2013 WI 92
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP958
COMPLETE TITLE: In the matter of the mental commitment of Mary
F.-R.:
Milwaukee County,
Petitioner-Respondent,
v.
Mary F.-R.,
Respondent-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 345 Wis. 2d 63, 823 N.W.2d 841
(Ct. App. 2012 – Unpublished)
OPINION FILED: November 26, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 3, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Victor Manian
JUSTICES:
CONCURRED: ABRAHAMSON, C.J., concurs. (Opinion filed.)
ZIEGLER, ROGGENSACK, GABLEMAN, JJJ., concur.
(Opinion filed.)
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
by Hannah B. Schieber, assistant state public defender, and oral
argument by Hannah B. Schieber.
For the petitioner-respondent, there was a brief by
Kimberly R. Walker, Milwaukee County corporation counsel, and
Colleen A. Foley, principal assistant corporation counsel, and
oral argument by Colleen A. Foley.
2013 WI 92
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP958
(L.C. No. 2011ME4847)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the mental commitment of Mary
F.-R.:
Milwaukee County, FILED
Petitioner-Respondent,
NOV 26, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
Mary F.-R.,
Respondent-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 N. PATRICK CROOKS, J. This is a review of an
unpublished court of appeals decision1 that affirmed the circuit
court's order to involuntarily commit Mary F.-R. under Wis.
Stat. § 51.20 (2011-12).2 This case concerns the
1
Milwaukee Cnty. v. Mary F.-R., No. 2012AP958, unpublished
slip. op. (Wis. Ct. App. Oct. 2, 2012).
2
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
No. 2012AP958
constitutionality of the jury trial provisions available to
individuals subject to involuntary commitment for treatment
under Chapter 51. Under Wis. Stat. § 51.20(11), such
individuals may request a six-person jury for their involuntary
commitment hearing and at least a 5/6 jury determination is
required. The specific question we address is whether the
constitutional guarantee of equal protection is violated when
only a six-person jury with a 5/6 determination is available to
those subject to involuntary commitment under Chapter 51 when
compared to the 12-person jury and a requirement of unanimity
for individuals subject to involuntary civil commitment
proceedings as sexually violent persons under Chapter 980. We
also are presented with the question of whether Mary F.-R.
forfeited her equal protection challenge by failing to make a
contemporaneous objection at the time the circuit court
empaneled the six-person jury at her commitment hearing.
¶2 On December 8, 2011, a jury of six found that
Milwaukee County met its burden to involuntarily commit Mary F.-
R. for treatment for mental illness under Wis. Stat. § 51.20.
The following day, the circuit court entered an order, which
committed Mary F.-R. for a period no longer than six months.
Mary F.-R. appeals that order, arguing that the six-person non-
unanimous jury available to her under Wis. Stat. § 51.20(11)
violates equal protection. In addition, Mary F.-R. argues that
she did not forfeit her equal protection argument, even though
she failed to raise a contemporaneous objection because she had
already made multiple requests for a 12-person jury.
2
No. 2012AP958
¶3 To reach Mary F.-R.'s equal protection challenge, we
assume, without deciding, that she did not forfeit her right to
challenge Wis. Stat. § 51.20(11). We hold that the differences
in the jury provisions for initial commitment hearings under
§ 51.20(11) and Chapter 980 do not violate Mary F.-R.'s
constitutional right to equal protection under the Fourteenth
Amendment or under Article I, Section 1 of the Wisconsin
Constitution. The legislature chose to allow for differing jury
protections for initial commitments under § 51.20 and Chapter
980 and these choices, reflected in the legislative enactments
in question, are presumed constitutional.3 Mary F.-R. has not
overcome this presumption and has not demonstrated the
unconstitutionality of § 51.20 beyond a reasonable doubt.
Furthermore, considering that Mary F.-R's specific challenge
relates to jury provisions, we find that rational basis review
is appropriate.4 We hold that the different purposes of the
provisions in question, the varied legislative schemes, and the
range of liberty restrictions imposed on individuals subject to
commitment under Wis. Stat. § 51.20, when compared to Chapter
980, provide a rational basis for the legislative decision to
provide a unanimous 12-person jury for initial Chapter 980
commitments and a six-person jury with a 5/6 verdict for initial
3
State v. McGuire, 2010 WI 91, ¶25, 328 Wis. 2d 289, 786
N.W.2d 227.
4
See ¶¶35-38, for our discussion of rational basis review,
the appropriate level of judicial scrutiny in this case.
3
No. 2012AP958
commitments under § 51.20(11). Accordingly, we affirm the court
of appeals.
I. Background
¶4 The facts underlying Mary F.-R.'s initial commitment
are not in dispute. Police officers responded to Mary F.-R.'s
apartment complex to address a call from a concerned neighbor.
After investigating further, officers placed Mary F.-R. in
emergency detention. Following this detention, the treatment
director of the Milwaukee County Mental Health division or his
designee5 filed a supplemental statement to the emergency
detention.6
¶5 After an individual is detained under §§ 51.15 or
51.20, a court must hold a hearing to determine "whether there
is probable cause to believe the allegations" set forth in the
petition for commitment. Wis. Stat. § 51.20(7)(a). On November
30, 2011, the Milwaukee County Circuit Court, Court Commissioner
Lindsey Grady presiding, held a hearing to determine whether
Milwaukee County had probable cause to detain Mary F.-R. On the
same day, Mary F.-R. filed a handwritten request for a 12-person
5
The supplemental statement is unclear as to whether the
treatment director or a designee signed the statement. In any
regard, the validity of the signed statement is not in question.
6
Under Wis. Stat. § 51.15(4)(b), the filing and notice of
the treatment director or designee statement is treated as if
Milwaukee County had filed a petition for involuntary commitment
under Wis. Stat. § 51.20.
4
No. 2012AP958
jury.7 During the probable cause hearing, Mary F.-R. also orally
requested a 12-person jury.8 Part way through the hearing, Mary
F.-R. became unsatisfied with her attorney and fired her. The
circuit court commissioner suspended the probable cause hearing
and scheduled a continuance to allow new counsel to be
appointed. Prior to the conclusion of the November 30, 2011,
proceeding, the circuit court accepted Mary F.-R.'s demand to
have a jury trial, but did not specifically address her demand
to have a 12-person jury. On December 2, 2011, the circuit
court, the Honorable William W. Brash presiding, continued with
the probable cause hearing. At this hearing, Mary F.-R.
requested a 12-person jury for her commitment trial.9 At the
conclusion of this hearing, the circuit court found that
Milwaukee County had met its burden to show that probable cause
existed to believe the allegations asserted in the emergency
detention and treatment director statement to commit Mary F.-R.
7
The handwritten request stated, "Please This is my Third
12 Person Jury Trial Demand for any involuntary medication and
any involuntary commitment here or elsewhere. . . . Two 12
Person Jury Demands were put in yesterday. One at 10am in PCS
and one on this ward after arrival after 12:30pm Sat.
11/26/2011."
8
Mary F.-R. stated, "[y]ou'll hear a different story about
what happened on that ward, and five 12-person jury demands – -
or six."
9
Mary F.-R. stated, "I want a 12-person jury demand; and
it's been in numerous times; and I have all the grievances and
all the jury demands . . . I want that in the file . . . all my
jury demands."
5
No. 2012AP958
¶6 Following a finding of probable cause, the next step
in involuntary commitment proceedings under Chapter 51 is to
hold a final hearing. On December 8, 2011, the circuit court,
the Honorable Victor Manian presiding, empaneled a six-person
jury for Mary F.-R.'s final commitment hearing. Neither Mary
F.-R. nor her attorney objected to the six-person jury at this
time. Following the hearing, the jury unanimously found that
Mary F.-R. met the requirements under Wis. Stat. § 51.20(1)(a)
for involuntary commitment. Specifically, the jury found that
Mary F.-R. was mentally ill, that she was a proper subject for
treatment, and that she was a danger to herself and to others.
