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Defense Win! Yet another DJW reversal

Winnebago County v. T.S., 2023AP1267, 3/6/24, District II (one-judge decision; ineligible for publication); case activity

In yet another 51 appeal attacking the sufficiency of the circuit court’s findings, COA rejects the County’s arguments and reverses.

“Terry” was originally placed in DHS custody following an NGI verdict in his 2018 criminal case. (¶3). Shortly before his NGI commitment was due to expire, the County petitioned to commit him under Chapter 51. (¶4). Dr. Marshall Bales filed a report, in which he opined that Terry was dangerous under § 51.20(1)(a)2.b. (¶6). In his testimony, he also stated that the standard under § 51.20(1)(am) applied to Terry. (¶9). In addition to expert testimony from Dr. Bales and Dr. Erik Knudson, the associate medical director of Mendota Mental Health Institute, the County also introduced a letter during its cross-examination of Terry in which he talked about, among other things, his desire to “kill for fun.”  (¶12). Terry explained that he was referring to bow hunting and fishing. (Id.).

In its oral ruling, the court indicated that the County had satisfied the recommitment standard but failed to cite any of the specific dangerousness criteria. (¶14). In its written order, the Court also failed to check any boxes relating to those standards and only checked the box corresponding to the recommitment standard under 51.20(1)(am). (¶15).

Accordingly, COA concludes this appeal presents a pretty straightforward D.J.W. violation, as the court “did not refer to any of the five standards for dangerousness”; did not “track the elements of any of those standards or explain how the evidence satisfied those elements”; and “did not specify that it had determined Terry to be dangerous under any of the five standards in the order it entered following the hearing.” (¶18). As D.J.W. holds, mere reference to the standard under § 51.20(1)(am) is categorically insufficient. (¶19). Likewise, the mere reference to a “potential” for violence also fails to track the statutory language of 51.20(1)(a)2.a-e. (¶20).

Having determined that a D.J.W. error occurred, COA addresses the appropriate remedy. The County first tries to argue that Terry forfeited his D.J.W. claim by not objecting below; that argument goes nowhere, as the County fails to cite law for the proposition that a D.J.W. error cannot be raised for the first time on appeal. (¶24). Likewise, the County’s harmless error arguments are also unavailing. A harmless error analysis seems inconsistent with D.J.W. itself, SCOW has never legitimated a harmless error analysis (and seemed to suggest otherwise in its M.W. decision), and the general trend of unpublished 51 opinions contradicts the County’s position. (¶¶25-30). Moreover, such an analysis would necessarily impinge on disputed issues of fact and credibility; thus, COA is reluctant to abandon its role and act as a fact-finder. (¶32). In a must-read footnote, it suggests that, even if it was assessing the sufficiency of the evidence, it is not fully persuaded the County met its burden here. (¶33). COA therefore reverses the order outright. (¶34).

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