Reply Brief — K. E. K., Petitioner v. Waupaca County, Wisconsin

No. 21-5034

IN THE

Supreme Court of the United States

K.E.K.,

Petitioner,

v.

WAUPACA COUNTY, WISCONSIN

Respondent.

On Petition for a Writ of Certiorari

to the Court Of Appeals of Wisconsin

REPLY BRIEF FOR PETITIONER

COLLEEN D. BALL

Counsel of Record

WISCONSIN STATE

PUBLIC DEFENDER

735 N. Water Street - Suite 912

Milwaukee, WI 53202-4116

(414) 227-4805

ballc@opd.wi.gov

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................... i

REPLY BRIEF FOR PETITIONER ...................... 1

I.

This Question Presented Is Not Moot......... 1

A.

The question presented will recur

and evade review. .............................. 2

B.

The expired recommitment order

carries collateral consequences. ........ 3

II.

The Constitutional Standard. ..................... 6

III.

Courts Are Divided Over the Question

Presented. ..................................................... 7

IV.

The Wisconsin Supreme Court’s Decision

is Wrong. ..................................................... 11

CONCLUSION ..................................................... 12

TABLE OF AUTHORITIES

CASES

Addington v. Texas,

441 U.S. 418 (1979) ..................................... 5

B.A.A. v. Chief Medical Officer, Univ. of Iowa

Hospitals,

421 N.W.2d 118 (IA 1988) ....................... 7, 8

Foucha v. Louisiana,

504 U.S. 71 (1992) ...............................passim

i

In re Ballay,

482 F.2d 648 (D.C. Cir. 1973) ...................... 5

In re Doe,

78 P.3d 341 (Haw. Ct. App. 2003) ............... 9

In re Hatley,

291 N.C. 693, 231 S.E.2d 633 (1997) .......... 5

In re P.S.,

167 Vt. 63, 702 A.2d 98 (1997) .................. 10

In re R.B.,

2013 WY 15, 294 P.3d 24 (2013) ................. 9

In re T.S.S.,

2015 VT 55,

199 Vt. 157, 121 A.3d 1184 ........................ 10

Jankowski v. Milwaukee County,

104 Wis. 2d 431, 312 N.W.2d 45 (1981) ...... 5

Jones v. United States,

463 U.S. 354 (1983) .............................passim

Lodge v. State,

597 S.W.2d 773 (Tex. Ct. app. 1980) ........... 5

Marathon County v. D.K.,

2020 WI 8,

390 Wis. 2d 50, 937 N.W.2d 901 ................. 4

Matter of L.M.,

2020 WL 1310354 at *3

(Ia. Ct. App. 2020)(unpublished) ................. 8

O’Connor v. Donaldson,

422 U.S. 563 (1975) .............................passim

ii

Portage County v. J.W.K.,

2019 WI 54,

386 Wis. 2d 672, 927 N.W.2d 509 ............... 2

Project Release v. Prevost,

722 F.2d 960 (2d Cir. 1983) ....................... 10

Sibron v. New York,

392 U.S. 40 (1968) ............................ 3, 4, 5, 6

State v. Dennis H.,

2002 WI 104,

255 Wis. 2d 359, 647 N.W.2d 851 ....... 11, 12

State v. Huss,

666 N.W.2d 152 (IA 2003) ....................... 7, 8

Suzuki v. Yuen,

617 F.2d 173 (9th Cir. 1980) ..................... 8, 9

U.S. v. Juvenile Male,

564 U.S. 932 (2011) ...................................... 4

Vitek v. Jones,

445 U.S. 480 (1980) .............................. 3, 5, 9

Washington v. Harper,

494 U.S. 210 (1990) .................................. 2, 3

Weinstein v. Bradford,

423 U.S. 147 (1975) ...................................... 2

CONSTITUTIONAL PROVISIONS

U.S. CONST. amend. II ......................................... 6

U.S. CONST. amend. XIV ............................passim

iii

STATUTES

Iowa Code §229.1(20)(a) ........................................ 8

Iowa Code §229.1(20)(a)-(c) ................................... 8

Iowa Code §229.1(20)(d) ........................................ 8

Wis. Stat. §46.10(2)-(3) .......................................... 5

Wis. Stat. §51.20(1)(a)2.e..................................... 11

Wis. Stat. §51.20(1)(am) ...................... 1, 10, 11, 12

Wis. Stat. §51.20(13)(cv)1m.b ................................ 6

Wis. Stat. §51.20(13)(cv)1 ...................................... 6

Wis. Stat. §51.20(13)(g)(1) ..................................... 2

