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Wisconsin LawyerVol. 83, No. 5, May 2010
Involuntary Medication – Due Process
State v. Wood, 2010 WI 17 (filed 19 March 2010)
A court committed Wood to the custody of the Department of Health and Family Services (DHFS) after he was found not guilty by reason of mental disease or defect for a murder and a sexual assault; he was then placed at the Mendota Mental Health Institute (Mendota). In the 1970s he had killed his stepfather with a brick, and in the 1990s he sexually assaulted a female patient while he was hospitalized. In 2006, Mendota sought an order authorizing administration of medication to Wood without Wood’s consent. The circuit court found that Wood was incompetent to refuse medication and granted the order. Wood then appealed to the court of appeals, which certified the case to the supreme court.
The Wisconsin Supreme Court affirmed in an opinion written by Justice Crooks. Wood raised two primary challenges. “First, he argues that Wis. Stat. § 971.17(3)(c) and AD-11-97 [an ‘administrative directive’ governing compelled involuntary medication] are unconstitutional because permitting involuntary medication without first requiring a finding of dangerousness violates his rights to (a) substantive due process and (b) procedural due process...[.] Second, he argues that his trial counsel was ineffective for failing to raise those constitutional issues as well as for other alleged failings” (¶ 11).
The opinion canvasses the law governing involuntary medication and treatment (see ¶ 29). The court held that Wis. Stat. section 971.17(3)(c) satisfies substantive due process on its face (see ¶ 39). Here the majority focused on the dangerousness (risk) that must be shown in justifying such orders as well as the periodic reassessments that must occur. The supreme court found that AD-11-97 was facially valid as well. “In summary, we are satisfied that a finding of dangerousness is not required to order the involuntary medication of an individual committed under Wis. Stat. § 971.17. By that reasoning, Wis. Stat. § 971.17(3)(c) and AD-11-97 cannot be deemed to be facially invalid based on substantive due process requirements. Moreover, even if a finding of dangerousness is required, the directive requires an express finding of dangerousness and the statute implicitly contains the equivalent of an express requirement. Hence, they are not facially invalid” (¶ 46). The court also rejected Wood’s contention that the statute and the administrative directive violated substantive due process “as applied” (see ¶ 47). Turning from substantive to procedural due process concerns, the court held that section 971.17 (3)(c) and AD-11-97 also passed muster both facially and as applied. The court’s analysis is set forth at paragraphs 52-66.
Finally, the court turned back Wood’s ineffective-assistance-of-counsel claim. Counsel’s failure to raise the constitutional issues rejected by the supreme court was not, clearly, ineffective assistance. His decision not to seek an independent psychological evaluation was within his discretion. Finally, trial counsel’s failure to provide for “private communication with his client during the hearing” – Wood appeared by video conference – did not evince any prejudice (see ¶ 77).
Chief Justice Abrahamson filed a dissenting opinion that was joined in by Justice Bradley. They concluded that section 971.17(3)(c) is facially deficient because it does not require a finding of present dangerousness and is also facially deficient on procedural due process grounds because it fails to require periodic review. Finally, the dissent concluded “that the Administrative Directive, a nonbinding internal statement of policy, cannot and does not repair the substantive and procedural constitutional defects of § 971.17(3)(c)” (¶ 80).
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Condominiums – Declarations
Solowicz v. Forward Geneva Nat’l, 2010 WI 20 (filed 24 March 2010)
Geneva National is a “planned community” consisting of golf courses, multiple condominium parcels, and so forth. This lawsuit by condominium owners challenged the lawfulness of the development on several grounds. “Both the circuit court and the court of appeals agreed that the ‘Declaration of Covenants, Conditions, Restrictions and Easements for the Geneva National Community’ (the Community Declaration), which controls the overall development of Geneva National, does not violate Wis. Stat. ch. 703 (2007-08), the Condominium Ownership Act. The court of appeals concluded that the Community Declaration established a master-planned community that is not subject to ch. 703 and that the terms of the Community Declaration are unambiguous, which ‘the complainants full-well knew existed’ before they purchased in Geneva National” (¶ 1). See 2009 WI App 9.
The supreme court affirmed the court of appeals in a decision authored by Justice Roggensack. “The first question is whether the Community Declaration, which established the terms and conditions for the development of a 1,600 acre planned community that includes condominium parcels, must comply with the Condominium Ownership Act (the Act)” (¶ 14). The court held “that the Community Declaration is not a condominium instrument subject to ch. 703; rather, it establishes an overall development scheme for the 1,600 acre planned community. Condominium instruments include the condominium declaration, plat and plan.... No part of the Community Declaration evinces the Declarant’s intent to subject all 1,600 acres to ch. 703; rather, it is the Condominium Declaration for each condominium parcel that demonstrates the intent to be subject to the Act.... Lastly, the Community Declaration is not a condominium plan, which is required to be submitted as part of the plat. See § 703.11(2)(c). Again, each Condominium Declaration, not the Community Declaration, properly shows the location of the condominium units” (¶ 16).
