On Point: 3. Civil Commitments

Winnebago County v. M.O.S., 2015AP2619, District 2, 6/15/16 (one-judge decision; ineligible for publication); case activity

The circuit court’s oral findings at the conclusion of M.O.S.’s trial didn’t track the statutory language in either § 51.61(1)(g)4.a. or 4.b., but no matter: On the standard involuntary medication order form the court checked the box corresponding to the standard under subdivision 4.b. (¶¶4, 7), and the evidence presented at trial is sufficient to support an order under that standard, despite M.O.S’s partial understanding that his delusions are caused by mental illness.

Scott R. Schmidt v. Deborah McCulloch, 7th Circuit Court of Appeals No. 14-3651, 5/27/16

The Seventh Circuit upholds the denial of a Wis. Stat. ch. 980 detainee’s habeas corpus petition.

Milwaukee County v. C. L.-K., 2015AP2031, 5/24/2016, District 1 (one-judge decision; ineligible for publication); case activity

In State ex rel. Watts v. Combined Community Services Bd. of Milwaukee County, 122 Wis. 2d 65, 84, 362 N.W.2d 104 (1985), the state supreme court held that equal protection entitles a person protectively placed under Wis. Stat. ch. 55 to “annual” court review of the placement. The court of appeals (in a citable, but not controlling, decision) now holds that completing such a review more than 16 months after the original placement is good enough.

Rock County v. S.J.M., 2016AP255-FT, 5/19/16, District 4 (one-judge opinion; ineligible for publication); case activity

A circuit court involuntarily committed S.J.M. under §51.20(1)(a)1 -2 after finding him mentally ill, a proper subject for treatment, and dangerous.  S.J.M. challenged the “dangerous” determination and, specifically, the finding that he threatened his mother with serious physical harm, which made her reasonably fear violent behavior and serious harm from him.

Waukesha County v. J.W.J., 2016AP46-FT, 5/4/16 (1-judge opinion, ineligible for publication),petition for review granted 9/13/16, affirmed, 2017 WI 57; case activity

To commit a person involuntarily, the county must show that the person is mentally ill and dangerous. To extend the commitment, the county may prove “dangerousness” by showing that “there is a substantial likelihood, based on the subject individual’s treatment record, he would be a proper subject for commitment if treatment were withdrawn.” §51.20(1)(am).

State v. Gary F. Lemberger, 2015AP1452-CR, 4/14/2016, District 4 (one-judge decision; ineligible for publication), petition for review granted 10/11/2016, affirmed, 2017 WI 39; case activity (including briefs)

A breathalyzer test is a Fourth Amendment search, and state case law holds that the state may not invite a jury to view a defendant’s refusal to consent to a search as evidence of guilt. So, can a prosecutor argue that a defendant’s refusal to take a breathalyzer shows his guilt? Don’t look to this case for an answer.

Outagamie County v. Adam B., 2015AP718, 4/12/16, District 3 (1-judge opinion; ineligible for publication); case activity (including briefs)

The circuit court neglected to specify which of the 5 statutory “dangerousness” standards in §51.20(1)(a)2.a-e supported the Ch. 51 commitment of Adam B. But that did not trouble the court of appeals. Given the “de novo” standard of review, it could (and did) decide for itself which statutory “dangerousness” test the facts satisfied.

Marquette County v. T.F.W., 2015AP2603-FT, 3/24/16, District 4 (one-judge decision; ineligible for publication); case activity

At T.F.W.’s ch. 51 extension hearing, one of the examining physicians was asked “have the advantages, disadvantages and alternatives to [T.F.W.’s] medication been explained to [him]?” Her answer: “Yes, they have.” (¶7). That was the extent of the testimony on the matter, but the court of appeals holds it was good enough to satisfy the requirement of § 51.61(1)(g)4.(intro.) and Outagamie County v. Melanie L., 2013 WI 67, 349 Wis. 2d 148, 833 N.W.2d 607.

M. L.-F. v. Oneida County Department of Social Services, 2016 WI App 25; case activity

The County filed for termination of the parental rights of the mother and father of twin boys. While the TPRs were pending, the father’s mother, M. L.-F, filed a petition for guardianship of her grandsons. The court of appeals now holds that court’s decision in the T.P.R–to place the children under state guardianship pending adoption by their foster parents–would override any conflicting order in the guardianship case, and so affirms the dismissal of the guardianship petition.

State v. David Hager, Jr., 2015AP330, and State v. Howard Carter, 2015AP1311, District 3, 2/2/2015; case activity (Hager) (Carter) (including briefs)–final SCOW decision here 4/19/18

Issues

(1) Does [the 2013 Wis. Act 84] change in [Wis. Stat. § 980.09(2)] authorize the circuit court to weigh the evidence [to determine whether to hold a discharge trial], overruling State v. Arends, 2010 WI 46, ¶¶40-43, 325 Wis. 2d 1, 784 N.W.2d 513; (2) If the court is allowed to weigh the evidence, how is such a weighing accomplished, and, specifically, what factors should the court consider when predicting whether the factfinder would likely conclude the person no longer meets the criteria for commitment; (3) If the statute allows the court to weigh the evidence and consider the credibility of the competing psychological reports at this stage where the petitioner bears the burden of establishing a change in his or her condition, is the statute unconstitutional because it misallocates the burden of proof; and (4) Does the change in the statute apply retroactively to a petition for discharge filed before the revised statute’s effective date.