                                                                       2016 WI 1

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:              2014AP1048
COMPLETE TITLE:        In the matter of the mental commitment of
                       Christopher S.:

                       Winnebago County,
                                 Petitioner-Respondent,
                            v.
                       Christopher S.,
                                 Respondent-Appellant.

                             ON CERTIFICATION FROM THE COURT OF APPEALS
                                             (No Cites)

OPINION FILED:         January 5, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 18, 2015

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Winnebago
   JUDGE:              Scott C. Woldt

JUSTICES:
   CONCURRED:
   CONCUR & DISSENT:   ABRAHAMSON, A.W.BRADLEY, J.J., concur and
                       dissent. (Opinion Filed)
  NOT PARTICIPATING:   R.G. BRADLEY, did not participate.

ATTORNEYS:
       For the respondent-appellant, there were briefs by Kaitlin
A. Lamb, assistant state public defender and oral argument by
Kaitlin A. Lamb.


       For the petitioner-respondent, there was a brief by James
A. Kearney, assistant corporation counsel, and oral argument by
James A. Kearney.


       An amicus curiae          brief   was filed    by   Maura F.J. Whelan,
assistant         attorney    general,   and   Brad   D.    Schimel,    attorney
general, on behalf of the Wisconsin Department of Justice.
2
                                                                                 2016 WI 1
                                                                        NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.   2014AP1048
(L.C. No.   2012ME5572)

STATE OF WISCONSIN                                 :            IN SUPREME COURT

In the matter of the mental commitment of
Christopher S.:



Winnebago County,                                                          FILED
             Petitioner-Respondent,
                                                                        JAN 5, 2016
      v.
                                                                        Diane M. Fremgen
                                                                     Clerk of Supreme Court
Christopher S.,

             Respondent-Appellant.




      APPEAL    from      orders   issued     by       the     Circuit       Court      for

Winnebago County, Scott C. Woldt, Judge.                 Affirmed.



      ¶1     MICHAEL      J.   GABLEMAN,     J.     This      is    a     review     of    a

circuit     court's1   order     for   the   involuntary           commitment      of     an

inmate to a mental health facility, order for the involuntary


      1
       The Honorable Scott C. Woldt, Winnebago County Circuit
Court, presided.
                                                      No.    2014AP1048



administration of psychotropic medication and treatment to that

inmate, and order denying postcommitment relief. The involuntary

commitment of an inmate of the Wisconsin state prison system for

mental    health    care    is        governed   by   Wis.      Stat.

§ 51.20(1)(ar)(2013-14).2   The   involuntary    administration     of


     2
       All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.

     For clarity and consistency, we will refer to Wis. Stat.
§ 51.20(1)(ar) as either Wis. Stat. § 51.20(1)(ar) or the inmate
commitment statute. It contains the following:

          (ar) If the individual is an inmate of a state
     prison, the petition may allege that the inmate is
     mentally ill, is a proper subject for treatment and is
     in need of treatment. The petition shall allege that
     appropriate less restrictive forms of treatment have
     been attempted with the individual and have been
     unsuccessful and it shall include a description of the
     less   restrictive  forms   of   treatment  that  were
     attempted. The petition shall also allege that the
     individual has been fully informed about his or her
     treatment needs, the mental health services available
     to him or her under this chapter and that the
     individual has had an opportunity to discuss his or
     her needs, the services available to him or her and
     his or her rights with a licensed physician or a
     licensed psychologist. The petition shall include the
     inmate's sentence and his or her expected date of
     release as determined under s. 302.11 or 302.113,
     whichever is applicable. The petition shall have
     attached to it a signed statement by a licensed
     physician or a licensed psychologist of a state prison
     and a signed statement by a licensed physician or a
     licensed psychologist of a state treatment facility
     attesting to either of the following:

          1. That the inmate needs inpatient treatment at a
     state treatment facility because appropriate treatment
     is not available in the prison.

                                                        (continued)
                                  2
                                                            No.   2014AP1048



medication or treatment3 to an individual is governed by Wis.

Stat. § 51.61(1)(g).4 While Christopher S. ("Christopher") was

         2. That the inmate's treatment needs can be met
    on an outpatient basis in the prison.
    3
       Stedman's Medical Dictionary defines medication as "[t]he
act of medicating," or "[a] medicinal substance, or medicament."
Stedman's Medical Dictionary 1077 (27th ed. 2000).

     It defines psychotropic as "[c]apable of affecting                 the
mind, emotions, and behavior; denoting drugs used in                    the
treatment of mental illnesses." Id. at 1480.

     And it defines treatment as "[m]edical or surgical
management of a patient." Id. at 1866. The definition refers to
"therapy, therapeutics." Therapy means "[t]he treatment of
disease or disorder by any method," or "[i]n psychiatry, and
clinical psychology, a short term for psychotherapy." Id. at
1821. Finally, psychotherapy means "[t]reatment of emotional,
behavioral   personality,   and   psychiatric   disorders   based
primarily   upon   verbal   or    nonverbal   communication   and
interventions with the patient, in contrast to treatments
utilizing chemical and physical measures." Id. at 1479.
    4
        For clarity and consistency, we will refer to Wis. Stat.
§ 51.61(1)(g) as either Wis. Stat. § 51.61(1)(g) or the
involuntary medication and treatment statute. It reads as
follows:

         Except   as   provided   in   sub.   (2),   each    patient
    shall:

          . . . .

         (g)   Have   the   following  rights,   under            the
    following   procedures,    to  refuse   medication            and
    treatment:

         1. Have the right to refuse all medication and
    treatment except as ordered by the court under subd.
    2., or in a situation in which the medication or
    treatment is necessary to prevent serious physical
    harm to the patient or others. . . .

          . . . .
                                                              (continued)
                                  3
                                                         No.    2014AP1048



serving   his   sentence   for   mayhem,   Winnebago   County   filed   a

petition for the examination of a state prison inmate pursuant

to Wis. Stat. § 51.20(1)(ar). The County sought commitment in

the Wisconsin Resource Center ("WRC")5 because Christopher was

suffering from mental illness and because the WRC could meet

Christopher's treatment needs. In addition, the County filed a


         4. For purposes of a determination under subd. 2.
    or 3., an individual is not competent to refuse
    medication or treatment if, because of mental illness,
    developmental    disability,    alcoholism   or   drug
    dependence, and after the advantages and disadvantages
    of and alternatives to accepting the particular
    medication or treatment have been explained to the
    individual, one of the following is true:

         a. The individual is incapable of expressing an
    understanding of the advantages and disadvantages of
    accepting    medication  or    treatment   and   the
    alternatives.

         b. The individual is substantially incapable of
    applying   an   understanding    of   the   advantages,
    disadvantages and alternatives to his or her mental
    illness, developmental disability, alcoholism or drug
    dependence in order to make an informed choice as to
    whether to accept or refuse medication or treatment.
    5
       "The Wisconsin Resource Center (WRC) is administered by
the Wisconsin Department of Health Services in partnership with
the Wisconsin Department of Corrections. [The] WRC is a
specialized mental health facility established as a prison under
s. 46.056, Wisconsin Statutes." Wis. Dep't of Health Servs.,
https://www.dhs.wisconsin.gov/wrc/index.htm (last visited Nov.
6, 2015); see also Wis. Stat. § 46.056(1) ("[T]he department
shall have responsibility for administering the [WRC] as a
correctional    institution     that    provides   psychological
evaluations,   specialized   learning  programs,  training   and
supervision for inmates whose behavior presents a serious
problem to themselves or others in the state prisons and whose
mental health needs can be met at the center.").


                                    4
                                                                              No.    2014AP1048



petition      for       the    involuntary     administration           of     psychotropic

medication              and     treatment         pursuant         to         Wis.        Stat.

§ 51.61(1)(g)4.b.

       ¶2     The circuit court granted the County's petition for

the involuntary commitment of Christopher for mental health care

as     well    as        the     County's     petition       for        the     involuntary

administration            of    psychotropic      medication       and        treatment     to

Christopher.             Christopher      filed      a   postcommitment                  motion

challenging both orders. The circuit court denied the motion,

and Christopher appealed. The court of appeals certified the

case to this court pursuant to Wis. Stat. § 809.61. We accepted

certification on May 11, 2015.

       ¶3     Christopher makes three arguments on appeal. First, he

argues that Wis. Stat. § 51.20(1)(ar) violates his substantive

due process rights and is, therefore, facially unconstitutional.

More     specifically,            Christopher       claims         that        Wis.      Stat.

§ 51.20(1)(ar)           is    unconstitutional      because       it     authorizes        the

involuntary commitment of an inmate without first finding the
inmate dangerous.

       ¶4     Second, Christopher argues in the alternative that if

we   refuse        to    hear    his   constitutional        challenge,             we   should

consider whether his trial attorney performed ineffectively by

failing       to    challenge       the     constitutionality            of     Wis.     Stat.

§ 51.20(1)(ar).           Christopher       makes   clear     that       he     raises     his

ineffective assistance of counsel argument only if we refuse to

hear his constitutional challenge. Because we address the merits


                                              5
                                                                        No.     2014AP1048



of Christopher's constitutional claim,6 we will not address his

claim of ineffective assistance of counsel.

      ¶5     Third,      Christopher    contends     that        the    circuit    court

erred     when    it    concluded    that   Christopher      was       incompetent     to

refuse psychotropic medication and treatment pursuant to Wis.

Stat.     § 51.61(1)(g).         Christopher     relies     on    our     decision     in

Outagamie County v. Melanie L., 2013 WI 67, 349 Wis. 2d 148, 833

N.W.2d 607, to challenge the way the circuit court applied the

evidence presented at the involuntary medication and treatment

hearing      to        the    requirements       contained        in      Wis.     Stat.

§ 51.61(1)(g). More specifically, Christopher argues that the

evidence presented at the involuntary medication and treatment

hearing did not support a finding that the County complied with

the       statutory          requirements       contained        in      Wis.      Stat.

§ 51.61(1)(g)4.b.

      ¶6     We pause briefly to point out what Christopher does

not argue. Christopher does not make an as applied challenge

against      Wis.       Stat.    § 51.20(1)(ar),      the        inmate       commitment




      6
       Christopher did not raise his facial challenge prior to
making his postcommitment motion. Nonetheless, review is
appropriate because "a facial challenge is a matter of subject
matter jurisdiction and cannot be waived." State v. Bush, 2005
WI 103, ¶¶17, 14-19, 283 Wis. 2d 90, 699 N.W.2d 80 (citing State
v. Cole, 2003 WI 112, ¶46, 464 Wis. 2d 520, 665 N.W.2d 328).


                                            6
                                                                             No.     2014AP1048



statute.7 Additionally, Christopher does not in any way challenge

the constitutionality of the involuntary medication or treatment

statute, Wis. Stat. § 51.61(1)(g).

