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COA takes close look at 51 extension, sees problems, affirms

Waukesha County v. L.J.M., 2020AP820, 11/4/20, District 2 (one-judge decision; ineligible for publication); case activity

L.J.M. (“Lisa”) appeals the extension of her commitment under ch. 51. In a thorough opinion, the court of appeals affirms, though not without pointing out deficiencies in the county’s case and the circuit court’s decision.

Lisa has been committed for 20 years; she has a diagnosis of schizoaffective disorder. For a time she received biweekly injections of a psychotropic medication. Her case manager testified that she became more agitated in the days before she was due for another dose, and that that she’d seen Lisa “hitting her head” in a vehicle and pulling her own hair. The case manager also testified that Lisa doesn’t believe she’s mentally ill and had said she wouldn’t take medication if she wasn’t under commitment. (¶¶4-5). A court-appointed psychologist testified, as did Lisa.

On appeal, the court first determines to review the merits, even though the commitment at issue is expired and Lisa concedes the appeal is moot. The court notes the county’s failure to address Lisa’s argument that several mootness exceptions apply, and determines to examine the sufficiency of the evidence as “an additional example” of the resolution of “what is often a tricky question.” (¶16).

The court acknowledges Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, which requires circuit courts to “make specific factual findings” about what form of statutory dangerousness is met in a recommitment. But notes that rule is prospective only, and that Lisa’s commitment happened before that decision. Saying the county “perhaps could have done more to elicit additional evidence indicating current dangerousness” and “would be well advised” to do so in the future, it nevertheless says the circuit court was justified in extending the commitment under the third standard: “that there was a “substantial likelihood, based on [Lisa’s] treatment record, that … if treatment were withdrawn,” Lisa would have “such impaired judgment … that there [would be] a substantial probability of physical impairment or injury to … herself or other individuals.” (¶¶17, 19).

The court of appeals pauses to note that the “at times confusing” testimony led the trial court to an incorrect factual conclusion: that Lisa’s numerous returns to inpatient care during her commitment were caused by refusal to take medication. It rejects the county’s argument on this point and concludes there is no evidence of this connection, and so the readmissions do not reflect on dangerousness. It also agrees with Lisa that evidence that she is irritable or delusional is not enough to establish dangerousness. (¶¶21-22). However, the court says, what remains is enough: some behavior–which, while “generally not life threatening” evidenced a substantial probability of physical harm–combined with the evidence that Lisa would discontinue medication if not committed, and that this would lead to more dangerous behavior. (¶¶24-25).

Without commenting on the merits of the decision, the opinion reflects searching and thoughtful consideration of L.J.M.’s position and of the issues generally. It’s unfortunate that this is worthy of note for  a ch. 51 appeal, but it is, so, noted.

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