*1 duct, concerning exception with the of that the Lake matter, neglect as to which we conclude Hetzel’s unprofessional conduct, his client’s matter constituted we determine that the referee’s recommended minimum discipline appropriate.
It Is Ordered of Thomas G. Hetzel to license practice suspended year, law for one in Wisconsin is commencing 1,1984. June pay that Thomas G. Hetzel
It Further Ordered Is Attorneys Responsibility to the Board of Professional year one of this within date order costs disciplinary $18,582.80, proceeding amount paid provided within time if the costs are not specified, practice G. Hetzel to license of Thomas law in Wisconsin be revoked forthwith. shall Plaintiff-Respondent, Wisconsin,
State
v. Defendant-Appellant. Thomas R. Field, Supreme Court Argued February No. 82-1330-CR. 2, 1984. May 2, 1984. Decided 365.) (Also reported in 347 N.W.2d *2 by defendant-appellant was a brief For there Geraghty, Coffey, Coffey Mil- Coffey & William M. Coffey. argument by waukee, M. and oral William argued by plaintiff-respondent cause was For the attorney general, whom Wellman, with Sally assistant L. gen- Follette, attorney La on the was Bronson C. brief eral. BABLITCH, A. Field was
WILLIAM
J. Thomas
guilty
first-degree
phase
found
murder after the first
trial,
guilty by
of his
reason
mental disease
phase.
appeals
after the second
He
from commitment
phase at which
which
after the third
order
was issued
danger
mentally
presently
ill and a
he
found to be
was
argues
produced
the state
that because
to others. Field
concerning
no evidence
his
mental condition dur-
ing
phase
solely
the third
the trial but instead relied
produced
prior
phases,
on the evidence
at the
two
he
rights
process
was denied his constitutional
to due
equal protection
laws.
that the com-
of the
We conclude
may
regardless
any error that
mitment order
stand
might
during
phase
third
of the trial
have occurred
holding
contrary,
previous
despite
to the
because,
guilty
following a
of not
the trial
third
not constitu-
disease or defect
reason of mental
tionally required.
notwithstanding
prior
issue
for review is:
our
Schubert,
ex
Kovach v.
State
rel.
2d
64 Wis.
971.17(1),
(1974),
1981-82, allows defendant found not *3 automatically be reason mental disease or defect to process equal protection committed, or the due violate to the United clauses of the fourteenth amendment Constitution, I, Art. sec. 1 of the Wisconsin or States Constitution ? in Kovach that sec. prior
We overrule our equal 971.17(1), process and Stats., violates the due protection clauses of the fourteenth to the amendment 971.17(1) United States Constitution. hold that sec. We does not process equal violate the protection due or clauses amendment, I, of the fourteenth or sec. 1 Art. 971.17(1) the Wisconsin Because sec. Constitution. automatically allows a defendant to be committed after by guilty he or she is found not reason of mental disease or defect, we affirm the order of the circuit court. September 26,
On 1981, Field shot and killed Dorian Lavey at the estranged home of Field’s The Fields wife. had separated been since June of 1981 after a divorce action had been dating filed. Mrs. Field Mr. had been Lavey May, since 1981. against Field, complaint issued a criminal
The state contrary first-degree murder, to sec. charging him with appearance on 940.01(1), made his initial Field Stats. 14, preliminary hear- September 28, October 1981. On for trial. Field over was bound ing and Field was held arraignment 29, and appeared on October entered right special guilty, reserving plea to enter a 16, appeared and entered plea On Field later. November special plea guilty of mental disease of not reason jury for a trifurcated The matter was set or defect. trial.
The “trifurcated
criminal
trial’* was
introduced
portion
following
plea
Kovach. The
first
a trial
guilty by
insanity
ques-
of not
reason of
is devoted
guilt
tion of
charge.
innocence of the
If the defend-
guilty,
ant is
portion
found
the second
is to determine
whether the defendant
is not
reason of mental
disease or
If
found,
defect.
the defendant
is so
the third
portion of the trial
is to determine whether the defend-
presently suffering
ant is
from mental
illness and is in
need of
treatment,
is,
institutionalized
whether he
danger
is a
Gebarski,
himself or
v.
others. See State
754,
769,
Wis. 2d
(1979).
