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COA decides appeal from expired commitment order due to recurring issue on sufficiency of evidence

Fond Du Lac County v. R.O.V., 2019AP1228, 2020AP853, 12/16/20, District 2 (1-judge opinion, ineligible for publication); case activity

In these consolidated cases, the court of appeals reviewed both Ray’s initial commitment and his 2nd recommitment (not his 1st recommitment), which has not yet ended. Although the initial commitment order expired long ago, the court held that it was not moot due to a recurring, “sufficiency of the evidence” regarding dangerousness that might affect the outcome of his appeal from the 2nd recommitment.

The doctors who examined Ray for his initial commitment and for his 2nd recommitment agreed that he is mentally ill and a proper subject for treatment. They diagnosed him with either bipolar disorder with psychotic features, schizoaffective disorder bipolar type, or schizophrenia.  The main dispute was over his alleged dangerousness.

At the initial commitment hearing, Ray’s brother testified that he awoke to smoke in the house and found that Ray had set fire to personal items and was trying to transfer the fire from inside the house to outside. Ray admitted to the examiner he had burned things inside the home. He didn’t appear to understand that this was dangerous.  The court of appeals held that the circuit court’s finding of these facts supported its conclusion that Ray was dangerous enough for an initial commitment. Opinion, ¶¶13-16.

At the 2nd recommitment hearing (18 months later), Ray’s treating doctor testified that Ray had not recently done anything dangerous. However, both he and another doctor testified that Ray was still having delusions and hallucinations like those from before his initial commitment. They said Ray feared being killed for signing a contract with the chief commander of the world and wanted to burn the contract, etc. As required by §51.20(1)(am), the doctors testified that there was a substantial likelihood that if treatment were withdrawn, Ray would become the proper subject of commitment. They both referenced the fire incident from his initial commitment.

The court of appeals agreed that Ray’s behavior prior t0 his initial commitment, when linked to his behavior during the recommitment the county sought to extend, was sufficient to support his 2nd recommitment. Opinion, ¶¶19-23 (citing Winnebago County v. S.H., 2020 WI App 46, ¶13, 393 Wis. 2d 511, 947 N.W.2d 761. )

The court of appeals decision on mootness is noteworthy. The court observed that the “lighting fires” evidence presented at the initial commitment came up again at his two subsequent recommitments, and it could come up at a future commitment. Thus, the sufficiency of that evidence to support Ray’s initial commitment was a “recurring issue” that should be addressed to avoid uncertainty in future commitment proceedings (translation: the issue fell within an exception to the mootness doctrine.) Opinion, ¶11.

Recall that in Portage County v. J.W.K., 2019 WI 54, 386 Wis. 2d 672, 927 N.W.2d 509, SCOW refused to address the sufficiency of the evidence to support an expired commitment order because it could have no practical effect on an existing controversy. Pointing to the more recent Langlade County v. D.J.W., 2020 WI 41, ¶¶23, 29, 391 Wis. 2d 231, 942 N.W.2d 277, the court of appeals explained that in Ray’s case, this was not true. The sufficiency of “lighting fires” evidence for Ray’s initial commitment could affect the outcome of his appeal from his 2nd recommitment. If the fire evidence were insufficient to support the initial commitment, the court could not order a recommitment on the grounds the withdrawal of treatment would lead to the same behavior–i.e. behavior that was insufficient to support the initial commitment. Opinion, ¶12 n. 9. 

Now that is a shrewd observation. It could come in handy where a client has multiple commitment appeals going at once. It also shows how counties use commitment orders and records from one proceeding against the subject individual in later proceedings, which is an argument against ever dismissing appeals from expired commitment orders as moot.  Remember, SCOW will be addressing whether the court of appeals should be dismissing Chapter 51 appeals as moot this term in Portage County v. E.R.R. Stay tuned.

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