On April 12th the court of appeals issued an opinion holding that due process does not require a county to give particularized notice of the standard of dangerousness that a person will satisfy if treatment is withdrawn. It also found that special verdict given to the jury defective. The court of appeals reversed and remanded the case for a new trial on a recommitment that had expired. Happy news! The court of appeals withdrew that opinion. The reissued opinion omits the due process decision, retains the special verdict win, and now reverses outright.
Due process. Because the original opinion was recommended for publication (i.e. it was potentially binding), practitioners should be very careful when representing the status of the law on the due process issue. The court of appeals’ withdrew its entire decision on this point. Thus, Wisconsin has not yet resolved whether a county must give a person particularized notice of the grounds for recommitment, including the standard of dangerousness in §51.20(1)(a)2 that the person will satisfy if treatment is withdrawn.
The due process issue is one of several presented in Sauk County v. S.A.M., 2019AP1033, which is pending in SCOW. We expect a decision in the next few weeks, though there is no guarantee SCOW will decide all of the issues presented. Stay tuned. In the meantime, defense lawyers should keep asking circuit courts to dismiss recommitments when the county’s petition fails to specify the standard of dangerousness.
Special verdict. Regarding the dangerousness element of a recommitment, the jury had to decide whether the county proved “a substantial likelihood, based on the subject individual’s treatment record, that the individual would be a proper subject for commitment if treatment were withdrawn.” Wis. Stat. §51.20(1)(am).
However, the circuit court drafted a special verdict that presented this question: “Is the subject dangerous to herself or to another if not recommitted?” Opinion, ¶32. (Emphasis supplied).
The court of appeals held that the words in bold are confusing. Among other things, they direct the jury “to consider future events–i.e. whether [Catherine] would become dangerous in the future if she were not recommitted” rather than focusing on her current dangerousness. Opinion, ¶¶32-34, ¶36. (Emphasis supplied). It reasoned:
Any findings of mental illness and dangerousness must therefore be current, not retrospective. See Foucha v. Louisiana, 504 U.S. 71, 77-78 (1992). By that same token, a commitment cannot be valid if it occurs before the constitutional basis for it exists. If an individual is not yet dangerous, then the individual fits into the well-established principle that “there is still no constitutional basis for confining … persons involuntarily if they are dangerous to no one.” O’Connor v. Donaldson, 422 U.S. 563, 575 (1975). Opinion, ¶16.
To avoid this problem in the future, the court of appeals recommended that circuit courts use WIS JI–Civil 7050A (2021), which is based on Langlade Cnty. v. D.J.W., 2020 WI 41, ¶42, 391 Wis. 2d 231, 942 N.W.2d 277. It requires the jury to specify one or more of the 5 standards of dangerousness in §51.20(1)a.2 alone or in combination with §51.20(1)(am). Opinion, ¶40.
Form of relief. The court of appeals’ original opinion reversed Catherine’s recommitment and remanded the case for a new recommitment trial even though she had already completed her recommitment. Catherine moved for reconsideration and won, The new opinions says:
¶24 Because the recommitment order on appeal has expired, the circuit court no longer has competency to conduct a new trial using an appropriate form of the special verdict question. See Waukesha Cnty. v. E.J.W., 2021 WI 85, ¶40 n.10, 399 Wis. 2d 471, 966 N.W.2d 590. Accordingly, we reverse.