State v. Field

SHIRLEY S. ABRAHAMSON, J.

(concurring). The state, the defendant, and the court of appeals, on certification, framed the issue presented by this case as follows : Did the trial court err when it did not hear testimony at the third phase of the trial and relied on evidence presented in the first two phases of the trial to declare the defendant mentally ill and dangerous and to commit him.

The majority decides this issue in footnote 5, page 285, of the opinion, apparently as an aside, as dictum, but couched in the linguistic trappings of a holding. As I see it, the majority opinion probably sets forth this holding to preclude the defendant from claiming denial of due process on the ground that the majority has applied a new rule of law to his case retroactively *290 and to his possible detriment. I view footnote 5 as the proper holding of the court and concur in it.

The majority, however, reframes the issue for review. It says the issue is whether the court should reverse its holding in State ex rel. Kovach v. Schubert, 64 Wis. 2d 612 , 219 N.W.2d 341 (1974), and declare that sec. 971.17(1), Stats. 1981-82, previously declared unconstitutional, is now constitutional.

The majority then decides to reverse Kovach and to apply the reversal of Kovach retroactively to this case. Supra, p. 285. The state asked the court for a prospective ruling as to sec. 971.17 (1) and the validity of Kovach, not a retroactive ruling applicable to this case tried under Kovach. The state in its supplemental brief and at oral argument carefully explained that, in the interest of fairness, this case should be decided on the basis of the rules applicable under Kovach. Unwilling to follow the state’s suggestion that it render a wholly prospective ruling, the majority concludes that Kovach is retroactively overruled.

I cannot join the majority in its retroactive application of the reversal of Kovach. I agree with the state’s position that in fairness to this defendant — and in fairness to any other defendants who have been tried under the Kovach decision and who may appeal their cases— a reversal of the Kovach decision must be a wholly prospective ruling. In light of footnote 5 and the fairness, due process question, a trial or appellate court would be wise to decide an issue in a case tried in accordance with Kovach both as if Kovach applied and as if Kovach did not apply.

The only reason I can see for the majority’s decision not to follow the state’s suggestion that the court render a wholy prospective ruling is that the majority may be concerned that a wholly prospective ruling is in effect an advisory ruling for future cases and might *291 be construed as dictum and nonbinding. If that is the majority’s concern, it need not be. This court has in other cases ruled on the constitutionality of a statute for future application even though the ruling was not necessary to the decision of the case before the court. See, e.g., Sigma Tau Gamma Fraternity House v. Menomonie, 93 Wis. 2d 392, 409 , 288 N.W.2d 85 (1980). Indeed the Kovach decision itself was totally prospective. Kovach, supra, 64 Wis. 2d at 624 . Furthermore this court has said that a statement in an opinion germane to, but not decisive of, the controversy, is not dictum but will be recognized as a binding decision. State v. Kruse, 101 Wis. 2d 387, 392 , 305 N.W.2d 85 (1981).

Whether this court will follow the teachings of a case in a subsequent case apparently depends not on whether the teachings are labeled dictum or holding or of retroactive or prospective effect but on whether the majority of the court finds the earlier teachings of continuing persuasiveness and validity. Compare May v. Skelley Oil Co., 83 Wis. 2d 30, 38 , 264 N.W.2d 574 (1978) (a prospective ruling) and Reiter v. Dyken, 95 Wis. 2d 461, 474 , 290 N.W.2d 510 (1980) (prospective ruling in May labeled dictum and viewed as not binding) with J.M.S. v. Benson, 98 Wis. 2d 406 , 297 N.W.2d 18 (1980) (holding) and In re R.W.L., 116 Wis. 2d 150 , 341 N.W.2d 682 (1984) (overruling holding of J.M.S.). 1

*292 Furthermore, I cannot join the majority as it reaches out in this case to decide the Kovach constitutional question. First, the generally accepted rule is that a court should not anticipate a question of constitutional law before it becomes necessary to decide it. 2 More important in this case, the court is deciding an issue of constitutionality without the benefit of adversarial briefs or adversarial oral argument.

Both the state and the defendant assumed that the defendant woud not be affected personally by any advisory decision this court might make relating to the reversal of Kovach. Accordingly the defendant understandably concluded that he did not have an adversary interest in the Kovach issue and thus did not seriously or extensively deal with the question of reversing Kovach. The defendant asserted in his supplemental brief (and made similar comments at oral argument) that he “should not be required to respond to the State’s arguments on behalf of other litigants who under other circumstances may have an actual controversy with the State and be in a position to more fully explicate their arguments in support of their contentions that their constitutional rights will be violated.” (Defendant’s Supplemental Brief, p. 4.)

The state raised the issue of reversing Kovach and eliminating the third phase of the trial for the first time in this court and in a supplemental brief. The state has not been tardy; it relies on Jones v. United States, -U.S.-, 103 S. Ct. 3043 (1983), which was decided after the certification of this case. But this court does not have the benefit of counsels’ having considered, argued, and refined the constitutional issues in the trial *293 court and in the court of appeals and this court does not have the benefit of a trial court or court of appeals decision discussing the theoretical and practical implications of the reversal of Kovach.

