SCOW holds that appeal from Watts review is not moot; applies de novo standard (for now) and affirms
Racine County v. R.P.L., 2026 WI 26, 7/7/26, affirming an unpublished decision of the court of appeals; case activity
SCOW holds that this appeal from an annual review of a protective placement is not moot, somewhat reluctantly applies the governing standard of review, and affirms.
(See our prior posts here and here).
Mootness
This is an appeal from an annual review of a protective placement order. However, there has now been another intervening order also continuing the protective placement, which “Robert” did not appeal. (¶6). SCOW quickly dispenses with the County’s claim that this case is moot, as persons under protective placement are also liable for costs of care under § 46.10(2), meaning that the mootness issue is directly controlled by its prior decision in S.A.M. (¶10). And, while the County cites the language of § 55.045–which states that the County “may” seek reimbursement of costs–SCOW is unpersuaded that this changes the analysis, as S.A.M. holds that even hypothetical costs are sufficient to make an appeal non-moot. (¶12). Moreover, there is evidence in the record that Richard’s home was sold to pay for the costs of his care. (Id.).
We know that some litigants may wish to limit this holding to these relatively extreme facts, but SCOW’s analysis of the mootness question seems to unambiguously indicate that appeals from an “expired” protective placement review order are not moot, thereby rejecting the reasoning found in COA’s unpublished decision in T.R.Z.
Sufficiency of the Evidence
SCOW then moves to the substantive issue presented, whether the County adequately proved two elements at the review hearing: (1) dangerousness and (2) the permanency of the alleged disability. After a lengthy rehash of the trial testimony and the circuit court’s findings of fact, SCOW finds that the circuit court’s findings as to dangerousness “are not against the great weight and clear preponderance of the evidence . . . .” (¶24). SCOW therefore “conclude[s] that the evidence was sufficient to establish, under the clear and convincing standard, that Robert’s incapacities left him so incapable of providing for his own care or custody that he presented a danger to himself or others.” (Id.).
We’ll get to the standard of review issue shortly, but we note that the statute required the County to prove that “the individual is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to himself or herself or others.” § 55.08(1)(c). And, as this blog has noted, there have been many recent defense wins on this dangerousness criterion. While we therefore anticipated that SCOW might use this decision to either explicitly endorse the more searching application of the dangerousness prong in 55 appeals or to claw back some of the defense-friendly language contained within that growing body of persuasive case law, here SCOW really doesn’t offer much in the way of legal analysis. Instead, its affirmance as to dangerousness rests primarily on the following testimony:
The court specifically credited and adopted Dr. Braam’s opinions that Robert’s critical thinking skills were impaired to the point that he is unable to make competent decisions related to his care and custody. The circuit court also found that Robert’s incapacities left him unable to provide for his own care, including taking medication, bathing, obtaining proper food, and planning for and coordinating proper medical treatment, again crediting Dr. Braam’s testimony regarding these limitations.
(¶23).
In other words, we essentially get a rehash of the analysis provided in the court of appeals, without any added depth. If litigants were hoping this decision might further discuss and analyze this element, they won’t find any such analysis in the majority opinion.
SCOW also addresses Robert’s argument that the County did not prove the permanency of his alleged disability because “Dr. Braam conceded it was difficult to predict the extent to which Robert’s disability is permanent.” (¶25). The doctor (the County’s only witness) also testified that other rehabilitative services offered following Robert’s stroke could reduce his need for guardianship. (¶26). Ultimately, however, SCOW finds that the circuit court “found that, even if Robert’s communication were improved with therapy, the cumulative effect of his disabilities on his functioning would leave him unable to provide for his own care and custody.” (¶27). SCOW claims that it is required to defer to this finding and therefore finds the evidence sufficient. (¶29).
Once again, SCOW’s discussion on this point essentially mirrors the limited discussion in the court of appeals and, in that sense, does not meaningfully develop or analyze the legal issue presented.
Separate Writings
Justice Hagedorn files a lengthy concurrence discussing the standard of review issue. Although binding precedent from COA establishes that the standard of review in assessing the sufficiency of the evidence in a Chapter 55 appeal is de novo, Justice Hagedorn believes this is a mistake. Citing the Court’s decisions in the criminal competency context, he explains that a “clearly erroneous” standard of review would be more appropriate in these cases. (¶51). He suggests that, in addition to revisiting this issue in Chapter 55 cases, the Court should also reconsider the application of the de novo standard in mental commitment cases, as well. (¶53).
Justice Bradley files a fiery dissent, which accuses the majority of only paying “lip service” to the applicable standard of review and permitting the County to “torture Robert for his own good.” (¶57). For example, despite speech and language training being a service that could reduce Robert’s need for protective placement, as conceded by the expert witness, Robert has never received that service. (¶72). As to permanency, Justice Bradley also points out the the expert explicitly disclaimed the ability to make a prediction on that point, which makes sense because Robert has never had an evaluation to actually map out the extent of his disability. (¶70). Overall, her dissent is an impassioned defense on behalf of Robert, who she believes has been further mistreated by a majority unwilling to actually apply the required standard of review.
Justice Dallet, meanwhile, also dissents, although she signals some degree of agreement with Justice Hagedorn’s criticism of the governing standard of review. (¶78). Under the currently-applied standard, however, she believes the evidence was insufficient.
Finally, Justice Protasiewicz defends the de novo standard, further criticizes the majority for not applying that standard, and highlights additional facts showing that the County, in her view, wholly failed to prove its case.
Obviously, the real issue here is the standard of review to be applied in sufficiency appeals from protective placement orders. As in mental commitment cases, the long-settled view is that the reviewing court does not apply a deferential review; instead, case law is quite clear that the governing standard of review is the more exacting de novo standard. Why is the standard more friendly here than in criminal cases or in appeals from pretrial commitment proceedings? We don’t have a great answer, but it’s obvious that SCOW probably took this case to try and address this potential “inconsistency” in our law and, had the County joined the amicus’s request to change that standard, it looks like there were probably enough votes to do so: Justices Crawford, Ziegler and Chief Justice Karofsky all join a majority opinion that claims to apply a de novo standard but really reads as something more deferential; Justices Hagedorn and Dallet write separately to signal they too would welcome a petition asking for a change in the law.
The County, however, conceded that the de novo standard applied and did not ask for a modification of the governing standard. The door is therefore left open and we can’t believe we have seen the last of this issue–especially since SCOW has otherwise held that 55 appeals are not moot, meaning aggrieved County respondents will likely be looking for some other avenue to shut down these appeals moving forward.