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COA resurrects mootness doctrine to dodge challenges to Ch. 51 order

Winnebago County v. J.L.C., 2023AP200, District II, 8/23/23, 1-judge decision ineligible for publication; case activity (briefs not available)

Although most litigators believed that arguments about mootness in 51 appeals were now settled, COA resurrects the mootness doctrine to deny relief in this appeal of an expired order.

J.L.C. appeals an initial commitment order and accompanying involuntary medication order. (¶16). Although the record is somewhat imprecise, it appears that J.L.C. has a guardian under Ch. 54 to make health-related decisions. (Id.). Despite “some dispute” pretrial as to whether J.L.C. was also subject to a protective placement order under Ch. 55, (¶4), it would appear that the availability of services under Ch. 55 was the dispositive issue at his jury trial. That is because, under both dangerousness standards at issue here (the fourth and fifth standard), the “Ch. 55 exclusion” discussed in Dane County v. Kelly M. applies. (For a thorough discussion of this concept, see our post on a recent-ish defense win in Fond du Lac County v. J.L.H.). In J.L.C.’s view, the plain language of the statute required the County to prove that “his needs could not be met by a ch. 55 protective placement.” (¶18). His second, related, claim is that Corporation Counsel made impermissible statements in rebuttal when he used his personal experience to explain to the jury why a protective placement would not be available. (¶15)

However, after roughly ten pages of exhaustively (and, as it turns out, irrelevantly) reciting all of the facts most unfavorable to J.L.C., COA abruptly informs the reader that it will not be addressing J.L.C.’s arguments on the merits after all. (¶20). Citing Portage County v. J.W.K.COA asserts that the appeal is moot as the six-month commitment order has now expired; a merits decision would therefore have “no practical effect on the underlying controversy.” (Id.). Although COA acknowledges SCOW’s holding in Marathon County v. D.K. “that appeals from expired initial commitment orders are not moot because of collateral consequences such as a firearms ban[,]” that holding does not apply to this case because: (1) J.L.C. is already subject to a firearms ban under the guardianship and (2) he is incarcerated and, as a felon, legally prohibited from possessing a firearm. (Id.)

For those readers who have been in the Chapter 51 game for the past several years, the resurgence of the mootness doctrine is likely to cause slight agitation, if not outright PTSD flashbacks. As we have posted about dozens of times, this issue used to be a common obstacle for Ch. 51 litigators given the numerous delays present in an overburdened system of appellate review, the short lifespan of an underlying order, and the frequency of recommitment proceedings. Appeals were stayed multiple times while SCOW tried to sort out the mess–first holding that initial commitment orders are not necessarily moot in D.K.then failing to reach a consensus on the mootness of recommitment orders in E.R.R. before ultimately embracing defense-friendly arguments in S.A.M. and holding that recommitment orders are presumably non-moot. 

However, while most 51 litigators embraced a broad reading of S.A.M. and rejoiced that they could presumably stop litigating this issue and instead focus on more important statutory and constitutional challenges, here COA refuses to play ball. Instead, for what appears to be the first time post-S.A.M., it holds that appeal of this expired order is moot. To get there, COA relies exclusively on a slim reading of SCOW’s narrow holding in D.K., which acknowledged that the continuing existence of collateral consequences stemming from an involuntary commitment can render appeal of an otherwise expired order non-moot. SCOW recognized three kinds of collateral consequences: “a firearms ban, civil claims, and cost of care.” (Opinion at ¶22). Quoting J.W.K., SCOW held that a finding of mootness “is limited to situations where […] no collateral implications of the commitment order are raised.” In D.K.the appellant pointed to the firearms ban as a continuing consequence; SCOW accepted that logic and agreed that his appeal was not moot as a result. (Opinion at ¶25). Following J.W.K., COA dings J.L.C. for not sufficiently raising the issue of collateral consequences and, reading D.K. as narrowly as possible, discerns that a firearms ban occasioned by this commitment order is irrelevant given other obstacles to J.L.C.’s lawful possession, including his felon status. (¶21). COA also repudiates J.L.C.’s claim that S.A.M. established that Ch. 51 appeals are “never moot,” finding no textual support for that proposition. (Id.).

Respectfully, this is a very bad reading of S.A.M. As to the firearms issue, removing one obstacle to lawful possession is enough to disprove mootness, even if reversal will have only a “marginal” impact on the person’s situation. (Opinion at ¶23). While it may be stretching the definition of the word “marginal” in these circumstances, at the very least the law isn’t quite as clear cut as COA makes it seem. Moreover, COA also wholly ignores the broader impact of S.A.M. As SCOW recognized, Section 46.10(2) provides that a committed person “shall be liable for the “cost of care, maintenance, services, and supplies” related to each commitment period. That mandatory language essentially allowed SCOW to presume a continuing consequence in S.A.M., thereby rejecting arguments that S.A.M. need to show proof of actual efforts to collect. (Opinion at ¶24). Given this discussion of the mandatory reimbursement language–and SCOW’s expansive use of the statute to override the County’s mootness arguments in S.A.M.–it actually doesn’t miss the mark by much to claim, as J.L.C. did here, that Ch. 51 appeals are “never” moot. After all, that’s certainly how the dissenting block of Ziegler, Bradley, and Roggensack read the majority opinion. (Opinion at ¶38).

Notwithstanding these criticisms of COA’s reasoning, the real lesson here is that 51 litigators cannot assume that mootness challenges are behind them. Instead, it would appear that–unless and until this opinion is corrected via a petition for review or a motion for reconsideration–litigators must continue to affirmatively argue non-mootness via citation to the language of S.A.M. in their opening brief to avoid this frustrating result.


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