(Last Updated On: June 30, 2021)

Lessard v. Schmidt, 349 F. Supp. 1078 (Dist. Court, ED Wisconsin 1972), 

[RON] [NOTE ON CITATIONS. Given that Justice Thomas has endorsed “cleaned up” citations, we have begun to clean ours to enhance their readability and impact. See https://www.abajournal.com/news/article/justice-thomas-goes-rogue-on-the-bluebook-with-cleaned-up-citation-to-the-delight-of-appellate-lawyers] 

[RON] [Those paragraphs which begin with “At [pagenumber]” in bold, such as At 1084, are referencing the first district court case Lessard v. Schmidt, 349 F. Supp. 1078 (Dist. Court, ED Wisconsin 1972). Any paragraphs that follow which do not have a paragraph marker such as the above page marker or “[RON]” are continuations of the point citation as written by the court. I always indicate where a citation ends by introducing a new point citation or indicating that I am speaking as me. Sherry’s comments have been incorporated into my words so that we speak mostly in one voice. All of our citations, with rare exception, come from scholar.google.com or from the bound volumes.] 

[RON] [If using our citations directly, you may want to put in an early footnote that all citations should be presumed to be cleaned up or add the cleaned up citation after each citation as a default. The sections of the case copied into this document are copied directly without being altered in any way. When I refer to a citation, I’m referring to a properly structured citation of case name, reference information, court and date] 

[RON] Section I. at 1083 clearly indicates that this federal district court might entertain a 42 U. S. C. 1983 suit against the state’s GAL statutes even as applied in a child custody proceeding. See further Lessard v. Schmidt, 379 F. Supp. 1376 (Dist. Court, ED Wisconsin 1974), (addressing Supreme Court opinion regarding insufficient specificity in injunctive orders.) See further Lessard v. Schmidt, 413 F. Supp. 1318 (Dist. Court, ED Wisconsin 1976), (for further consideration in light of Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975).”) 

[RON] Section II. holds that the state’s parens patriae interest applies in a similar manner as the police power in criminal circumstances. While there is no similar criminal circumstance, there are similar civil circumstances where comparison is legitimate. If this federal district court can compare civil to criminal proceedings and hold that nearly identical due process protections apply, then certainly the state court can compare civil procedures initiated by the state against civil procedures initiated by the other parent and reach a similar holding. In fact, the equal protection clause demands it. The state carries the burden to justify treating the civil cases differently. Presumption of constitutionally doesn’t apply to limitations of fundamental rights. Changing the status of the right based upon the person initiating suit is just as invidious under equal protection as any other attack on the right. 

At 1084, The fact that “[i]f a sociologist predicted that a person was eighty per cent likely to commit a felonious act, no law would permit his confinement,”[4] but under the same circumstances a psychiatrist’s recommendation of commitment is likely to be accepted, is sought to be justified on the basis of potential benefit to the one confined in a mental institution. In effect, the present action challenges the validity of this difference in treatment. In order to assess properly the claims of plaintiff, some general discussion of mental commitment procedures and the effects of civil commitment upon those committed is necessary. 

[RON] Likewise, your case needs to challenge the validity of treating fit parents in a custody suit differently from any other fit parent in terms of imposing a GAL with authority over their parental choices, who can seize the child, and who can perform exploratory searches into the child’s private life. In all of our new and updated motions we package the due process arguments inside an equal protection wrapper. The basic logic is if the substantive rights apply differently to these litigants because it is a parent vs parent suit, how does the state justify this unequal classification that seems designed to justify limitations on otherwise fundamental and protected substantive rights. 

