                                                                  2013 WI 92

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2012AP958
COMPLETE TITLE:        In the matter of the mental commitment of Mary
                       F.-R.:

                       Milwaukee County,
                                 Petitioner-Respondent,
                            v.
                       Mary F.-R.,
                                 Respondent-Appellant-Petitioner.


                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                           Reported at 345 Wis. 2d 63, 823 N.W.2d 841
                                  (Ct. App. 2012 – Unpublished)

OPINION FILED:         November 26, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 3, 2013

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              Victor Manian

JUSTICES:
   CONCURRED:          ABRAHAMSON, C.J., concurs. (Opinion filed.)
                       ZIEGLER, ROGGENSACK, GABLEMAN, JJJ., concur.
                       (Opinion filed.)
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:
       For the respondent-appellant-petitioner, there were briefs
by Hannah B. Schieber, assistant state public defender, and oral
argument by Hannah B. Schieber.




       For      the    petitioner-respondent,   there   was   a   brief   by
Kimberly R. Walker, Milwaukee County corporation counsel, and
Colleen A. Foley, principal assistant corporation counsel, and
oral argument by Colleen A. Foley.
                                                                               2013 WI 92
                                                                       NOTICE
                                                        This opinion is subject to further
                                                        editing and modification.   The final
                                                        version will appear in the bound
                                                        volume of the official reports.
No.     2012AP958
(L.C. No.     2011ME4847)

STATE OF WISCONSIN                                :               IN SUPREME COURT

In the matter of the mental commitment of Mary
F.-R.:



Milwaukee County,                                                           FILED
              Petitioner-Respondent,
                                                                       NOV 26, 2013
        v.
                                                                          Diane M. Fremgen
                                                                       Clerk of Supreme Court
Mary F.-R.,

              Respondent-Appellant-Petitioner.




        REVIEW of a decision of the Court of Appeals.                     Affirmed.
        ¶1    N.     PATRICK    CROOKS,     J.    This       is    a    review      of     an
unpublished court of appeals decision1 that affirmed the circuit
court's      order     to   involuntarily    commit       Mary     F.-R.     under       Wis.
Stat.        § 51.20        (2011-12).2          This       case        concerns         the


        1
       Milwaukee Cnty. v. Mary F.-R., No. 2012AP958, unpublished
slip. op. (Wis. Ct. App. Oct. 2, 2012).
        2
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
                                                                                        No. 2012AP958



constitutionality          of     the      jury       trial       provisions         available    to
individuals         subject      to     involuntary              commitment      for    treatment
under        Chapter      51.         Under       Wis.           Stat.    § 51.20(11),          such
individuals may request a six-person jury for their involuntary
commitment       hearing        and   at    least       a    5/6     jury      determination      is
required.           The   specific         question         we    address       is    whether    the
constitutional guarantee of equal protection is violated when
only a six-person jury with a 5/6 determination is available to
those subject to involuntary commitment under Chapter 51 when
compared to the 12-person jury and a requirement of unanimity
for     individuals         subject         to        involuntary             civil    commitment
proceedings as sexually violent persons under Chapter 980.                                        We

also    are     presented        with      the    question         of    whether       Mary   F.-R.
forfeited her equal protection challenge by failing to make a
contemporaneous           objection         at        the     time       the     circuit      court
empaneled the six-person jury at her commitment hearing.
        ¶2     On    December         8,    2011,       a     jury       of    six    found     that
Milwaukee County met its burden to involuntarily commit Mary F.-
R. for treatment for mental illness under Wis. Stat. § 51.20.
The following day, the circuit court entered an order, which
committed Mary F.-R. for a period no longer than six months.
Mary F.-R. appeals that order, arguing that the six-person non-
unanimous jury available to her under Wis. Stat. § 51.20(11)
violates equal protection.                  In addition, Mary F.-R. argues that
she did not forfeit her equal protection argument, even though
she failed to raise a contemporaneous objection because she had
already made multiple requests for a 12-person jury.

                                                  2
                                                                                     No. 2012AP958



     ¶3        To reach Mary F.-R.'s equal protection challenge, we
assume, without deciding, that she did not forfeit her right to
challenge Wis. Stat. § 51.20(11).                       We hold that the differences
in the jury provisions for initial commitment hearings under
§ 51.20(11)         and    Chapter     980        do     not        violate    Mary     F.-R.'s
constitutional right to equal protection under the Fourteenth
Amendment      or     under   Article        I,        Section       1    of   the    Wisconsin
Constitution.         The legislature chose to allow for differing jury
protections for initial commitments under § 51.20 and Chapter
980 and these choices, reflected in the legislative enactments
in question, are presumed constitutional.3                               Mary F.-R. has not
overcome       this       presumption        and        has     not       demonstrated       the

unconstitutionality           of     § 51.20           beyond       a    reasonable      doubt.
Furthermore,        considering       that    Mary        F.-R's         specific     challenge
relates to jury provisions, we find that rational basis review
is appropriate.4            We hold that the different purposes of the
provisions in question, the varied legislative schemes, and the
range of liberty restrictions imposed on individuals subject to
commitment under Wis. Stat. § 51.20, when compared to Chapter
980, provide a rational basis for the legislative decision to
provide    a    unanimous      12-person          jury        for    initial     Chapter     980
commitments and a six-person jury with a 5/6 verdict for initial



     3
       State v. McGuire, 2010 WI 91, ¶25, 328 Wis. 2d 289, 786
N.W.2d 227.
     4
       See ¶¶35-38, for our discussion of rational basis review,
the appropriate level of judicial scrutiny in this case.

                                              3
                                                                     No. 2012AP958



commitments under § 51.20(11).           Accordingly, we affirm the court
of appeals.
                                   I. Background
        ¶4      The facts underlying Mary F.-R.'s initial commitment
are not in dispute.           Police officers responded to Mary F.-R.'s
apartment complex to address a call from a concerned neighbor.
After        investigating   further,   officers   placed     Mary    F.-R.    in
emergency detention.           Following this detention, the treatment
director of the Milwaukee County Mental Health division or his
designee5       filed   a    supplemental    statement   to   the     emergency
detention.6
        ¶5      After an individual is detained under            §§ 51.15 or
51.20, a court must hold a hearing to determine "whether there
is probable cause to believe the allegations" set forth in the

petition for commitment.          Wis. Stat. § 51.20(7)(a).         On November
30, 2011, the Milwaukee County Circuit Court, Court Commissioner
Lindsey Grady presiding, held a hearing to determine whether
Milwaukee County had probable cause to detain Mary F.-R.                 On the

same day, Mary F.-R. filed a handwritten request for a 12-person




        5
       The supplemental statement is unclear as to whether the
treatment director or a designee signed the statement.     In any
regard, the validity of the signed statement is not in question.
        6
       Under Wis. Stat. § 51.15(4)(b), the filing and notice of
the treatment director or designee statement is treated as if
Milwaukee County had filed a petition for involuntary commitment
under Wis. Stat. § 51.20.

                                        4
                                                                    No. 2012AP958



jury.7    During the probable cause hearing, Mary F.-R. also orally
requested a 12-person jury.8          Part way through the hearing, Mary
F.-R. became unsatisfied with her attorney and fired her.                       The
circuit court commissioner suspended the probable cause hearing
and   scheduled     a   continuance     to      allow   new   counsel     to     be
appointed.     Prior to the conclusion of the November 30, 2011,
proceeding, the circuit court accepted Mary F.-R.'s demand to
have a jury trial, but did not specifically address her demand
to have a 12-person jury.             On December 2, 2011, the circuit
court, the Honorable William W. Brash presiding, continued with
the   probable     cause   hearing.        At   this    hearing,   Mary    F.-R.
requested a 12-person jury for her commitment trial.9                     At the

conclusion    of    this   hearing,     the     circuit   court    found       that
Milwaukee County had met its burden to show that probable cause
existed to believe the allegations asserted in the emergency
detention and treatment director statement to commit Mary F.-R.




      7
       The handwritten request stated, "Please This is my Third
12 Person Jury Trial Demand for any involuntary medication and
any involuntary commitment here or elsewhere. . . . Two 12
Person Jury Demands were put in yesterday.   One at 10am in PCS
and one on this ward after arrival after 12:30pm Sat.
11/26/2011."
      8
       Mary F.-R. stated, "[y]ou'll hear a different story about
what happened on that ward, and five 12-person jury demands – -
or six."
      9
       Mary F.-R. stated, "I want a 12-person jury demand; and
it's been in numerous times; and I have all the grievances and
all the jury demands . . . I want that in the file . . . all my
jury demands."

