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Defense win! Circuit courts must specify dangerousness standard for initial commitments

Milwaukee County v. A.J.G., 2021AP1338, 5/3/22, District 1, (1-judge opinion, ineligible for publication); case activity

When a circuit court orders a ch. 51 recommitment, it must specify which standard of dangerousness the patient will satisfy if treatment is withdrawn. Langlade County. v. D.J.W., 2020 WI 41, ¶40, 391 Wis. 2d 231, 941 N.W.2d 277. This case holds that a circuit court must also specify the standard of dangerousness that the patient meets when ordering an initial commitment.

“Adam” was living in a group home when he was detained for an initial commitment.  At the final hearing, the parties disputed dangerousness.  The circuit court found that Adam had (1) started masturbating and was told to go to his room, (2) engaged in a forceful and violent confrontation with an attendee by punching her in the face and pulling her hair, and (3) engaged in a fight with police. Opinion, ¶4.

The circuit court found that “there is dangerousness all over the place” and “[i]f that’s not dangerousness, I don’t know what is.” The County “has easily met its burden by clear and convincing evidence that [Adam] is a substantial harm to himself or others.” Opinion, ¶6.

The circuit court ordered a 6-month initial commitment for Adam but it failed to specify which standard of dangerousness applied. Adam noted this error on appeal.

The court of appeals began by rejecting the idea that D.J.W. applies only to recommitment proceedings. Eliminating guesswork, providing clarity, and protecting rights are important at both the recommitment and initial commitment stages. Many unpublished Wisconsin opinions have so held. Opinion, ¶13.

We note that a number of other opinions have also indicated that D.J.W.’s mandate applies to original commitments—Winnebago Cnty. v. A.A.L., No. 2020AP1511, unpublished slip op. ¶17 n.8 (WI App Mar. 24, 2021); Shawano Cnty. v. S.L.V., No. 2021AP223, unpublished slip op. ¶16 (WI App Aug. 17, 2021); Outagamie Cnty. DHSS v. M.D.H., No. 2020AP86, unpublished slip op. ¶7 n.4 (WI App July 13, 2021); Trempealeau Cnty. v. B.K., No. 2020AP1166, unpublished slip op. ¶17 n.3 (WI App July 27, 2021); Outagamie Cnty. v. D.G.M., No. 2020AP967, unpublished slip op. ¶18 n.5 (WI App Sept. 21, 2021). See WIS. STAT. § 809.23(3)(b) (permitting the citation of unpublished, authored opinions issued after July 1, 2009, for their persuasive value). Opinion ¶13 n.3

The court of appeals then rejected the argument that it could infer the standard of dangerousness based on the circuit court’s comments. That would involve the sort of guesswork that D.J.W. sought to eliminate.

¶15 To start, none of the five standards of dangerousness use the phrase “a substantial harm.” The first standard and the second standard refer to “a substantial probability of physical harm.” WIS. STAT. § 51.20(1)(a)2.a. & b. The third standard refers to “a substantial probability of physical impairment or injury.” Sec. 51.20(1)(a)2.c.

¶16 In addition, the second standard does not contain a reference to an individual’s dangerousness “to himself.” The second standard requires “a substantial probability of physical harm to other individuals[.]” WIS. STAT § 51.20(1)(a)2.b. In comparison, the third standard requires “a substantial probability of physical impairment or injury to himself or herself or other individuals.” Sec. 51.20(1)(a)2.c.

Two footnotes are also noteworthy. The county argued that Adam forfeited the D.J.W. issue by failing to raise it in the circuit court. In Footnote 4, the court of appeals said “too bad.” Even if the argument were forfeited, “a reviewing court may disregard forfeiture and address the merits of an unpreserved issue . . . Given the liberty interests at stake and the fact that this case involves a legal challenge applied to undisputed facts, we decline to apply the rule of forfeiture here.”  Opinion, ¶17 (Citation omitted). Wow. How often do you see that in a ch. 51 appeal?

It gets better. In Footnote 5, the court of appeals notes that Adam asked for outright reversal. The County failed to respond so it conceded the remedy under Charolais Breeding Ranches, Ltd. v. FPC Secs. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct.App. 1979). Opinion, ¶17.

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