Winnebago County v. Christopher S.

2016 WI 1

SUPREME 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 1

NOTICE

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