trial third was needed. After phase hearing third was set for a on March 1982. hearing, At the March the state offered no testi- mony concerning or evidence pres- whether Field was ently suffering from dangerous. mental illness and was state The indicated that it relying testimony was on the during and evidence phases adduced the first and second support position pres- of the trial to that its Field was ently suffering danger- from a mental disease and was testimony The defense also offered no new ous. Citing testimony presented during evidence. the first phases, . two the trial court found . that Field “. presently mentally being possesses potential ill and dangerous to others.” court therefore that ordered 971.17, Stats., Field committed under sec. to Wis- Department consin of Health and Social Services far appropriate treatment at an institution. Field subse- quently was committed to Mental Health Institute— Winnebago. appealed
Field the trial court’s order to the court appeals, pursuant case this court which certified the 809.61, accepted to sec. Stats. the certification. We As above, jury noted after returned the verdict finding by guilty Field not disease, reason of mental trial hearing court held a to determine whether he suffering presently was from mental illness and was in need of phase” institutionalized treatment. This “third require- of the comply trial was conducted with the ments of Kovach. argues
Field him court erred and denied trial process equal protection by due of the laws presently dangerous following mentally him ill and by with- guilty verdict of not disease reason mental taking testimony con- out third at the cerning dangerousness. condition and his hear- it burden He contends that was state’s ing certainty prove evidence ato reasonable *5 convincing pres- satisfactory clear, that he was mentally treat- in need of institutionalized ently ill and danger Field presently a to others. he was ment because and the did meet this burden that the state asserts support the trial court's was evidence insufficient finding. argues although testimony was there no state presented phase con-
or evidence the third condition, cerning suf- Field’s mental there was during phases to adduced the first two ficient evidence finding presently Field support the court’s was trial dangerous. However, mentally addi- ill the state light tionally argues of the recent United States - States, in Jones v. United Supreme decision Court (1983), should overrule -, we Ct. 3043 S. U.S. constitutionality 971.17 of sec. uphold the Kovach and provides com- for automatic 1981-82, which (1), Stats. by finding guilty upon reason of of not mitment phase trial. of the second or defect after disease Although in com Kovach we held that automatic procedure 971.17, un mitment of sec. was Stats. constitutional, legislature has not eliminated this procedure Kovach. to conform to Section below,1 provides 1981-82, 971.17(1), cited in full still following finding of not for automatic commitment by guilty of mental reason disease or defect after currently Thus, second no there trial. requirement statutory that after a defendant has been by guilty found not reason or defect of mental disease 1981-82, provides: 971.17(1), Section Stats. “Legal guilty mental dis- effect of of not because of guilty (1) or defendant is found not ease defect. When a defect, him to be order reason of mental the court shall disease appropriate department placed insti- in an to the to be committed pro- discharged custody, as and treatment until tution care in this vided section.” *6 hearing committed, or she
and he is before be held presently to the defendant men determine whether tally ill and in need of institutionalized treatment.
Therefore, procedure if the automatic commitment of 971.17(1), Stats., following sec. the second satis- requirements, fies constitutional Field could have been automatically thereby provision, committed under that eliminating requirement phase hearing of a third finding present dangerous- of mental illness and ordering prior ness his commitment under sec. 971.- 17(1). Kovach,
In
Schopf
overruled State
rel.
we
ex
v. Schu-
bert,
45 Wis. 2d
(1970),
However, analysis cases, based on the we those procedure 971.17, held in Kovach under sec. 1973, for the automatic a defend- Stats. commitment of 957.11(3), 1967, provided: guilty Section “If not Stats. found guilty feeble-minded, because insane or not because defendant hospital shall be to the state an insti committed central designated by department public welfare, tution there state discharged to be detained until with accordance law.” upon finding guilty reason of mental dis- of not ant protection, equal defect denied the defendant ease or amendment to the United fourteenth violation following find- We concluded Constitution. States defect, ing disease or reason of mental jury question to the submitted be another there should suffering presently from defendant on whether treat- in need institutionalized and is illness 2d at 622. ment. 64 Wis. statutory also automatic commitment
We held that contrary process, procedure defendant due denied a pro- amendment, there was no the fourteenth because insanity at for a vision *7 2d See at 622-23. We time of 64 Wis. commitment. satisfy process, due the find- to that in order concluded prior to ing present made mental illness should be of 971.17, ordering commitment under a defendant’s sec. present a defendant’s Stats., a on and after 2d at 623. condition. 64 Wis.
Following
Kovach, however,
our decision in
the United
Supreme
of
the issue
the consti-
States
Court addressed
tutionality
whereby
procedure
a de-
of a commitment
finding
automatically
upon not
committed
of
fendant
is
insanity.
States,
reason of
Jones
United
v.
-
-,
(1983).
U.S.
The
son pursuant of and was committed a Dis- providing trict of statute Columbia that: person any upon “If tried an or informa- indictment insanity tion for an of and is offense raises defense ground acquitted solely at on the that he was insane commission, the time to a of its shall be committed he hospital mentally ill for the until he such time as is eligible pursuant or release this subsection sub- (e).” section argued process defendant he denied The that was due judgment by guilty because the in- reason sanity did not constitute dangerousness, it
illness and was estab- because by preponderance only The evidence.3 lished Addington Texas, relied, part, v. defendant Supreme (1979), the United States which U.S. process requires that held the due clause Court proceedings, government civil-commitment must by convincing demonstrate clear and evidence that mentally dangerous. individual ill and U.S. 426-27. The defendant therefore asserted that his com- governed by mitment should have been District procedures, Columbia’s civil-commitment under upon could individual be committed clear convinc- government ing by proof mentally person that the likely injure ill and himself others.
