On Point: 3. Civil Commitments

State v. Anthony James Jendusa, 2018AP2357-CRLV, review of a decision of the court of appeals denying the state’s petition for leave to appeal; case activity

Before turning to the issues presented, we’ll start with an observation about how this case might seem to affect appellate litigation in all kinds of cases, civil and criminal.

Milwaukee County v. E.C.H., 2019AP772, District 1, 1/14/20, (1-judge opinion; ineligible for publication); case activity

This appeal asks: Is evidence of homelessness, by itself, sufficient to prove that a person is dangerous to himself or will become dangerous if treatment is withdrawn? And the answer is . . . we don’t know. Hiding behind the mootness doctrine, the court of appeals declined offer guidance to the circuit courts on this important issue of law.

Portage County v. L.E., 2019AP1841-FT, District 4, 1/9/19 (1-judge opinion, ineligible for publication); case activity

Welcome to another chapter in the Wisconsin saga “once committed, always committed.” L.E. has been under commitment for 25 years. At her most recent recommitment hearing, the County offered a doctor’s testimony that “if treatment were withdrawn she’d become a proper subject for commitment.” What facts supported that legal conclusion?  Well, not what Portage Cty v. J.W.K., 2019 WI 54, seems to require.

Monroe County v. D.J., 2019AP1133, 1/2/19, District 4, (1-judge opinion, ineligible for publication); case activity

Oh, this issue again. Monroe County pursued a Chapter 51 original commitment against D.J. but didn’t say which of the 5 standards of dangerousness it was proceeding under. One doctor opined that commitment was warranted under the 1st or 2nd standards. The other doctor specified 2nd or 5th standards. The trial court instructed the jury on all 3 standards. D.J.’s trial counsel didn’t object. And the jury found commitment warranted.

You’ve read a lot about the use of algorithms at the sentencing stage of criminal proceedings, but they are also used at the bail and parole stages. This new paper looks at the bias embedded in algorithms (including the STATIC-99R) and zeroes in on our own State v. Loomis.

La Crosse County v. J.M.A., 2018AP1258, 11/21/19, District 4 (one-judge decision; ineligible for publication); case activity

J.M.A. appeals his recommitment under ch. 51. He argues the psychiatrist who was the sole witness at his trial provided only conclusory testimony on dangerousness; the court of appeals disagrees.

State v. Jamie Lane Stephenson, 2019 WI App 63, petition for review granted, 3/17/20, affirmed, 2020 WI 92; case activity (including briefs)

At a hearing on a committed person’s petition for discharge from a ch. 980 commitment, the state has the burden of proving the person is still a sexually violent person—that is, that the person: (1) has a mental disorder; and (2) is dangerous because that mental disorder makes it more likely than not the person will commit sexually violent offenses in the future. § 980.09(3). The court of appeals holds that even though the state needs an expert to prove the person has a mental disorder, it doesn’t need an expert to prove the person is dangerous because of the mental disorder.

Sauk County v. R.A.S., 2018AP2253, 10/31/2019, District 4 (one-judge decision; ineligible for publication); case activity

R.A.S. was committed after a ch. 51 jury trial. The county alleged and the court instructed on two forms of dangerousness–those in Wis. Stat. § 51.20(1)(a)2.c. and 2.d.. R.A.S. asked that the verdict form require the jury to agree on one, the other, or both to commit him, but the circuit court refused, instead submitting a form that just asked the jury if R.A.S. was “dangerous.” The court of appeals now affirms this decision, rejecting R.A.S.’s due-process claim and saying that In re Michael H., 2014 WI 127, 359 Wis. 2d 272, 856 N.W.2d 603, controls the question–though it in fact has only glancing relevance to the issue.

State v. Larry W. Olson, 2019 WI App 61; case activity (including briefs)

Olson and the state resolved some felony counts with an agreement that he’d plead not guilty by reason of mental disease or defect. The court found him NGI and committed him for 19 years, placing him on conditional release immediately. A few weeks later, Olson admitted violating his release conditions by smoking methamphetamine. DHS, which supervises NGI committees, immediately took him into custody. For reasons unknown, it held him for eight days before filing a petition to revoke his supervised release. This, everyone agrees, violated Wis. Stat. § 971.17(3)(e), which says such a petition “shall” be filed within 72 hours of detention (excluding weekends and holidays). The dispute on appeal is what that violation means: the state says there’s no consequence at all; Olson says a late petition is no good and must be dismissed. In legalese, the question is whether the word “shall” is mandatory or directory.

Waupaca v. K.E.K., 2018Ap1887, District 4, 9/26/19 (not recommended for publication), petition for review granted 7/24/20, affirmed, 2021 WI 9; case activity

This opinion infuses uncertainty, if not confusion, into the law governing circuit court competency to decide a Chapter 51 recommitment case and the substantive legal standard that courts are to apply at the recommitment stage.