The following day, December 9, 2011, the circuit court ordered
Mary F.-R. be committed to the Milwaukee County Behavioral
Health Division, a locked facility, for a period not to exceed
six months.
¶7 Mary F.-R. appealed the circuit court's order.10
Relevant to the issue before this court, Mary F.-R. challenged
the constitutionality of Wis. Stat. § 51.20(11)11 on equal
10
As part of her appeal, Mary F.-R. challenged whether
sufficient evidence existed for the jury to determine that she
was a danger to herself or others. That issue is not before
this court.
11
Section 51.20(11), in relevant part, provides:
JURY TRIAL. (a) If before involuntary commitment
a jury is demanded by the individual against whom a
petition has been filed under sub. (1) or by the
individual's counsel if the individual does not
object, the court shall direct that a jury of 6 people
be selected to determine if the allegations specified
in sub. (1) (a) or (ar) are true. . . .
6
No. 2012AP958
protection grounds. The court of appeals affirmed Mary F.-R.'s
involuntary commitment. It held that Mary F.-R. forfeited her
equal protection argument by failing to argue its
unconstitutionality at the circuit court and by failing to
object, either by herself or through counsel, to the jury of six
at the time of empanelment.
¶8 Mary F.-R. raises two challenges before this court that
relate only to the constitutionality of Wis. Stat. § 51.20(11).
First, she argues that she did not forfeit her equal protection
challenge when she failed to make a contemporaneous objection at
the time the circuit court empaneled the six-person jury.
Second, she argues that both § 51.20(11) and Chapter 980 are
civil commitment statutes, and that the jury provisions
available for initial commitment hearings for both should be the
same. Specifically, Mary F.-R. argues that § 51.20(11), on its
face,12 violates her constitutional right to equal protection
because § 51.20(11) does not require a 12-person jury and a
(b) No verdict shall be valid or received unless
agreed to by at least 5 of the jurors.
12
Mary F.-R, asserts that her equal protection argument is
a facial challenge to the constitutionality of Wis. Stat.
§ 51.20(11) and not an "as applied" challenge. A facial
challenge is defined as "[a] claim that a statute is
unconstitutional on its face — that is, that it always operates
unconstitutionally." Black's Law Dictionary 261 (9th ed. 2009).
In contrast an "as applied" challenge is "a claim that a statute
is unconstitutional on the facts of a particular case or in its
application to a particular party." Id. Milwaukee County does
not dispute Mary F.-R.'s classification of her challenge as a
facial challenge.
7
No. 2012AP958
unanimous verdict like the applicable provisions under Chapter
980.13
II. Standard of Review
¶9 A statute's constitutionality is a question of law
that this court reviews de novo. State v. West, 2011 WI 83,
¶22, 336 Wis. 2d 578, 800 N.W.2d 929. "Statutes are presumed to
be constitutional, and a party challenging a statute's
constitutionality must demonstrate that it is unconstitutional
beyond a reasonable doubt." State v. McGuire, 2010 WI 91, ¶25,
328 Wis. 2d 289, 786 N.W.2d 227.
III. Analysis
A. Introduction
¶10 The United States Constitution14 and the Wisconsin
Constitution15 guarantee individuals equal protection under the
13
The relevant jury provisions for Chapter 980 initial
commitments are Wis. Stat. § 980.03(3) and Wis. Stat.
§ 980.05(2).
Section 980.03(3), in relevant part, provides:
"The person who is the subject of the petition, the
person's attorney, or the petitioner may request that a trial
under s. 980.05 be to a jury. . . . A verdict of a jury under
this chapter is not valid unless it is unanimous."
The relevant portion of Section 980.05(2) provides:
"The person who is the subject of the petition, the
person's attorney, or the petitioner may request that a trial
under this section be to a jury of 12."
14
Section 1 of the Fourteenth Amendment of the United
States Constitution provides:
8
No. 2012AP958
law. U.S. Const. amend. XIV, § 1; Wis. Const. art. I, § 1.
Equal protection under our state constitution is generally
interpreted in the same way as the equal protection clause found
in the federal constitution. State ex rel. Sonneborn v.
Sylvester, 26 Wis. 2d 43, 49, 132 N.W.2d 249 (1965).
¶11 As Mary F.-R.'s equal protection challenge requires a
comparison of jury provisions in Wis. Stat. § 51.20(11) to jury
provisions in Chapter 980, we will begin with a brief overview
of the use of jury determinations in civil proceedings and
specifically in civil commitment proceedings. We will then
proceed by giving a brief overview of involuntary commitment
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property,
without due process of law; nor deny to any person
within its jurisdiction the equal protection of the
laws.
15
"Art. I, Sec. 1, of the Wisconsin Constitution is framed
in language of a Declaration of Rights and reminiscent of the
Declaration of Independence, and many times has been held to be
substantially equivalent of the due-process and the equal-
protection clauses of the 14th Amendment to the U.S.
Constitution." State ex rel. Sonneborn v. Sylvester, 26 Wis. 2d
43, 49, 132 N.W.2d 249, 252 (1965)(footnote omitted). Article
I, Section 1 of the Wisconsin Constitution provides:
"All people are born equally free and independent, and have
certain inherent rights; among these are life, liberty and the
pursuit of happiness; to secure these rights, governments are
instituted, deriving their just powers from the consent of the
governed."
9
No. 2012AP958
procedures under Wis. Stat. § 51.20 and Chapter 980 before
addressing Mary F.-R.'s specific arguments.
¶12 The Wisconsin Constitution allows the legislature to
provide for a specified number of jurors for a valid verdict,
but not less than 5/6 thereof in civil cases. Wis. Const. art.
I, § 5 (amended 1922).16 The legislature has chosen to allow
six-person juries in civil cases. Wis. Stat. § 756.06(2)(b).
An exception is provided for juries in Chapter 980 cases. Id.
In addition, the legislature has sanctioned the use of a non-
unanimous 5/6 jury verdict for all six-person juries permitted
by Wis. Stat. § 756.06(2)(b). See Wis. Stat. § 805.09.
¶13 Wisconsin Stat. § 51.20 is a civil statute that
governs involuntary commitments. Wisconsin has a long history
of utilizing juries in involuntary commitment cases. Since
1880, Wisconsin has allowed individuals subject to confinement
for purposes of psychiatric treatment to have the option of a
jury determination. State ex rel. Farrell v. Stovall, 59 Wis.
16
Article I, Section 5 of the Wisconsin Constitution
provides:
The right of trial by jury shall remain
inviolate, and shall extend to all cases at law
without regard to the amount in controversy; but a
jury trial may be waived by the parties in all cases
in the manner prescribed by law. Provided, however,
that the legislature may, from time to time, by
statute provide that a valid verdict, in civil cases,
may be based on the votes of a specified number of the
jury, not less than five-sixths thereof.
10
No. 2012AP958
2d 148, 163, 207 N.W.2d 809 (1973) (citing Humphrey v. Cady, 405
U.S. 504, 509 (1972)).17
B. Involuntary Commitments Under Wis. Stat. § 51.20
¶14 Wisconsin Stat. § 51.20 governs involuntary commitments
for treatment purposes. This process commences with the filing
of a petition for examination that requires a showing that an
individual has a mental illness, a drug dependency, or is
developmentally disabled. Wis. Stat. § 51.20(1)(a)1. In
addition, the petitioner must show that the individual is a
"proper subject for treatment." Id. Finally, the petition
requires a showing that the individual is dangerous. Wis. Stat.
§ 51.20(1)(a)2. A showing that the individual is a danger to
himself or herself or to others will meet the dangerousness
requirement. Wis. Stat. § 51.20(1)(a)2.a.-b.
¶15 Following the filing of a petition, the individual is
appointed counsel through the Wisconsin State Public Defender's
17
The first reference to the use of juries in commitment
proceedings appeared in Section 593 of the Wisconsin Statutes.
