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Defense win! Dangerousness in ch. 51 recommitment had to be proved, not “assumed”

Winnebago County v. L. F.-G., 2019AP2010, 5/20/20, District 2 (one-judge decision; ineligible for publication); case activity

This is an appeal of the extension of the commitment of someone the court calls “Emily.” Following our supreme court’s decision in Portage County v. J.W.K., 2019 WI 54, ¶19, 386 Wis. 2d 672, 927 N.W.2d 509, the court of appeals reverses because the county didn’t introduce any evidence that Emily would be dangerous if treatment were withdrawn.

What the county did do: introduce a doctor’s testimony that Emily wouldn’t take her meds if not under commitment, and that this would cause her to become “acutely psychotic.” (¶4). What it didn’t do was put in any evidence that this condition would make Emily dangerous to herself or others. Regarding this element, the county can say only that “we can assume that [Emily’s] behavior during the acutely psychotic period of non-treatment was dangerous because she eventually became the subject of an involuntary commitment that required the recommitment hearing at issue.” (¶5).

“The court should assume the element we didn’t prove because if it weren’t true, we wouldn’t have brought the case” is … something. Or as the court puts it: “With all due respect, no we cannot. An involuntary mental commitment requires proof of a substantial likelihood of dangerousness by clear and convincing evidence, not assumptions or inferences.” (¶5). It goes on:

It was the County’s burden to show that Emily is a proper subject for commitment—which is to say that Emily is mentally ill, that she would be a proper subject for treatment, and that she is dangerous—if treatment were withdrawn. What we know is that when Emily “was off commitment, she stopped her treatment and became acutely psychotic again” and that she does not believe she needs treatment. All Vicente’s testimony establishes is that Emily is mentally ill and that she would be a proper subject for treatment. There is no information pertaining to how her “acutely psychotic” state would impact her behavior such that there is a substantial likelihood that she would be currently dangerous, pursuant to WIS. STAT. § 51.20(1)(a)2.a.-e., if treatment was withdrawn. See J.W.K., 386 Wis. 2d 672, ¶24. [The doctor] simply parroted back the language of the statute without any explanation of why Emily would be dangerous if treatment was withdrawn. Accordingly, the County failed to establish that Emily was a proper subject for commitment by clear and convincing evidence.


Another important note: the court notes, not in so many words, that the rules of evidence do apply in ch. 51 one proceedings. You may have seen this before: the county filed the report of a second doctor, even though that doctor didn’t testify and the report was never actually introduced at the trial.  The court says:

We recognize that the record also includes a “Report of Examination” written by Dr. Marshall J. Bales, M.D. We note that this report contains evidence pertaining to Emily’s condition that was relevant to the issue in this case. However, Bales never testified at the hearing, and this report was not entered into evidence. Accordingly, we do not consider the contents of the report in our decision. We acknowledge that the report was likely read by the court and the parties, but it was never entered into evidence. If Vicente could not offer an opinion as to Emily’s dangerousness based on her treatment history, then Bales’ report should have been entered into evidence either through his testimony or by stipulation.


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