COA once again creates questions about the proper application of D.J.W. in recommitment appeals
Winnebago County v. J.S., 2025AP1865, 7/8/26, District II (ineligible for publication); case activity
In a recommitment appeal alleging a lack of sufficient findings, COA invokes a somewhat novel legal theory to excuse an oral ruling that it agrees could have been more thorough.
“Jacob” appeals from a recommitment order and argues that order must be vacated for failure to comply with SCOW’s D.J.W. mandate. (¶9). Here, the circuit court found Jacob dangerous under the first, second and fifth standard, as viewed through the lens of the recommitment standard. (¶23).
Note: The opinion itself is somewhat unclear as to whether the court was finding there were recent acts or omissions for the first two standards or whether the recommitment exception under 51.20(1)(am) applied to each of the enumerated dangerousness standards. (“In this case, the circuit court found Jacob dangerous under WIS. STAT. § 51.20(1)(a)2.a. and b., and the “fifth standard,” meaning
§ 51.20(1)(a)2.e. and § 51.20(1)(am).”)
Because the court cited three different justifications for Jacob’s recommitment, COA is willing to set aside the second standard, harm to others, and agrees that the court’s findings on that prong are potentially questionable. (¶25). However, it believes the circuit court made sufficient findings for the first and fifth standards. To get there, it relies on State v. Martwick, which, in its view, holds: ““[I]f a circuit court fails to make a finding that exists in the record, an appellate court can assume that the circuit court determined the fact in a manner that supports the circuit court’s ultimate decision.” (Id.). Using a process of inferential reasoning, the court therefore upholds the circuit court’s findings with respect to these complex legal standards. Moreover, the court also relies heavily on the fact that the circuit court did explicitly cite a dangerousness criterion and otherwise made a general-purpose finding of credibility as to the doctor testifying on behalf of the County. (¶28). While COA agrees the findings could have been more robust, it believes enough was said here to merit affirmance. (Id.).
This is the second time that COA has invoked Martwick to seemingly discard the D.J.W. mandate; interestingly, the only other case is also J.S.’s. As we noted when analyzing that appeal, this invocation of the Martwick holding appears directly at odds with the requirements of D.J.W., which emphasized the need for an actual (and not just retroactively inferred) reasoning process articulated on the record.
COA’s previous usage of Martwick, moreover, seemingly confirms that it has been misapplied here. Thus, in Winnebago County v. S.H., COA used Martwick to rescue the circuit court’s deficient on-the-record explanation. But S.H. explicitly acknowledged that D.J.W., which it did not view as having retroactive application, changed the legal standard “going forward.” Accordingly, J.S. seemingly has a pretty solid PFR here, which might find traction given SCOW’s willingness to explicitly chastise D2 for its failure to follow precedent, as we saw in its recent R.D.T. decision.
And speaking of R.D.T., which was issued before this case, we are a little surprised to read COA’s multi-paragraph discussion of the issue of mootness, a discussion which plays no role in the resolution of this appeal and seemingly exists just for the writer of this opinion to air their disagreements with S.A.M.–an essay that concludes with an exhortation that appellate courts “should carefully assess whether a potential collateral consequence truly exists in an expired recommitment appeal.” The problem, however, is that in attacking S.A.M., COA wholly neglects to mention R.D.T.–a decision which largely rejects the arguments advanced in this portion of the opinion. Suffice it to say that D2, as we predicted in our R.D.T. post, is not willing to merely accept SCOW’s correction via R.D.T. Thus, despite our prediction that R.D.T. should have killed this issue, it appears that we may not have seen the last of it in COA.