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  • WisBar News
    November 26, 2013

    Six-Person Jury Okay in Treatment Commitment Cases, Wisconsin Supreme Court Says

    Nov. 26, 2013 – Only a six-person jury is available to individuals subject to involuntarily commitments for treatment. But sexually violent persons who are subject to involuntary commitment proceedings may request a 12-person jury.

    Recently, a unanimous Wisconsin Supreme Court in Milwaukee County v. Mary F.-R, 2013 WI 92 (Nov. 26, 2013) ruled the distinction does not violate equal protection rights.

    In 2011, a six-person jury found that Milwaukee County met its burden to have a mentally ill woman (Mary) involuntarily committed for treatment. By circuit court order, Mary was committed for not longer than six months. She appealed the order.

    Mary argued that the jury provisions in Wis. Stat. section 51.20(11), when compared to jury provisions in Wis. Stat. ch. 980 (sexually violent person commitments), violate equal protection rights by treating similarly situated persons differently.

    The Wisconsin Constitution (art. I, § 5) specifically states “that the legislature may, from time to time by statute provide that a valid verdict , in civil cases, may be based on the votes of a specified number of the jury, not less than five-sixths thereof.”

    But the U.S. and Wisconsin constitutions grant all people equal protection of the laws, and similarly situated individuals cannot be treated differently by the government.

    A state appeals court had ruled that Mary waived her right to bring an equal protection argument because she did not object when the jury was empaneled at her final hearing, despite Mary’s argument that facial constitutional challenges can never be waived.

    The majority opinion chose not to go this route, instead deciding the case on its merits while assuming, without deciding, that Mary did not waive the argument.

    The court first ruled that the jury provision at issue survived if rationally related to a legitimate state interest, the so-called “rational basis” level of judicial scrutiny.

    “We disagree with Mary F.-R.’s contention that strict scrutiny applies due to her fundamental liberty interest,” wrote Justice Patrick Crooks. “Unlike a situation where protection for a fundamental liberty interest is interfered with impermissibly, having a six-person jury trial is not the ‘equivalent to having no jury trial at all.’”

    The court also ruled that equal protection rights were not violated, because the different jury provisions reflect the different liberty interests at stake. That is, sexually violent persons face greater liberty restrains than do persons committed for treatment.

    “We hold that the legislative decision to allow the added protection of a 12-person unanimous jury in Chapter 980 commitment trials, but not in Chapter 51 commitment trials, is rationally related to different treatment needs and differing levels of dangerousness that § 51.20 and Chapter 980 seek to address, as well as the stricter rules concerning confinement in Chapter 980,” Justice Crooks explained.


    Justice Annette Ziegler, joined by Justices Patience Roggensack and Michael Gableman, agreed that the appeals court’s decision should be upheld and that Mary failed to meet the burden of her constitutional equal protection challenge. But Justice Ziegler would have resolved whether Mary forfeited her constitutional challenge.

    “We at least in part granted the petition for review on the question of whether a facial challenge to the constitutionality of a statute can be forfeited,” Justice Ziegler wrote. “The issue was briefed and argued. I conclude that we should address the question.”

    The three justices argued that Mary forfeited her right to a constitutional challenge because she did not object when the trial judge empanelled the six-person jury.

    Chief Justice Shirley Abrahamson joined the majority but wrote a separate concurrence to ask whether facial challenges to the constitutionality of statutes, including Mary’s challenge in this case, are subject to a “waiver standard” or a “forfeiture standard.”

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