Wis. Stat. §51.30(3)(a) ........................................... 5

Wis. Stat. §51.30(3)(b), (bm) and (d) ..................... 6

OTHER AUTHORITIES

American Psychiatric Association, What Is

Schizophrenia? available at

https://www.psychiatry.org/ patientsfamilies/schizophrenia/what-isschizophrenia (last visited 10/29/2021) ...... 3

Rachel N. Lipari, et al, State and Substate

Estimates of Serious Mental Illness from

the 2012-2014 National Surveys on Drug

Use and Health available at

https://www.samhsa.gov

/data/sites/default/files/report_3190/Short

Report-3190.html (last visited 11/8/21) ...... 1

iv

REPLY BRIEF FOR PETITIONER

Respondent misstates the question presented.

Everyone agrees that §51.20(1)(am) requires the

government to prove that a mentally ill person is

dangerous before it may continue an involuntary civil

commitment. The issue is whether the 14th Amendment

allows the government to continue a commitment without

evidence of recent conduct indicating that the person is

dangerous. Courts are divided over of this issue.

This question is vitally important to the estimated

9.8 million adults who experience serious mental illness.1

A commitment violates their right to freedom from the

government’s control over where they live, what they do,

and treatment decisions. As this case shows, Wisconsin

allows the government to recommit a patient even when

she takes her medication, wants to continue medication,

and currently poses no danger to herself or others. No

wonder Wisconsin, which has a comparatively low rate of

serious mental illness, also has the highest commitment

rate in the country—almost 5 times the national average

and 190 times Hawaii’s rate.2 The Court should address

this disparity.

I.

This Question Presented Is Not Moot.

Although the challenged recommitment expired

months before the court of appeals decided this case,

Respondent now—for the first time—argues that the

1 Rachel N. Lipari, et al, State and Substate Estimates of

Serious Mental Illness from the 2012-2014 National Surveys on

Drug Use and Health available at https://www.samhsa.gov

/data/sites/default/files/report_3190/ShortReport-3190.html

(last visited 11/8/21).

2

See supra note 1 for rates of serious mental illness and

Pet. 3, note 1 for rates of commitment.

1

question presented is moot. Respondent is wrong.

Wisconsin’s 12-month limit on recommitment orders will

always thwart review of the question presented. A person’s

stipulation to commitment is irrelevant to whether she

may be involuntarily recommitted without evidence of

recent conduct indicating dangerousness. And Petitioner

has a personal stake in obtaining reversal of the challenged

order due to its collateral consequences.

A.

The question presented will recur and evade

review.

In Wisconsin, a recommitment cannot exceed 12

months. Wis. Stat. §51.20(13)(g)(1). The Wisconsin

Supreme Court acknowledges that “a recommitment order

will likely expire before appellate proceedings conclude . .

.” Portage County v. J.W.K., 2019 WI 54, ¶29, 386 Wis. 2d

672, 927 N.W.2d 509. That occurred in this case, yet the

Wisconsin Supreme Court decided the question presented

without mentioning mootness.

This Court will address an otherwise moot issue if it

can recur but evade review. Weinstein v. Bradford, 423 U.S.

147, 148-149 (1975). Weinstein declined to apply this

exception where a defendant challenged a state’s parole

procedures after his release because “there was no

demonstrated probability” that the defendant would again

be on parole. Id. at 149.

A commitment is not parole. The controlling case is

Washington v. Harper, 494 U.S. 210 (1990) where a

prisoner with schizophrenia challenged a policy

authorizing the transfer of inmates to a facility for the

diagnosis and treatment of mental illness, including the

involuntary administration of antipsychotic medication.