“We agree with the court of appeals’ statement that planned communities, such as Geneva National, ‘are an entirely different type and level of development than condominiums’” (¶ 19). “Geneva National is not merely a community of condominiums; rather, it is a 1,600 acre planned community that includes condominium parcels and other types of ownership. The Community Declaration, Geneva National’s overarching development plan, guides the development of 1,600 acres according to the Developer’s vision – ’a distinct golf and leisure community.’ It also serves to protect those who purchase within Geneva National by assuring that their common interest in developing such a community according to the overarching development plan will be honored as development continues. And finally, the recorded Community Declaration gives notice to all purchasers of Geneva National’s underlying terms and conditions” (¶ 20). “Furthermore, the portion of Geneva National that Solowicz seeks to control is not the 32 residential condominiums. The unit owners already have achieved this. Instead, Solowicz seeks control of the remainder of the 1,600 acre development. Accepting Solowicz’s argument would mean that simply because a developer chooses to include one condominium parcel in a 1,600 acre development, the time limitations of ch. 703 – three or ten years – control the entire 1,600 acres. Thereafter, development decisions would cede to the then existing condominium unit owners. This surely cannot be the case. Due to the complexity of the development of the large planned community, extended developer control is necessary to properly market and uniformly develop such property” (¶ 22).
Second, the court addressed “whether the terms of the Community Declaration, if unambiguous, must also be reasonable” (¶ 32). Scrutinizing the declaration, the court held that it was indeed unambiguous. Next, the court addressed “a long line of cases recognizing that the reasonableness analysis of unambiguous contracts is limited to determining whether the terms of the contract were reasonably enforced. Here, we have concluded that the terms of the Community Declaration are unambiguous and therefore, its terms need not pass a test as to their reasonableness in order to be enforceable” (¶¶ 51-52).
Chief Justice Abrahamson concurred. In her view, “today’s decision rests on the fact that the plaintiffs have not shown specific interference by the developer within the self-governance of individual condominiums. To the extent that the plaintiffs protest potential interference where it has not yet has occurred, such claims are not ripe” (¶ 59).
Justice Bradley also concurred, writing separately “to urge the legislature to examine and consider enacting legislation that would balance some of the power and control issues presented by this case” (¶ 67).
Justice Prosser concurred as well. Addressing the “practical effect” of the majority opinion, he concluded that “[a]t least prospectively, developers will be permitted to develop condominiums without ever ceding control of those condominiums to unit owners if they follow the simple expedient of filing unambiguous, carefully worded restrictive covenants before they file their condominium declarations. The court’s analysis provides a blueprint for evading the limitations and protections contained in the Condominium Ownership Act. The hole the court creates is so great that condominium law in Wisconsin may never be the same” (¶¶ 75-76).
False Imprisonment of a Minor as the Triggering Offense – Constitutionality
State v. Smith, 2010 WI 16 (filed 19 March 2010)
In 2001, Smith pleaded guilty to a charge of false imprisonment in violation of Wis. Stat. section 940.30. According to the criminal complaint, Smith and other individuals forced a minor to ride with them in a vehicle to collect a drug debt from the minor’s friend. Even though the complaint alleged that Smith and at least one other person physically threatened the minor to force him to assist in the search, there was no allegation that the false imprisonment entailed anything sexual.
Under the unambiguous language of Wis. Stat. section 301.45, Smith is required to register as a sex offender because he was convicted of false imprisonment of a minor. Because he failed to so register, he was charged in 2005 with violating section 301.45(2)(g). He brought a motion to dismiss the charge of failure to comply with sex-offender registration on the basis that the sex-offender reporting requirements of section 301.45 violate his due process and equal protection rights under the U.S. and Wisconsin Constitutions because the crime he committed was not sexual in nature. The circuit court denied the motion and concluded that section 301.45 was constitutional as applied to Smith. After pleading guilty to the charge, Smith appealed to the court of appeals, which affirmed the decision of the circuit court upholding the constitutionality of the statute as applied to Smith. See 2009 WI App 16. (Forty-one other states and the District of Columbia require individuals convicted of false imprisonment or kidnapping of a minor to register as sex offenders regardless of whether the crime was of a sexual nature (¶ 4 n.4).)
In a majority decision authored by Justice Ziegler, the supreme court affirmed the court of appeals. It used a rational basis review, according to which a legislative enactment must be sustained unless it is patently arbitrary and bears no rational relationship to a legitimate government interest (see ¶ 9). “The rational basis test is a deferential one…. Thus, for purposes of our constitutional analysis, we owe great deference to legislative action, and Smith bears the high burden of proving that Wis. Stat. § 301.45 as applied to him is unconstitutional beyond a reasonable doubt” (¶¶ 17-18). Further, “[a]lthough substantive due process and equal protection may have different implications, ‘[t]he analysis under both the due process and equal protection clauses is largely the same.’ Accordingly, as a practical matter, the rational basis analysis applicable to Smith’s substantive due process challenge is also relevant to his equal protection challenge” (¶ 16) (citation omitted).
Applying the rational basis standard, the majority concluded that requiring Smith to register as a sex offender is rationally related to the state’s legitimate interest in protecting the public, including children, and assisting law enforcement. “Requiring Smith to register, even though his conviction for false imprisonment was not of a sexual nature, is rationally related to the government interest in protecting the public and assisting law enforcement because: (1) false imprisonment has been linked to the commission of sexual assault and violent crimes against children; (2) an offender’s sexual motive or intent may be difficult to prove or determine within the context of false imprisonment; and (3) false imprisonment places the minor in a vulnerable position because the offender, rather than the minor, has control over the minor’s body and freedom of movement. The legislature chose to require registration by those, like Smith, who commit the crime of falsely imprisoning a minor, regardless of whether that crime is of a sexual nature. We must afford deference to the words chosen by the legislature and cannot conclude that there is no legitimate government interest in requiring registration of such offenders” (¶ 13).
Justice Bradley filed a dissenting opinion that was joined in by Chief Justice Abrahamson.
Prof. Daniel D. Blinka & Prof. Thomas J. Hammer