On Point: 8. Appeals

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.

Monroe County v. B.L., 2018AP694, 11/8/18, District 4 (one-judge decision; ineligible for publication); case activity

B.L. argues on appeal that the doctor who initiated his emergency detention could not also be one of the examiners appointed under Wis. Stat. § 51.20(9)(a)1.. The court does not address the argument, because B.L. raises it for the first time on appeal.

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.

Portage County v. J.W.K., 2017AP1574, petition for review of a memorandum opinion granted, 6/11/18; affirmed, 5/21/19; case activity

Whether an appeal of the extension of a Chapter 51 commitment based on insufficient evidence becomes moot when the circuit court enters a new extension order?

Whether an examining physician’s testimony is sufficient to support the extension of a commitment where the physician merely recites the statutory language?

Milwaukee County v. I.K., 2017AP1425, District 1, 5/8/18 (one-judge decision; ineligible for publication); case activity

The County proved I.K. was dangerous under both § 51.20(1)(a)2.d., by showing there was a substantial probability I.K. would suffer physical harm resulting from his inability to satisfy basic needs due to mental illness, and § 51.20(1)(a)2.e., by showing that, after being advised of the advantages and disadvantages of accepting treatment, I.K. was unable to understand and make an informed choice regarding treatment and that a lack of treatment will result in further disability or deterioration.

Waukesha v. S.L.L., 2017AP1468, 5/2/18, District 2 (1-judge opinion, ineligible for publication), petition for review granted 8/15/18, affirmed, 2019 WI 66; case activity

No Wisconsin case addresses how a circuit court acquires personal jurisdiction over the subject of a Chapter 51 petition. Neither Chapter 51 nor any case authorizes a circuit court to enter a default commitment against a person whom the County failed to serve with the petition. Nor does any authority authorize doctors who have not “personally examined” the subject of a Chapter 51 petition to opine that she is mentally ill, dangerous, and the proper subject for treatment.  Yet that is what is what happened in this case.  The subject of a Chapter 51 petition could be dead, living at the North Pole, or thriving under the care of a private physician in another county, yet according to the circuit court it can still, without service, issue a default commitment against her and writ of capias to detain her next time she enters the county.

Chippewa County v. M.M., 2017AP1325, 5/1/18, District 3, (1-judge opinion, ineligible for publication); case activity

You don’t see this very often. A jury found M.M. mentally ill, a proper subject for treatment, and dangerous under §51.20(1)(a)2.c based on testimony by not 1, not 2, but 3 doctors–all of whom said that M.M.’s paranoia and conduct would cause others to feel fearful and threatened and possibly assault him in an effort to protect themselves. This idea that M.M. was “indirectly” dangerous to himself did not wash with the court of appeals. It reversed and also rejected the County’s claim that M.M.’s appeal from this 6-month commitment was moot.

Winnebago County v. J.M., 4/18/18, 2018 WI 37, affirming an unpublished court of appeals opinion, 2016AP619, case activity.

This opinion will interest lawyers who handle Chapter 51 cases and appellate lawyers of all stripes. It establishes that persons undergoing Chapter 51 mental commitments are entitled  to the effective assistance of counsel and formally adopts the Strickland test for ineffective assistance. It further holds that, due to the overwhelming evidence of dangerousness in this case, J.M. was not prejudiced when his counsel failed to object to him appearing before the jury wearing prison clothes accompanied by uniformed guards–even as he testified. Of particular interest to appellate lawyers, SCOW granted a motion to strike significant parts of Winnebago County’s oral argument because its lawyer asserted facts outside the appellate record.

Winnebago County v. C.S., 2016AP1955, 8/16/17, District 2 (1-judge opinion; ineligible for publication); case activity

C.S. argues that §51.61(1)(g) is unconstitutional because it allows the government to administer involuntary medication to a prisoner without a finding of dangerousness. The court of appeals elected not to decide the issue due to mootness, but that seems like a mistake.

Dunn County v. Dennis M., 2014AP2579, District 3, 6/16/15 (one-judge decision; ineligible for publication); case activity

Despite the fact Dennis M. can’t possess a firearm as a result of a prior involuntary commitment order, his appeal from that order is moot because he entered into a voluntary stipulation to recommitment that has expired and not been renewed.