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Evidence was sufficient to establish substantial probability that ch. 51 respondent would harm himself

Milwaukee County v. Andy S., 2014AP1885, District 1, 1/13/15 (1-judge decision; ineligible for publication); case activity

The evidence was sufficient to prove dangerousness under § 51.20(1)(a)2.a., as it showed Andy “[e]vidence[d] a substantial probability of physical harm to himself … as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm.”

¶14      Andy S. does not challenge Officer Dodd’s testimony that when he entered Andy S.’s apartment he observed that Andy S. was alone and that the apartment was in disarray with the television turned over and the furniture broken. Nor does Andy S. challenge the circuit court’s findings that Officer Dodd observed Andy S. exhibiting disorganized thoughts, talking to someone who was not there, behaving calmly one minute and crying the next, and stating that “he wanted to die.”

¶15      Based upon the totality of those facts, the circuit court properly concluded that Andy S. “[e]vidence[d] a substantial probability of physical harm to himself.” Wis. Stat. § 51.20(1)(a)2.a. Andy S.’s statement that “he wanted to die” was not made in a vacuum. When that statement is coupled with his other erratic behaviors—including talking to someone who was not present, vacillating between calm and crying, and turning over and breaking the television and furniture—the statement is sufficient to indicate that Andy S. was a danger to himself and was not merely conveying a thought without intent. …

The court of appeals doesn’t cite the case, but its reference to Andy “not merely conveying a thought without intent” seems to follow Outagamie County v. Michael H., 2014 WI 127, ¶¶32-37, where the respondent argued that a “threat” of self-harm under § 51.20(1)(a)2.a. requires an expression of intent to act, and thus his statement of suicidal ideation was insufficient to establish a threat. The supreme court disagreed and held that articulation of a specific intention or plan to commit suicide or harm oneself is unnecessary find there was a “threat” under the statute. Even in light of this holding, however, and even given the deferential sufficiency standard, the facts here are mighty thin compared to those in Michael H., where the subject of the proceeding engaged in more problematic behavior over a longer course of time and explicitly answered “yes” when asked if he was suicidal and said it was too hard to explain when asked whether he had a plan to kill himself, id., ¶¶8-18,

There’s another point of interest here for lawyers handling ch. 51 appeals: The court refuses the County’s request to dismiss the appeal as moot, because even though Andy’s six-month commitment has expired and hadn’t been extended, the expired commitment order has “actual consequences” for Andy, such as the effect on his ability to possess a firearm or obtain professional licenses.” (¶9 n.3). The court might also have mentioned the potential for recoupment of expenses of the commitment under § 46.10(2), which would be inapplicable if the evidence was insufficient to justify the commitment, Etheyln I.C. v. Waukesha County, 221 Wis. 2d 109, 120-21, 584 N.W.2d 211 (Ct. App. 1998), Jankowski v. Milwaukee County, 104 Wis. 2d 431, 436, 312 N.W.2d 45 (1981).

The court of appeals hasn’t been consistent on the question of mootness in this situation. Besides Andy’s case, the court rejected a mootness claim in Milwaukee County v. Cheri V., 2012AP1737, at ¶1 n.1 (Wis. Ct. App. Dec. 18, 2012) (unpublished). But it accepted a mootness argument just a few months ago in Milwaukee County v. Rebecca G., 2014AP539 (Wis. Ct. App. Sept. 3, 2014) (unpublished; petition for review denied, Dec. 18, 2014), even though Rebecca argued her appeal wasn’t moot because of the “practical ramifications” of the expired commitment for her—ramifications that are, of course, the same as the “actual consequences” faced by Andy. The court also dismissed on mootness grounds in Winnebago County v. Andrew O., 2004AP1241 (Wis. Ct. App. March 2, 2005) (unpublished and not citable for persuasive value under Rule 809.23(3)(b) because it predates July 1, 2009). At some point this question will have to be resolved in a published court of appeals decision or by the supreme court, but in the meantime this case and Cheri V. provide some persuasive authority for responding to a mootness argument.

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