                                                         2019 WI 26

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2017AP1618-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Appellant-Petitioner,
                             v.
                        Michael A. Keister,
                                  Defendant-Respondent.

                           REVIEW OF DECISION OF THE COURT OF APPEALS

OPINION FILED:          March 19, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          January 18, 2019

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Iowa
   JUDGE:               William Andrew Sharp

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:


       For the plaintiff-appellant-petitioner, there were briefs
filed by Tiffany M. Winter, assistant attorney general. With
whom on the briefs is Brad D. Schimel, attorney general. There
was an oral argument by Tiffany M. Winter.


       For the defendant-respondent, there was a brief filed by
Jeremy C. Perri, assistant state public defender. There was an
oral argument by Jeremy C. Perri.
                                                                            2019 WI 26
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.   2017AP1618-CR
(L.C. No.    2015CF193)

STATE OF WISCONSIN                                :             IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Appellant-Petitioner,
                                                                         FILED
      v.                                                            MAR 19, 2019

Michael A. Keister,                                                    Sheila T. Reiff
                                                                    Clerk of Supreme Court

             Defendant-Respondent.




      REVIEW of a decision of the Court of Appeals.                          Reversed;
circuit court order vacated.


      ¶1     PER      CURIAM.   The    court   of      appeals      dismissed        this

appeal as moot.           We reverse that order and address the Iowa
County       Circuit      Court's      decision       declaring         Wis.       Stat.
§§ 165.95(1)(a) and (3)(c) (2015-16)1 unconstitutional as applied
to Michael Keister.         We granted the State's petition for review
asking      us   to    consider:      (1)    whether      an    individual        has    a
fundamental      liberty    interest    in   continued         participation        in   a
treatment court funded by § 165.95; and (2) whether § 165.95

      1All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
                                                                      No.     2017AP1618-CR



must define expulsion procedures for treatment courts in order
to     survive      a   procedural      due       process    challenge.            Keister,
however, now concedes both issues and agrees with the State that
the        circuit      court     erred           in     declaring         the        statute
unconstitutional.         We vacate the order of the circuit court.2
       ¶2     The facts relevant to this appeal are summarized as
follows.       In November 2015, Keister overdosed on heroin while on
extended supervision in two Sauk County felony cases.                                  Later
that month, Keister voluntarily applied for admission to the
Iowa County Drug Treatment Court program.                       Keister was charged
with possession of heroin and drug paraphernalia in Iowa County
in December 2015 as a result of his heroin overdose.                             In August

2016, Keister picked up new charges in Sauk County.3                               Based on
the new Sauk County charges, the State moved to expel Keister
from the Iowa County Drug Treatment Court program pursuant to
Wis.       Stat.    § 165.95(3)(c).           Keister       advised    that      he    would
challenge the expulsion on constitutional grounds.
       ¶3     In     January    2017,    with      the    expulsion        hearing     still

pending, Keister pled no contest to possession of heroin in Iowa
County.4       The State agreed to make the following conditional



       2
       The         Honorable    William       Andrew        Sharp     of    Iowa       County
presided.
       3
       Keister   was    charged    with   substantial                              battery,
strangulation/suffocation, and felony bail jumping.
       4
       In exchange, the State dismissed the drug paraphernalia
charge.


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                                                                    No.    2017AP1618-CR



sentencing recommendations:              (1) if Keister was not expelled
from the Iowa County Drug Treatment Court program, the State
would     recommend    two      years    of      probation,       conditioned       upon
participation in and completion of the program; (2) if Keister
was expelled from the Iowa County Drug Treatment Court program,
the State would recommend four months in jail.                            A sentencing
date was set off into the future.
     ¶4        In February 2017, Keister filed a motion challenging
the constitutionality of Wis. Stat. §§ 165.95(1)(a) and (3)(c).
Keister asserted that the statute violated his substantive and
procedural      due   process      rights       because    it   required     mandatory
expulsion of a "violent offender" from drug treatment court with

no requirement that the allegations be proven and no meaningful
opportunity to be heard prior to expulsion.                      The circuit court
issued    a     declaratory        judgment      in   July      2017,     ruling    that
§§ 165.95(1)(a)       and (3)(c) violated Keister's substantive                      and
procedural due process rights.5                   The circuit court held that
Keister faced potential deprivation of his liberty as a result

of §§ 165.95(1)(a) and (3)(c) and that there was no compelling
state interest to justify infringing on Keister's fundamental
liberty    interest.         The    circuit      court    further    held    that    the
filing    of    the   Sauk    County    criminal         complaint      alleging    that
Keister was a violent offender was the only process provided by



