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In a DJW loss, COA generates uncertainty about such claims

Waukesha County v. G.M.M., 2023AP1359, 3/13/24, District II (one-judge decision; ineligible for publication); case activity

In an appeal presenting a straightforward D.J.W. claim, COA affirms while also giving credence to harmless error arguments.

This is an appeal from G.M.M.’s second 51 extension order. (¶2). The circuit court granted the County’s petition after a contested hearing, finding that G.M.M. was dangerous under § 51.20(1)(a)2.c. and (1)(am). (¶¶18, 22.). On appeal, G.M.M. argues that the circuit court’s order violated D.J.W. by not making sufficiently specific factual findings in support of the recommitment order. (¶23.). G.M.M. does not raise a free-standing sufficiency claim; rather she argues that the circuit did not make adequate findings about her dangerous conduct which led to the initial commitment in 2021 or her willingness to work with treatment providers on a voluntary basis. (Id.).

Notwithstanding the fact that G.M.M. does not challenge the sufficiency of the evidence, this is where COA begins its analysis, finding that the evidence from the hearing supports the circuit court’s recommitment order. (¶24.). From there, the decision gets a bit into the factual weeds. Suffice it to say that while it would appear the circuit court did not precisely track the statutory elements in its remarks, COA engages in a process of close reading to satisfy itself that the circuit court sufficiently addressed the relevant criteria. (¶¶25-27.). Thus, “[w]hile the circuit court could have said more regarding [G.M.M.’s] dangerousness and lack of willingness to voluntarily get the treatment she needs […] the court said enough.” (¶28.).

Moreover, COA rejects the underlying premise of G.M.M.’s appeal: that its outcome is controlled by SCOW’s holding in D.J.W. (¶30.). Instead, COA holds that the D.J.W. directive is intended to ensure a sufficient understanding, for the patient, of the basis for their commitment as well as to facilitate the adequate appellate review of sufficiency claims. (¶31.). Because the basis for the court’s order is clear and there is no quibble over the sufficiency of the evidence, COA refuses to countenance the possibility of a purely technical D.J.W. violation. (Id.). Thus, in COA’s view, “we do not see D.J.W. as mandating reversal where the evidence clearly supports the decision.” (¶32.).

Going one step further in order to grant the wishes of County-petitioners across our State, COA also holds that the harmless error rule in § 51.20(10)(c) also supports its decision that reversal would not be the appropriate remedy in this case. (¶33.). “If the alleged error had not occurred, the court simply would have made more comments drawing from presented evidence to support its dangerousness determination. The court’s determination and the resulting order would remain the same.” (¶34.).

What a difference a week makes. Just last week, a different judge in D2 rejected the County’s harmless error arguments, holding that a harmless error analysis is not appropriate for a D.J.W. violation. And, while there is least one other persuasive decision applying the requirement that a D.J.W. claim be yoked to a sufficiency argument in order to be taken seriously on appeal, COA has also been inconsistent on this point, as well. For example, two weeks ago D3’s analysis of a similar appeal suggested that procedural D.J.W. violations are analytically distinct from pure sufficiency challenges. At least until SCOW inevitably takes one of these cases in order to clarify how appellate litigators are supposed to approach the issue, it seems that best practice would appear to compel joining a D.J.W. claim with a sufficiency argument in order to avoid having these unpublished authorities wielded against oneself.

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