This case presents multiple SCOW-worthy issues. One is an interesting constitutional dilemma. The County sought to extend E.K.’s commitment and involuntary medication order and, as evidence, offered threatening emails that E.K. had allegedly sent. Defense counsel objected because the emails had not been authenticated. So the County called E.K. to the stand to authenticate them. Defense counsel objected on 5th Amendment grounds. This prompted E.K. to say: “I’ll waive that. Yes, those are my emails.”
The record for this appeal is confidential, but judging from the court of appeals opinion, it appears that the circuit court did not engage in a colloquy a la State v. Weed as recommended by State v. Denson, 2011 WI 70, 335 Wis. 2d 681, 799 N.W.2d 831. It did not inform E.K. that he had a 5th Amendment right against self-incrimination. It did inform E.K. that he had the right to ignore the advice of counsel, and it asked him whether he wished to refuse to answer the County’s question on the grounds that it might incriminate him. Op. ¶¶11-12.
On appeal, E.K. argued that the County infringed his 5th Amendment rights by calling him as a witness. The court of appeals: (1) criticized counsel for failing to cite supporting legal authority, (2) assumed that E.K.’s 5th Amendment rights were violated, and (3) sua sponte found the error harmless. ¶20. In doing so, the court of appeals did not confine itself to the meager evidence offered by the County at the extension hearing. It considered testimony and exhibits from the earlier hearings in E.K.’s case. ¶23.
Let’s unpack the problems with this decision. First, hearings under Chapter 51 must conform to due process, which means that E.K. had the right to remain silent. §51.21(5). At earlier hearings, the circuit court, based on physician testimony, held that E.K. was incapable of expressing an understanding of the advantages, disadvantages and alternatives to treatment. The circuit court made the same finding at the extension hearing. If this is true, then it surely raises doubts about E.K.’s ability to make a knowing, voluntary, and intelligent waiver of his 5th Amendment right against self-incrimination.
Second, the County bore the burden of proving by clear and convincing evidence that E.K was incompetent to refuse medication. §51.20(13)(e); Virgil D. v. Rock County, 189 Wis. 2d 1, 12 n.7, 524 N.W.2d 894 (1994). The County apparently did not carry its burden at the extension hearing. Otherwise, there was no reason for the circuit court and the court of appeals to rely upon evidence from previous proceedings to justify the extension order. When a person’s liberty interest in being free from involuntary commitment and medication is at stake surely our courts shouldn’t step in and help the County.
Third, Outagamie County v. Melanie L., 2013 WI 67, 349 Wis. 2d 148, 833 N.W.2d 607 held that the County must establish how its medical experts probed the issue of whether a person is incapable of applying an understanding of the advantages, disadvantages and alternatives to treatment to his mental illness in order to make an informed decision. The court of appeals, without citation to legal authority, holds that Melanie L’s requirement applies only to §51.61(1)(g)4b. Query whether it should also apply to §51.61(1)(g)4a (which requires medical expert testimony re whether the individual is incapable of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives to it).