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Defense win! COA reverses recommitment due to D.J.W. error, orders more fact findings

Eau claire County v. J.M.P., 2020AP2014, 5/25/21, District 3 (1-judge opinion, ineligible for publication); case activity

Last term, SCOW ordered circuit courts deciding recommitment cases to make specific factual findings referencing the standard of dangerousness that supported a person’s recommitment. See Langlade County v. D.J.W., 2020 WI 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277. In J.M.P., the circuit court violated this rule, so the court of appeals reversed and remanded the case for additional fact-finding. Unfortunately, this remedy creates significant burdens for people recommitted in violation of D.J.W and due process.

The circuit court’s rationale for finding that J.M.P. would be dangerous without treatment cited a variety of kinds of conduct, some specific and some vague, that might fall under various standards of dangerousness in §51.20(a)(2)a through e. but it failed to specify any standard in particular.  See the circuit court’s complete rationale here.  According to the the court of appeals:

. . . [T]the circuit court merely found that: (1) Jordan “has these command voices and the command voices tell him to do bad things. And then [Jordan] apparently voices them outwardly toward other people threatening to harm himself and threatening to harm others, that’s clearly a threat to act”; (2) Jordan “has threat [sic] to harm himself and others and clearly to the extent that others have felt the need to report these threats”; and (3) Jordan “does not wish to take medications unless he’s forced to do so,” and his refusal to take medication “likely ended up where we are today.” When the County subsequently asked the court to clarify the basis for its decision, the court merely stated, “I am finding that [Jordan] meets the dangerousness level with those threats.” Opinion, ¶15.

On appeal, the county did not argue that the circuit court satisfied D.J.W. Instead, it argued that when a person’s conduct might satisfy more than one standard of dangerousness, a circuit court is only “encouraged”, not “required”, to specify a standard. The court of appeals rejected the county’s argument as “meritless.”  It held that under D.J.W, when a person is dangerous under multiple standards of dangerousness, the circuit court “is required to make specific factual findings with respect to at least one applicable subdivision paragraph, but it is encouraged to go further and enumerate each subdivision paragraph under which it finds the individual to be dangerous.” Opinion, ¶18.

Prior posts regarding D.J.W. violations have pointed out that by the time the court of appeals reverses, the commitment being challenged has expired. As result, the circuit court does not have competency to act in the case. Portage Cnty. v. J.W.K., 2019 WI 54, ¶20, 386 Wis. 2d 672, 927 N.W.2d 509.

In this case, the court of appeals reversed on May 25, 2021, and J.M.P.’s recommitment expires mid-July, 2021. Once the record is remitted there will be a little bit of time to hold a remand hearing.  But consider the consequences of that. This is a fast-track appeal. It took almost 11 months to get an appellate decision, and the court of appeals appropriately did not try to guess which dangerousness standard the circuit court had in mind.  But after remand proceedings, J.M.P. must appeal again and renew his claim that insufficient evidence supports the recommitment order. By this time his recommitment will have expired. Enter the mootness doctrine.

Bottom line: Ordering additional fact-findings for a D.J.W. violation is an unworkable remedy for people who have a due process right not to be committed without sufficient evidence.

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