At 1084, 1085, The common law had little need to concern itself with questions of adequate procedure for involuntary confinement because public institutions for the mentally ill were virtually nonexistent. See 1 Blackstone, Commentaries 305 (Christian ed. 1827). In the colonies, parents and family were expected to care for their own mentally disabled. S. Brakel & R. Rock, The Mentally Disabled and the Law 4 (1971 ed.) [hereinafter cited as Brakel & Rock]. The first mental hospital in the United States was not established 1085*1085 until 1751, with few additional institutions being built until the middle of the nineteenth century. As a result of the lack of facilities and limited medical knowledge of methods of treatment, those confined were generally clearly deranged and violent.[5] Brakel & Rock, supra, at 5. A New York statute, enacted in 1788, distinguished between the “furiously madd” who were “so far disordered in their senses that they may be dangerous to be permitted to go abroad,” and who could be confined upon the issuance of a warrant by two or more justices, and other “lunatics” who could be taken under the care and protection of friends and relatives. N.Y.Laws of 1788, ch. 31. Under these circumstances, few questions were likely to be raised regarding improper commitment. 

[RON] Similarly here, where Nineteenth Century presumptions regarding parental rights protected the rights of the parents and the child through the marital association of the parents to each other, the question of whether the rights dissolved with the marriage needn’t be subjected to constitutional scrutiny. However, in a post bastardy world, where the rights of parents and of the child are individual rights defined as both intimate and expressive associations individually protected by the First Amendment, the state’s presumption that it can disregard these individual rights simply because the parents choose to dissolve their individual intimate and expressive marital association to each other and “grant” the rights back however it choses is an unconstitutional presumption. The entire family code, including the GAL statutes, is predicated upon the false assumption that the individual association rights dissolve with the parent’s marriage or, for the father, never receive protection because he chooses not to marry the mother are simply unsupportable. 

[RON] The state must justify its limitations of parental rights to either parent and its limitations of rights to the child independently of any other associational concerns other than the immediate parent child associational pair. Interference with parental rights and child rights demands individual justification which Nineteenth Century presumptions can no longer provide.  

At 1086, The requirements of due process are not static; they vary depending upon the importance of the interests involved and the nature of subsequent proceedings. Legislative judgments as to procedural guarantees “are questions which the Constitution has entrusted at least in part to courts, and upon which courts have been understood to possess particular competence.” 

[RON] As the district court implies here, the federal constitutional minimum requirements of due process are a federal judicial question which neither the federal congress nor the state legislature may determine. Whatever power the federal congress may have over federal minimum standards of due process, state legislative bodies have no authority whatsoever to set federal minimum standards. Certainly, state legislatures can impose due process limitations over and above the federal standard and these greater protections will take on federal protective status so long as the state legislature leaves them in place, but they do not supplant the federal minimum standards. Only a judicial act under federal jurisdiction may determine what minimum federal standard of due process is given the unique facts and circumstances of the case before them. In this regard, due process is an individualized determination which every litigant is entitled to. 

[RON] As an attorney, you should probably never allow the court to use state law as the source of defining federal minimum standards, see Santosky v. Kramer, 455 US 745, 755, 756 (Supreme Court 1982), (The minimum requirements of procedural due process being a matter of federal law, are not diminished by the fact that the State may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action… Moreover, the degree of proof required in a particular type of proceeding is the kind of question which has traditionally been left to the judiciary to resolve.) 

At 1088, second justification for less stringent safeguards in civil commitment proceedings is simply that the proceedings are “civil” and not “criminal.” That argument should have been laid to rest following the Supreme Court’s decision in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), in which the Court found the distinction unpersuasive as an excuse for providing lesser safeguards for juveniles in delinquency proceedings than were given adults charged with violations of the criminal law. The only possible argument for a broad civil-criminal distinction in mental commitment proceedings is one based upon dicta in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Robinson held invalid a statute which permitted a drug addict to be subjected to criminal penalties for being an addict. The Court held that a crime based upon status was cruel and unusual punishment, noting that the challenged law was not one “which even purports to provide or require medical treatment.” Id. at 666, 82 S.Ct. at 1420. The Court went on to say: 

“It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. A State might determine that the general health and welfare require that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration. But, in the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.” Id. 

