On Point: 1. Original commitment

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.

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.

Sauk County v. R.A.S., 2018AP2253, 10/31/2019, District 4 (one-judge decision; ineligible for publication); case activity

R.A.S. was committed after a ch. 51 jury trial. The county alleged and the court instructed on two forms of dangerousness–those in Wis. Stat. § 51.20(1)(a)2.c. and 2.d.. R.A.S. asked that the verdict form require the jury to agree on one, the other, or both to commit him, but the circuit court refused, instead submitting a form that just asked the jury if R.A.S. was “dangerous.” The court of appeals now affirms this decision, rejecting R.A.S.’s due-process claim and saying that In re Michael H., 2014 WI 127, 359 Wis. 2d 272, 856 N.W.2d 603, controls the question–though it in fact has only glancing relevance to the issue.

Marathon County v. D.K., 2017AP2217, petition for review granted 7/10/19; affirmed 2/4/2020; case activity

As our prior post noted, the court of appeals upheld D.K. (or “Donald”)’s commitment against his challenge to the sufficiency of the evidence. The supreme court has now agreed to decide whether the testimony of the examining physician, who was the sole witness at D.K.’s trial, supplied enough for the court to find by “clear and convincing evidence” a “substantial probability” that D.K. was dangerous.

Milwaukee County v. D.C.B., 2018AP987, District 1, 5/14/19 (one-judge decision; ineligible for publication); case activity

The court of appeals rejects D.C.B.’s constitutional and procedural challenges to the extension of his ch. 51 commitment.

Ozaukee County v. R.T.H., 2018AP1317, 2/27/19, District 2, (1-judge opinion, ineligible for publication); case activity; Marathon County v. C.M.L., 2017AP2220, 2/26/19, District 3 (1-judge opinion, ineligible for publication); case activity

These two, unrelated decisions highlight a recurring due process violation at Chapter 51 hearings. For an original commitment, the county must prove that the person is “dangerous” under 1 of 5 standards of dangerousness. §51.20(1)(a)2.a-e. Some counties don’t bother identifying any particular standard of dangerousness before or during the hearing. Others give notice of one standard and then prove a different standard of dangerousness at the hearing. Makes it hard to prepare a defense, no?

Milwaukee County v. T.L.R., 2018AP1131, 12/4/18, District 1 (1-judge opinion, ineligible for publication), case activity

Here’s an issue of first impression for SCOW. Lessard v. Schmidt, 349 F. Supp. 1078, 1092 (E.D. Wis. 1972) established procedural and substantive due process rights for persons undergoing mental commitments. One of those rights is the right to particularized notice of the basis for detention, including, the legal standard upon which the person is detained. Id. at 1092. T.L.R didn’t receive that notice.

Marathon County v. D.K., 2017AP2217, 8/7/18, District 3 (1-judge opinion, ineligible for publication); petition for review granted 7/10/19, affirmed, 2020 WI 18; case activity

“Donald” is the pseudonym the court of appeals opinion assigned to D.K., who was committed under §51.20(a)2.b. Although Dr. Dave, the examining physician, waffled on the odds of whether Donald might do serious physical harm without commitment and treatment, the court of appeals found that his conclusion–that Donald posed a “substantial risk of danger to others”–got the job done.  It also acknowledged a potential antidote to mootness arguments in Chapter 51 appeals.

Rock County v. B.A.G., 2018AP782, 7/26/18, District 4, (1-judge opinion, eligible for publication); case activity

B.A.G. challenged a court order to commit and medicate him under §51.20(1)(a)2e (the 5th standard). His main objection appears to be that being undressed outside in cold weather was insufficient evidence to commit him. The court of appeals does not articulate the challenge he lodged against the medication order. Regardless, he lost on both issues. However, the court of appeals opinion on the medication order suggests a possible defect in the statute.

Marathon County v. P.X., 2017AP1497, 6/26/18, District 3, (1-judge opinion, ineligible for publication); case activity

P.X. is autistic, non-verbal, intellectually and developmentally disabled and has obsessive compulsive disorder and pica. The question is whether he is capable of “rehabilitation,” which would make him a proper subject for treatment on Chapter 51. If not, then he should be placed under Chapter 55. The court of appeals held that even though P.X.’s disabilities cannot be cured and he can never function in society, his OCD and pica could be controlled with medication, so Chapter 51 applies. Under Chapter 51, a person can be committed to a mental institution for years, but Chapter 55 bars protective placement in a unit for the acutely mentally ill. See §55.12(2). This decision seems to let the county accomplish through Chapter 51 what it cannot do through Chapter 55. Let’s hope P.X. petitions SCOW for review.