness. § 51.20(13)(g)3.; J.W.K., 386
Wis. 2d 672, ¶21. The evidence of current dangerousness must be
"independent[]" of that introduced at the initial commitment
proceeding. J.W.K.,
386 Wis. 2d 672, ¶¶21, 24. Just as in the
initial commitment proceedings, § 51.20(1)(a)2. governs the type
of evidence the government can use to show current
dangerousness.
¶52 But § 51.20(1)(am) provides an "alternative"
evidentiary path. Under that provision, the government may
"satisf[y]" the respective recent-act-or-omission requirements
in each of the five dangerousness standards "by 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.) Thus, by its plain language, § 51.20(1)(am)
permits the government to extend an individual's commitment
based not upon evidence that an individual is dangerous but upon
a prediction that she might become dangerous in one of the ways
defined in § 51.20(1)(a)2.
¶53 That is the route Waupaca County took here. The
circuit court extended K.E.K's commitment under the fifth
standard of dangerousness, § 51.20(1)(a)2.e., by way of the
§ 51.20(1)(am) "alternative," basing its order on the
predictions of two mental health professionals. Those witnesses
forecasted that K.E.K., based on her treatment record, would
become a proper subject for commitment under the fifth standard
if treatment were withdrawn.
6
No. 2018AP1887.rfd
¶54 K.E.K. argues that extending her commitment based on
this "alternative" to evidence of recent acts or omissions
contravenes her Fourteenth Amendment rights in that it allows
the government to extend her commitment without providing any
evidence that she is currently dangerous. In rejecting her
challenge, the majority opinion sidesteps the constitutional
question, instead misinterpreting and improperly relying on
J.W.K. A careful constitutional analysis of § 51.20(1)(am),
however, reveals that it is facially unconstitutional.
II
¶55 The majority opinion errs in its premise that we
"authoritatively determined" in J.W.K. that Wis. Stat.
§ 51.20(1)(am) is constitutional. See majority op., ¶26.
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.
¶56 To the extent that J.W.K. addresses current
dangerousness, its reasoning undercuts the majority's conclusion
rather than supports it. The majority claims that
§ 51.20(1)(am) is constitutional because, per J.W.K., it allows
the government to use "alternative" evidence to show that an
individual "may still be dangerous despite the absence of recent
acts, omissions, or behaviors exhibiting dangerousness."
Id., ¶36 (quoting J.W.K., 386 Wis. 2d 672, ¶24). That is, the
majority opinion accepts as "current" the dangerous behavior
7
No. 2018AP1887.rfd
that led to the individual's initial commitment, based on
conjecture that this same behavior might manifest itself again
if treatment is withdrawn. But J.W.K. rejected that very
argument, explaining that the government may not extend an
individual's commitment by resting solely on the evidence used
to initially commit her. J.W.K., 386 Wis. 2d 672, ¶24 ("It is
not enough that the individual was at one point a proper subject
for commitment."). Simply put, J.W.K. provides no basis for a
constitutional analysis of § 51.20(1)(am); it instead bolsters
K.E.K.'s position that whatever evidence of dangerousness
supported her initial commitment cannot satisfy the
constitutional requirement that the government demonstrate she
is dangerous right now. The majority opinion's mistaken
reliance on and misinterpretation of J.W.K. stunts any actual
constitutional analysis of § 51.20(1)(am).
¶57 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
8
No. 2018AP1887.rfd
present. This phrasing redefines "is dangerous" to mean "might
be dangerous if some future conditions are met."
¶58 The problem with relying on the future conditional
language in § 51.20(1)(am) is compounded by the fact that the
five standards of dangerousness are already predictions about
future behavior. Each standard is based on a "substantial
probability" that harm will occur. What saves the five
standards from being unconstitutional in the initial commitment
context is that each requires evidence of a recent act or
omission that evinces dangerousness. See § 51.20(1)(a)2.
Section 51.20(a)(am) dispenses entirely with that recent-act-or-
omission requirement, allowing it to be "satisfied" with future
speculation, thus layering uncertainty on top of uncertainty
while never proving that an individual is in fact dangerous
right now.
¶59 Section 51.20(1)(am)'s reliance on an individual's
treatment record likewise does not establish proof of current
dangerousness. An individual's treatment record will always
include some past event of dangerous behavior; otherwise the
individual could not have been committed in the first place.
But in the commitment extension context, if the government's
only evidence of dangerousness is that which led to the initial
commitment, then it has no evidence of current dangerousness.
See J.W.K., 386 Wis. 2d 672, ¶24. And without evidence of
current dangerousness, an individual cannot be involuntarily
committed. J.W.K.,
386 Wis. 2d 672, ¶21; Foucha v.
Louisiana,
504 U.S. 71, 77-78 (1992).
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¶60 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.
B
¶61 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." Majority
op., ¶36. More realistic than what is unclear.
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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.
¶62 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." Majority op., ¶36 (quoting State v. W.R.B., 140
Wis. 2d 347, 351,
411 N.W.2d 142 (Ct. App. 1987)). 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.
¶63 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
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No. 2018AP1887.rfd
start the commitment process anew should an individual's
condition significantly deteriorate.
¶64 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. See Bonnett v. Vallier, 136
Wis. 193, 200,
116 N.W. 885 (1908) ("Good intentions in the
passage of a law or a praiseworthy end sought to be attained
thereby cannot save the enactment if it transcends in the
judgment of the court the limitations which the Constitution has
placed upon legislative power."); Kiley v. Chi., Milwaukee & St.
Paul Ry. Co., 138 Wis. 215, 256,
119 N.W. 309 (1909) ("The
Constitution was made to guard the people against the dangers of
good intentions as well as bad intentions and mistakes. The
former may excuse a void enactment, but never justify it.").
Therefore, as concerning as the revolving door phenomenon may
be, it cannot justify depriving individuals of their liberty
without due process.
III
¶65 The government may constitutionally commit someone
against her will only if she is mentally ill and currently
dangerous. By its plain terms, Wis. Stat. § 51.20(1)(am) swaps
the latter requirement for evidence of an individual's past
conduct and uncertain predictions about her potential future
dangerousness. Under no set of facts, however, can past records
or speculative predictions, on their own, demonstrate current
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No. 2018AP1887.rfd
dangerousness. Accordingly, I conclude that § 51.20(1)(am)
facially violates the Fourteenth Amendment to the United States
Constitution.
¶66 I therefore respectfully dissent.
¶67 I am authorized to state that Justice JILL J. KAROFSKY
joins this dissent.
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