                                       5
                                                                         No. 2012AP958



        ¶6     Following a finding of probable cause, the next step
in involuntary commitment proceedings under Chapter 51 is to
hold a final hearing.          On December 8, 2011, the circuit court,
the Honorable Victor Manian presiding, empaneled a six-person
jury for Mary F.-R.'s final commitment hearing.                    Neither Mary
F.-R. nor her attorney objected to the six-person jury at this
time.        Following the hearing, the jury unanimously found that
Mary F.-R. met the requirements under Wis. Stat. § 51.20(1)(a)
for involuntary commitment.              Specifically, the jury found that
Mary F.-R. was mentally ill, that she was a proper subject for
treatment, and that she was a danger to herself and to others.
The following day, December 9, 2011, the circuit court ordered

Mary     F.-R.    be   committed    to   the    Milwaukee     County   Behavioral
Health Division, a locked facility, for a period not to exceed
six months.
        ¶7     Mary    F.-R.   appealed       the   circuit    court's     order.10
Relevant to the issue before this court, Mary F.-R. challenged
the     constitutionality      of   Wis.       Stat.   § 51.20(11)11     on    equal

        10
       As part of her appeal, Mary F.-R. challenged whether
sufficient evidence existed for the jury to determine that she
was a danger to herself or others.    That issue is not before
this court.
        11
             Section 51.20(11), in relevant part, provides:

             JURY TRIAL. (a) If before involuntary commitment
        a jury is demanded by the individual against whom a
        petition has been filed under sub. (1) or by the
        individual's counsel if the individual does not
        object, the court shall direct that a jury of 6 people
        be selected to determine if the allegations specified
        in sub. (1) (a) or (ar) are true. . . .

                                          6
                                                                              No. 2012AP958



protection grounds.             The court of appeals affirmed Mary F.-R.'s
involuntary commitment.                It held that Mary F.-R. forfeited her
equal        protection         argument      by      failing         to     argue     its
unconstitutionality             at   the   circuit    court     and    by    failing       to
object, either by herself or through counsel, to the jury of six
at the time of empanelment.
        ¶8 Mary F.-R. raises two challenges before this court that
relate only to the constitutionality of Wis. Stat. § 51.20(11).
First, she argues that she did not forfeit her equal protection
challenge when she failed to make a contemporaneous objection at
the     time    the   circuit        court   empaneled        the   six-person       jury.
Second, she argues that both § 51.20(11) and Chapter 980 are

civil        commitment     statutes,        and     that     the     jury    provisions
available for initial commitment hearings for both should be the
same.        Specifically, Mary F.-R. argues that § 51.20(11), on its
face,12 violates          her    constitutional       right    to   equal     protection
because       § 51.20(11)       does   not   require    a     12-person      jury    and    a



             (b) No verdict shall be valid or received unless
        agreed to by at least 5 of the jurors.
        12
       Mary F.-R, asserts that her equal protection argument is
a facial challenge to the constitutionality of Wis. Stat.
§ 51.20(11) and not an "as applied" challenge.         A facial
challenge is defined as "[a] claim that a statute is
unconstitutional on its face — that is, that it always operates
unconstitutionally." Black's Law Dictionary 261 (9th ed. 2009).
In contrast an "as applied" challenge is "a claim that a statute
is unconstitutional on the facts of a particular case or in its
application to a particular party." Id. Milwaukee County does
not dispute Mary F.-R.'s classification of her challenge as a
facial challenge.

                                             7
                                                                     No. 2012AP958



unanimous verdict like the applicable provisions under Chapter
980.13
                          II. Standard of Review
     ¶9    A   statute's    constitutionality      is   a   question      of   law
that this court reviews de novo.               State v. West, 2011 WI 83,
¶22, 336 Wis. 2d 578, 800 N.W.2d 929.            "Statutes are presumed to
be   constitutional,       and    a    party    challenging    a     statute's
constitutionality must demonstrate that it is unconstitutional
beyond a reasonable doubt."           State v. McGuire, 2010 WI 91, ¶25,
328 Wis. 2d 289, 786 N.W.2d 227.
                                 III. Analysis
                                 A. Introduction

     ¶10   The   United    States     Constitution14    and   the    Wisconsin
Constitution15 guarantee individuals equal protection under the



     13
       The relevant jury provisions for Chapter                    980 initial
commitments  are  Wis.  Stat.  § 980.03(3) and                     Wis.  Stat.
§ 980.05(2).

     Section 980.03(3), in relevant part, provides:

     "The person who is the subject of the petition, the
person's attorney, or the petitioner may request that a trial
under s. 980.05 be to a jury. . . . A verdict of a jury under
this chapter is not valid unless it is unanimous."

     The relevant portion of Section 980.05(2) provides:

     "The person who is the subject of the petition, the
person's attorney, or the petitioner may request that a trial
under this section be to a jury of 12."
     14
        Section 1 of the Fourteenth              Amendment    of    the   United
States Constitution provides:

                                        8
                                                                           No. 2012AP958



law.         U.S. Const. amend. XIV, § 1; Wis. Const. art. I, § 1.
Equal        protection    under     our   state     constitution     is   generally
interpreted in the same way as the equal protection clause found
in     the     federal    constitution.         State     ex   rel.   Sonneborn      v.
Sylvester, 26 Wis. 2d 43, 49, 132 N.W.2d 249 (1965).
        ¶11     As Mary F.-R.'s equal protection challenge requires a
comparison of jury provisions in Wis. Stat. § 51.20(11) to jury
provisions in Chapter 980, we will begin with a brief overview
of   the      use   of    jury    determinations     in   civil   proceedings      and
specifically        in    civil    commitment      proceedings.       We   will   then
proceed by giving a brief overview of involuntary commitment



              All persons born or naturalized in the United
        States, and subject to the jurisdiction thereof, are
        citizens of the United States and of the State wherein
        they reside. No State shall make or enforce any law
        which shall abridge the privileges or immunities of
        citizens of the United States; nor shall any State
        deprive any person of life, liberty, or property,
        without due process of law; nor deny to any person
        within its jurisdiction the equal protection of the
        laws.
        15
       "Art. I, Sec. 1, of the Wisconsin Constitution is framed
in language of a Declaration of Rights and reminiscent of the
Declaration of Independence, and many times has been held to be
substantially equivalent of the due-process and the equal-
protection   clauses  of   the   14th  Amendment   to the   U.S.
Constitution." State ex rel. Sonneborn v. Sylvester, 26 Wis. 2d
43, 49, 132 N.W.2d 249, 252 (1965)(footnote omitted).    Article
I, Section 1 of the Wisconsin Constitution provides:

     "All people are born equally free and independent, and have
certain inherent rights; among these are life, liberty and the
pursuit of happiness; to secure these rights, governments are
instituted, deriving their just powers from the consent of the
governed."

                                            9
                                                                             No. 2012AP958



procedures    under     Wis.    Stat.       § 51.20       and   Chapter    980     before
addressing Mary F.-R.'s specific arguments.
      ¶12    The Wisconsin Constitution allows the legislature to
provide for a specified number of jurors for a valid verdict,
but not less than 5/6 thereof in civil cases.                      Wis. Const. art.
I, § 5 (amended 1922).16            The legislature has chosen to allow
six-person juries in civil cases.                   Wis. Stat. § 756.06(2)(b).
An exception is provided for juries in Chapter 980 cases.                            Id.
In addition, the legislature has sanctioned the use of a non-
unanimous 5/6 jury verdict for all six-person juries permitted
by Wis. Stat. § 756.06(2)(b).               See Wis. Stat. § 805.09.
      ¶13    Wisconsin    Stat.     §       51.20    is    a    civil    statute    that

governs involuntary commitments.                  Wisconsin has a long history
of   utilizing   juries    in     involuntary         commitment        cases.      Since
1880, Wisconsin has allowed individuals subject to confinement
for purposes of psychiatric treatment to have the option of a
jury determination.        State ex rel. Farrell v. Stovall, 59 Wis.



      16
       Article     I,     Section       5    of     the    Wisconsin      Constitution
provides:

           The   right  of   trial  by   jury  shall  remain
      inviolate, and shall extend to all cases at law
      without regard to the amount in controversy; but a
      jury trial may be waived by the parties in all cases
      in the manner prescribed by law. Provided, however,
      that the legislature may, from time to time, by
      statute provide that a valid verdict, in civil cases,
      may be based on the votes of a specified number of the
      jury, not less than five-sixths thereof.




