On Point: 3. Civil Commitments

Portage County v. J.W.K., 2017AP2429, 4/26/18, District 4, (1-judge opinion, ineligible for publication); case activity

J.W.K. appealed the extension of his Chapter 51 mental commitment arguing that the County failed to present sufficient evidence that he would be the proper subject for treatment if treatment were withdrawn. He argued that Dr. Persing’s testimony on this point “was too conclusory to be probative.” The court of appeals held that it was “sufficiently on point and clear.” Opinion ¶8.

Chippewa County v. M.M., 2017AP1325, 5/1/18, District 3, (1-judge opinion, ineligible for publication); case activity

You don’t see this very often. A jury found M.M. mentally ill, a proper subject for treatment, and dangerous under §51.20(1)(a)2.c based on testimony by not 1, not 2, but 3 doctors–all of whom said that M.M.’s paranoia and conduct would cause others to feel fearful and threatened and possibly assault him in an effort to protect themselves. This idea that M.M. was “indirectly” dangerous to himself did not wash with the court of appeals. It reversed and also rejected the County’s claim that M.M.’s appeal from this 6-month commitment was moot.

State v. Anthony Jones, 2018 WI 44, 5/4/2018, affirming an unpublished summary order, 2015AP2665, case activity

We noted in our post on the grant of Jones’s PFR that at the time there were “exactly zero Wisconsin appellate cases holding expert testimony inadmissible under Daubert.” That’s still true.

Winnebago County v. J.M., 4/18/18, 2018 WI 37, affirming an unpublished court of appeals opinion, 2016AP619, case activity.

This opinion will interest lawyers who handle Chapter 51 cases and appellate lawyers of all stripes. It establishes that persons undergoing Chapter 51 mental commitments are entitled  to the effective assistance of counsel and formally adopts the Strickland test for ineffective assistance. It further holds that, due to the overwhelming evidence of dangerousness in this case, J.M. was not prejudiced when his counsel failed to object to him appearing before the jury wearing prison clothes accompanied by uniformed guards–even as he testified. Of particular interest to appellate lawyers, SCOW granted a motion to strike significant parts of Winnebago County’s oral argument because its lawyer asserted facts outside the appellate record.

Outagamie County v. C.A., 2017AP450, District 3, 1/23/18 (1-judge opinion, ineligible for publication); case activity

The records for Chapter 51 cases are confidential, so we have not seen the briefs for this case. But, judging from this court of appeals opinion, it doesn’t take much beyond a mental illness diagnosis to get yourself committed under §51.20(1)(a)2e, Wisconsin’s 5th standard of dangerousness. A little unsubstantiated hearsay about your frustration with the justice system just might do the trick.

Langlade County v. D.J.W., 2017AP1313-FT, District 3, 11/7/17 (one-judge decision; ineligible for publication); case activity

There was sufficient evidence at D.J.W.’s commitment trial to establish he met the standard for dangerousness under § 51.20(1)(a)2.d.

Waushara County v. B.G., 2017AP956, 10/26/17, District 4 (1-judge opinion, ineligible for publication); case activity

When the circuit court entered a protective services order for B.G., it did not include any conditions or labels such as “temporary” or “conditional.” It did, however, state that B.G. “does not meet the standards for protective placement.” When B.G. tried to resist services,  the County filed a “Notice of Transfer of Protective Placement” asking the circuit court to remove him from his home and place him in a facility. The court did as asked. The court of appeals now reverses.

Or can you? Yesterday’s NYT Magazine featured an in-depth article on what happens to a people after they plead not guilty by reason of insanity. If you like horror stories, click here.  The author says that in 2015 he began seeking data on length-of-stay and legal status for people who have been institutionalized in every state via Freedom of Information Act requests. Wisconsin replied that it didn’t have that information. Are we complying with the law?

Review of a summary order of the court of appeals; affirmed 5/4/18; case activity (including briefs)

Issues (from the petition for review):

Anthony Jones was committed under Wis. Stat. ch. 980 after a trial at which the state presented expert testimony relying in part on two actuarial instruments: the MnSOST-R and the RRASOR. Mr. Jones had moved pretrial to exclude these instruments as unreliable under Wisconsin’s new Daubert standard, because they are decades old and were constructed using questionable means. The circuit court permitted their introduction on the ground that they are still in use and that the state’s expert had testified that they are reliable. Did the court adequately scrutinize the instruments for reliability, as is its responsibility under Daubert?

Dodge County v. L.A.S., 2017AP302, District 4, 8/17/17 (one-judge decision; ineligible for publication); case activity

Under § 51.20(9)(a) the circuit court must appoint two licensed physicians or psychologists to examine and write reports on an individual subject to involuntary commitment proceedings. This requirement applies only to the initial commitment proceeding, not to the proceeding to extend a commitment.