Effective date note
Par. (cr) is shown as amended eff. 4-1-15 by 2013 Wis. Act 20
. Prior to 4-1-15 it reads:
Effective date text
(cr) If the subject individual is before the court on a petition filed under a court order under s. 938.30 (5) (c) 1. and is found to have committed a violation of s. 940.225 (1) or (2), 948.02 (1) or (2), 948.025, or 948.085, the court shall require the individual to provide a biological specimen to the state crime laboratories for deoxyribonucleic acid analysis.
Except as provided in subd. 2m.
, if the subject individual is before the court on a petition filed under a court order under s. 938.30 (5) (c) 1.
and is found to have committed any violation, or to have solicited, conspired, or attempted to commit any violation, of ch. 940
, or 948
or s. 942.08
, or ss. 943.01
, the court may require the subject individual to comply with the reporting requirements under s. 301.45
if the court determines that the underlying conduct was sexually motivated, as defined in s. 980.01 (5)
, and that it would be in the interest of public protection to have the subject individual report under s. 301.45
If a court under subd. 1m. a.
orders a person to comply with the reporting requirements under s. 301.45
in connection with the commission of a violation, or the solicitation, conspiracy, or attempt to commit a violation, of s. 942.09
, the court may provide that the person be released from the requirement to comply with the reporting requirements under s. 301.45
upon satisfying conditions specified by the court. If the person satisfies the conditions, the court shall notify the department of corrections that the person has satisfied the conditions.
If the subject individual is before the court on a petition filed under a court order under s. 938.30 (5) (c) 1.
and is found to have committed a violation, or to have solicited, conspired, or attempted to commit a violation, of s. 940.22 (2)
, 940.225 (1)
, or (3)
, 948.02 (1)
, 948.11 (2) (a)
, or 948.30
, of s. 940.302 (2)
if s. 940.302 (2) (a) 1. b.
applies, or of s. 940.30
if the victim was a minor and the subject individual was not the victim's parent, the court shall require the individual to comply with the reporting requirements under s. 301.45
unless the court determines, after a hearing on a motion made by the individual, that the individual is not required to comply under s. 301.45 (1m)
In determining under subd. 1m. a.
whether it would be in the interest of public protection to have the subject individual report under s. 301.45
, the court may consider any of the following:
The ages, at the time of the violation, of the subject individual and the victim of the violation.
The relationship between the subject individual and the victim of the violation.
Whether the victim suffered from a mental illness or mental deficiency that rendered him or her temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions.
The probability that the subject individual will commit other violations in the future.
Any other factor that the court determines may be relevant to the particular case.
If the court orders a subject individual to comply with the reporting requirements under s. 301.45
, the court may order the subject individual to continue to comply with the reporting requirements until his or her death.
If the court orders a subject individual to comply with the reporting requirements under s. 301.45
, the clerk of the court in which the order is entered shall promptly forward a copy of the order to the department of corrections. If the finding under s. 938.30 (5) (c) (intro.)
on which the order is based is reversed, set aside or vacated, the clerk of the court shall promptly forward to the department of corrections a certificate stating that the finding has been reversed, set aside or vacated.
If the court makes the disposition under par. (a) 3.
, or 5.
, the court shall order the individual not to possess a firearm, order the seizure of any firearm owned by the individual, and inform the individual of the requirements and penalties under s. 941.29
if the court determines that the individual is prohibited, under 18 USC 922
(g) (4), from possessing a firearm.
If a court orders an individual under subd. 1.
, or ordered an individual under s. 51.20 (13) (cv) 1.
, 2007 stats., not to possess a firearm, the individual may petition that court or the court in the county where the individual resides to cancel the order.
The court considering the petition under subd. 1m. a.
shall grant the petition if the court determines that the circumstances regarding the disposition under par. (a) 3.
, or 5.
and the individual's record and reputation indicate that the individual is not likely to act in a manner dangerous to public safety and that the granting of the petition would not be contrary to public interest.
In lieu of ordering the seizure under subd. 1.
, the court may designate a person to store the firearm until the order has been canceled under subd. 1m. c.