The Court in Jones noted guilty verdict of not insanity reason of first, establishes two facts: constituting the defendant committed an act a criminal offense; second, the defendant committed the act be- cause of mental illness. Court noted also that Con- *8 3 Jones, equal protection argument In the Court noted that an government deny to the effect it that was irrational for the govern the defendant a civil-commitment at by convincing proof ment bore the burden of evidence clear and duplicated process argument. The Court defendant’s due process require therefore that if the does indicated due clause not insanity acquittee given safeguards procedural that an be necessarily provided hearing, there is a civil-commitment then equal protection distinguishing purposes a rational basis for for acquittees. insanity between civil and commitment of commitment Ct. 10. at n. S. findings constitute an gress that these determined had acquittee hospitalizing as a dan- adequate for basis mentally person. The concluded gerous ill Court or unconstitutional not unreasonable it was that at 3049. 103 S. Ct. Congress this determination. to make that conclusion, indicated the Court reaching this In beyond found, a reason- person been the fact that doubt, a criminal act indicates able to have committed dangerousness. that it was The Court also concluded insanity Congress that to determine reasonable for continuing mental ill- supports acquittal an inference . . a held ness. The Court therefore “. insanity founda- is a sufficient reason of acquittee insanity for the commitment
tion for society.” protection of purposes and the of treatment 3050. 103 S. atCt. argu- rejected additionally the defendant’s Court commitment because
ment that his
was unconstitutional
only
proof
insanity
preponderance
of his
was based
compared
Addington’s civil-com-
as
evidence
convincing
requirement
by
proof
clear and
mitment
recognized important differences
evidence. The Court
class of
and the
candidates
between civil-commitment
stan-
insanity
justify imposing different
acquittees that
proof.
Addington,
particularly
dards of
was
Court
persons
because of
concerned that
would be confined
“
might
perceived
‘some abnormal behavior which
disorder,
symptomatic
some
emotional
as
of a
range
but
of conduct
which is
fact within
”
3051, quoting
generally acceptable.’
Ad-
at
Ct.
S.
However,
dington,
as the Court
279 Addington, recognized 441 at 427. The U.S. Court also by that criminal act definition is not ‘within a “[A] ” range generally acceptable.’ of conduct 3051, quoting S. Ct. at Id. at The Court there- 426-27. that: fore held by “. . . pre- when criminal defendant establishes
ponderance of guilty permits the evidence that he is not of a crime insanity, reason of the Constitution Government, insanity judgment, the basis to him confine to a mental institution such until time as regained sanity longer he has danger his or is no to society.” himself or 103 Ct. at S. 3052. Jones, conclude, contrary Based on the decision in we Kovach, (1), Stats., to our decision that see. 971.17 which allows for commitment without a de- automatic condi- termination of the defendant’s mental tion, process not violate the due clause of the does Jones, fourteenth amendment. As Court noted beyond has been found a rea- a defendant fact that sonable doubt to have committed act is a criminal in- dangerousness. Jones, addition, dicative of In Congress’ Court concluded that determination that an in- sanity continuing acquittal supports men- an inference of reasonable, stating, comports tal was “It with illness to mental common sense conclude someone whose lead him a crim- illness was sufficient to commit likely inal ill and in need of treatment.” act is to remain Similarly, it was reasonable for at 3050. S. Ct. legislature of not determine Wisconsin supports an defect inference disease or the defendant continues that a likelihood exists that mentally need treatment. ill and will therefore addition, recognized that a com- in Jones the Court acquittee he has mitted to release when . is entitled “. . longer dangerous.” sanity recovered his is no *10 added.) The Court noted (Emphasis atCt. 3051. S. provisions relat- District of Columbia’s under the that acquittee, insanity the ing of an the committment hearing a within entitled to would person committed be ensuring commitment, thereby that days of the 50 if he or she opportunity release to obtain has person recovered. has case, a is committed
Similarly, once defendant 971.17(2) Stats., af- pursuant 971.17(1), sec. to sec. petition right a reexam- for the defendant fords under defendant’s condition ination 51.20(16) of the Mental procedures sec. outlined (2) provides that also 971.17 Health Section Act. that if the court is satisfied released defendant must be danger to may safely released without be defendant (c) that 51.20(16) states or to others. Section himself respect to the individ- hearing held with been if a has days thirty filing ual’s commitment within petition reexamination, hearing be no will held on petition. hearing held If such a has not within been days days thirty has been held within of the but filing petition, of the the court discretion to hearing. hearing hold a If a has not been held within days hearing filing, of the must be held on the petition thirty days receipt petition. of the within addition, 51.20(16) may (i), In under sec. defendant subsequent any receive reexaminations in the time may discretion, court’s com- such reexaminations pelled days after preceding of the That examination. provides petitions subsection also that all for reexamina- tion thirty days must receipt by be heard within of their Thus, (2) the court. sec. 971.17 ensures that a defend- automatically pursuant (1) ant committed to sec. 971.17 may may be reexamined and obtain if or she release he dangerous. presently is not See Gebwski. days frame of 120 time question whether the (2) hearing and 51.- 971.17 mandatory under secs.
