Winnebago County v. Christopher S.

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Appeal No. 2014AP1048 Cir. Ct. No. 2012ME572

WISCONSIN COURT OF APPEALS
DISTRICT i

INTHE MATTER OF THE MENTAL COMMITMENT OF
CHRISTOPHER S.:

WINNEBAGO COUNTY, FILED

PETITIONER-RESPONDENT,
APR 01, 2015

V.
Diane M. Fremgen
Clerk of Supreme Court

CHRISTOPHER S.,

RESPONDENT-APPELLANT.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Brown, C,J., Neubauer, P.J., and Gundrum, J.

This appeal raises an important issue of first impression regarding the
constitutionality of a mental health treatment statute related to inmates within the
Wisconsin state prison system. The question presented is whether WIS. STAT.
§ 51.20(1)(ar) (2013-14)! is facially unconstitutional on substantive due process
grounds because it does not require that a court find an inmate dangerous prior to
ordering the inmate civilly committed for treatment and authorizing the
involuntary medication of the inmate. A definitive answer to this question from

' All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise
noted.

No. 2014AP1048
2
the Wisconsin Supreme Court, along with a clear statement as to the appropriate
level of constitutional scrutiny to apply in such a case, would be of great value to
the bench, the bar, the legislature, and the citizenry. Thus, we certify this appeal
to the Wisconsin Supreme Court pursuant to WIS. STAT. RULE 809.61.
As a threshold matter, Christopher S. acknowledges he did not raise his
facial challenge until the postjudgment stage of the proceedings, but asserts that
review is nonetheless appropriate because “facial challenges to the
constitutionality of a statute cannot be forfeited,” citing State v. Bush, 2005 WI
103, ¶¶14-19, 283 Wis. 2d 90, 699 N.W.2d 80. In its appellate brief, the County
agrees the issue before us should be addressed and requests publication of any
decision “because the case presents a question of first impression” which is of
“substantial and continuing public interest.” In its nonparty brief, the State does
not challenge the appropriateness of appellate review.
A facial challenge to the constitutionality of a statute implicates subject
matter jurisdiction, and such challenges may be raised for the first time on appeal.
Id., ¶¶17, 19. Furthermore, because the statute is challenged on its face, we do not
recite the particular facts of Christopher’s commitment, but instead immediately
proceed to describe the legal issue. See, e.g., State v. Nelson, No. 2005AP810,
certification to the Wisconsin Supreme Court (WI App Mar. 2, 2006).
WISCONSIN STAT. § 51.20(1)(a) and (13)(a) empower a circuit court to
order the involuntary civil commitment for treatment of an individual generally if
the individual is found to be mentally ill, a “proper subject for treatment,”2 and
2 A “proper subject for treatment” is “defined to mean that ‘rehabilitation’ must be
possible for the individual.” Fond du Lac Cnty. v. Helen E.F., 2012 WI 50, ¶49, 340 Wis. 2d
500, 814 N.W.2d 179 (Abrahamson, C.J., concurring) (citing WIS. STAT. § 51.01(17)).

No. 2014AP1048
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“dangerous” as defined in § 51.20(1)(a)2. Section 51.20(1)(ar) applies specifically
to “inmate[s] of a state prison.” Together with § 51.20(13)(a)4., § 51.20(1)(ar)
empowers a court to order the involuntary civil commitment for treatment of an
inmate based upon a petition that may allege the inmate is mentally ill and a
“proper subject for” and “in need of” treatment and must allege “appropriate less
restrictive forms of treatment have been attempted” but unsuccessful, the inmate
“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 WIS. STAT. ch. 51, and
the inmate “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.” Once a court orders an inmate civilly committed, § 51.20(13)(a)4.
“authorize[s] the transfer of the inmate to a state treatment facility or if inpatient
care is not needed authorize[s] treatment on an outpatient basis in the prison.”
Under these provisions then, an inmate may be civilly committed for
treatment, and either treated in a prison or transferred to a state treatment facility
for treatment, without a court finding that the inmate is dangerous.3 Further, under
WIS. STAT. § 51.61(1) and (1)(g), an individual who is civilly committed retains
the right “to refuse medication and treatment” and “exercise informed consent
with regard to all medication and treatment” unless a court determines, upon
motion following a hearing, that the individual “is not competent to refuse
3 Neither the County nor the State suggests WIS. STAT. § 51.20(1)(ar) and (13)(a)4.
contain either an explicit or implicit requirement of a finding of dangerousness.