     5 The circuit court also granted Keister's motion to dismiss
the State's motion to expel Keister from drug treatment court.


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                                                                No.     2017AP1618-CR



§ 165.95 and that therefore the statute deprived Keister of his
liberty without any procedural due process.
      ¶5   The    State     appealed       the   circuit     court's      decision.
Two months later, the new charges filed against Keister in Sauk
County were dismissed.        Keister did not have an offense pending
and thus no longer met the definition of "violent offender" for
purposes of the motion to expel.              Keister was, however, revoked
from his extended supervision and sentenced to prison.                         Keister
was   eventually    placed        on    probation      for     three    years     for
possession of heroin in Iowa County, with the condition that he
successfully     complete    the       Iowa   County    Drug    Treatment        Court
program.

      ¶6   We first note that although this case is moot with
respect to Keister, we accepted this petition because the issues
involved   are    likely     to    arise      again    and   this      court     could
alleviate uncertainty.       See State v. Morford, 2004 WI 5, ¶7, 268

Wis. 2d 300, 674 N.W.2d 349.6


      6We acknowledge that reviewing courts generally decline to
decide moot issues but may do so under certain circumstances.
State v. Morford, 2004 WI 5, ¶7, 268 Wis. 2d 300, 674 N.W.2d
349.    However, this court has held that it may decide an
otherwise moot issue if it:

      (1) [I]s of great public importance; (2) occurs so
      frequently that a definitive decision is necessary to
      guide circuit courts; (3) is likely to arise again and
      a decision of the court would alleviate uncertainty;
      or (4) will likely be repeated, but evades appellate
      review because the appellate review process cannot be
      completed or even undertaken in time to have a
      practical effect on the parties.

                                                                        (continued)
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                                                                         No.    2017AP1618-CR



       ¶7      Wisconsin            Stat.     § 165.95(2)      provides,       in    relevant
part, that the Wisconsin Department of Justice shall make grants
to counties and tribes "to enable them to establish and operate
programs . . . that                 provide    alternatives       to     prosecution      and
incarceration for criminal offenders who abuse alcohol or other
drugs."       The statute further sets forth rules and guidelines for
programs receiving grant funds.                       Section 165.95(3)(c) requires
that programs created pursuant to the grant program establish
criteria for a person's participation, including criteria that
specifies       that       a     "violent        offender"      is     not     eligible       to
participate         in   the        program.        Section    165.95(1)(a)         defines    a
"violent offender" as a person who "has been charged with or

convicted of an offense in a pending case and, during the course
of     the    offense,         the    person     carried,      possessed,       or    used     a
dangerous weapon, the person used force against another person,
or a person died or suffered serious bodily harm."7
       ¶8      Substantive and procedural due process rights emanate
from the Fourteenth Amendment.                        Penterman v. Wisconsin Elec.

Power Co., 211 Wis. 2d 458, 473, 565 N.W.2d 521 (1997); see also
Wis.       Const.   art.       I,    § 8.      To    succeed    on   a   substantive         due
process claim, a party must demonstrate that he or she has been


Id.    This appeal satisfies (3).
       7
       This   subsection  was   renumbered   to    Wis.   Stat.
§ 165.95(1)(bg)1. due to 2017 Wis. Act 351.     Wisconsin Stat.
§ 165.95(1)(b), which provides an alternative definition of
"violent offender," renumbered to § 165.95(1)(bg)2., does not
apply.