This case is the third case in 15 years in which the court has considered the constitutionality of automatic commitment following an insanity acquittal. In each of the three cases, the court announces a new rule, yet always bases its decision on its interpretation of decisions of the United States Supreme Court which are not directly on point.

In the first case, State ex rel. Schopf v. Schubert, 45 Wis. 2d 644 , 173 N.W.2d 673 (1970), a 4-3 decision, the court held that automatic commitment upon an insanity acquittal is constitutional. In the second case, State ex rel. Kovach v. Schubert, 64 Wis. 2d 612 , 219 N.W.2d 341 (1974), another 4-3 decision, the court held that automatic commitment upon an insanity acquittal is unconstitutional. Now relying on Jones v. United States, 103 S. Ct. 3043 (1983), the court holds that automatic commitment upon an insanity acquittal is constitutional.

The Jones case does not directly deal with the question of automatic commitment upon an insanity acquittal. The issue in Jones is not whether the Federal Constitution prohibits automatic commitment following an insanity acquittal but rather, in the Court’s own statement of the issue, whether an acquittee “who was committed to a mental hospital upon being acquitted of a criminal offense by reason of insanity, must be released because he has been hospitalized for a period longer than he might have served in prison had he been convicted.” Jones, supra, 103 S. Ct. at-.

I recognize that language in Jones implies that automatic commitment following an insanity acquittal is constitutional. Nevertheless, I think the majority errs *294 in slavishly applying this language to Kovach when this issue was not squarely before the Jones court and when the issue was not fully argued before this court.

More important, the majority errs when it abandons the third phase procedure, whether required by the federal constitution or not, without fully analyzing the impact of its decision on the administration of the criminal justice system in this state. In deciding whether to reverse Kovach, the majority should determine the approach this court should take at this time, assuming the Kovach third phase hearing may not be constitutionally required. As a matter of sound administration of the criminal justice system, would this court be wiser to retain or to eliminate — at least for the immediate future —the commitment hearing as the third phase of the trial ?

One might say that the elimination of the Kovach third phase hearing merely reinstates the legislative intent of automatic commitment, and that the legislature, not the court, should consider the sound administration of the criminal justice system. I do not find this reasoning persuasive. The legislature has left significant questions unanswered in sec. 971.17(1) and (2). As a result, the court will have to fill these gaps in the statute considering both the constitutional requirements and the sound administration of the criminal justice system.

A strong argument can be made for retaining the commitment hearing as part of the trial, at least until the legislature acts or a case arises in which the issue is contested. As Justice Robert Hansen explained in his dissent in Kovach, even if automatic commitment upon an insanity acquittal is not unconstitutional, requiring the commitment hearing to be a third phase of the trial is a “proper and prudent procedural requirement.” Kovach, supra, 64 Wis. 2d at 638 . The third phase trial hearing arguably takes less time and money *295 than a separate hearing and does not harm the state, the defendant, or the public. The medical witnesses have had the opportunity to examine and observe the defendant from the plea to the time of trial — generally a substantial period of time. They need not make another examination for purposes of the commitment hearing. The medical witnesses have testified in phase two and, as in this case, additional testimony may not be necessary. If the medical witnesses have to testify at the third phase, they are generally available and prepared since they have just testified in phase two. There is no showing that conducting an examination shortly after trial, when the defendant may be in an institution in another part of the state, offers an advantage to the state, the defendant, or the medical witnesses.

Aside from the benefits of retaining the Kovach procedure, the reversal of Kovach raises several questions, as the state’s brief points out, none of which the majority addresses. I recognize that a court should answer only the questions raised in the case and that the court cannot provide answers to all the questions that may arise in the future, but since the court is giving what on close analysis is in effect a prospective advisory opinion reversing Kovach, it should go ahead and advise on the obvious issues that must be answered if a trial court is to conduct a post-trial hearing: (1) When should the hearing be held after automatic commitment upon a verdict of not guilty by reason of mental disease or defect; (2) What issues must be determined at that first hearing, what level of proof is required, and who has the burden of proof; and (3) Does this hearing pass constitutional muster?

The majority apparently contemplates that an insanity acquittal at the second phase of the trial will be followed by automatic commitment, pursuant to sec. *296 971.17(1), Stats. 1981-82, and subsequent examination, pursuant to sec. 971.17(2), according' to the timetable established in sec. 51.20(16) of the Mental Health Act.

But when must the first post-trial hearing be held under this procedure? The schedules set forth in sec. 51.20(16) (c) base the date of the post-trial hearing on the date of the previous commitment hearing. 3 Does the finding at the second phase of the trial that the acquittee is not responsible by reason of mental disease or defect constitute a prior commitment hearing for the purpose of sec. 51.20 (16) (c) ? If so, then no hearing may be held within the first 30 days of the second phase of the trial. The court may hold a hearing after 30 days but within 120 days of the second phase of the trial. After 120 days of the second phase of the trial the court must hold a hearing within 30 days of the filing of a petition for reexamination. Thus, if the second phase of the trial constitutes a prior hearing for purposes of sec. 51.20(16) (c), an insanity acquittee may have no right to a hearing until 150 days after the second phase of the trial has concluded. By then many months may have passed since the crime, when, according to the jury, the defendant was suffering from a mental disease or defect.

