On Point blog, page 27 of 60
SCOTUS to decide whether states may abolish the insanity defense
Kahler v. Kansas, USSC No. 18-6135, certiorari granted 3/18/19
Do the Eighth and Fourteenth Amendments permit a state to abolish the insanity defense?
Are Chapter 51 respondents entitled to notice of the dangerousness standard warranting their commitments?
Ozaukee County v. R.T.H., 2018AP1317, 2/27/19, District 2, (1-judge opinion, ineligible for publication); case activity; Marathon County v. C.M.L., 2017AP2220, 2/26/19, District 3 (1-judge opinion, ineligible for publication); case activity
These two, unrelated decisions highlight a recurring due process violation at Chapter 51 hearings. For an original commitment, the county must prove that the person is “dangerous” under 1 of 5 standards of dangerousness. §51.20(1)(a)2.a-e. Some counties don’t bother identifying any particular standard of dangerousness before or during the hearing. Others give notice of one standard and then prove a different standard of dangerousness at the hearing. Makes it hard to prepare a defense, no?
Court had competency to act despite failure to hold timely jury trial on Chapter 51 recommitment
Winnebago County v. A.A., 2018AP1505-FT, 12/12/18, District 2 (1-judge opinion, ineligible for publication); case activity
A.A.’s commitment was set to expire on March 28th. Two days before his March 22 recommitment hearing he demanded a jury trial. The court gave him one on April 12th. A.A. argued that the trial court lost competency to act when it failed to hold the recommitment trial before the original commitment expired.
Due process challenge fails; counties and courts needn’t specify dangerousness standard justifying Chapter 51 commitment
Milwaukee County v. T.L.R., 2018AP1131, 12/4/18, District 1 (1-judge opinion, ineligible for publication), case activity
Here’s an issue of first impression for SCOW. Lessard v. Schmidt, 349 F. Supp. 1078, 1092 (E.D. Wis. 1972) established procedural and substantive due process rights for persons undergoing mental commitments. One of those rights is the right to particularized notice of the basis for detention, including, the legal standard upon which the person is detained. Id. at 1092. T.L.R didn’t receive that notice.
Failure to raise issue in circuit court forfeits it on appeal
Monroe County v. B.L., 2018AP694, 11/8/18, District 4 (one-judge decision; ineligible for publication); case activity
B.L. argues on appeal that the doctor who initiated his emergency detention could not also be one of the examiners appointed under Wis. Stat. § 51.20(9)(a)1.. The court does not address the argument, because B.L. raises it for the first time on appeal.
Good issues for SCOW: Requests for substitute counsel and self-representation in Chapter 51 cases
Fond du Lac County v. S.R.H., 2018AP1088-FT, 10/17/18, District 2 (1-judge opinion, eligible for publication); case activity
At the beginning of a Chapter 51 extension hearing, S.R.H. told the court that he wanted to fire his attorney, and he asked for a new one. When that failed, he asked the court “Your honor, could I go pro se?” The court ignored his request. The hearing proceeded, S.R.H. was recommitted, and the court of appeals here affirms in a decision worthy of SCOW’s review.
Ch. 51 commitment extension and medication order upheld
Winnebago County v. B.C., 2018AP846-FT, District 2, 9/5/18 (one-judge decision; ineligible for publication); case activity
B.C. challenges the sufficiency of the evidence to extend his commitment and involuntarily medicate him. His challenge fails.
COA: evidence sufficient for continued guardianship and protective placement
Winnebago County v. M.R.R., 2018AP273, 10/3/18, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)
M.R.R. suffered a traumatic brain injury 35 years ago; he’s diagnosed with a personality change due to the injury and unspecified personality disorder. He was found incompetent and placed in a guardianship in 2015 and a protective placement in 2016; this is an appeal of the recent continuation of that guardianship and protective placement.
SCOW to review personal jurisdiction and default judgments in Chapter 51 cases
Waukesha County v. S.L.L., 2017AP1468, petition for review of memorandum opinion granted 8/15/18; case activity
Issues (from court of appeals opinion):
Whether the circuit court has personal jurisdiction to recommit a person under Chapter 51 when the County concedes that it has been unable to serve her with the petition for recommitment?
Whether a circuit court has authority to enter a default judgment against the subject of a Chapter 51 petition for recommitment?
Whether “examining” physician reports recommending involuntary commitment and medication prepared physicians who never actually examined the subject are sufficient to support a Chapter 51 commitment?
Sufficient evidence supported finding that “Donald” was dangerous under Chapter 51
Marathon County v. D.K., 2017AP2217, 8/7/18, District 3 (1-judge opinion, ineligible for publication); petition for review granted 7/10/19, affirmed, 2020 WI 18; case activity
“Donald” is the pseudonym the court of appeals opinion assigned to D.K., who was committed under §51.20(a)2.b. Although Dr. Dave, the examining physician, waffled on the odds of whether Donald might do serious physical harm without commitment and treatment, the court of appeals found that his conclusion–that Donald posed a “substantial risk of danger to others”–got the job done. It also acknowledged a potential antidote to mootness arguments in Chapter 51 appeals.