for a requirements Stats., constitutional 20(16) (c), meets Supreme noted Jones, Court before us. governing provisions District of Columbia’s under the insanity acquittal, following an committed release of one fifty within person be entitled would days commitment, have an and would therefore of the opportunity if has recovered. to obtain release he or she however, emphasized, it not de- was The Court *11 procedures for ciding the District of Columbia’s whether 3049, n. at See 103 S. Ct. release were constitutional. constitutionality concerning any the Similarly, issues 11. procedures under sec. and release of the reexamination period including 120-day set forth in 971.17(2), and do in this case we 51.20(16) (c), not raised are sec. not decide them. additionally note that automatic commitment under
We 971.17(1), Stats., sec. important serves the state inter- ensuring est of thorough the defendant receive a and accurate present evaluation of his or her mental objective condition. likely This will more be accom- plished once a defendant during is committed than proceedings hectic at during any trial or post-trial hear- ings. Once the defendant committed, is the sole focus evaluating is on present his or her condition, on the defendant’s prior mental condition time of the criminal act. Because the defendant has crime, committed public is entitled to the assur- ance that the defendant’s danger- mental condition and ousness will thoroughly evaluated under circumstances that will accomplish best objective, ensuring while right the defendant’s to be released if he or she longer recovered or dangerous is no protected. The commitment of a defendant 971.17(1) under sec. ensures that the defendant will receive an evaluation of his or her mental condition that is free from hearings. pressures post-trial time of the trial addition, opportunity In the defendant has for re- procedures examination and release under set forth 971.17(2) 51.20(16) (c). Therefore, secs. we 971.17(1), providing conclude that sec. for automatic following finding guilty by commitment of not reason defect, process of mental disease or satisfies due re- quirements.
We also
971.17(1), Stats.,
conclude that sec.
does not
equal protection
violate the
clause of the fourteenth
recognized
amendment. As
Schopf,
equal pro-
we
disapproves
tection
only
clause
arbitrary
irrational and
classifications.
Similarly, when pursuant a defendant is committed 971.17(1), Stats., sec. already he or she has been beyond found a reasonable doubt to have committed a act, criminal unquestionably which is conduct outside range acceptable Thus, behavior. commitment under those circumstances does not involve the concern
283 person with civil commitment that associated range being committed for conduct within the of so- acceptable addition, cially In fact behavior. that guilty person who been found reason of has not mental has disease committed a criminal act demon- degree dangerousness society may strates lacking civilly in the actions of one iswho committed. persons important Because differences between civilly pursuant committed and those committed sec. legislature’s 971.17(1), between civil classification commitment neither arbi- commitment and criminal trary nor irrational.
Finally,
distinguished
Jones,
note
we
that in
the Court
upon
cases
we relied
to reach our
in Kovach.
Kovach,
Herold,
In
noted
we
Baxstrom v.
(1966),
Supreme
U.S.
United States
Court held
prisoner completing
that a
his
could not be
sentence
affording
procedural pro-
committed
without
him
civilly
provided
involuntarily
tections
to citizens
com-
Humphrey
Cady,
mitted. We also cited
v.
We our holding in hearing Kovach that there must be a finding dangerousness illness and prior ordering 971.17(1), commitment under sec. Stats., interpretation was based on an erroneous of what requires. the Federal Constitution We therefore hold 971.17(1), provides that sec. for automatic com- finding mitment after a of not reason men- defect, tal disease or does not violate either the due process equal protection or the clauses fourteenth of the contrary amendment. Our in Kovach to the is overruled. argues
Field nevertheless if that even the automatic procedure commitment Stats., 971.17(1), does sec. not violate the fourteenth amendment to the United Constitution, interpret States we should the Wisconsin requiring Constitution as that after a defendant has guilty been found reason of mental disease or de- committed, fect and before the defendant there must pres- and a defendant ently mentally ill and in need of institutionalized treat- repeatedly ment. I, We have held that sec. 1 of Art. Constitution, Wisconsin below,4 cited in full is sub- stantially equivalent process equal pro- to the due I, provides: Article sec. 1 of the' Wisconsin Constitution rights. “Equality; inherent 1. All men are bom Section equally independent, rights; free and and have certain inherent among life, liberty happiness; pursuit these are and the rights, governments among men, secure these are instituted deriv- ing just powers governed.” their from consent
285
tection clauses of the fourteenth amendment
to the
United
State ex
States Constitution. See
rel. Cresci v.
