¶ 11. (dissenting). Although I believe the majority opinion is reasonable in many respects, I am unable to determine whether, under State v. Post, 197 Wis.2d 279, 541 N.W.2d 115 (1995), it is correct.
¶ 12. In Post, the supreme court, concluding that the predecessor statute to the one challenged in this appeal was constitutional, explained:
The purposes of commitment under chapter 980 have already been identified as the protection of the community and the treatment of persons suffering from disorders that predispose them to commit sexually violent acts. The nature of the commitment (to the custody of DHSS with potential confinement in a secure mental health facility) is consistent with both purposes.
The language of the statute provides the best evidence of this reasonable relationship. Individuals found to be sexually violent persons are committed to the custody of DHSS "for control, care and treatment" in *625"the least restrictive manner consistent with the requirements of the person and in accordance with the court's commitment order."
Id. at 313 (emphases added; citations omitted).
¶ 13. Thus, the supreme court connected its approval of the predecessor statute to three conditions absent from the revised statute:
(1) Commitment to the custody of DHSS would not result in automatic confinement. Rather, the statute was constitutional in part because it allowed only for "potential" confinement among other options. See id.
(2) Confinement would not automatically be deemed the appropriate initial placement. Rather, the statute was constitutional in part because initial confinement would only come about if it was " 'the least restrictive'" option satisfying the statutory purposes.1 See id.
(3) Confinement could not come about automatically by legislative or administrative mandate. Rather, the statute was constitutional in part because any confinement had to be ordered by the court. See id.
¶ 14. The current statute, failing to provide these three safeguards to protect individuals from inappropriate confinement, may not satisfy the constitutional standards the supreme court considered so essential in Post. Therefore, I would have certified this appeal to the supreme court and, accordingly, I respectfully dissent.
And indeed, confinement was not automatic. In its brief to this court, the State advises that during the six-year period of the operation of the predecessor statute, courts ordered "initial placements in the community" for approximately fourteen individuals.