State ex rel. Schopf v. Schubert

• Decision Date: 06 February 1970
• Docket Number: No. S,S
• Citation: 45 Wis.2d 644,173 N.W.2d 673
• Parties: , 50 A.L.R.3d 134 STATE ex rel. Eugene SCHOPF, Petitioner, v. Dr. Edward F. SCHUBERT, Supt., Central State Hospital, Respondent. tate 113.
• Court: Wisconsin Supreme Court

Page 673

173 N.W.2d 673

45 Wis.2d 644, 50 A.L.R.3d 134

STATE ex rel. Eugene SCHOPF, Petitioner, v. Dr. Edward F. SCHUBERT, Supt., Central State Hospital, Respondent.

No. State 113.

Supreme Court of Wisconsin.

Feb. 6, 1970.

On April 21, 1966, Eugene Schopf (hereinafter referred to as petitioner) was charged with the murder of one Mary Holzem on April 18, 1966, in Marathon county, Wisconsin.

After a trial to the circuit court for Marathon county, petitioner on July 14, 1966, was found not guilty by reason of insanity and was thereupon committed to central state hospital at Waupun. The insanity defense was interposed by petitioner's election, under Wisconsin's version of the American Law Institute test as provided for the State v. Shoffner. ¹

Sec. 957.11(3), Stats., provides:

'(3) If found not guilty because insane or not guilty because feeble-minded, the defendant shall be committed to the central state hospital or to an institution designated by the state department of public welfare, there to be detained until discharged in accordance with law.'

Accordingly, pursuant to that section, the trial court then ordered:

'The said Eugene Schopf having been found, determined, and adjudged not guilty because insane at the time of the commission of the offense charged; and,

'The Court having determined that the said Eugene Schopf has a legal settlement in Marathon County, Wisconsin;

'It is Ordered, That the said Eugene Schopf be and he hereby is committed to the Central State Hospital at Waupun, Wisconsin, there to be detained until discharged in accordance with law; * * *.' (Emphasis added.)

Petitioner sought counsel to pursue his post conviction remedies and after counsel was appointed by this court (Schopf having been determined to be an indigent), a writ of error was issued. On recommendation of counsel the writ of error was subsequently dismissed, counsel was relieved, and the matter referred to the state public defender. Petitioner then petitioned (as amended) this court for habeas corpus on the grounds (1) that sec. 957.11(3), Stats., is unconstitutional and that the committing order of the trial court is violative of petitioner's constitutional rights, both federal and state, and (2) that petitioner 'has not been given the treatment to which he is entitled.' Petitioner concludes that petitioner's 'imprisonment' is therefor illegal. The respondent answered denying all these contentions.

Briefs were submitted and oral arguments were heard on the first ground only as alleged in Schopf's amended petition.

James H. McDermott, State Public Defender, Madison, for petitioner.

Robert W. Warren, Atty. Gen., William A. Platz and Sverre O. Tinglum, Asst. Attys. Gen., Madison, for respondent.

WILKIE, Justice.

Petitioner maintains that the circuit court for Marathon county in committing petitioner to central state hospital under sec. 957.11(3), Stats., did so without making a finding of insanity at the time of commitment as distinguished from the time of the offense and without first according him a judicial hearing.

Petitioner contends that sec. 957.11(3), Stats., is unconstitutional on two grounds: (1) It is a denial of equal protection of the laws, and (2) it is a denial of due process.

Thus the first issue presented is whether it is a denial of equal protection to automatically commit a person situated as defendant to central state hospital after a finding of not guilty by reason of insanity at the time of the offense.

The petitioner here was acquitted under the ALI test of insanity as set forth in State v. Shoffner. ² Under that test, in order for the defendant to be successful in a not-guilty-by-reason-of-insanity plea, he assumes the burden of proving his mental incapacity at the time of committing the offense with which he is charged. This is a heavier burden than is faced under the M'Naghten test as provided in Esser, ³ wherein defendant merely had to be successful in raising a reasonable doubt as to his sanity--and the burden was on the state to overcome that doubt.