No. 2014AP1048
4
medication or treatment.”4 These provisions also require no showing of
dangerousness.
Christopher contends WIS. STAT. § 51.20(1)(ar) is facially unconstitutional
on substantive due process grounds because it does not require a finding of
dangerousness for a civil commitment. He continues, “[o]nce an inmate is civilly
committed under [§] 51.20(1)(ar) involuntary medication may be ordered under
WIS. STAT. § 51.61(1)(g) without a finding of dangerousness at any point.” He
asserts that “[i]ndividuals who are civilly committed may not have the option of
refusing unwanted examinations or treatments, which often carry a slew of short-
term and long-term negative side effects,” and “even after a commitment has
expired, individuals continue to bear social and legal stigmas” therefrom. Other
than disagreeing with Christopher on the constitutionality of § 51.20(1)(ar),
neither the County nor the State disputes any of Christopher’s above points.
4 Under WIS. STAT. § 51.61(1)(g), an individual is “not competent to refuse medication
or treatment” if:
because of mental illness …, and after the advantages and
disadvantages of and alternatives to accepting the particular
medication or treatment have been explained to the individual,
one of the following is true:
a. The individual is incapable of expressing an understanding
of the advantages and disadvantages of accepting medication or
treatment and the alternatives.
b. The individual is substantially incapable of applying an
understanding of the advantages, disadvantages and alternatives
to his or her mental illness, … in order to make an informed
choice as to whether to accept or refuse medication or treatment.
Sec. 51.61(1)(g)4. In this case, at the same trial that resulted in Christopher’s civil commitment,
the circuit court found that Christopher was “not competent to refuse psychotropic medication or
treatment,” based upon subd. para. b.

No. 2014AP1048
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To be unconstitutional on substantive due process grounds, a statute must
“unjustifiably abridge[] the Constitution’s fundamental constraints … [on] …
what government may do to people under the guise of the law.” State v. Laxton,
2002 WI 82, ¶10 n.8, 254 Wis. 2d 185, 647 N.W.2d 784 (citation omitted). A
challenge to the constitutionality of a statute is a question of law reviewed de
novo. State v. Lohmeier, 196 Wis. 2d 432, 437, 538 N.W.2d 821 (Ct. App. 1995),
rev’d on other grounds, 205 Wis. 2d 183, 556 N.W.2d 90 (1996). Such a
challenge “must overcome a strong presumption of constitutionality.” State v.
Thiel, 188 Wis. 2d 695, 706, 524 N.W.2d 641 (1994). “Every presumption must
be indulged to sustain the law if at all possible and, wherever doubt exists as to a
legislative enactment’s constitutionality, it must be resolved in favor of
constitutionality.” State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d
32, 46, 205 N.W.2d 784 (1973). “In a facial challenge, the ‘challenger must
establish, beyond a reasonable doubt, that there are no possible applications or
interpretations of the statute which would be constitutional.’” State v. Pocian,
2012 WI App 58, ¶6, 341 Wis. 2d 380, 814 N.W.2d 894 (citation omitted).
Constitutional Scrutiny Standard
The County argues that “[WIS. STAT. §] 51.20(1)(ar) furthers a compelling
state interest in providing treatment to mentally ill inmates in its prisons.”
(Capitalization omitted.) Quoting our decision in State v. Olson, 2006 WI App
32, ¶4, 290 Wis. 2d 202, 712 N.W.2d 61, it notes, “[e]ven where the statutory
scheme impinges upon a fundamental liberty, as commitment admittedly does,
[courts] will not invalidate it on substantive due process grounds as long as it is
narrowly tailored to a compelling government interest.” (Second alteration in
brief.) The State argues that rational basis, as opposed to strict scrutiny, review
applies. Christopher fails to argue for a particular level of scrutiny but instead