Wis. Stat. ch. 32, § 593 (1883 Supp.) (as amended by ch. 266,
1880, sec 2, ch. 202, 1881, and sec. 1, ch. 35, 1883). This
Section stated "[t]he application . . . shall specify whether or
not a trial by jury is desired by the applicant," but did not
specify the number of jurors or whether the verdict was required
to be unanimous. Id. The 1898 version of the Wisconsin
Statutes, however, specified that "[i]f a jury trial be demanded
by the person alleged to be insane or by any relative or friend
acting on his behalf . . . the procedure shall be the same as in
trials by jury in justices' courts." Wis. Stat. ch. 32, § 585b
(1898). Juries, if requested, in justices' courts, also
referred to as courts of justices of the peace, were comprised
of "six men." Wis. Stat. ch. 156, § 3639 (1898). In addition,
juries in justices' courts were required to reach a unanimous
determination. Wis. Stat. ch. 156, §§ 3652-53 (1898).
11
No. 2012AP958
Office. Wis. Stat. § 51.20(3). If an order of detention is
issued, a hearing must be held to determine whether probable
cause exists to believe the allegations asserted in the petition
for commitment. Wis. Stat. § 51.20(7). In making a probable
cause determination and all subsequent determinations, a court
must consider alternative grounds for commitment, which include
consideration of the least restrictive treatment method
available to meet the needs of the individual. See Wis. Stat.
§ 51.20(1m); See also Wis. Stat. § 51.001.18
¶16 If the court finds that probable cause exists, it
schedules a final commitment hearing. Wis. Stat.
§ 51.20(7)(c), (10)(c). The court may choose to release the
18
The legislative policy statement found in Wis. Stat.
§ 51.001 speaks to the purpose of involuntary commitments,
budgetary concerns, and the preference to impose the least
restrictive treatment option available that will meet an
individual's needs. Section 51.001 states:
Legislative policy. (1) It is the policy of the state
to assure the provision of a full range of treatment
and rehabilitation services in the state for all
mental disorders and developmental disabilities and
for mental illness, alcoholism and other drug abuse.
There shall be a unified system of prevention of such
conditions and provision of services which will assure
all people in need of care access to the least
restrictive treatment alternative appropriate to their
needs, and movement through all treatment components
to assure continuity of care, within the limits of
available state and federal funds and of county funds
required to be appropriated to match state funds.
(2) To protect personal liberties, no person who can
be treated adequately outside of a hospital,
institution or other inpatient facility may be
involuntarily treated in such a facility.
12
No. 2012AP958
individual prior to the final hearing and may impose conditions
for release. Wis. Stat. § 51.20(8)(a). Alternatively, the
court, considering the needs and condition of the individual,
may order the individual to remain detained pending the final
hearing. Wis. Stat. § 51.20(8)(b).
¶17 At least 48 hours prior to the final hearing, the
individual or individual's attorney may request that the final
hearing be before a jury of six. Wis. Stat. § 51.20(11)(a). A
valid jury verdict requires agreement from five of the six
jurors. Wis. Stat. § 51.20(11)(b).
¶18 If a jury is requested and at least five of the six
jurors agree that the petitioner has proved the requirements
under Wis. Stat. § 51.20(1)(a) by clear and convincing evidence,
the court will order treatment for a period not to exceed six
months. Wis. Stat. § 51.20(13)(a)3., (e), (g)1. Treatment may
be on an outpatient or inpatient basis as directed by the court.
Wis. Stat. § 51.20(13)(a)3., (dm). Individuals subject to
involuntary commitment orders may appeal the court's order.
Wis. Stat. § 51.20(15).
¶19 If the court orders inpatient treatment, such
treatment must be "in the least restrictive manner consistent
with the requirements of the subject individual in accordance
with a court order designating the maximum level of inpatient
facility." Wis. Stat. § 51.20(13)(c)2. The county department
providing treatment is also required to place the individual in
the facility and program that is "least restrictive of the
individual's personal liberty, consistent with the treatment
13
No. 2012AP958
requirements of the individual." Wis. Stat. § 51.20(13)(f).
The county is also required to alter an individual's treatment
plan as necessary to provide treatment continuously in the least
restrictive setting possible. Id.
¶20 While the county may discharge an individual subject
to inpatient treatment at any time, it may also petition the
court to recommit an individual for an additional maximum time
period of one year. Wis. Stat. § 51.20(13)(g)3., 2r., 1.
Twenty-one days prior to the expiration of the initial six-month
maximum commitment period, the court must file an evaluation of
the individual along with a recommendation regarding
recommitment. Wis. Stat. § 51.20(13)(g)2r. If recommitment is
recommended, the court will proceed with a recommitment hearing.
Wis. Stat. § 51.20(13)(g)3.
¶21 Under Wis. Stat. § 51.20(16), committed individuals
may petition the court for reexamination and/or modification or
cancellation of the court's commitment order. If no hearing has
been held within 120 days prior to filing, the court must grant
a hearing to consider the individual's petition. Wis. Stat.
§ 51.20(16)(c). Finally, an individual committed by court order
for treatment of mental illness must be reevaluated within 30
days of commitment, within three months of the initial
reevaluation, and, at a minimum, every six months thereafter.
Wis. Stat. § 51.20(17). Mandatory evaluations ensure that the
individual receives treatment in the least restrictive setting
available to meet his or her needs. See Id.
C. Involuntary Commitments Under Chapter 980
14
No. 2012AP958
¶22 Chapter 980 commitments are also civil proceedings.
State v. Rachel, 2002 WI 81, ¶41, 254 Wis. 2d 215, 647 N.W.2d
762. However, we have found that Chapter 980 committees share
many protections available to criminal defendants. State v.
Curiel, 227 Wis. 2d 389, 417, 597 N.W.2d 697 (1999).19 One of
these protections is that the petitioner in a Chapter 980
commitment has the burden to prove that an individual is a
sexually violent person beyond a reasonable doubt. See Wis.
Stat. § 980.05(3)(a). Another protection, granted by the
legislature, is the ability of the individual subject to a
Chapter 980 commitment to request a unanimous 12-person jury for
his or her initial commitment hearing. Wis. Stat. § 980.03(3);
Wis. Stat. § 980.05(2).
¶23 This court has summarized the legislative scheme for
the involuntary commitment of sexually violent persons under
Chapter 980. See e.g., State v. Post, 197 Wis. 2d 279, 297-301,
541 N.W.2d 115 (1995). We are mindful, however, of the
legislative changes made to Chapter 980 since our decision in
19
We recognize that our reasoning in Curiel was based, in
part, on a now repealed subsection of Chapter 980. See Wis.
Stat. § 980.05(1m)(1995-96), repealed by 2005 Wis. Act 434.
This subsection included the following language, "[a]t the trial
to determine whether the person who is the subject of a petition
under s. 980.02 is a sexually violent person, all rules of
evidence in criminal actions apply. All constitutional rights
available to a defendant in a criminal proceeding are available
to the person." Id. Even without the language from the now
repealed Wis. Stat. § 980.05(1m), Chapter 980 continues to offer
several protections similar to those allowed criminal defendants
discussed herein.
15
No. 2012AP958
Post.20 Therefore, we will proceed by discussing the aspects of
Chapter 980 most pertinent to Mary F.-R.'s equal protection
challenge.
¶24 The involuntary commitment of a sexually violent
person commences with the filing of a petition alleging that the
individual is sexually violent. Wis. Stat. § 980.02. A
petition may be filed by the Wisconsin Department of Justice or,
if the department does not file a petition, by the district
attorney in the county where the individual was convicted of a
sexually violent offense, where the individual will reside upon
discharge, or where the individual is currently in custody.
