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COA: For initial commitments, counties needn’t move examiners’ reports into evidence

Outagamie County v. L.X.D.-O., 2023 WI App 17; case activity

Unfortunately, the court of appeals just turned Chapter 51 upside down in a published opinion. It holds that counties must move examiners’ reports into evidence at recommitment hearings, but not at initial commitment hearings. This appeal concerns the sufficiency of the evidence to support an involuntary medication order entered following an initial commitment. The court of appeals held that the doctor’s testimony was insufficient to support the order, but the doctor’s report, which was not moved into evidence, filled the gaps. It thus affirmed the med order.

Mootness.  Before reaching the lead issue, the court of appeals resolved the county’s mootness challenge in a way helpful to the defense. Larry stipulated to his initial commitment. He only challenged the involuntary medication order. Because the order had expired, the court of appeals held the appeal moot. Opinion, ¶2.

SCOW recently held that appeals from expired commitments are never moot due to their collateral consequences, one being that the individual is potentially liable for the cost of care during his commitment per §46.10(2), unless his commitment is reversed. See Sauk County v. S.A.M., 2022 WI 46, ¶¶21-27, 402 Wis. 2d 379, 975 N.W.2d 162. Here, Larry argued that the “cost of care” would include the costs of medication, administering medication, and monitoring him while he was on medication.

The court of appeals “acknowledged that an argument could be made that the costs of care may be reduced if a medication were vacated.” However, it did not decide the point because Larry did not sufficiently develop the argument. Opinion, ¶14 n.8. Thus, this argument is fair game in other involuntary med appeals.

Despite finding the appeal moot, the court of appeals decided it based on the “capable of repetition yet evades review” exception to the mootness doctrine.  The record showed that Larry has ongoing mental health problems. He has been the subject of prior commitments, so it’s likely he will be the subject of future commitment and medication proceedings where the issues in this appeal will arise again. Opinion, ¶18. Although the court of appeals did not cite it, Washington v. Harper, 494 U.S. 210, 219 (1990) says the same thing regarding an appeal from an expired medication order.

Moving examiners’ reports into evidence. In two recommitment cases, SCOW and the court of appeals held that when a county fails to move an examiner’s report into evidence, the appellate court may not rely on it when reviewing the sufficiency of the county’s evidence. See Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, ¶7, n.4, 942 N.W.2d 277; Winnebago County v. S.H., 2020 WI App 46, ¶2 n. 3, 292 Wis. 2d 511, 947 N.W.2d 761.

The court of appeals now holds that initial commitment proceedings are different. Counties need not move examiners’ reports into evidence because they are governed by §51.20(9)(a)5. Under that subsection, once a court finds probable cause for an initial commitment, it must appoint two doctors to examine the individual, “make independent reports to the court” and file their written reports “with the court.” Allegedly, this subsection clarifies that the examiner’s testimony is not necessary. The reports are made for the court’s benefit. They are “not created for the parties’ benefit such that the parties must then seek to admit the evidence in the record.” Opinion, ¶33.

The court of appeals has made several errors. Hold on. Larry did not challenge his initial commitment. He challenged his involuntary medication order. Thus, §51.20(9)(a)5 does not apply to this appeal. Rather, §51.61(1)(g)3 governs examinations and reports for involuntary medication orders. It provides that a motion for involuntary medication must include a statement that the person needs medication and is not competent to refuse it. The filing of a report is optional (not mandatory) as under §51.20(9)(a)5.

Thus, under §51.61(1)(g)3, as in other civil proceedings, if a report is filed, the county must lay the foundation for it and move it into evidence. See e.g. Wis. JI-Civil 50 and 100 (“evidence” consists of exhibits admitted by the court); Krause v. Milwaukee Mut. Ins. Co., 44 Wis. 2d 590, 606-607, 172 N.W.2d 181 (1969)(when reviewing the sufficiency of evidence in a personal injury case the appellate court could not consider exhibits that weren’t admitted into evidence).

Just as important, the court of appeals misconstrued §51.20(9)(a)5) in a published decision. The plain language of the statute merely provides the procedure for a court to appoint examiners and file their reports. It does not provide that reports are automatically admitted into evidence. See Milwaukee County v. R.S., 162 Wis. 2d 197, 207, 470 N.W.2d 260 (1991)(making the same point regarding a similar provision in former §880.33 (now §54.36)); State v. Brown, 2005 WI 29, ¶101, 279 Wis. 2d 102, 693 N.W.2d 715 (Butler, J. concurring)(same re similar provision in §980.08(3)). That construction requires reading words into the statute.

Furthermore, §51.20(9)(a)5) reports are indeed filed for the parties’ benefit. Section 51.20(10)(b) expressly provides that defense counsel “shall have access” to the reports “48 hours in advance of the final hearing.” This gives defense counsel an opportunity to mount a defense, including preparing for cross-examination of the doctors who filed the reports. The reports also benefit the county, which must carry its burden of proof by clear and convincing evidence. Depending on what the filed reports say, the county might dismiss the case or call only one of the examiners at the commitment hearing.

Examiners’ reports often include hearsay. When a county moves a report into evidence, the defense has an opportunity to object and the circuit makes a record of its exercise of discretion for appellate review.

The court of appeals says its analysis is bolstered by Waukesha County v. S.L.L., 2019 WI 66, ¶24, 387 Wis. 2d 333, 929 N.W.2d 140, which held that petitions for recommitment are only governed by §§51.20(10) to (13), which excludes §51.20(9)(a)5. Thus, reasoned the court of appeals, the county need not move reports into evidence during initial commitment proceedings but it does need to during recommitment proceedings. Opinion, ¶35.

S.L.L. conflicts with the plain language of §51.20. Subsections beyond §§51.20(10) through (13) apply to recommitment proceedings. Here are a few obvious examples: §§51.20(1)(am), (1m), and (2)(a). The court of appeals has previously acknowledged S.L.L.‘s many flaws. See Rusk County v. A.A., 2021 WI App 63, ¶55, __Wis. 2d __, 964 N.W.2d 543 (unpublished)(Stark, J. concurring)(noting that S.L.L. raises equal protection concerns for persons undergoing recommitments versus initial commitments). Hopefully, SCOW will one day reverse or modify S.L.L.

Sufficiency of evidence. In Larry’s case, the court of appeals held that Dr. Bales’ testimony was not sufficient to support an involuntary medication order. His perfunctory statement that he attempted to talk to Larry about medication does not prove that he received a reasonable explanation of the proposed medication. Besides, Dr. Bales neglected to say whether Larry met §51.61(1)(g)4.a or b. Opinion, ¶¶25-27.

However, Dr. Bales’s report, which the county neglected to move into evidence, was much more detailed. Considering both Dr. Bales’ testimony and his report, the court of appeals held that the County carried its burden of proof.

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