2025 WI App 64
Wis. Ct. App.2025Background
- Wilhite was found NGI for threat to a law enforcement officer in 2019 and committed to DHS for a specified period.
- He was conditionally released in Feb 2023 after stipulation he did not currently pose significant risk.
- DHS petitioned for revocation in Feb 2023; petition was withdrawn and conditions adjusted later that year.
- DHS again petitioned in Jan 2024 based on alleged rule violations; circuit court held a revocation hearing.
- The court found clear and convincing evidence of rule violations and revoked conditional release, ordering institutional care.
- Wilhite appeals arguing § 971.17(3)(e) is facially unconstitutional for lacking a proof-of-dangerousness requirement; court reverses and severs unconstitutional portions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is § 971.17(3)(e) facially unconstitutional for not requiring dangerousness to revoke release | Wilhite argues no dangerousness proof is required, violating due process | State contends statute permits dangerousness findings and petitions while arguing about forfeiture/competency | Yes, unconstitutional to the extent it allows commitment without dangerousness finding |
| Should the unconstitutional portions be severed and remainder left in force | Sever the provisions, leaving dangerousness-based framework intact | Severance not appropriate if it undermines process; remand unnecessary | Unconstitutional provisions severable; remainder remains operative |
Key Cases Cited
- Jones v. United States, 463 U.S. 354 (U.S. 1983) (due process requires release when no longer dangerous or mentally ill)
- Foucha v. Louisiana, 504 U.S. 71 (U.S. 1992) (no longer mentally ill or dangerous; cannot be confined solely on dangerousness without illness)
- Randall v. State, 192 Wis.2d 800 (Wis. 1995) (dangerousness-alone confinement allowed under narrow conditions; not applicable to current Wisconsin statute without mental illness finding)