     ¶7    We      proceed         to      consider         two     issues         raised   by

Christopher.     The       first    is     whether      Wis.      Stat.    § 51.20(1)(ar)

violates   an    inmate's      substantive           due    process       rights     and    is,

therefore, facially unconstitutional. The second is whether the

circuit    court      erred        when    it       found    that     Winnebago        County

established by clear and convincing evidence that Christopher

was incompetent to refuse psychotropic medication and treatment.

     ¶8    As    to    the     first       issue,      we     hold    that     Wis.     Stat.

§ 51.20(1)(ar)        is     facially           constitutional         because         it   is

reasonably      related       to     the    State's         legitimate        interest      in

providing care and assistance to inmates suffering from mental

illness. As to the second issue, we affirm the circuit court

because it did not err when it found by clear and convincing

evidence that Christopher was incompetent to refuse psychotropic

medication and treatment.




     7
       Christopher has filed a motion to strike a portion of
Winnebago County's response brief that argues, "Wis. Stat.
§ 51.20(1)(ar) is not unconstitutional as applied to Christopher
S." Christopher did not raise an as applied challenge in the
court of appeals, nor did he raise an as applied challenge
before this court. At oral argument, both parties agreed that
the motion to strike should be granted. We grant the motion to
strike and, therefore, will not consider an as applied challenge
against Wis. Stat. § 51.20(1)(ar).


                                                7
                                                                                No.    2014AP1048



               I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY



       ¶9      At     all        times     relevant          to       these      proceedings,

Christopher was an inmate of the Wisconsin state prison system.

In 2005, Christopher was convicted of mayhem as a repeater, in

violation of Wis. Stat. § 940.21 (2001-02).8 As a result of his

conviction,         Christopher          was     sentenced        to        twenty    years   of

confinement, consisting of ten years of incarceration followed

by ten years of extended supervision.

       ¶10     In 2012, Fox Lake Correctional Institution received a

complaint from Christopher that his cellmate sexually assaulted

him.       Subsequent       to     his     complaint,           Fox     Lake     Correctional

Institution         transferred         Christopher        to     the   WRC     in    Winnebago

County.

       ¶11     Dr. Michlowski, medical director for the WRC, spoke

with       Christopher      soon    after       he   was   admitted.          Dr.     Michlowski

outlined his conversation with Christopher in a letter to Mr.

Bartow,       director      of    the    WRC.     In   the      letter,       Dr.     Michlowski
wrote, "[Christopher] understood that he was being referred to

the WRC because he is 'being commissioned'                                  by the 'military

command       to    produce       castings,'         for     'engineering            purposes.'"

Subsequent interactions between Christopher and WRC personnel

revealed       that     Christopher            believed      he       was     "programmed     by

       8
       The mayhem statute, Wis. Stat. § 940.21 (2001-02) states,
"Whoever, with intent to disable or disfigure another, cuts or
mutilates the tongue, eye, ear, nose, lip, limb, or other bodily
member of another, is guilty of a Class B felony."


                                                 8
                                                                         No.    2014AP1048



'Special Operations,'" and he "insisted that there [were] chips

in    his   hands       and    shoulder."       Eventually,          doctors      x-rayed

Christopher's hand in an effort to convince Christopher of his

need for psychotropic medication.9 The x-ray came back normal,

but   Christopher        disregarded       it     because        "the     x-ray      can't

penetrate Beryllium."

      ¶12   In his letter, Dr. Michlowski also informed Mr. Bartow

of an incident that occurred on September 16, 2012. On that day,

an officer at the WRC ordered Christopher to eat in the dayroom.

Christopher refused that order and began to "posture and loudly

indicate    that    the       officer    giving     him    the    order        had   raped

[Christopher]      while       [Christopher]      was     in   the      military."     Dr.

Michlowski requested via his letter that "[the County] petition

the court to find that [Christopher] is suffering from a major

mental illness (presently psychotic)." In that same letter, Dr.

Michlowski mentioned that Christopher was seeing Dr. Keshena but

that Christopher "made it clear to [Dr. Keshena] that he does

not   believe      he    has    any     psychotic       problems."       Finally,     Dr.
Michlowski opined that "[Christopher] is clearly delusional at

this time and although he did consider taking medication several

weeks ago, his illness at this time is clearly precluding him

from acting in his own best interest."




      9
       Christopher had previously told Dr. Michlowski that "if
the x-ray turned out to be normal that he would be more inclined
to accept a trial of medication."


                                           9
                                                                                    No.    2014AP1048



       ¶13     On    November           2,    2012,      Dr.       Maria     Murgia       de     Moore

conducted a two-hour clinical interview with Christopher. She

did so at the request of the WRC. Based on this interview, a

review of the WRC's records, and discussions with WRC staff, Dr.

Murgia de Moore concluded that Christopher "suffers from a major

mental    illness       (Psychotic            Disorder,         Not   Otherwise           Specified)

that     is     characterized            by    disorganized           speech,        disorganized

thinking, delusions, and poor judgment." Finally, Dr. Murgia de

Moore    recommended          that       Christopher          be    committed        and       further

recommended         that     he    be    treated         with   appropriate          psychotropic

medications.

       ¶14     Later that November, Winnebago County filed a petition

for the involuntary commitment of Christopher pursuant to Wis.

Stat. § 51.20(1)(ar) as well as a petition for the involuntary

administration          of      psychotropic             medication         and     treatment        to

Christopher pursuant to Wis. Stat. § 51.61(1)(g)4.b. Following a

probable cause hearing, the court ordered Drs. J.R. Musunuru and

Yogesh        Pareek    to        examine       Christopher           for     the     purpose        of
determining his mental condition.

       ¶15     Dr.     Musunuru          conducted        a     one-hour          interview       with

Christopher and also reviewed his medical records from the WRC.

In his letter to the court, Dr. Musunuru described Christopher

as "mildly anxious," "irritable," "distractib[le]," "extremely

paranoid,"       "preoccupied            with       persecution,         mistrust,         and    [the

idea that] someone is going to hurt him," and "vague about his

hallucinations."           In     that       same    letter,       Dr.      Musunuru      diagnosed
Christopher         with     "Schizophrenia              Paranoid      type,"       which       is   "a
                                                    10
                                                                      No.   2014AP1048



substantial disorder of thought, mood, perception, which grossly

impairs judgment, behavior, capacity to recognize reality, or

the ability to meet the ordinary demands of life." Based on this

diagnosis, Dr. Musunuru recommended psychotropic medication and

noted     that      "the        advantages     and    disadvantages         and    the

alternatives        to     accepting         particular       medications     [were]

explained to the subject in detail[]." However, Dr. Musunuru

also found that "the subject holds patently false beliefs about

the     treatment        recommended     medications,         which    prevent      an

understanding       of    the    legitimate    risk     and   benefits.     They   are

denial of illness and trust in his delusions." As a result, Dr.

Musunuru concluded that "due to the subject's mental illness,

the     subject     is     substantially        incapable       of    applying      an

understanding of the advantages, disadvantages, and alternatives

to make an informed choice as to accept or refuse medications."

      ¶16   Similarly to Dr. Musunuru, Dr. Pareek conducted a one-

hour interview with Christopher and also reviewed Christopher's

medical records from the WRC. In a letter to the circuit court,
Dr.   Pareek     diagnosed       Christopher     with     "Schizophrenia     chronic

paranoid type" and noted that "[Christopher] has no insight into

his mental illness and he does not accept that he needs to be

treated." Finally, Dr. Pareek recommended that Christopher be

committed and medicated.

      ¶17   On December 21, 2012, a jury trial was held for the

purpose     of      determining        whether        Christopher       should      be




                                         11
                                                                             No.   2014AP1048



involuntarily        committed        under       Wis.     Stat.       § 51.20(1)(ar).10

Christopher    was        present    for   trial,        but   he     did    not   testify.

Winnebago     County        called     two        witnesses,        Drs.      Keshena    and

Musunuru.

       ¶18   Dr.     Keshena         testified        that       she        had    reviewed

Christopher's       medical    records,       observed         him,    and    conducted    a

mental-status evaluation on him. Based on this, she diagnosed

Christopher        with     "psychosis"       and     noted      that        Christopher's

psychosis "grossly" impairs "his capacity to recognize reality."

Additionally,       Dr.     Keshena    testified          that      she     believed    that

Christopher was a proper subject for treatment and that his type

of illness responded well to treatment. She further testified

that she had attempted less restrictive forms of treatment with

Christopher, but those forms were unsuccessful.11 Finally, Dr.

Keshena testified that she had fully informed Christopher about

his treatment needs, the availability of mental health services,

his rights, and his ability to discuss this information with

her.
       ¶19   Dr. Musunuru testified that he reviewed Christopher's

records and conducted an interview with Christopher. Based on


       10
       The sole issue for the jury was whether the County proved
the requirements outlined in Wis. Stat. § 51.20(1)(ar).
       11
       The petition stated, "appropriate less restrictive forms
of treatment were attempted with the subject inmate and were
unsuccessful, including: voluntary treatment with psychotropic
med[ication]s and voluntary transfer to special unit within the
institution for spec[ial] care of mental illness."


                                             12
                                                                             No.    2014AP1048



this, he concluded that Christopher "suffers from a major mental

illness"     called          "schizophrenia         paranoid    type."       Dr.     Musunuru

further     testified             that   Christopher's         illness       substantially

impairs his "judgment, behavior, capacity to recognize reality,

and also, [his] ability to meet [the] ordinary demands of life."

Like Dr. Keshena, Dr. Musunuru testified that Christopher was a

proper subject for treatment.

      ¶20    While          the   jury   was    deliberating,       the     circuit       court

conducted a bench trial for the purpose of determining whether

to    grant       the         County's         petition      for      the         involuntary

administration of psychotropic medication and treatment pursuant

to Wis. Stat. § 51.61(1)(g)4.b.12 The County called Dr. Keshena

as a witness. Dr. Keshena testified that she had an opportunity

to   explain      to    Christopher       the       advantages,     disadvantages,          and

alternatives           to     medication.        Further,       she        testified      that

Christopher        was        substantially          incapable        of     applying       an

understanding of the advantages, disadvantages, and alternatives

to his mental illness in order to make an informed choice as to
whether to refuse psychotropic medications. Finally, on cross-

examination, she explained that Christopher was previously on

lithium     and   that        Christopher       told   her     he   did     not    have   side

      12
        Unlike the inmate commitment statute, the involuntary
medication or treatment statute does not contain a right to a
jury trial. Wisconsin Stat. § 51.61(1)(g)3., outlines the
involuntary medication or treatment hearing requirements: "The
hearing under this subdivision shall meet the requirements of
s. 51.20(5), except for the right to a jury trial." (Emphasis
added.)


                                               13
                                                                  No.   2014AP1048



effects from the lithium but that he also believed it was a

placebo.

