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Evidence supported commitment under 2nd standard, due process challenge forfeited

Monroe County v. D.J., 2019AP1133, 1/2/19, District 4, (1-judge opinion, ineligible for publication); case activity

Oh, this issue again. Monroe County pursued a Chapter 51 original commitment against D.J. but didn’t say which of the 5 standards of dangerousness it was proceeding under. One doctor opined that commitment was warranted under the 1st or 2nd standards. The other doctor specified 2nd or 5th standards. The trial court instructed the jury on all 3 standards. D.J.’s trial counsel didn’t object. And the jury found commitment warranted.

On appeal D.J. argued that he was denied procedural due process because the County did not notify him of the standard under which he was being detained. See Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972). The court of appeals held that the lack of objection forfeited the error. And while forfeiture is simply a rule of judicial administration, it saw no need to address the issue because D.J. did not identify any facts to show that he was put in an impossible situation to justify bending the rules. Opinion, ¶12. 

D.J. also argued that there was insufficient evidence to commit him under the 2nd standard. (The County failed to defend the commitment under the 1st and 5th standards). The 2nd standard requires evidence that the person poses a substantial probability of physical harm harm to others as evidenced by recent violent behavior or threats to do serious physical harm, for example. WIS. STAT. § 51.20(1)(a)2.b.

D.J. satisfied this standard because he made threats to, and engaged in and altercation with, hospital staff, broke a hospital door, and made makeshift weapons, and threatened to kill murderers, rapists, and Donald Trump. Opinion, ¶¶18-22.

Like Monroe County here, some counties argue that a person cannot raise insufficiency of the evidence argument for the first time on appeal from a commitment order. The court of appeals correctly points out that this is flat out wrong.  See WIS. STAT. § 51.20 (appeals from a commitment order are governed by WIS. STAT. RULE 809.30); RULE 809.30(2)(h) (sufficiency may be raised for the first time on appeal). Opinion, ¶17 n.7

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