Neither this language nor prior holdings of the Court in any way answer the question of what procedure and proof are required for a determination that a given individual is in need of treatment or confinement. The Court simply restated its prior holdings, in line with the common law and common understanding, that the state is free to protect its citizens from the effects of certain illnesses upon society at large. See, e. g., Jacobson v. Massachusetts, 197 U.S. 11, 27, 25 S.Ct. 358, 362, 49 L.Ed. 643 (1905) (“Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”). Robinson does not, therefore, lend support to those who argue that fewer safeguards are constitutionally required in civil commitment proceedings than are required for other deprivations of liberty. 

At 1090, Plaintiffs challenge the constitutionality of the sections of the Wisconsin civil commitment statute which permit involuntary detention for a possible total of 145 days without a hearing,[14] which fail to provide for meaningful notice and which allow the court to dispense with notice at all in cases in which notice is deemed “injurious or without advantage” to the patient.[15] We believe sections 51.02(1), 51.03, and 51.04(1), (2), and (3) are unconstitutional on their face and as applied to the named plaintiff in this action, Alberta Lessard.[16] 

[RON] Do your state’s GAL statutes allow appointment of a GAL without notice of charges that would justify limiting fundamental rights of parent and child? Was your client denied the right to a hearing where he could confront the state and challenge their justification for the limitations on fundamental rights? Who provided compelling justification? Who demonstrated narrowly tailored compliance? Who demonstrated that appointment of the GAL was the least restrictive option available? Where is the cross-examination in the record? 

[RON] Don’t let them get away with presuming that the state’s viewpoint regarding matters of conscience in child-rearing commonly referred to as the state’s best interest of the child policy is a compelling justification for anything. The Supreme Court has already held it to be insufficient compelling to justify limitations on rights protected through the Fourteenth Amendment, see Grutter v. Bollinger, 539 US 306, 352 (Supreme Court 2003), (concurrence) (An even greater governmental interest involves the sensitive role of courts in child custody determinations. In Palmore v. Sidoti… the Court held that even the best interests of a child did not constitute a compelling state interest).1 

At 1091, 1092, The importance of the interests 1092*1092 involved in this situation are of the highest, in that the deprivation of liberty necessarily is one based on status and not on the alleged commission of an act deemed criminal by society. 

[RON] In your case the limitations are based upon a change in marital status and nothing more.  

At 1092, The preliminary hearing, concluded upon a showing of probable cause for believing the patient is in need of commitment within the constitutionally required sense of that definition,[21] does not justify a prolonged period of confinement without a full hearing on the necessity of continued confinement. This hearing must be held as soon after detention as possible within the limits made necessary in order for psychiatrists to make their examination and reports and for the patient to be able to prepare any defense. 

[RON] What was the probable cause asserted to justify appointment of the GAL? What probable cause or adjudication exists to justify continuation of the GAL? If you can’t find it in the record, then it doesn’t exist. The state cannot presume in the face of fundamental rights but must prove its case.  

At 1092, Notice of the scheduled hearing, “to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded,” and it must set forth the basis for detention with particularity. In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 1446, 18 L.Ed.2d 527 (1967). Notice of date, time and place is not satisfactory. The patient should be informed of the basis for his detention, his right to jury trial, the standard upon which he may be detained,[23] the names of examining physicians and all other persons who may testify in favor of his continued detention, and the substance of their proposed testimony. 

[RON] These are the holdings of the federal district court concerning the minimum federal due process that was necessary. Where is the state court’s holdings regarding minimum standards? Are they sufficient? Was your client noticed of the basis for appointment of a GAL and was he afforded a hearing to challenge that basis? Custody courts routinely skip over these basic mandatory steps.  

At 1093, Judged by these standards, the Wisconsin statutory scheme for involuntary civil commitment fails to afford persons alleged to be mentally ill with adequate procedural safeguards. The sections are not saved by their application in Miss Lessard’s case. Miss Lessard was given no opportunity to prepare in advance of the scheduled hearing, thus making it necessary to reschedule the hearing ten days later. She was given no notice of the names of persons who would testify against her, no notice of her right to jury trial, and no notice of the basis upon which her continued detention would be sought. Neither was she given any preliminary hearing in which she had an opportunity to challenge the probable cause for her confinement. 

