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COA holds ch. 51 appeal not moot; rejects several evidentiary challenges

Marquette County v. T.W., 2020AP1908, 9/16/21, District 4 (one-judge decision; ineligible for publication); case activity

T.W. was living in a group home in 2019 when, per testimony at his commitment trial, he punched, choked and threatened various people while refusing to take his medications. He was committed. On appeal he challenges the circuit court’s admission of some evidence. The county responds that his challenge is moot.

The court holds the case not moot, though the six-month original commitment is long expired. T.W. points out that Wis. Stat. § 46.10(2)-(3) directs the county department to collect from him the costs of his “care, maintenance, services and supplies” during his commitment and reasons that were the commitment order invalidated as he requests, these costs would not be chargeable to him. Thus, he says, the order’s validity or invalidity will have a practical effect on him and is not a moot issue. The court notes that our supreme court has reserved this very question and deems the County’s responses inadequate, and thus holds the case not moot.

On the merits, the court assumes that “other acts” evidence is subject to limitations in a ch. 51 case similar to those applicable in a criminal case (though the county suggests it is not, analogizing to ch. 980 and State v. Franklin, 2004 WI 38, ¶24, 270 Wis. 2d 271, 677 N.W.2d 276). It nevertheless holds that T.W. hasn’t shown why the specific prior conduct at issue wouldn’t come in, particularly focusing on an incident about a year before the events that led to the initiation of commitment proceedings wherein T.W. became violent in response to attempts to administer medication. The court opines that this evidence “could be highly probative” in assessing an expert opinion about T.W.’s lack of insight into his mental illness and the consequences of removing treatment. (¶33).

T.W. next argues that the county violated the circuit court’s pretrial order when it elicited testimony strongly hinting at the fact that he’d previously been committed. The court of appeals holds any error on this point harmless. It says the issue at trial was whether T.W.’s 2019 behavior was caused by mental illness or, instead, an infection. In the court’s view, T.W.’s history is relevant to this question and not unduly prejudicial. (¶¶35-38).

The court similarly rejects, for various reasons, T.W.’s arguments that the circuit court erroneously allowed experts to serve as conduits for hearsay, noting that some of his objections were sustained and that others concerned evidence that was introduced at other points without objection. (¶¶40-44).

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