The prisoner argued that the policy violated 14th

Amendment substantive due process.

2

During his appeal, the government stopped

medicating him and returned him to prison. This Court

held that the case was not moot even though he sometimes

consented to antipsychotic medication. Id. at 213, 214

(noting consent). He had been treated and committed on

and off for years. There was no evidence that he had

recovered from schizophrenia. Plus, he was still in prison,

so the prison could invoke its policy and subject him to

medication again. Because the alleged injury was likely to

recur, the case was not moot. Id. at 219 (citing Vitek v.

Jones, 445 U.S. 480, 486-487 (1980)).

This case is like Harper. Petitioner was diagnosed

with paranoid schizophrenia. (App.74a). According to the

American Psychiatric Association, schizophrenia has no

cure.3 Respondent’s own expert testified that “[s]he has a

history of being noncompliant with psychotropics.”

(App.78a). In his opinion, when treatment is withdrawn

there is a “substantial likelihood” that she will again

become a proper subject for commitment. (App.76a). Thus,

according to Respondent’s expert, there is a substantial

likelihood that Petitioner could again be committed and

recommitted pursuant to a statute that violates 14th

Amendment substantive due process. Under Harper, this

case is not moot.

B.

The expired recommitment order carries

collateral consequences.

This Court will not dismiss a case as moot where the

challenged decision has collateral consequences that could

be redressed by a favorable decision. Sibron v. New York,

392 U.S. 40, 53. (1968). Sibron involved two criminal

3

American Psychiatric Association, What Is

Schizophrenia? available at https://www.psychiatry.org/

patients-families/schizophrenia/what-is-schizophrenia

(last

visited 10/29/2021).

3

defendants who pursued appeals from their convictions

even though they had completed their six-month sentences.

The government argued that their appeals were moot.

Sibron recognized that most criminal convictions

entail “adverse legal consequences.” Id. at 55 (quoted

source omitted). A conviction may be used to impeach a

defendant’s character in future legal proceedings. It may

be considered at a future sentencing if the defendant is

convicted again. A judge or jury might forgive a limited

number of minor convictions from the distant past. So

Sibron found it impossible to “say at what point the

number of convictions on a man’s record renders his

reputation irredeemable.” Id. at 56.

Sibron also held that the defendant does not bear

the burden of proving collateral consequences. “[A]

criminal case is moot only if it is shown that there is no

possibility that any collateral legal consequences

will be imposed on the basis of the challenged

conviction.” Id. at 57-58. See also U.S. v. Juvenile Male,

564 U.S. 932, 936 (2011)(“When the defendant challenges

his underlying conviction, this court’s cases have long

presumed the existence of collateral consequences”)(citing

Sibron). (Emphasis on “conviction” in original, on

“presumed” supplied).

The Wisconsin Supreme Court, citing Sibron, holds

that an involuntary commitment can have collateral

consequences even after it expires. Marathon County v.

D.K., 2020 WI 8, ¶23, 390 Wis. 2d 50, 937 N.W.2d 901

4

(noting the firearm

commitment).4

ban

resulting

from

a

civil

The challenged recommitment order has potential

collateral consequences for Petitioner. (Pet. 24-27). For

example, when a commitment order is reversed, the

Department of Health Services cannot collect the cost of

care from the committed person or her family. Wis. Stat.

§46.10(2)-(3). See Jankowski v. Milwaukee County, 104

Wis. 2d 431, 440, 312 N.W.2d 45 (1981). Respondent does

not deny this fact.

Like a conviction, an involuntary commitment

causes reputational damage. Adjudications of mental

illness and dangerous are stigmatizing and can have a

“very significant impact on the individual.” Addington v.

Texas, 441 U.S. 418, 426 (1979); Vitek, 445 U.S. at 492

(same). It does not matter whether a person has been

committed multiple times. Family, friends, and a future

judge or jury could view one initial 6-month involuntary

commitment followed by stability differently than a 6month involuntary commitment followed by a 12-month

involuntary recommitment. Respondent fails to refute this

point.

