Waupaca v. K.E.K., 2018Ap1887, District 4, 9/26/19 (not recommended for publication), petition for review granted 7/24/20, affirmed, 2021 WI 9; case activity
This opinion infuses uncertainty, if not confusion, into the law governing circuit court competency to decide a Chapter 51 recommitment case and the substantive legal standard that courts are to apply at the recommitment stage.
Circuit court competency. Section §51.20(13(g)2r provides that 21 days before the expiration of a commitment, the county “shall” file an evaluation of the individual and a recommendation regarding recommitment. The county’s failure “does not affect the jurisdiction of the court over a petition for recommitment.” Id. (Emphasis supplied). This provision makes sense. The person needs notice in order to defend against the county’s effort to recommit her.
Waupaca County conceded that it violated this deadline. Thus, citing the plain language of the statute and substantial case law holding that Chapter 51 deadlines deprive a circuit court of competency to decide a commitment case, K.E.K. argued that the circuit court should have dismissed her recommitment proceeding. See e.g. Milwaukee County v. Louise M., 205 Wis. 2d 162, 171, 555 N.W.2d 807 and Dodge County v. Ryan E.M., 2002 WI App 71, ¶12, 252 Wis. 2d 490, 642 N.W.2d 592.
The court of appeals held that K.E.K.’s reading of §51.20(13(g)2r’s plain language was unreasonable. No circuit court is without subject matter jurisdiction. So when the legislature wrote that a violation of the 21-day requirement “‘does not affect the jurisdiction of the court,’ it could not mean to address whether the circuit court does or does not have jurisdiction.'” Opinion ¶14. (Emphasis supplied). Instead, what the legislature must have meant was that violation of the 21-day deadline affects the court’s “competency to exercise jurisdiction.” Opinion ¶¶15, 17. (Emphasis supplied).
The court of appeals has inserted three little words–“competency to exercise”–into the recommitment statute to make it consistent with City of Eau Claire v. Booth Britton, 2016 WI 65, 386 Wis. 2d 672, 927 N.W.2d 508. This insertion conflicts with basic rules of statutory interpretation. See e.g.State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 (“the court is not at liberty to disregard the plain, clear words of the statute.”) Also, Booth Britton held that in case law “competency” refers to “competency to exercise jurisdiction.” It did not say that when the legislature uses the word “jurisdiction” it actually means “competency to exercise jurisdiction.” That would erase the line between the two concepts. More importantly, consider the ramifications of the court of appeals’ holding that Waupaca County’s violation of the 21-day deadline did not affect the circuit court’s competency to exercise jurisdiction: this published decision says §51.20(13(g)2r’s filing deadline is now optional.
Void for vagueness challenge. K.E.K. argued that Wisconsin’s recommitment standard is void for vagueness on its face and as applied in her case. A statute is void for vagueness when it fails to give notice to those wishing to obey the law that their conduct falls within a prescribed area or when it fails to provide enforcers of the law with objective standards to apply. See e.g. State v. Curiel, 227 Wis. 2d 389, 414-415, 597 N.W.2d 697 (1999). Section 51.20(1)(am) provides that a county may recommit a person for 12 months by showing a “substantial likelihood based on the subject individual’s treatment record, that the individual would be a proper subject for commitment if treatment were withdrawn.” Wis. Stat. §51.50(1)(am).
K.E.K. asked what this phrase means. What evidence can she or any committed person offer to avoid a recommitment? Do they have to prove that they are cured? How could they prove that if they are perpetually under involuntary commitment and treatment? K.E.K also pointed out that in her case, the circuit court, the examiner, and the county, each interpreted this phrase differently. Also, she had been medication compliant during her initial commitment, and she promised to continue taking medication so long as she was not forced to take one that had caused her horrible side effects.
Relying heavily on Portage County v. J.W.K., 2019 WI 54, 386 Wis. 2d 672, the court of appeals says that “it is clear” that §51.20(am) “means that a recommitment requires a finding” that if treatment were withdrawn “the individual would be dangerous under at least one of the five alternative dangerousness standards in the initial commitment test.” Opinion ¶25.
J.W.K. was not nearly so explicit. Nor did it describe what evidence a person hoping to satisfy §51.20(1)(am) could offer to avoid endless recommitments. Neither does the court of appeals. It suggests the answer is “nothing.” Once a person is committed, perpetual recommitments may be inevitable due to mental illness alone:
The issue is not whether K.E.K. is able to avoid recommitment. Circumstances outside her control, including mental illness, may make it impossible for her to avoid recommitment. The issue is whether someone of normal intelligence would understand the circumstances under which an individual is subject to recommitment under Wis. Stat. §51.20(1)(am), when read together with Wis. Stat. §51.20(1)(a). Opinion, ¶42. (Emphasis supplied).
Does the court of appeals mean to suggest persons having a mental illness are not “of normal intelligence?”
Substantive due process challenges. K.E.K. also argued that §51.20(1)(am) violates substantive due process on its face and as applied to her case. (She was originally committed under the 5th standard). The court of appeals held that Wisconsin’s recommitment standard satisfies the “current dangerousness” requirement of the seminal SCOTUS case on this point–O’Connor v. Donaldson, 422 U.S. 563 (1975)–for reasons similar to the analysis in J.W.K. Opinion, ¶¶33-39.
J.W.K. does not discuss or cite O’Connor. Like the 5th standard, Wisconsin’s recommitment standard authorizes a preemptive commitment of a person who could become dangerous if not treated. SCOW held that the 5th standard satisfied O’Connor‘s dangerousness requirement only in so far as it required (1) proof of recent acts or omissions by the person to be committed and (2) proof of the person’s treatment history. State v. Dennis H., 2002 WI 104, ¶41, 255 Wis. 2d 359, 647 N.W.2d 851. K.E.K. argued that the recommitment standard eliminates the “proof of recent acts or omissions” requirement and thus violates O’Connor and substantive due process.
The court of appeals’ opinion does not acknowledge or decide the substantive due process challenge that K.E.K. briefed. It thus remains unresolved.
The court of appeals, on its own motion, converted this appeal to a 3-judge panel, which was necessary for it to publish its opinion. Thus, this post originally stated–incorrectly–that the court of appeals’ opinion was recommended for publication. It isn’t.
The recommitment “substantial likelihood” standard shifts the burden of proof from the County to the respondent by forcing the respondent to prove a theoretical negative–that he or she would not be a proper subject for treatment if treatment were withdrawn. The court’s novel “normal intelligence” standard is … interesting. But not the law, as I read it. This will be a good case for SCOW to take up.