                                            10
                                                                                  No. 2012AP958



2d 148, 163, 207 N.W.2d 809 (1973) (citing Humphrey v. Cady, 405
U.S. 504, 509 (1972)).17
           B. Involuntary Commitments Under Wis. Stat. § 51.20
     ¶14 Wisconsin Stat. § 51.20 governs involuntary commitments
for treatment purposes.               This process commences with the filing
of a petition for examination that requires a showing that an
individual       has    a    mental      illness,       a   drug    dependency,       or     is
developmentally          disabled.          Wis.     Stat.      § 51.20(1)(a)1.              In
addition,       the    petitioner        must    show   that    the    individual       is    a
"proper    subject       for    treatment."          Id.       Finally,     the    petition
requires a showing that the individual is dangerous.                          Wis. Stat.
§ 51.20(1)(a)2.             A showing that the individual is a danger to

himself    or    herself       or   to    others     will    meet     the   dangerousness
requirement.          Wis. Stat. § 51.20(1)(a)2.a.-b.
     ¶15     Following the filing of a petition, the individual is
appointed counsel through the Wisconsin State Public Defender's

     17
        The first reference to the use of juries in commitment
proceedings appeared in Section 593 of the Wisconsin Statutes.
Wis. Stat. ch. 32, § 593 (1883 Supp.) (as amended by ch. 266,
1880, sec 2, ch. 202, 1881, and sec. 1, ch. 35, 1883).      This
Section stated "[t]he application . . . shall specify whether or
not a trial by jury is desired by the applicant," but did not
specify the number of jurors or whether the verdict was required
to be unanimous.     Id.    The 1898 version of the Wisconsin
Statutes, however, specified that "[i]f a jury trial be demanded
by the person alleged to be insane or by any relative or friend
acting on his behalf . . . the procedure shall be the same as in
trials by jury in justices' courts." Wis. Stat. ch. 32, § 585b
(1898).     Juries, if requested, in justices' courts, also
referred to as courts of justices of the peace, were comprised
of "six men." Wis. Stat. ch. 156, § 3639 (1898). In addition,
juries in justices' courts were required to reach a unanimous
determination. Wis. Stat. ch. 156, §§ 3652-53 (1898).

                                                11
                                                                    No. 2012AP958



Office.     Wis. Stat. § 51.20(3).             If an order of detention is
issued, a hearing must be held to determine whether probable
cause exists to believe the allegations asserted in the petition
for commitment.        Wis. Stat. § 51.20(7).          In making a probable
cause determination and all subsequent determinations, a court
must consider alternative grounds for commitment, which include
consideration     of     the    least        restrictive    treatment   method
available to meet the needs of the individual.                 See Wis. Stat.
§ 51.20(1m); See also Wis. Stat. § 51.001.18
     ¶16     If the court finds that probable cause exists, it
schedules     a   final        commitment        hearing.        Wis.     Stat.
§ 51.20(7)(c), (10)(c).         The court may choose to release the

     18
       The legislative policy statement found in Wis. Stat.
§ 51.001 speaks to the purpose of involuntary commitments,
budgetary concerns, and the preference to impose the least
restrictive treatment option available that will meet an
individual's needs. Section 51.001 states:

     Legislative policy. (1) It is the policy of the state
     to assure the provision of a full range of treatment
     and rehabilitation services in the state for all
     mental disorders and developmental disabilities and
     for mental illness, alcoholism and other drug abuse.
     There shall be a unified system of prevention of such
     conditions and provision of services which will assure
     all people in need of care access to the least
     restrictive treatment alternative appropriate to their
     needs, and movement through all treatment components
     to assure continuity of care, within the limits of
     available state and federal funds and of county funds
     required to be appropriated to match state funds.

     (2) To protect personal liberties, no person who can
     be   treated   adequately   outside  of   a   hospital,
     institution   or  other   inpatient  facility  may   be
     involuntarily treated in such a facility.

                                        12
                                                                                   No. 2012AP958



individual prior to the final hearing and may impose conditions
for    release.        Wis.     Stat.   § 51.20(8)(a).              Alternatively,          the
court, considering the needs and condition of the individual,
may order the individual to remain detained pending the final
hearing.       Wis. Stat. § 51.20(8)(b).
        ¶17    At    least    48   hours   prior        to   the    final    hearing,      the
individual or individual's attorney may request that the final
hearing be before a jury of six.                    Wis. Stat. § 51.20(11)(a).                A
valid    jury       verdict    requires      agreement       from    five     of     the    six
jurors.       Wis. Stat. § 51.20(11)(b).
        ¶18    If a jury is requested and at least five of the six
jurors agree that the petitioner has proved the requirements

under Wis. Stat. § 51.20(1)(a) by clear and convincing evidence,
the court will order treatment for a period not to exceed six
months.       Wis. Stat. § 51.20(13)(a)3., (e), (g)1.                       Treatment may
be on an outpatient or inpatient basis as directed by the court.
Wis.    Stat.       § 51.20(13)(a)3.,         (dm).          Individuals      subject        to
involuntary         commitment      orders     may      appeal     the    court's      order.
Wis. Stat. § 51.20(15).
        ¶19    If     the     court     orders          inpatient        treatment,        such
treatment must be "in the least restrictive manner consistent
with the requirements of the subject individual in accordance
with a court order designating the maximum level of inpatient
facility."          Wis. Stat. § 51.20(13)(c)2.                The county department
providing treatment is also required to place the individual in
the    facility       and    program    that       is   "least     restrictive        of    the
individual's         personal      liberty,        consistent      with     the    treatment

                                              13
                                                                                 No. 2012AP958



requirements of the individual."                       Wis. Stat. § 51.20(13)(f).
The county is also required to alter an individual's treatment
plan as necessary to provide treatment continuously in the least
restrictive setting possible.                Id.
       ¶20     While the county may discharge an individual subject
to inpatient treatment at any time, it may also petition the
court to recommit an individual for an additional maximum time
period    of    one    year.      Wis.       Stat.     §    51.20(13)(g)3.,        2r.,    1.
Twenty-one days prior to the expiration of the initial six-month
maximum commitment period, the court must file an evaluation of
the      individual       along        with        a       recommendation        regarding
recommitment.          Wis. Stat. § 51.20(13)(g)2r.                  If recommitment is

recommended, the court will proceed with a recommitment hearing.
Wis. Stat. § 51.20(13)(g)3.
       ¶21     Under    Wis.   Stat.     §    51.20(16),       committed    individuals
may petition the court for reexamination and/or modification or
cancellation of the court's commitment order.                         If no hearing has
been held within 120 days prior to filing, the court must grant
a hearing to consider the individual's petition.                            Wis. Stat.
§ 51.20(16)(c).         Finally, an individual committed by court order
for treatment of mental illness must be reevaluated within 30
days     of    commitment,      within        three         months    of   the      initial
reevaluation, and, at a minimum, every six months thereafter.
Wis. Stat. § 51.20(17).            Mandatory evaluations ensure that the

individual receives treatment in the least restrictive setting
available to meet his or her needs.                    See Id.
                 C. Involuntary Commitments Under Chapter 980

                                              14
                                                                                       No. 2012AP958



        ¶22     Chapter    980      commitments           are    also    civil      proceedings.
State v. Rachel, 2002 WI 81, ¶41, 254 Wis. 2d 215, 647 N.W.2d
762.         However, we have found that Chapter 980 committees share
many protections available to criminal defendants.                                      State v.
Curiel, 227 Wis. 2d 389, 417, 597 N.W.2d 697 (1999).19                                       One of
these        protections       is    that     the     petitioner         in    a    Chapter     980
commitment       has     the    burden      to    prove         that    an    individual       is   a
sexually violent person beyond a reasonable doubt.                                      See Wis.
Stat.        § 980.05(3)(a).            Another        protection,            granted     by     the
legislature,       is     the       ability      of   the       individual         subject     to   a
Chapter 980 commitment to request a unanimous 12-person jury for
his or her initial commitment hearing.                            Wis. Stat. § 980.03(3);

Wis. Stat. § 980.05(2).
        ¶23     This court has summarized the legislative scheme for
the    involuntary        commitment        of      sexually       violent         persons     under
Chapter 980.        See e.g., State v. Post, 197 Wis. 2d 279, 297-301,
541     N.W.2d     115     (1995).          We      are     mindful,         however,     of    the
legislative changes made to Chapter 980 since our decision in



        19
       We recognize that our reasoning in Curiel was based, in
part, on a now repealed subsection of Chapter 980.      See Wis.
Stat. § 980.05(1m)(1995-96), repealed by 2005 Wis. Act 434.
This subsection included the following language, "[a]t the trial
to determine whether the person who is the subject of a petition
under s. 980.02 is a sexually violent person, all rules of
evidence in criminal actions apply. All constitutional rights
available to a defendant in a criminal proceeding are available
to the person."    Id.  Even without the language from the now
repealed Wis. Stat. § 980.05(1m), Chapter 980 continues to offer
several protections similar to those allowed criminal defendants
discussed herein.