Wis. Stat. § 980.02(1)(a)-(b); State v. Byers, 2003 WI 86, ¶43
263 Wis. 2d 113, 665 N.W.2d 729 ("[A] request from the agency
with jurisdiction and a subsequent decision by the DOJ not to
file are prerequisites to a district attorney's authority to
file a Chapter 980 petition.").
¶25 The individual subject to commitment under Chapter
980, that person's attorney, or the petitioner may request that
the commitment trial be to a 12-person jury. Wis. Stat.
§ 980.05(2). The parties, however, may stipulate that the trial
be to a jury of fewer than 12, and proceed accordingly with the
court's approval. Wis. Stat. § 980.05(2m)(b)-(c). The jury's
verdict must be unanimous. Wis. Stat. § 980.03(3).
20
Since our December 9, 1995, decision in Post, the
Wisconsin Legislature has amended Chapter 980 on several
occasions. See 1997 Wis. Act 205, §§ 104-05; 2005 Wis. Act 344,
§§ 633-35; 2005 Wis. Act 434, §§ 60-130.
16
No. 2012AP958
¶26 If a jury finds that the individual is a sexually
violent person, the court must commit the person to the custody
of the department of health services until the individual is no
longer a sexually violent person. Wis. Stat. § 980.06. The
commitment order must specify that the person be placed in
institutional care. Id.
¶27 Reexamination of the committed individual occurs
within 12 months of initial confinement and again at least every
12 months thereafter. Wis. Stat. § 980.07(1). At the earliest,
an individual committed under Chapter 980 may petition the court
for supervised release after 12 months of commitment. See Wis.
Stat. § 980.08.
¶28 The committed individual may petition the court for
discharge at any time; however, Wis. Stat. § 980.09(1) states:
The court shall deny the petition . . . without a
hearing unless the petition alleges facts from which
the court or jury may conclude the person's condition
has changed since the date of his or her initial
commitment order so that the person does not meet the
criteria for commitment as a sexually violent person.
Recently, in State v. Arends, 2010 WI 46, ¶¶3-5, 325 Wis. 2d 1,
784 N.W.2d 513, we clarified the discharge petition process and
explained that a circuit court must follow a two-step process
outlined in Wis. Stat. § 980.09(1)-(2) when evaluating a Chapter
980 committee's discharge petition. If the discharge petition
does not "allege[] facts from which a reasonable trier of fact
could conclude the petitioner is no longer a sexually violent
person," then the discharge petition fails at step one. Arends,
325 Wis. 2d 1, ¶30. If sufficient facts exist within the
17
No. 2012AP958
petition, the court then moves to step two, which requires a
"limited review of the sufficiency of the evidence." Id., ¶43.
"If any facts support a finding in favor of the petitioner, the
court must order a discharge hearing on the petition; if no such
facts exist, the court must deny the petition." Id.
¶29 An individual subject to Chapter 980 commitment may
request a jury of six for his or her discharge hearing. Wis.
Stat. § 980.095(1)(a). If a jury is requested, five or the six
jurors must agree to discharge. Wis. Stat. § 980.095(1)(c).
D. Constitutional Challenge
¶30 Mary F.-R. alleges that Wis. Stat. § 51.20(11)
violates her constitutional right to equal protection.
Specifically she argues that Wis. Stat. § 51.20 cannot
constitutionally provide lesser jury protections for initial
commitment hearings than those afforded by Chapter 980 because
the individuals affected are similarly situated, and both types
of commitments promote similar governmental interests of
protecting the public and treating the committed individual.
However, as a preliminary matter, this court must first consider
whether Mary F.-R. forfeited her constitutional challenge when
she failed to make a contemporaneous objection at the time the
circuit court empaneled the six-person jury.
1. Forfeiture
¶31 Mary F.-R. contends that she did not forfeit her
ability to facially challenge Wis. Stat. § 51.20(11) because
under State v. Bush, 2005 WI 103, ¶17, 283 Wis. 2d 90, 699
N.W.2d 80, a facial challenge to the constitutionality of a
18
No. 2012AP958
statute goes to the subject matter jurisdiction of the court and
"cannot be waived."21
¶32 In State v. Bush, we addressed the procedural question
of whether the defendant in that case forfeited his ability to
bring a facial challenge to the constitutionality of Chapter 980
when he failed to raise the constitutional issue in either of
his appeals following his initial commitment. Bush, 283 Wis. 2d
90, ¶14. In holding that the defendant did not forfeit his
challenge to the constitutionality of Chapter 980, we said "that
while an 'as applied' challenge to the constitutionality of a
statute may be waived, a facial challenge is a matter of subject
matter jurisdiction and cannot be waived." Id., ¶17 (citing
State v. Cole, 2003 WI 112, ¶46, 264 Wis. 2d 520, 665 N.W.2d 328
and State v. Trochinski, 2002 WI 56, ¶34 n. 15, 253 Wis. 2d 38,
644 N.W.2d 891).
¶33 Milwaukee County argues that Bush is inapplicable to
this case since Mary F.-R. does not challenge the entirety of
Chapter 51 or the essential purpose of the chapter as was the
case in Bush.
21
While we used the term "waiver" in Bush instead of
"forfeiture," we have since clarified the difference in meaning
between the two terms. "Although cases sometimes use the words
'forfeiture' and 'waiver' interchangeably, the two words embody
very different legal concepts. 'Whereas forfeiture is the
failure to make the timely assertion of a right, waiver is the
intentional relinquishment or abandonment of a known right.'"
State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612
(quoting United States v. Olano, 507 U.S. 725, 733 (1993)).
19
No. 2012AP958
¶34 We decline the parties' invitation to address our
holding in Bush. Instead we reach the merits of Mary F.-R.'s
equal protection challenge by assuming, without deciding, that
she did not forfeit her challenge when she failed to make a
contemporaneous objection at the time the circuit court
empaneled the six-person jury. We also note that Mary F.-R.
made multiple requests for a 12-person jury prior to the
empanelment of the six-person jury.
2. Level of Judicial Scrutiny
¶35 We next turn to the question of the appropriate level
of scrutiny that should be used to evaluate Mary F.-R.'s claim.
The United States Supreme Court has established two levels of
judicial scrutiny that traditionally apply to equal protection
challenges.22 See City of Cleburne, Tex. v. Cleburne Living
Ctr., 473 U.S. 432, 439-40 (1985). "The general rule is that
legislation is presumed to be valid and will be sustained if the
classification drawn by the statute is rationally related to a
legitimate state interest." Id. at 440. This level of scrutiny
is referred to as rational basis. However, the other option,
strict scrutiny, will apply "when a statute classifies by race,
alienage, or national origin" or "when state laws impinge on
personal rights protected by the Constitution." Id. Stated
another way, "[e]qual protection requires strict scrutiny of a
22
A third level of scrutiny, intermediate scrutiny, not
discussed here typically applies to "discriminatory
classifications based on sex or illegitimacy." Clark v. Jeter,
486 U.S. 456, 461 (1988).
20
No. 2012AP958
legislative classification only when the classification
impermissibly interferes with the exercise of a fundamental
right or operates to the peculiar disadvantage of a suspect
class." State v. Annala, 168 Wis. 2d 453, 468, 484 N.W.2d 138
(1992)(citing Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312
(1976)). In these circumstances, laws must be analyzed using
strict scrutiny review and upheld only if narrowly tailored "to
serve a compelling state interest." City of Cleburn, 473 U.S.
at 440.
¶36 Mary F.-R. asks this court to apply strict scrutiny in
evaluating her equal protection challenge because she asserts
that her fundamental liberty interest is at issue. She contends
that the differences in the jury provisions in § 51.20 and
Chapter 980 are not narrowly tailored to promote the government
interests of protecting the public and treating the committed
individual as required under strict scrutiny analysis. In the
alternative, if this court determines that rational basis review
is appropriate, Mary F.-R. argues that the differences in the
jury provisions for initial commitments under § 51.20(11) and
Chapter 980 are not rationally related to the governmental
interests they serve.
