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Defense win: Evidence at recommitment hearings was insufficient to prove dangerousness

Rusk County v. A.A., 2019AP839 & 2020AP1580, District 3, 7/20/21 (not recommended for publication); case activity (2019AP839; 2020AP1580)

A.A. appeals two recommitment orders, raising multiple constitutional issues as to both and challenging the sufficiency of the evidence of dangerousness as to one of the cases and the admission of hearsay evidence regarding the other. The court of appeals acknowledges that A.A.’s constitutional claims raise “important” and “thorny” issues about recommitment petition pleading requirements and the constitutionality of recommitment proceedings, but it it resolves both cases on the evidentiary issues. (¶¶15, 31-32).

In the first proceeding, the circuit court ordered recommitment because A.A. (or “Andy,” the pseudonym bestowed by the court) had been psychotic in the past and attempted suicide; therefore, the court decided he should remain committed to prevent him from becoming psychotic again. But the County had to prove current dangerousness, and the evidence didn’t do that:

¶28     …. The County did not present any evidence as to when Andy’s prior suicide attempt had occurred. The undisputed facts at the recommitment hearing established that Andy’s symptoms had been well controlled by medication for the past four years. That time period included the approximately four months leading up to the recommitment hearing, during which Andy was not under an involuntary medication order. Despite the absence of an involuntary medication order, [the court-appointed examiner] testified that, as far as he knew, Andy was taking his medication as prescribed. Although there was evidence that Andy did not want to take an injectable form of that medication and had trouble remembering to take the oral form twice a day, the evidence also showed that he had agreed to take a higher concentration of the oral form once a day, which was equally effective at controlling his symptoms.

¶29     On these facts, there was no basis for a conclusion that Andy would become a proper subject for commitment if treatment were withdrawn. As Andy correctly notes, the evidence instead showed that involuntary treatment had been withdrawn for about four months before the recommitment hearing, and Andy nevertheless continued to take his prescribed medication, which effectively controlled his symptoms. ….

In the second proceeding, the court-appointed examiner testified there was a substantial likelihood Andy would be dangerous if treatment were withdrawn based on “events” described in medical records. When he was asked to describe the events, the court let him do so over a hearsay objection. The court of appeals first holds the hearsay objection should’ve been sustained, as he had no personal knowledge of the events, and his reliance on the medical records to form his opinion didn’t make the descriptions of Andy’s behavior in the records admissible for its truth. (¶¶34-39). And the admission of the hearsay wasn’t harmless, for it provided the only evidence of dangerousness the County offered and the circuit court relied on it in ordering recommitment. (¶¶40-41).

While the usual remedy for the erroneous admission of evidence is a new trial, the court of appeals says that can’t happen here because the circuit court  lost competency to extend the previous order once it expired. (¶¶42-44). This is consistent with recent decisions holding that the lower court’s loss of competency precludes a remand for further fact finding when a circuit court fails to follow the mandate in Langlade County v. D.J.W., 2020 WI 41, that the court identify the dangeorousness standard it is applying. See, e.g., Eau Claire v. J.M.P., 2020AP2014-FT (unpublished slip op. June 22, 2021).

Regarding the constitutional issues, we direct your attention to the thorough discussion of the issues in our post on the court of appeals’ certification of this case, as well as the certification itself (linked in the post), which the supreme court refused to accept. Judge Stark’s concurrence to this decision (¶¶45-61) also summarizes the issues. They relate to the pleading requirements for recommitment petitions (an issue now pending before the supreme court in Sauk County v. S.A.M.) and, more broadly, the conclusion in Waukesha County v. S.L.L., 2019 WI 66, that recommitment proceedings aren’t subject to the provisions of 51.20(1) through (9)—a conclusion that, as the concurrence notes (¶61), leaves “significant questions” about the constitutionality of the recommitment process. Anyone litigating recommitment cases should be reviewing those issues in their cases and raising them, as appropriate.


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