Department,
400, 414,
H&SS
62
2dWis.
215 N.W.2d
(1974);
Sylvester,
ex
361
State
rel. Sonneborn v.
43, 49-50,
(1965).
2dWis.
We conclude that (1), Stats., there was no consti mitted under sec. 971.17 he found requirement after was tutional disease, finding of mental or for reason presently mentally ill in need of insti he and that was Therefore, the commitment order tutionalized treatment. might regardless have may any that error stand phase of during the trial.5 occurred the third making phase hearing by conducting and case, third prior finding dangerousness and illness 'beyond what ordering commitment, the trial court went Field’s however, constitutionally required. convinced, that We are was Kovach, err did not the court under standards enunciated dangerous mentally presently ill and that Field was during two the first testimony evidence adduced on based during presented solely phases. the evidence The state relied proof the third phases its to meet burden the first two was testimony that Field phase. demonstrated and evidence This stressful under suffering recur that could mental disease from a reasonably conclude trial court could The situations. hearing, third the time still existed at disease mentally institutional presently in need ill and that Field was proved to a state conclude therefore treatment. We ized satisfactory clear, certainty by was evidence that reasonable disagrees opinion, with ma- concurring The phase hearing jority’s third conclusion the Kovach disagreeing major- well with the eliminated, as as issue, requires addressing ity’s constitutional response. concurring opinion majority notes that something
reframed the issue this case to be other *15 presented by ap- parties than and the court of J., concurring peals (See Abrahamson, on certification. op. 289). only up correct, point at That but to the originally accepted this court A where the certification. great deal in has occurred this record since that time concurring opinion point which the fails to out.
The issue majority framed became an issue in this case because the recent Supreme United States - States, Court decision in -, Jones United v. U.S. (1983). concurring opinion S. Ct. As the ac- knowledges, Jones was after decided the certification of Thus, this to parties case this court. the issue that originally presented ap- to the trial court and court of peals was framed without the benefit of decision in Jones. accepted
This court August 9, certification August 22, 1983, approximately 1983. On five months argument oral and two months after Jones was before decided, the state filed a motion with this court al- low submission requested of additional briefs. state that this court: parties express “allow opportunity their
respective impact, any, views on what if the decision Supreme the United States Court in Jones United v. States, 3233, 1983, 33 Cr. 29, L. issued June has on this case. analysis The state believes the issues discussed convincing, presently mentally that Field was and in ill need institutionalized treatment at the time he was ordered committed. pertinent to the instant are recent case
set forth this case.” granted the motion.
This court it dis- supplemental in which brief filed a The state constitutionality commit- automatic of the cussed the argued that 971.17, The state provision, ment sec. Stats. over- Jones, court should light decision of the Schubert, 2d 64 Wis. Kovach v. ex rel. rule State uphold the consti- should (1974), and 219 N.W.2d Supplemental Brief (State’s tutionality of sec. 971.17. 3.) supplemental re- subsequently filed The defendant argu- responded to the state’s ply The defendant brief. Kovach, applicability Jones concerning the ments distinguishable in Kovach arguing that guarantees assuming that Jones, “Even from by refer- may be elucidated federal constitution pro- . Kovach . . . , in . . . this Court . to Jones . ence analysis that can be legitimate constitutional vided the Constitution the basis of sustained on should be *16 Supplemental (Defendant’s the of of State Wisconsin.” court, argument 6.) this Reply before Brief At oral at ar- parties again opportunity to had the both concerning applicability of guments the court this prior Jones to our in Kovach that the automatic 971.17(1), Stats., procedure was commitment in sec. Thus, contrary to the statement unconstitutional. deciding concurring opinion . the court is the . constitutionality an issue of without the of adver- benefit argument” (Abraham- sarial briefs or adversarial oral son, J., concurring clearly op., 292), at the above events indicate that the had full both the state and defendant opportunity to address and debate the constitutional by ultimately majority issue decided the in this case. concurring opinion The notes that this court decided the issue constitutional without the . benefit of . having considered, argued, counsel’s and refined the in the trial constitutional issues court court concurring J., op. appeals. (Abrahamson, . at . 