       ¶21     That same day, the jury reached a verdict. The jury

made    five    findings:      (1)    Christopher     was   mentally    ill,    (2)

Christopher was a proper subject for treatment and in need of

treatment, (3) Christopher was an inmate of the Wisconsin state

prison       system,    (4)   appropriate      less    restrictive      forms    of

treatment were attempted with Christopher but were unsuccessful,

and (5) Christopher was fully informed of his treatment needs,

the mental health services available to him, his rights, and

Christopher      had     an   opportunity     to    discuss   his    needs,     the

services available, and his rights with a licensed physician.13

In   accordance        with   the    jury's   findings,     the   circuit     court

granted the County's petition for involuntary commitment for six

months.14 The court ordered Christopher committed to the WRC.



       13
       The jury's findings tracked the requirements outlined in
Wis. Stat. § 51.20(1)(ar).
       14
       The court's role at the end of the jury trial includes
the following:

       [A]t the conclusion of the proceedings, the court
       shall . . . [i]f the individual is an inmate of a
       state prison and the allegations under sub. (1)(a) or
       (ar) are proven, order commitment to the department
       and either authorize the transfer of the inmate to a
       state treatment facility or if inpatient care is not
       needed authorize treatment on an outpatient basis in
       the prison . . . .

Wisconsin Stat. § 51.20(13)(a)(4) (emphasis added).


                                         14
                                                                                 No.    2014AP1048



     ¶22    The court also granted the County's petition for the

involuntary       administration              of      psychotropic          medication          and

treatment,      concluding         that       "[Christopher]            does     not     have    an

understanding        of     the     advantages             and    disadvantages          of     the

medication." The court added, "I find that the medication has a

therapeutic       value      and        would        not     hinder        his     ability       to

participate in future legal proceedings, and therefore, issue a

medication      order."      According           to    the       court's    written        order,

Christopher was incompetent to                       refuse psychotropic medication

and treatment because he "is substantially incapable of applying

an   understanding           of     the        advantages,             disadvantages,           and

alternatives to [his] condition in order to make an informed

choice     as   to        whether       to     accept        or        refuse     psychotropic

medications." Both the commitment order and the medication order

were subsequently extended after the original orders expired.

     ¶23    Christopher's attorney filed a postcommitment motion

challenging the court's order for the involuntary commitment of

Christopher     and       order     for      the      involuntary        administration          of
psychotropic      medication            and      treatment         to     Christopher.          The

circuit court denied postcommitment relief; it concluded that

Christopher's      motion         was     moot       because      he    appealed        only    the

original    commitment       and        medication         orders,       which    had     already

expired.    The    circuit         court      did      not       address    the        merits    of

Christopher's argument that Wis. Stat. § 51.20(1)(ar) violated

the constitution. Christopher appealed, and the court of appeals

certified the case to this court. We accepted certification.


                                                15
                                                                         No.    2014AP1048



                                     II. DISCUSSION



      ¶24     We    first      discuss     whether     Wis.    Stat.    § 51.20(1)(ar)

violates      an    inmate's     substantive        due    process     rights    and    is,

therefore, facially unconstitutional. We hold that Wis. Stat.

§ 51.20(1)(ar)          is      facially     constitutional           because     it     is

reasonably         related      to   the     State's      legitimate         interest   in

providing care and assistance to inmates suffering from mental

illness. We then consider whether the circuit court erred when

it    found      that     Winnebago        County    established        by     clear    and

convincing evidence that Christopher was incompetent to refuse

psychotropic medication. We hold that the circuit court did not

err    because          the     medical       expert's        undisputed        testimony

sufficiently addressed and met the requirements outlined in Wis.

Stat. § 51.61(1)(g)4.b.



                               A. THE RELEVANT STATUTES


      ¶25     Because it is important to understand the commitment

and treatment process, we take a moment to outline the way the

relevant statutes work.

      ¶26     A county may petition for the involuntary commitment

of an individual under Wis. Stat. § 51.20(1). Wisconsin Stat.

§ 51.20     is     titled     "involuntary        commitment    for    treatment."       It

governs     how     and       when   the    State    may      seek    the     involuntary

commitment of a person, except when that person is an inmate of
the Wisconsin state prison system. Wisconsin Stat. § 51.20(1)
                                             16
                                                                         No.     2014AP1048



carves    out    a   special       subsection,       subsection      (1)(ar),          which

governs the involuntary commitment of inmates of the Wisconsin

state     prison     system.       To     commit     someone     under     Wis.        Stat.

§ 51.20(1),      a   court     must       conclude      that   the   person       is    (1)

mentally ill, developmentally disabled, or drug dependent; (2) a

proper subject for treatment; and (3) dangerous.15

     ¶27    In     contrast,       to    commit    an   inmate   under         Wis.   Stat.

§ 51.20(1)(ar), a county must show that (1) the individual is an

inmate of the Wisconsin state prison system; (2) the inmate is

mentally ill; (3) the inmate is a proper subject for treatment

and is in need of treatment; (4) appropriate less restrictive

forms of treatment were attempted with the inmate, and they were

unsuccessful;        (5)   the     inmate     was    fully     informed        about    his

treatment needs, the mental health services available, and his

rights; and (6) the inmate had an opportunity to discuss his

treatment needs, the services available, and his rights with a



     15
       Wisconsin           Stat.        § 51.20(1)      contains     the        following
requirements:

     (1) Petition for examination. (a) Except as provided
     in pars. (ab), (am), and (ar), every written petition
     for examination shall allege that all of the following
     apply to the subject individual to be examined:

          1. The individual is mentally ill or, except as
     provided under subd. 2. e., drug dependent or
     developmentally disabled and is a proper subject for
     treatment.

          2. The individual is[, because he or she does any
     of the following,] dangerous . . . .


                                            17
                                                                                     No.        2014AP1048



psychologist          or     a     licensed        physician.16            Both          Wis.      Stat.

§ 51.20(1) and Wis. Stat. § 51.20(1)(ar) are treatment focused;

these      statutes        emphasize      that       a   person          is    being        committed

because he or she has a mental illness and needs treatment to

help that illness.

      ¶28     However, Wis. Stat. § 51.61, titled "patient rights,"

states      that      an     individual       has        "the       right       to       refuse       all

medication and treatment." Wis. Stat. § 51.61(1)(g)(1). If an

individual       invokes         his    or   her     right,          then      the       County       can

petition     for      the      involuntary        administration              of    medication         or

treatment to an individual pursuant to Wis. Stat. § 51.61(1)(g).

Wisconsin     Stat.         § 51.61(1)(g)         does     not       carve         out     a     special

subsection         for       inmates,        so      the        requirements               to      prove

incompetency to refuse medication and treatment are the same for

everyone (inmates and non-inmates alike). To prove incompetency,

the     County        must       show    that      "because           of       mental           illness,

developmental          disability,       alcoholism            or    drug      dependence,            and

after the advantages and disadvantages of and alternatives to
accepting        the       particular        medication             or        treatment           [were]

explained        to      the      individual,"           the        individual             is     either

(1) "incapable of expressing an understanding of the advantages

and disadvantages of accepting medication or treatment and the


      16
       Unlike Wis. Stat. § 51.20(1), which requires a finding of
dangerousness, Wis. Stat. § 51.20(1)(ar) does not require such a
finding. According to Christopher, it is this absence of a
required finding of dangerousness that renders Wis. Stat.
§ 51.20(1)(ar) facially unconstitutional.


                                                18
                                                                                No.    2014AP1048



alternatives,"           or (2) "substantially incapable of applying an

understanding of the advantages, disadvantages and alternatives

to     his    or        her     mental        illness,     developmental           disability,

alcoholism         or    drug       dependence      in    order    to    make     an   informed

choice       as     to    whether        to    accept      or     refuse      medication      or

treatment." Wis. Stat. § 51.61(1)(g)4.a., b.

       ¶29    To summarize, an inmate can be involuntarily committed

under Wis. Stat. § 51.20(1)(ar) only when the State satisfies a

hefty set of requirements. Moreover, an inmate is committed so

he or she can receive treatment for his or her mental illness.

But, if the inmate invokes his or her right to refuse treatment,

then    the       State       will    need     to     petition     for     the     involuntary

administration of medication or treatment to that inmate.



                                          B. MOOTNESS



     1. This Case Is Moot, But We Will Address The Issues Because

     They Are Of Great Public Importance And Are Likely To Evade
                                              Review.

       ¶30    Before           we     review        the    merits        of      Christopher's

constitutional challenge, we first address whether this case is

moot.    At       the    postcommitment         motion     hearing,       Winnebago      County

argued that this case was moot because Christopher's original

commitment order had already expired prior to the filing of his

motion for postcommitment relief. The circuit court agreed. We

agree with the circuit court's conclusion that this case is
moot;    however,         we    take     up    Christopher's        claims       because    they
                                                 19
                                                                     No.    2014AP1048



qualify      for   review   under   two   of    the   four    exceptions      to    the

general rule barring consideration of moot claims.

       ¶31    An issue is moot "when a determination is sought upon

some   matter      which,   when    rendered,    cannot      have   any     practical

legal effect upon a then existing controversy." In re Sheila W.,

2013 WI 63, ¶4, 348 Wis. 2d 674, 835 N.W.2d 148 (per curiam). We

have    stated      that    there   is    an    "apparent     lack     of    a     live

controversy" when an appellant appeals an order to which he or

she is no longer subjected. In re Mental Commitment of Aaron

J.J., 2005 WI 162, ¶3, 286 Wis. 2d 376, 706 N.W.2d 659 (per

curiam) (noting that the case implicated a potential issue of

mootness because Aaron was no longer subject to a commitment

order, but dismissing the case as improvidently granted due to

inadequate development of the legal arguments); see Sheila W.,

348 Wis. 2d 674, ¶4 ("In this case, no determination of this

court will have any practical legal effect upon an existing

controversy because the order being appealed has expired."). In

Christopher's case, the issues are moot because he is no longer
subject to the orders being appealed.

       ¶32    Nevertheless, we may decide an otherwise moot issue if

it

       (1) is 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.


                                          20
                                                          No.   2014AP1048



Melanie L., 349 Wis. 2d 148, ¶80 (citing State v. Morford, 2004

WI 5, ¶7, 268 Wis. 2d 300, 674 N.W.2d 349). We conclude that the

issues presented are of great public importance as they would

affect a large number of persons in the Wisconsin State prison

system.17 Moreover, we conclude that the issues are likely to

evade appellate review "in many instances because the order[s]

appealed from will have expired before an appeal is completed."

Id. We therefore consider the issues Christopher asks us to

review.



C. WHETHER WIS. STAT. § 51.20(1)(ar) IS FACIALLY CONSTITUTIONAL.



                       1. Standard Of Review

    ¶33    "The constitutionality of a statute is a question of

law that we review de novo." State v. Wood, 2010 WI 17, ¶15, 323

Wis. 2d 321,   780   N.W.2d 63   (citing    State    v.   Hansford,   219

Wis. 2d 226, 234, 580 N.W.2d 171 (1998)). "Further, we review a

statute under the presumption that it is constitutional." Id.
"Every presumption must be indulged to sustain the law if at all

possible   and,   wherever   doubt     exists   as   to   a   legislative

enactment's constitutionality, it must be resolved in favor of


    17
       For example, in June 2008, Wisconsin housed 22,451
inmates. Dep't of Corrs. & Dep't of Health Servs., An
Evaluation:    Inmate    Mental   Health    Care   26   (2009),
legis.wisconsin.gov/lab/reports/09-4Full.pdf. Of those inmates,
6,957 were suffering from mental illness. Id. That is nearly
one-third of the inmate population. Id.


