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SCOW to review mootness and sufficiency of doctor’s testimony in Chapter 51 cases

Portage County v. J.W.K., 2017AP1574, petition for review of a memorandum opinion granted, 6/11/18; affirmed, 5/21/19; case activity

Whether an appeal of the extension of a Chapter 51 commitment based on insufficient evidence becomes moot when the circuit court enters a new extension order?

Whether an examining physician’s testimony is sufficient to support the extension of a commitment where the physician merely recites the statutory language?

This appeal gives SCOW an opportunity to solve two recurring problems in Chapter 51 cases. As practitioners in this field know, the extension of a Chapter 51 commitment expires after 1 year.  Between the §809.30 appellate process and the time it takes the court of appeals to decide an appeal (not griping, just acknowledging the statistics), 1 extension of commitment can expire and the a 2nd one can be entered before the court of appeals decides the appeal from the 1st extension. Does this render the appeal from the 1st extension moot?  The court of appeals has been issuing conflicting decisions on this question. The answer should be “no.” The County’s burden of proof for an initial commitment is tougher than it is for an extension of commitment. See §51.20(1) (initial commitment) and §51.20(1)(am) (extension of commitment). If the extension of a commitment were vacated due to insufficient evidence, then at the 2nd hearing the County should have to satisfy the burden for an initial commitment, not an extension of a commitment. So the outcome of the 1st appeal matters to the subject of the commitment.

The second issue for review is also important. A Chapter 51 commitment or extension of commitment must be supported by an examining physician’s testimony that the person satisfies certain statutory standards for commitment and involuntary medication. Frequently, corp counsel simply asks the physician “yes” or “no” if the person satisfies a series of statutory standards. The physician either doesn’t testify to, or barely testifies to, facts specific to the person who is about to lose substantial personal liberties such as the right to be free from commitment and right to be free from psychotropic medications. Hopefully SCOW will firmly establish that merely parrots statutory requirements doesn’t qualify as “clear and convincing” evidence under §51.20(13)(e).


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