If the court orders a subject individual not to possess a firearm under subd. 1.
or cancels under subd. 1m. c.
an order issued under subd. 1.
or under s. 51.20 (13) (cv) 1.
, 2007 stats., the court clerk shall notify the department of justice of that fact and provide any information identifying the subject individual that is necessary to permit an accurate firearms restrictions record search under s. 175.35 (2g) (c)
. No other information from the subject individual's court records may be disclosed to the department of justice except by order of the court. The department of justice may disclose information provided under this subdivision only as part of a firearms restrictions record search under s. 175.35 (2g) (c)
or under rules the department of justice promulgates under s. 175.35 (2g) (d)
If the court finds that the dangerousness of the subject individual is likely to be controlled with appropriate medication administered on an outpatient basis, the court may direct in its order of commitment that the county department under s. 51.42
or the department may, after a facility evaluates the subject individual and develops an appropriate treatment plan, release the individual on a conditional transfer in accordance with s. 51.35 (1)
, with one of the conditions being that the individual shall take medication as prescribed by a physician, subject to the individual's right to refuse medication under s. 51.61 (1) (g)
, and that the individual shall report to a particular treatment facility on an outpatient basis for evaluation as often as required by the director of the facility or the director's designee. A finding by the court that the allegations under sub. (1) (a) 2. e.
are proven constitutes a finding that the individual is not competent to refuse medication or treatment. The court order may direct that, if the director or his or her designee determines that the individual has failed to take the medication as prescribed or has failed to report for evaluation as directed, the director or designee may request that the individual be taken into custody by a law enforcement agency in accordance with s. 51.39
, and that medication, as prescribed by the physician, may be administered voluntarily or against the will of the individual under s. 51.61 (1) (g)
. A court order under this paragraph is effective only as long as the commitment is in effect in accordance with par. (h)
and s. 51.35 (4)
The petitioner has the burden of proving all required facts by clear and convincing evidence.
The county department under s. 51.42
that receives an individual who is committed by a court under par. (a) 3.
is authorized to place the individual in an approved treatment facility, subject to any limitations which are specified by the court under par. (c) 2.
The county department shall place the subject individual in the treatment program and treatment facility that is least restrictive of the individual's personal liberty, consistent with the treatment requirements of the individual. The county department has ongoing responsibility to review the individual's needs, in accordance with sub. (17)
, and to transfer the person to the least restrictive program consistent with the individual's needs. Placement or transfer under this paragraph is subject to s. 51.06 (3)
Except as provided in subd. 2.
, the first order of commitment of a subject individual under this section may be for a period not to exceed 6 months, and all subsequent consecutive orders of commitment of the individual may be for a period not to exceed one year.
Any commitment ordered under par. (a) 3.
, following proof of the allegations under sub. (1) (a) 2. d.
, may not continue longer than 45 days in any 365-day period.
Except as provided in subd. 2d. b.
, after the 30th day after an order of commitment under par. (a) 3.
following proof of the allegations under sub. (1) (a) 2. e.
, the subject individual may, under the order, be treated only on an outpatient basis.
If a subject individual who is committed under par. (a) 3.
, following proof of the allegations under sub. (1) (a) 2. e.
, and who is being treated on an outpatient basis violates a condition of treatment that is established by the court or a county department under s. 51.42
, the county department or the department may transfer the subject individual under s. 51.35 (1) (e)
to an inpatient facility or to an inpatient treatment program of a treatment facility for a period not to exceed 30 days.
In addition to the provisions under subds. 1.
, no commitment ordered under par. (a) 4.
may continue beyond the inmate's date of release on parole or extended supervision, as determined under s. 302.11
, whichever is applicable.
Twenty-one days prior to expiration of the period of commitment under subd. 1.
, or 2m.
, the department, if the individual is committed to the department, or the county department to which an individual is committed shall file an evaluation of the individual and the recommendation of the department or county department regarding the individual's recommitment with the committing court and provide a copy of the evaluation and recommendation to the individual's counsel and the counsel designated under sub. (4)
. If the date for filing an evaluation and recommendation under this subdivision falls on a Saturday, Sunday or legal holiday, the date which is not a Saturday, Sunday or legal holiday and which most closely precedes the evaluation and recommendation filing date shall be the filing date. A failure of the department or the county department to which an individual is committed to file an evaluation and recommendation under this subdivision does not affect the jurisdiction of the court over a petition for recommitment.