                                  21
                                                                                 No.     2014AP1048



constitutionality." In re Commitment of Dennis H., 2002 WI 104,

¶12, 255 Wis. 2d 359, 647 N.W.2d 851 (internal quotation marks

omitted) (quoting State v. Carpenter, 197 Wis. 2d 252, 263-64,

541 N.W.2d 105 (1995)). "To overcome that presumption, a party

challenging a statute's constitutionality bears a heavy burden"

because    "it       is    insufficient         for       the    party         challenging        the

statute to merely establish that the statute's constitutionality

is doubtful or that the statute is probably unconstitutional";

rather,   "the       party       challenging         a    statute's         constitutionality

must   'prove        that       the    statute       is    unconstitutional             beyond      a

reasonable       doubt.'"         State    v.     Smith,         2010      WI    16,     ¶8,      323

Wis. 2d 377, 780 N.W.2d 90 (quoting State v. Cole, 2003 WI 112,

¶11, 264 Wis. 2d 520, 665 N.W.2d 328). "[I]n the context of a

challenge      to    the    constitutionality              of    a    statute,         the    phrase

'beyond a reasonable doubt' expresses the 'force or conviction

with which a court must conclude, as a matter of law, that a

statute     is       unconstitutional            before          the       statute           or   its

application         can    be    set    aside.'"          League      of    Women      Voters     of
Wisconsin Educ. Network, Inc. v. Walker, 2014 WI 97, ¶17, 357

Wis. 2d 360, 851 N.W.2d 302 (quoting Dane Cnty. Dep't of Human

Servs.    v.     Ponn      P.,    2005    WI     32,      ¶16,       279    Wis. 2d 169,          694

N.W.2d 344).         In     short,      Christopher          "bears        a    heavy        burden"

because     he      must     prove       that    Wis.        Stat.         § 51.20(1)(ar)          is

unconstitutional beyond a reasonable doubt.




                                                22
                                                                       No.     2014AP1048



                     2. Facial Challenge Requirements

      ¶34    A party may challenge a law or government action as

being unconstitutional by bringing a facial challenge. Wood, 323

Wis. 2d 321, ¶13. A facial challenge to a statute is an "uphill

endeavor."     Dennis       H.,    255    Wis. 2d 359        ¶5.    Under     a    facial

challenge, "the challenger must show that the law cannot be

enforced 'under any circumstances.'" Wood, 323 Wis. 2d 321, ¶13

(quoting Olson v. Town of Cottage Grove, 2008 WI 51, ¶44 n.9,

309 Wis. 2d 365, 749 N.W.2d 211). "If a challenger succeeds in a

facial attack on a law, the law is void 'from its beginning to

the end.'" Id. (quoting State ex rel. Comm'rs of Pub. Lands v.

Anderson,    56     Wis. 2d 666,         672,    203    N.W.2d 84    (1973)).        Here,

Christopher claims that Wis. Stat. § 51.20(1)(ar) is facially

unconstitutional because it violates an inmate's substantive due

process rights by allowing for the involuntary commitment of an

inmate without first finding the inmate dangerous. Christopher

faces an "uphill battle" because to succeed on his claim he must

show that Wis. Stat. § 51.20(1)(ar) is unconstitutional under
all circumstances.

  3. Constitutional Overview Of Substantive Due Process Rights

      ¶35    "The    Due    Process      Clauses       of   the   United     States   and

Wisconsin Constitutions protect both substantive and procedural

due process rights." State v. Luedtke, 2015 WI 42, ¶74, 362

Wis. 2d 1,    863    N.W.2d 592          (internal      quotation    marks        omitted)

(quoting State ex rel. Greer v. Wiedenhoeft, 2014 WI 19, ¶55,

353   Wis. 2d 307,         845    N.W.2d 373,      reconsideration          denied     sub
nom., Greer v. Wiedenhoeft, 2014 WI 50, 354 Wis. 2d 866, 848
                                            23
                                                                              No.    2014AP1048



N.W.2d 861).       Specifically,         these          rights     are   "rooted       in    the

Fourteenth Amendment to the Constitution, and Article I, Section

1 of the Wisconsin Constitution."18 Wood, 323 Wis. 2d 321, ¶17.

Substantive    due       process       rights      "protect        against    state     action

that is arbitrary, wrong, or oppressive," id., by "forbid[ding]

a   government      from       exercising          power     without      any       reasonable

justification       in     the      service        of    a   legitimate         governmental

objective,"    Luedtke,          362    Wis. 2d 1,           ¶74    (internal       quotation

marks omitted) (quoting State v. Radke, 2003 WI 7, ¶12, 259

Wis. 2d 13, 657 N.W.2d 66).

                     4. Rational Basis Review Applies.

     ¶36   We begin our analysis, as we must, by determining the

appropriate      level         of     scrutiny          to    apply      to     Wis.       Stat.

§ 51.20(1)(ar),          the        inmate      commitment          statute.         "If     the

challenged legislation neither implicates a fundamental right

nor discriminates against a suspect class, we apply rational

basis review rather than strict scrutiny to the legislation." In

re Commitment of Alger, 2015 WI 3, ¶39, 360 Wis. 2d 193, 858
N.W.2d 346.    A    law     subject      to     rational         basis   review       will    be

upheld "unless it is patently arbitrary and bears no rational

relationship to a legitimate government interest." Id. (internal


     18
       In general, the United States Constitution and the
Wisconsin Constitution provide substantively similar due process
guarantees. State v. Wood, 2010 WI 17, ¶17 n.9, 323 Wis. 2d 321,
780 N.W.2d 63. Compare U.S. Const. Amend. XIV, with Wis. Const.
Art. I, § 1. "Accordingly, we do not distinguish between those
constitutional protections in this case." Id.


                                              24
                                                                              No.       2014AP1048



quotation marks omitted) (quoting Smith, 323 Wis. 2d 377, ¶12).

Moreover,     "[a]       legislative       classification              satisfies         rational

basis    review     if    'any     conceivable          state        of   facts . . . could

provide a rational basis for the classification.'" Alger, 360

Wis. 2d 193,        ¶50     (alteration          in     original)         (emphasis       added)

(quoting State v. Mary F.-R., 2013 WI 92, ¶52, 351 Wis. 2d 273,

839     N.W.2d 851).        In    contrast,        "[a]        law     subject      to    strict

scrutiny will be upheld 'only if narrowly tailored to serve a

compelling        state     interest.'"          Id.        (quoting      Mary    F.-R.,      351

Wis. 2d 273, ¶35). Christopher does not argue that Wis. Stat.

§ 51.20(1)(ar) discriminates against a suspect class; therefore,

we    will    examine        only       whether         Wis.        Stat.     § 51.20(1)(ar)

implicates a fundamental right.

      ¶37    "[F]or the ordinary citizen, commitment to a mental

hospital produces 'a massive curtailment of liberty,' and in

consequence 'requires due process protection.'" Vitek v. Jones,

445   U.S.    480,    491        (1980)    (citation          omitted)       (first       quoting

Humphrey     v.     Cady,    405     U.S.    504,           509   (1972);        then     quoting
Addington     v.     Texas,       441     U.S.    418,        425    (1979));       Foucha     v.

Louisiana, 504 U.S. 71, 80 (1992) (noting that the due process

clause contains a substantive component that includes a right to

freedom      from    restraint)).          This        is     because       "[f]reedom       from

physical restraint is a fundamental right that 'has always been

at the core of the liberty protected by the Due Process Clause




                                             25
                                                                 No.    2014AP1048



from    arbitrary   governmental     action.'"19       State   v.      Post,   197

Wis. 2d 279,     302,   541   N.W.2d 115     (1995)   (quoting      Foucha,    504

U.S. at 80).

       ¶38   For example, in State v. Post, 197 Wis. 2d 279, 541

N.W.2d 115 (1995), we applied strict scrutiny to a substantive

due    process   challenge    to   Chapter     980,    Wisconsin's       sexually

violent person commitment statute. 197 Wis. 2d at 302. We did so

because the statute implicated a fundamental right, the right to

be free from physical restraint. Id. But Post is distinguishable

from    Christopher's    case.     Chapter    980     allows   the     State   to

petition for the commitment of a sexually violent person.20 If

the petition is granted, and all of the necessary procedures are

met, a sexually violent person can be committed when his or her

sentence expires. Thus, under Chapter 980, a person is subject

to commitment following the expiration of his or her criminal

sentence. In contrast, Wis. Stat. § 51.20(1)(ar) applies only

while the individual is serving his or her sentence.




       19
       The due process "liberty" right is called many different
things: freedom from physical restraint, freedom from bodily
restraint, freedom from confinement, and the right to be at
liberty.
       20
       For a brief overview of Chapter 980, see In re Commitment
of Gilbert, 2012 WI 72, ¶¶21, 23, 342 Wis. 2d 82, 816 N.W.2d 215
("[C]h. 980 provides for the involuntary commitment of certain
individuals who are found to be sexually violent persons. As
such, ch. 980 prescribes a detailed procedure that the State
must follow in order to commit a sexually violent person."
(citation omitted)).


                                      26
                                                                               No.     2014AP1048



     ¶39       This       distinction             is     important       because      "a   valid

criminal        conviction        and         a        prison     sentence     extinguish      a

defendant's right to freedom from confinement." Vitek, 445 U.S.

at 493 (citing Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1,

7   (1980)         ("But    the     conviction,             with     all     its     procedural

safeguards,         has    extinguished            that     liberty      right:    '[G]iven    a

valid         conviction,         the             criminal         defendant         has    been

constitutionally deprived of his liberty.'" (quoting Meachum v.

Fano, 427 U.S. 215, 224 (1976) ("But given a valid conviction,

the criminal defendant has been constitutionally deprived of his

liberty to the extent that the State may confine him and subject

him to the rules of its prison system . . . .")))); see also

Johnson       v.    California,         543       U.S.     499,    510    (2005)     ("This   is

because       certain      privileges             and     rights     must    necessarily      be

limited in the prison context."); In re Commitment of West, 2011

WI 83,        ¶85, 336 Wis. 2d 578, 800 N.W.2d 929 (holding that a

liberty interest in freedom from confinement is not absolute).