No. 2014AP1048
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asserts that “even if rational basis review applies, [§] 51.20(1)(ar) violates
substantive due process.”
In State v. Dennis H., 2002 WI 104, ¶¶7, 8, 11, 255 Wis. 2d 359, 647
N.W.2d 851, Dennis’s father, psychiatrist and case manager together sought and
obtained the mental commitment of Dennis, who was not an inmate, based on
WIS. STAT. § 51.20(1)(a)2.e. (1999-2000), the fifth standard of dangerousness
under § 51.20. Dennis appealed, contending the fifth standard was
unconstitutional because it (1) was vague and overbroad, (2) violated equal
protection by allowing for commitment under circumstances unlike those provided
for in the other four dangerousness standards of § 51.20, and (3) “violate[d] his
right to substantive due process by allowing commitment without requiring
evidence of a risk of imminent physical harm to himself or others.” Dennis H.,
255 Wis. 2d 359, ¶¶11, 15. In addressing Dennis’s due process challenge, the
Wisconsin Supreme Court established a deferential standard of review with regard
to mental health issues generally, stating “[b]ecause of ‘the uncertainty endemic to
the field of psychiatry … particular deference must be shown to legislative
decisions in that arena.’ Accordingly, courts generally proceed with restraint in
this complex, delicate, and policy-sensitive area, deferring to the procedural
scheme the legislature has chosen.” Id., ¶13 (citation omitted; omission in
original).
In the context of reviewing a court order for involuntary administration of
antipsychotic medication to an inmate covered by a state prison policy, the United
States Supreme Court also applied a deferential standard of review. See
Washington v. Harper, 494 U.S. 210, 224 (1990). In Harper, the Court reiterated
its recognition of “the State’s interests in prison safety and security.” Id. at 223
(citing Turner v. Safley, 482 U.S. 78, 89 (1987)). The Court stated that “the

No. 2014AP1048
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proper standard for determining the validity of a prison regulation claimed to
infringe on an inmate’s constitutional rights is to ask whether the regulation is
‘reasonably related to legitimate penological interests.’” Id. (quoting Turner, 482
U.S. at 89). “This is true,” the Court continued, “even when the constitutional
right claimed to have been infringed is fundamental, and the State under other
circumstances would have been required to satisfy a more rigorous standard of
review.” Id. The court held that the standard was “reasonableness.” Id.
The liberty interest at issue with WIS. STAT. § 51.20(1)(ar) appears less
significant than the liberty interest in Dennis H. in that a person affected by
§ 51.20(1)(ar)—“an inmate of a state prison”—does not lose, as the State puts it,
his or her “freedom to live independently in open society” because the person is
“not moved from the outside world into a secure correctional institution” but, if
transferred, is instead “moved from one secure correctional institution into another
secure correctional institution.” Further, § 51.20(1)(ar) relates to both mental
health and the correctional setting. Rational basis review appears to be the correct
standard under which to review § 51.20(1)(ar); however, a clear statement on the
standard from the Wisconsin Supreme Court would be of value.
Constitutionality of WIS. STAT. § 51.20(1)(ar)
In Harper, the Court considered “what factual circumstances must exist
before the State may administer antipsychotic drugs” to a prisoner against his will.
Harper, 494 U.S. at 220. As a prisoner, Harper was confined in a penal institution
specifically designated and maintained for the diagnosis and treatment of
convicted felons with serious mental disorders. Id. at 214. The Court was
reviewing a state prison policy that permitted prisoners at the facility to be treated
with antipsychotic drugs against their will if the state established that the prisoner