Alternatively, the second phase of the trial may not be construed as a prior commitment hearing for pur *297 poses of sec. 51.20(16) (c). This interpretation may be stretching the statutory language because sec. 971.17 (2) refers to a “reexamination,” which by definition requires a prior examination. Nevertheless, if the second phase of the trial does not constitute a prior hearing for purposes of sec. 51.20(16) (c), the acquittee could presumably file a petition for reexamination immediately upon being committed, and would be entitled to a hearing within 30 days, because no other hearing as to commitment would have been held within 120 days of filing the petition.

I emphasize the timing of the first post-trial hearing because to the extent that Jones may be read to permit automatic commitment following an insanity acquittal it must also be read to require — under the Federal Constitution — that “every acquittee has [a] prompt opportunity to obtain release if he has recovered.” 103 S Ct at 3050 . The Jones Court did not decide whether the 50-day period applicable in the District of Columbia is constitutionally acceptable. See 103 S. Ct. at 3049 , n. li. . Nor has this court decided whether the interval prior to a first post-trial hearing under our laws, which may be as long as 120-150 days, is constitutional. See supra at 281.

In addition to the problem of how soon the first post-trial hearing must be held, eliminating the third phase of the trial also raises the following questions:

Is the issue at the initial post-trial hearing whether the acquittee is presently both mentally ill and in need of institutionalized treatment, as Kovach required at the third phase (see Wis. J. I. Cr. no. 607), or whether the acquittee is dangerous, as required at reexamination hearings under Gebarski? State v. Gebarski, 90 Wis. 2d 754 , 280 N.W.2d 672 (1979).

Who has the burden of proof — the state or the ac-quittee?

*298 What is the level of proof required? Beyond a reasonable doubt? Clear, satisfactory and convincing? A preponderance of evidence?

These constitutional and procedural questions have been raised but not fully addressed by the state’s briefs in this case. Since the majority is giving what on close analysis is in effect a prospective, advisory opinion eliminating the third-phase Kovach hearing, it should give advice as to the obvious constitutional and procedural issues that will result. Those issues are not dependent on the facts of a particular case. The majority should request the state to submit supplemental briefs and should request amicus briefs from interested persons addressing these issues. I believe that it would be sounder judicial policy to decide these issues now than force trial courts, state’s attorneys, defense counsel, and defendants to proceed without direction.

I prefer, in this case, to view the first post-acquittal hearing pragmatically. Because the majority’s approach leaves too many unsolved problems, I conclude that the court ought not at this time eliminate the Kovach third phase hearing and introduce a new hearing without giving lawyers and courts any guidance as to how to proceed in this new hearing. I would prefer that in this case the court alert the lawyers, courts, and the legislature that the Kovach third phase commitment procedure, although constitutional, may no longer be required as a matter of federal constitutional law. I think it likely that in the near future an appropriate case will present a reasoned analysis for retaining or eliminating the Kovach third phase hearing and will present the issues the state has raised relating to the procedures to be followed in the first post-trial hearing after an insanity acquittal. The court can then decide these issues. It is also likely that the legislature may revise sec. 971.17 (1) and (2) and may set forth the requirements for the *299 first post-trial hearing or that it may adopt a proposal of the Judicial Council, or some other source, which would substantially alter the insanity defense. In the interim, we can proceed with the Kovach hearing which is constitutional and appears to be working fairly well, although it too presents questions.

“An appellate court has always been recognized as having the right to overrule — surely this would encompass the right to overrule prospectively when, after due consideration, it is the court’s findings that there are just and compelling reasons for doing so.” Dupuis v. General Casualty Co., 36 Wis. 2d 48, 47 , 152 N.W.2d 884 (1967).

For a discussion of the question of prospectivity and retro-activity, see, e.g., Schaefer, Prospective Rulings: Two Perspectives, 1982 Sup. Ct. Rev. 1 ; Beytagh, Ten Years of NonrRetro-activity: A Critique and a Proposal, 61 Va. L. Rev. 1557 (1975); *292 Kamisar, Gates, “Probable Cause,” “Good Faith” and Beyond, 69 Iowa L. Rev. 551 , 601-694 (1984).

See, e.g., State v. State Fair Park, Inc., 21 Wis. 2d 451, 458 , 124 N.W.2d 612 (1968).

Sec. 61.20(16) (c) reads as follows:

“(c) If a 'hearing has been held with respect to the subject individual’s commitment within 30 days of the filing of a petition under this subsection, no hearing shall be held. If such a hearing has not been held within 30 days of the filing of a petition, but has been held within 120 days of the filing, the court shall within 24 hours of the filing order an examination to be completed within 7 days by the appropriate board under s. 61.42 or 61.437. A hearing may then 'be held in the court’s discretion. If such a hearing has not been held within 120 days of the filing, a hearing shall be held on the petition within 30 days of receipt.”