71 Op. Att'y Gen. 34 | Wis. Att'y Gen. | 1982
ED JACKAMONIS, Speaker State Assembly
You ask whether 1981 Assembly Bill 262, which would amend the grounds for emergency detention and involuntary commitment under the Mental Health Act (hereinafter "the Act"), would be constitutional if enacted. The answer is no. *35
The Act provides that emergency detention or involuntary commitment may not occur unless the person sought to be detained is dangerous to himself or herself or to others. Secs.
1. The bill specifies that "recent act or omission" means acts or omissions occurring up to 180 days before the person is taken into custody under emergency detention or before a petition for involuntary commitment of the person is filed.
2. The bill removes the requirement that a "substantial probability" of imminent death or serious physical harm exist, requiring instead that a "reasonable possibility" exist.
3. The bill removes the requirement that "serious" physical harm exist, requiring only a showing of physical harm.
1981 AB 262 seeks to amend secs.
The "substantial probability," "serious harm" and "recent act or omission" requirements were incorporated into the Act as a result of a three-judge court's decision in Lessard v. Schmidt,
The court in Lessard held that due process requires that the state must demonstrate a compelling interest before it may interfere with *36
an individual's substantial interest in remaining at liberty.
[A] balancing test in which the state must bear the burden of proving that there is an extreme likelihood that if the person is not confined he will do immediate harm to himself or others. Although attempts to predict future conduct are always difficult, and confinement based upon such a prediction must always be viewed with suspicion, we believe civil confinement can be justified in some cases if the proper burden of proof is satisfied and dangerousness is based upon a finding of a recent overt act, attempt or threat to do substantial harm to oneself or another.
Lessard,
It might be argued that Lessard's precedential value is diminished because of its unusual procedural history. The three-judge court's decision was twice appealed to the United States Supreme Court. On the first appeal, the Supreme Court vacated the decision and returned the case to the lower court for clarification of its decision. The three-judge court clarified the decision, and on the second appeal, the Supreme Court again vacated the decision and returned the matter to the lower court for consideration of the questions of whether the case should have been decided at all. The three-judge court concluded that the case had been properly decided, and the court's earlier decision was reinstated. However, in the meantime, *37 the Legislature incorporated the Lessard requirements into the Act. The litigation thus ended at this point, and the Supreme Court never reached the merits of the Lessard decision.
The United States Supreme Court has never expressly stated the constitutional limits of civil commitment. It has, however, clearly recognized that civil commitment involves a "massive curtailment of liberty." Vitek v. Jones,
Of course, all legislative acts are entitled to a presumption of constitutionality. State ex rel. Hammermill Paper Co. v. LaPlante,
In conclusion, it is my opinion that amendment of the Act as proposed in 1981 AB 262 would be unconstitutional.
BCL:DDS:cm *38