"Such     a    conviction         and    sentence           sufficiently       extinguish      a
defendant's liberty 'to empower the State to confine him in any

of its prisons.'"21 Vitek, 445 U.S. at 493 (quoting Meachum, 427

     21
       Christopher cites a litany of cases to support his
argument that a state must prove that an inmate is dangerous
before he or she can be involuntarily committed. All are
distinguishable. O'Connor v. Donaldson, 422 U.S. 563 (1975), and
Addington v. Texas, 441 U.S. 418 (1979), addressed the
involuntary commitment of individuals who were not currently
serving sentences. The individuals committed in Addington and
O'Connor were not inmates. Jones v. United States, 463 U.S. 354
(1983), and Foucha v. Louisiana, 504 U.S. 71 (1992), concerned
the involuntary commitment of individuals who were acquitted of
                                                     (continued)
                                                   27
                                                                         No.    2014AP1048



U.S. at 224). To be clear, we are not suggesting that an inmate

loses all, or even most, of his or her constitutional rights

while he or she is serving his or her sentence. Rather, a prison

inmate    "retains       those     [constitutional]            rights    that    are    not

inconsistent          with   his   status        as   a    prisoner      or     with    the

legitimate penological objectives of the corrections system."

Turner      v.   Safley,     482    U.S.     78,      95   (1987)       (alteration      in

original) (internal quotation marks omitted) (quoting Pell v.

Procunier, 417 U.S. 817, 822 (1974)).

      ¶40    For example, in Washington v. Harper, 494 U.S. 210

(1990), the Supreme Court of the United States addressed the

constitutionality of administering antipsychotic medications to

a prisoner against his will. 494 U.S. at 213. There, the Court

noted    that     the    "respondent       possesses       a    significant       liberty

interest         in     avoiding      the        unwanted        administration          of

antipsychotic drugs," id. at 221, but went on to clarify that

"[t]he extent of a prisoner's rights under the Clause to avoid

the   unwanted        administration       of     antipsychotic         drugs    must    be
defined in the context of the inmate's confinement," id. at 222

(emphasis added). Thus, while an inmate does not lose all of his



a crime by reason of insanity. Again, the individuals committed
in Jones and Foucha were not inmates. For that reason, these
cases arguably require a finding of dangerousness when the State
seeks to commit an individual who is not an inmate (just as Wis.
Stat. § 51.20(1) requires a finding of dangerousness when the
State seeks to commit an individual who is not an inmate). But
these cases do not stand for the principle that a state must
prove dangerousness when the State seeks to commit an inmate.


                                            28
                                                                      No.   2014AP1048



or her rights, his or her rights must be viewed in light of his

or her "status as an inmate" and "the legitimate penological

objectives of the corrections system." Turner, 482 U.S. at 95.

       ¶41    As a result, the Court in Harper concluded that "[t]he

proper       standard     for    determining         the   validity   of    a   prison

regulation      claimed     to   infringe       on    an   inmate's   constitutional

rights is to ask whether the regulation is 'reasonably related

to a legitimate penological interest.'"22 Id. at 223 (quoting

Turner, 482 U.S. at 89 ("If [other Supreme Court cases] have not

already resolved the question posed . . . , we resolve it now:

when    a    prison     regulation   impinges         on   inmates'   constitutional

rights, the regulation is valid if it is reasonably related to a

legitimate penological interest.")). "This is true even when the

constitutional          right    claimed        to    have    been    infringed     is

fundamental, and the State under other circumstances would have


       22
        We realize that Washington v. Harper, 494 U.S. 210 (1990)
and Turner v. Safley, 482 U.S. 78 (1986) dealt with prison
regulations and we deal here with a statute. Despite this
difference, we find both cases persuasive. The Turner Court
stated,

       Running   a  prison   is    an   inordinately  difficult
       undertaking that requires expertise, planning, and
       commitment of resources, all of which are peculiarly
       within the province of the legislative and executive
       branches of government. Prison administration is,
       moreover, a task that has been committed to the
       responsibility of those branches, and separation of
       powers   concerns   counsel    a   policy   of  judicial
       restraint.

482 U.S. at 84-85 (emphasis added).


                                           29
                                                               No.    2014AP1048



been required to satisfy a more rigorous standard of review."

Id. A reasonableness standard is appropriate because it balances

the principle that "inmates retain at least some constitutional

rights despite incarceration with the recognition that prison

authorities   are   best    equipped    to   make    difficult       decisions

regarding prison administration." Id. at 223-24.

    ¶42   Like the Supreme Court, we assess the extent of an

inmate's rights in the context of the inmate's confinement. We

recognize that "[c]ivil commitment for any purpose constitutes a

significant   deprivation   of   liberty     that   requires    due    process

protection." Post, 197 Wis. 2d at 302 (alteration in original)

(internal quotation marks omitted) (quoting Addington, 441 U.S.

at 425). However, when we look at an inmate's liberty right in

the context of his or her confinement, we conclude that his or

her specific right to freedom from physical restraint is already

curbed because he or she is incarcerated.23 Indeed, the very




    23
       We recognize that Christopher has an interest in avoiding
the "adverse social consequences" associated with mental health
commitments: "It is indisputable that commitment to a mental
hospital 'can engender adverse social consequences to the
individual' and that '[w]hether we label this phenomena 'stigma'
or choose to call it something else . . . we recognize that it
can occur and that it can have a very significant impact on the
individual.'" Vitek, 445 U.S. at 492 (alterations in original)
(quoting Addington, 441 U.S. at 425-26).

                                                                 (continued)
                                   30
                                                                   No.    2014AP1048



nature of incarceration encompasses physical restraint. Because

inmates     have   a    qualified     right     to       freedom   from   physical

restraint and because Wis. Stat. § 51.20(1)(ar) applies only to

inmates, we hold that rational basis review applies to Wis.

Stat. § 51.20(1)(ar).24

   5. We Determine That Wis. Stat. § 51.20(1)(ar) Is Facially

 Constitutional Because It Is Reasonably Related To A Legitimate

                              State Interest.

     ¶43    We turn to the task of determining whether Wis. Stat.

§ 51.20(1)(ar)     is    reasonably        related   to     a   legitimate    state

interest.

     ¶44    The    State   has      more     than    a     well-established     and

legitimate interest; it has a "compelling" interest in providing


     In addition, Christopher argues that inmates have an
interest   in   "avoiding    the   unwanted   administration   of
antipsychotic drugs" against their will. While this is certainly
true, it is not relevant to the present case. Again, Christopher
is challenging only the constitutionality of the involuntary
commitment statute under Wis. Stat. § 51.20(1)(ar), not the
involuntary medication statute under Wis. Stat. § 51.61(1)(g).
Thus, any interest that an inmate, including Christopher, has in
avoiding unwanted medication is not relevant to the question of
whether an inmate's involuntary commitment is unconstitutional.
     24
       Christopher contends that we should adopt intermediate
scrutiny because both an involuntary commitment order and an
involuntary medication order are at issue in this case. However,
Christopher is challenging only the constitutionality of the
involuntary commitment statute under Wis. Stat. § 51.20(1)(ar);
he is not challenging the constitutionality of the involuntary
medication or treatment statute under Wis. Stat. § 51.61(1)(g).
As such, this case does not provide an occasion for us to apply
any level of scrutiny to the involuntary medication or treatment
statute.


                                       31
                                                                               No.    2014AP1048



care and assistance to those who suffer from a mental disorder.

Post, 197 Wis. 2d at 303 ("We find the state's dual interests

represented            by    chapter       980    to       be    both      legitimate        and

compelling.");25 see also Dennis H., 255 Wis. 2d at 369 ("The

state      has    a    well-established,          legitimate        interest         under   its

parens patriae power in providing care to persons unable to care

for themselves              . . . ."); Vitek, 445 U.S. at 495 ("Concededly

the interest of the State in segregating and treating mentally

ill patients is strong."); O'Connor v. Donaldson, 422 U.S. 563,

575 (1975) ("That the State has a proper interest in providing

care and assistance to the unfortunate goes without saying.").

      ¶45        The    State's    interest           in   caring    for    and      assisting

individuals           who    suffer    from      mental      illness      is    particularly

strong in the context of a prison because "[a]n inmate must rely

on   prison       authorities         to    treat      his      medical    needs;      if    the

authorities fail to do so, those needs will not be met." Estelle

v.   Gamble,          429   U.S.   97,     103    (1976).        Moreover,      the    State's

interest in caring for and assisting its inmates is not just an


      25
       In State v. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995),
the State's dual interests were (1) protecting the community
from the dangerously mentally disordered and (2) providing care
and treatment to those with mental disorders that predispose
them to sexual violence. 197 Wis. 2d at 302. We went on to say,
"The Supreme Court has recognized both of these interests as
legitimate, the first under the state's police power and the
latter under its parens patriae power." Id. (citing Addington,
441 U.S. at 426). Under the parens patriae power, the state has
a legitimate interest in "providing care to its citizens who are
unable   because    of   emotional   disorders   to   care   for
themselves . . . ." Addington, 441 U.S. at 426.


                                                 32
                                                                                 No.   2014AP1048



interest; it is an obligation: "We confront here the State's

obligations, not just its interests. The State has undertaken

the   obligation            to    provide      prisoners    with           medical     treatment

consistent not only with their own medical interests, but also

with the needs of the institution." Harper, 494 U.S. at 225

(emphasis added). Thus, the State needs to properly care for

inmates suffering from mental illness while they are in the

custody of the State.

      ¶46    At oral argument, Winnebago County stated that "first

and   foremost"        the       State   has    an   interest         in    making     sure   its

inmates suffering from mental illness are "taken care of." Here,

the   County      has       a    legitimate     interest        in    providing        care   and

assistance to inmates suffering from mental illness. Further, in

this case, caring for and assisting these inmates is more than

an interest; it is an obligation because as a result of his or

her incarceration, the inmate cannot obtain treatment on his or

her   own.       The    State       needs      to    provide         it.    Wisconsin     Stat.

§51.20(1)(ar)          is       reasonably     related     to    the        State's    interest
because     it     enables         the   State       to   fulfill          its    interest     in




                                                33
                                                                  No.    2014AP1048



providing    care     and     assistance    to    those   inmates       who   need

treatment because they are suffering from a mental illness.26

     ¶47    To      prevail      on   his        constitutional         challenge,

Christopher needed to prove that Wis. Stat. § 51.20(1)(ar) is

     26
       Christopher argues that Harper, requires the State to
prove dangerousness whenever it seeks to commit an inmate. In
Harper, the Supreme Court of the United States took up a due
process challenge to Policy 600.30, which allowed the State of
Washington to involuntarily administer antipsychotic medication
to an inmate against the inmate's will only if he or she (1)
suffered from a mental disorder and was (2) gravely disabled or
posed a serious likelihood of harm to himself, others, or their
property. 494 U.S. at 215 (emphasis added). To analyze the
inmate's   claim,  the  Court   considered  both   the  inmate's
"significant interest in avoiding the unwanted administration of
antipsychotic drugs" and the State's interest in the safety and
security of its institution. Id. at 221, 225-26. There, the
Court required a finding of dangerousness because it resulted in
an "accommodation between an inmate's liberty interest in
avoiding the forced administration of antipsychotic drugs and
the State's interest in providing appropriate medical treatment
to reduce the danger that an inmate suffering from a serious
mental disorder represents to himself or others." Id. at 236
(emphasis added).

