Welcome to another chapter in the Wisconsin saga “once committed, always committed.” L.E. has been under commitment for 25 years. At her most recent recommitment hearing, the County offered a doctor’s testimony that “if treatment were withdrawn she’d become a proper subject for commitment.” What facts supported that legal conclusion? Well, not what Portage Cty v. J.W.K., 2019 WI 54, seems to require.
The one issue the court of appeals addressed on the merits is whether there was sufficient evidence to support the recommitment of L.E. The County had to prove, with clear and convincing evidence, that (1) L.E. was mentally ill, (2) L.E. was a proper subject for treatment; (3) if treatment were withdrawn L.E. would become a proper subject for commitment. Only (3) was in dispute.
J.W.K. ¶21, holds that each recommitment must be based on “current, dual findings of mental illness and dangeorusness.” “Each extension hearing requires proof of current dangerousness. It is not enough that the individual was at one point a proper subject for commitment.” Id., ¶24. (Emphasis supplied). A court may not “borrow” findings of mental illness and dangerousness from a previous commitment.
With that in mind, here is the court of appeals’ summary of the evidence proving element (3): that is, if treatment were withdrawn L.E. would become a proper subject of commitment:
¶17 . . . L.E. does not believe that she suffers from a mental illness, she believes that the medication she takes is unnecessary, and her mental illness symptoms became so serious within the twelve months preceding the recommitment hearing that she was hospitalized for inpatient treatment at a locked facility. The circuit court found the testimony of Dr. Galli credible, and there is nothing in the record to suggest otherwise.
This, of course, tells nothing about which standard of dangerousness warranting commitment L.E. would satisfy if treatment were withdrawn. Would she try to harm herself or someone else, make threats, fail to care for herself, what? To shore up the circuit court’s meager analysis, the court of appeals cited a doctor’s testimony from a previous recommitment hearing by the same judge. The doctor testified that when treatment is withdrawn, L.E. decompensates, refuses to take medication for diabetes and high blood pressure, and defecates on herself. Opinion, ¶18.
Can the court of appeals affirm a recommitment using evidence from a prior trial that was never considered at trial under review? J.W.K. suggests the answer is no. And surprise attacks do not comport with due process.
It is black letter law that Chapter 51 is designed to rehabilitate a person through “short-term commitments” with the goal of returning her to society, whereas Chapter 55 is designed for long term commitments. Fond du Lac County v. Helen E.F., 2012 WI 50, ¶¶13, 25, 340 Wis. 2d 500, 814 N.W.2d 179. Recommitting a person annually for 25 years would seem to violate the letter and the spirit of this rule.
In the 1970s, Wisconsin led the way in protecting the due process rights of persons undergoing mental commitments. See Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972). Today, relentless recommitments have become common. That’s why there are several pending facial challenges to the constitutionality of §51.20(1)(am), the recommitment statute. Stay tuned for further developments on this issue.