292-293). case Were the issues the kind that the this concurring urges opinion majority to later consider (See Abrahamson, concurring J., op., 295-296), at concurring might opinion’s criticism have merit. How- ever, question presented the constitutional in this is case dependent upon development such that it not at all factual record in the lower courts. concurring opinion The inappropriately also and in- correctly majority’s opinion reversing labels the Ko- advisory vach as an opinion. (See Abrahamson, J., concurring op., 295). advisory opinion opinion An is an by . . may request “. rendered a court at the government indicating party or an interested adversary how the court on would rule a matter should litigation develop. advisory An opinion is thus an in- terpretation binding law without (Em- effect.” phasis supplied.) Dictionary (5th Black’s Law at 50 1979). ed. case, adversary litigation In this had de- veloped, and argued one the issues raised and to this by parties court litigation to this concerned the question by majority, constitutional decided and its implications prior our decision in Kovach. That issue was case, relevant to the resolution of this majority binding decision rendered on parties to this case. concurring opinion says that, in the interest of defendant, fairness to the this case should be decided applicable the basis of the rules under Kovach. The majority applied applicable the rules under Kovach *17 to 5, supra. this case. ap- See footnote Even when we plied applicable the rules under Kovach the to other presented case, in this we that the de-
issues concluded position on those issues lacked merit. There- fendant’s defendant, analysis, fore, under the for the either result precisely the same. rejects any implication majority that The also its holding reversing Kovach is not fair to the defendant parties above, in this case. As noted both were afforded argument opportunity an in well of oral to advance impact the in Jones brief of the of the issue decision parties again opportunity on had to this case. Both the argument. that oral The fact the discuss this issue at seriously extensively deal . did not defendant “. . question (Abrahamson, reversing Kovach” the with 292), though parties concurring were J., op., at both even case, not make does aware that was an issue this this apply to majority’s to address issue the decision to holding the to this case unfair issue on defendant. court af-
By order of circuit Court. —The firmed. ABRAHAMSON, (concurring).
SHIRLEY J. The S. state, defendant, appeals, on certi- the court fication, presented issue as framed the case fol- this it testi- Did trial court err when did not hear lows : mony on trial and relied evi- at the third of the presented phases the trial dence the first two dangerous mentally ill and declare the defendant him. commit 5, page majority decides this issue footnote opinion, aside, dictum, apparently as as linguistic holding. trappings
but couched in probably it, majority opinion I sets As see forth claiming preclude from the defendant majority ground process denial of due retroactively applied to his case a new rule of law *18 possible I his detriment. view footnote 5 as the holding proper in of the court and concur it. majority,
The
however,
the issue for review.
reframes
says
It
the issue is whether
the court should reverse
Schubert,
its
State ex rel. Kovach v.
in
Wis.
(1974),
2d
and declare
The then decides to reverse Kovach and to apply retroactively the reversal of Kovach to this case. Supra, p. 285. The prospec- state asked the court for a ruling (1) tive validity as to sec. 971.17 and the Kovach, ruling a applicable not retroactive to this case supplemental tried under Kovach. The state its brief argument carefully explained that, at oral in the fairness, interest of this case be on the should decided applicable Unwilling rules basis under Kovach. suggestion wholly to follow it the state’s render a ruling, prospective majority that Kovach concludes retroactively overruled. join I majority cannot applica- in its retroactive tion of agree the reversal of Kovach. I with the state’s position to this fairness defendant —and in fair- any ness to other defendants who have been tried under may appeal Kovach decision and who their cases— a reversal wholly of the Kovach decision must be a prospective ruling. light 5 and the fair- footnote ness, process question, appellate due court trial would be wise to in ac- decide issue in case tried applied cordance with Kovach as if Kovach and as both apply. if Kovach did only I reason can see for the decision majority’s suggestion
not to
follow
state’s
that the court render
wholy prospective ruling
majority may
is that
wholly
ruling
be concerned that
prospective
is in
advisory ruling
might
effect an
for future cases and
nonbinding.
is the
If
as dictum
construed
This
concern,
be.
court
majority’s
it need not
constitutionality of a
statute
cases ruled
other
though
ruling was not
application even
future
necessary
case
the court.
to the decision of the
before
*19
Fraternity
v.
See,
Sigma Tau
House
e.g.,
Gamma
(1980).
392, 409,
Menomonie,
2d
Both the state and the defendant assumed that the
personally
any
defendant woud not be affected
ad-
visory
might
relating
decision this court
make
to the
Accordingly
reversal Kovach.
standably
the defendant under-
adversary
concluded that he did not
have
seriously
interest
the Kovach issue and thus did not
reversing
extensively
question
deal with the
supplemental
Kovach. The defendant asserted in his
(and
argument)
brief
made similar
comments
oral
required
respond
that he “should not be
to the State’s
*20
arguments
litigants
on behalf of other
who under other
may
controversy
circumstances
have an actual
with the
position
fully explicate
State
be in
to more
their
arguments
support
of their
their
contentions
rights
(Defendant’s Sup-
constitutional
will
violated.”
plemental
p. 4.)
