On Point: 3. Civil Commitments

Sheboygan County v. M.J.M., 2020AP1744, 6/9/21, District 2 (1-judge opinion, ineligible for publication); case activity

This is new. M.J.M. appealed a recommitment order which expired during the course of his appeal. The usual kerfuffle regarding mootness ensued but this time (unlike here and here) the court of appeals acknowledged that the issue of whether recommitment may be dismissed as moot was pending before SCOW in Sauk v. S.A.M, and so reached the merits of this case. It then found sufficient evidence of dangerousness based on threats M.J.M. made during his expiring commitment and because of what he would do if treatment were withdrawn.

State v. Roy C. O’Neal, 2020AP1270, 6/2/21, District 3 (not recommended for publication); case activity (including briefs)

A person who’s been indefinitely committed under ch. 980 is entitled to a discharge trial if he can show … well, er, nobody really knows what he has to show. In State v. Hager, our supreme court failed to reach a majority for any view on the statute (while arguably striking down the court of appeals’ attempt at a gloss). Given the absence of an ascertainable rule, it’s not too surprising that we get incoherent decisions like this one. What is a little surprising is the court of appeals’ decision to “treat [Hager‘s] lead opinion as controlling” on one aspect of the statute’s meaning. That was a three-justice lead opinion; four other justices disagreed on the point. Arguably. Is the court of appeals here treating a supreme court minority view as binding?

Eau claire County v. J.M.P., 2020AP2014, 5/25/21, District 3 (1-judge opinion, ineligible for publication); case activity

Last term, SCOW ordered circuit courts deciding recommitment cases to make specific factual findings referencing the standard of dangerousness that supported a person’s recommitment. See Langlade County v. D.J.W., 2020 WI 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277. In J.M.P., the circuit court violated this rule, so the court of appeals reversed and remanded the case for additional fact-finding. Unfortunately, this remedy creates significant burdens for people recommitted in violation of D.J.W and due process.

Milwaukee County v. T.L.T, 2020AP426, District 1, 5/18/21 (1-judge opinion, ineligible for publication); case activity

Two court-appointed examiners failed to file their reports on whether T.L.T. should be recommitted 48 hours before her final hearing. Trial counsel moved to dismiss arguing that the violation of §51.20(10)(b)’s 48-hour rule deprived the circuit court of competency to adjudicate the case.  The circuit court denied the motion, and without the defense’s agreement, adjourned the case so that counsel could review the reports before the hearing. T.L.T. appealed but the court of appeals dismissed her appeal as moot.

State v. Tavodess Matthews, 2021 WI 42, reversing a published court of appeals opinion, 2020 WI App 33, 5/14/21, case activity (including briefs)

Section 801.58(1) allows a party to a civil case to request a new judge if, among other things, he files a written substitution request before “the hearing of any preliminary contested matter.” Matthews’ case concerns a substitution request made after the circuit court granted a motion to adjourn a Chapter 980 probable cause hearing regarding sexually violent persons. But since Chapter 980 commitments are civil proceedings, this unanimous SCOW opinion, which reverses a published court of appeals’ opinion, is an important clarification of the law governing all civil cases.

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.