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COA: it’s unreasonable to believe in perpetual, inescapable ch. 51 commitments

Jefferson County v. M.P., 2019AP2229, 3/5/20, District 4 (One-judge decision; ineligible for publication); case activity

M.P. has schizophrenia. In 2018, she was committed for six months after she made statements about shooting some relatives and burning down a house. In 2019, the county sought and received an extension of the commitment. M.P. argues that recommitment was invalid because the evidence went only to her conduct before her initial commitment, and thus didn’t show her to be currently dangerous. The court of appeals disagrees.

The argument concerns Wis. Stat. § 51.20(1)(am). This is the recommitment standard, and it relieves the petitioner of the obligation to show a “recent overt act” indicating dangerousness to others. Instead, the petitioner can show dangerousness by demonstrating that the person “would be a proper subject for commitment if treatment were withdrawn.”

Due process requires that a non-dangerous person be released. Foucha v. Louisiana, 504 U.S. 71, 78 (1992). M.P. argues that without evidence about how a person has behaved lately, a petitioner can’t prove they’d be dangerous if the commitment were ended (and certainly can’t prove it to the constitutionally mandated clear-and-convincing standard of Addington v. Texas, 441 U.S. 418, 423 (1979)).

The court gives a few grounds for rejecting this argument. First, it says, past conduct is “simply part of the mix” of evidence on dangerousness. (¶15). And in the court’s view, the doctor who testified here did supply evidence about M.P.’s behavior since the commitment which, in combination with her earlier acts, carried the county’s burden. (¶17).

Fair enough. But M.P. also argues that if pre-commitment dangerousness is enough to sustain an extension of commitment, a person may end up perpetually committed, even if there’s nothing indicating any present risk. The court of appeals’ response? This fear rests on an “unreasonable assumption, namely, that courts will fail to properly assess the nature and timing of dangerous statements or conduct.” (¶16). It goes on to say that an act or statement might be so old, or so innocuous, that it doesn’t justify extension in a particular case.

First, this just doesn’t answer the argument, because the argument isn’t about the quality of evidence of pre-commitment danger. It’s about whether there’s any indication that the danger continues. A person may well have been dangerous five years ago and not be so today. People do get better; that’s supposed to be the point of treatment. But if we just assume the (court-mandated) treatment is what’s perpetually warding off danger, then we’ll happily conclude that the court-mandated treatment must continue, even if there’s nothing about the person’s present state that justifies this conclusion.

Second, which assumption is more “unreasonable”: that circuit courts will accept the above syllogism–in which past danger + present commitment = present danger–or that they’ll demand more from the petitioner? If you’ve been practicing in this field for a while, you won’t have to do any assuming.


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