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Outagamie County v. Michael H., 2013AP1638-FT, petition for review granted 6/12/14

On review of an unpublished court of appeals decision; case activity

Issue (composed by On Point)

Was there sufficient evidence to establish Michael H. was “dangerous” under § 51.20(1)(a)2.a. or c., based either on his “threats” of suicide or a pattern of acts or omissions showing such impaired judgment that there is a substantial probability of physical impairment or injury?

Sufficiency of the evidence issues rarely satisfy the standard for supreme court review, but this case will give the court a chance to elucidate at least one, and maybe two, of the five “dangerousness” standards under § 51.20(1)(a)2. Given the paucity of case law on the topic, the case will be important for anyone handling ch. 51 cases.

As noted in our previous post on the case, the County sought to commit Michael under ch. 51 on two grounds, and on appeal Michael challenged the sufficiency of evidence for both. The court of appeals addressed only the sufficiency of evidence for the first ground, which requires proof a person presents a substantial probability of physical harm to himself based on “evidence of recent threats of or attempts at suicide or serious bodily injury,” § 51.20(1)(a)2.a. Michael admitted to having suicidal thoughts, but is that a “threat” for purposes of the statute? The County argued it was, but the court of appeals disagreed, relying on the common definition of the word referred to in State v. Perkins, 2001 WI 46, ¶43, 243 Wis. 2d 141, 626 N.W.2d 762: “Thoughts, by themselves, do not constitute threats because they are not an expression of an intention to inflict harm.” (¶24). Nonetheless, the court held there was sufficient evidence based on Michael’s thoughts plus other evidence that he was planning to harm himself. (¶25).

The supreme court decision will either affirm or reject the court of appeals’ definition of “threat” and further define what evidence is need to prove a case brought under § 51.20(1)(a)2.a. And, if the court finds the evidence on that ground insufficient, it will have to address the evidence needed to prove the second ground—a pattern of acts or omissions showing such impaired judgment that there is a substantial probability of physical impairment or injury—under § 51.20(1)(a)2.c. Again, a decision to watch for if you handle ch. 51 cases.

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