[RON] Use this language to attack your state’s GAL statutes. The statute does not require application of sufficient due process minimums and if they don’t appear in the record of your case, the statute cannot be saved as applied in your case.  

At 1094, The necessity of a finding of imminent danger to oneself or others is strengthened by a comparison to persons incapacitated by physical illness. Persons in need of hospitalization for physical ailments are allowed the choice of whether to undergo hospitalization and treatment or not. The same should be true of persons in need of treatment for mental illness unless the state can prove that the person is unable to make a decision about hospitalization because of the nature of his illness. It is certainly true that many people, maybe most, could benefit from some sort of treatment at different periods in their lives. However, it is not difficult to see that the rational choice in many instances would be to forego treatment, particularly if it carries with it the stigma of incarceration in a mental institution, with the difficulties of obtaining release, the curtailments of many rights, the interruption of job and family life, and the difficulties of attempting to obtain a job, driver’s license, etc. upon release from the hospital. 

The dangers in allowing commitment without a finding of dangerousness are also exemplified by any examination of attempts to define mental illness. One group of authors, discussing the problem, noted: 

“Obviously, the definition of mental illness is left largely to the user and is dependent upon the norms of adjustment that he employs. Usually, the use of the phrase `mental illness’ effectively masks the actual norms being applied. And, because of the unavoidably ambiguous generalities in which the American Psychiatric Association describes its diagnostic categories, the diagnostician has the ability to shoehorn into the mentally diseased class almost any person he wishes, for whatever reason, to put there.” 

Livermore, et seq., “On the Justifications for Civil Commitment,” 117 Pa.L.Rev. 75, 80 (1968). 

This leaves the question of what standard of proof is required to prove that an individual is “mentally ill” and a “proper subject for custody and treatment,” i. e., treatable and “dangerous.” The Wisconsin statute is silent on the burden of proof required, but the Wisconsin Supreme Court has approved jury instructions which allowed a jury to commit a person upon a preponderance of the evidence. In re Hogan, 232 Wis. 521, 287 N.W. 725 (1939). 

[RON] What standard of proof is required to limit the rights of a fit parent and to impose a government official to second guess that parent’s decisions. Santosky holds that the state must prove with clear and convincing evidence through adjudication that the interest of the parent and a child diverge before it can limit the right. Did the court demonstrate clear and convincing evidence in the record? Did the court announce that clear and convincing was the standard? Santosky holds that a litigant is entitled to know the standard prior to trial.  

[RON] Action imposed through a state statute is state action regardless of who asks the judge to take action under color of that state law. The judge’s actions are state actions even in a child custody case, see Palmore v. Sidoti, 466 US 429, 432 (Supreme Court 1984), (Footnote), (The actions of state courts and judicial officers in their official capacity have long been held to be state action governed by the Fourteenth Amendment. Shelley v. Kraemer… Ex parte Virginia). Due process protects against state action taken by the judge not against the other party’s making requests of the judge. 

At 1095, A basic concept in American justice is the principle that “even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.” 

At 1095, The argument for a stringent standard of proof is more compelling in the case of a civil commitment in which an individual will be deprived of basic civil rights and be certainly stigmatized by the lack of confidentiality of the adjudication. We therefore hold that the state must prove beyond a reasonable doubt all facts necessary to show that an individual is mentally ill and dangerous. 

