On Point: 3. Civil Commitments

Winnebago County v. T.G., 2022AP2078, District 2, 6/14/23 (one-judge decision; ineligible for publication); case activity

At the final hearing on a petition to commit T.G. (“Thomas”) under § 51.20, the County presented evidence he threw urine and feces at a guard on one occasion and later made a threat that he’d act in a way that would require staff to “suit up” and do a cell extraction and then “hurt” staff. (¶¶3-5). Considered together, this evidence satisfied the dangerousness standard under § 51.20(1)(a)2.b.

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.).

Waukesha County DHHS v. M.A.S., 2022AP877, District 2, 3/22/23 (one-judge decision; ineligible for publication); case activity

R.B. (Rose), a daughter of M.A.S. (Mary), filed an appeal of an order granting the County’s petition for a protective placement of Mary. The court of appeals holds Rose doesn’t have standing to appeal the order.

The filing of an Emergency Protective Placement petition under §55.135(1) triggers a probable cause hearing within 72 hours. Once the court finds probable cause it may order a temporary protective placement for up to 30 days pending a hearing on a permanent protective placement. Wis. Stat. §55.135(5). Sometimes the client wants to exercise her right to an independent comprehensive evaluation under §55.10(4)(e) and §55.11(2), yet has trouble finding a doctor who can complete it within 30 days. May the client stipulate to extend the temporary protective placement so that she can obtain the evaluation?

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.

Mandatory Circuit Court Form CR-206 suggests that in a criminal case the circuit court may order involuntary medication for an incompetent defendant because he is dangerous. Is the form correct? No, under the current state of federal and Wisconsin law, a criminal court may not order the involuntary administration of antipsychotic for an incompetent defendant based on dangerousness.

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.