In another big defense win, COA clarifies the two requirements imposed on circuit courts by Langlade County v. D.J.W. and provides a roadmap for future challenges.
Let’s start with the law first. As COA accurately recites, in D.J.W., SCOW clarified that, in a recommitment proceeding, the circuit court must “make specific factual findings with reference to the [dangerousness] subdivision paragraph of §51.20(1)(a)2 on which the recommitment is based.” (¶12). COA refers to this as the “D.J.W. directive.” (Id.). This question squarely asks COA to resolve what that directive entails, a question that has resulted in inconsistent answers, as COA forthrightly acknowledges in a footnote. Under one view–advanced by the County in this case–all that is required is for the court to recite “the applicable statutory dangerousness standards that have been met.” (¶13). Under the most conservative reading of the directive, simply checking a box on the applicable court form will probably suffice. (The result in Barron County v. K.L.).
However, COA is skeptical of that reading as “On its face, the D.J.W. directive appears to have two components: a requirement of ‘specific factual findings,’ and a requirement that those specific factual findings ‘reference’ the applicable statutory dangerousness standard.” (¶14). Simply making a “legal” finding that a specific statutory subsection is proven is therefore not the same as making “specific evidentiary findings of fact that refer to the applicable dangerousness standard.” (Id.). COA holds that this reading is supported not only by Justice Hagedorn’s concurrence in Sheboygan County v. M.W. (¶15), but also by its examination of the “stated purposes underlying the D.J.W. directive”–providing “clarity and extra protection” to patients and ensuring sound judicial decision making so as to facilitate appellate review. (¶17).
Turning to the record in this case, it turns out that the facts are largely irrelevant, as “the circuit court did not make any evidentiary findings.” (¶21). Although the court appeared to reference the first and second standard (and checked the requisite boxes on the proposed order), that “cursory ruling does little to demonstrate that J.D.C.’s involuntary commitment was the result of a reasoned consideration of the evidence.” (¶22). Notably, COA also refuses to “scour” the record for evidence to uphold the circuit court’s order as it is not a fact-finding court. (Id.). And, because the County does not respond to J.D.C.’s request for outright reversal, COA reverses the extension order and the accompanying involuntary medication order. (¶24).
This well-written and highly readable opinion is a nice clarification of the D.J.W. directive. When stated plainly, COA’s two-pronged reading of that directive makes perfect sense; yet even many zealous 51 litigators may have failed to note the (retrospectively obvious) distinction at issue here. Thus, appellate litigators have a new tool in their toolbox that exists regardless of whether the circuit court checked the right box or otherwise cited the correct standard (or paraphrased the statutory requirements) at an evidentiary hearing. The court not only needs to make a legal conclusion; it needs to explain how and why it has reached that conclusion. And, as demonstrated in the recent Z.A.Y. defense win on the same basis, the court’s findings need to be based on admissible and relevant evidence, as well. Coupled with COA’s other defense win on a lack of findings–J.D.A.–the bar is set relatively high for circuit court judges; notwithstanding those pesky unpublished decisions refusing to apply the same level of scrutiny, it is clear that there is strong support from at least some judges in COA for an exceedingly stringent standard of review in these cases.
However, when comparing this decision against the defense win in Z.A.Y., there is at least one notable point of disagreement to be teased out. In this case, COA refused to search the record for evidence of dangerousness. However, in Z.A.Y., COA blended its analysis of the lack of factual findings with an inquiry as to the sufficiency of the evidence. Litigators wishing to raise an argument citing a lack of factual findings will therefore need to make a choice, probably guided by the facts of their specific case, whether and how to address Z.A.Y.’s implicit imposition of a harmless error requirement when faced with a lack of findings.