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?
R.T.H. faced a “moving target” problem. He headed into the hearing prepared to defend against an assertion that he was dangerous under one standard but then county switched gears and argued he was dangerous under a different standard. Defense counsel did not object, so on appeal R.T.H. asked the court of appeals to review the denial of procedural due under the plain error doctrine. The court appeals refused claiming that R.T.H. didn’t develop a “plain error” argument. Opinion, ¶1 n.3
That’s a bit like criticizing an appellant for failing to develop a “de novo” or “clearly erroneous” argument. The appellant is certainly obligated to identify the standard of review governing his appeal, but he can also expect the court of appeals to be familiar basic standards of appellate review. It looks like the court just wanted to dodge a difficult constitutional issue.
This left R.T.H. with just a sufficiency of evidence argument. Like the circuit court, the court of appeals held that this was a “close case” but R.T.H. met the 2nd and 3rd standards of dangerousness–substantial probability of violent behavior and serious physical harm to others or a pattern of recent acts showing a substantial probability of physical injury to himself or others. The court of appeals spent the next 5 pages of its opinion describing evidence specific to this case that would support a commitment under either of those two standards. Opinion, ¶¶5-13.
A unique feature of this case is that one of the two examiners–Dr. Rawski–testified that R.T.H. was not dangerous. The court of appeals correctly noted that the circuit court gets to decide which expert to believe. Opinion, ¶14 (citing State v. Kientz, 227 Wis. 2d 423, 441, 597 N.W2d 712 (1999).
The C.M.L. opinion exposes a similar problem. Two doctors examined him and described behavior indicating that he was dangerous. One of the doctors opined that CML satisfied the 5th standard of dangerousness, which is a very long detailed test focusing not on what the C.M.L.’s recent acts or pattern of acts but on whether he could make an informed decision about medication and what could happen if he were untreated. §51.20(a)(a)2.e. But at the hearing, the court held that he didn’t satisfy the 5th standard, because he was competent to make medication decisions. Instead, he satisfied the 2nd standard (recent acts showing a substantial probability of violent harm to others). Opinion, ¶7. It then described all of the evidence showing that C.M.L. met the 2nd standard of dangerousness.
Due to Chapter 51’s short deadlines, defense lawyers have little time to prepare for commitment hearings. So if the county’s doctor opines that the client is dangerous under the 5th standard, the defense lawyer will prep to prove that he doesn’t satisfy the 5th standard rather than some other standard and he won’t be able to mount a defense for the client. Lessard v. Schmidt, 349 F. Supp. 1078, 1092, (E.D. Wis. 1972, vacated on other grounds, 414 U.S. 473 (1974) holds that the subject of an commitment is entitled to notice of the charge against him and the legal standard the court is going to detain him under. So if the county doesn’t tell your client which standard its proceeding under, or it ambushes your client with a different standard at the hearing. Object early and often on procedural due process grounds. See also In re Gault, 387 U.S. 1, 22 (1967)(juvenile must receive advance notice of specific charge he must meet at delinquency hearing; Cole v. Arkansas, 333 U.S. 196, 201 (1948)(criminal defendant entitled to notice of specific charge at issue, and he can’t be convicted of a charge that was never made).
A petition for review arguing that due process requires the county to give advance notice of the standard of dangerousness it intends t prove is pending in SCOW. Given this recurring problem this problem, let’s hope SCOW addresses it. See our recent post on Milwaukee County v. T.L.R.