No. 2014AP1048
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suffered from a mental disorder that was “likely to cause harm if not treated” and
if the medication sought was “in the prisoner’s medical interests.” Id. at 222.
The Court noted that a prisoner “possesses a significant liberty interest in
avoiding the unwanted administration of antipsychotic drugs under the Due
Process Clause of the Fourteenth Amendment.” Harper, 494 U.S. at 221-22. It
also recognized that “a prison environment … ‘by definition,’ is made up of
persons with ‘a demonstrated proclivity for antisocial criminal, and often violent,
conduct,’” id. at 225 (citation omitted), and that prison safety and security are well
established by case law as state interests to be legitimately and necessarily
considered, id. at 223. The Court concluded the particular prison regulation before
it was “a rational means of furthering the State’s legitimate objectives,” and held:
[G]iven the requirements of the prison environment, the
Due Process Clause permits the State to treat a prison
inmate who has a serious mental illness with antipsychotic
drugs against his will, if the inmate is dangerous to himself
or others and the treatment is in the inmate’s medical
interest.
Id. at 226-27 (emphasis added). In so holding, the Court had already taken into
account that the question before it related to prisoners—“persons with ‘a
demonstrated proclivity for antisocial criminal, and often violent, conduct,’”—and
that safety and security in the prison environment are important state interests. Id.
at 225 (citation omitted). As such, the Harper Court’s holding appears to indicate
that before an inmate can be treated with antipsychotic drugs against his or her
will, the government must demonstrate the inmate poses a danger to him-/herself
or others.
The State concedes Harper “require[s] a dangerousness showing … where
an involuntary mental health treatment consisting of antipsychotic medication is

No. 2014AP1048
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proposed for an incarcerated inmate.” Despite that concession, however, the State
contends WIS. STAT. § 51.20(1)(ar) is constitutional because it is “rationally
related to the legitimate goal of providing mental health services to individuals
already confined in secure correctional facilities.” However, this “legitimate goal”
was likewise before the Supreme Court in Harper; yet the Court nonetheless
indicated that, before antipsychotic medications may be administered to a prisoner
against his or her will, there must be a showing not only that “the treatment is in
the inmate’s medical interest,” but also that “the inmate is dangerous to himself or
others.” Harper, 494 U.S. at 227.
Twenty years after Harper, the Wisconsin Supreme Court decided State v.
Wood, 2010 WI 17, 323 Wis. 2d 321, 780 N.W.2d 63, in which Wood had been
found not guilty of a crime by reason of mental disease or defect, was committed
to the custody of the department of health and family services, and was placed at
Mendota Mental Health Institute. Id., ¶1. The circuit court had granted the State’s
request for an order permitting the department to administer psychotropic
medication to Wood without his consent under WIS. STAT. § 971.17(3)(c). Wood,
323 Wis. 2d 321, ¶¶2, 8. Among other challenges, Wood argued that
§ 971.17(3)(c) was facially unconstitutional on substantive due process grounds
because it permitted a person to be medicated against his or her will without a
finding of dangerousness. Wood, 323 Wis. 2d 321, ¶¶11, 14. The Wood court
noted that the Harper Court had concluded that Harper had a “‘significant’ liberty
interest in refusing the administration of antipsychotic drugs” but also had
indicated that that right was “tempered by other interests, including [Harper’s]
medical needs and the legitimate needs of the institution in maintaining security
and safety within its prisons.” Wood, 323 Wis. 2d 321, ¶20.

No. 2014AP1048
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The Wood court analyzed Harper and two subsequent Supreme Court
decisions, Riggins v. Nevada, 504 U.S. 127 (1992), and Sell v. United States, 539
U.S. 166 (2003), and determined that they “compel[led] the following
conclusions”:
First, a person competent to make medical decisions has a
“significant” liberty interest in avoiding forced medication
of psychotropic drugs. See Harper, 494 U.S. at 221.
Second, in light of that interest, the state may not order the
administration of psychotropic drugs to a mentally ill
individual unless it demonstrates an overriding justification
to administer the drugs and a determination of medical
appropriateness. See Riggins, 504 U.S. at 135. The
incursions that substantive due process permits largely
depend on what the state’s overriding interest entails. For
example, in the context of a mentally ill inmate or detainee
in a jail or prison, where the safety and security of the
institution is the state’s interest, one way the state can
establish an overriding justification addressing that interest
is to demonstrate that the person is dangerous to self or
others and, considering less intrusive alternatives, that
medication is in the person’s medical interest. See [id.] at
134-35; Harper, 494 U.S. at 225-26. In other contexts,
however, such as when the state seeks to administer
medication to render a nonviolent detainee competent to
stand trial, dangerousness need not be demonstrated;
rather, a finding that the administration of drugs will affect
the defendant’s rights to a fair trial is sufficient. See Sell,
539 U.S. at 180-81.
Wood, 323 Wis. 2d 321, ¶25 (emphasis added). The Wood court’s use of the
words “one way” suggests it may not be an absolute necessity for the government
to demonstrate an inmate is dangerous before a court orders medication of the
inmate against his or her will. See id. In the very next sentence, however, the
court states that “[i]n other contexts, however, … dangerousness need not be
demonstrated.” See id. This language would seem to indicate that in the
immediately preceding “context”—i.e., “the context of a mentally ill inmate or
detainee in a jail or prison”—the government does need to demonstrate
dangerousness.