¶37 Milwaukee County, however, argues that rational basis
review rather than strict scrutiny should apply. It argues that
strict scrutiny analysis cannot apply, because Mary F.-R. does
not belong to a suspect class, and because her challenge relates
to jury provisions and not to her fundamental liberty interest.
21
No. 2012AP958
¶38 In evaluating prior challenges based on the
differences found in Chapter 51 and Chapter 980, this court has
generally refrained from deciding which level of scrutiny should
apply. Post, 197 Wis. 2d at 321. However, we agree with
Milwaukee County that rational basis analysis is the appropriate
level of judicial scrutiny to apply to this case. We disagree
with Mary F.-R.'s contention that strict scrutiny applies due to
her fundamental liberty interest. While liberty is a
fundamental right, Foucha v. Louisiana, 504 U.S. 71, 86 (1992),
and involuntary civil commitment is a "significant deprivation
of liberty," Addington v. Texas, 441 U.S. 418, 425 (1979), Mary
F.-R.'s challenge relates only to the jury procedures available
for initial commitment hearings under Wis. Stat. § 51.20 and not
to the use of involuntary commitments in general. Unlike a
situation where protection for a fundamental liberty interest is
interfered with impermissibly, having a six-person jury trial is
not the "equivalent to having no jury trial at all." State v.
Huebner, 2000 WI 59, ¶18, 235 Wis. 2d 486, 611 N.W.2d 727.
There is no right to a 12-person jury in civil proceedings such
as here. Id., ¶¶17-19. In addition, we are satisfied that Mary
F.-R. does not belong to a suspect class.23 Since strict
23
Mary F.-R. makes no argument that she belongs to a
suspect class. The United States Supreme Court has explained
that a "suspect class is one 'saddled with such disabilities, or
subjected to such a history of purposeful unequal treatment, or
relegated to such a position of political powerlessness as to
command extraordinary protection from the majoritarian political
process.'" Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 313
(1976)(citing San Antonio Indep. Sch. Dist. v. Rodriguez, 411
U.S. 1, 28 (1973)). The Supreme Court has specifically found
22
No. 2012AP958
scrutiny does not apply to this case, we evaluate Mary F.-R's
equal protection argument using rational basis review.
3. Equal Protection Analysis
¶39 In response to Mary F.-R.'s equal protection argument,
Milwaukee County does not dispute that § 51.20(11) and Chapter
980 provide different jury provisions for initial commitments.
Both parties also take the position that individuals subject to
involuntary commitment under § 51.20 and Chapter 980 are
similarly situated to some extent. However, Milwaukee County
notes the long-standing use of six-person juries in civil
proceedings, and differentiates between the two groups by
focusing on the difference in liberty restraint faced by each of
the groups. Milwaukee County asserts that these differences
provide a rational basis for the different jury provisions at
issue.
¶40 We agree with Milwaukee County that the availability
of a non-unanimous six-person jury in a § 51.20 commitment trial
does not violate equal protection. Chapter 980 committees are
subject to increased liberty restraints when compared to Chapter
51 committees. The legislature has imposed restraints in both
situations for treatment purposes and for the purposes of
protecting the public. We hold that the legislative decision to
allow the added protection of a 12-person unanimous jury in
Chapter 980 commitment trials, but not in Chapter 51 commitment
that individuals facing discriminatory treatment based on race
or national origin will be considered part of a suspect class.
Id.
23
No. 2012AP958
trials, is rationally related to different treatment needs and
differing levels of dangerousness that § 51.20 and Chapter 980
seek to address, as well as stricter rules concerning
confinement in Chapter 980.
¶41 As the party challenging the constitutionality of Wis.
Stat. § 51.20(11), Mary F.-R. has the burden to prove her equal
protection violation beyond a reasonable doubt. See Post, 197,
Wis. 2d at 301. It is well established under rational basis
review that "[e]qual protection does not require that all
persons be dealt with identically, but it does require that a
distinction made have some relevance to the purpose for which
the classification is made." See Baxstrom v. Herold, 383 U.S.
107, 111 (1966). "[T]he crucial question is whether there is an
appropriate governmental interest suitably furthered by the
differential treatment." Police Dep't of Chicago v. Mosley, 408
U.S. 92, 95 (1972). Therefore, we first consider the
governmental interests served through involuntary commitments
under both § 51.20 and Chapter 980.
¶42 Wisconsin Stat. § 51.20 serves three governmental
interests, which are apparent from the statutory language.
First, the statute serves to protect the public. Wis. Stat.
§ 51.20(1)(a)2.b. Second, it provides protection of the
committed individual. Wis. Stat. § 51.20(1)(a)2.a, c.-e.
Finally, it is concerned with providing treatment to the
committed individual in the least restrictive treatment setting
available, which meets the individual's needs. Wis. Stat.
§ 51.20(1)(a)1; Wis. Stat. § 51.001.
24
No. 2012AP958
¶43 Chapter 980 furthers two governmental interests.
Protection of the public and treatment for the committed
individual are such interests. See Post, 197 Wis. 2d at 302;
Bush, 283 Wis. 2d 90, ¶13.
¶44 The pertinent question in our equal protection
analysis is whether the differences in the jury protections
offered under Wis. Stat. § 51.20(11) and Chapter 980 rationally
relate to the governmental interests served by each of the
legislative enactments. We have previously commented that
Chapter 980 committees present a "heightened level of
dangerousness and . . . unique treatment needs," which "justify
distinct legislative approaches to further the compelling
governmental purpose of protection of the public." Post, 197
Wis. 2d at 322-23. These same considerations, treatment needs
and protection of the public, provide a rational basis for the
legislature to afford different jury protections to individuals
subject to § 51.20 commitments when compared to Chapter 980.
¶45 We recognize that individuals subject to commitments
under Wis. Stat. § 51.20 and Chapter 980 share some common
characteristics and that, in general, both statutory chapters
address somewhat similar governmental interests. For example,
Wis. Stat. § 51.20 and Chapter 980 share the goals of protection
of the public and treatment of the individual. In addition, on
a broader scale, both chapters govern classes of individuals
that the legislature has deemed in need of civil commitment.
¶46 Aside from these similarities, however, significant
differences exist between § 51.20 committees and Chapter 980
25
No. 2012AP958
committees. In addition, there are pronounced differences in
the specific governmental purposes served by § 51.20 commitments
when compared to Chapter 980 commitments. These differences
provide a rational basis for the legislature to provide a 12-
person unanimous jury option to Chapter 980 committees, and a
six-person non-unanimous jury to individuals subject to § 51.20.
¶47 As a general example of the differences between
Chapters 51 and 980, the governmental interest of protecting the
individual is present in Chapter 51 commitments, but not in
Chapter 980. See Wis. Stat. § 51.20(1)(a)2.a.(requiring a
dangerousness factor for commitment that may be met if the
individual is a danger to himself or herself). Specifically,
and more importantly, additional differences between § 51.20 and
Chapter 980 all relate to the lessened liberty restraint
experienced by § 51.20 committees when compared to Chapter 980
committees. The increased liberty deprivation imposed on
Chapter 980 committees addresses both the treatment and
protection of the public purposes of these types of commitments.
¶48 At every step of the involuntary commitment process,
individuals subject to Chapter 980 are subject to greater
liberty restrictions than individuals subject to Wis. Stat.
§ 51.20. For example, following the filing of a petition,
individuals subject to Wis. Stat. § 51.20 commitments may remain
in the community before a final determination is made. Wis.
Stat. § 51.20(2). This is also the case following the probable
cause hearing. Wis. Stat. § 51.20(8)(a). Individuals subject
to commitment under Chapter 980, however, remain in prison
26
No. 2012AP958
following the filing of a petition for commitment. See Wis.
