Winnebago County successfully petitioned to recommit A.P.D. under the 5th standard of dangerousness. On appeal, he argued that the county offered insufficient evidence of mental illness and of dangerousness. Although A.P.D. lost, he raised some good points that the court of appeals sidestepped or rejected.
Mental illness. The court of appeals rejected A.P.D.’s argument that the county failed to offer sufficient evidence of mental illness because he did not make the argument in the circuit court. Indeed, A.P.D. allegedly “sandbagged” the county on appeal. Furthermore, defense counsel apparently told the circuit court that A.P.D. admitted that he needed help with mental health, that he heard voices, and needed medication. Opinion, ¶11.
A Chapter 51 appellant need not raise “sufficiency of the evidence” in the circuit court in order to preserve the issue. Wis. Stat. §809.30(2)(h). Literally, one day after District 2 issued this decision, District 4 correctly noted that a ch. 51 appellant may raise sufficiency of the evidence arguments for the first time on appeal. See Sauk County v. A.D.S., ¶17 n.5 (11/17/22).
Perhaps the court of appeals meant to say that A.D.P. is bound by a concession that he made in the circuit court–that he has a mental illness that requires medication. But in Chapter 51 cases, “mental illness” has a specific meaning: “a substantial disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life, but does not include alcoholism. Wis. Stat. §51.01(13)(b). The county bore the burden of proof. If it failed to elicit testimony from Dr. Monese that A.P.D.’s mental illness satisfied this definition, then its evidence of mental illness is insufficient.
Dangerousness. A.P.D. challenged Dr. Monese’s testimony that he would become dangerous under the 5th standard if treatment were withdrawn because it just parroted the statute. According to the court of appeals, this is exactly what examiners are supposed to do. When they fail to use statutory terminology, SCOW reverses. See Outagamie County v. Melanie L., 2013 WI 67, ¶91, 349 Wis. 2d 148, 833 N.W.2d 607. Opinion, ¶26.
For good measure, the court of appeals added that Dr. Monese’s opinion was also based on his personal interactions with A.P.D. as his treating physician and A.P.D.’s treatment history. Opinion, ¶26.
A.P.D. also argued that the circuit court violated Langlade County v. D.J.W., 2020 WI 41, ¶59, 391 Wis. 2d 231, 942 N.W.2d 277 by not making all of the findings required by the 5th standard. The court of appeals held that the circuit court was only required to indicate which standard it grounds its recommitment on. No further findings were required. Opinion, ¶28.
Hmm. If the court had to make a series of statutorily required findings for an initial commitment based on the 5th standard, why wouldn’t it have to make the same findings (minus a pattern of recent acts per §51.20(1)(am)) for a recommitment based on the 5th standard?
A 5th standard commitment requires careful scrutiny. The 5th standard authorizes a court to confine and medicate a person before he becomes dangerous. The goal is to prevent him from becoming dangerous enough to be committed. For the initial commitment, the circuit court must consider recent acts or omissions (not necessarily of dangerousness). This standard barely satisfied due process in State v. Dennis H., 2002 WI 104, 255 Wis. 2d 359, 647 N.W.2d 851.
A recommitment based on the 5th standard requires no consideration of recent acts or omissions. In this situation, the commitment and medication are based on predictions about the person’s future behavior. SCOW has never held that a recommitment based on the 5th standard satisfied due process. A recently, published court of appeals opinion suggests that a recommitment based on a prediction of future behavior is not constitutionally permissible. “[A] commitment cannot be valid if it occurs before the constitutional basis for it exists. ” Outagamie County v. C.J.A., 2022 WI App 36, ¶16, __ Wis. 2d __, 978 N.W.2d 493. (Emphasis in original).