On Point: f. 51.20(1)(a)2. Dangerousness

Fond du Lac County v. J.L.H., 2020AP2049, 3/24/21, District 2 (one-judge decision; ineligible for publication); case activity

Wisconsin Stat. § 51.20(1)(a)e. lays out the “fifth standard” for dangerousness; a person can be committed under it if his or her mental illness prevents him or her from understanding the advantages and disadvantages of treatment, and a lack of treatment will cause a substantial probability that the person will be harmed and become unable to function. But there’s a limitation on this standard that the other standards lack: a person can’t be dangerous under it if care is available, either in the community at large or through ch. 55, that diminishes the threat of harm so that it is not substantial.

Adams County v. D.R.D., 2020AP1426, 1/28/21, District 4; case activity

This appeal posed a simple question about due process in a Chapter 51 commitment proceeding. Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972) held that the 14th Amendment requires the county to give a person sufficient notice of the legal standard under which she is being detained so that she has a reasonable opportunity to prepare a defense. D.R.D. raised this issue on appeal but since trial counsel had not preserved the objection, the court of appeals held the issue forfeited.

Outagamie Countyv. G.S., 2019AP1950, 1/20/21, District 3 (1-judge opinion, ineligible for publication); case activity

“George” called law enforcement claiming to be a federal authority who wanted to make a citizen’s arrest of some duck hunters. When a deputy arrived at the lake he saw George in a boat with 2 encased firearms about 100 yards from shore where a group of duck hunters were upset about George’s verbal encounter with them. George never pointed a gun at anyone.  Based on this evidence, a doctor’s report, and substantial hearsay evidence, the circuit court committed Geoge under the 3rd standard of dangerousness, which requires a pattern of recent acts demonstrating a substantial probability that he would injure himself or others.

Vilas County DHS v. N.J.P., 2019AP1567, 12/15/20, District 3 (1-judge opinion, ineligible for publication); case activity

In this appeal from an initial commitment, the county conceded that it had not offered clear and convincing evidence to mee the 4th standard of dangerousness. It asked the court of appeals to affirm the commitment based on the 5th standard of dangerousness.  The court of appeals rejected the county’s concession and affirmed on the 4th standard because N.J.P., who is mentally ill, had been expelled from a homeless shelter and was found dressed in tattered clothes on a bitterly cold day. 

Waukesha County v. L.J.M., 2020AP820, 11/4/20, District 2 (one-judge decision; ineligible for publication); case activity

L.J.M. (“Lisa”) appeals the extension of her commitment under ch. 51. In a thorough opinion, the court of appeals affirms, though not without pointing out deficiencies in the county’s case and the circuit court’s decision.

Waukesha County v. I.R.T., 2020AP996, 11/4/20, District 2 (one-judge decision; ineligible for publication) case activity

The county sought to extend I.R.T.’s commitment but could not be located for a time. Eventually the court issued a capias and I.R.T. was arrested. At the extension hearing, there was testimony that after his parole in a criminal matter ended I.R.T. had become homeless and had not taken medications or communicated with the county or his “outpatient prescribers.” (¶14). A psychologist opined that I.R.T. would be dangerous if treatment were withdrawn due to his history of noncompliance with treatment and his “history of psychotic symptoms, and threatening behaviors toward others” and referred to information received from “staff” at an unnamed facility and I.R.T.’s parents. (¶16).

Fond du Lac County v. S.N.W., 2020AP274-FT, District 2, 7/15/20 (one-judge decision; ineligible for publication), petition  for review granted 11/19/20; case activity

The testimony of the county’s expert provided sufficient evidence of dangerousness under § 51.20(1)(a)2.b. and (1)(am).

Langlade County v. D.J.W., 2020 WI 41, reversing an unpublished court of appeals opinion, 4/24/20; case activity

Wisconsin’s involuntary commitment rate is higher than that of any other state–by a long shot. According to a report for the Substance Abuse and Mental Health Services, the annual commitment rate among states ranges from 0.23 to 43.8 per 1,000 adults with serious mental illness. The average is 9.4 per 1,000, with Wisconsin at 43.8. SCOW’s decision in this case can reduce the number of fait accompli commitment hearings–but only if defense lawyers invoke it and trial courts take it seriously.

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.

Monroe County v. D.J., 2019AP1133, 1/2/19, District 4, (1-judge opinion, ineligible for publication); case activity

Oh, this issue again. Monroe County pursued a Chapter 51 original commitment against D.J. but didn’t say which of the 5 standards of dangerousness it was proceeding under. One doctor opined that commitment was warranted under the 1st or 2nd standards. The other doctor specified 2nd or 5th standards. The trial court instructed the jury on all 3 standards. D.J.’s trial counsel didn’t object. And the jury found commitment warranted.