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Part I: COA affirms ch. 51 initial commitment and med order in violation of precedent

Rock County v. J.J.K., 2020AP1085, 4/29/21, District 4, (1-judge opinion, ineligible for publication), case activity

This is an appeal from the initial commitment and involuntary medication order entered against J.J.K. The court of appeals affirmed both contrary to published precedent on the rule against hearsay, the plain error doctrine, and procedural and substantive due process.

J.J.K. admits that he has a mental illness. He declined housing from the county preferring instead to live outdoors under a bridge even in January. He testified about how he dressed in order to protect himself from the weather. There was no evidence that his winter camping caused him injury. He also declined food from a county employee because he did not know what the employee had put into it. He was willing to accept food and medical care from other sources, and he had a payee.

These facts made for a potentially interesting issue for review–whether a court may commit a person diagnosed with a mental illness just because they prefer living outdoors over government housing. However, the court of appeals did not decide J.J.K.’s appeal on this basis.

Instead, the court of appeals relied on testimony by Dr. Kevin Miller, a psychologist. Miller opined that J.J.K. posed a “significant risk of harm” to others because a police report, which was not part of the record, alleged that when officers made contact with J.J.K. he swore at them, and, carrying a large rock, came at them in an assaultive manner. Miller also relied on Winnebago reports that while staff were physically retraining J.J.K. and forcibly medicating him he threatened to “fuck someone up upon release” and that the judge would “go down” for illegally ordering involuntary medication. Opinion, ¶¶9-10.

J.J.K. admitted to making the Winnebago comments out of anger and frustration. He said the medication made him hallucinate. After his release from restraints, he made no attempt to hurt himself or others. Opinion, ¶14.

The court of appeals acknowledged its own prior published case law on the admission of hearsay in Chapter 51 cases: S.Y. v. Eau Claire Cnty., 156 Wis. 2d 317, 327-28, 457 N.W.2d 326 (Ct. App. 1990) (“While experts may rely on inadmissible evidence in forming opinions, [WIS. STAT. §] 907.03, the underlying evidence is still inadmissible.”); State v. Coogan, 154 Wis. 2d 387, 399, 453 N.W.2d 186 (Ct. App. 1990) (expert may not act as a conduit for inadmissible evidence).  Opinion, ¶33.

It also acknowledged §901.03(4)’s plain error doctrine: “Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge.” Opinion, ¶36.

However, the court of appeals timidly declined to put the two together. It refused to apply the plain error doctrine to the erroneous admission of hearsay in a Chapter 51 case without prior approval from another court. It also held that J.J.K. failed to show why it should abandon the forfeiture rule in this situation. Opinion, ¶37.

One reason that appellate courts should apply the plain error doctrine in this situation is that Wisconsin commitment hearings must conform to the essentials of due process per §51.20(5). SCOTUS has delineated the essentials of due process at commitment hearings. In particular, the individual has a due process right to confront and cross-examine witnesses. Vitek v. Jones, 445 U.S. 480 (1980). The admission of hearsay prevents him from exercising that constitutional right. A petition for review regarding the plain error doctrine’s application to Chapter 51 cases is pending in Milwaukee County v. K.M., Appeal No. 2019AP1166.

J.J.K. also argued that the circuit court failed to identify which standard of dangerousness he was committed under citing Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277. But the court of appeals held that D.J.W. does not apply because it was decided after J.J.K.’s commitment hearing. Opinion, ¶42.

D.J.W. is neither the first nor the only case to require the government to notify an individual of the legal standard it is proceeding under before the commitment hearing. See J.J.K. Part II. Also, the court of appeals has certified the question of what notice due process requires the county to give in Rusk County v. A.A., Appeal Nos. 2019AP839, 2020AP1580

Lastly, J.J.K. challenged the circuit court’s involuntary medication order. His examiners agreed that he understood the advantages and disadvantages of antipsychotic medication. He just couldn’t apply that understanding in order to make an informed choice to accept or refuse medication.  Translation: J.J.K. disagreed with the examiners’ recommendation.

J.J.K. was diagnosed with an unspecified psychotic disorder–possibly schizophrenia. He admitted that he struggled with mental illness, but he noted that still able to function in society. Opinion, ¶ 14.  He did not believe that his condition required medication. Besides, the medication made him feel like a walking zombie. He felt so foggy that he could not do Sudoku, which he loves. Opinion, ¶15

The court of appeals upheld the involuntary medication order because J.J.K. had stopped medication in the past and because while he is on it, he shows improvement. opinion, Opinion, ¶¶56-59.

The court of appeals opinion conflicts with two SCOW decisions and a statute.  Courts cannot order involuntary medication because it “improves” a person’s condition, or because the person is incompetent, or because he disagrees with the examiners’ recommendation. Outagamie County v. Melanie L., 2013 WI 67, ¶93, 349 Wis. 2d 148, 833 N.W.2d 607. Just last term SCOW reinforced the point that the individual has a right to refuse medication even if he is incompetent to make medication or treatment decisions.

A court may force medication upon a person only if he is “dangerous.” Winnebago County v. C.S., 2020 WI 33, ¶31-34, 391 Wis. 2d 35, 940 N.W.2d 875. “Dangerousness” for purposes of involuntary medication is defined in §51.61(1)(g)3. A situation must “exist” where medication is necessary to prevent “serious physical harm” to the individual or others. Judging from the court of appeals’ opinion, J.J.K.’s examiners did not address this medication standard at all, and the county offered no evidence to indicate that at the time of J.J.K.’s hearing “a situation existed” where medication was necessary to prevent “serious physical harm” to someone.

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