State Ex Rel. Kovach v. Schubert

219 N.W.2d 341, 64 Wis. 2d 612, 1974 Wisc. LEXIS 1377

• Court: Wisconsin Supreme Court
• Decided: July 3, 1974
• Docket: State 238
• Status: Published

Opinions

Wilkie, J.

The issue presented is: Does sec. 971.17 (1) and (2), Stats., deny to the petitioner due process of law and the equal protection of the law in violation of the fourteenth amendment to the United States Constitution ?

The petitioner challenges the provisions of sec. 971.17, Stats., which provide for automatic commitment upon a finding of not guilty by reason of mental disease or defect without an adjudication of insanity at the time of commitment and the provisions for release which place upon the petitioner the burden of proving that he is now sane and that he may safely be discharged or released without harm to himself or others.

Equal protection as to commitment procedures.

Commitment proceedings are civil and benevolent and thereby independent, to a certain extent, of the constitutional safeguards applied to deprivations of liberty involved in criminal proceedings. However, the trend in recent years has been toward a more rigorous protection of individual rights.

In 1966, in Baxstrom v. Herold³ the United States Supreme Court held that a prisoner completing his sentence could not be committed without affording him all the procedural protections provided to other citizens involuntarily - civilly committed. The court found that there “is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments” and that, therefore, the statutory scheme under scrutiny in that case denied to the petitioner the equal protection of the law.

The next year, in Specht v. Patterson,⁴ the supreme court held that a prisoner committed under the Colorado Sex Offenders Act was entitled by the due process clause to a hearing- where he would he present with counsel, have an opportunity to be heard, to be confronted with witnesses against him, to have the right of cross-examination and to offer evidence in his own behalf, and to have findings made which would be adequate for review. Wisconsin had already required such a hearing under its-sex deviate statutes.⁵

In Bolton v. Harris,⁶ the Court of Appeals for the District of Columbia applying the principles of Baxstrom declared that persons found not guilty by reason of insanity must be given a judicial hearing with procedures substantially similar to those in civil commitment proceedings. That court felt the Baxstrom Case indicated that the commission of criminal acts does not give rise to a presumption of dangerousness which, standing alone, justifies substantial differences in commitment procedures and confinement conditions of the mentally ill.

In State ex rel. Schopf v. Schubert7 the Wisconsin court was faced with a challenge to its statute providing for automatic commitment of persons found not guilty by reason of insanity. With a divided court, this court found that such a scheme did not deny equal protection of the law to such persons. The court confined the Baxstrom Case to its facts and found it distinguishable from the provision of different procedures for civil versus criminal commitments. The court further held that the expansive interpretation of the holding of Baxstrom found in Bolton v. Harris was based on erroneous reasoning.

In Jackson v. Indiana,8 the United States Supreme Court (in 1972) was faced with another challenge to a state commitment procedure. This time the validity of procedures for the commitment of persons found incompetent to stand trial were under scrutiny. The supreme court found that due process requires that the nature and duration of commitment hear some reasonable relation to the purpose of the commitment. Therefore, the court mandated that persons charged with criminal offenses who are committed solely on account of their incapacity to stand trial cannot be held more than the reasonable time necessary to determine whether there is a substantial probability of their attaining that capacity in the foreseeable future. If there is no such probability such persons must be released or proceedings for civil commitment commenced. This mandate has been carried out by this court.⁹

However, another aspect of the Jackson Case has not received similar attention. The supreme court also found that the petitioner had been denied the equal protection of the law by being subjected to more lenient commitment standards. The petitioner did receive a hearing at which he was represented by counsel. However, the supreme court found that the procedure under which he was committed was substantially different from that afforded to persons committed as insane or feebleminded. The court stated:

“. . . Baxstrom held that the State cannot withhold from a few the procedural protections or the substantive requirements for commitment that are available to all others.” ¹⁰

The court also said:

“. . . The Baxstrom principle also has been extended to commitment following an insanity acquittal, Bolton v. Harris, 130 U. S. App. D. C. 1, 395 F. 2d 642 (1968); Cameron v. Mullen, 128 U. S. App. D. C. 235, 387 F. 2d 193 (1967); People v. Lally, 19 N. Y. 2d 27, 224 N. E. 2d 87 (1966), and to commitment in lieu of sentence following conviction as a sex offender. Humphrey v. Cady, 405 U. S. 504 (1972).” ¹¹

In its brief here the state discounts this apparent approval of these cases. We believe that the significance of this approval cannot be ignored. The court was obviously doing more than merely citing these cases for informational purposes. If that was their only significance they could have been placed in a footnote. The conclusion that the United States Supreme Court is approving of the application of the Baxstrom “principle” in these cases cannot be avoided.

