Waupaca Cnty. v. K.E.K. (In re K.E.K.)

Decision Date09 February 2021
Docket NumberNo. 2018AP1887,2018AP1887
Citation395 Wis.2d 460,954 N.W.2d 366,2021 WI 9
Parties In the MATTER OF the Mental COMMITMENT OF K.E.K.: Waupaca County, Petitioner-Respondent, v. K.E.K., Respondent-Appellant-Petitioner.
CourtWisconsin Supreme Court

For the respondent-appellant-petitioner, there were briefs filed by Colleen D. Ball, assistant state public defender. There was an oral argument by Colleen D. Ball.

For the petitioner-respondent, there was a brief filed by David G. Been, Waupaca corporation counsel. There was an oral argument by David G. Been.

ZIEGLER, J., delivered the majority opinion of the Court, in which ROGGENSACK, C.J., ANN WALSH BRADLEY, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., joined. DALLET, J., filed a dissenting opinion, in which KAROFSKY, J., joined


¶1 This is a review of an unpublished decision of the court of appeals, Waupaca Cnty. v. K.E.K., No. 2018AP1887, unpublished slip op., 2019 WL 4677402 (Wis. Ct. App. Sept. 26, 2020), affirming the Waupaca County circuit court's1 order extending K.E.K.’s involuntary commitment2 pursuant to Wis. Stat. § 51.20(13)(g)3. (2017-18).3

¶2 K.E.K. challenges the commitment extension arguing that Wis. Stat. § 51.20(1)(am), the statute upon which the County relied to prove K.E.K.’s dangerousness, is both facially unconstitutional and unconstitutional as applied to this case because the statute does not require a sufficient showing of current dangerousness as exhibited by recent acts of dangerousness. 4

Specifically, she claims that the standard under § 51.20(1)(am) violates due process5 and equal protection of the laws6 and is thus unconstitutional on its face and as applied.7

¶3 However, similar to an initial commitment, a recommitment requires a showing of mental illness and current dangerousness. A recommitment petition must "establish the same elements with the same quantum of proof" as an initial commitment. Waukesha Cnty. v. J.W.J., 2017 WI 57, ¶20, 375 Wis. 2d 542, 895 N.W.2d 783. The initial commitment requires proof that the individual is mentally ill, a proper subject for treatment, and currently dangerous. See Wis. Stat. § 51.20(1) ; Portage Cnty. v. J.W.K., 2019 WI 54, ¶16, 386 Wis. 2d 672, 927 N.W.2d 509. Section 51.20(1)(am) provides an alternative path to prove current dangerousness provided the evidence demonstrates "a substantial likelihood, based on the subject individual's treatment record, that the individual would be a proper subject for commitment if treatment were withdrawn." § 51.20(1)(am).

¶4 Accordingly, we conclude that K.E.K. is unable to prove that Wis. Stat. § 51.20(1)(am) cannot be enforced under any circumstances because due process and the statute both require a showing of mental illness and current dangerousness. As such, K.E.K.’s facial due process challenge fails.

¶5 Moreover, Wis. Stat. § 51.20(1)(am) creates an alternative path to give counties a more realistic basis by which to prove current dangerousness when it is likely the committed individual would discontinue treatment if no longer committed. Thus, the state has a rational basis for treating those recommitted under § 51.20(1)(am) and those committed under § 51.20(1)(a) 2.e. differently.

¶6 Finally, K.E.K.’s as-applied constitutional challenges are disguised sufficiency of the evidence challenges. Her argument is that she does not meet the statutory standard for dangerousness, not that Wis. Stat. § 51.20(1)(am) is unconstitutional when applied to K.E.K.’s specific facts.

¶7 Therefore, we conclude that Wis. Stat. § 51.20(1)(am) is facially constitutional and that K.E.K.’s as-applied constitutional challenges fail. Accordingly, we affirm the decision of the court of appeals.


¶8 On November 22, 2017, Waupaca County (the County) filed an initial petition seeking to commit K.E.K. under Wis. Stat. § 51.20(1)(a) 2.e., the "fifth standard."8 On December 8, 2017, the circuit court held a jury trial on the County's petition for initial commitment. The jury entered the verdict that K.E.K. was mentally ill, a danger to herself and others, and a proper subject for treatment. On the basis of this jury verdict, the circuit court entered an Order of Commitment, committing K.E.K. for six months.

¶9 On May 22, 2018, the County filed a petition seeking to extend K.E.K.’s commitment. The petition alleged: (1) K.E.K. was "currently under an order of commitment"; (2) K.E.K. was "mentally ill, developmentally disabled or drug dependent, and a proper subject for treatment"; (3) K.E.K. was "dangerous because there [was] a substantial likelihood, based on [K.E.K.’s] treatment record, that [K.E.K.] would be a proper subject for commitment if treatment were withdrawn"; and (4) that "a recommitment of [K.E.K. was] recommended ... for the protection of society, [K.E.K.], or both." Attached to the petition was an evaluation conducted by K.E.K.’s case manager. In this evaluation, K.E.K.’s case manager states, in part, "[A]t this time, this worker believes that without a commitment, [K.E.K.] would leave the facility she is living at, stop taking her medications, and repeat all behaviors that were the cause of the filing for the commitment in 2017."