     Christopher's reliance on Harper is misguided for two
reasons. First, Harper is concerned with the administration of
antipsychotic medications, not the involuntary commitment of an
inmate. Second, Christopher ignores the fact that the legitimate
interest in Harper was the safety and security of the prison,
not the care and assistance of its mentally ill inmates. Harper
may require a finding of dangerousness when the State seeks to
involuntarily medicate an inmate and is solely relying on the
safety and security of the prison as its legitimate reason for
administering the antipsychotic medication. But Harper does not
address the issue of how a state may proceed vis-à-vis the
involuntary commitment of an inmate, nor does it address the
issue of how a state may proceed vis-à-vis the involuntary
administration of antipsychotic medication when the State's
interest is unrelated to the safety and security of the
institution.


                                      34
                                                                    No.     2014AP1048



unconstitutional      under   all    circumstances.       He      also    needed   to

prove that Wis. Stat. § 51.20(1)(ar) is unconstitutional beyond

a reasonable doubt. Christopher has proved neither. Because we

can think of at least one "conceivable set of facts" where Wis.

Stat. § 51.20(1)(ar) is constitutional, namely where the State's

interest is in caring for and assisting inmates who suffer from

mental illness, Christopher has failed to prove that the statute

is    unconstitutional     under    all    circumstances.      Accordingly,         we

hold that Wis. Stat. § 51.20(1)(ar) is facially constitutional.



                    D. WHETHER THE CIRCUIT COURT ERRED.



       ¶48   We now turn to the issue of whether the circuit court

erred when it concluded that Winnebago County established by

clear and convincing evidence that Christopher was incompetent

to refuse psychotropic medication and treatment pursuant to Wis.

Stat.     § 51.61(1)(g).      Here,        we    are   not        assessing        the

constitutionality of Wis. Stat. § 51.61(1)(g). Christopher does
not     raise   a    constitutional        challenge   against           Wis.   Stat.

§ 51.61(1)(g).      Rather,   we    examine     whether     the    circuit      court

erred when it concluded that the County met its burden of proof.

We turn to the merits of Christopher's argument.

                           1. Standard Of Review

       ¶49   Christopher    argues    that      Winnebago    County       failed    to

meet its burden of proving that he was incompetent to refuse




                                          35
                                                             No.     2014AP1048



psychotropic medication and treatment as required by Wis. Stat.

§ 51.61(1)(g)4.b.27 Pursuant to that statute, it is the County

that "bears the burden of proving [Christopher] incompetent to

refuse medication by clear and convincing evidence." Melanie L.,

349 Wis. 2d 148, ¶37 (citing Wis. Stat. § 51.20(13)(e) (2009-

2010)).

    ¶50    "We    will    not    disturb    a   circuit    court's    factual

findings unless they are clearly erroneous." Id., ¶38. Further,

"we accept reasonable inferences from the facts available to the

circuit court." Id. When "evaluating whether the County met its

burden of proof, a court must apply the facts to the statutory

standard   in    Wis.    Stat.   § 51.61(1)(g)4.b.     and   interpret     the

statute." Id., ¶39. Finally, "applying facts to the standard and

interpreting the statute are questions of law that this court

reviews    independently."       Id.   In   short,   the   circuit    court's

findings of fact are reviewed for clear error, but application

of those facts to the statute and interpretation of the statute

are reviewed independently.
   2. We Determine That The Circuit Court Did Not Err When It

    Concluded That Winnebago County Established By Clear And

    27
       In this case, the County sought to prove incompetency
under Wis. Stat. § 51.61(1)(6)4.b., which required the County to
prove that the "advantages and disadvantages of and alternatives
to accepting the particular medication or treatment [were]
explained to the [Christopher]" and that Christopher was
"substantially incapable of applying an understanding of the
advantages, disadvantages, and alternatives to [his] [mental
illness] in order to make an informed choice as to whether to
accept or refuse medication."


                                       36
                                                                              No.    2014AP1048



 Convincing Evidence That Christopher Was Incompetent To Refuse

                  Psychotropic Medication And Treatment.

    ¶51     This case once again requires us to interpret Wis.

Stat.     § 51.61(1)(g)4.           Our    decision     in    Melanie          L.    is     most

instructive;      thus,       a    brief    recitation       of    the    facts       and    the

holding is appropriate.

    ¶52     As    is   the        case    here,   the   issue      in    Melanie       L.    was

whether the County proved by clear and convincing evidence that

the individual was incompetent to refuse psychotropic medication

under Wis. Stat. § 51.61(1)(g)4. There, we held that the County

failed to meet its burden of proof:

    In particular, the medical expert's terminology and
    recitation of facts did not sufficiently address and
    meet the statutory standard. Medical experts must
    apply the standards set out in the competency statute.
    An expert's use of different language to explain his
    or her conclusions should be linked back to the
    standards in the statute.
Melanie     L.,     349       Wis. 2d 148,         ¶¶8-9,     97.        In     that      case,

Melanie L.'s      doctor       (Dr.      Dave)    diagnosed       her    with       "Psychotic

Disorder,     NOS,        a       substantial        disorder       of        thoughts       and

perception,       which       grossly      impairs    her    judgment,         capacity      to

recognize reality, [and] ability to care for herself." Id., ¶27

(alteration in original) (internal quotation marks omitted). His

report stated:

    Melanie, based upon her educational background, was
    able to express the benefits and risks of the
    psychotropic medication; however, she is unable to
    apply such understanding to her advantage and she is
    considered to be not competent to refuse psychotropic
    medication. . . . The patient would not comply with


                                             37
                                                                    No.    2014AP1048


      psychotropic   medication  without                [an]      involuntary
      medication order from the court.
Id.     (alterations        in    original)      (internal     quotation        marks

omitted). Further, at trial the doctor testified, "I do not

think    that    she's      capable   of     applying    the   benefits     of    the

medication to her advantage." Id., ¶30 (emphasis added).

      ¶53   We summarized the testimony of Melanie L.'s doctor as

concluding       that     "Melanie     was      incapable      of    applying      an

understanding        of     the   medication     'to    her    advantage.'"       See

id., ¶91.       We   took     issue   with      the    doctor's     testimony     and

specifically noted the following:

      The corporation counsel posed a question to Dr. Dave
      employing the statutory terms. When he did not receive
      an answer in those terms, he should have required his
      witness to expound upon his answer, so that the
      circuit court and a reviewing court did not have to
      speculate upon Dr. Dave's meaning. As the record
      stands, we cannot be certain whether Dr. Dave was
      applying the standard or changing the standard.
Id. In short, the County needed to "more carefully articulate[]

its case." Id., ¶95.

      ¶54   The present case is distinguishable from Melanie L.

because,    here,     the    County   carefully       articulated    its   case    by

adhering strictly to the standards set out in the competency

statute. In this case, Christopher's doctor's testimony closely

tracked the language of Wis. Stat. § 51.61(1)(g)4.b.:

      Q. Dr. Keshena, in the course of your treatment of
      [Christopher] have you had an opportunity to explain
      to him the advantages, disadvantages, and alternatives
      to the medication?

      A. Yes.


                                           38
                                                                  No.    2014AP1048


    Q. And after you've done that, in your opinion would
    he be substantially incapable or substantially capable
    of applying an understanding of the advantages,
    disadvantages, and alternatives to his own conditions
    in order to make an informed choice as to whether to
    accept or refuse psychotropic medication?

    A. He's not capable.

    Q. So you're saying he's substantially incapable?

    A. Yes.
Unlike in Melanie L., we do not have to "speculate upon [Dr.

Keshena's]   meaning";     we    are   certain   Dr.    Keshena     applied    the
statutory standard.

    ¶55    In addition to Dr. Keshena's testimony, Dr. Musunuru's

report   also    tracked   the    statutory      language.    Dr.       Musunuru's

report    made    six   key     findings:     (1)      "the   advantages       and

disadvantages     and   the     alternatives     to    accepting        particular

medication [were] explained to the subject in detail[]"; (2)

"the subject did not appear to understand the explanation"; (3)

"the subject holds patently false beliefs about the treatment

recommended medications, which prevent an understanding of the

legitimate risks and benefits"; (4) "due to the subject's mental
illness, the subject is substantially incapable of applying an

understanding of the advantages, disadvantages, and alternatives

to make an informed choice as to accept or refuse medications";

(5) "the subject has no insight into his illness due to his

mental illness"; and (6) "the subject is not competent to refuse

psychotropic medications."

    ¶56    Finally, Dr. Keshena's testimony was not disputed at
trial. In fact, cross-examination of Dr. Keshena, which brought

                                       39
                                                                          No.     2014AP1048



about       the    discussion   of     Christopher's         prior    experience         with

lithium,          provided    further        evidence    that        Christopher          was

"substantially           incapable   of   applying      an    understanding         of    the

advantages,         disadvantages       and    alternatives          to   [his]     mental

illness . . . in order to make an informed choice as to whether

to     accept       or     refuse      medication       or     treatment."28          These

uncontroverted            statements      establish      that        Christopher          was

incompetent to refuse psychotropic medication and treatment, so

it was not necessary for Dr. Keshena to engage in a lengthier

discussion of her explanation of the advantages, disadvantages,

and alternatives. See Melanie L., 349 Wis. 2d 148, ¶67 ("Medical

professionals and other professionals should document the timing

and frequency of their explanations so that, if necessary, they

have    documentary        evidence     to    help   establish       this       element    in

court." (emphasis added)). Because these statements mirrored the

statutory standard, they met the statutory standard. Thus, the

circuit court did not err when it concluded that the County

proved by clear and convincing evidence that Christopher was
incompetent to refuse psychotropic medication and treatment as

required by Wis. Stat. § 51.61(1)(g)4.b.




       28
       During cross-examination, Dr. Keshena testified that
Christopher "was previously on lithium" and that Christopher
told her "he didn't have any side effects from that medication,
but he thought it was a placebo."


                                              40
                                                                No.    2014AP1048



                            IV. CONCLUSION



    ¶57    First,   we   hold     that       Wis.   Stat.   § 51.20(1)(ar)     is

facially constitutional because it is reasonably related to the

State's legitimate interest in providing care and assistance to

inmates suffering from mental illness. Second, we affirm the

circuit court because it did not err when it found by clear and

convincing evidence that Christopher was incompetent to refuse

psychotropic medication and treatment. We therefore uphold the

circuit   court's   order   for       involuntary     commitment,     order   for

involuntary   medication        and      treatment,     and    order    denying

postcommitment relief.

    By the Court.—The circuit court's orders are affirmed.

    ¶58    REBECCA G. BRADLEY, J., did not participate.




                                        41
                                                                                        No.    2014AP1048.ssa




       ¶59       SHIRLEY       S.     ABRAHAMSON,                  J.        (concurring         in     part,

dissenting in part).                 At issue in this case are (1) whether Wis.

