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COA rejects plain error hearsay challenge in Chapter 51 appeal, ducks constitutional argument

Walworth County v. E.W., 2023AP289, 11/1/23, District II (one-judge decision; ineligible for publication); case activity

Defying the recent trend of hearsay victories in Chapter 51 appeals, COA rejects E.W.’s attempt to argue that the admission of hearsay evidence at his final hearing constituted “plain error.”

At “Edward’s” recommitment hearing, the County’s sole witness was Dr. Rawski, who testified at length about Edward’s historical mental health struggles. (¶6). On appeal, Edward argues that the circuit court improperly relied on hearsay evidence when it concluded this testimony satisfied the statutory standard for dangerousness. (Id.). Edward is forced to raise the claim in this fashion because counsel failed to object to any of the hearsay testimony during the hearing itself. (¶7).

However, Edward’s claim receives a frosty reception from COA, which holds that his argument “fails to persuade.” (¶9). Without much in the way of explication, COA holds that Edward has failed to sufficiently develop his arguments and, for that reason, his claim “fails right there.” (Id.). Without analyzing the claimed hearsay or citing any law (besides the general test for plain error and the axiom that this doctrine is to be applied “sparingly”), COA concludes: (1) some of the objectionable hearsay was, in fact, “not hearsay at all” presumably because they were statements of a party opponent and; (2) because Edward has not proved admission of the remaining hearsay was “fundamental, obvious, and substantial” then COA can safely conclude this hearsay was “competent evidence” the circuit court was permitted to rely on in reaching its decision. (¶¶10-11).

This is a frustrating defense loss, as the opacity of COA’s reasoning–and the confidential nature of the briefs–makes it impossible to assess whether and to what extent COA’s conclusory statements about the hearsay evidence are supported by the record. And, by harshly rejecting Edward’s plain error claim, COA appears to have created a conflict with its recent unpublished decision in Z.A.Y., which held that a circuit court cannot rely on hearsay in making the required sufficiency findings prior to entering a 51 order. Looking at these two cases, it would appear that appellate litigators must thread a very fine needle. On the one hand, Z.A.Y. would appear to encourage litigants to argue that, when the circuit court analyzes the sufficiency of the evidence prior to entering an order at a final hearing as required by D.J.W., findings incorporating hearsay evidence are facially improper and cannot be used to uphold a challenged commitment order. On the other, this case shows that if the litigator actually cites and applies the plain error standard to make essentially the same arguments, then that claim will face a much tougher uphill climb and likely will not prevail under that imposing standard of review.

Two more points to make here before we discuss Edward’s constitutional claim. First, it is interesting to compare and contrast this decision’s relatively laissez-faire discussion of hearsay evidence with other recent citable decisions honing in on this recurring issue in 51 cases. See our posts here, here, and here. Second, COA’s citation of the dated Virgil v. State decision is eyebrow-raising, to say the least. Maybe there are evidence aficionados in the comments who can make it make sense, but it seems somewhat problematic to hold, as COA does (and SCOW has) that inadmissible evidence not permitted in court under the evidence rules can nevertheless constitute “competent” evidence so long as counsel does not make an objection. We look forward to the interesting PFR this case will likely generate!

Aside from his plain error argument, Edward also raises a novel constitutional claim. In a nutshell, he argues that when the involuntary medication statute and the recommitment standard (which lessens the burden of proof by not requiring recent acts of dangerousness at a recommitment hearing) work in tandem–as they do in most recommitment cases–then that statutory scheme is facially unconstitutional. (¶12). COA characterizes this argument as “modestly developed” and bordering on “frivolous.” (¶13). Applying SCOW’s decision in Waupaca County v. K.E.K., COA holds that the argument is foreclosed by precedent and that Edward has failed to distinguish away that authority  and prove a constitutional violation. (¶14).

While COA tries to downplay Edward’s constitutional claim, Edward might be on to something in this appeal. To understand why requires a bit more explication than is contained in COA’s scant summary of the argument. To begin, even incompetent and mentally ill persons have a constitutionally protected right to refuse involuntary medication. See Winnebago County v. C.S. To get around that protected right of refusal, the United States Supreme Court requires the State to prove the existence of an “overriding” or “essential” State interest. While the case law is less clear than one might wish, assume–as SCOW and COA have–that this constitutional requirement is satisfied when medication is necessary to protect that person or others from “danger.” So far, so good.

Thus, when an involuntary medication order is entered in conjunction with an initial commitment order–which requires proof of recent acts demonstrating that, but-for emergency intervention, the committee may pose an imminent risk of (to name two extreme examples) killing themselves or others–the constitutionality of the State’s request for involuntary medication to protect against that “danger” seems to be on (relatively) firm ground. The finding of dangerousness under Chapter 51 is (presumably) sufficient to justify involuntary medication, as the involuntary medication statute explicitly contemplates.

Imagine, however, as often occurs, that the person remains on a continually extended commitment order for years. They may well be compliant with medication and, as is often the case, have committed no dangerous acts for several years. Yet, under the relatively liberal construction our courts have given the recommitment standard in § 51.20(1)(am), the County can continually recommit that person based entirely on future predictions of dangerousness, without any proof that the person is “actually” dangerous at the time of a recommitment hearing. Notably, once the County obtains an extension order under this dangerousness standard (like any other finding of dangerousness under Chapter 51), it is not required to make a separate showing of dangerousness to obtain an accompanying involuntary medication order under the involuntary medication statute.

The question posed by Edward is straightforward under these circumstances: Is the “future dangerousness” criterion in § 51.20(1)(am) sufficient to justify involuntary medication? In other words, does due process permit the State to involuntarily medicate someone who is not presently dangerous but who is predicted to “become” dangerous at some point in the future? Are those future predictions a sufficiently compelling State interest?

Rather than addressing this issue head-on–which would pose a problem for our entire recommitment scheme–COA ducks the issue here by invoking SCOW’s decision in K.E.K., which held–when faced with a challenge to the constitutionality of the recommitment standard–that “future” dangerousness is “present” dangerousness. In other words, the person is dangerous “now” because they have a risk of becoming dangerous “later.” While K.E.K. is, on its face, an unsatisfying opinion that is likely deserving of revisitation at some future point, K.E.K. simply did not address the constitutional argument raised by Edward. That argument asks whether this “dangerous later means dangerous now” standard is sufficient to justify involuntary medication or whether a scheme permitting indefinite recommitment and involuntary medication based solely on future predictions of dangerousness poses fundamental constitutional issues. To say we look forward to this petition for review is an understatement.

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