                                                 15
                                                                                    No. 2012AP958



Post.20     Therefore, we will proceed by discussing the aspects of
Chapter     980    most    pertinent         to    Mary    F.-R.'s     equal    protection
challenge.
      ¶24    The       involuntary       commitment         of     a   sexually        violent
person commences with the filing of a petition alleging that the
individual        is    sexually       violent.           Wis.    Stat.    § 980.02.           A
petition may be filed by the Wisconsin Department of Justice or,
if the department does not file a petition, by the district
attorney in the county where the individual was convicted of a
sexually violent offense, where the individual will reside upon
discharge,        or    where    the    individual        is     currently     in    custody.
Wis. Stat. § 980.02(1)(a)-(b); State v. Byers, 2003 WI 86, ¶43
263 Wis. 2d 113, 665 N.W.2d 729 ("[A] request from the agency
with jurisdiction and a subsequent decision by the DOJ not to
file are prerequisites to a district attorney's authority to
file a Chapter 980 petition.").
      ¶25         The individual subject to commitment under Chapter
980, that person's attorney, or the petitioner may request that
the   commitment         trial    be    to    a    12-person       jury.       Wis.       Stat.
§ 980.05(2).           The parties, however, may stipulate that the trial
be to a jury of fewer than 12, and proceed accordingly with the
court's approval.           Wis. Stat. § 980.05(2m)(b)-(c).                     The jury's
verdict must be unanimous.              Wis. Stat. § 980.03(3).


      20
       Since our December 9, 1995, decision in Post, the
Wisconsin Legislature has amended Chapter 980 on several
occasions. See 1997 Wis. Act 205, §§ 104-05; 2005 Wis. Act 344,
§§ 633-35; 2005 Wis. Act 434, §§ 60-130.

                                              16
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      ¶26     If a jury finds that the individual is a sexually
violent person, the court must commit the person to the custody
of the department of health services until the individual is no
longer a sexually violent person.                  Wis. Stat.      § 980.06.      The
commitment    order    must     specify     that    the   person    be   placed     in
institutional care.       Id.
      ¶27    Reexamination       of   the      committed      individual      occurs
within 12 months of initial confinement and again at least every
12 months thereafter.         Wis. Stat. § 980.07(1).            At the earliest,
an individual committed under Chapter 980 may petition the court
for supervised release after 12 months of commitment.                      See Wis.
Stat. § 980.08.

      ¶28    The committed individual may petition the court for
discharge at any time; however, Wis. Stat. § 980.09(1) states:

      The court shall deny the petition . . . without a
      hearing unless the petition alleges facts from which
      the court or jury may conclude the person's condition
      has changed since the date of his or her initial
      commitment order so that the person does not meet the
      criteria for commitment as a sexually violent person.
Recently, in State v. Arends, 2010 WI 46, ¶¶3-5, 325 Wis. 2d 1,
784 N.W.2d 513, we clarified the discharge petition process and
explained that a circuit court must follow a two-step process
outlined in Wis. Stat. § 980.09(1)-(2) when evaluating a Chapter
980 committee's discharge petition.                 If the discharge petition
does not "allege[] facts from which a reasonable trier of fact
could conclude the petitioner is no longer a sexually violent

person," then the discharge petition fails at step one.                      Arends,
325   Wis.   2d   1,   ¶30.      If   sufficient      facts     exist    within   the

                                          17
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petition, the court then moves to step two, which requires a
"limited review of the sufficiency of the evidence."                              Id., ¶43.
"If any facts support a finding in favor of the petitioner, the
court must order a discharge hearing on the petition; if no such
facts exist, the court must deny the petition."                         Id.
     ¶29     An individual subject to Chapter 980 commitment may
request a jury of six for his or her discharge hearing.                                   Wis.
Stat. § 980.095(1)(a).           If a jury is requested, five or the six
jurors must agree to discharge.                Wis. Stat. § 980.095(1)(c).
                             D. Constitutional Challenge
     ¶30     Mary     F.-R.      alleges        that      Wis.        Stat.     § 51.20(11)
violates       her     constitutional           right      to     equal         protection.

Specifically         she     argues     that     Wis.         Stat.     § 51.20       cannot
constitutionally           provide    lesser     jury     protections          for   initial
commitment hearings than those afforded by Chapter 980 because
the individuals affected are similarly situated, and both types
of   commitments           promote     similar      governmental              interests       of
protecting     the    public     and    treating        the    committed        individual.
However, as a preliminary matter, this court must first consider
whether Mary F.-R. forfeited her constitutional challenge when
she failed to make a contemporaneous objection at the time the
circuit court empaneled the six-person jury.
                                       1. Forfeiture
     ¶31     Mary     F.-R.    contends     that       she      did    not     forfeit    her

ability to facially challenge Wis. Stat. § 51.20(11) because
under State v. Bush, 2005 WI 103, ¶17, 283 Wis. 2d 90, 699
N.W.2d   80,    a    facial    challenge       to   the       constitutionality          of    a

                                           18
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statute goes to the subject matter jurisdiction of the court and
"cannot be waived."21
     ¶32   In State v. Bush, we addressed the procedural question
of whether the defendant in that case forfeited his ability to
bring a facial challenge to the constitutionality of Chapter 980
when he failed to raise the constitutional issue in either of
his appeals following his initial commitment.   Bush, 283 Wis. 2d
90, ¶14.    In holding that the defendant did not forfeit his
challenge to the constitutionality of Chapter 980, we said "that
while an 'as applied' challenge to the constitutionality of a
statute may be waived, a facial challenge is a matter of subject
matter jurisdiction and cannot be waived."      Id., ¶17 (citing
State v. Cole, 2003 WI 112, ¶46, 264 Wis. 2d 520, 665 N.W.2d 328
and State v. Trochinski, 2002 WI 56, ¶34 n. 15, 253 Wis. 2d 38,
644 N.W.2d 891).
     ¶33   Milwaukee County argues that Bush is inapplicable to
this case since Mary F.-R. does not challenge the entirety of
Chapter 51 or the essential purpose of the chapter as was the
case in Bush.




     21
       While we used the term "waiver" in Bush instead of
"forfeiture," we have since clarified the difference in meaning
between the two terms. "Although cases sometimes use the words
'forfeiture' and 'waiver' interchangeably, the two words embody
very different legal concepts.      'Whereas forfeiture is the
failure to make the timely assertion of a right, waiver is the
intentional relinquishment or abandonment of a known right.'"
State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612
(quoting United States v. Olano, 507 U.S. 725, 733 (1993)).

                                19
                                                                           No. 2012AP958



       ¶34   We   decline   the    parties'        invitation       to   address    our
holding in Bush.       Instead we reach the merits of Mary F.-R.'s
equal protection challenge by assuming, without deciding, that
she did not forfeit her challenge when she failed to make a
contemporaneous      objection      at       the    time     the     circuit     court
empaneled the six-person jury.                 We also note that Mary F.-R.
made    multiple    requests      for    a     12-person     jury    prior     to   the
empanelment of the six-person jury.
                       2. Level of Judicial Scrutiny
       ¶35   We next turn to the question of the appropriate level
of scrutiny that should be used to evaluate Mary F.-R.'s claim.
The United States Supreme Court has established two levels of

judicial scrutiny that traditionally apply to equal protection
challenges.22      See City of Cleburne, Tex. v. Cleburne Living
Ctr., 473 U.S. 432, 439-40 (1985).                  "The general rule is that
legislation is presumed to be valid and will be sustained if the
classification drawn by the statute is rationally related to a
legitimate state interest."             Id. at 440.        This level of scrutiny
is referred to as rational basis.                  However, the other option,
strict scrutiny, will apply "when a statute classifies by race,
alienage, or national origin" or "when state laws impinge on
personal rights protected by the Constitution."                          Id.   Stated
another way, "[e]qual protection requires strict scrutiny of a


       22
       A third level of scrutiny, intermediate scrutiny, not
discussed    here    typically  applies    to  "discriminatory
classifications based on sex or illegitimacy." Clark v. Jeter,
486 U.S. 456, 461 (1988).

                                          20
                                                                                   No. 2012AP958



legislative         classification           only     when    the        classification
impermissibly        interferes       with    the     exercise     of     a       fundamental
right    or    operates    to   the    peculiar       disadvantage           of    a   suspect
class."       State v. Annala, 168 Wis. 2d 453, 468, 484 N.W.2d 138
(1992)(citing Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312
(1976)).        In these circumstances, laws must be analyzed using
strict scrutiny review and upheld only if narrowly tailored "to
serve a compelling state interest."                    City of Cleburn, 473 U.S.
at 440.
        ¶36    Mary F.-R. asks this court to apply strict scrutiny in
evaluating her equal protection challenge because she asserts
that her fundamental liberty interest is at issue.                            She contends

that    the    differences      in    the    jury     provisions        in    § 51.20      and
Chapter 980 are not narrowly tailored to promote the government
interests of protecting the public and treating the committed
individual as required under strict scrutiny analysis.                                 In the
alternative, if this court determines that rational basis review
is appropriate, Mary F.-R. argues that the differences in the
jury provisions for initial commitments under § 51.20(11) and
Chapter       980   are   not   rationally          related   to    the       governmental
interests they serve.
        ¶37    Milwaukee County, however, argues that rational basis
review rather than strict scrutiny should apply.                         It argues that
strict scrutiny analysis cannot apply, because Mary F.-R. does
not belong to a suspect class, and because her challenge relates
to jury provisions and not to her fundamental liberty interest.