No. 2014AP1048
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The Wood court further indicated that “institutions holding individuals
adjudged NGI have a somewhat different interest than a prison would” because
such institutions treat individuals who have been found, because of mental illness,
to lack “substantial capacity either to appreciate the wrongfulness of his or her
conduct or conform his or her conduct to the requirements of law.” Id., ¶32
(quoting WIS. STAT. § 971.15(1)). Because of this, the court continued, such
institutions have an additional interest “in treating the underlying mental illness in
order to prevent more criminal behavior and prepare the individual for conditional
release and for eventual release from the commitment.” Id. The court later stated
that “[e]ven if we were to conclude that the State’s interest in preparing NGI
patients for conditional release was not acceptable, there remains its overriding
interest in the safety and security of the institution.” Id., ¶34. The court added:
Assuming, based on Harper, that that interest requires a
finding of present dangerousness, we are satisfied that WIS.
STAT. § 971.17(3), at a minimum, implicitly provides for
such a finding. We reach that conclusion based on the
language of § 971.17(3)(a) that includes requirements for a
determination of dangerousness at the time of commitment,
the language of § 971.17(3)(c) requiring a doctor’s
examination and report when an institution seeks an order
to medicate the patient involuntarily, and the language of
§ 971.17(4)(d) setting forth requirements for periodic
reviews, which include a dangerousness determination.
Wood, 323 Wis. 2d 321, ¶34 (emphasis added). After subsequently explaining
these requirements, the Wood court held:
Those requirements, taken together, create at least an
implicit finding of dangerousness, if not an express finding,
that serves as a basis for a court to consider granting a
motion for an involuntary medication order…. With such a
basis present, a court evaluating a motion for an
involuntary medication order need not make separate or
independent findings of dangerousness.

No. 2014AP1048
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Id., ¶38 (emphasis added). “For those reasons,” the Wood court was satisfied that
§ 971.17(3)(c) facially satisfied substantive due process protections. Wood, 323
Wis. 2d 321, ¶39.
In subsequently addressing the facial validity, again on substantive due
process grounds, of the particular policy (regulation) challenged by Wood, the
court stated, “Again, even if we were to assume that due process requires an
express finding of dangerousness, the third requirement [“periodic reviews, which
include a dangerous determination”] provides a more than adequate standard.”
Id., ¶¶34, 42. An unambiguous statement from our supreme court as to whether
substantive due process does in fact require a showing of dangerousness before an
inmate may be civilly committed for treatment and medicated against his or her
will would be of significant value.
Here, neither the County nor the State suggests WIS. STAT. § 51.20(1)(ar)
requires even an implicit showing of dangerousness prior to an order for civil
commitment and treatment under that provision. Instead, they contend that
§ 51.20(1)(ar) is constitutional without requiring a showing of dangerousness. At
least with regard to treatment of an inmate with psychotropic drugs against his or
her will, this appears to be contrary to Harper and likely Wood.
In Dennis H., decided eight years before Wood, the Wisconsin Supreme
Court addressed the fifth standard of dangerousness, where a noninmate’s own
health was significantly at risk due to his mental illness. The court held that the
statute at issue, WIS. STAT. § 51.20(1)(a)2.e., did not violate substantive due
process because even though the statute did not require a showing of “imminent”
physical harm to justify commitment, it did require a showing that “a mentally ill
person needs care or treatment to prevent deterioration but is unable to make an

