Defense win: COA holds revocation of NGI acquittee for rule violations under § 971.17(3)(e) is unconstitutional
State v. Desmond J. Wilhite, 2024AP2177-CR, 9/25/25, District IV (recommended for publication); case activity (including briefs)
COA agrees with Wilhite that Wis. Stat. § 971.17(3)(e) is facially unconstitutional to the extent that it permits a circuit court to revoke an NGI acquittee’s conditional release and to commit the acquittee to institutional care based solely on the violation of a court-ordered condition or department rule without proof of current dangerousness. It also concludes that the unconstitutional provisions in § 971.17(3)(e) are severable, and leaves in place the remainder of the statute.
In September 2022, Wilhite pleaded not guilty by reason of mental disease or defect (NGI) to the threat to a law enforcement officer and was committed to the Department of Health Services for three years. (¶4). The court conditionally released Wilhite in February 2023, based on a determination that he was not dangerous. (¶5). The department then filed and withdrew two petitions to revoke Wilhite’s conditional release before ultimately pursuing a third petition in January 2024. (¶¶6-8). The state asked the court to revoke Wilhite’s conditional release due to rule violations. (¶9). After a hearing, the court determined that the state met its burden to show by clear and convincing evidence that Wilhite violated his rules, noted that it did not have to find dangerousness and granted the petition. (¶10).
On appeal, Wilhite argues that § 971.17(3)(e) is facially unconstitutional to the extent that it does not require proof of dangerousness to revoke the conditional release of an NGI acquittee and to commit the acquittee to institutional care. COA first addresses and rejects the state’s arguments that Wilhite forfeited his facial constitutional challenge and that the court lacks competency to hear that challenge. It then explains its conclusion that § 971.17(3)(e) is facially unconstitutional and rejects the state’s arguments to the contrary. Finally, it addresses the remedy.
Forfeiture and Competency
Wilhite did not raise his facial constitutional challenge to § 971.17(3)(e) in the circuit court, nor did he file a motion for postdisposition relief. (¶13). However, a facial challenge to the constitutionality of a statute cannot be waived or forfeited. State v. Bush, 2005 WI 103, ¶17, 283 Wis. 2d 90, 699 N.W.2d 80. (¶14).
As to Wilhite’s failure to file a motion for postdisposition relief, the state argues that, even if this does not deprive COA of subject matter jurisdiction, his noncompliance with Wis. Stat. § 971.17(7m) deprives the court of competency to decide his facial constitutional challenge. The state contends that § 971.17(7m) specifies the claims a litigant may raise on appeal: a challenge to the sufficiency of the evidence, an issue previously raised, and a claim raised through a motion for postdisposition relief, and that “it is a rule of statutory competency because it limits what issues [COA] can consider on appeal.” (¶16). The state then only cites cases that address a circuit or municipal court’s competency to hear a case, none of which address § 971.17(7m), and fails to explain how those cases apply to COA’s competency to hear this appeal. Accordingly, COA rejects the state’s argument as undeveloped. (¶17).
The state also argues that COA should not review Wilhite’s constitutional challenge because he failed to comply with Wis. Stat. § 806.04(11), as he did not serve the legislature before the state filed its response brief. (¶18). COA notes that the AG’s office does not suggest that the state “has been in any way prejudiced based on a lack of sufficient notice or service by Wilhite.” (¶19). Given that the AG’s office represents the state in this case, the AG “was served with ‘a copy of the proceeding’ challenging the facial constitutionality of Wis. Stat. § 971.17(3)(e) when Wilhite electronically filed his appellant’s brief.” Thus, the purpose of the service rule, which is “to give the attorney general the opportunity to defend the statute … against a claim of unconstitutionality,” was fulfilled when the AG filed its response brief. (¶20). For support, the state cites a case in which the AG’s office did not appear on behalf of the state, nor was the state a party. That is not what occurred here, and COA sees no reason for refusing to consider the merits based on a purported failure to serve the AG. (¶21).
Wilhite conceded that he had not served the legislature officials at the time the response brief was filed, but asserted that he later corrected the oversight. Wilhite argues that § 806.04(11) “does not prescribe the method or timing for providing notice to the legislature” and service should be considered timely because the assembly, senate, and legislature may intervene at any time pursuant to Wis. Stat. § 13.365. The state cited no legal authority for its argument on the timing of service, and the statute does not set a deadline. Therefore, COA concludes that Wilhite complied with the requirements of the statute. (¶22).
Facial Constitutional Challenge
Wilhite argues that § 971.17(3)(e) is facially unconstitutional to the extent that it permits a court to revoke an NGI acquittee’s conditional release and commit the acquittee to institutional care without a finding of dangerousness pursuant to Jones v. United States, 463 U.S. 354 (1983), and Foucha v. Louisiana, 504 U.S. 71 (1992). Specifically, quoting Foucha, 504 U.S. at 77, Wilhite argues that “without proof that a civil committee is currently ‘both mentally ill and dangerous,’ confinement stemming from the commitment violates due process.” (¶24). “A statute enjoys a presumption of constitutionality.” State v. Smith, 2010 WI 16, ¶8, 323 Wis. 2d 377, 780 N.W.2d 90 (citation omitted). To succeed on a facial constitutional challenge, the party challenging the statute “must show that the law cannot be enforced ‘under any circumstances.'” State v. Wood, 2010 WI 17, ¶13, 323 Wis. 2d 321, 780 N.W.2d 63 (quoted source omitted).
