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Lack of due process objection dooms Chapter 51 appeal

Adams County v. D.R.D., 2020AP1426, 1/28/21, District 4; case activity

This appeal posed a simple question about due process in a Chapter 51 commitment proceeding. Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972) held that the 14th Amendment requires the county to give a person sufficient notice of the legal standard under which she is being detained so that she has a reasonable opportunity to prepare a defense. D.R.D. raised this issue on appeal but since trial counsel had not preserved the objection, the court of appeals held the issue forfeited.

After receiving a 911 call about D.R.D, law enforcement transported her to a hospital and filed a statement of emergency detention. At a hearing a few days later, the circuit court found probable cause to commit her but did not specify under which standard of dangerousness.

Eight days before the final hearing, two examiners filed reports. One opined that D.R.D. met the 1st and 5th standards of dangerousness, while the other said she met the 5th standard. The county never specified which standard it was proceeding under before the hearing, and the circuit court never said which standard it used to commit D.R.D.  On appeal, D.R.D. argued that her due process rights had been violated.

As noted, the court of appeals refused to address the issue because trial counsel hadn’t preserved it. It also refused to exercise its discretion to make an exception to the forfeiture rule. That would only encourage lawyers to sandbag errors or withhold objections for strategic reasons, it said. Opinion, ¶¶19-20.

A trial lawyer has zero incentive to withhold objections in a Chapter 51 case. Commitments are so short they usually expire before the court of appeals can decide them.  The client would suffer irreparable harm before appellate counsel (who is different from trial counsel) could debut the issue on appeal.  There is literally nothing to be gained by the strategy the court of appeals imagines.

The court of appeals also explained that D.R.D. had failed to explain why the doctors’ reports weren’t sufficient notice to satisfy due process. Opinion, ¶21.

The answer seems clear. The reports didn’t agree on a standard of dangerousness. The 1st and 5th standards require very different evidence and thus very different defenses. The former requires proof that D.R.D. was a danger to herself. The latter requires the county to prove 4 elements, including her incompetence to make treatment decisions, her treatment history, her willingness to use community services, and so forth, to show that she would become dangerous in the future if she did not receive treatment.

Although neither the county, the examiners nor the circuit court ever told D.R.D. and defense counsel which standard was in play, the court of appeals divined the appropriate standard to be the 1st standard and recited one examiner’s testimony about hearsay notations of alleged recent threats recorded in the hospital records from her emergency detention. Opinion, ¶38. “Alleged” because, as D.R.D. points out, the statement of emergency detention said nothing about suicide.

Recently, SCOW held that at the recommitment stage the county and the court must specify which of the 5 standards of dangerousness they are proceeding under. Langlade Cnty. v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277. D.R.D.’s hearing (an initial commitment) was held before SCOW issued D.J.W., so she argued that due process required the same principle to apply to her case. The court of appeals called the argument “conclusory” and refused to address it. it. Opinion, ¶37 n.9.

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{ 3 comments… add one }
  • Elizabeth Gamsky Rich February 1, 2021, 1:30 pm

    Trial counsel:
    Please file motions in limine requiring the County to specify which standard of dangerousness applies to your client. No fair saying “all five” or maybe this one, maybe that one. Here’s a sample: “That the County be required to identify, not later than 48 hours prior to the hearing, under which standard of dangerousness under Wis. Stat. §51.20(l)(a)(2)a-e it intends to proceed, and that the County be precluded from presenting evidence as to dangerousness under other standards. See Langlade County v. DJ. W, 2020 WI41, 391 Wis. 2d 231, 942 N.W.2d 277.”

  • admin February 1, 2021, 4:39 pm

    Query whether 48 hours would be sufficient time to prepare a defense under the 1st standard versus the 5th standard? Why can’t the county specify the standard in the 3 party petition or at the probable cause hearing for an initial commitment and in the petition for recommitment, which it is required to file 21 days before the existing commitment expires? This would help focus the examiners.

  • Elizabeth Gamsky Rich February 2, 2021, 4:15 pm

    Good point about the 48 hours. I have become accustomed to unreasonably short time frames in Chapter 51 trial work. The doctors don’t need to submit their reports until 48 hours prior, so that’s why I used that time frame. Due to our excessive deference to doctors in 51’s, I think corporation counsel would say they can’t identify the standard without reference to the checkbox form the doctors use. Certainly many opportunities for reform.

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