Under the Indiana statutes (in Jackson v. Indiana) the state needed only to show that the petitioner was unable to stand trial and the supreme court was unable to say that, on the record before them, Indiana could have civilly committed the petitioner as either insane or feebleminded under the standards applied to those groups. The United States Supreme Court found that subjecting the petitioner to a more lenient commitment standard than those generally applicable to all others not charged with offenses, and by thus condemning him in effect to permanent institutionalization without the showing necessary for commitment afforded by the civil statutes of Indiana denied to the petitioner the equal protection of the laws under the fourteenth amendment.

In Humphrey v. Cady,¹² involving Wisconsin litigants, the United States Supreme Court discussed, although did not actually decide, constitutional issues involving the differing procedures afforded persons civilly committed and those committed as “sex deviates” under the statutes of Wisconsin. The petitioner in that case asserted that the original and renewal provisions of the Wisconsin Sex Crimes Act were unconstitutional because such commitments were essentially equivalent to Wisconsin’s Mental Health Act which provides for jury determination and his commitment without a jury trial thus deprived him of equal protection.

The United States Supreme Court found that Wisconsin for almost a hundred years has relied on a jury to decide whether to civilly commit a person for compulsory psychiatric treatment:

“. . . Wisconsin conditions such confinement not solely on the medical judgment that the defendant is mentally ill and treatable, but also on the social and legal judgment that his potential for doing harm, to himself or to others, is great enough to justify such a massive curtailment of liberty.” ¹³

The supreme court felt that compulsory treatment under the Sex Crimes Act appeared to require the same kind of determination and raised the question of whether that being so any justification existed for depriving persons committed under the Sex Crimes Act of the jury determination afforded to persons committed under the Wisconsin Mental Health Act. The court indicated that if commitment under the Sex Crimes Act were not merely an alternative to sentencing there would probably exist no arguable justification for such difference in procedure.

Prior to the Humphrey Case the Wisconsin Supreme Court had rejected constitutional challenges to the Sex Crimes Act. In Buchanan v. State ¹⁴ this court rejected a claim that equal protection required a jury trial under the Sex Crimes Act, as was provided under the Mental Health Act. This court found:

“There are several germane distinctions to the classification, as seen above — the most important is that a sexual deviate is confined because he is dangerous to the public, and the mentally ill, infirm or deficient person is confined primarily for his own benefit and treatment.” ,¹⁵

However, in State ex rel. Farrell v. Stovall¹⁶ the Supreme Court of the United States remanded two matters involving constitutional challenges to the Sex Crimes Act to the Wisconsin court for reconsideration in light of the supreme court decisions in Humphrey v. Cady and Jackson v. Indiana. On remand this court determined that in fact no rational basis existed justifying the difference in the rights afforded to persons committed under the Sex Crimes Act and to those committed under the Mental Health Act. This court found:

“. . . While the Buchanan decision recognized the Acts were distinguishable in terms of their primary emphasis —the confining of the sex deviate chiefly due to the potential danger to the community, and the confining of the mentally ill person chiefly for his own benefit and treatment, the pervading theme of both Acts is undeniably treatment of the individual and protection of the community.

“. . . The only meaningful difference between the two Acts, apart from the slightly different emphasis noted in Buchanan, is the sex crimes statute’s inapplicability except where one’s mental illness or ‘aberration’ has already led him to the commission of a sex crime and conviction therefor.” ¹⁷

This court finding the scope and purpose of the statutes virtually identical had to decide whether any rational basis existed for distinctions in the procedure required for commitments under either. The court found that:

“. . . Such justification, as pointed out by the United States Supreme Court in Baxstrom v. Herold and Humphrey v. Cady, requires more than an individual’s prior criminal record:

“ . The court [in Baxstrom] recognized that the prisoner’s criminal record might be a relevant factor in evaluating his mental condition, and in determining the type of care and treatment appropriate for his condition; it could not, however, justify depriving him of a jury determination on the basic question whether he was mentally ill and an appropriate subject for some kind of compulsory treatment.’ ” ¹⁸

This court found that commitments under the Sex Crimes Act were not merely sentencing alternatives but independent of the convictions from which they arose and therefore the only meaningful difference between the two acts was a slightly greater emphasis on public safety under the Sex Crimes Act. This emphasis, however, was not sufficient to justify the differences in procedure under the two acts.

Because of the cases subsequent to our decision in State ex rel. Schopf v. Schubert, we now find that the automatic commitment of persons found not guilty by reason of insanity is a denial to such persons of the equal protection of the laws.

Following a finding of not guilty by reason of mental disease or mental defect, there should now be another question submitted to the jury on whether the defendant is presently suffering from mental illness ¹⁹ and is in need of institutionalized treatment. These are the determinations that must be made in connection with a commitment under ch. 51, Stats. To answer such a question, the jury would have to be provided with proof based on examination of the defendant in his then condition. If the answer to this further question is “Yes,” then the court shall commit the defendant in accordance with sec. 971.17 (1).