[RON] Appointing the GAL imposes a stigma and deprives Movant and the child of basic civil rights more precious than mere property rights, therefore clear and convincing evidence must be the standard imposed before a judge may act against the parental right, see Santosky v. Kramer, 455 US 745, 753 (Supreme Court 1982), (The absence of dispute reflected this Court’s historical recognition that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.); Santosky v. Kramer, 455 US 745, 754 (Supreme Court 1982), (The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.); Santosky v. Kramer, 455 US 745, 755-757 (Supreme Court 1982), (This Court has mandated an intermediate standard of proof — “clear and convincing evidence” — when the individual interests at stake in a state proceeding are both “particularly important” and “more substantial than mere loss of money.” Addington v. Texas, … Notwithstanding “the state’s `civil labels and good intentions,’ … the Court has deemed this level of certainty necessary to preserve fundamental fairness in a variety of government-initiated proceedings that threaten the individual involved with “a significant deprivation of liberty” or “stigma.”) 

[RON] The GAL as a state official is simply not equipped to make best interest determinations for a child, see Parham v. JR, 442 US 584, 604 (Supreme Court 1979),(The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parents’ authority to decide what is best for the child… Neither state officials nor federal courts are equipped to review such parental decisions.) 

[RON] Custody courts would have us believe that due process standards set in the context of state initiated civil proceedings cannot be applied in the context of parent initiated civil proceedings. The argument in this case completely dispels that myth in that this district court compares civil to criminal and holds that they must be comparable. The Supreme Court held similarly in Parham v. JR, 442 US 584, 604, 617, 618 (Supreme Court 1979), (While the determination of what process is due varies somewhat when the state, rather than a natural parent, makes the request for commitment, we conclude that the differences in the two situations do not justify requiring different procedures at the time of the child’s initial admission to the hospital.) 

At 1095, Perhaps the most basic and fundamental right is the right to be free from unwanted restraint. 

At 1095, Even if the standards for an adjudication of mental illness and potential dangerousness are satisfied, a court should order full-time involuntary hospitalization only as a last resort. A basic concept in American justice is the principle that “even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.”  

[RON] Here the district court holds that there must be an appropriate means end test to the duration of the commitment even if the court approves the initial commitment. The same applies to the GAL. Whatever the reason for imposing a GAL was in the past, that reason must be reevaluated now through the full application of due process standards.  

At 1097, There is no indication in the record that the judge considered alternative methods of treatment which would have a less drastic effect on the curtailment of Miss Lessard’s freedom and civil liberties; in fact, the little evidence in the record indicates that he refused to consider less restrictive alternatives. Finally, the record gives no indication whether the judge found the existence of a need for confinement beyond a reasonable doubt or by a preponderance of the evidence or by any standard whatsoever. 

[RON] These statements are directly applicable in your case. What does the record show regarding less restrictive means and what was the evidentiary standard and was it adequate? Custody courts typically apply preponderance of the evidence to every hearing and every issue. This practice is unconstitutional. The standard of evidence depends upon the importance of the rights at issue in any given hearing, not to the entire set of proceedings under the family code. If appointment of a GAL doesn’t require clear and convincing evidence and least restrictive means, then it is invalid. Remember, the state legislature has zero authority over federal law at all. This is a case where the court can simply hold that the amount of due process called for in the statute is insufficient to meet federal due process requirements. 

At 1097, It is apparent that statutory and constitutional requirements for civil commitment were not followed in the named plaintiff’s commitment hearing. Miss Lessard is entitled to an injunction against the further enforcement of the Wisconsin civil commitment statute against her and a declaratory judgment that her commitment was invalid on any of the bases discussed in this portion of the opinion. 

[RON] You can convert the court’s findings into your opening argument on this issue and then back it up with the reasoning in the federal case even if it isn’t controlling in your case.  

[RON] For clear and precise citations regarding the holdings in this case, see the district court’s revised injunctive order in response to the Supreme Court opinion regarding insufficiency of the prior injunctive order, Lessard v. Schmidt, 379 F. Supp. 1376 (Dist. Court, ED Wisconsin 1974). 


NOTE: Anywhere the words “your case” is used, this is just for ease of teaching. By no means, are we or can we tell you what you should or shouldn’t use in your case, only an attorney can do that.  

Lessard Notes for GAL Dismissal Illinois


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