The county department under s. 51.42
to whom the individual is committed under par. (a) 3.
may discharge the individual at any time, and shall place a committed individual in accordance with par. (f)
. Upon application for extension of a commitment by the department or the county department having custody of the subject, the court shall proceed under subs. (10)
. If the court determines that the individual is a proper subject for commitment as prescribed in sub. (1) (a) 1.
and evidences the conditions under sub. (1) (a) 2.
or is a proper subject for commitment as prescribed in sub. (1) (ar)
, it shall order judgment to that effect and continue the commitment. The burden of proof is upon the county department or other person seeking commitment to establish evidence that the subject individual is in need of continued commitment.
Any disposition of a minor under this subsection may extend beyond the age of majority of the individual, if the disposition is otherwise made in accordance with this section.
(14) Transportation; expenses.
The sheriff or any law enforcement officer shall transport an individual who is the subject of a petition and execute the commitment, or any competent relative, friend or member of the staff of a treatment facility may assume responsibility for the individual and transport him or her to the inpatient facility. The director of the county department under s. 51.42
may request the sheriff to provide transportation for a subject individual or may arrange any other method of transportation which is feasible. The county department may provide reimbursement for the transportation costs from its budgeted operating funds.
An appeal may be taken to the court of appeals within the time period specified in s. 808.04 (3)
in accordance with s. 809.30
by the subject of the petition or the individual's guardian, by any petitioner, or by the representative of the public.
Except in the case of alcoholic commitments under s. 51.45 (13)
, any patient who is involuntarily committed for treatment under this chapter, may on the patient's own verified petition, except in the case of a minor who is under 14 years of age, or on the verified petition of the patient's guardian, relative, friend, or any person providing treatment under the order of commitment, request a reexamination or request the court to modify or cancel an order of commitment.
A petition under this subsection may be filed with the court assigned to exercise jurisdiction over probate matters, either for the county from which the patient is committed or for the county in which the patient is detained.
If a hearing has been held with respect to the subject individual's commitment within 30 days of the filing of a petition under this subsection, no hearing shall be held. If such a hearing has not been held within 30 days of the filing of a petition, but has been held within 120 days of the filing, the court shall within 24 hours of the filing order an examination to be completed within 7 days by the appropriate county department under s. 51.42
. A hearing may then be held in the court's discretion. If such a hearing has not been held within 120 days of the filing, a hearing shall be held on the petition within 30 days of receipt.
Reexaminations under this subsection are subject to the standards prescribed in sub. (13) (g)
If the court determines or is required to hold a hearing, it shall thereupon proceed in accordance with sub. (9) (a)
. For the purposes of the examination and observation, the court may order the patient confined in any place designated in s. 51.15 (2)
If a patient is involuntarily committed and placed in a hospital, a notice of the appointment of the examining physicians and copies of their reports shall be furnished to such hospital by the court.
Upon the filing of the examiners' reports the court shall fix a time and place of hearing and cause reasonable notice to be given to the petitioner, the treatment facility, the patient's legal counsel and the guardian of the patient, if any, and may notify any known relative of the patient. Subsections (10)
shall govern the procedure to be used in the conduct of the hearing, insofar as applicable. The privileges provided in ss. 905.03
shall apply to reexamination hearings.
All persons who render services in such proceedings shall receive compensation as provided in sub. (18)
and all expenses of such proceedings shall be paid and adjusted as provided in sub. (18)
Subsequent reexaminations may be had at any time in the discretion of the court but may be compelled after 120 days of the preceding examination in accordance with this subsection. All petitions for reexamination must be heard within 30 days of their receipt by the court.
This subsection applies to petitions for reexamination that are filed under ch. 971
, but not s. 971.17
, and ch. 975
, except that the petitions shall be filed with the committing court.
Any order of a county department under s. 51.42
is subject to review by the court assigned to exercise probate jurisdiction upon petition under this subsection.
