On Point: A. Right to appeal

Rock County v. P.P., 2021AP678, District 4, 12/16/21 (one-judge decision; ineligible for publication); case activity

P.P. challenges the sufficiency of the evidence elicited in support of the involuntary medication order issued in April 2020, along with the original commitment order. Both orders were set to expire in October 2020, so in September 2020 the County petitioned to extend them for 12 months. P.P. stipulated to the extension. (¶¶2-4). Because of the September 2020 extension of the medication order, P.P.’s appeal of the original order is moot.

Jefferson County v. S.M.S., 2020AP814, 3/11/21, District 4 (1-judge opinion, ineligible for publication); case activity

It is blackletter law that the probable cause hearing for a Chapter 51 commitment must be held within a statutorily-prescribed time from the subject individual’s detention or the circuit court must dismiss the proceeding for lack of competency to adjudicate it. See §51.20(7)(a) and Dodge Cnty. v. Ryan E.M., 2002 WI App 71, ¶5, 252 Wis. 2d 490, 642 N.W.2d 592. In this case, the court of appeals held that the Ryan E.M. rule did not apply because the individual’s conduct (he was pro se) made it necessary for the circuit court to adjourn the probable cause hearing beyond the 72-hour period expired.

State v. James Lee Ballentine, 2019AP1597, 1/20/21, District 2 (not recommended for publication); case activity (including briefs)

Ballentine stood trial for three counts of delivering drugs. The charges arose from controlled buys; James was the informant and buyer. Ballentine’s defense was that James–seeking mitigation in his own drug charges–had framed Ballentine. Ballentine’s theory was that James had come into the alleged sales with the drugs already on him, and that he had concealed this fact by hiding them in such a way that the supervising police officers’ pat-downs would not find them. As part of this defense, Ballentine wished to adduce testimony that James had successfully concealed drugs from a police pat-down before, during an arrest; the drugs were eventually recovered after James ditched them in the police station.

Sauk County v. S.A.M., 2019AP1033, 9/3/20, District 4 (one-judge decision; ineligible for publication), reversed, 2022 WI 46; case activity

Wisconsin involuntarily commits mentally ill people  at a higher rate than any other state in the United States–close to 5 times the national average. Click here. Wisconsin is also in the minority of states that will dismiss an appeal from an expired commitment order as moot. Unless we’re  prepared to accept that, compared to the rest of the country, Wisconsin has a much larger percentage of residents who are both mentally ill and dangerous, this is troubling. It suggests that Wisconsin may be unlawfully committing and medicating people and then denying them their right to appeal. SCOW is poised to decide whether commitment appeals are ever moot. So the court of appeals could have stayed this appeal until SCOW resolved the point. Instead, it walked out on a limb to dismiss the appeal as moot.

Rock County v. R.J., 2020AP93, 8/13/20, District 4 (1-judge opinion, ineligible for publication); case activity

Thank heavens this opinion is not published. R.J’s initial commitment expired before he filed his notice of appeal. According to the court of appeals, R.J. should have sua sponte addressed mootness in his initial brief–before the County ever argued the point. Because R.J. waited to see whether the County would even raise mootness and then addressed the matter in his reply, the court of appeals dismissed his appeal. The court of appeals also made an error of law regarding the “contemporaneous objection” requirement.  Hopefully, R.J. will move for reconsideration or petition for review.

Portage County v. E.R.R., 2019AP2033, 5/21/20, District 4 (one-judge decision; ineligible for publication); case activity

E.R.R.’s original commitment term expired during the pendency of his appeal, but the commitment was extended. He concedes this makes the appeal moot but argues the court should nevertheless decide his issues because they are of great public importance and likely to arise again. We’ll never know if he had a point, because the briefs are confidential and the court’s rejection of his arguments consists of a single paragraph:

Marathon County v. D.K., 2020 WI 8, 2/4/2020, affirming an unpublished court of appeals decision; 2017AP2217; (case activity)

The caption is the most confusing part of this opinion:

ZIEGLER, J., delivered the majority opinion of the Court with respect to Parts I., II., III., IV.A., IV.B., and IV.C.1, in which ROGGENSACK, C.J., REBECCA GRASSL BRADLEY, KELLY, and HAGEDORN, JJ., joined, the majority opinion of the Court with respect to Part V., in which ROGGENSACK, C.J., KELLY and HAGEDORN, JJ., joined, and an opinion with respect to Parts IV.C.2., and IV.D., in which ROGGENSACK, C.J., and HAGEDORN, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J., joined.

But it’s not as bad as it looks! And this decision makes (some) law: specifically, that an appeal of an original commitment is not moot where the commitment has the continuing effect of forbidding its subject to possess firearms.

La Crosse County v. J.M.A., 2018AP1258, 11/21/19, District 4 (one-judge decision; ineligible for publication); case activity

J.M.A. appeals his recommitment under ch. 51. He argues the psychiatrist who was the sole witness at his trial provided only conclusory testimony on dangerousness; the court of appeals disagrees.

Portage County v. J.W.K., 2019 WI 54, 5/21/2019, affirming an unpublished order dismissing appeal as moot; case activity

Practitioners know that it’s rare to get from final judgment to court of appeals decision on the merits in less than a year. Just the ordinary statutory time frames for appointment of counsel, transcripts, motions or notices, transmitting the record, and briefing schedules can easily eat up well over half that time. So, an extension of a ch. 51 commitment–which is statutorily limited to one year in length–will often, if not invariably, be over by the time a decision can be reached. The supreme court now decides that, in some cases at least, this makes appeals of those extensions moot.

Waukesha County v. W.E.L., 2018AP1486, District 2, 5/15/19 (one-judge decision; ineligible for publication); case activity

While W.E.L.’s challenge to his initial six-month-long commitment and medication orders was pending, both orders were extended by stipulation for 12 months. He didn’t challenge the extension, so his appeal of the initial orders is moot.