Respondent notes that Wisconsin commitment

proceedings are confidential. Wis. Stat. §51.30(3)(a). (BIO

16). But it completely ignores all the exceptions allowing

corporation counsels, prosecutors, the department of

justice, and the department of corrections to use

4

Numerous federal and state courts, citing Sibron, hold

that an appeal from an expired commitment is not moot due to

its stigma and collateral effects. See e.g. In re Ballay, 482 F.2d

648, 651-652 (D.C. Cir. 1973); Lodge v. State, 597 S.W.2d 773,

776 (Tex. Ct. app. 1980); In re Hatley, 291 N.C. 693, 231 S.E.2d

633, 634-635 (1997).

5

commitment records without the person’s consent. Wis.

Stat. §51.30(3)(b), (bm) and (d).

Finally, a person automatically loses her 2nd

Amendment rights the first time she is committed. Wis.

Stat. §51.20(13)(cv)1. They cannot be restored unless she

petitions the court, which must determine her “record and

reputation”

for

dangerousness.

Wis.

Stat.

§51.20(13)(cv)1m.b. Respondent does not deny that the

court’s determination will be affected by the number of

times the person has been involuntarily committed.

Under Sibron, Petitioner has a legally cognizable

interest in obtaining reversal of the expired recommitment

order due to its collateral consequences.

II.

The Constitutional Standard.

Three cases hold that the 14th Amendment requires

the government to prove continuing dangerousness in

order to extend an involuntary commitment. O’Connor v.

Donaldson, 422 U.S. 563 (1975); Jones v. United States, 463

U.S. 354 (1983); and Foucha v. Louisiana, 504 U.S. 71

(1992).

O’Connor established that the government may not

confine a person for mental illness alone. He must also be

“dangerous.” Even if his initial commitment was based on

mental illness and dangerousness, “it could not

constitutionally continue after that basis no longer

existed.” O’Connor, 422 U.S. at 575. Respondent concedes

this holding. (BIO at 3).

Jones, citing O’Connor, held that a committed

insanity acquittee “is entitled to release when he has

recovered his sanity or is no longer dangerous.” Jones,

463 U.S. at 368. (Emphasis supplied). Respondent

completely ignores Jones.

6

Foucha held that 14th Amendment substantive due

process protects a person’s freedom from bodily restraint.

Foucha, 504 U.S. at 80. Applying O’Connor and Jones,

Foucha held that keeping an insanity acquittee “against

his will in a mental institution is improper absent a

determination in civil commitment proceedings of current

mental illness and dangerousness.” Id. at 79. (Emphasis

supplied). Respondent concedes that Foucha requires

evidence of current dangerousness, but not evidence of

“recent acts.” (BIO at 22).

Respondent counters these holdings with a footnote

to O’Connor, which states: “Of course, even if there is no

foreseeable risk of self-injury or suicide, a person is

literally ‘dangerous to himself’ if for physical or other

reasons he is helpless to avoid the hazards of freedom

either through his own efforts or with the aid of willing

family members or friends.” (BIO 16-17, 20-22)(citing

O’Connor, 422 U.S. at 574 n.9.) This footnote simply

highlights one definition of dangerousness. It does not

authorize the government to declare someone “helpless to

avoid the hazards of freedom” without pointing to any

current or recent conduct indicating that the person is, in

fact, helpless. That would gut O’Connor’s holding.

III.

Courts Are

Presented.

Divided

Over

the

Question

State supreme courts and federal courts of appeal

are split over whether the 14th Amendment requires the

government to show recent acts in order to prove that a

mentally ill person is currently dangerous.

