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Defense Win! COA rejects “case manager exception” to hearsay rules and reverses recommitment

Brown County v. Z.W.L., 2022AP2201, District 3, 9/12/23 (one-judge decision; ineligible for publication); case activity (briefs not available)

In yet another hearsay-based sufficiency challenge to a Chapter 51 commitment, Z.W.L. (“Zeb”) succeeds because the circuit court relied on inadmissible hearsay and no other evidence established that Zeb was dangerous. Specifically, while Zeb made admissible “party-opponent” statements to a crisis worker and a police officer, the county failed to call either direct witness to Zeb’s statements and instead relied on two witnesses who read about Zeb’s history. While the circuit court relied on a case manager’s testimony because “this is what case managers are supposed to do” and “to me, that’s an exception to any of the hearsay rules,” the court of appeals disagrees.

Brown County sought to extend Zeb’s initial 6-month commitment for 12 months and the court appointed Dr. Bales to examine Zeb. After Zeb refused to meet with him, Dr. Bales testified in support of the county’s petition based on his review of reports and records and based on his discussions with othersa bout Zeb. The county also called Zeb’s case manager as a witness, but she admitted that she never discussed any specific incident with Zeb. Zeb objected to this testimony as hearsay and while the circuit court appears to have sustained the objection as to Dr. Bales’ testimony and report, the court overruled the objection as to the case manager because “it was part of her duties.” (Op., ¶5).

To its credit, the county conceded on appeal that there is no “case manager” exception to the hearsay rules. Nevertheless, the county argued that the testimony was admissible because the testimony was introduced solely to show why Zeb was returned to the behavioral health facility and not for the truth of Zeb’s statements. The court rejects this argument because (1) the county’s closing argument relied on the testimony as evidence of Zeb’s dangerousness and (2) because the court relied on the evidence to find Zeb dangerous. (Op., ¶¶15-16). In a footnote, the court also rejects, as undeveloped, the county’s argument that the case manager’s testimony wasn’t hearsay because she “was simply testifying to the historical record.” (Op., ¶15 n.6).

Without the inadmissible hearsay, the court summarily concludes that no other evidence supported the extension of Zeb’s commitment or the circuit court’s finding that Zeb was currently dangerous to himself or others. (Op., ¶23-25).

The key takeaway for attorneys handling Chapter 51 petitions: Object to all the hearsay testimony and argue that without it the petitioner hasn’t established current dangerousness under § 51.20(1)(a)2.a.-e. That’s it.

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