The pendency of an appeal in either the court of appeals or the supreme court does not deprive the circuit court of jurisdiction to conduct reexamination proceedings under this section with respect to the individual who is the subject of the appeal.
(17) Right to reevaluation.
With the exception of alcoholic commitments under s. 51.45 (13)
, every patient committed involuntarily to a board under this chapter shall be reevaluated by the treatment staff or visiting physician within 30 days after the commitment, and within 3 months after the initial reevaluation, and again thereafter at least once each 6 months for the purpose of determining whether such patient has made sufficient progress to be entitled to transfer to a less restrictive facility or discharge. The findings of such reevaluation shall be written and placed with the patient's treatment record, and a copy shall be sent to the board which has responsibility for the patient and to the committing court.
(18) Fees of examiners, witnesses; expenses of proceedings. 51.20(18)(a)(a)
Unless previously fixed by the county board of supervisors in the county in which the examination is held, the examiners shall receive a fee as fixed by the court for participation in commitment proceedings, and reasonable reimbursement for travel expenses.
Witnesses subpoenaed before the court shall be entitled to the same fees as witnesses subpoenaed before the court in other cases.
Expenses of the proceedings from the presentation of the statement of emergency detention or petition for commitment to the conclusion of the proceeding shall be allowed by the court and paid by the county from which the subject individual is detained, committed, or released, in the manner that the expenses of a criminal prosecution are paid, as provided in s. 59.64 (1)
If the subject individual has a legal residence in a county other than the county from which he or she is detained, committed or discharged, that county shall reimburse the county from which the individual was detained, committed or discharged for all expenses under pars. (a)
. The county clerk on each July 1 shall submit evidences of payments of all such proceedings on nonresident payments to the department, which shall certify such expenses for reimbursement in the form of giving credits to the detaining, committing or discharging county and assessing such costs against the county of legal residence or against the state at the time of the next apportionment of charges and credits under s. 70.60
Prior to filing a petition for commitment of an inmate under sub. (1) (ar)
the department shall:
Attempt to use less restrictive forms of treatment with the individual. Less restrictive forms of treatment shall include, but are not limited to, voluntary treatment within the prison or voluntary transfer to a state treatment facility, including an admission which meets the requirements of s. 51.10 (4m)
Ensure that the individual has been fully informed about his or her treatment needs, the mental health services available to him or her and his or her rights under this chapter and that the individual has had an opportunity to discuss his or her needs, the services available to him or her and his or her rights with a licensed physician or a licensed psychologist.
Establishing standards for the use of psychotropic drugs on prisoners in a state prison and inmates committed under sub. (1) (ar)
Establishing standards and procedures for use of and periodic review of the use of psychotropic drugs on inmates in a county jail or house of correction who are being treated in the jail or house of correction under a commitment based on a petition under sub. (1) (a)
Providing for the periodic review and evaluation of the appropriateness of and the need for the use of psychotropic drugs on, and the need for the continuation of treatment for, each inmate committed under sub. (1) (ar)
History: 1975 c. 430
; 1977 c. 26
; 1977 c. 187
; 1977 c. 428
; 1977 c. 447
; Sup. Ct. Order, 83 Wis. 2d xiii; 1979 c. 32
; Sup. Ct. Order, eff. 1-1-80; 1979 c. 110
s. 60 (1)
; 1979 c. 175
; 1979 c. 300
; 1981 c. 20
; 1981 c. 390
; 1983 a. 27
; 1983 a. 474
; 1985 a. 29
, 3200 (56)
, 3202 (56)
; 1985 a. 139
; 1987 a. 27
; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1987 a. 366
; 1989 a. 31
; 1993 a. 98
; 1995 a. 77
; Sup. Ct. Order No. 96-08
, 207 Wis. 2d xv (1997); 1997 a. 35
; 1999 a. 83
; 2001 a. 16
; 2001 a 38, 61, 109; 2003 a. 33
; 2005 a. 22
; 2007 a. 20
; 2009 a. 137
; 2013 a. 20
See also s. DOC 314.01
, Wis. adm. code.
