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Ch. 51 respondent had sufficient notice of standard of dangerousness; and the evidence was sufficient to dangerousness

Trempealeau County v. B.K., 2020AP1166, District 3, 7/27/21 (one-judge decision; ineligible for publication); case activity

B.K. (“Brian”) argues he was denied procedural due process because he was not given particularized notice of which standard of dangerousness the County intended to prove at the final commitment hearing. He also contends the evidence presented at the hearing was insufficient to prove he was dangerous. The court of appeals rejects with both claims.

Brian argues that it was “consistently unclear” which of the five standards of dangerousness under § 51.20(1)(a)2.a.-e. the County intended to pursue, and that Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), vacated and remanded on other grounds, 414 U.S. 473 (1974), reinstated, 413 F. Supp. 1318 (E.D. Wis. 1976), as well as § 51.20 itself, he must be notified which of the five dangerousness standards the County plans to pursue in the final hearing. The court of appeals disagrees:

¶15     There is no requirement …. that one or more of the five standards of dangerousness be explicitly alleged by the County prior to a final hearing—a proposition Brian concedes. This is rational, given that the County would not receive reports from evaluating physicians—a primary focus of Wis. Stat. ch. 51 commitments—until shortly before the final hearing. Procedural due process does not require the County to provide notice of every trial strategy or specific approach it might plan to take, especially when the evidence necessary to evaluate dangerousness is forthcoming, and when indicating the general dangerousness standards is sufficient. See Milwaukee Cnty. v. T.L.R., [No. 2018AP1131, unpublished slip op.,] ¶15 [(WI App Dec. 14, 2018)] (holding that no statutory requirement exists that the County must specify which of the dangerousness standards is to be alleged at a final commitment hearing, and that a list of potential dangerousness standards is constitutionally sufficient).

Brian’s reliance on Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, doesn’t help him. That case mandate particularized fact findings by the court at the hearing regarding dangerousness, but not pre-hearing notice about the specific standard the County would rely on. “Both the notice of final hearing and the statement of emergency detention in Brian’s case cited or listed the standards of dangerousness under Wis. Stat. § 51.20(1)(a)2.a.-e. Therefore, Brian had sufficient notice of the standards under which he was to be evaluated, and his right to procedural due process was not violated.” (¶16).

Whether the petition to commit (or recommit) needs to allege one or more of the specific dangerousness standards under § 51.20(1)(a)2. is pending before the supreme court in Sauk County v. S.A.M.

As to sufficiency of the evidence, the circuit court impliedly relied on § 51.20(1)(a)2.d. by citing Brian’s inability to “meet his basic needs” due to his mental illness and based on the incident leading to his detention. Brian claims that incident wasn’t enough to satisfy the standard, but the court of appeals again disagrees:

¶20     …. Brian was found in freezing cold weather carrying a mailbox and wearing shorts, a cut-off t-shirt and a windbreaker jacket, with no gloves or hat. Despite consistently commenting that he was “too cold to feel his arms,” and his making little sense to the responding officers, Brian refused for over an hour to move his conversation with police inside. Once there, Brian continued to insist on returning to the dangerously cold weather outdoors. This incident alone is sufficient to establish dangerousness under Wis. Stat. § 51.20(1)(a)2.d., as it shows that Brian was unable to satisfy his basic needs forshelter and safety, such that there was a substantial probability that his death or serious debilitation would ensue absent treatment.

¶21     Beyond the incident leading to his commitment, Brian’s reported behavior after being committed—including reports that at the hospital he was delusional, confused, and manic—confirm that the behaviors exhibited by Brian that put him at risk during the initial incident have continued. ….

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