On Point: e. Dangerousness

Manitowoc County v. J.M.K., 2022AP122, 7/27/22, District 2, (1-judge opinion; ineligible for publication); case activity

J.M.K.  is currently diagnosed with schizoaffective disorder. He has been committed several times since 2015. Right now he is doing well. He lives in a supervised apartment but holds a job, participates in community activities, and works out at the YMCA. The county monitors his medication compliance because in the past when he has stopped taking them he deteriorated rapidly.

Sauk County v. S.A.M., 2022 WI 46, reversing an unpublished court of appeals opinion, 2019AP1033; case activity

Unlike other states, Wisconsin appellate courts have for decades dismissed most appeals from expired ch. 51 orders as moot. As a result, there was been little appellate review of circuit court decisions declaring people mentally ill, committing them to government custody, and medicating them against their will. Not any more. In a 4-3 decision, SCOW holds that appeals from expired recommitment orders are not moot due to their collateral consequences. While S.A.M. won the war on mootness, he lost his due process and sufficiency of evidence claims. His recommitment was affirmed.

Sheboygan County v. M.W., 2022 WI 40, reversing an unpublished court of appeals opinion; case activity

The crisp majority opinion of this 50-page split decision confirms a narrow but important point of law for ch. 51 cases. When an appellate court reverses a commitment order that has expired, the circuit court lacks competency to conduct remand proceedings in the case. The majority opinion does not address whether, in all cases, an appellate court must reverse a “D.J.W. error” outright or whether it may instead conduct a harmless error analysis. The dissent does not fully grasp this point and thus presents a long, confusing attack on an imaginary majority opinion.

Waupaca County v. H.I.B., 2021AP2026, 4/7/22, District 4 (1-judge opinion ineligible for publication); case activity

It is uncontested that “Hazel” has done well for three commitments in a row. Yet the court of appeals has affirmed her 4th Chapter 51 recommitment  because the jury could have inferred a “substantial probability” of death or serious injury from evidence that was “only suggestive” and that “lacked details such as dates and clear descriptions of conduct.”

Taylor County Human Services v. L.E., 2021AP1292, 2/15/22, District 3, (1-judge opinion, ineligible for publication); case activity

A circuit court extended “Luca’s” commitment, directed that he be placed in a locked ward, and ordered involuntary medication. On appeal, Luca challenges his placement in a locked ward and the involuntary medication order. At a minimum, the court of appeals analysis of Luca’s right to refuse involuntary medication merits review by SCOW.

Outagamie County v. D.D.G., 2021AP511, District 3, 1/20/22, (1-judge opinion, ineligible for publication); case activity

“Dana” has been under commitment since 2017. It is undisputed that she has taken her medication and has done nothing dangerous in the interim.  Yet the court of appeals affirmed her 2021 recommitment because she questions her diagnosis and her need for medication and has concerns about its health effects. The court said that if she were released, she would decline medication and decompensate. Her case highlights a tension between §51.20(1)(am) and a person’s 14th Amendment right to refuse medication. It also shows that courts continue to misapply §51.61(1)(g)4., the involuntary medication statute.

Rock County v. H.V., 2021AP1760-FT, 1/13/22, District 4 (1-judge opinion, ineligible for publication); case activity

This appeal concerns a recurring problem in Chapter 51 cases: the lack of objection to damaging hearsay at the final hearing. If the appellate lawyer raises ineffective assistance of counsel in the circuit court, the case will become moot before the issue is finally resolved. Here, the appellate lawyer when straight to the court of appeals, admitted the issue was forfeited, and argued “plain error.”  The court of appeals rejected the argument based on a significant error of constitutional law.

Waupaca County v. G.T.H., 2021AP1490, 12/23/21, District 4 (1-judge opinion, ineligible for publication); case activity

At Waupaca County’s request, the circuit court entered recommitment and medication orders against G.T.H. Six months later, the County conceded that the circuit court had failed to make the factual findings required by Langlade County v. D.J.W., 2020 WI 41, ¶¶3, 40, 391 Wis. 2d 231, 942 N.W.2d 277.

Ozaukee County v. J.D.A., 2021AP1148, District 2, 12/15/21 (one-judge decision; ineligible for publication); case activity

Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, requires a circuit court ordering a ch. 51 recommitment petition to make specific factual findings with reference to the relevant subdivision paragraph of § 51.20(1)(a)2. on which the recommitment order is based. At “Jane’s” recommitment proceeding, the circuit court cited a subdivision paragraph—specifically, § 51.20(1)(a)2.e.—but said little about the substance of the standard articulated under that subdivision paragraph and how the evidence proved the statutory elements of that standard. Thus, its findings were insufficient under D.J.W. and the recommitment order and medication order are reversed.

Portage County v. C.K.S., 2021AP1291-FT, 11/24/21, District 4, (1-judge opinion, ineligible for publication); case activity

The circuit court recommitted C.K.S. but apparently neglected to specify the applicable standard(s) of dangerousness. C.K.S. appealed arguing that the court violated D.J.W. and that the county’s evidence of dangerousness was insufficient. The court of appeals declined to address the D.J.W. error. Instead, it reviewed the county’s evidence of dangerousness and held it insufficient under the only standards that could apply: the 1st, 3rd, and 4th standards.