                                             21
                                                                                    No. 2012AP958



        ¶38     In     evaluating             prior        challenges      based     on         the
differences found in Chapter 51 and Chapter 980, this court has
generally refrained from deciding which level of scrutiny should
apply.         Post,       197    Wis.     2d    at      321.   However,    we     agree    with
Milwaukee County that rational basis analysis is the appropriate
level of judicial scrutiny to apply to this case.                                We disagree
with Mary F.-R.'s contention that strict scrutiny applies due to
her     fundamental              liberty        interest.        While     liberty         is     a
fundamental right, Foucha v. Louisiana, 504 U.S. 71, 86 (1992),
and involuntary civil commitment is a "significant deprivation
of liberty," Addington v. Texas, 441 U.S. 418, 425 (1979), Mary
F.-R.'s challenge relates only to the jury procedures available

for initial commitment hearings under Wis. Stat. § 51.20 and not
to the use of involuntary commitments in general.                                    Unlike a
situation where protection for a fundamental liberty interest is
interfered with impermissibly, having a six-person jury trial is
not the "equivalent to having no jury trial at all."                                 State v.
Huebner, 2000 WI 59, ¶18, 235 Wis. 2d 486, 611 N.W.2d 727.
There is no right to a 12-person jury in civil proceedings such
as here.        Id., ¶¶17-19.            In addition, we are satisfied that Mary
F.-R.        does    not    belong       to     a     suspect   class.23      Since       strict

        23
       Mary F.-R. makes no argument that she belongs to a
suspect class.   The United States Supreme Court has explained
that a "suspect class is one 'saddled with such disabilities, or
subjected to such a history of purposeful unequal treatment, or
relegated to such a position of political powerlessness as to
command extraordinary protection from the majoritarian political
process.'"   Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313
(1976)(citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411
U.S. 1, 28 (1973)).    The Supreme Court has specifically found
                                                    22
                                                                             No. 2012AP958



scrutiny does not apply to this case, we evaluate Mary F.-R's
equal protection argument using rational basis review.
                            3. Equal Protection Analysis
        ¶39     In response to Mary F.-R.'s equal protection argument,
Milwaukee County does not dispute that § 51.20(11) and Chapter
980 provide different jury provisions for initial commitments.
Both parties also take the position that individuals subject to
involuntary        commitment    under       §    51.20     and    Chapter    980     are
similarly situated to some extent.                   However, Milwaukee County
notes     the    long-standing       use     of   six-person       juries     in    civil
proceedings,        and    differentiates         between    the     two     groups    by
focusing on the difference in liberty restraint faced by each of

the groups.         Milwaukee County asserts that these differences
provide a rational basis for the different jury provisions at
issue.
        ¶40     We agree with Milwaukee County that the availability
of a non-unanimous six-person jury in a § 51.20 commitment trial
does not violate equal protection.                  Chapter 980 committees are
subject to increased liberty restraints when compared to Chapter
51 committees. The legislature has imposed restraints in both
situations       for     treatment     purposes     and     for    the     purposes    of
protecting the public.          We hold that the legislative decision to
allow    the     added    protection    of    a   12-person       unanimous    jury    in
Chapter 980 commitment trials, but not in Chapter 51 commitment

that individuals facing discriminatory treatment based on race
or national origin will be considered part of a suspect class.
Id.

                                             23
                                                                                    No. 2012AP958



trials, is rationally related to different treatment needs and
differing levels of dangerousness that § 51.20 and Chapter 980
seek     to     address,       as     well     as     stricter           rules      concerning
confinement in Chapter 980.
       ¶41     As the party challenging the constitutionality of Wis.
Stat. § 51.20(11), Mary F.-R. has the burden to prove her equal
protection violation beyond a reasonable doubt.                             See Post, 197,
Wis. 2d at 301.               It is well established under rational basis
review       that     "[e]qual      protection       does        not     require    that      all
persons be dealt with identically, but it does require that a
distinction made have some relevance to the purpose for which
the classification is made."                  See Baxstrom v. Herold, 383 U.S.
107, 111 (1966).            "[T]he crucial question is whether there is an
appropriate          governmental      interest       suitably           furthered     by     the
differential treatment."              Police Dep't of Chicago v. Mosley, 408
U.S.     92,    95      (1972).         Therefore,          we     first       consider      the
governmental         interests      served     through       involuntary           commitments
under both § 51.20 and Chapter 980.
       ¶42     Wisconsin      Stat.     § 51.20       serves           three     governmental
interests,          which   are     apparent       from     the        statutory    language.
First, the statute serves to protect the public.                                   Wis. Stat.
§ 51.20(1)(a)2.b.              Second,       it     provides           protection     of     the
committed       individual.            Wis.       Stat.     § 51.20(1)(a)2.a,               c.-e.
Finally,       it     is    concerned      with     providing           treatment      to    the
committed individual in the least restrictive treatment setting
available,      which       meets    the     individual's          needs.          Wis.     Stat.
§ 51.20(1)(a)1; Wis. Stat. § 51.001.

                                              24
                                                                                         No. 2012AP958



        ¶43    Chapter        980     furthers          two     governmental             interests.
Protection         of   the     public       and       treatment          for     the    committed
individual are such interests.                         See Post, 197 Wis. 2d at 302;
Bush, 283 Wis. 2d 90, ¶13.
        ¶44    The      pertinent       question          in        our    equal         protection
analysis      is     whether    the     differences            in    the    jury        protections
offered under Wis. Stat. § 51.20(11) and Chapter 980 rationally
relate    to    the     governmental             interests      served       by    each      of    the
legislative          enactments.            We    have        previously        commented         that
Chapter       980       committees          present       a      "heightened             level      of
dangerousness and . . . unique treatment needs," which "justify
distinct       legislative           approaches          to     further         the     compelling

governmental purpose of protection of the public."                                       Post, 197
Wis. 2d at 322-23.              These same considerations, treatment needs
and protection of the public, provide a rational basis for the
legislature to afford different jury protections to individuals
subject to § 51.20 commitments when compared to Chapter 980.
        ¶45    We recognize that individuals subject to commitments
under    Wis.      Stat.   §    51.20       and     Chapter         980    share      some   common
characteristics and that, in general, both statutory chapters
address somewhat similar governmental interests.                                   For example,
Wis. Stat. § 51.20 and Chapter 980 share the goals of protection
of the public and treatment of the individual.                                  In addition, on
a broader scale, both chapters govern classes of individuals
that the legislature has deemed in need of civil commitment.
        ¶46    Aside     from       these    similarities,            however,          significant
differences exist between § 51.20 committees and Chapter 980

                                                  25
                                                                                       No. 2012AP958



committees.        In addition, there are pronounced differences in
the specific governmental purposes served by § 51.20 commitments
when compared to Chapter 980 commitments.                                These differences
provide a rational basis for the legislature to provide a 12-
person unanimous jury option to Chapter 980 committees, and a
six-person non-unanimous jury to individuals subject to § 51.20.
      ¶47    As    a     general         example          of     the   differences          between
Chapters 51 and 980, the governmental interest of protecting the
individual    is       present      in    Chapter          51    commitments,      but      not    in
Chapter     980.       See    Wis.       Stat.        §    51.20(1)(a)2.a.(requiring                a
dangerousness       factor       for      commitment            that   may   be    met      if    the
individual is a danger to himself or herself).                                    Specifically,

and more importantly, additional differences between § 51.20 and
Chapter     980    all       relate       to     the       lessened     liberty        restraint
experienced by § 51.20 committees when compared to Chapter 980
committees.            The    increased          liberty          deprivation      imposed         on
Chapter     980     committees            addresses             both   the    treatment           and
protection of the public purposes of these types of commitments.
      ¶48    At every step of the involuntary commitment process,
individuals       subject      to        Chapter          980    are   subject     to       greater
liberty     restrictions         than      individuals            subject    to     Wis.      Stat.
§ 51.20.      For       example,         following         the    filing     of    a    petition,
individuals subject to Wis. Stat. § 51.20 commitments may remain
in the community before a final determination is made.                                           Wis.
Stat. § 51.20(2).            This is also the case following the probable
cause hearing.          Wis. Stat. § 51.20(8)(a).                      Individuals subject
to   commitment        under     Chapter       980,         however,     remain        in   prison

                                                 26
                                                                              No. 2012AP958



following the filing of a petition for commitment.                             See Wis.
Stat. § 980.015; Wis. Stat. § 980.02(1m).                      Furthermore, once an
individual      is    found    to   be     a    sexually       violent     person,    the
commitment order must specify placement in institutional care.
Wis. Stat. § 980.06.
        ¶49    There are also significant differences in the amount
of time that an individual may be committed depending on whether
commitment is ordered under Chapter 51 or Chapter 980.                           Initial
commitments      under    Chapter    51        are   limited    to   a     maximum   time
period    of    six   months.       Wis.       Stat.   §   51.20(13)(g).         Initial
commitments under Chapter 980, however, can last indefinitely.
Wis. Stat. § 980.06.

