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COA affirms initial commitment order; expresses critical thoughts as to “flood” of 51 appeals and hints at a renewed willingness to find at least some appeals moot

Winnebago County v. C.H., 2023AP505, 8/30/23, District 2 (one-judge decision; ineligible for publication); case activity

In this Ch. 51 appeal, COA swats aside familiar 51 arguments, expresses its frustration with a “flood” of Ch. 51 appeals and, with approving citation to a dissent from SCOW, hints that we may not have heard the last of the mootness doctrine in COA with respect to 51 appeals.

This is an appeal involving a prison inmate at WRC subject to a six-month initial commitment. (¶8). “Charley” argues there was insufficient evidence to support the commitment order and attacks a lack of clarity with respect to the circuit court’s finding of dangerousness. (¶1). Although the circuit court did not cite a statutory subsection, it found that Charley was “a danger because … of substantial probability of physical harm to himself and others.” (¶8). On appeal, the County argues that Charley is dangerous under the second, third and fourth standard. (¶18). COA searches the record and identifies sufficient evidence for each asserted dangerousness criterion:

  • As to the second standard (physical harm to others), the psychiatrist at WRC explained that Charley’s variant of schizophrenia causes “catatonic excitement” and the record shows that Charley was transferred to WRC because he hit another inmate. (¶19). While at WRC, Charley also threw a food tray at another person. (Id). 
  • As to the third standard (impaired judgment which creates a substantial probability of impairment or injury to self or others), the circuit court appropriately relied on the testimony from the WRC psychiatrist explaining how his catatonia led to specific incidents creating a “danger to others.” (¶20).
  • As to the fourth standard (unable to satisfy basic needs such that there is a substantial probability of self-harm), the circuit court relied on the testimony from another WRC staff member, who described an incident where Charley was banging his head on the floor and had to be Tasered to stop that behavior. (¶21). According to that same witness, Charley also frequently refused to eat and would not allow physicians to examine him to determine his physical well-being. (Id.).

The court made appropriate comments before checking the requisite boxes (well, mostly) and, because there is no “magic words” requirement–and the record clearly supports its findings–Charley’s sufficiency challenge fails. (¶24).

Note that Charley does not argue that the court’s failure to more precisely cite a statutory subsection during its oral ruling was a freestanding basis for reversal under Langlade County v. D.J.W.  As a result, the language in this opinion is considerably more deferential to the circuit court, inasmuch as it allows the County to provide clarity in its appellate briefing that may not have been present in the court’s decision. COA is even willing to overlook the circuit court’s “clerical error” in not checking one of the appropriate boxes, as the record is clear that there was evidence to support a conclusion of a “‘pattern of recent acts or omissions under § 51.20(1)(a)2.c, Wis. Stats.’ to support the finding of dangerousness under that statutory provision.” (¶20 fn.8). Likewise, COA also takes for granted the court’s apparent reliance on hearsay evidence, given the lack of any challenge on that basis. However, as we’ve pointed out recently, that particular challenge may be one of the more significant tools in the Ch. 51 toolbox.

That wraps up our analysis of the actual holding. But we’d be remiss not to also discuss Judge Lazar’s seven paragraph discussion she labels “initial considerations” and which precedes her application of the law to the facts in this case. (¶11). In Judge Lazar’s view, it is important to address the “recent and unprecedented flood of appeals in mental commitment cases” with reference to two considerations. (Id.) First, Judge Lazar asserts that “several appeals could be avoided if the parties and court below take care to ensure that the record is well-defined and unequivocal  with respect to which standard of dangerousness warrants the subject’s commitment.” (Id.). Although she clearly sympathizes with the burdens faced by “petitioners or trial courts,” Judge Lazar, like her colleagues in District II, wants system actors to do better. Notably, counsel for committees are not excluded from this critique, as “counsel for the subject individual could be more involved and demand clarity on the statutory standard for dangerousness” which would “potentially avoid the need for a significant number of appeals.” (¶12).

While we congratulate Judge Lazar for demanding more precision in circuit court proceedings, it is also worth pointing out that persons facing an involuntary mental commitment are entitled to zealous advocacy from appointed counsel. Fixing the record to deprive a client of an otherwise meritorious appeal does not appear remotely consistent with those concepts.

The second “initial consideration” is also important reading for Ch. 51 litigators. As we noted in our discussion of District II’s recent decision in J.L.C., there appears to be a renewed push to find at least some Ch. 51 appeals moot, especially those appeals taken by prison inmates at WRC. Here, Judge Lazar expresses skepticism that this prison inmate (like J.L.C.) will suffer any collateral consequences which would rescue this expired order from being moot. (¶13). Citing Chief Justice Ziegler’s dissent in Sauk County v. S.A.M.Judge Lazar displays her frustration with the state of law on mootness, which she believes has “flooded” the system with Ch. 51 appeals. (¶16). However, Judge Lazar ultimately sets aside those critiques to decide the case on the merits, saving the mootness issue for another day. (Id.).

A few takeaways here: The Court of Appeals, and District II specifically, is feeling the pressure created by the significant number of Chapter 51 appeals; given the repeated admonitions to system actors to “do better,” it clearly wants diligent circuit court actors to take the pressure off via more scrupulously following procedural requirements. It also, however, is openly skeptical about mootness and may have zeroed in on at least one subset of appeals that can be distinguished from the “usual” 51 case–mental commitments involving prisoners for whom the collateral consequences arguments do not as neatly apply (or, at least, that’s the argument). Given COA’s reminder that it is the appellant’s duty to develop an argument about mootness, these remarks cannot be ignored and must be considered in 51 appeals moving forward–especially if you have a prisoner case.

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