NOTE: 1987 Wis. Act 366
, which amended this section, contains notes by the Legislative Council following many of the statutes affected.
NOTE: 1987 Wis. Act 394
, which affected this section, contains a prefatory note and notes following the sections.
Judicial Council Committee's Note, 1981: The final sentence of sub. (1) (am) allows the court to consider the subject individual's conduct during or subsequent to the crime as "recent" for purposes of involuntary civil commitment under this section, if the individual is proceeded against during, or immediately upon discharge from, a commitment for examination or treatment for incompetency to proceed as a criminal defendant. The relevancy of evidence of the individual's conduct prior to the crime is to be determined by the court. The revised statute requires the subject individual's dangerousness to be evidenced by acts, attempts, threats, omissions or behavior referred to in sub. (1) (a) 2. Prior law allowed commitment of such an individual upon a showing that there was a substantial likelihood, based on the treatment record, that he or she would be a proper subject for commitment if treatment were withdrawn. [Bill 765-A]
Judicial Council Note, 1988: The amendment to sub. (2) allows notice of hearings to be given by telephone. The time at which such notice is given and the person to whom it is given must be noted in the case file. [Re Order effective Jan. 1, 1988]
The role of an attorney appointed under sub. (4), 1975 stats., [now (3)] is discussed. State ex rel. Memmel v. Mundy, 75 Wis. 2d 276
, 249 N.W.2d 573
The due process standard for hearings under this section is more flexible than the standard for criminal proceedings. In Matter of Parham, 95 Wis. 2d 21
, 289 N.W.2d 326
(Ct. App. 1979).
The 14-day time limit in sub. (7) (c) is mandatory and refers to calendar days, not business days. State ex rel. Lockman v. Gerhardstein, 107 Wis. 2d 325
, 320 N.W.2d 27
(Ct. App. 1982).
A person may be a proper subject for treatment even though a cure is unlikely. In Matter of Mental Condition of C.J. 120 Wis. 2d 355
, 354 N.W.2d 219
(Ct. App. 1984).
The 45-day limit in sub. (13) (g) 2. applies only to an original commitment order and does not bar subsequent extensions of the order. In Matter of M.J. 122 Wis. 2d 525
, 362 N.W.2d 190
(Ct. App. 1984).
The use of telephone testimony by physicians did not a violate the petitioner's due process rights. In Matter of W.J.C. 124 Wis. 2d 238
, 369 N.W.2d 162
(Ct. App. 1985).
Hearings under sub. (12) are open unless the court grants the subject individual's motion for closure. Wisconsin State Journal v. Circuit Court for Dane County, 131 Wis. 2d 515
, 389 N.W.2d 73
(Ct. App. 1986).
An individual's counsel may not withdraw a jury demand without the individual's consent. In Matter of S.B., 138 Wis. 2d 409
, 406 N.W.2d 408
Sub. (13) (c) 2. does not permit the committing court to specify a treatment method in addition to the facility. In Matter of J.R.R. 145 Wis. 2d 431
, 427 N.W.2d 137
(Ct. App. 1988).
Under sub. (13) (g) 3. an individual has a right to a jury trial in proceedings to extend a commitment. In Matter of Mental Condition of G.O.T. 151 Wis. 2d 629
, 445 N.W.2d 697
(Ct. App. 1989).
There is a bright-line rule prohibiting a circuit court from accepting petitions drafted by persons not authorized to do so under sub. (4). In Matter of S.P.B. 159 Wis. 2d 393
, 464 N.W.2d 102
(Ct. App. 1990).
The services of appointed counsel for non-indigent individuals in civil commitment hearing should be paid for by the county. State ex. rel. Chiarkas v. Skow, 160 Wis. 2d 123
, 465 N.W.2d 625
The assurance of representation by adversary counsel under sub. (3) does not preclude self-representation when a waiver of counsel is knowingly and competently made. In Matter of Condition of S.Y. 162 Wis. 2d 320
, 469 N.W.2d 836
The sub. (16) (c) provision for a hearing on a petition within 30 days of filing is directory and violation is not grounds for release. State v. R.R.E. 162 Wis. 2d 698
, 470 N.W.2d 283