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Court of appeals affirms recommitment based on person’s past behavior

Outagamie County v. R.W., 2020AP1171-FT, 12/17/20, District 3, (1-judge opinion, ineligible for publication); case activity

Nobody testified that Rachel behaved dangerously during her extant commitment. Her doctor had no knowledge of medication non-compliance.  A social worker once saw a Haldol pill on a plate on a counter and inferred that Rachel had not taken her meds on that occasion.  The reason that doctor and social worker recommended recommitment is that several times in the past Rachel was released from commitment, stopped medication, and decompensated. To prevent that cycle, she had to be recommited. Rachel cannot change the past, so by that logic, she must be recommitted forever.

 A social worker who worked with Rachel for several years testified that in the past she had decompensated and become dangerous when not under a commitment. Meanwhile, Dr. Bales testified that Rachel was medication compliant. However, “nobody knows when” but at some point, Rachel would stop her medication if released from commitment and she would become psychotic within a couple of months. Opinion, ¶¶7-5, 25-27.

Rachel testified that her medications prevented her hallucinations and racing thoughts and kept her schizophrenia in remission. She pointed out that when she was seeing a private psychiatrist (i.e. not Dr. Bales) she did will well and was not hospitalized for a year and a half. Opinion, ¶9.

That did not matter. The court of appeals noted that §51.20(1)(am) permits recommitment without proof of recent acts or omissions of dangerousness. It said that the purpose of the statute is to avoid the “revolving door” of commitment, release, and recommitment. Opinion, ¶12. It then spent 8 of its 16-page decision comparing Rachel’s case to Winnebago County. v. S.H., 2020 WI App 46, ¶16, 393 Wis. 2d 511, 947 N.W.2d 761. See our post here. It found the two cases identical and accordingly affirmed on that basis.

The court of appeals noted that it had decided S.H. in June, before the parties had submitted their briefs in this case. However, neither the county nor Rachel addressed the case.  It said that normally in a situation like this it would request supplemental briefing. It didn’t here because this appeal was fast-tracked. Opinion, ¶16 n.5

That’s too bad. Had the court ordered the parties to file simultaneous letter briefs within one week, they could have highlighted a significant distinction between S.H. and Rachel’s case. In S.H., the person’s doctor attempted a medication change during her commitment which caused her to decompensate and display the same behavior that led to a prior commitment–delusions about her supervisor and the need to take a bat to work. That didn’t happen in Rachel’s case. She took her medication (except possibly once). She was not dangerous during her commitment.  She was recommitted because–as the social worker put it–“the past is the best indicator of future behavior.” S.H. does not control Rachel’s case and that may be the reason the parties did not address it.

This issue–whether a court can recommit a person who has been medication compliant and has not behaved dangerously during her current commitment–is pending before SCOW in Wapuaca County v. K.E.K., which challenges the constitutionality of §51.20(1)(am) on its face and as applied.  While §51.20(1)(am) relieves the government from proving recent acts or omissions for a recommitment, SCOTUS requires clear and convincing evidence of current dangerousness. O’Connor v. Donaldson, 422 U.S. 563, 575 (1975); Foucha v. Louisianna, 504 U.S. 71, 78-79 (1992). Under these authorities, even though Rachel was dangerous in the past she had to be released from her commitment once she was no longer dangerous.

The court of appeals also relies on the “revolving door” myth regarding the legislature’s intent for §51.20(1)(am). Opinion, ¶12. The plain language of the statute does not say its purpose is to prevent a cycle of commitment, release, commitment.  Even if (contrary to Scalia and Garner) it were permissible to look at legislative history to discern intent, the court of appeals cited none. Neither does the case it relied upon.  State v. W.R.B., 140 Wis. 2d 347, 351, 411 N.W.2d 142 (Ct. App. 1987). Neither does any other Wisconsin appellate decision.

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