        ¶50    The legislative policy underlying Chapter 51 further
illustrates a significant difference in purpose between § 51.20
commitments      and     Chapter    980        commitments.          The    legislative
approach to Chapter 51 is to provide treatment to individuals in
the least restrictive setting that is available to meet each
individual's needs.           Wis. Stat. § 51.001(1).             This is reflected
throughout § 51.20 and is especially apparent in the provisions
that require periodic reevaluations of the committed person to
ensure that the least restrictive treatment setting is being
used.     Wis. Stat. § 51.20(17).              However, Chapter 980 commitments
are not subject to a similar goal of providing treatment in the
least restrictive manner possible, and reevaluations may be done

on a less frequent basis. See Wis. Stat. § 980.07(1) (discussing
reevaluation).



                                           27
                                                                         No. 2012AP958



      ¶51   Another      example      of    the   increased   liberty    restraints
placed on Chapter 980 committees is reflected in the types of
treatment available to the two groups.                   In line with a goal of
providing    the     least      restrictive       treatment   setting     possible,
initial § 51.20 commitments can occur on an outpatient basis,
but   Chapter      980    commitments         cannot.      Compare      Wis.   Stat.
§ 51.20(13)(a)3, (dm) with Wis. Stat.                § 980.06.
      ¶52   Furthermore, rational basis review may be satisfied if
"any reasonably conceivable state of facts . . . could provide a
rational     basis       for    the       classification,"    F.C.C.     v.    Beach
Commc'ns, Inc., 508 U.S. 307, 313 (1993).                  That the legislature
actually based its decision on the stated facts is not required.

Id. at 315.        Cost savings considerations provide an additional
rational    basis    for       why    the   legislature    may   have    chosen    to
provide     the    option       of    a     six-person    jury   in     involuntary
commitments under Chapter 51 instead of a 12-person jury.24

      24
        Johnson v. Louisiana, 406 U.S. 356 (1972), supports our
conclusion that cost savings considerations provide a rational
basis for the differences in jury size and jury unanimity at
issue today.     In that case, the United States Supreme Court
upheld Louisiana's three tiered criminal jury structure, which
imposed    different   sized  juries   and   varying   unanimity
requirements based on the seriousness of the charged offense.
Id. at 363-64. Specifically, "Louisiana has permitted less
serious crimes to be tried by five jurors with unanimous
verdicts, more serious crimes have required the assent of nine
of 12 jurors, and for the most serious crimes a unanimous
verdict of 12 jurors is stipulated."    Id. at 364.    The Court
held that the Louisiana legislature's decision to require
different jury sizes and varied unanimity requirements was
rationally related to cost savings efforts aimed at the criminal
justice system; therefore, the legislative scheme did not
violate equal protection. Id. at 363-64.

                                            28
                                                                                         No. 2012AP958



     ¶53       Mary        F.-R.     asserts            that     individuals          subject      to
commitment          under     Wis.        Stat.     §     51.20      and       Chapter     980     are
similarly situated.                This assertion is undoubtedly based on our
prior holdings in Post, 197 Wis. 2d at 319-20, and Stovall, 59
Wis. 2d at 159-60.
     ¶54       In     Post,    we     stated           that     "persons        committed        under
chapters 51 and 980 are similarly situated for purposes of an
equal protection comparison."                      Post, 197 Wis. 2d at 318-19.                     We
based our decision in Post on Stovall in which we found the
scope,     purpose,          and     required           judicial          determination          under
Chapter 51 and Chapter 975, the now repealed Sex Crimes Act, to
be similar.          Stovall, 59 Wis. 2d at 164.                     These similarities led

us to conclude that there existed no rational basis for the
legislature to allow jury determinations for initial commitments
and recommitments under Chapter 51, but not under Chapter 975.
Id. at 168.
     ¶55       In light of our holding today, our prior discussion of
whether    individuals             subject        to     involuntary           commitment        under
Chapter    51        and     Chapter        980     are        similarly        situated     merits
revisiting.            First,        it     is     necessary         to     consider       that     in
concluding      that        individuals          subject       to    involuntary         commitment
under Chapter 51 and Chapter 980 are similarly situated, Post
relied    on    analysis       that        compared       Chapter         51   to    Chapter      975.
Second,    Post       did     not     specifically              compare        the   purposes       of
§ 51.20    and       Chapter       980.           Third,       and   most       importantly,        in
concluding      that        Chapter        51     and    Chapter      980       committees        were
similarly situated, Post did not consider the narrow question of

                                                   29
                                                                                    No. 2012AP958



specific     jury     provisions      before         us     today        to     reach       its
conclusion.        Finally, both Post and Stovall engage in what might
appear to be a tiered approach to equal protection analysis.                                  We
have purposely declined, in our decision today, to utilize a
tiered equal protection analysis, in which a threshold question
of whether parties are similarly situated must be answered first
before   reaching      the   question      of   equal        protection.                 "[W]hen
properly understood and applied, 'similarly situated' is another
way of stating the fundamental values of the Equal Protection
Clause."     Giovanna Shay, Similarly Situated, 18 Geo. Mason L.
Rev. 581, 615 (2011).
     ¶56     Our    decision      today   is    in        line    with        our    previous

determinations in equal protection cases involving Chapters 51
and 980. On prior occasions, this court has considered several
challenges that involved claimed equal protection violations in
Chapter 980 when compared to Chapter 51.                         In almost all cases,
we have found that no equal protection violation occurred due to
the state's compelling interest to protect the public through
Chapter 980 commitments.           For example, in Post, we found that in
all but one of the equal protection challenges, "[t]he state's
compelling        interest   in    protecting        the     public       provides           the
necessary justification for the differential treatment of the
class of sexually violent persons."             Post, 197 Wis. 2d at 321.
     ¶57     In     Post,    we    did,   however,          find     that           an    equal
protection violation existed because Chapter 980 did not allow a
committed individual the right to request a jury at his or her
discharge hearing.           Id. at 328-29.               In contrast, Chapter 51

                                          30
                                                                                       No. 2012AP958



allowed the committed individual to request a six-person jury.
Id. at 329.           In doing so, we stressed the important role that a
jury plays and its "'critical function of introducing into the
process a lay judgment, reflecting values generally held in the
community, concerning the kinds of potential harm that justify
the State in confining a person for compulsory treatment.'"                                     Id.
at 328 (quoting Humphrey, 405 U.S. at 509).
        ¶58        In addition, we have previously held that a rational
basis      exists      for     other      differences        between    Chapter          980    and
Chapter 51. See State v. Burgess, 2003 WI 71, ¶33, 262 Wis. 2d
354, 665 N.W.2d 124 (holding that the differences between the
chapters relating to the level of confidentiality afforded to

each type of proceedings does not violate equal protection);
West,      336     Wis.      2d    578,    ¶96     (holding     that        the    legislative
decision         to    place      the     burden       of    proof     on    the       committed
individual         seeking        supervised       release     under    Chapter          980    was
justified due to the different degrees of dangerousness that
each chapter seeks to address).
        ¶59      In line with these prior decisions, we hold that the
differences between Chapter 51 and Chapter 980 are such that the
legislature's decision to allow a six-person jury with a 5/6
determination           under     Wis.    Stat.        § 51.20(11)      and       a    12-person
unanimous determination under Chapter 980 is rationally related
to   the      differences         in    liberty    restraint     that       the       two   groups
face.         We      are   not    faced    with       the   same    situation           that    we
previously addressed in Post, where Chapter 980 did not allow
for a jury determination at the discharge stage, or in Stovall