Stat. § 980.015; Wis. Stat. § 980.02(1m). Furthermore, once an
individual is found to be a sexually violent person, the
commitment order must specify placement in institutional care.
Wis. Stat. § 980.06.
¶49 There are also significant differences in the amount
of time that an individual may be committed depending on whether
commitment is ordered under Chapter 51 or Chapter 980. Initial
commitments under Chapter 51 are limited to a maximum time
period of six months. Wis. Stat. § 51.20(13)(g). Initial
commitments under Chapter 980, however, can last indefinitely.
Wis. Stat. § 980.06.
¶50 The legislative policy underlying Chapter 51 further
illustrates a significant difference in purpose between § 51.20
commitments and Chapter 980 commitments. The legislative
approach to Chapter 51 is to provide treatment to individuals in
the least restrictive setting that is available to meet each
individual's needs. Wis. Stat. § 51.001(1). This is reflected
throughout § 51.20 and is especially apparent in the provisions
that require periodic reevaluations of the committed person to
ensure that the least restrictive treatment setting is being
used. Wis. Stat. § 51.20(17). However, Chapter 980 commitments
are not subject to a similar goal of providing treatment in the
least restrictive manner possible, and reevaluations may be done
on a less frequent basis. See Wis. Stat. § 980.07(1) (discussing
reevaluation).
27
No. 2012AP958
¶51 Another example of the increased liberty restraints
placed on Chapter 980 committees is reflected in the types of
treatment available to the two groups. In line with a goal of
providing the least restrictive treatment setting possible,
initial § 51.20 commitments can occur on an outpatient basis,
but Chapter 980 commitments cannot. Compare Wis. Stat.
§ 51.20(13)(a)3, (dm) with Wis. Stat. § 980.06.
¶52 Furthermore, rational basis review may be satisfied if
"any reasonably conceivable state of facts . . . could provide a
rational basis for the classification," F.C.C. v. Beach
Commc'ns, Inc., 508 U.S. 307, 313 (1993). That the legislature
actually based its decision on the stated facts is not required.
Id. at 315. Cost savings considerations provide an additional
rational basis for why the legislature may have chosen to
provide the option of a six-person jury in involuntary
commitments under Chapter 51 instead of a 12-person jury.24
24
Johnson v. Louisiana, 406 U.S. 356 (1972), supports our
conclusion that cost savings considerations provide a rational
basis for the differences in jury size and jury unanimity at
issue today. In that case, the United States Supreme Court
upheld Louisiana's three tiered criminal jury structure, which
imposed different sized juries and varying unanimity
requirements based on the seriousness of the charged offense.
Id. at 363-64. Specifically, "Louisiana has permitted less
serious crimes to be tried by five jurors with unanimous
verdicts, more serious crimes have required the assent of nine
of 12 jurors, and for the most serious crimes a unanimous
verdict of 12 jurors is stipulated." Id. at 364. The Court
held that the Louisiana legislature's decision to require
different jury sizes and varied unanimity requirements was
rationally related to cost savings efforts aimed at the criminal
justice system; therefore, the legislative scheme did not
violate equal protection. Id. at 363-64.
28
No. 2012AP958
¶53 Mary F.-R. asserts that individuals subject to
commitment under Wis. Stat. § 51.20 and Chapter 980 are
similarly situated. This assertion is undoubtedly based on our
prior holdings in Post, 197 Wis. 2d at 319-20, and Stovall, 59
Wis. 2d at 159-60.
¶54 In Post, we stated that "persons committed under
chapters 51 and 980 are similarly situated for purposes of an
equal protection comparison." Post, 197 Wis. 2d at 318-19. We
based our decision in Post on Stovall in which we found the
scope, purpose, and required judicial determination under
Chapter 51 and Chapter 975, the now repealed Sex Crimes Act, to
be similar. Stovall, 59 Wis. 2d at 164. These similarities led
us to conclude that there existed no rational basis for the
legislature to allow jury determinations for initial commitments
and recommitments under Chapter 51, but not under Chapter 975.
Id. at 168.
¶55 In light of our holding today, our prior discussion of
whether individuals subject to involuntary commitment under
Chapter 51 and Chapter 980 are similarly situated merits
revisiting. First, it is necessary to consider that in
concluding that individuals subject to involuntary commitment
under Chapter 51 and Chapter 980 are similarly situated, Post
relied on analysis that compared Chapter 51 to Chapter 975.
Second, Post did not specifically compare the purposes of
§ 51.20 and Chapter 980. Third, and most importantly, in
concluding that Chapter 51 and Chapter 980 committees were
similarly situated, Post did not consider the narrow question of
29
No. 2012AP958
specific jury provisions before us today to reach its
conclusion. Finally, both Post and Stovall engage in what might
appear to be a tiered approach to equal protection analysis. We
have purposely declined, in our decision today, to utilize a
tiered equal protection analysis, in which a threshold question
of whether parties are similarly situated must be answered first
before reaching the question of equal protection. "[W]hen
properly understood and applied, 'similarly situated' is another
way of stating the fundamental values of the Equal Protection
Clause." Giovanna Shay, Similarly Situated, 18 Geo. Mason L.
Rev. 581, 615 (2011).
¶56 Our decision today is in line with our previous
determinations in equal protection cases involving Chapters 51
and 980. On prior occasions, this court has considered several
challenges that involved claimed equal protection violations in
Chapter 980 when compared to Chapter 51. In almost all cases,
we have found that no equal protection violation occurred due to
the state's compelling interest to protect the public through
Chapter 980 commitments. For example, in Post, we found that in
all but one of the equal protection challenges, "[t]he state's
compelling interest in protecting the public provides the
necessary justification for the differential treatment of the
class of sexually violent persons." Post, 197 Wis. 2d at 321.
¶57 In Post, we did, however, find that an equal
protection violation existed because Chapter 980 did not allow a
committed individual the right to request a jury at his or her
discharge hearing. Id. at 328-29. In contrast, Chapter 51
30
No. 2012AP958
allowed the committed individual to request a six-person jury.
Id. at 329. In doing so, we stressed the important role that a
jury plays and its "'critical function of introducing into the
process a lay judgment, reflecting values generally held in the
community, concerning the kinds of potential harm that justify
the State in confining a person for compulsory treatment.'" Id.
at 328 (quoting Humphrey, 405 U.S. at 509).
¶58 In addition, we have previously held that a rational
basis exists for other differences between Chapter 980 and
Chapter 51. See State v. Burgess, 2003 WI 71, ¶33, 262 Wis. 2d
354, 665 N.W.2d 124 (holding that the differences between the
chapters relating to the level of confidentiality afforded to
each type of proceedings does not violate equal protection);
West, 336 Wis. 2d 578, ¶96 (holding that the legislative
decision to place the burden of proof on the committed
individual seeking supervised release under Chapter 980 was
justified due to the different degrees of dangerousness that
each chapter seeks to address).
¶59 In line with these prior decisions, we hold that the
differences between Chapter 51 and Chapter 980 are such that the
legislature's decision to allow a six-person jury with a 5/6
determination under Wis. Stat. § 51.20(11) and a 12-person
unanimous determination under Chapter 980 is rationally related
to the differences in liberty restraint that the two groups
face. We are not faced with the same situation that we
previously addressed in Post, where Chapter 980 did not allow
for a jury determination at the discharge stage, or in Stovall
31
No. 2012AP958
where Chapter 975 failed to provide the option of a jury
determination at either the initial commitment hearing or at
recommitment hearings. Here, both Chapter 51 and Chapter 980
provide individuals with the option of a jury at their initial
commitment hearings. We continue to recognize the importance of
allowing jury determinations in involuntary commitment cases and
note that § 51.20(11) provides the same jury provisions that are
typical in other civil proceedings.
¶60 In sum, we find that although the governmental
purposes of § 51.20 and Chapter 980 as well as the individuals
subject to these civil involuntary commitment statutes share
some overlapping goals and characteristics, Mary F.-R. has
failed to prove the unconstitutionality of Wis. Stat.
