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COA finds adequate notice and sufficient evidence in ch. 51 case; introduces confusion on finality of meds order

Winnebago County v. A.A.L., 2020AP1511, 3/24/2021, District 2 (one-judge decision; ineligible for publication); case activity

A.A.L. appeals her commitment under ch. 51. She claims the county didn’t give her adequate notice of which statutory forms of dangerousness it intended to prove, and that in any event it didn’t prove any of them. The court of appeals finds the notice argument forfeited (though it goes on to say it’s also unconvincing). And though it admonishes the county for presenting a bare-bones case and calls the question “close,” the court also holds the evidence of dangerousness sufficient for commitment.

Pretty bread-and-butter as commitment appeals go. But there is something notable here unrelated to the merits. Along with the order for commitment, the circuit court entered an order that A.A.L. be involuntarily medicated under Wis. Stat. § 51.61 (1)(g)3. A.A.L.’s notice of appeal was from both orders, though she makes no argument specific to the medication order. Since there are no challenges specific to the meds order, the court could just say that; instead it adds that “the medication and treatment order is not a final order for the purposes of appeal.” This uncited assertion would be a big deal if it were correct. Absent an  interlocutory appeal–which is rarely allowed–a nonfinal order can’t be appealed at all: the appellate courts lack jurisdiction. See State v. Wolfe, 2019 WI App 32, ¶¶6-10, 388 Wis. 2d 45, 931 N.W.2d 298; Willing v. Porter, 266 Wis. 428, 431, 63 N.W.2d 729 (1954).

But there are good reasons to think it’s not correct. For one thing, ch. 51 medication orders are routinely appealed, and those appeals are decided. See, e.g.Outagamie County v. Melanie L., 2013 WI 67, ¶ 5, 349 Wis. 2d 148, 833 N.W.2d 607; Winnebago County v. C.S., 2020 WI 33, 391 Wis. 2d 35, 940 N.W.2d 875; Waukesha County v. Kathleen H., 2014 WI App 83, 355 Wis. 2d 580, 851 N.W.2d 473 (citable one-judge decision).  Can it be that these decisions (and many more) were entered despite a lack of jurisdiction?

For another, why wouldn’t a § 51.61(1)(g)3. order be final? (These orders are the ones entered after a commitment; a different provision, § 51.61(1)(g)2., governs the short-term orders that may be imposed while a commitment proceeding is pending.) A final order is one that “disposes of the entire matter in litigation as to one or more of the parties.” Wis. Stat. § 808.03(1). When a committed person has been ordered involuntarily medicated, there’s nothing more to litigate in the circuit court. Certainly, a § 51.61(1)(g)3. order is no less final than an order for involuntary medication and under Wis. Stat. § 971.14(4)(b), which the supreme court held appealable as of right in State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141.

Turning to the issues presented, the court first holds that A.A.L. has forfeited her due process claim. She’d argued that Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), required the county to give her enough advance notice of the statutory dangerousness grounds to permit her to defend herself. The court of appeals notes that she didn’t raise this claim in the circuit court. It adds that in any case, the examiner’s reports, the testimony at the probable cause hearing, and the statement of emergency detention all alerted her counsel to the grounds, and that her counsel did seem prepared to address them. (¶¶10-13). The court also rejects A.A.L.’s reliance on Langlade County v. D.J.W., 2020 WI 41, ¶29, 391 Wis. 2d 231, 942 N.W.2d 277, noting that it has previously held that case’s rule to be prospective only. (¶14).

The court also rejects A.A.L.’s claim that there was insufficient evidence of her dangerousness. It concludes that the experts’ testimony combined with the incident leading to her emergency detention were enough, if just barely, to prove dangerousness under Wis. Stat. § 51.20(1)(a)2.c:

On appeal, the County conceded that “the [C]ounty and the trial court could have done more to create a better record in this case. More facts could have been developed through testimony and the court could have supported its findings with more facts.” We agree with the County’s assessment. Given our supreme court’s decision in D.J.W.—released after the final hearing in this case—our expectation is that this will be the last year a petitioner in a mental commitment case will need to make such a concession. See D.J.W., 391 Wis. 2d 231, ¶59. These cases should be held to the highest legal standards.


Of particular note, the court holds there was enough evidence to show there was no “reasonable probability” that A.A.L. would voluntarily avail herself of services in the community that would reduce her dangerousness, satisfying the second part of the statutory standard. (¶23 n.13).

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