Due process in proceedings for commitment.

We also conclude that the procedure under sec. 971.17, Stats., for the automatic commitment of a defendant upon a finding of not guilty by reason of mental disease or mental defect constitutes a denial of due process in its denial of a hearing and finding of present insanity at the time of the commitment.

Jackson v. Indiana does not justify an automatic commitment without a hearing. That case merely holds that the duration of commitment must bear a reasonable relation to the purpose of the commitment. It does not stand for the proposition that commitment can be without a hearing. The petitioner in Jackson did have an adjudication of incompetency before being committed.

To satisfy due process, the finding of present mental illness should be made after a full hearing on a defendant’s present condition.

Challenge to re-examination procedures.

Whereas the provisions of sec. 971.17 (2), Stats., spelling out the procedure for a re-examination of a defendant’s mental condition, provide for a general procedure following sec. 51.11, neither sec. 971.17 nor ch. 51 designates who has the burden of proof at a re-examination hearing under ch. 51. Normally, the petitioner carries the burden of persuasion in any judicial proceeding, so that the burden would be on the defendant to persuade the reviewing court that he could be released.²⁰

There is no denial of equal protection or of due process in placing the burden of showing that a defendant can be released with safety on that defendant, since the burden under sec. 971.17 (2), and under sec. 51.11 is the same. It does not shock the conscience to place this burden on this defendant since ch. 51 provides that the court must appoint two psychiatrists to examine the patient who applies for re-examination and thus the patient is not completely without assistance.

Prospective ruling.

Because the present petitioner has been committed to the Central State Hospital and has unsuccessfully sought release in several re-examinations, and the same opportunity for re-examination has been available to every criminal defendant committed automatically under sec. 971.17 (1), Stats., following a finding that he was not guilty by reason of mental disease or defect at the time of the alleged offense, we completely prospect this ruling and do not apply it to the petitioner's case. In other words, this ruling governs prosecutions not yet instituted or completed.

Because of our ruling herein, the recommended instruction on the effect of a verdict of “not guilty by reason of mental (disease) (defect) (disease or defect) ” ²¹ must be modified to reflect the fact that on such a finding the jury will be asked as to whether the defendant is presently mentally ill and whether he is a proper subject for custody and treatment.²²

By the Court. — The provisions of sec. 971.17 (1), Stats., providing for automatic commitment without a hearing to determine present mental state and need for commitment, violate the equal protection and due process clause of the United States Constitution; determination of present mental illness shall be made in all prosecutions either pending or not instituted; other relief denied to this petitioner.

3 (1966), 383 U.S. 107, 112, 86 Sup. Ct. 760, 16 L. Ed. 2d 620.

4 (1967), 386 U. S. 605, 87 Sup. Ct. 1209, 18 L. Ed. 2d 326.

5 Huebner v. State (1967), 33 Wis. 2d 505, 147 N. W. 2d 646.

6 (D. C. Cir. 1968), 395 Fed. 2d 642.

7 (1970), 45 Wis. 2d 644, 173 N. W. 2d 673.

8 (1972), 406 U. S. 715, 92 Sup. Ct. 1845, 32 L. Ed. 2d 435.

9 State ex rel. Matalik v. Schubert (1973), 67 Wis. 2d 315, 204 N. W. 2d 13; State ex rel. Haskins v. Dodge County Court (1974), 62 Wis. 2d 250, 214 N. W. 2d 575.

10 Jackson v. Indiana, supra, footnote 8, at page 727.

11 Id. at pages 724, 725.

12 (1972), 405 U. S. 504, 92 Sup. Ct. 1048, 31 L. Ed. 2d 394.

13 Id. at page 609.

14 (1969), 41 Wis. 2d 460, 164 N. W. 2d 263.

15 Id. at page 472.

16 (1973), 59 Wis. 2d 148, 207 N. W. 2d 809.

17 Id. at page 162.

18 Id. at page 164.

19 Sec. 51.75, Art. II (f), Stats.

20 See 56 Nw. U. L. Rev. (1961), 409, 452, note 144 and cases in note 135; Loeb v. Board of Regents (1965), 29 Wis. 2d 159, 164, 138 N. W. 2d 227.

21 Wis J I — Criminal, Part I, 655-CPC. See State v. Shoffner (1966), 31 Wis. 2d 412, 428, 429, 143 N. W. 2d 458; Lyles v. United States (D. C. Cir. 1957), 254 Fed. 2d 725; McDonald v. United States (D. C. Cir. 1962), 312 Fed. 2d 847.

22 Secs. 51.02 (5) (e) and 971.17 (2), Stats.