In addition to the two court ordered psycholigical examinations required under § 51.20(9)(a)1., subdivision 3 provides individual’s subject to potential involuntary civil commitment “a right” to an additional psychological examination. See Wis. Stat. § 51.20(9)(a)3. If requested, the cost of the examination is either (1) at the individual’s expense or (2) “if indigent and with approval of the court hearing the petition, at the reasonable expense of the individual’s county of legal residence…” As a matter of first impression, the court of appeals holds that individuals seeking such an evaluation must satisfy an implied and unspecified burden of proof to establish indigency before the individual may obtain an additional examination at county expense. (Op., ¶¶8-9).
This is a frustratingly unpersuasive unpublished decision for a number of reasons. William was emergently detained under Ch. 51, and after probable cause was found, the circuit court appointed two psychiatrists to examine William and prepare reports in advance of the final hearing. After both reports were filed, William immediately filed a request for an additional examination under § 51.20(9)(a)3. William asserted that he was indigent, but the court denied his request. William filed a motion to reconsider, noting that William was represented by counsel appointed by the State Public Defender’s Office and that he had been formally assessed to be indigent in another matter (the SPD does not assess indignecy in Ch. 51 cases for a variety of reasons). The court again denied the request, reasoning that the statute gave circuit courts discretion to decide whether the additional examination should be at county expense and that in William’s case an additional examinationw as not necessary because the first two psychiatrists’ opinions were not substantially different. (Op., ¶¶2-4).
After William was ordered involuntarily committed and medicated for six months, he appealed, arguing that the circuit court erred in denying him an additional examination under § 51.20(9)(a)3. On appeal, William and the county disputed (1) whether the statue gave the circuit court discretion to deny an indigent individual the right to an additional examination and (2) whether the statute, if interpreted to allow such discretion, violated Williams’ constitutional rights to due process and equal protection. (Op., ¶¶6-7). The county also argued that William’s appeal was moot.
Rather than address any of the issues the parties briefed, and despite the fact that William’s indigency was undisputed, the court “concludes that the circuit court reached the correct result, but for a different reason: William did not submit any evidence to establish his indigency.” (Op., ¶1). Except, no provision in Chapter 51, much less the specific subdivision at issue, § 51.20(9)(a)3., sets forth any requirement that an individual submit evidence to establish indigency. Further, as recognized by the court, “[t]his provision has not been examined in any published Wisconsin appellate decision to date.” (Op., ¶5). Thus, absolutely no authority has held indigency to be something an individual subject to potential involuntary civil commitment must establish before the right to an additional examination attaches. Finally, assuming an evidentiary burden exists, the court cites no authority on what the burden of proof is or who bears it.
Instead, the court simply concludes that it’s “reasonable to construe the statute as placing the burden of proving indigency on the individual because he or she (or someone acting on his or her behalf) is the party seeking to have the government pay for the additional examination. (Op., ¶8). And:
Here, however, William did not carry his burden to prove that he was indigent. He did not submit an affidavit or other proof of indigency with his initial request, his reconsideration motion, or at either of the hearings held by the circuit court. William’s counsel asserted that the SPD had assessed him to be indigent in another proceeding but did not submit any of the information SPD relied on in making that assessment so that the court could make its own, independent determination as required by WIS. STAT. § 51.20(9)(a)3. Counsel’s mere assertion that William was indigent is not sufficient to meet his burden of proof on this essential requirement.
And with that “conclusion,” the court “leaves the parties’ other statutory interpretation and constitutional arguments for another day.” (Op., ¶10).
Where to begin? Maybe the only positive, or the only thing to say period, is that this one-judge opinion is unpublished and unpersuasive. The opinion totals 10 short paragraphs, only two of which explain the conclusion the court reached. The court fails to explain how a statutue that provides a right to an additional examination, and includes no language placing an evidentiary burden on the individual, can reasonably be construed to create such a burden. Neither does the court explain what level of proof is required to establish indigency under § 51.20(9)(a)3. Since this unpublished but citable opinion has created an issue that did not seem to exist before, it looks like we may be jumping down yet yet another Ch. 51 rabbit hole.
It is further disappointing to see William’s “assertions” of indigency held against him when neither the county nor the court disputed those assertions or demanded evidence now deemed required by the court of appeals. This is a perfect example of why failures to object at the trial level or failures to offer or respond to arguments on appeal are generally deemed to result in waiver or forfeiture of the issue by the offending party. Had the county disputed William’s indigency at the trial level, William would have had an opportunity to establish his indigency with more than assertions. Had the county argued on appeal the statute created a burden of proof for William to meet below, William could have replied to that argument on appeal. Instead, the court highlights William’s assertions of indigency as a way to affirm the circuit court’s decision, but ignores the likely cause of William’s lack of evidence: neither the county nor the court contested that he was indigent.