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                                                                            No.     2017AP1618-CR



deprived      of         a     liberty       or        property     interest             that   is
constitutionally protected.                  Penterman, 211 Wis. 2d at 480; see

also    Board       of    Regents      v.    Roth,       408   U.S.     564,       577    (1972).
Fundamental liberty interests are interests "so rooted in the
traditions      and       conscience        of    our    people    as    to    be      ranked    as
fundamental."             United      States      v.    Salerno,      481     U.S.       739,   751
(1987).     Where            there    is     no       fundamental        liberty         interest
implicated, the legislative enactment must be sustained "unless
it is 'patently arbitrary' and bears no rational relationship to
a    legitimate          government        interest."          State     v.       McManus,      152
Wis. 2d 113, 131, 447 N.W.2d 654 (1989).
       ¶9     The circuit court held that because Keister could be

sentenced to jail for possession of heroin if he were to be
expelled from the Iowa County Drug Treatment Program, Wis. Stat.
§ 165.95 implicated a fundamental liberty interest.                                 Keister now
concedes and the State agrees that § 165.95 does not create a
fundamental liberty interest.                         We concur that § 165.95 which
helps fund, but does not create, drug treatment programs, is not
so rooted in the traditions and conscience of our people so as
to   create     a    fundamental           liberty      interest.         It      is   therefore
sufficient that § 165.95 be rationally related to a legitimate
government      interest.             Section 165.95(3)(b)              provides         that   the
grant    program         is    designed     to    "promote        public      safety,      reduce
prison      and          jail        populations,         reduce         prosecution            and
incarceration costs, reduce recidivism, and improve the welfare
of participants' families by meeting the comprehensive needs of
participants."            We conclude that the State has a rational basis
                                                  6
                                                                           No.    2017AP1618-CR



to   exclude       violent        offenders          from       drug    treatment      programs
because they may have additional treatment and supervision needs
and may also have their progress in the treatment court program
hampered by the possibility of incarceration in a pending case.
         ¶10    The circuit court further concluded that because Wis.
Stat. § 165.95 does not provide procedures for expulsion from
drug treatment programs for persons labeled "violent offenders,"
the statute violated Keister's procedural due process rights.
To prove a procedural due process violation, a party must show
"a deprivation by state action of a constitutionally protected
interest in 'life, liberty or property' without due process of
law."         Thorp v. Town of Lebanon, 2000 WI 60, ¶53, 235 Wis. 2d

610, 612 N.W.2d 59 (quoted source omitted).
         ¶11    The parties concede that because Wis. Stat. § 165.95
is   a       funding    statute,    it     need      not     set   forth     procedures     for
expulsion        in      order     to     survive       a       procedural       due    process
challenge.         We agree.            Section 165.95 gives discretion to the
individual counties to define rules and procedures for their
treatment programs, including expulsion procedures.                                We decline
to   address           the   procedures         used       by    Iowa    County        regarding
expulsion        from     the    Iowa    County       Drug      Treatment    Court      program
because        those     procedures       are    not    in      the    record    and    Keister
himself was never subject to those procedures.8                               We decline to

         8
       Keister was ultimately not deprived of a liberty or
property interest as he was given the opportunity to continue
his participation in the Iowa County Drug Treatment Court
program.


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                                                                   No.        2017AP1618-CR



exercise    our    superintending         authority    here,       as    suggested       by
Keister, because the "necessities of justice" do not require it.
Arneson    v.    Jezwinski,    206   Wis. 2d        217,   225,     556       N.W.2d    721

(1996).
     ¶12    We agree with the parties' concessions and conclude
that Keister does not have a fundamental liberty interest in
continued    participation      in   a     treatment       court    funded         by   Wis.
Stat. § 165.95 and that as a funding statute, § 165.95 need not
provide expulsion procedures to survive a procedural due process
challenge.        Accordingly,       we    summarily       reverse           the   circuit
court's declaratory judgment order.
     By    the    Court.—The   decision        of   the    court        of    appeals    is

reversed; circuit court order vacated.




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    No.   2017AP1618-CR




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