Iowa. Two Iowa Supreme Court cases require

evidence of current dangerous behavior to continue a

commitment: B.A.A. v. Chief Medical Officer, Univ. of Iowa

Hospitals, 421 N.W.2d 118 (IA 1988); State v. Huss, 666

N.W.2d 152 (IA 2003). B.A.A., citing O’Connor and the 14th

7

Amendment, holds that “persons who have been committed

because they were dangerous must be released once that

condition passes.” B.A.A., 421 N.W.2d at 124. Further, the

government cannot constitutionally confine a person solely

to continue treating him. Id. Huss, citing Jones and

Foucha, ruled that “to meet constitutional muster in the

civil commitment context, we have long held that the

threat the patient poses to himself or others be evidenced

by a ‘recent overt act, attempt or threat.’” Id. at 161.

(Emphasis supplied).

Respondent ignores B.A.A. and then contends that

Huss does not reflect Iowa’s current law because in 2018

the legislature added a fourth standard of dangerousness,

which does not require recent acts. (BIO 19)(citing Iowa

Code §229.1(20)(d). Iowa’s first three standards of

dangerousness do not specify “recent” acts either. See Iowa

Code §229.1(20)(a)-(c)). Yet in 2020, the court of appeals,

citing B.A.A., held that under §229.1(20)(a) the

government must still prove “a recent overt act, attempt,

or threat.” See Matter of L.M., 2020 WL 1310354 at *3 (Ia.

Ct. App. 2020)(unpublished). B.A.A. and Huss have never

been overturned. Whatever the legislature enacts, they

remain the Iowa Supreme Court’s view on what the 14th

Amendment requires.

9th Circuit. The 9th Circuit Court of Appeals holds

that it is unconstitutional to commit a person who does not

poses an imminent danger as evidenced by a recent overt

act, attempt or threat. Suzuki v. Yuen, 617 F.2d 173, 178

(9th Cir. 1980). Suzuki has never been overturned.

Respondent ignores this point.

Hawaii. Respondent notes that after Suzuki,

Hawaii added two new dangerousness standards—

“gravely disabled” and “obviously ill”—which do not specify

proof of recent or imminent dangerousness. (BIO 20)(citing

8

In re Doe, 78 P.3d 341 (Haw. Ct. App. 2003)). Doe

exhaustively reviewed O’Connor, Jones, Foucha and the

Suzuki decisions. But it also observed that “due to

constitutional concerns,” the government declined to seek

Doe’s commitment based on those standards. Doe, 78 P.3d

at 368. It therefore reversed Doe’s successive commitments

due to insufficient evidence of her imminent

dangerousness. Id. at 343.

Wyoming. Citing Jones and Vitek, the Wyoming

Supreme Court reviewed the constitutional limits on

commitments in In re R.B., 2013 WY 15, 294 P.3d 24

(2013). R.B. stated:

[T]here is no legal basis for continuing

involuntary hospitalization based on a possibility

that a patient who is not currently mentally ill

as that term is defined by statute will in the

future become ill again based on his past

behavior. If further episodes occur, the patient’s

liberty may be restrained through involuntary

hospitalization only upon proof of mental illness

by clear and convincing evidence, not on the basis

of speculation.

Id., ¶37. (Emphasis supplied). Wyoming defines “mental

illness” as a disorder that causes a person to be dangerous

to self or others. Id., ¶21

The paragraph above is not dicta. (BIO 18). It is the

court’s rationale for why county attorneys do not have

standing to object to a patient’s discharge. Unlike medical

professionals at the patient’s treating institution, county

attorneys are not qualified to assess the patient’s current

“mental illness” and suitability for discharge. Id., ¶43.

Vermont. Vermont authorizes a nonhospitalized

commitment for persons or patients who, without

treatment, will deteriorate and again become “a person in

9

need of treatment.” The Vermont Supreme Court held that

the government need not show an “overt” act in order to

prove that without treatment, a patient will again become

a “person in need of treatment.” In re P.S., 167 Vt. 63, 702

A.2d 98, 105 (1997).

More recently, it clarified that the commitment

court cannot simply find that the patient will become a

“person in need of treatment” at some point in the future.

That would “present serious constitutional concerns.” In re

T.S.S., 2015 VT 55, ¶26, 199 Vt. 157, 121 A.3d 1184. The

court must find that this deterioration will occur “in the

near future.” Id., ¶¶29-31. It must consider the person’s

pattern of deteriorating without treatment and returning

to “person in need of treatment” status. It must also

consider the “recency” of that pattern.” Id. ¶32. T.S.S.

reversed a continued commitment because the government

did not show a recent pattern of the patient deteriorating

and becoming dangerous without treatment. Id. ¶31.

