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Due process challenge fails; counties and courts needn’t specify dangerousness standard justifying Chapter 51 commitment

Milwaukee County v. T.L.R., 2018AP1131, 12/4/18, District 1 (1-judge opinion, ineligible for publication), case activity

Here’s an issue of first impression for SCOW. Lessard v. Schmidt, 349 F. Supp. 1078, 1092 (E.D. Wis. 1972) established procedural and substantive due process rights for persons undergoing mental commitments. One of those rights is the right to particularized notice of the basis for detention, including, the legal standard upon which the person is detained. Id. at 1092. T.L.R didn’t receive that notice.

To commit someone  under Chapter 51, the county must prove, and the circuit court must find, that the person is mentally ill, a proper subject of commitment, and dangerous under one of the 5 distinct standards in §51.20(1)(a)2.a-e.

In this “original” commitment case, the County never told T.LR. which of the 5 standards of dangerousness it was proceeding under, and the circuit court didn’t either.  This did not trouble the court of appeals because T.L.R. had a received a “supplement notice” that listed all 5 standards of dangerousness. It held:

Wisconsin Stat §51.20(1)(a)2. does not indicate that a person subject to commitment must be notified of each specific standard. T.L.R. was given appropriate notice of the standards of dangerousness. Accordingly, his procedural due process rights were not violates. Opinion, ¶15.

T.L.R. reads §51.20(1)(a) differently, but regardless of who it right about the plain language, due process still requires the government to give a person notice of the legal standard he is being detained under–not notice of every possible standard he could be detained under. How is the person supposed to prepare a defense if he doesn’t know whether he’s alleged to be suicidal, violent towards others or unable to care for himself? Those defenses require different kinds of evidence. See .e.g. State v. Bronkhorst, 2001 WI App 190, ¶15, 247 Wis. 2d 247, 633 N.W.2d 236 (respondent must receive notice of charge in order to prepare a defense)(citing In re Gault, 387 U.S. 1, 33-34 (1967) and Cole v. Arkansas, 333 U.S. 196 (1948)).

But here’s another problem. If neither the County nor the court has to tell a person which standard of dangerousness he met, then how does the court know which involuntary medication provision applies? The commitment and involuntary medication statutes intertwine–§51.61(1)(g)3m applies to 5th standard commitments and §51.61(1)(g)4 applies to commitments under the other 4 standards.

Like other clouds, this decision has a silver lining. The court of appeals held that T.L.R.’s appeal from his original commitment was not moot even though it had expired:

¶11 The County asserts that T.L.R.’s appeal is moot because his commitment order expired and he is no longer in County custody. T.L.R. argues that the appeal is not moot for various reasons, among them, the prohibition on his possession of a firearm. The prohibition on firearm possession apparently has not been lifted. Accordingly, T.L.R.’s appeal from the commitment order is not moot. See State ex rel. Olson v. Litscher, 2000 WI App 61, ¶3, 233 Wis. 2d 685, 608 N.W.2d 425 (“An issue is moot when its resolution will have no practical effect on the underlying controversy.”)

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