Winnebago County v. C.S., 2020 WI 33, reversing a published court of appeals opinion; 4/10/20; case activity
This is a BIG case for Chapter 51 lawyers! In a 4-3 opinion, SCOW held that when a court commits a prison inmate under Chapter 51, it cannot order involuntary medication without finding the inmate dangerous first. The decision changes trial procedure for inmates commitments, but also has implications for the involuntary medication of non-inmates under Chapter 51.
In order to commit a non-inmate, a county must prove that he is mentally, ill a proper subject for treatment under one of the 5 standards of dangerousness listed in §51.20(1)(a)2.a-e. Each standard of dangerousness requires evidence of a “substantial probability of physical harm.”
If these requirements are met, the person still retains his right to exercise informed consent regarding all medication and treatment unless the county further proves either either “that the individual is not competent to refuse medication or treatment or unless a situation exists in which the medication or treatment is necessary to prevent serious physical harm to the individual or others.” Wis. Stat. §51.61(1)(g)3. (Emphasis supplied).
At this point, counties offer evidence that the person is not competent to refuse medication or treatment under Wis. Stat. §51.61(1)(g)4. And 9.9 times out of 10 the trial courts order involuntary medication.
Chapter 51 has a special provision governing the commitment of prison inmates. Section 51.20(1)(ar). The county need not prove that the inmate is dangerous. It only has to prove that he is mentally ill, a proper subject for treatment and in need of treatment. See Winnebago County v. Christopher S., 2016 WI 1, ¶24, 366 Wis. 2d 1, 878 N.W.2d 109 (“C.S. I”). Once a county proves the commitment requirements, it typically requests involuntary medication using the “not competent to refuse” test §51.61(1)(g)4–the same way it does for folks who aren’t in prison.
Before a non-inmate is subject to an involuntary medication order he is found dangerous (by virtue of on of the 5 commitment standards). However, a inmate can be subjected to involuntary medication without a finding of dangerousness.
SCOW holds that this result violates Washington v. Harper, 494 U.S. 210, 227 (1990), which held that to “treat a prisoner with antipsychotic medications against his will, the government must first prove that the inmate has a ‘serious mental illness’ and he ‘is dangerous to himself or others and the treatment is in [his] best medical interest.'”
¶34 Thus, we conclude that Wis. Stat. § 51.61(1)(g)3. is facially unconstitutional for any inmate who is involuntarily committed under Wis. Stat. § 51.20(1)(ar), which does not require a determination of dangerousness, when the inmate is involuntarily medicated based merely on a determination that the inmate is incompetent to refuse medication. Incompetence to refuse, alone, without any determination of dangerousness at any stage in the proceedings, is insufficient grounds for the involuntary medication of an inmate.
Note to legislators: This is the 2nd involuntary medication statute that SCOW has struck down. It also declared §971.14 governing involuntary medication to restore competency for trial unconstitutional last June in State v. Fitzgerald, 2019 WI 69,¶13, 387 Wis. 2d 384, 929 N.W.2d 165. Read more here. It’s time to bring Wisconsin’s involuntary med statutes into compliance with SCOTUS decisions.
Note to bench and bar: Proceed with caution regarding involuntary medication under Chapter 51. SCOW simply held that prisoners cannot be subjected to involuntary medication without a finding of dangerousness. It did not supply the test for dangerousness. At both the probable cause stage and at the final hearing stage a court may order involuntary meds “to prevent serious physical harm to the patient or others.” Wis Stat. §51.61(1)(g)2 and 3. (Emphasis supplied). The level of dangerousness needed to simply commit a non-inmate is lower. When defending against involuntary meds, be sure to hold the county to the stricter standard.
The two dissents (one by RG Bradley and the other by Hagedorn (joined by Roggensack)) are also worth noting. C.S. argued that the statute at issue violated “substantive” due process under the 14th Amendment. Both dissents say there is no such thing as “substantive” due process. Despite a century of SCOTUS precedent using this term, turns out the 14th Amendment only guarantees “procedural” due process. (There’s a saying (and a t-shirt): “stare decisis is for suckers“) Thus, when a person’s “liberty interest” has been infringed, he should assert a violation of the 14th Amendment’s Privileges or Immunities clause. RGB refused to consider C.S.’s claim because he did not allege a P&I violation. Bottom line: four members of the court still recognize a violation of “substantive” due process. The other three prefer to see it cast as a violation of the P&I clause. So you might want to assert both.
Special thanks to Disability Rights Wisconsin and Deborah Machalow and Todd Smith at Godfrey & Kahn for the amicus brief they filed in support of the public defender’s position in this case.