2nd Circuit. In stark contrast to the cases above, the

Second Circuit Court of Appeals holds that the 14th

Amendment does not require the government to show a

recent overt act of dangerousness in order to commit a

mentally ill person. Project Release v. Prevost, 722 F.2d

960, 973 (2d Cir. 1983).

Wisconsin. The Wisconsin Supreme Court adopts

an even more extreme position. Like Vermont’s statute,

§51.20(1)(am) allows the government to commit a person

based on a prediction that, without treatment, she will

become a proper subject for commitment. It requires the

court to consider her “treatment history” but not her recent

treatment history. It explicitly eliminates the proof of

recent conduct required for an initial commitment. Then,

without evidence of recent conduct, it allows the

government to continue a commitment because—at some

10

unspecified point in the future—the person could stop

treatment and become dangerous.

The Wisconsin Supreme Court holds that

§51.20(1)(am) satisfies 14th Amendment substantive due

process because, while Foucha requires proof of current

mental illness and dangerousness, it does not require proof

of recent acts or omissions indicating that a person is

demonstrably dangerousness. (App.16a-17a).

IV.

The Wisconsin Supreme Court’s Decision is

Wrong.

The Wisconsin Supreme Court has redefined the

term “current dangerousness.” It holds that the 14th

Amendment allows the government to continue a

commitment of a mentally ill person without evidence that

she is now, or was recently, behaving dangerously. This

holding conflicts with O’Connor’s holding that a

commitment cannot continue after the initial basis for it no

longer exists. O’Connor, 422 U.S. at 575. It conflicts with

Jones’ holding that a committed person “is entitled to

release when he has recovered his sanity or is no longer

dangerous.” Jones, 463 U.S. at 368. It conflicts with

Foucha’s holding that an insanity acquittee is entitled to

release unless there is evidence of “current mental illness

and dangerousness.” Foucha, 504 U.S. at 79.

Respondent

analogizes

§51.20(1)(am)

to

th

§51.20(1)(a)2.e., the 5 standard of dangerousness, which

the Wisconsin Supreme Court upheld in State v. Dennis

H., 2002 WI 104, ¶37, 255 Wis. 2d 359, 647 N.W.2d 851.

(BIO 17-17). The 5th standard allows the government to

commit a mentally ill person before he becomes dangerous

to himself or others, but it requires evidence of “both the

individual’s treatment history and his recent acts or

omissions.” Wis. Stat. §51.20(1)(a)2.e. (Emphasis

supplied). Dennis H. twice noted this fact when it held that

11

the 5th standard satisfies O’Connor. Dennis H., ¶¶39, 41. In

contrast, §51.20(1)(am) authorizes a commitment without

evidence of any recent conduct. Respondent ignores the

critical distinction between these commitment standards.

To be clear, Petitioner does not ask this Court to

define dangerousness. A state may adopt one or multiple

standards of dangerousness. Petitioner contends that the

government cannot, consistent with the 14th Amendment,

continue a commitment without evidence of recent conduct

indicating that a mentally ill person “is dangerous” under

whatever standard a state has adopted.

Section 51.20(1)(am) allows the government to

recommit mentally ill people every 12 months even when

they are complying with treatment, maintaining

appropriate behavior, and planning to continue

treatment—simply based on speculation that they will one

day stop treatment and then become dangerous. The

statute blatantly violates the 14th Amendment, O’Connor,

Jones, and Foucha.

CONCLUSION

For the forgoing reasons, the Court should grant this

petition for writ of certiorari.

Dated this 9th day of November, 2021.

COLLEEN D. BALL

Assistant State Public Defender

Counsel of Record

Office of the State Public Defender

735 N. Water Street - Suite 912

Milwaukee, WI 53202-4116

(414) 227-4805

ballc@opd.wi.gov

12