On Point: 3. Civil Commitments

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.

Waukesha County v. J.K., 2018AP616-NM, 9/3/19 (unpublished order); case activity

The court of appeals can be pretty aggressive about dismissing Chapter 51 appeals for mootness. This time SCOW slapped its hand.  J.K.’s lawyer filed a no-merit notice of appeal. Before appointed counsel could file a no-merit report, and before J.K. could respond to any such report, the court of appeals (D2) dismissed the appeal as moot because the commitment order at issue had expired and J.K. was under a new commitment order.

State v. Eric L. Vanremortel, 2018AP417, 9/4/19, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Vanremortel was charged with disorderly conduct for an incident in which he followed the wife of a retired police officer in her car, then repeatedly got out of his own car and shouted at her. The state sought to admit evidence of three prior incidents involving Vanremortel following and/or shouting at police officers, including one that happened a few weeks before the charged conduct and involved the wife’s retired-officer husband. The circuit court admitted the evidence, finding it satisfied the test of State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998), and Vanremortel appeals.

Dane County v. N.W., 2019AP48, 8/29/19, District 4 (1-judge opinion, ineligible for publication); case activity

N.W. entered a written stipulation to extend his Chapter 51 involuntary mental commitment. On appeal he argued that due process required the circuit court to conduct a colloquy to determine whether he knowingly, intelligently and voluntarily agreed to the extension before approving it. Ironically, the court of appeals held that in Chapter 51 cases–where a person’s mental capacity to make treatment decisions is directly at issue–circuit courts have no obligation to inquire whether he knows that he is voluntarily agreeing to an involuntary commitment for treatment.

Winnebago County v. C.S., 2016AP1982, petition for review of a published court of appeals opinion granted 8/15/19; case activity

Issue:

Does Wis. Stat. §51.61(1)(g) violate substantive due process because it does not require a finding of dangerousness to involuntarily medicate a prisoner?

Ozaukee County v. R. C.J. Y., 2019AP297, 8/7/19, District 1 (1-judge opinion, ineligible for publication); case activity

Many Chapter 51 cases are resolved through 90-settlement agreements entered just before or just after the circuit court holds a probable cause hearing. These settlement agreements are governed by §51.20(8)(bg),(bm) and (br).

Langlade County v. D.J.W., 2018AP145-FT, petition for review granted 7/10/19; case activity

Issue: 

A doctor opined that David (a pseudonym) is unable to care for himself, and therefore dangerous under Wis. Stat. § 51.20(1)(am), because he lost employment and relies on the assistance of the government and his family for income and housing. As a matter of law, did the circuit err by concluding that the county, under these circumstances, met its burden to prove by clear and convincing evidence that David is dangerous?