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Does homelessness warrant a Chapter 51 mental commitment?

Milwaukee County v. E.C.H., 2019AP772, District 1, 1/14/20, (1-judge opinion; ineligible for publication); case activity

This appeal asks: Is evidence of homelessness, by itself, sufficient to prove that a person is dangerous to himself or will become dangerous if treatment is withdrawn? And the answer is . . . we don’t know. Hiding behind the mootness doctrine, the court of appeals declined offer guidance to the circuit courts on this important issue of law.

E.C.H.’s 6-month commitment expired on March 13, 2019. On July 3rd he was committed again. The court of appeals therefore dismissed this appeal as moot–meaning, a decision “cannot have any practical legal effect upon a then existing controversy.” The court of appeals explained:

E.C.H. challenges the circuit court’s factual finding of dangerousness. Such a challenge is “necessarily [a] factbound inquir[y] that will vary from case to case.” See S.L.L., 387 Wis. 2d 333, ¶41. Therefore, a decision in this case would not provide the type of guidance for circuit courts that E.C.H. requests, “nor would it preclude uncertainty in evaluation of [factual findings] in other cases.” See id. Opinion, ¶14 

E.C.H. challenged the sufficiency of evidence. Whether evidence of homeless is sufficient to prove dangerousness under Chapter 51 is an issue of law, not fact. In the Matter of Liberty Milk Marketing Cooperative, 2019 WI App 55, ¶40, 389 Wis. 2d 35, 934 N.W.2d 913 (“the sufficiency of the evidence is a question of law, which we review de novo.”)

There are over 5,600 homeless people in Wisconsin and nearly a quarter of them have severe mental illness. Click here. So the question presented by this case is not a “one off.”   And unless E.C.F. suddenly found a permanent home or was recently cured of schizoaffective disorder, bipolar type, the issue is not moot as to him.  See Washington v. Harper, 494 U.S. 210, 219 (1990)(unless the respondent has recovered from schizophrenia he remains at risk of being involuntarily committed and treated so the case is not moot).

Other state appellate courts have rolled up their sleeves to address the issue. See one example: State v. T.L.H., 202 Or. App. 63, 121 P.3d 17 (Ct. App. 2005)(schizoaffective disorder, delusions, refusal to take meds and homelessness are not sufficient grounds for a commitment). Wisconsin should address it too.

The idea that an appellate opinion on the sufficiency of the evidence can’t guide lower courts is wrong–especially in Chapter 51 cases, which are kept confidential. How are the bench and the bar to know how much evidence is sufficient to support a commitment when they are prohibited from seeing the records from comparable cases, and the court of appeals refuses to decide the issue? It is not that way in other states. See e.g In the Matter of Naomi B., 435 P.3d 918, 928-929 (AK 2019). (“an opinion considering whether a commitment order in one case was supported by sufficient evidence will likely be useful guidance by analogy to future commitment proceedings.”)

The question of whether an appeal from an involuntary commitment is ever moot is currently pending before SCOW in Waukesha County v. J.J.H., Appeal No. 2018AP168. Stay tuned for more developments on this front.

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