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SCOW to decide whether mental illness and reliance on government benefits warrant recommitment under Chapter 51

Langlade County v. D.J.W., 2018AP145-FT, petition for review granted 7/10/19; case activity


A doctor opined that David (a pseudonym) is unable to care for himself, and therefore dangerous under Wis. Stat. § 51.20(1)(am), because he lost employment and relies on the assistance of the government and his family for income and housing. As a matter of law, did the circuit err by concluding that the county, under these circumstances, met its burden to prove by clear and convincing evidence that David is dangerous?

David’s petition for review was stayed while SCOW decided J.W.K.,which interpreted §51.20(1)(am). That’s Chapter 51’s recommitment standard, and it permits a court to extend a person’s commitment by one year if there is a substantial likelihood that, based on his treatment record, he would become a proper subject of commitment if treatment were withdrawn.  As noted in our post on the court of appeals’ decision, David wasn’t actively dangerous to himself or others. But he did have a diagnosis of schizophrenia, had exhibited some delusions, and (since he lost his job) relied on his family and the government for support.

Is this enough to commit him under §51.20(1)(am)? The court of appeals said “yes.” But boy it sure seems like SCOTUS would  say “no.”  O’Connor v. Donaldson, 422 U.S. 563  (1975) held:

[T]he mere presence of mental illness does not disqualify a person from preferring his home to the comforts of an institution. Moreover, while the State may arguably confine a person to save him from harm, incarceration is rarely if ever a necessary condition for raising the living standards of those capable of surviving safely in freedom, on their own or with the help of family or friends. Id. at 575.

[A] State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.  Id. at 576.

This case is at the intersection  of §51.20(1)(am) and O’Connor. Does mental illness and reliance on government benefits get you committed in Wisconsin? We will soon find out. Coincidentally, today Mad in America ran a long article, based on a Wisconsin case, which presents arguments against endless outpatient recommitments under the “if treatment were withdrawn” standard. Click here.

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