For more than a year now, Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, has required circuit courts imposing ch. 51 commitments to identify which statutory form of dangerousness has been proved. A little over a month ago, the court of appeals decided Rock Co. DHS v. J.E.B., holding the circuit court failed to satisfy this requirement. But the appellate court didn’t undo the commitment: it just remanded for the circuit court to decide whether the facts satisfied any of the five standards. It did this even as it declined to address J.E.B.’s other challenge: that there was insufficient evidence of any form of dangerousness. This latter claim would have required dismissal of the petition. Is the court of appeals free to refuse to consider a litigant’s claim–a claim that would that would dispose of the entire case–for no other reason than that it is granting some lesser relief?
Well, whether it should or not, the court has refused to address sufficiency claims twice now; this case is J.E.B. redux. Here–despite M.W.’s pretrial request that the county say which standard it was trying to prove–the circuit court committed M.W. without saying why it was doing so. The court of appeals decides–relying on J.E.B., which was itself devoid of any reasoning on the point–that the remedy for this error is remand and a second bite at the apple for the circuit court. And it does so despite M.W.’s claim that the evidence was simply insufficient–without deciding that claim. Refer to our post on J.E.B. for reasons why this remedy is inadequate and contrary to law. Both of these opinions are non-binding, one-judge decisions. So we can still hope that the appellate courts will reconsider, and refrain from undermining the protections that D.J.W. so recently announced.