Stat. § 51.20(1)(ar), which permits the involuntary commitment

of mentally ill prisoners, is facially unconstitutional because

it does not require a finding of dangerousness to involuntarily

commit a prisoner; and (2) whether Winnebago County met its

burden      of     proof       by    clear       and         convincing             evidence        that   the

defendant,             Christopher             S.,           was        incompetent            to      refuse

psychotropic medication.

       ¶60       The     majority              opinion             holds           that       Wis.      Stat.

§ 51.20(1)(ar)            is    facially             constitutional1                   even    though      the

statute          does    not        require          a       finding          of       dangerousness       to

involuntarily            commit       a    prisoner                to    a        mental      institution.2

Applying the rational basis test, the majority opinion concludes

that       the     involuntary            commitment               statute          does      not     violate

substantive due process because it is reasonably related to a

legitimate state interest, namely "providing care and assistance
to [prisoners] suffering from mental illness."3

       ¶61       I write separately to make two points:

           (1) Although several Wisconsin and United States Supreme

                 Court cases are informative, none clearly describes

                 the    standard          to    be       applied             to    a    substantive        due

       1
           Majority op., ¶8.
       2
           Majority op., ¶46 n.26.
       3
           Majority op., ¶8.


                                                         1
                                                                      No.    2014AP1048.ssa


       process        challenge          to       a     prisoner's           involuntary

       commitment to a mental institution.                            I conclude that

       the    State    must      show    an       "essential"         or    "overriding"

       state interest——for example, ensuring prison safety or

       security, or providing treatment to a gravely disabled

       prisoner——to          overcome         a       prisoner's            significant,

       constitutionally            protected             liberty          interests         in

       avoiding        involuntary            commitment              to      a      mental

       institution         and    the    stigma         attached          thereto.        The

       majority       opinion         does        not    interpret           Wis.        Stat.

       § 51.20(1)(ar)            as      requiring           an       "essential"           or

       "overriding" state interest to involuntarily commit a

       prisoner to a mental institution.                             Unless it is so

       interpreted,          I     conclude             that        the     statute        is

       unconstitutional           as     a        matter       of    substantive          due

       process.

    (2) I   concur    in    the    majority           opinion's       conclusion          that

       Winnebago County met its burden of proving by clear
       and    convincing          evidence            that     Christopher          S.    was

       incompetent         to     refuse          psychotropic            medication        as

       required for involuntary medication under Wis. Stat.

       § 51.61(g).4             Nevertheless,           in     recognition          of     the

       significant,             constitutionally                protected           liberty

       interests        at        play        in        involuntary           medication

       proceedings, the County and the circuit court should

       take the time to make a record pursuant to Outagamie
4
    Majority op., ¶57.

                                         2
                                                                        No.       2014AP1048.ssa


             County     v.      Melanie        L.,      2013      WI        67,       ¶67,     349

             Wis. 2d 148, 833 N.W.2d 607.

      ¶62    For the reasons set forth, I dissent in part and write

separately.

                                             I

      ¶63    Applying the rational basis test, the majority opinion

determines       that        Wis.    Stat.        § 51.20(1)(ar)                is     facially

constitutional          because          commitment             under           Wis.         Stat.

§ 51.20(1)(ar) is reasonably related to the State's interest "in

providing     care     and    assistance         to    [prisoners]          suffering         from

mental     illness."5         The   majority          opinion    also       concludes         that

substantive      due     process      does        not     require           a     finding       of

dangerousness in order to involuntarily commit a prisoner to a

mental institution.6

      ¶64    Despite         acknowledging            prisoners'        constitutionally

protected     liberty        interests    in      being     free       from       involuntary

commitment to a mental institution and the associated stigma,

the   majority       opinion    gives     the         prisoner's       liberty         interest
little or no weight.

      ¶65    In a substantive due process challenge, a court must

first define the individual's protected constitutional interest

before identifying when, if at all, a competing state interest

might     outweigh     it.      State     v.      Wood,    2010        WI       17,    ¶18,    323




      5
          Majority op., ¶8.
      6
          Majority op., ¶¶42, 46 & n.26.


                                             3
                                                                No.    2014AP1048.ssa


Wis. 2d 321, 780 N.W.2d 63 (quoting Washington v. Harper, 494

U.S. 210, 220 (1990)).

      ¶66      All persons, including prisoners, have a significant,

constitutionally          protected    liberty       interest         in       avoiding

involuntary commitment to a mental institution and the stigma

often associated with such a commitment.7

      ¶67      The United States Supreme Court has not ruled on what

level     of   scrutiny    applies    when   a     court   reviews         a     statute

implicating       a   prisoner's      liberty      interest     in         not    being

involuntarily committed to a mental institution and experiencing

the   associated      stigma.      Nonetheless,       some    guidance           can   be

derived from relevant case law.

      ¶68      In Vitek v. Jones, 445 U.S. 480 (1980), the United

States      Supreme   Court     addressed    the    procedural        due        process

      7
       See, e.g., Sandin v. Conner, 515 U.S. 472, 479 n.4, 484
(1995)   (describing  a   prisoner's   interest   in  not   being
transferred to a mental institution as a constitutionally
protected   liberty  interest   and   stating   that  involuntary
commitment to a mental institution is "'qualitatively different'
from the punishment characteristically suffered by a person
convicted of crime, and ha[ving] 'stigmatizing consequences.'")
(referencing Vitek v. Jones, 445 U.S. 480, 493-94 (1980) and
Washington v. Harper, 494 U.S. 210, 221-22 (1990)); Foucha v.
Louisiana, 504 U.S. 71, 79-80 (1992) (holding that given an
individual's liberty interests, an individual found not guilty
by reason of insanity could not continue to be confined after he
was no longer mentally ill and did not pose a danger to himself
or others); Vitek v. Jones, 445 U.S. 480, 493 (1980) (holding
that the involuntary transfer of a prisoner to a mental hospital
implicated a liberty interest protected by the due process
clause); Addington v. Texas, 441 U.S. 418, 425 (1979) (stating
that involuntary commitment "for any purpose constitutes a
significant deprivation of liberty that requires due process
protection" and may subject a committed individual to stigma
even after the commitment and criminal sentence have ended)).


                                        4
                                                                               No.    2014AP1048.ssa


protections required for involuntarily transferring a prisoner

to a mental institution.                  The Court determined that a prisoner

facing       involuntary          transfer      to       a    mental     institution         has    a

constitutionally              protected       liberty          interest      in      avoiding      the

deprivation of liberty and the stigma associated with such a

transfer.8            Prisoners have such liberty interests even though

they       are   imprisoned        because      a       criminal      sentence        "do[es]      not

authorize the State to classify [a prisoner] as mentally ill and

to    subject         him   to    involuntary           psychiatric          treatment      without

affording             him        additional             due        process         protections."9

Nevertheless,           the      Vitek    Court         did    not    state       what     level    of

scrutiny applies when gauging the constitutionality of a statute

authorizing the involuntary commitment of a prisoner to a mental

institution.

       ¶69       In    Washington        v.   Harper,          494    U.S.    210     (1990),      the

United States Supreme Court applied rational basis scrutiny to a

prison       regulation          authorizing        the        involuntary         medication       of

dangerous or gravely disabled prisoners.10                             The Court stated that
the    rational         basis      test       applied         in     light    of     the    State's

interests in prison safety and security, even though prisoners

have        a    liberty          interest        in          avoiding       the      involuntary

administration of antipsychotic medication.11                                 In applying the

       8
            Vitek, 445 U.S. at 494.
       9
            Vitek, 445 U.S. at 494.
       10
            Harper, 494 U.S. at 224, 226.
       11
            Harper, 494 U.S. at 223.


                                                    5
                                                                       No.    2014AP1048.ssa


rational basis test to the challenged prison regulation, the

Harper    Court     described         the    state's    interest——the           safety     of

prisoners and staff——as legitimate, important, and "necessarily

encompass[ing]       an    interest         in     providing        [the     mentally     ill

prisoner] with medical treatment for his illness."12

     ¶70    Although Harper stated it was applying rational basis

scrutiny,     the    United      States       Supreme     Court       has     subsequently

described     Harper      and    other       involuntary       medication        cases     as

holding     that      involuntary            medication        of     a      prisoner     is

impermissible        absent      an    "essential"        or        "overriding"        state

interest.13    See Sell v. United States, 539 U.S. 166, 179 (2003)

("[A]n     individual      has    a     constitutionally             protected     liberty

interest in avoiding involuntary administration of antipsychotic

drugs——an     interest     that       only    an    'essential'        or     'overriding'

state     interest     might     overcome.")          (internal        quotation        marks

omitted); Riggins v. Nevada, 504 U.S. 127, 135 (1992) ("Under

Harper, forcing antipsychotic drugs on a convicted prisoner is

impermissible absent a finding of overriding justification and a
determination of medical appropriateness.").

     ¶71    Thus, Sell and Riggins (as well as State v. Wood, 2010

WI 17, ¶25, 323 Wis. 2d 321, 780 N.W.2d 63) incorporate the need

for an "essential" or "overriding" state interest, at least in

involuntary medication cases.

     12
          Harper, 494 U.S. at 225-26.
     13
       So has this court. See State v. Wood, 2010 WI 17, ¶¶19-
20, 22-25, 323 Wis. 2d 321, 780 N.W.2d 63 (discussing Harper,
Riggins, and Sell).


                                              6
                                                                        No.    2014AP1048.ssa


     ¶72     An "essential" or "overriding" state interest is not

required in applying rational basis scrutiny.                            In an ordinary

rational basis analysis, like the majority opinion conducts, a

court     decides       whether     the   challenged       statute        is    rationally

related    to     a    legitimate    state       interest.14        Thus,       the   United

States     Supreme        Court's     requirement       of     an        "essential"      or

"overriding"          state   interest    indicates        that     a    more     searching

analysis     is       required,     at    least     when     the        State    seeks    to

involuntarily medicate a prisoner.

     ¶73     Involuntary medication and involuntary commitment to a

mental     institution         impose      similar      burdens          on      prisoners'

constitutionally protected liberty interests.                       As a result, the

two should be treated similarly in conducting a substantive due

process analysis.

     ¶74     Both involuntary medication and involuntary commitment

to a mental institution "exceed[] [a criminal] sentence in such

an unexpected manner as to give rise to protection by the Due

Process Clause of its own force . . . ."15
     ¶75     Both involuntary medication and involuntary commitment

to a mental institution are "'qualitatively different' from the

punishment characteristically suffered by a person convicted of

crime, and ha[ve] 'stigmatizing consequences.'"16                             As a result,
     14
       See State v. Alger, 2015 WI 3, ¶39, 360 Wis. 2d 193, 858
N.W.2d 346.
     15
       Sandin, 515 U.S. at 484 (citing Harper, 494 U.S. at 221-
22; Vitek, 445 U.S. at 493).
     16
       Sandin, 515 U.S. at 479 n.4 (quoting Vitek, 445 U.S. at
493-94).

