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Defense Win! COA reverses 51 extension order and accompanying involuntary med order in defense-friendly decision notwithstanding subject’s threats of decapitation

Washington County H.S.D. v. Z.A.Y., 2023AP447, 9/13/23, District II (one-judge decision; ineligible for publication); case activity

In a big defense win, COA reverses a commitment and accompanying medication order due to the circuit court’s failure to make specific findings.

“Zachary” appeals orders extending his Ch. 51 involuntary commitment and for involuntary medication. (¶1). He argues that reversal is warranted given the circuit court’s failure to comply with Langlade County v. D.J.W. (Id.). While COA, in a footnote, sets aside Zachary’s argument that reversal should result because the court did not precisely cite a specific statutory subsection in its oral ruling, it agrees that the circuit court “failed to make specific factual findings of dangerousness” and the evidence does not support “the findings that were made.” (Id.).

Here, the County appears to argue that Zachary was dangerous under the second standard, which requires proof of “a substantial probability of physical harm to other individuals as manifested by evidence of recent homicidal or other violent behavior, or by evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them […].” It elicited testimony from Dr. Knudson, a psychiatrist who conducted a record review and testified that “Zachary had made several threats toward people, including suggestions that he would like to punch or decapitate one of his case managers.” (¶3). A case manager also testified about Zachary’s alleged “threats.” (¶4). Zachary testified and conceded he “made threats towards others out of anger” but that he had never acted on those threats. (¶5). The circuit court found there was a “substantial probability of physical harm to other individuals and a substantial probability of physical impairment or injury to [Zachary] or other individuals.” (¶6).

On appeal, Judge Lazar, writing on behalf of the Court of Appeals, begins by paraphrasing Gandhi (or perhaps Hubert Humphrey or maybe even Jesus) with the acknowledgment that, “It has been said that the true measure of any society can be found in how it treats its most vulnerable members.” (¶8). Observing that civil commitments “uniquely deprive citizens of their personal liberty” Judge Lazar invokes a long line of precedent from both SCOTUS and SCOW to acknowledge the weighty burden borne by a County seeking an involuntary commitment and the scrupulous nature of review applicable on appeal. (¶¶8-10). Although Judge Lazar tempers these sweeping comments with a tangential discussion expressing skepticism of recent mootness precedent (as she did in C.H.), the opinion then moves to specifically discuss the shortcomings of this record.

Here, “the evidence presented by the County as to Zachary’s dangerousness was thin.” (¶15). For example, the court erred by considering in its “findings” hearsay testimony from Dr. Knudson, as his claims about dangerousness (incorporated into the court’s ruling) “were solely from Knudson’s record review and, more concerning, were from a report that was never placed into evidence.” (¶16). The case manager’s testimony was likewise rife with inadmissible hearsay. (¶17). The trial court erred when it incorporated this testimony into its findings as “these statements […] are not specific as to a statutory category of dangerousness (or admissible.).” (Id.).

And, while the court made an additional finding that Zachary “admitted” to making “those threats” described by the other witnesses, COA disagrees. (¶19). Zachary’s testimony was vague and not reasonably construed as an admission to the precise conduct described by other witnesses; accordingly, it was “not sufficient as a matter of law to form a specific, factual basis upon which to deprive Zachary of his personal liberty on the grounds that he is statutorily dangerous.” (¶20). Most crucially, there was “no testimony on the record whatsoever that anyone was in ‘reasonable fear of violent behavior and serious physical harm to them, as evidenced by a recent … threat to do serious physical harm.'” (Id.).

Accordingly, both the extension order and the accompanying order must be reversed, as COA acknowledges that remand is not a possibility under these circumstances. (¶21).

This is a nice defense win and is notable for the level of scrutiny directed at the circuit court’s findings. As in Ozaukee County v. J.D.A.COA refuses to rescue the circuit court’s sparse findings given the utter lack of support in the record for the ensuing order. Thus, despite injecting some convincing legalese into its ruling, the circuit court’s order is reversed because it failed to thoroughly explain how and why it believed Zachary to be dangerous with reference to properly admissible and relevant evidence. All in all, this is a “must-cite” persuasive opinion for all 51 litigators!

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