No. 2014AP1048
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informed choice to accept it.” Dennis H., 255 Wis. 2d 359, ¶¶39, 45. The court
stated:
The state has a legitimate interest under its parens
patriae powers in providing care to its citizens who are
unable to care for themselves. The state also has “authority
under its police power to protect the community” from any
dangerous mentally ill persons. The state’s legitimate
interest ceases to exist, however, if those sought to be
confined “are not mentally ill or if they do not pose some
danger to themselves or others.”
Id., ¶36 (citations omitted; emphasis added). The Dennis H. court further noted,
“[a] mental commitment provision is overly broad only if by its terms it could
reasonably be applied to commit mentally ill persons who are not in any way
dangerous to themselves or others.” Id., ¶28. Thus, in Dennis H., the court stated
that some showing of dangerousness—either to a person’s self or another—must
be made prior to a civil commitment.
Finally, we note that the State frames the issue here largely as a question of
whether an inmate can be transferred from a traditional Wisconsin correctional
facility to a correctional facility focused on providing mental health services. It
emphasizes that the deprivation of liberty is substantially less when an individual
is going from a traditional correctional facility to a mental health correctional
facility, as opposed to going from the “outside world” to a mental health facility.
Although throughout much of its brief the State treats the question presented as
merely one of transferring an inmate, it does subtly acknowledge that the issue
here is also about mental health “treatment” and “services” that are to be provided
to the transferred inmate.
Christopher’s point is that “committing an incarcerated individual under
WIS. STAT. § 51.20(1)(ar) does not simply involve the transfer of the inmate from

No. 2014AP1048
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a prison to a secure mental health facility, but also allows a court to order
involuntary medication and treatment under WIS. STAT. § 51.61(1)(g) without a
finding of dangerousness.” Christopher recognizes that “a conviction and
sentence extinguishes an individual’s right to be free from confinement for the
term of his sentence,” but argues that “this does not authorize the State to classify
an inmate as mentally ill or involuntary [sic] administer medication without due
process protections.”
We agree WIS. STAT. § 51.20(1)(ar) does not just address transferring an
inmate from the general prison population to a mental health facility but also
specifically is directed at “treatment” of the inmate. And as noted supra, the
proper question here is “commitment” not “confinement,” and whether substantive
due process requires a finding of dangerousness before an inmate may be civilly
committed for treatment and medicated against his or her will. Significantly,
neither the State nor the County disputes Christopher’s assertion in his brief-in-
chief that “[o]nce a person has been committed under WIS. STAT. § 51.20(1)(ar), a
court may order medication or treatment to be administered to the individual,
regardless of consent, if it finds that the individual is not competent to refuse
medication or treatment under WIS. STAT. § 51.61(1)(g).”
This case and the current case law present a significant question: Does
substantive due process require, as the case law appears to hold, a showing that an
inmate poses a danger to him-/herself and/or others before a court may order the
inmate to be civilly committed for treatment and authorize the involuntary

No. 2014AP1048
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medication of the inmate? A clear, definitive answer to this question by the
Wisconsin Supreme Court would be of great value.5
5 Christopher also asserts on appeal that the County failed to show by clear and
convincing evidence that he was incompetent to refuse medication or treatment because the
testimony presented at the hearing on this issue “merely parroted the statutory language without
providing details of the information Christopher was given” pursuant to WIS. STAT.
§ 51.61(1)(g)4. In light of the Wisconsin Supreme Court’s recent decision in Outagamie County
v. Melanie L., 2013 WI 67, ¶¶67, 75-78, 94, 349 Wis. 2d 148, 833 N.W.2d 607, and the
testimony presented to the circuit court on this issue in this case, Christopher’s assertion appears
to have merit. Acceptance of this certification would provide the supreme court with an
opportunity to clarify or expound upon Melanie L.