¶10 The circuit court held a hearing on the extension petition on June 6, 2018.9 At the hearing, the court heard from the County's psychiatrist, who testified that K.E.K. "suffers from schizophrenia

, paranoid type." He further opined about K.E.K.’s actions if K.E.K. were no longer committed:

Well, I've explained I do believe she's improved with her current treatment interventions care and safe keeping at this group home, Evergreen and with medications. But she has distinctive lack of insight into her mental illness and that impedes her treatment in general.
And so if she is off commitment or if treatment is withdrawn, she will, in my opinion, almost certainly stop her medications, she will almost certainly leave Evergreen. She mentioned to me that she would live with family in Illinois, but her mother cited advancing age, and just being uncomfortable with the stress of this, due to her mother's age. So I don't think she has any kind of set housing set-up. And I'm concerned that off mediations, which I believe she would stop them, and without stable housing, she would decompensate and become a proper subject for commitment, in my opinion, again.

The court also heard from K.E.K.’s case manager. She testified that she believed "an extension is warranted because without the treatment and care that [K.E.K.’s] receiving currently, ... [K.E.K.] will no longer take her medications, become more unstable, and potentially [sic] a danger to herself as a result of that." The court also heard from the manager of K.E.K.’s group home and K.E.K. herself.

¶11 At the conclusion of the testimony, the circuit court found that K.E.K. would be a proper subject for recommitment. The court specifically found that "the county has met its burdens in showing that if treatment were withdrawn, that [K.E.K.] would be a proper subject for a commitment." Relying on the recommitment standard from Wis. Stat. § 51.20(1)(am), the court found that K.E.K. was currently dangerous and ordered her commitment be extended for 12 months.

¶12 K.E.K. appealed the circuit court's commitment extension order, challenging the constitutionality of Wis. Stat. § 51.20(1)(am). On September 26, 2019, the court of appeals affirmed, holding, in relevant part, that § 51.20(1)(am) does not violate due process facially nor as applied to K.E.K. K.E.K., No. 2018AP1887, ¶¶33-40, 46-50.

¶13 On October 30, 2019, K.E.K. petitioned this court for review. We held the petition in abeyance pending resolution of Winnebago County v. C.S., 2020 WI 33, 391 Wis. 2d 35, 940 N.W.2d 875. After this court's decision in C.S., K.E.K. filed a motion to amend her petition for review. Her new petition alleged that Wis. Stat. § 51.20(1)(am) violated due process, the Fourteenth Amendment's Privileges or Immunities Clause,10 and the Equal Protection Clause. We granted K.E.K.’s motion to amend her petition and granted review.


¶14 K.E.K. brings facial and as-applied constitutional challenges to Wis. Stat. § 51.20(1)(am). A facial challenge claims the law is "unconstitutional on its face." League of Women Voters of Wis. Educ. Network, Inc. v. Walker, 2014 WI 97, ¶13, 357 Wis. 2d 360, 851 N.W.2d 302 (quoting State v. Wood, 2010 WI 17, ¶13, 323 Wis. 2d 321, 780 N.W.2d 63 ). "Under a facial challenge, the challenger must show that the law cannot be enforced under any circumstances." C.S., 391 Wis. 2d 35, ¶14, 940 N.W.2d 875 (quoting Winnebago Cnty. v. Christopher S., 2016 WI 1, ¶34, 366 Wis. 2d 1, 878 N.W.2d 109 ). A statute under review is presumed constitutional when challenged facially.11 Id. ¶15 "In contrast, in an as-applied challenge, we assess the merits of the challenge by considering the facts of the particular case in front of us ‘not hypothetical facts in other situations.’ " League of Women Voters, 357 Wis. 2d 360, ¶13, 851 N.W.2d 302 (quoting Wood, 323 Wis. 2d 321, ¶13, 780 N.W.2d 63 ). "[W]hile we presume the statute is constitutional, we do not presume that the State applies statutes in a constitutional manner.’ " Mayo v. Wis. Injured Patients & Families Comp. Fund, 2018 WI 78, ¶56, 383 Wis. 2d 1, 914 N.W.2d 678 (quoting Tammy W-G. v. Jacob T., 2011 WI 30, ¶48, 333 Wis. 2d 273, 797 N.W.2d 854 ).

¶16 Under either type of challenge, "the constitutionality of a statute is a question of law we review de novo." C.S., 391 Wis. 2d 35, ¶13, 940 N.W.2d 875.

¶17 K.E.K.’s argument requires us to interpret Wis. Stat. § 51.20(1)(am). "[S]tatutory interpretation is a question of law we review de novo." J.W.K., 386 Wis. 2d 672, ¶10, 927 N.W.2d 509. However, we have already interpreted § 51.20(1)(am). See id., ¶¶19, 23-24. "[W]here a statute has been authoritatively interpreted by this court, the party challenging...

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