The contention here is that commitment of someone situated as petitioner, and the civil commitment of someone mentally ill under ch. 51, Stats., are so dissimilar as to be a denial of equal protection of the law. It is true that civil commitment procedures are materially different from the automatic commitment under sec. 957.11(3). Under a ch. 51 commitment proceeding a written application for a mental examination is made to the county court of the county where the patient is. This written application must be made by at least three adult residents of the state. ⁴ Two licensed physicians are appointed to examine the patient and make a written report concerning his mental condition. A hearing is held wherein the patient has a right to be heard and to protest and oppose the proceedings, and cross-examine the doctors. ⁵ Also, a jury may be demanded by the patient and then a jury of six is drawn to determine his mental condition. ⁶ Presumably there is a right to appeal from this county court determination. ⁷ Moreover, the patient who is committed under these proceedings can thereafter petition for a reexamination. ⁸ Since 1967, every person committed involuntarily under ch. 51 must be re-evaluated by the medical staff or a visiting physician within thirty days after his commitment and again within six months after the initial re-evaluation and thereafter every twelve months. ⁹

There are few, if any, of these safeguards provided to someone who is committed in a criminal case after an acquittal by reason of insanity.

The petitioner relies on several recent cases for authority for his argument that the manner by which he was committed denied him equal protection of the laws since the procedure used was different from the procedure used to civilly commit a person pursuant to ch. 51.

In Baxstrom v. Herold, ¹⁰ the United States Supreme Court decided that Baxstrom, a prisoner who had been placed in a mental hospital while serving a prison term, was denied equal protection of the laws by the operation of a New York statutory procedure whereby he was (1) civilly committed to a mental institution at the expiration of his sentence without the jury review available to all others civilly committed, and (2) administratively transferred, from a civil mental hospital to a functionally distinct institution for the dangerously insane without the judicial determination that he was dangerously mentally ill such as that afforded to all others so committed, except those about to terminate a prison sentence. The vice of this procedure was that it made an arbitrary classification with respect to persons entitled to a judicial hearing.

A reading of Baxstrom makes it clear that what was objectionable there was that he was civilly committed by a procedure radically different from the procedure used to civilly commit others. The only reason for this was that he was a prisoner about to complete his sentence.

The denial of equal protection arose as a result of providing two different methods of civil commitment and with no reasonable basis for it.

In the instant case, the difference in procedure is not between persons civilly committed but rather the difference arises between civil commitment and criminal commitment after a verdict of not guilty by reason of insanity. Thus, on this basis, Baxstrom can be distinguished from the instant situation.

In Bolton v. Harris, ¹¹ the circuit court of appeals for the District of Columbia was presented with the problem of different procedures used to commit persons civilly versus the automatic commitment of a person acquitted by reason of insanity.

In Bolton, the petitioner, who had successfully pleaded not guilty to a crime by reason of insanity was automatically committed under the provision of the District of Columbia Code, which provided in part:

'If any person tried * * * for an offense * * * is acquitted solely on the ground that he was insane at the time of its commission, the court shall order such person to be confined in a hospital for the mentally ill.' ¹²

The petitioner, on appeal from a denial of habeas corpus, argued that he was denied equal protection of the laws because he was committed to a mental institution without benefit of the protections afforded those civilly committed under the District of Columbia's 1964 Hospitalization of the Mentally Ill Act. The court reasoned that since Baxstrom decided that an individual's past criminal conduct, standing alone, did not give rise to a presumption of dangerousness which would justify substantially different commitment procedures and confinement conditions for the mentally ill, it was likewise impermissible to provide 'radically different' procedures for patients acquitted by reason of insanity and for civilly committed patients.

The court said:

'Baxstrom, People v. Lally ((1966), 19 N.Y.2d 27, 277 N.Y.S.2d 654, 224 N.E.2d 87), and Cameron v. Mullen ((1967), 128 U.S.App.D.C. 235, 387 F.2d 193) render (the automatic commitment section) constitutionally suspect because the subsection provides radically different procedures for patients acquitted by reason of insanity and for civilly committed patients. ¹³

'* * *

'* * * It is true that persons acquitted by reason of insanity have committed criminal acts and that this fact may tend to show they meet the requirements for commitment, namely, illness and dangerousness. But it does not remove these requirements. Nor does it justify total abandonment of the procedures used in civil commitment proceedings to determine whether these same requirements have been satisfied. Hence persons found not guilty by reason of insanity must be given a judicial hearing with procedures substantially similar to those in civil commitment proceedings.' ¹⁴

The reasoning of the Bolton court is erroneous. The equal protection clause disapproves only irrational and arbitrary classifications. ¹⁵ The classification made by the...