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Court of appeals won’t presume that mental commitments have collateral consequences for the patient

Sauk County v. S.A.M., 2019AP1033, 9/3/20, District 4 (one-judge decision; ineligible for publication), reversed, 2022 WI 46; case activity

Wisconsin involuntarily commits mentally ill people  at a higher rate than any other state in the United States–close to 5 times the national average. Click here. Wisconsin is also in the minority of states that will dismiss an appeal from an expired commitment order as moot. Unless we’re  prepared to accept that, compared to the rest of the country, Wisconsin has a much larger percentage of residents who are both mentally ill and dangerous, this is troubling. It suggests that Wisconsin may be unlawfully committing and medicating people and then denying them their right to appeal. SCOW is poised to decide whether commitment appeals are ever moot. So the court of appeals could have stayed this appeal until SCOW resolved the point. Instead, it walked out on a limb to dismiss the appeal as moot.

S.A.M. has been diagnosed with bipolar disorder. On February 2, 2018, the circuit court committed him to the government’s custody for 6 months. In June 2018, the government obtained a 12 month extension of his commitment. For reasons the court of appeals does not explain, S.A.M.’s lawyer did not file a notice of appeal until about 4 months after the 12 month commitment order expired.

A delay in file the notice of appeal could be due to many, many things: (1) a trial lawyer may have failed to file a notice of intent, thus forcing the appellate lawyer to seek reinstatement of the appeal, (2) a court reporter may have violated the statutory deadlines for preparing transcripts (sadly, it happens), (3) maybe the SPD couldn’t find a lawyer to appoint to the appeal (sadly, this also happens), (4) maybe appellate counsel filed a post disposition motion that took months to resolve. The list could go on.

S.A.M. raised two issues on appeal: (1) there was insufficient evidence to support the recommitment; and (2) he was denied procedural due process. Because S.A.M.’s recommitment has ended, the court of appeals ordered the parties to brief mootness.

S.A.M. argued that his recommtiment carried collateral consequences, including: (1) a firearm restriction, (2) the stigma associated with being committed, and (3) possible liability for the costs of his care. He cited Marathon County v. D.K., 2020 WI 8, ¶25, 390 Wi.s 2d 50, 937 N.W. 2d 901, where the supreme court held an appeal from an expired initial commitment was not moot because it subjected D.K. to a firearms restriction.

The court of appeals held that D.K. did not apply to S.A.M.’s case because he did not prove that the firearm restriction was the result of his recommitment rather than his commitment. It  also held that D.K. failed to prove that he was either stigmatized or required to pay the costs of his commitment. Opinion, ¶¶10-11

The court of appeals reasoning on the federal firearm restriction is flawed. Even if it was imposed at the initial commitment, it continued to deny S.A.M.’s right to posses a firearm through his 12 month recommitment.

In any case, D.K. did not limit its holding to initial commitments.  It recognized a general principle. “The idea that collateral consequences can render an otherwise moot issue not moot is nothing new in Wisconsin.” D.K., ¶23 (citing State v. Theoharopoulos, 72 Wis. 2d 327, 240 N.W.2d 635 (1976)). “Of course, this is not  a criminal case. But the logic of Theoharopoulos is just as sound here.” Id., ¶24.  D.K. specifically invoked Sibron v. New York, 392 U.S. 40 (1982).

Sibron exposes a flaw in the court of appeals decision in this case.  It holds that an appeal from a criminal conviction is never moot–even where the defendant has already served his sentence and even where the defendant has prior conviction on his record:

It would be impossible for this Court to say at what point the number of convictions on a man’s record renders his reputation irredeemable. And even if we believed that an individual had reached that point, it would be impossible for us to say that he had no interest in beginning the process of redemption with the particular case to be adjudicated. Sibron, at 56.

Skeptics may be thinking that voluntary commitments don’t really harm a person’s reputation. But that is incorrect. In fact, numerous SCOTUS decisions hold that a person (even a prisoner) has a liberty interest in avoiding being labeled mentally ill in error. See e.g. Addington v. Texas, 441 U.S. 418, 425-426 (1979), Vitek v. Jones, 445 U.S. 480, 494 (1980). These case are binding on the states.

Sibron also holds that a defendant appealing a conviction with a short sentence does not have to prove the existence of actual collateral consequences. The United States Supreme Court presumes that they exist.: “[M]ost criminal convictions do in fact entail adverse collateral consequences. The ‘mere’ possibility that this will be the case is enough to preserve a criminal case from ending ignominiously in the limbo of mootness.” Id. at 55.

Every state has its own mootness doctrine. Here are some decisions from other states where courts have presumed the collateral effects of a commitment order, including stigma. They decided appeals from expired commitment orders without further analysis.  In some states, courts presume the the existence of collateral consequences and place the burden on the government to prove that that no collateral effects (including stigmatization) have occurred. (Good luck with that).  Some courts explicitly note that the number of commitments a person has been under does not matter:

In re Ballay, 482 F.2d 648, 651-652 (D.C. Cir. 1973); In the Matter of Naomi B., 435 P.3d 918, 925 (AK 2019); Lodge v. State, 597 S.W.2d 773, 775-776 (1980)(citing Sibron, number of commitments doesn’t matter); Matter of Giles, 657 P.2d 285, 686-687 (1982)(citing Sibron);  Matter of F.C., 479 Mass. 1029, 97 N.E.2d 333, 335 (2018)(“At the very least, a person who has been wrongfully committed or treated has a surviving interest in establishing that the orders were not lawfully issued, thereby, to a limited extent, removing a stigma from his name and record”); State v. Condrick, 144 Vt. 362, 477 A.2d 632 (1984); see also State v. J.S., 174 Vt. 619, 817 A.2d 53 (2002)(an appeal from a commitment is not mooted by patient’s subsequent recommitment); In re Hatley, 291 N.C. 693, 231 S.E. 2d 633, 634-635 (1997)(citing Sibron and noting that a commitment may be used to justify a future commitment); Matter of E.D., 813 S.E.2d 630, 631 (N.C. Ct. App. 2018)(finding appeal from expired commitment not moot based on Hatley); In re Amey, 40 F.3d 902, 909 (D.C. Ct. App. 2012); In the Matter of B.B., 826 N.W.2d 425, 429-431 (IA 2013)(citing Sibron); State v. K.J.B., 362 OR 777, 786, 416 P.3d 291 (2018)(state failed to prove the absence of social stigma). We could go on and on but all posts must come to an end.



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