                                                  31
                                                                                      No. 2012AP958



where    Chapter          975    failed     to    provide       the    option      of     a    jury
determination at either the initial commitment hearing or at
recommitment hearings.                  Here, both Chapter 51 and Chapter 980
provide individuals with the option of a jury at their initial
commitment hearings.               We continue to recognize the importance of
allowing jury determinations in involuntary commitment cases and
note that § 51.20(11) provides the same jury provisions that are
typical in other civil proceedings.
        ¶60    In        sum,    we     find     that     although      the       governmental
purposes of § 51.20 and Chapter 980 as well as the individuals
subject       to    these       civil    involuntary          commitment     statutes          share
some     overlapping            goals    and     characteristics,           Mary    F.-R.       has

failed        to     prove        the     unconstitutionality               of     Wis.        Stat.
§ 51.20(11) beyond a reasonable doubt.                           The differences in the
jury provisions available to those committed under Wis. Stat.
§ 51.20(11)         and     Chapter       980     are    rationally         related       to    the
difference          in     treatment       needs        and    level    of       dangerousness
presented by each group, as well as stricter rules concerning
confinement in Chapter 980 commitments.                               The legislature has
addressed          these        differences        by     imposing          greater       liberty
restrictions on individuals subject to Chapter 980 commitments.
The added protection of a 12-person unanimous jury is rationally
related       to     such       increased       liberty        restrictions        imposed        on
Chapter       980    committees         when     compared       to    the    lesser       liberty
deprivation experienced by individuals committed under Chapter
51.
                                        IV. Conclusion

                                                 32
                                                                                    No. 2012AP958



     ¶61       To reach Mary F.-R.'s equal protection challenge, we
assume, without deciding, that she did not forfeit her right to
challenge Wis. Stat. § 51.20(11).                       We hold that the differences
in the jury provisions for initial commitment hearings under
§ 51.20(11)         and    Chapter     980        do     not        violate    Mary    F.-R.'s
constitutional right to equal protection under the Fourteenth
Amendment      or     under   Article        I,        Section       1   of   the     Wisconsin
Constitution.         The legislature chose to allow for differing jury
protections for initial commitments under § 51.20 and Chapter
980 and these choices, reflected in the legislative enactments
in question, are presumed constitutional.25                              Mary F.-R. has not
overcome       this       presumption        and        has     not       demonstrated      the

unconstitutionality           of     § 51.20           beyond       a    reasonable      doubt.
Furthermore,        considering       that    Mary        F.-R's         specific     challenge
relates to jury provisions, we find that rational basis review
is appropriate.            We hold that the different purposes of the
provisions in question, the varied legislative schemes, and the
range of liberty restrictions imposed on individuals subject to
commitment under Wis. Stat. § 51.20, when compared to Chapter
980, provide a rational basis for the legislative decision to
provide    a    unanimous      12-person          jury        for    initial    Chapter     980
commitments and a six-person jury with a 5/6 verdict for initial
commitments under § 51.20(11).                Accordingly, we affirm the court
of appeals.



     25
          State v. McGuire, 328 Wis. 2d 289, ¶25.

                                             33
                                                                 No. 2012AP958



     By   the   Court.—The   decision   of   the   court   of   appeals    is
affirmed.




                                   34
                                                      No.   2012AP958.ssa



    ¶62   SHIRLEY   S.   ABRAHAMSON,   C.J.   (concurring).      I   join
the majority opinion.1     I write briefly regarding the impact of




    1
       The court has declared that deprivations of liberty in
Chapter 51 and Chapter 980 proceedings require at least some
jury protection on equal protection grounds. State v. Post, 197
Wis. 2d 279, 541 N.W.2d 115 (1995).

     Although I agree that case law supports a holding that a
six-person non-unanimous jury did not violate Mary F.-R.'s equal
protection rights, I am troubled by the due process implications
of the case and whether unanimity and the size of the jury are
essential attributes of the right to jury trial.    These issues
were not briefed.

     The United States Supreme Court has noted that "civil
commitment for any purpose constitutes a significant deprivation
of liberty that requires due process protection." Addington v.
Texas, 441 U.S. 418, 425 (1979). The Court has held that a non-
unanimous six-person jury violates the Sixth Amendment right to
trial by a jury in criminal cases. See Burch v. Louisiana, 441
U.S. 130, 99 S. Ct. 1623 (1979);       Ballew v. Georgia, 435
U.S. 223, 98 S. Ct. 1029 (1978) (holding that a unanimous five-
person jury was an unconstitutional deprivation of a jury trial
in a criminal case).

     Similarly, our court has held that in criminal trials, the
Wisconsin Constitution requires a 12-person jury.     State v.
Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998).

     Although both Chapter 51 and Chapter 980 commitment
hearings are civil proceedings, not criminal proceedings, at
common law a civil trial afforded parties a 12-person jury. See
Hansford, 219 Wis. 2d at 238 ("[R]ight to a trial by jury
guaranteed by the Wisconsin Constitution is the right to a jury
of 12 persons as recognized by the common law as it existed at
the time the constitution was adopted . . . .") (citing Norval
v. Rice, 2 Wis. 17, 20-23 (1853)); see generally Richard S.
Arnold, Trial by Jury: The Constitutional Right to a Jury of
Twelve in Civil Trials, 22 Hofstra L. Rev. 1 (1993) (describing
the voluminous historical evidence that the common law in
England and the United States viewed a jury as being composed of
twelve).

                                  1
                                                          No.    2012AP958.ssa



State v. Bush, 2005 WI 103, 283 Wis. 2d 90, 699 N.W.2d 80, on
waiver, forfeiture, and subject matter jurisdiction.
     ¶63    The court held in Bush that "a facial challenge is a
matter of subject matter jurisdiction and cannot be waived."
283 Wis. 2d 90, ¶17 (emphasis added).
     ¶64    After Bush, we clarified the difference between the
concepts    of   "forfeiture"    and   "waiver."    These      concepts   had
become confused in our jurisprudence.           In State v. Ndina, 2009
WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, we distinguished between
rights    that   receive   a   "forfeiture"   standard   and    rights    that
receive a "waiver" standard:

     [S]ome rights are forfeited when they are not claimed
     at trial; a mere failure to object constitutes a
     forfeiture of the right on appellate review. . . . In
     contrast, some rights are not lost by a counsel's or a
     litigant's mere failure to register an objection at
     trial. These rights are so important to a fair trial
     that courts have stated that the right is not lost
     unless the defendant knowingly relinquishes the right.
Id., ¶¶30-31.
     ¶65    Because Bush predated Ndina, we are left to ask (1)

whether     Bush    referred     to    a   facial   challenge       to    the
constitutionality of a statute as a right subject to a waiver
standard or a forfeiture standard; and (2) whether Mary F.-R.'s



     I  am concerned that a non-unanimous six-person jury in
civil commitments constituting a significant deprivation of
liberty may be a violation of due process and a violation of a
right to jury trial. Lines must be drawn somewhere on the size
of the jury and the number of jurors required to agree on a
verdict in a case of significant deprivation of liberty, if the
substance of the jury trial right is to be preserved.

                                       2
                                                                       No.   2012AP958.ssa



facial equal protection challenge to the jury statute is subject
to a waiver standard or a forfeiture standard.                       The court leaves
both questions unanswered in the instant case.2
       ¶66    It    is     also     unclear        whether    Mary    F.-R.'s       facial
challenge      to     a    six-person       non-unanimous       jury     attacked       the
circuit court's subject matter jurisdiction or its competence or
neither.       Bush plainly asserts that "a facial challenge is a
matter of subject matter jurisdiction and cannot be waived."
But as this court noted in Bush, "the jurisprudence concerning
subject matter jurisdiction and a circuit court's competence to
exercise     its    subject        matter   jurisdiction      is     murky   at    best."3
This       question        about      facial        challenges,       subject       matter

jurisdiction, and competence is also left for another day.
       ¶67    Is the size and the unanimity of the jury a procedural
matter or a substantive one?                This court has declared that trial
by jury is a substantive right, stating that "[t]he legislature
may    modify       old     procedures,        or    create    new     ones,       if   the
substantive        right    to     jury   trial     is   preserved."4        The    United
States Supreme Court and this court have linked the number of
jurors and jury unanimity directly to the substantive right of

       2
       Although Mary F.-R. did not make a contemporaneous
objection when a six-person jury was selected, she had
previously asked several times for a 12-person jury.   It is
therefore arguable that she neither waived nor forfeited her
objection to a six-person jury.
       3
           Bush, 283 Wis. 2d 90, ¶16.
       4
       State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 523,
261 N.W.2d 434 (1978).

                                               3
                                                               No.    2012AP958.ssa



trial       by   jury,   rather   than   viewing   them   as   mere   procedural
features.5
        ¶68      For the stated reasons, I concur.




        5
       See Burch v. Louisiana, 441 U.S. 130, 99 S. Ct. 1623
(1979); Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029 (1978);
State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998).