The court describes the relevant parts of the statutory scheme governing the commitment, conditional release, and revocation of conditional release of NGI acquittees (¶¶26-29), and states:
We pause to observe that, under this statutory scheme, whenever the State seeks to commit an NGI acquittee who has been conditionally released, the circuit court has necessarily made a previous finding (as of the time of the conditional release) that the State did not present clear and convincing evidence that the NGI acquittee is dangerous, whether or not the State attempted to make such a showing. WIS. STAT. § 971.17(3)(a), (4)(d).
(¶30).
The court summarizes Jones and Foucha. (¶¶32-37). It explains that Jones clarified that “[t]he committed acquittee is entitled to release when [the acquittee] has recovered [the acquittee’s] sanity or is no longer dangerous.” 463 U.S. at 368. Foucha considered whether a state could continue to commit an acquittee who was no longer mentally ill but still dangerous, and held that to do so is unconstitutional. 504 U.S. at 78. The Court reaffirmed the rule from Jones, that consistent with due process, an NGI acquittee “may be held as long as [the acquittee] is both mentally ill and dangerous, but no longer.” Id. at 77.
COA then addresses Wisconsin case law, describing State v. Randall, 192 Wis. 2d 800, 532 N.W.2d 94 (1995), which interpreted Foucha to hold that, when there is not a limit on the maximum duration of the commitment, it is permissible to commit an NGI acquittee only until the acquittee “is either no longer mentally ill or no longer dangerous.” 192 Wis. 2d at 840-41. (¶¶38-39).
Reading Jones, Foucha and Randall together, COA holds that after the initial period of commitment and following conditional release, dangerousness must be established as a matter of fact. (¶40). Thus, to avoid violating due process, a circuit court may not revoke the conditional release of an acquittee without making a new finding of dangerousness. “This is because in all such cases the court has previously determined that there was not clear and convincing evidence that the acquittee is dangerous.” (¶41). Accordingly COA concludes that § 971.17(3)(e) is facially unconstitutional to the extent that it permits the commitment to institutional care of a conditionally released NGI acquittee based solely on a finding that “any rule or condition of release has been violated,” without a finding of dangerousness. (¶42).
Next, COA addresses the state’s substantive arguments. It begins by rejecting the state’s assertion that Wilhite’s challenge is based on “the flawed assumption that, as an [NGI] acquittee, he has the same constitutional rights as a person who has been committed civilly” as undeveloped. (¶43). It then addresses the “more salient” aspects of the state’s arguments on civil commitments “as best [it] understand[s] them.” (¶44). COA agrees with the state that the fact of being found NGI in a criminal case demonstrates a degree of dangerousness; however, when a court has determined that an acquittee is no longer dangerous, due process requires a finding of dangerousness before commitment can again be ordered. (¶44).
COA also rejects the state’s suggestion that the due process protections in Jones and Foucha should not apply to NGI acquittees. The state identifies several differences between the statutory scheme at issue in Foucha, and Wisconsin’s, but they are irrelevant to the issue in this case. (¶¶45-49).
The court analyzes at length a Colorado case that the state highlights. It concludes that the Colorado case is not persuasive here because Wisconsin’s statute does not include a requirement, as Colorado’s does, that a condition or rule that applies to an NGI acquittee’s release be substantially related to the acquittee’s mental illness in a way that implicates dangerousness. (¶¶50-54).
The state also argues that Randall stands for the proposition that committing an NGI acquittee after conditional release for a limited duration without a finding of dangerousness does not violate due process. COA reasons that the state’s argument is based on a tortured reading of various parts of Randall, which takes the language “completely out of context” as Randall holds the opposite–that confinement based only on dangerousness may satisfy due process under certain narrow circumstances. (¶¶55-56).
Remedy
COA concludes that, given the law’s presumption in favor of severability, the portions of § 971.17(3)(e) referring to condition or rule violations should be severed, leaving the remainder of the statute unaffected. Removing the unconstitutional portions, COA explains that “[t]he result is that the department may take a conditionally released NGI acquittee into custody based on an allegation of dangerousness, the State must show dangerousness by clear and convincing evidence, and the court may commit the NGI acquittee if it finds dangerousness.” (¶61).
As to Wilhite’s case, COA determines that remand to allow the state to attempt to prove dangerous is not appropriate. The state never alleged dangerousness in the circuit court, and Wilhite was already discharged from his commitment. Accordingly, it remands to the circuit court with directions to vacate its order revoking Wilhite’s conditional release. (¶63).