On Point: A. Ch. 51, Mental health

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.

Portage County v. J.W.K., 2017AP2429, 4/26/18, District 4, (1-judge opinion, ineligible for publication); case activity

J.W.K. appealed the extension of his Chapter 51 mental commitment arguing that the County failed to present sufficient evidence that he would be the proper subject for treatment if treatment were withdrawn. He argued that Dr. Persing’s testimony on this point “was too conclusory to be probative.” The court of appeals held that it was “sufficiently on point and clear.” Opinion ¶8.

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Winnebago County v. J.M., 4/18/18, 2018 WI 37, affirming an unpublished court of appeals opinion, 2016AP619, case activity.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

Outagamie County v. C.A., 2017AP450, District 3, 1/23/18 (1-judge opinion, ineligible for publication); case activity

The records for Chapter 51 cases are confidential, so we have not seen the briefs for this case. But, judging from this court of appeals opinion, it doesn’t take much beyond a mental illness diagnosis to get yourself committed under §51.20(1)(a)2e, Wisconsin’s 5th standard of dangerousness. A little unsubstantiated hearsay about your frustration with the justice system just might do the trick.

Langlade County v. D.J.W., 2017AP1313-FT, District 3, 11/7/17 (one-judge decision; ineligible for publication); case activity

There was sufficient evidence at D.J.W.’s commitment trial to establish he met the standard for dangerousness under § 51.20(1)(a)2.d.

Dodge County v. L.A.S., 2017AP302, District 4, 8/17/17 (one-judge decision; ineligible for publication); case activity

Under § 51.20(9)(a) the circuit court must appoint two licensed physicians or psychologists to examine and write reports on an individual subject to involuntary commitment proceedings. This requirement applies only to the initial commitment proceeding, not to the proceeding to extend a commitment.

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.

Waukesha County v. J.W.J., 2017 WI 57, 6/8/2017, affirming an unpublished court of appeals decision, 370 Wis. 2d 262, 881 N.W.2d 359; case activity

In Fond du Lac County v. Helen E.F., which involved a woman with Alzheimer’s disease, SCOW held that a person is a “proper subject for treatment” under §51.20(1) if she can be “rehabilitated.” It then set forth a test for determining whether a mentally ill person has “rehabilitative potential.” In this case, J.W.J. argued that Helen E.F.’s framework should be modified because it does not account for the characteristics of mental illnesses other than Alzheimer’s, such as the one he has–paranoid schizophrenia.

Crawford County v. E.K., 2016AP2063, 5/18/17, District 4 (1-judge opinion, ineligible for publication); case activity

This case presents multiple SCOW-worthy issues. One is an interesting constitutional dilemma. The County sought to extend E.K.’s commitment and involuntary medication order and, as evidence, offered threatening emails that E.K. had allegedly sent. Defense counsel objected because the emails had not been authenticated. So the County called E.K. to the stand to authenticate them. Defense counsel objected on 5th Amendment grounds. This prompted E.K. to say: “I’ll waive that. Yes, those are my emails.”