                                          4
                                                                                   No.    2012AP958.akz


        ¶69      ANNETTE KINGSLAND ZIEGLER, J.                      (concurring).              I join
the majority opinion and I agree with the majority that the
court       of       appeals    should        be     affirmed.           I    write       separately
because, unlike the majority, I would address, as did the court
of    appeals,         whether       Mary     F.-R.       forfeited          her    constitutional
challenge by failing to raise a timely objection in the circuit
court.           I    conclude       that     Mary       F.-R.    did    indeed          forfeit   her
challenge by not raising it or preserving it at the circuit
court.

        ¶70      Mary F.-R. argues that her facial challenge to the
constitutionality of Wis. Stat. § 51.20(11) cannot be forfeited.
The     majority         declines       to        address    this       issue       by    "assuming,
without deciding" that the challenge was not forfeited.                                            See

majority op. ¶34.                   The majority then proceeds to address the
merits of Mary F.-R.'s constitutional arguments.
        ¶71      "A statute enjoys a presumption of constitutionality."
State v. Smith, 2010 WI 16, ¶8, 323 Wis. 2d 377, 780 N.W.2d 90;

State v. Janssen, 219 Wis. 2d 362, 370, 580 N.W.2d 260 (1998).
"To overcome that presumption, a party challenging a statute's
constitutionality               bears        a      heavy        burden."                Smith,    323
Wis. 2d 377,            ¶8;    State         v.     Cole,    2003        WI        112,    ¶11,    264
Wis. 2d 520, 665 N.W.2d 328.                       The burden of proof is the highest
in    the     law,      as    the    challenging          party    must       "'prove       that   the
statute is unconstitutional beyond a reasonable doubt.'"                                       Smith,
323 Wis. 2d 377, ¶8 (quoting Cole, 264 Wis. 2d 520, ¶11). "This
court has repeatedly held that it 'indulges every presumption to
sustain the law if at all possible, and if any doubt exists

                                                     1
                                                                   No.    2012AP958.akz


about a statute's constitutionality, we must resolve that doubt
in   favor   of     constitutionality.'"       Cole,   264    Wis. 2d 520,         ¶11
(internal citation omitted).            I join the majority opinion which
discusses Mary F.-R.'s failure to meet this heavy burden.
      ¶72    "Normally this court will not address a constitutional
issue if the case can be disposed of on other grounds."                           State
v. Hale, 2005 WI 7, ¶42, 277 Wis. 2d 593, 691 N.W.2d 637 (citing
Labor & Farm Party v. Elections Bd., 117 Wis. 2d 351, 354, 344
N.W.2d 177        (1984);     see     also   Kollasch        v.     Adamany,       104

Wis. 2d 552, 561, 313 N.W.2d 47 (1981).                 We at least in part
granted the petition for review on the question of whether a
facial challenge to the constitutionality of a statute can be
forfeited.     The issue was briefed and argued.                  I conclude that
we should address the question.
      ¶73    Mary     F.-R.    attended      the   entire         trial     and     was
represented by able counsel.              While she initially made a 12-
person jury demand, Wis. Stat. § 51.20(11) calls for a civil 6-

person   jury.        The   circuit    court   impaneled      a     6-person       jury
pursuant to the statute.            No objection was made at the circuit
court to that 6-person jury.           The jury did not decide the matter
in Mary F.-R.'s favor.          She would now like to have a new trial
with a 12-person jury.
      ¶74    Generally, the party who wishes to raise an issue on
appeal needs to first raise the issue before the circuit court.
State v. Dowdy, 2012 WI 12, ¶5, 338 Wis. 2d 565, 808 N.W.2d 691
("As a general rule, issues not raised in the circuit court will
not be considered for the first time on appeal."). "It is a

                                         2
                                                                           No.   2012AP958.akz


fundamental principle of appellate review that issues must be
preserved at the circuit court.                         Issues that are not preserved
at     the     circuit      court,      even    alleged        constitutional        errors,
generally will not be considered on appeal."                           State v. Huebner,
2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727 (holding that a
defendant forfeited his right to challenge the six-person jury
in his misdemeanor trial by failing to object at the circuit
court        level);      State   v.     Caban,          210   Wis. 2d 597,        604,    563
N.W.2d 501         (1997)(holding       that        a    defendant   had    forfeited      his

right to challenge the admissibility of evidence against him by
failing to object at the circuit court level).                             "Raising issues
at the trial court level allows the trial court to correct or
avoid the alleged error in the first place, eliminating the need
for appeal.              It also gives both parties and the trial judge
notice       of    the    issue   and    a     fair      opportunity    to       address   the
objection." Huebner, 235 Wis. 2d 486, ¶12; Caban, 210 Wis. 2d at

609.        Here, Mary F.-R. failed to raise her objection with the

circuit court, and so the forfeiture rule1 would dispose of the
case without subjecting Wis. Stat. § 51.20(11) to constitutional
scrutiny.
        ¶75       Mary F.-R. argues that State v. Bush stands for the
proposition that she did not forfeit her challenge. 2005 WI 103,
283 Wis. 2d 90, 699 N.W.2d 80.                  In Bush this court held that the

        1
       As the majority points out, State v. Bush, 2005 WI 103,
283   Wis. 2d  90,   699  N.W.2d   80,  predates  this court's
clarification of the usage of forfeiture and waiver.       See
majority op., ¶31 n.21; State v. Ndina, 2009 WI 21, ¶29, 315
Wis. 2d 653, 761 N.W.2d 612.     The usage in Bush is properly
expressed using the term "forfeiture."

                                                3
                                                                            No.   2012AP958.akz


challenge to the constitutionality of the statute could not be
forfeited       because         at    its    heart     it    may    implicate     the    subject
matter jurisdiction of the court to hear the case in the first
instance:

       [W]hile    an   'as    applied'   challenge   to   the
       constitutionality of a statute may be waived, a facial
       challenge is a matter of subject matter jurisdiction
       and cannot be waived.         The logic behind this
       conclusion is entirely consistent with Article VII,
       Section 8 of the Wisconsin Constitution. Article VII,
       Section 8 states that '[e]xcept as otherwise provided
       by law,' circuit courts have original jurisdiction 'in
       all matters civil and criminal.'      If a statute is
       unconstitutional on its face, any action premised upon
       that statute fails to present any civil or criminal
       matter in the first instance.

283 Wis. 2d 90, ¶17 (internal citations omitted).
       ¶76     Mary F.-R. takes this language from Bush to mean that
it is impossible to forfeit a facial challenge to a statute.
However,       Bush      does    not    stand      for      the    proposition     that    every
facial       challenge      to        any    one     procedural       statute     necessarily
impacts the subject matter jurisdiction of the court.                                   In fact,
Bush challenged the constitutionality of the entirety of Chapter
980,     not       just     a        procedural        provision       of   that        chapter.
Specifically, Bush argued that the State lacked the authority to
commit       him    in    the        first    instance        under    Chapter     980     as   a
"sexually violent person."                    By contrast, Mary F.-R.'s challenge
is not that she cannot be committed under Chapter 51.                                    Rather,
she argues that she was entitled to a jury of 12 instead of a
jury of six and that she had no duty to object at the circuit




                                                   4
                                                                    No.      2012AP958.akz


court       level.2     Her   challenge,       however,     is     to    a    procedural
provision of Chapter 51, not to substantive statutes controlling
commitment under Chapter 51 as a whole.
        ¶77    I write separately because Mary F.-R. has forfeited
the right to challenge her six-person jury.                       Unlike Bush, even
if Mary F.-R. were to prevail and the jury provision were held
to be unconstitutional, Milwaukee County would not be barred
from    pursuing      her   commitment.        Instead,     the    county      would    be
required to retry her commitment, contrary to statute, with a

then 12-person jury.           Fundamentally, Mary F.-R. never objected
to the six-person jury until appeal.                 I conclude that Mary F.-
R.'s failure to object to a six-person jury at the circuit court
level       was   a    forfeiture   of        her   right     to        challenge      the
constitutionality of Wis. Stat. § 51.20(11).
        ¶78    For the foregoing reasons I concur.
        ¶79    I am authorized to state that Justices PATIENCE DRAKE
ROGGENSACK and MICHAEL J. GABLEMAN join this concurrence.




        2
       It is noteworthy that, in each of the cases cited by Mary
F.-R., the constitutional challenges were first raised in the
circuit court.   See, e.g., Bush, 283 Wis. 2d 90, ¶11; State v.
Trochinski, 2002 WI 56, ¶7, 253 Wis. 2d 38, 644 N.W.2d 891;
State v. Cole, 2003 WI 112, ¶2, 264 Wis. 2d 520, 665 N.W.2d 328;
State v. Molitor, 210 Wis. 2d 415, 418, 565 N.W.2d 248 (Ct. App.
1997); State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528, 530,
280 N.W.2d 316 (Ct. App. 1979).

                                          5
    No.   2012AP958.akz




1
