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Part II: COA affirms ch. 51 recommitment in violation of published precedent

Rock County v. J.J.K., 2020AP2105, District IV, 5/6/21 (1-judge opinion, ineligible for publication); case activity

This is the sequel to the Rock County v. J.J.K.. 2020AP1085 above. The decision is alarming because the circuit court found J.J.K. dangerous enough for a recommitment based on the 5th standard, but the court of appeals affirmed based on the 4th standard. The opinion also further highlights the need for SCOW to elaborate its decision in Winnebago County v. C.S., 2020 WI 33, 391 Wis. 2d 35, 940 N.W.2d 875. Specifically, can a court order involuntary medication for a person undergoing recommitment without evidence that he is dangerous as defined by §51.61(1)(g)3?

The circuit court recommitted J.J.K. after SCOW decided Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277.  Recall that D.J.W. criticized both the county and the court of appeals for providing “conflicting messages” regarding the standard of dangerousness that warranted the individual’s recommitment. Id., ¶38. It specifically noticed that this raised due process concerns. Id., ¶42.

In this case, the court of appeals arguably committed a worse sin. Judging from its opinion, the court did not specify what standard of dangerousness it was proceeding under. The circuit court held that J.J.K. should be recommitted based on the 5th standard of dangerousness. But the court of appeals divined that the circuit court must have misspoken and meant the 4th standard. Otherwise, its references to J.J.K.’s inability to care for himself and his potential need for services like medical care and nourishment would make no sense. Opinion, ¶18, ¶41. It scolded both trial lawyers for not speaking up and said the error was “surely harmless.”  Opinion, ¶41.

Gosh. It’s possible that the trial lawyers, like the circuit court, believed this was a 5th standard case, not a 4th standard case. Both standards focus on the individual’s need for services for his health and safety, which would include things like medical care. Wis. Stat. §51.20(1)(a)2.d and e.

But here’s the real problem–and the reason the error is not harmless: the individual must have notice of the charge or standard that the government claims warrants a 1-year deprivation of liberty.  The court of appeals can’t say the circuit court convicted the defendant of misdemeanor battery but it misspoke and the state and defense were asleep. It should have convicted the defendant of misdemeanor obstruction. The same principle applies to commitments. See Lessard v. Schmidt, 349 F. Supp. 1078, 1092 (E.D. Wis. 1972). See also State v. Bronkhorst, 2001 WI App 190, 247 Wis. 2d 247, 633 N.W.2d 236 (respondent must have notice of specific 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)).

The court of appeals’ decision to affirm the involuntary medication order against J.J.K. is even more problematic. His two examiners agreed that he understood the advantages and disadvantages of antipsychotic medication. But they opined that because he would not admit to his mental illness he could not apply that understand to his own situation. If he was not forced to take the medication he would stop taking it. Opinion, ¶¶43-44.

A person has the right to decline recommended treatment or medication. People with serious illnesses refuse surgery, statins, radiation therapy etc. all the time. Their doctors cannot force it upon them. We know from the post above that JJK doesn’t like antipsychotic medication because it makes him feel like a “walking zombie.”

SCOW has said that an involuntary med hearing is not a mechanism for enforcing doctors’ orders.  Outagamie County v. Melanie L., 2013 WI 67, ¶93, 349 Wis. 2d 148, 833 N.W.2d 607. At least since 1992, it has made clear that a person’s incompetence to make medication and treatment decisions does not diminish his right to refuse them. C.S., ¶31 (citing Lenz v. L.E. Phillips Career Development Center, 167 Wis. 2d 53, 74, 482 N.W.2d 60 (1992)(upholding the individual’s right to refuse life-sustaining treatment). To force medication upon the individual, the government must establish that he dangerous is as defined by §51.61(1)(g)3. That is, a situation must “exist” where medication or treatment is necessary to prevent serious physical harm to the individual or others.

Examiners’ reports, circuit court decisions, and court of appeals’ opinions only address the individual’s competency. As in this case, they do not address the statutory and due process dangerousness requirement. The bench and the bar need further guidance on how Lenz and C.S. apply to commitment cases generally.

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