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COA rejects challenges to finding of dangerousness, incompetency to refuse medication and upholds trial court’s decision to admit expert’s report at 51 hearing

Winnebago County v. C.J.H., 2023AP1263, 3/6/24, District II (one-judge decision; ineligible for publication); case activity

In a 51 appeal presenting several commonly litigated issues, COA finds no error and affirms.

This is an appeal from an initial commitment order involving “Carly,” who allegedly became suicidal after being detained at the Winnebago County Jail. (¶3). Following a contested hearing, the court entered a six-month initial commitment order as well as an order for involuntary medication. Carly’s appeal presents the following issues:


As is common in one-judge opinions authored by Judge Lazar, she begins her analysis with a lengthy discussion of mootness. (¶¶11-15). Long story short: Judge Lazar is, as we have already covered in previous posts, a notable skeptic when it comes to SCOW’s recent mootness precedent; however, the discussion is ultimately nondispositive as COA opts to address the merits of the appeal regardless of “potential mootness.” (¶15).

We bring this issue up not to single out Judge Lazar and, in fact, would usually refrain from naming a particular judge in our posting. Yet, given the role of 1-judge opinions in resolving a burgeoning case load of 51 appeals, Judge Lazar’s scrupulous approach to the mootness issue stands out, even among her D2 colleagues. (See for example: B.R.C., T.M.G., Z.A.Y., and C.H.). Accordingly, litigators handling a 51 in D2 need to have this issue on their radar and should be prepared to engage with the mootness issue given Judge Lazar’s obvious interest and engagement with the case law in this area. Simply put: The non-mootness of Chapter 51 appeals cannot be taken for granted, especially in D2.

Admission of Dr. Bales’ Report

Carly also challenges the circuit court’s decision to admit Dr. Bales’ report into evidence, arguing that because it contained multiple levels of hearsay it was inadmissible. (¶16). COA holds, however, that it is “good practice” to admit the report in order to build the record for a potential appeal. (¶19). As to the hearsay issue itself, we admit that COA’s discussion is a little confusing:

Because it is true that the admissible statements considered by the expert in forming an opinion are not hearsay, circuit courts could always admit the examination reports as to the expert’s opinion but subject to a possible hearsay objection with respect to the dangerousness standard. While that is splitting hairs, it is appropriate; the acceptable hearsay that underlies an opinion cannot be utilized to establish dangerousness, which requires personal testimony. Thus, Bales’s report of examination was properly admitted. The question of what statements in the report are admissible and for what purposes must be addressed separately.


In context, we read COA to hold that while a report may be admissible for a nonsubstantive purpose, such as establishing the basis for the doctor’s opinion, the hearsay statements in that report cannot be used to establish dangerousness. Of course, if there are non-hearsay statements–such as the statements of a party opponent–then it would appear these could be “admissible” for the purpose of establishing dangerousness (even if that does somewhat contradict COA’s “personal testimony” requirement).

Sufficient Evidence of Dangerousness

Here, COA makes quick work of Carly’s dangerousness arguments. Carly made pretty clear statements evincing her intent to kill herself; those statements were all admissible as statements by a party opponent. (¶22). Even though Carly gave conflicting testimony, it was within the circuit court’s discretion to accept the version of events testified to by the County’s witnesses. (¶25).

Medication Order

Finally, Carly levies two attacks at the medication order. First, she asserts that Dr. Bales’ testimony was “conclusory” and insufficiently detailed. (¶26). Second, she avers that her own testimony establishes her competency to exercise a right of refusal. (Id.). COA appears to accept that the examiner must do more than offer merely conclusory testimony; however, it holds that the testimony in this case passed muster because it was “not a parroting of the statute’s language” and “was specific and unique to Carly.” (¶29). And, while COA does not directly respond to to Carly’s arguments about her testimony, it finds that the circuit court’s underlying findings of fact supporting the legal finding of incompetency were not clearly erroneous. (Id.).

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