On Point: 8. Appeals

Fond Du Lac County v. R.O.V., 2019AP1228, 2020AP853, 12/16/20, District 2 (1-judge opinion, ineligible for publication); case activity

In these consolidated cases, the court of appeals reviewed both Ray’s initial commitment and his 2nd recommitment (not his 1st recommitment), which has not yet ended. Although the initial commitment order expired long ago, the court held that it was not moot due to a recurring, “sufficiency of the evidence” regarding dangerousness that might affect the outcome of his appeal from the 2nd recommitment.

The doctors who examined Ray for his initial commitment and for his 2nd recommitment agreed that he is mentally ill and a proper subject for treatment. They diagnosed him with either bipolar disorder with psychotic features, schizoaffective disorder bipolar type, or schizophrenia.  The main dispute was over his alleged dangerousness.

State v. Daniel J. Van Linn, 2019AP1317, 11/17/20, District 3 (not recommended for publication), petition for review granted 4/27/21, affirmed, 3/22/22; case activity (including briefs)

Police found Van Linn injured and intoxicated near the scene of an accident, and an ambulance took him to the hospital for treatment. At the hospital Van Linn refused an officer’s request that consent to a blood draw; the officer, claiming exigency, ordered blood taken anyway. Van Linn moved to suppress and the court held there was no exigency, and accordingly suppressed the BAC results. Shortly thereafter, the district attorney asked the court to approve a subpoena of Van Linn’s treatment records from the hospital; the court issued the subpoena and the hospital turned over the records, which included the results of the hospital’s own blood test. Van Linn asked the court to suppress those as well, but it declined. He was convicted and appealed.

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.

Jackson County v. C.A.D, 2020AP69, District 4, 9/17/20, (1-judge opinion, ineligible for publication); case activity

This is the second time in a week District 4 has dismissed a recommitment appeal as moot despite the claim of collateral effects: a firearm restriction, stigma, possible liability for costs of care. D4 says: “prove they exist!” A fundamental principle of appellate procedure is that the parties to an appeal cannot cite to evidence outside the record. So query how District 4 thinks appellants should prove these effects? This is why appellate courts around the country presume that committiments have collateral effects and decide them. Click here. Meanwhile, District 3 just took the opposite approach in denying a motion to dismiss a recommitment appeal for mootness. Click here.

Waukesha County v. H.M.B., 202AP570, District 2, 9/16/20, (1-judge opinion, ineligible for publication); case activity

This is not your typical Chapter 51 mootness decision.  The county petitioned for the initial commitment of “Heather,” who was suffering from anorexia nervousa. She stipulated to a commitment but not to confinement at a mental hospital or to involuntary treatment. The court of appeals dismissed her appeal as moot despite the collateral consequences of a firearm restriction and stigma.

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.

Portage County v. E.R.R., 2019AP2033, petition for review of an unpublished dismissal order granted 8/20/20; case activity

Issues presented:

Whether an appeal from a Wis. Stat. §51.20(1)(am) recommitment order may properly be dismissed as moot.

Whether the County met its burden to prove by clear and convincing evidence that Mr. R. was currently dangerous as required by Wis. Stat. §51.20(1)(am).

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.

Milwaukee County v. E.C.H., 2019AP772, District 1, 1/14/20, (1-judge opinion; ineligible for publication); case activity

This appeal asks: Is evidence of homelessness, by itself, sufficient to prove that a person is dangerous to himself or will become dangerous if treatment is withdrawn? And the answer is . . . we don’t know. Hiding behind the mootness doctrine, the court of appeals declined offer guidance to the circuit courts on this important issue of law.

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.