On Point: A. Ch. 51, Mental health

Dane County v. D.F.B., 2022AP1852, District 4, 05/11/2023 (1-judge opinion, ineligible for publication); case activity

A jury found D.F.B. dangerous under the second standard, which required evidence of a “substantial probability of physical harm to other individuals as manifested … by evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them, as evidenced by a recent overt act, attempt or threat to do serious physical harm.” See Wis. Stat. § 51.20(1)(a)2.b. At trial, two witnesses testified about threats D.F.B. allegedly made by email to a University of Wisconsin-Madison employee. The circuit court overruled D.F.B.’s objection that the testimony was not the “best evidence” of the contents of the emails. The court of appeals disagrees, holding that the circuit court admitted testimony about the contents of D.F.B.’s alleged emails contrary to Wis. Stat. § 910.02 and that the error was not harmless. (Opinion, ¶¶ 1-2). 

Winnebago County v. L.J.F.G., Case No. 22Ap1589, District 2, 04/12/2023 (one-judge opinion, ineligible for publication); case activity

L.J.F.G.’s (Emily’s) appeal concerned a stayed order for involuntary administration of psychotropic medication under Wis. Stat. § 55.14. While the court affirms the order and concludes that the evidence was sufficient to satisfy the statutory standard, it also noted that “the County certainly could have done a better job presenting evidence” and that the testimony was “hardly a model of clarity and does not put much meat on the bones.” (Opinion, ¶15). Moreover, the court added an observational footnote that “strongly encourages not only this county but other counties as well to take more care” presenting evidence at evidentiary hearings under Chapters 51 and 55. (Id., ¶16, n.3). The court further opined from its “singular perspective that much time could be saved for everyone in ‘the system’ if such additional time and care was employed at the petition and hearing stages.” (Id.).

Marathon County v. T.R.H., 2022AP1394, 3/14/23, District 3 (1-judge opinion, ineligible for publication); case activity

Counties often seek recommitment under §51.20(1)(a)2.c, the third standard of dangerousness. It is the easiest standard to satisfy–especially at the recommitment stage. But not this time. The court of appeals held that the county can’t just offer testimony that, at some point in the past, the person failed to care for himself, experienced delusions, and struggled with social interactions when not on medication.  The county’s evidence must be more specific.

Milwaukee County v. D.H., 2022AP1402, 3/7/23, District 1 (1-judge opinion, ineligible for publication); case activity

To obtain an involuntary medication order, a county must satisfy the multi-step test for incompetency to make medication decisions in §51.61(1)(g)4. The first step requires the county to prove that the person received a “reasonable explanation” of the advantages, disadvantages, and alternatives to medication. The examiner can’t just testify that she complied with the statute. She must tell the court what she told the person about the medication. In “Dan’s” case, the court of appeals reversed the involuntary medication order because the county failed this step.

Outagamie County v. L.X.D.-O., 2023 WI App 17; case activity

Unfortunately, the court of appeals just turned Chapter 51 upside down in a published opinion. It holds that counties must move examiners’ reports into evidence at recommitment hearings, but not at initial commitment hearings. This appeal concerns the sufficiency of the evidence to support an involuntary medication order entered following an initial commitment. The court of appeals held that the doctor’s testimony was insufficient to support the order, but the doctor’s report, which was not moved into evidence, filled the gaps. It thus affirmed the med order.

Winnebago County v. J.D.J., 2022AP1138, 2/22/23, District 2, (1-judge opinion, ineligible for publication); case activity

Such a maddening case. J.D.J., a prisoner diagnosed with schizoaffective disorder, was going to have a hard enough time winning a jury trial regarding his ch. 51 initial commitment. But the circuit court made his uphill battle impossible through a series of highly questionable pre-trial and trial rulings. Then the court of appeals, relying on nothing beyond its gut (i.e. not case law) affirmed.

Outagamie County v. C.J.A., 2022AP230, 2/17/23, District 3 (one-judge decision; ineligible for publication); case activity

“Catherine” appeals the extension of her ch. 51 commitment. The recommitment hearing was originally set for a few days before her previous extension would expire. But three days before that scheduled hearing, Catherine requested an independent examination. She, the court, and the county agreed to a “stipulation for temporary extension to commitment” for 60 days. The final hearing was held near the end of this 60 days, 57 days after her commitment had been set to expire before the stipulation.

Barron County v. K.L., 2022AP502, District 3, 02/07/2023 (one-judge decision, ineligible for publication), case activity

K.L. (Katie) challenged the 2021 extension of her original 2013 Chapter 51  commitment on two grounds: (1) insufficient evidence of dangerousness and (2) the circuit court’s failure to “make specific factual findings with reference to the subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. on which the recommitment is based.” See Langlade County v. D.J.W., 2020 WI App 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277. The court affirms Katie’s recommitment after concluding the county presented “clear and convincing evidence” that Katie was dangerous under the fourth standard (see Wis. Stat. § 51.20(1)(a)2.d.), and  that the circuit court complied with D.J.W. when it “checked two boxes on its written order,” which indicated that Katie was dangerous under the third and fourth standards. (Opinion, ¶¶2, 12).

Winnebago County v. D.J.S., 2022AP1281, District 2 (one-judge decision ineligible for publication), case activity

Accompanied by a familiar sounding caveat that “it certainly would have been better if the County had presented more evidence and the circuit court had been more detailed and specific in its oral determination,” the court of appeals rejects D.J.S.’s sufficiency of the evidence challenge to the extension of his Chapter 51 involuntary civil commitment. (Opinion, ¶8).

Rock Count v. H.V., 2022AP1585-FT, 1/20/23, District 4; (1-judge opinion, ineligible for publication); case activity

This is an appeal from a ch. 51 recommitment under the 2nd standard– dangerousness to others. H.V.’s main argument was that the circuit court erroneously relied on hearsay to find that he is dangerous when not committed. The court of appeals disagreed and further found the county’s evidence sufficient to support the commitment.