On Point: A. Ch. 51, Mental health

Sheboygan County v. M.W., 2021AP6, 5/12/21, District 2 (one-judge decision; ineligible for publication), petition for review granted, 9/14/21, reversed, 2022 WI 40; case activity

For more than a year now, Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, has required circuit courts imposing ch. 51 commitments to identify which statutory form of dangerousness has been proved. A little over a month ago, the court of appeals decided Rock Co. DHS v. J.E.B., holding the circuit court failed to satisfy this requirement. But the appellate court didn’t undo the commitment: it just remanded for the circuit court to decide whether the facts satisfied any of the five standards. It did this even as it declined to address J.E.B.’s other challenge: that there was insufficient evidence of any form of dangerousness. This latter claim would have required dismissal of the petition. Is the court of appeals free to refuse to consider a litigant’s claim–a claim that would that would dispose of the entire case–for no other reason than that it is granting some lesser relief?

Last fall, SCOW granted review on the question of whether a doctor’s failure to file an examiner’s report 48 hours before a commitment hearing deprived the circuit court of competence to adjudicate the case. See our post on Fond du Lac County v. S.N.W., Appeal No. 2019AP2073. This is a recurring problem, so Chapter 51 lawyers eagerly awaited the answer. Unfortunately, after briefing and oral argument, SCOW has dismissed yet another Chapter 51 case without a decision.

Rock County v. J.J.K., 2020AP1085, 4/29/21, District 4, (1-judge opinion, ineligible for publication), case activity

This is an appeal from the initial commitment and involuntary medication order entered against J.J.K. The court of appeals affirmed both contrary to published precedent on the rule against hearsay, the plain error doctrine, and procedural and substantive due process.

Rock County v. J.J.K., 2020AP2105, District IV, 5/6/21 (1-judge opinion, ineligible for publication); case activity

This is the sequel to the Rock County v. J.J.K.. 2020AP1085 above. The decision is alarming because the circuit court found J.J.K. dangerous enough for a recommitment based on the 5th standard, but the court of appeals affirmed based on the 4th standard. The opinion also further highlights the need for SCOW to elaborate its decision in Winnebago County v. C.S., 2020 WI 33, 391 Wis. 2d 35, 940 N.W.2d 875. Specifically, can a court order involuntary medication for a person undergoing recommitment without evidence that he is dangerous as defined by §51.61(1)(g)3?

State v. Davonta J. Dillard, 2020AP999, 4/13/21, District 1, (one-judge decision; ineligible for publication); case activity (including briefs)

Officers patrolling in Milwaukee noticed a vehicle idling and apparently unoccupied. One approached the vehicle and shined his flashlight through a window; he saw a person (Dillard) in the back seat who immediately ducked out of view (most of the windows were highly tinted, impeding the officer’s view). The officer opened the rear driver’s side door, and the person then opened and ran out the door on the other side. Other officers tasered and detained him. The officer who’d opened the door saw a handgun on the floor of the car, which ultimately led to Dillard’s conviction for carrying a concealed weapon.

Rusk County v. A.A., Appeal No. 2019AP839 and 2020AP1580 (consolidated); certification granted 4/13/21, District 3; case activity here and here

SCOW recently held that recommitment proceedings are governed only by the procedures in §§51.20(10)-(13). Waukesha County v. S.L.L., 2019 WI 66, 387 Wis. 2d 333, 929 N.W.2d 140. Thus, the procedural requirements in §§(1)-(9) do not apply. Id., ¶¶24, 27. This court of appeals certification asks SCOW to decide whether S.L.L. violates the plain language of Chapter 51. If not, then does Chapter 51 violate 14th Amendment due process and equal protection given that, under S.L.L.‘s construction, it denies people undergoing recommitment fundamental procedural rights guaranteed to people undergoing initial commitments.

Milwaukee County v. K.M., 2019AP1166, 4/13/21, District 1; (1-judge opinion ineligible for publication); case activity

The saga continues. Portage County v. E.R.R. 2019AP20133 presented the question of whether appeals from recommitment orders are ever moot due to their collateral effects. When SCOW split 3-3 in that case, it granted review in Sauk County v. S.A.M., 2019AP1033 and ordered the parties to brief whether it may order the court of appeals to decide commitment appeals before they expire. See our post here. Some might see the S.A.M. order as a red flag signaling “proceed with caution” on mootness. But, like a bull, the court of appeals charges ahead to dismiss another recommitment appeal as moot.

Rock County Department of Human Services v. J.E.B., 2020AP1954-FT, 4/7/21, District 4 (1-judge opinion, ineligible for publication); case activity

Good news/bad news. It’s terrific that the court of appeals is going to enforce the new requirement that circuit courts ground their recommitment orders on factual findings tied to a specific standard of dangerousness in §51.20(1)(a)2.a-e.  See Langlade County v. D.J.W., 2020 WI 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277. However, J.E.B. requested reversal. Period. Without any objection by the county or briefing by the parties, the court of appeals decided to remand the case for the circuit court to make the missing factual findings. But published case law suggests that the circuit court lacks competency to act on an expired commitment.

Winnebago County v. A.A.L., 2020AP1511, 3/24/2021, District 2 (one-judge decision; ineligible for publication); case activity

A.A.L. appeals her commitment under ch. 51. She claims the county didn’t give her adequate notice of which statutory forms of dangerousness it intended to prove, and that in any event it didn’t prove any of them. The court of appeals finds the notice argument forfeited (though it goes on to say it’s also unconvincing). And though it admonishes the county for presenting a bare-bones case and calls the question “close,” the court also holds the evidence of dangerousness sufficient for commitment.

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.