§ 51.20(11) beyond a reasonable doubt. The differences in the
jury provisions available to those committed under Wis. Stat.
§ 51.20(11) and Chapter 980 are rationally related to the
difference in treatment needs and level of dangerousness
presented by each group, as well as stricter rules concerning
confinement in Chapter 980 commitments. The legislature has
addressed these differences by imposing greater liberty
restrictions on individuals subject to Chapter 980 commitments.
The added protection of a 12-person unanimous jury is rationally
related to such increased liberty restrictions imposed on
Chapter 980 committees when compared to the lesser liberty
deprivation experienced by individuals committed under Chapter
51.
IV. Conclusion
32
No. 2012AP958
¶61 To reach Mary F.-R.'s equal protection challenge, we
assume, without deciding, that she did not forfeit her right to
challenge Wis. Stat. § 51.20(11). We hold that the differences
in the jury provisions for initial commitment hearings under
§ 51.20(11) and Chapter 980 do not violate Mary F.-R.'s
constitutional right to equal protection under the Fourteenth
Amendment or under Article I, Section 1 of the Wisconsin
Constitution. The legislature chose to allow for differing jury
protections for initial commitments under § 51.20 and Chapter
980 and these choices, reflected in the legislative enactments
in question, are presumed constitutional.25 Mary F.-R. has not
overcome this presumption and has not demonstrated the
unconstitutionality of § 51.20 beyond a reasonable doubt.
Furthermore, considering that Mary F.-R's specific challenge
relates to jury provisions, we find that rational basis review
is appropriate. We hold that the different purposes of the
provisions in question, the varied legislative schemes, and the
range of liberty restrictions imposed on individuals subject to
commitment under Wis. Stat. § 51.20, when compared to Chapter
980, provide a rational basis for the legislative decision to
provide a unanimous 12-person jury for initial Chapter 980
commitments and a six-person jury with a 5/6 verdict for initial
commitments under § 51.20(11). Accordingly, we affirm the court
of appeals.
25
State v. McGuire, 328 Wis. 2d 289, ¶25.
33
No. 2012AP958
By the Court.—The decision of the court of appeals is
affirmed.
34
No. 2012AP958.ssa
¶62 SHIRLEY S. ABRAHAMSON, C.J. (concurring). I join
the majority opinion.1 I write briefly regarding the impact of
1
The court has declared that deprivations of liberty in
Chapter 51 and Chapter 980 proceedings require at least some
jury protection on equal protection grounds. State v. Post, 197
Wis. 2d 279, 541 N.W.2d 115 (1995).
Although I agree that case law supports a holding that a
six-person non-unanimous jury did not violate Mary F.-R.'s equal
protection rights, I am troubled by the due process implications
of the case and whether unanimity and the size of the jury are
essential attributes of the right to jury trial. These issues
were not briefed.
The United States Supreme Court has noted that "civil
commitment for any purpose constitutes a significant deprivation
of liberty that requires due process protection." Addington v.
Texas, 441 U.S. 418, 425 (1979). The Court has held that a non-
unanimous six-person jury violates the Sixth Amendment right to
trial by a jury in criminal cases. See Burch v. Louisiana, 441
U.S. 130, 99 S. Ct. 1623 (1979); Ballew v. Georgia, 435
U.S. 223, 98 S. Ct. 1029 (1978) (holding that a unanimous five-
person jury was an unconstitutional deprivation of a jury trial
in a criminal case).
Similarly, our court has held that in criminal trials, the
Wisconsin Constitution requires a 12-person jury. State v.
Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998).
Although both Chapter 51 and Chapter 980 commitment
hearings are civil proceedings, not criminal proceedings, at
common law a civil trial afforded parties a 12-person jury. See
Hansford, 219 Wis. 2d at 238 ("[R]ight to a trial by jury
guaranteed by the Wisconsin Constitution is the right to a jury
of 12 persons as recognized by the common law as it existed at
the time the constitution was adopted . . . .") (citing Norval
v. Rice, 2 Wis. 17, 20-23 (1853)); see generally Richard S.
Arnold, Trial by Jury: The Constitutional Right to a Jury of
Twelve in Civil Trials, 22 Hofstra L. Rev. 1 (1993) (describing
the voluminous historical evidence that the common law in
England and the United States viewed a jury as being composed of
twelve).
1
No. 2012AP958.ssa
State v. Bush, 2005 WI 103, 283 Wis. 2d 90, 699 N.W.2d 80, on
waiver, forfeiture, and subject matter jurisdiction.
¶63 The court held in Bush that "a facial challenge is a
matter of subject matter jurisdiction and cannot be waived."
283 Wis. 2d 90, ¶17 (emphasis added).
¶64 After Bush, we clarified the difference between the
concepts of "forfeiture" and "waiver." These concepts had
become confused in our jurisprudence. In State v. Ndina, 2009
WI 21, 315 Wis. 2d 653, 761 N.W.2d 612, we distinguished between
rights that receive a "forfeiture" standard and rights that
receive a "waiver" standard:
[S]ome rights are forfeited when they are not claimed
at trial; a mere failure to object constitutes a
forfeiture of the right on appellate review. . . . In
contrast, some rights are not lost by a counsel's or a
litigant's mere failure to register an objection at
trial. These rights are so important to a fair trial
that courts have stated that the right is not lost
unless the defendant knowingly relinquishes the right.
Id., ¶¶30-31.
¶65 Because Bush predated Ndina, we are left to ask (1)
whether Bush referred to a facial challenge to the
constitutionality of a statute as a right subject to a waiver
standard or a forfeiture standard; and (2) whether Mary F.-R.'s
I am concerned that a non-unanimous six-person jury in
civil commitments constituting a significant deprivation of
liberty may be a violation of due process and a violation of a
right to jury trial. Lines must be drawn somewhere on the size
of the jury and the number of jurors required to agree on a
verdict in a case of significant deprivation of liberty, if the
substance of the jury trial right is to be preserved.
2
No. 2012AP958.ssa
facial equal protection challenge to the jury statute is subject
to a waiver standard or a forfeiture standard. The court leaves
both questions unanswered in the instant case.2
¶66 It is also unclear whether Mary F.-R.'s facial
challenge to a six-person non-unanimous jury attacked the
circuit court's subject matter jurisdiction or its competence or
neither. Bush plainly asserts that "a facial challenge is a
matter of subject matter jurisdiction and cannot be waived."
But as this court noted in Bush, "the jurisprudence concerning
subject matter jurisdiction and a circuit court's competence to
exercise its subject matter jurisdiction is murky at best."3
This question about facial challenges, subject matter
jurisdiction, and competence is also left for another day.
¶67 Is the size and the unanimity of the jury a procedural
matter or a substantive one? This court has declared that trial
by jury is a substantive right, stating that "[t]he legislature
may modify old procedures, or create new ones, if the
substantive right to jury trial is preserved."4 The United
States Supreme Court and this court have linked the number of
jurors and jury unanimity directly to the substantive right of
2
Although Mary F.-R. did not make a contemporaneous
objection when a six-person jury was selected, she had
previously asked several times for a 12-person jury. It is
therefore arguable that she neither waived nor forfeited her
objection to a six-person jury.
3
Bush, 283 Wis. 2d 90, ¶16.
4
State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 523,
261 N.W.2d 434 (1978).
3
No. 2012AP958.ssa
trial by jury, rather than viewing them as mere procedural
features.5
¶68 For the stated reasons, I concur.
5
See Burch v. Louisiana, 441 U.S. 130, 99 S. Ct. 1623
(1979); Ballew v. Georgia, 435 U.S. 223, 98 S. Ct. 1029 (1978);
State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171 (1998).
