Good news/bad news. It’s terrific that the court of appeals is going to enforce the new requirement that circuit courts ground their recommitment orders on factual findings tied to a specific standard of dangerousness in §51.20(1)(a)2.a-e. See Langlade County v. D.J.W., 2020 WI 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277. However, J.E.B. requested reversal. Period. Without any objection by the county or briefing by the parties, the court of appeals decided to remand the case for the circuit court to make the missing factual findings. But published case law suggests that the circuit court lacks competency to act on an expired commitment.
J.E.B. has been on and off commitments since 2003. Most recently she was committed in 2014 and recommitted each year through 2020 even though she took her medications and voluntarily attended counseling from 2017 forward.
The circuit court found that J.E.B. had schizoaffective disorder, a treatable mental illness. It held that she was dangerous based on the behavior that led to her 2014 initial commitment. She dressed inappropriately for the weather, was kicked out of businesses for climbing on shelves and being confrontational, and displayed hyper-sexual behavior. From 2015-2020 she did none of these things. Opinion, ¶11.
The circuit court observed that her situation posed a chicken and egg problem. It reasoned: [I]t’s impossible to tell to what extent the behavior would come back and how serious it would be until you withdraw medication, and at that point, a person can decompensate to the point where they are dangerous to the point where it’s too great a risk to run. ” Opinion, ¶11. Hence the court recommitted her.
On appeal, J.E.B. argued that the circuit court failed to “make specific factual findings with reference to the subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. on which the recommitment is based” as required by D.J.W. She also argued that there was insufficient evidence to support the recommitment order. And if the court reversed the recommitment order, then it also had to reverse the involuntary medication order.
The county argued that the circuit court’s factual findings alluded to the 3rd and 4th standards of dangerousness without specifically mentioning them. The court of appeals sided with J.E.B. and reversed both the recommitment order and the involuntary medication order:
¶26 The County essentially asks that I engage in the kind of “guesswork” that D.J.W. seeks to avoid. I decline to engage in such guesswork on appeal. As D.J.W. makes clear, in addition to protecting significant liberty and due process interests, the requirement in D.J.W. also serves to “clarify issues raised on appeal” and “ensure the soundness of judicial decision making, specifically with regard to challenges based on the sufficiency of the evidence.” Id., ¶44. Therefore, I instead follow the clear mandate of D.J.W. and require the circuit court to do what our supreme court said it must: “make specific factual findings with reference to the subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. on which the recommitment is based.” Id., ¶3. The court failed to do so here.
The court of appeals ordered a remand with directions that the circuit court follow D.J.W. Opinion, ¶27, However, this remedy appears to conflict with published precedent.
“In recognition of the significant liberty interest an individual has in living where and under what conditions he or she chooses, the legislature has imposed tight time limits in connection with involuntary detention proceedings.” Dane County. v. Stevenson L.J., 2009 WI App 84, ¶ 11, 320 Wis. 2d 194, 768 N.W.2d 223. Thus, if the circuit court violates a time limit for holding a commitment hearing, it must dismiss the case for lack of competency to decide it.
Recommitment hearings must be held before the commitment that the county wants to extend expires. After the commitment expires, the circuit court loses competency to adjudicate the case. G.O.T. v. Rock County, 151 Wis. 2d 629, 631, 445 N.W.2d 697 (Ct. App. 1989). This suggests that the circuit court does not get a second change to make the proper findings because the recommitment to be extended has long since expired. It’s possible that even the 2020 recommitment at issue in this appeal has expired.
Also, this case contrasts with another recent D4 decision where the subject individual argued that the circuit court violated D.J.W. See Jackson County v. W.G., 2020AP961 (11/5/20). See our post here. The court of appeals guessed from the county’s questioning that it was seeking recommitment under the 5th standard, found its evidence insufficient, and reversed the recommitment order. It did not remand the case for additional D.J.W. findings.