                                             7
                                                                          No.      2014AP1048.ssa


the mere fact that a prisoner is serving a criminal sentence

does    not    authorize         the    State        to    designate     the       prisoner       as

mentally      ill,    involuntarily            commit       him   or    her     to       a   mental

institution,         or     involuntarily            medicate     him    or        her       without

significant due process protections.17

       ¶76    Furthermore,             involuntary          commitment        to      a      mental

institution         under       Wis.    Stat.    § 51.20(1)(ar)           and        involuntary

medication        under     Wis.       Stat.    § 51.61(1)(g)           are     significantly

intertwined, more than the majority opinion lets on.

       ¶77    The         close        relationship            between          Wis.          Stat.

§ 51.20(1)(ar) and Wis. Stat. § 51.61(1)(g) (as demonstrated by

the facts of this case) further illustrates why requiring, as a

matter       of     substantive          due         process,     an      "essential"            or

"overriding" state interest in both involuntary commitment and

involuntary medication cases is appropriate.

       ¶78    In     the    instant       case,           Christopher    S.        was       ordered

involuntarily committed and involuntarily medicated in the same

proceeding, before the same judge, in the same court, on the
same day.           A temporary involuntary medication order was also

entered      during       the    pendency       of    Christopher        S.'s        involuntary

commitment proceedings.

       ¶79    While the jury was deliberating whether Christopher S.

should be involuntarily committed, the trial judge conducted a

bench       trial    to     determine      whether           Christopher        S.       could   be

involuntarily medicated.                 Based on the jury verdict, the trial


       17
            See Sandin, 515 U.S. at 484.


                                                8
                                                                         No.     2014AP1048.ssa


judge granted the petition for involuntary commitment for a six-

month   period.        The     trial    judge       also        issued    an     involuntary

medication order.

     ¶80   One of the requirements for involuntary commitment of

a   prisoner      to     a     mental        institution           under        Wis.       Stat.

§ 51.20(1)(ar) is that the prisoner be "a proper subject for

treatment and [be] in need of treatment."

     ¶81   For        what     treatment           did       the    County           seek     to

involuntarily         commit       Christopher            S.?           The      involuntary

administration of psychotropic medication.

     ¶82   Simply put, the County sought to involuntarily commit

Christopher S. for the purpose of treating him by involuntarily

administering        psychotropic      medication.               Despite       the    majority

opinion's efforts to distinguish between the two statutes for

the purpose of its constitutional analysis, the two statutes

are, in fact, intimately intertwined.

     ¶83   Upon        consideration          of       the       case      law       and     the

relationship      between         involuntary          medication        and     involuntary
commitment,      I     conclude        that        when      the        State        seeks    to

involuntarily commit or involuntarily medicate a prisoner, an

"essential"      or    "overriding"          state       interest        is     required      to

outweigh the prisoner's significant, constitutionally protected

liberty    interests         in     avoiding           involuntary         medication         or

involuntary commitment and the associated stigma.

     ¶84   Although      I     agree    with       the    majority        opinion      that   a

finding    of    dangerousness          is       not     required         to     outweigh     a
prisoner's      constitutionally         protected              liberty        interests,      I

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conclude that when the State seeks to involuntarily commit a

prisoner,       the     State     must     demonstrate        an    "essential"          or

"overriding"          state     interest     to      outweigh       the         prisoner's

significant,      constitutionally         protected         liberty      interests      in

avoiding involuntary commitment and the associated stigma.                             Such

an   "essential"        or    "overriding"      state    interest         may    be,    for

example, safeguarding the prison, prisoners, and staff against a

mentally ill prisoner who is dangerous to him or herself or

others, or providing treatment to a gravely disabled prisoner.

       ¶85    The majority opinion concludes the state's interest

"in providing care and assistance to [prisoners] suffering from

mental illness"18 is sufficient.                Although the majority opinion

describes       this    state     interest      as     "compelling,"19           providing

involuntary      care    and    assistance      to     prisoners       suffering       from

mental       illness,    standing    alone,       is    not    an   "essential"         or

"overriding" state interest as these terms are used in the case

law.        Providing involuntary care and assistance to prisoners

suffering       from    mental     illness      is     not     an   "essential"         or
"overriding" state interest unless the prisoner poses a danger

to self or others, is gravely disabled, or another "essential"

or "overriding" state interest exists.

       ¶86    The state's interest in providing care and assistance

to mentally ill prisoners (or others within the State's care) is

present in all involuntary commitment and involuntary medication


       18
            Majority op., ¶8.
       19
            Majority op., ¶44.


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cases.       The United States Supreme Court's involuntary medication

and involuntary commitment cases have, however, all focused on

state interests above and beyond providing care and assistance

to    the    mentally         ill   person.         The   Court          has    addressed,       for

instance, "essential" or "overriding" interests such as ensuring

the    safety      and     security      of   the     prison,            treating       a    gravely

disabled prisoner,20 restoring trial competency,21 or protecting

society and providing treatment to individuals found not guilty

by reason of insanity.22

       ¶87    If     the       state's      interest           in     providing         care     and

assistance to mentally ill prisoners were sufficient to overcome

a prisoner's countervailing liberty interests, then a statute

permitting         involuntary        commitment          or        involuntary        medication

based       solely       on    a    finding     of        mental         illness        would     be

constitutionally           permissible.             However,         a    finding       of   mental

illness alone is not enough to support involuntary commitment.23

       ¶88    Unlike providing care and assistance to mentally ill

prisoners, ensuring the safety and security of prisons, prison
staff, and prisoners by removing dangerous (to self or others)

mentally      ill    prisoners,        or     providing         care       and       treatment   to


       20
            See Harper, 494 U.S. at 222-24.
       21
            See Sell, 539 U.S. at 178-80.
       22
            See Jones v. United States, 463 U.S. 354, 365-66 (1983).
       23
       See, e.g., O'Connor v. Donaldson, 422 U.S. 563, 575
(1975) (implying that a State's legitimate interests in
providing care and treatment could not overcome a person's
liberty interests).


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gravely    disabled      prisoners,     are    "essential"     and    "overriding"

state     interests.          Wisconsin    Stat.      § 51.20(1)(ar)      is    not,

however,    limited      to    circumstances     in    which   "essential"       and

"overriding" state interests are present.

    ¶89     On the contrary, Wis. Stat. § 51.20(1)(ar) does not

require    the   State    or   County     to   have   any   interest    above   and

beyond providing care and assistance to mentally ill prisoners.

The statute provides:

    If the individual is an inmate of a state prison, the
    petition may allege that the inmate is mentally ill,
    is a proper subject for treatment and is in need of
    treatment. The petition shall allege that appropriate
    less   restrictive  forms   of   treatment   have  been
    attempted   with   the   individual   and    have  been
    unsuccessful and it shall include a description of the
    less   restrictive  forms   of   treatment   that  were
    attempted.   The petition shall also allege that the
    individual has been fully informed about his or her
    treatment needs, the mental health services available
    to him or her and his or her rights under this chapter
    and that the individual has had an opportunity to
    discuss his or her needs, the services available to
    him or her and his or her rights with a licensed
    physician or a licensed psychologist.      The petition
    shall include the inmate's sentence and his or her
    expected date of release as determined under s. 302.11
    or 302.113, whichever is applicable.       The petition
    shall have attached to it a signed statement by a
    licensed physician or a licensed psychologist of a
    state prison and a signed statement by a licensed
    physician or a licensed psychologist of a state
    treatment facility attesting either of the following:

            1. That the inmate needs inpatient treatment at a
            state treatment facility because appropriate
            treatment is not available in the prison.

            2. That the inmate's treatment needs can be met
            on an outpatient basis in the prison.



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      ¶90    As a result, the text of Wis. Stat. § 51.20(1)(ar) is

not rationally related to an "essential" or "overriding" state

interest.         Pursuant to Wis. Stat. § 51.20(1)(ar), the State or

County      may       commit         a    mentally       ill         prisoner       without      any

"essential" or "overriding" state interest.

      ¶91    Because             Wisconsin         Stat.       § 51.20(1)(ar)             is     not

reasonably        related         to     an   "essential"            or   "overriding"         state

interest,         I            conclude       Wis.       Stat.            § 51.20(1)(ar)          is

unconstitutional as a matter of substantive due process.

                                                   II

      ¶92    Finally,            I     wish   to     offer       a    brief     comment        about

Christopher S.'s claim that the County did not show by clear and

convincing         evidence            that    he       was      incompetent         to        refuse

psychotropic medication.

      ¶93    As       I        explained      above,       the       jury    trial     regarding

Christopher's involuntary commitment took place the same day as

the bench trial regarding his involuntary medication.                                     Only one

witness, Dr. Keshena, testified.
      ¶94    The direct examination of Dr. Keshena largely parroted

the   language            of     Wis.     Stat.     § 51.61(1)(g)4.b.,              stating,       in

relevant part:

      Q.     Dr. Keshena, in the course of your treatment of
             [Christopher], have you had an opportunity to
             explain to him the advantages, disadvantages, and
             alternatives to the medication?

      A.     Yes.

      Q.     And after you've done that, in your opinion would
             he be substantially incapable or substantially
             capable of applying an understanding of the
             advantages, disadvantages, and alternatives to
                                                   13
                                                                      No.    2014AP1048.ssa

               his own condition in order to make an informed
               choice as to whether to accept or refuse
               psychotropic medication?

     A.        He's not capable.

     Q.        So you're saying he's substantially incapable?

     A.        Yes.
     ¶95       Elsewhere in the record there is ample evidence that

the doctors who treated Christopher S. explained the advantages,

disadvantages, and alternatives to medication to him.                           The trial

judge was familiar with this evidence.                     As a result, I concur in

the majority opinion's conclusion that the County met its burden

of proving by clear and convincing evidence that Christopher S.

was incompetent to refuse psychotropic medication and treatment.

     ¶96       Nevertheless, I write separately to point out that the

majority opinion explains that Dr. Keshena's testimony was "not

disputed at trial," so it was "not necessary for Dr. Keshena to

engage    in     a    lengthier       discussion     of    her   explanation      of   the

advantages,          disadvantages,      and       alternatives"      under     Outagamie

County v. Melanie L., 2013 WI 67, ¶67, 349 Wis. 2d 148, 833

N.W.2d 607.24          Although lengthier discussion may not have been

necessary       because     of    the     record      in    this     case,    given    the

significant constitutional rights at stake, the County should

develop a sufficient record to show that, for instance, the

person     was       advised     of     the    advantages,         disadvantages,      and

alternatives to treatment in order to enable appellate review.

See Melanie L., 349 Wis. 2d 148, ¶67.


     24
          Majority op., ¶56.


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    ¶97   For the reasons set forth, I dissent in part and write

separately.

    ¶98   I   am   authorized   to    state   that   Justice    ANN   WALSH

BRADLEY joins this opinion.




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