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SCOW accepts review of important case which could clarify the “ground rules” for involuntary medication appeals

Winnebago County v. D.E.W., 2023AP215, petition for review of an unpublished court of appeals decision granted 12/11/23; case activity (including briefs)

SCOW accepts a case poised to resolve ongoing conflict in COA with respect to involuntary medication orders in Chapter 51 appeals.

As we discussed in our post on this case, litigators handling Chapter 51 appeals have to tolerate an unusual amount of uncertainty in our law when assessing the legality of an involuntary medication order. As our (admittedly over-long) post summarized, unpublished (but citable) decisions exist along a spectrum. At one end, there are decisions like D.E.W., where the County’s evidence is held to a seemingly low standard on appeal. So long as the examiner parrots statutory language, the authors of many 1-judge opinions would affirm. On the other end, however, we have an emerging trend–led by COA’s chief judge in her opinion in D.H.–applying an exacting level of scrutiny seldom seen in 51 appeals. Troublingly, this inconsistency may actually be rooted in inconsistent decisions from SCOW.

Thus, this case is a must-watch for 51 litigators. Whatever happens in this case will set the tone for future medication hearings and determine what kinds of claims continue to be viable in future appeals.

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