Brief,
reversing
The state raised the
issue
Kovach and
eliminating
the third
of the trial for
time
the first
supplemental
in this court and in a
The state
brief.
tardy;
has not
States,
been
it relies on
v.
Jones United
(1983),
-U.S.-,
S.
103
was
Ct. 3043
which
decided
after the certification of this case. But this court
having considered,
does not have the
benefit
counsels’
argued, and refined the
in the
constitutional issues
trial
Gates,
Cause,”
Beyond,
Kamisar,
“Probable
Faith” and
“Good
551,
(1984).
Iowa L. Rev.
601-694
2 See, e.g.,
Inc.,
458,
Park,
v.
451,
State
State Fair
21 Wis. 2d
(1968).
This case is the third case constitutionality of automatic court has considered acquittal. following insanity In each an commitment yet rule, cases, announces a new the court of the three interpretation always of deci- decision on its bases its Supreme not which are Court United States sions of the directly point. on case, Schopf Schubert, ex
In the first
rel.
v.
State
decision,
644,
(1970),
4-3
2d
The Jones case does with insanity acquittal. upon automatic tion of commitment an Con- the Federal The issue in Jones is not whether following an prohibits automatic commitment stitution rather, state- insanity acquittal Court’s own in the but com- acquittee “who was issue, ment of the whether being acquitted hospital upon mitted to a mental insanity, released must be criminal reason of offense longer period hospitalized he has for a been because *21 he con- might prison had been in have than he served Jones, supra, 103 Ct. at-. S. victed.” recognize language implies I auto- in Jones that following insanity acquittal matic commitment an Nevertheless, majority errs think the constitutional. I slavishly in applying language this to Kovach when this squarely issue was not before the Jones court and when argued the fully issue was not before this court. important, majority More the errs when it abandons phase procedure, the required by third whether the not, fully analyzing federal constitution or without the impact of its decision on the crim- administration the justice system inal in this deciding state. whether Kovach, majority reverse should determine the approach this court time, assuming should take at this phase hearing may Kovach third not be constitution- ally required. As a matter of sound administration of justice system, criminal would this court be wiser to retain or to eliminate —at least for the future immediate hearing —the phase commitment as the third of the trial ? might say One of the Kovach elimination phase hearing merely legislative third reinstates legisla- intent commitment, automatic and ture, court, admin- should the sound consider justice system. istration of the criminal I do not find reasoning signi- persuasive. legislature has left (2). questions 971.17(1) ficant in unanswered sec. result, gaps in the As a the court fill these will have to requirements considering statute the constitutional both justice criminal the sound administration of the system. argument strong retaining
A can be made hearing part trial, commitment as until least legislature acts or a case which the issue arises explained contested. As Hansen Justice Robert Kovach, his dissent if commitment even automatic unconstitutional, upon insanity re- acquittal is not phase of quiring a third the commitment require- “proper prudent procedural the trial is a Kovach, third supra, ment.” 2d at 638. The 64 Wis. money hearing arguably time and trial takes less *22 hearing separate state, and does not harm the than a defendant, public. The medical the or the witnesses opportunity to and observe the have had the examine generally plea from the to the time of defendant trial — They period not make an- of time. need substantial purposes of the commitment other examination hearing. phase in The medical witnesses have testified case, testimony may and, not in this additional two as testify necessary. witnesses have to If the medical be generally they phase, available and are at the third just phase in they two. prepared have testified since conducting showing an examination There no is may be in shortly trial, defendant when the after state, an ad- part the offers in another institution defendant, medical vantage state, or the witnesses. retaining Kovach from the benefits of
Aside ques- procedure, Kovach raises several the reversal of out, points of which the tions, none as the state’s brief recognize should that a court majority I addresses. only questions case answer raised and that the provide questions court cannot all answers to giving may future, is but since the court arise advisory analysis prospective on what close effect opinion Kovach, go reversing it and ad- should ahead if a must be answered vise the obvious issues that hearing: post-trial (1) When trial court is conduct hearing automatic commitment should the be held after disease upon of mental reason verdict of at defect; (2) must determined issues What required, hearing, proof what level of that first (3) Does this proof; burden who pass muster? constitutional majority apparently contemplates an in-
sanity acquittal will be trial second commitment, pursuant to sec. followed automatic 1981-82, 971.17(1), subsequent examination, Stats. according' pursuant 971.17(2), to sec. to the timetable *23 51.20(16) established of the sec. Mental Health Act. post-trial hearing But when must the first held be procedure? under this set forth in schedules sec. (c) post-trial hearing 51.20(16) the date of the base hearing.3 previous commitment on the date of the Does phase the at the second of trial the the acquittee responsible by is not mental disease reason of hearing or defect prior constitute a commitment for purpose (16) so, hearing the (c) of If 51.20 ? then no sec. may days be held within 30 of the first the second phase hearing may of the trial. The court hold a after days days phase 30 but within 120 of the second of the days phase trial. After 120 of the of trial second the hearing days the court must a of 30 the hold within filing petition of a Thus, for reexamination. if the phase hearing second prior of the trial constitutes a for purposes of 51.20(16) insanity acquittee sec. an (c), may right hearing days no to have a until 150 after the phase By second many of the trial has concluded. then may passed months crime, when, have since the accord- ing jury, suffering to the the defendant was from a mental disease or defect.