4
No. 2012AP958.akz
¶69 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join
the majority opinion and I agree with the majority that the
court of appeals should be affirmed. I write separately
because, unlike the majority, I would address, as did the court
of appeals, whether Mary F.-R. forfeited her constitutional
challenge by failing to raise a timely objection in the circuit
court. I conclude that Mary F.-R. did indeed forfeit her
challenge by not raising it or preserving it at the circuit
court.
¶70 Mary F.-R. argues that her facial challenge to the
constitutionality of Wis. Stat. § 51.20(11) cannot be forfeited.
The majority declines to address this issue by "assuming,
without deciding" that the challenge was not forfeited. See
majority op. ¶34. The majority then proceeds to address the
merits of Mary F.-R.'s constitutional arguments.
¶71 "A statute enjoys a presumption of constitutionality."
State v. Smith, 2010 WI 16, ¶8, 323 Wis. 2d 377, 780 N.W.2d 90;
State v. Janssen, 219 Wis. 2d 362, 370, 580 N.W.2d 260 (1998).
"To overcome that presumption, a party challenging a statute's
constitutionality bears a heavy burden." Smith, 323
Wis. 2d 377, ¶8; State v. Cole, 2003 WI 112, ¶11, 264
Wis. 2d 520, 665 N.W.2d 328. The burden of proof is the highest
in the law, as the challenging party must "'prove that the
statute is unconstitutional beyond a reasonable doubt.'" Smith,
323 Wis. 2d 377, ¶8 (quoting Cole, 264 Wis. 2d 520, ¶11). "This
court has repeatedly held that it 'indulges every presumption to
sustain the law if at all possible, and if any doubt exists
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about a statute's constitutionality, we must resolve that doubt
in favor of constitutionality.'" Cole, 264 Wis. 2d 520, ¶11
(internal citation omitted). I join the majority opinion which
discusses Mary F.-R.'s failure to meet this heavy burden.
¶72 "Normally this court will not address a constitutional
issue if the case can be disposed of on other grounds." State
v. Hale, 2005 WI 7, ¶42, 277 Wis. 2d 593, 691 N.W.2d 637 (citing
Labor & Farm Party v. Elections Bd., 117 Wis. 2d 351, 354, 344
N.W.2d 177 (1984); see also Kollasch v. Adamany, 104
Wis. 2d 552, 561, 313 N.W.2d 47 (1981). We at least in part
granted the petition for review on the question of whether a
facial challenge to the constitutionality of a statute can be
forfeited. The issue was briefed and argued. I conclude that
we should address the question.
¶73 Mary F.-R. attended the entire trial and was
represented by able counsel. While she initially made a 12-
person jury demand, Wis. Stat. § 51.20(11) calls for a civil 6-
person jury. The circuit court impaneled a 6-person jury
pursuant to the statute. No objection was made at the circuit
court to that 6-person jury. The jury did not decide the matter
in Mary F.-R.'s favor. She would now like to have a new trial
with a 12-person jury.
¶74 Generally, the party who wishes to raise an issue on
appeal needs to first raise the issue before the circuit court.
State v. Dowdy, 2012 WI 12, ¶5, 338 Wis. 2d 565, 808 N.W.2d 691
("As a general rule, issues not raised in the circuit court will
not be considered for the first time on appeal."). "It is a
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fundamental principle of appellate review that issues must be
preserved at the circuit court. Issues that are not preserved
at the circuit court, even alleged constitutional errors,
generally will not be considered on appeal." State v. Huebner,
2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727 (holding that a
defendant forfeited his right to challenge the six-person jury
in his misdemeanor trial by failing to object at the circuit
court level); State v. Caban, 210 Wis. 2d 597, 604, 563
N.W.2d 501 (1997)(holding that a defendant had forfeited his
right to challenge the admissibility of evidence against him by
failing to object at the circuit court level). "Raising issues
at the trial court level allows the trial court to correct or
avoid the alleged error in the first place, eliminating the need
for appeal. It also gives both parties and the trial judge
notice of the issue and a fair opportunity to address the
objection." Huebner, 235 Wis. 2d 486, ¶12; Caban, 210 Wis. 2d at
609. Here, Mary F.-R. failed to raise her objection with the
circuit court, and so the forfeiture rule1 would dispose of the
case without subjecting Wis. Stat. § 51.20(11) to constitutional
scrutiny.
¶75 Mary F.-R. argues that State v. Bush stands for the
proposition that she did not forfeit her challenge. 2005 WI 103,
283 Wis. 2d 90, 699 N.W.2d 80. In Bush this court held that the
1
As the majority points out, State v. Bush, 2005 WI 103,
283 Wis. 2d 90, 699 N.W.2d 80, predates this court's
clarification of the usage of forfeiture and waiver. See
majority op., ¶31 n.21; State v. Ndina, 2009 WI 21, ¶29, 315
Wis. 2d 653, 761 N.W.2d 612. The usage in Bush is properly
expressed using the term "forfeiture."
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challenge to the constitutionality of the statute could not be
forfeited because at its heart it effects the subject matter
jurisdiction of the court to hear the case in the first
instance:
[W]hile an 'as applied' challenge to the
constitutionality of a statute may be waived, a facial
challenge is a matter of subject matter jurisdiction
and cannot be waived. The logic behind this
conclusion is entirely consistent with Article VII,
Section 8 of the Wisconsin Constitution. Article VII,
Section 8 states that '[e]xcept as otherwise provided
by law,' circuit courts have original jurisdiction 'in
all matters civil and criminal.' If a statute is
unconstitutional on its face, any action premised upon
that statute fails to present any civil or criminal
matter in the first instance.
283 Wis. 2d 90, ¶17 (internal citations omitted).
¶76 Mary F.-R. takes this language from Bush to mean that
it is impossible to forfeit a facial challenge to a statute.
However, Bush does not stand for the proposition that every
facial challenge to any one procedural statute necessarily
impacts the subject matter jurisdiction of the court. In fact,
Bush challenged the constitutionality of the entirety of Chapter
980, not just a procedural provision of that chapter.
Specifically, Bush argued that the State lacked the authority to
commit him in the first instance under Chapter 980 as a
"sexually violent person." By contrast, Mary F.-R.'s challenge
is not that she cannot be committed under Chapter 51. Rather,
she argues that she was entitled to a jury of 12 instead of a
jury of six and that she had no duty to object at the circuit
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court level.2 Her challenge, however, is to a procedural
provision of Chapter 51, not to substantive statutes controlling
commitment under Chapter 51 as a whole.
¶77 I write separately because Mary F.-R. has forfeited
the right to challenge her six-person jury. Unlike Bush, even
if Mary F.-R. were to prevail and the jury provision were held
to be unconstitutional, Milwaukee County would not be barred
from pursuing her commitment. Instead, the county would be
required to retry her commitment, contrary to statute, with a
then 12-person jury. Fundamentally, Mary F.-R. never objected
to the six-person jury until appeal. I conclude that Mary F.-
R.'s failure to object to a six-person jury at the circuit court
level was a forfeiture of her right to challenge the
constitutionality of Wis. Stat. § 51.20(11).
¶78 For the foregoing reasons I concur.
¶79 I am authorized to state that Justices PATIENCE DRAKE
ROGGENSACK and MICHAEL J. GABLEMAN join this concurrence.
2
It is noteworthy that, in each of the cases cited by Mary
F.-R., the constitutional challenges were first raised in the
circuit court. See, e.g., Bush, 283 Wis. 2d 90, ¶11; State v.
Trochinski, 2002 WI 56, ¶7, 253 Wis. 2d 38, 644 N.W.2d 891;
State v. Cole, 2003 WI 112, ¶2, 264 Wis. 2d 520, 665 N.W.2d 328;
State v. Molitor, 210 Wis. 2d 415, 418, 565 N.W.2d 248 (Ct. App.
1997); State ex rel. Skinkis v. Treffert, 90 Wis. 2d 528, 530,
280 N.W.2d 316 (Ct. App. 1979).
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