Alternatively, phase may the second of the trial not prior be hearing construed as pur- a commitment for 3 61.20(16) (c) Sec. reads as follows: “(c) 'hearing respect subject If a has to been held with the days filing peti- individual’s commitment within 30 of a of subsection, hearing tion under no shall be held. If such a hearing days filing peti- has not been held 30 a within of the of tion, filing, days but has been held within the court filing shall within of the to be hours order examination completed days by appropriate within 7 s. 61.42 board under hearing may or 61.437. A then 'be held the court’s discretion. days hearing filing, If such a not been held within 120 of the receipt.” hearing days petition a shall be held on the within 30 51.20(16) may
poses (c). interpretation of sec. This be statutory language stretching (2) because sec. 971.17 “reexamination,” refers a to definition re- quires prior Nevertheless, if second examination. prior hearing trial does constitute acquittee purposes 51.20(16) (c), sec. could presumably petition for reexamination immediate- file being ly upon committed, and would be entitled hearing hearing as days, within no other because days commitment would have been held within 120 filing petition. timing emphasize post-trial
I first of the may permit Jones read to because extent insanity acquittal following an automatic commitment require the Federal Con- it must be read to also —under *24 oppor- “every acquittee prompt has stitution —that [a] tunity S recovered.” 103 Ct obtain if he has release whether Court did not decide at 3050. The Jones 50-day applicable in District Columbia period 3049, Ct. at n. constitutionally acceptable. See S. is interval . court decided whether li. Nor laws, hearing our post-trial under prior first to a See long days, may is constitutional. as 120-150 be as supra at 281. first soon the problem of how
In addition to eliminating held, the third hearing be post-trial must following questions: also raises phase of trial hearing post-trial whether Is the initial the issue at mentally in need acquittee presently ill and both required at treatment, as Kovach institutionalized 607), (see or whether phase J. I. the third Cr. no. Wis. dangerous, required as at reexamination acquittee is Gebarski, 2d 90 Wis. hearings State v. under Gebarski? (1979). 280 N.W.2d the ac- proof state or has the burden Who —the quittee? proof required? Beyond the level of
What is a rea- satisfactory Clear, sonable convincing? doubt? and A preponderance of evidence?
These procedural constitutional questions have been fully raised but not addressed the state’s briefs in this majority giving case. Since the what on close analysis prospective, is in effect a advisory opinion eliminating third-phase hearing, Kovach it should give advice as to the pro- obvious constitutional cedural issues that will result. Those issues are not dependent particular on the majori- facts of a case. The ty request supplemental should the state to submit request briefs and should amicus briefs from interested persons addressing these issues. I believe that it would judicial policy be sounder to decide than these issues now courts, attorneys, counsel, force trial state’s defense proceed defendants without direction. prefer, case,
I in this to view post-acquittal the first hearing pragmatically. majority’s approach Because the many problems, leaves too unsolved I conclude ought court not at this time eliminate the Kovach third phase hearing and introduce a new without giving lawyers any guidance and courts as to how to proceed hearing. prefer in this new I would in this lawyers, legisla- case the court courts, alert the and the procedure, ture that the Kovach third commitment although constitutional, may longer required no as a matter of federal likely constitutional I law. think it that in appropriate the near future an case will *25 analysis retaining reasoned eliminating or phase hearing Kovach third and will the issues relating the state procedures has raised to the to be post-trial hearing insanity followed in the first after an acquittal. The court can then It decide these issues. legislature likely (1) may also that the revise sec. 971.17 may (2) requirements and and set forth the for the hearing may adopt proposal post-trial or that it first source, Council, other some which of the Judicial insanity substantially In the defense. alter would interim, proceed can with the Kovach we working fairly well, appears and is constitutional questions. although presents it too Fehring Fehring, Plaintiffs- Timothy M. Susan Respondents Cross-Appellants-Petitioners,
v. Republic Company Republic Financial Insurance Defendants-Appellants Inc., and Cross-
Services, Respondents.
Supreme Court May January 4, Argued No. 1984. 1984. Decided 81 - 2445. 595.) (Also reported in N.W.2d