An unconstitutional application of the 5th standard of dangerousness?

Outagamie County v. C.A., 2017AP450, District 3, 1/23/18 (1-judge opinion, ineligible for publication); case activity

The records for Chapter 51 cases are confidential, so we have not seen the briefs for this case. But, judging from this court of appeals opinion, it doesn’t take much beyond a mental illness diagnosis to get yourself committed under §51.20(1)(a)2e, Wisconsin’s 5th standard of dangerousness. A little unsubstantiated hearsay about your frustration with the justice system just might do the trick.

In order to commit a person under Chapter 51, a county must satisfy 1 of the 5 standards under §51.20(1)(a)(2) by clear and convincing evidence. The 5th standard requires a county to prove these 5 elements

1. The person is mentally ill.
2. Due to mental illness, the person is unable to make an informed choice as to whether to accept or refuse medication or treatment.
3. There is a substantial probability, as demonstrated by the person’s treatment history and her recent acts or omissions, that the person needs care or treatment to prevent further disability or deterioration.
4. If left untreated, there is a substantial probability, that she will lack services necessary for her health or safety.
5. If left untreated, there is a substantial probability that the person will suffer severe mental, emotional, or physical harm that will result in the loss of the individual’s ability to function independently in the community or the loss of control over her thoughts and actions. See Wis. Stat. §51.20(1)(a)(2) and State v. Dennis H., 2002 WI 104, 255 Wis. 2d 359, 647 N.W.2d 851.

C.A. suffers from schizoaffective disorder with manic and psychotic features. Until her commitment, she lived with her mother. She concedes that the county met the first 2 requirements above, but argues that it failed to offer credible evidence of the others. Regarding the 3rd “recent acts or omissions” requirement, the county presented 3 witnesses: (1) a doctor who “surmised” that C.A. intimidated her mother, (2) an officer who testified that C.A. raved in public “about somebody being killed” and expressed disorganized, delusional thoughts about our legal system, and (3) a therapist who said that family members said that C.A. had threatened to kill a judge.

The court of appeals “assumed” that the circuit court “implicitly found” that the county’s witnesses were more credible than the mom, the only family member to testify. Opinion ¶10 n.4. The mom said that she was not afraid of C.A. and that she had never heard C.A. threaten a judge. She called C.A.’s therapist to get medicine for the terrible stress that C.A. was experiencing. The court of appeals found the hearsay combined with the mom’s testimony “sufficient evidence of recent acts showing a need for treatment to prevent C.A.’s further deterioration.” Opinion ¶10.

As is often the case with Chapter 51 commitments, it appears that the county did not prove that any of the hearsay was true. Thus, the court of appeals’ holding is at odds both with Lessard v. Schmidt, 349 F. Supp. 1078, 1103 (1972), which declared an earlier version of Chapter 51 unconstitutional in part because it permitted commitments based on hearsay, and with current §51.20(10)(c), which provides that the rules of evidence apply to Chapter 51 proceedings. Experts may rely on hearsay in forming their opinions, but they cannot introduce unauthenticated hearsay at a hearing. S.Y. v. Eau Claire County, 156 Wis. 2d 317, 327, 457 N.W.2d 326 (Ct. App. 1990).

Regarding the 4th requirement above, C.A. noted that the doctor found her in good health and her mother offered to continue to provide her care and assistance. The court of appeals was unimpressed. “These issues are unimportant under the 5th standard: ‘[T]he simple provision of food and shelter by a non-treatment facility does not satisfy the requirement of the reasonable provision for the individual’s care or treatment.'” Opinion, ¶11 (citing Dennis H. ¶25).

Wrong! These issues are important under the 5th standard.  C.A.’s mother is not a “non-treatment facility.” Moreover, the state cannot commit “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.” O’Connor v. Donaldson, 422 U.S. 563, 576 (1975)(emphasis supplied).

Regarding the fifth requirement above, C.A. noted that she was functioning adequately in the community when the county petitioned to commit her. The court of appeals pointed to the examining doctor’s opinion that “C.A. would continue to refuse treatment” and that without it she would decompensate and lose control over her thoughts and actions. Opinion ¶13.

Note to Chapter 51 trial lawyers: Justice Abrahamson’s concurrence to Dennis H. states that the 5th standard “passes constitutional muster for me only so long as courts require significant evidence of the statutory elements, and treatment is in fact provided.” Opinion ¶49 (emphasis supplied).  Hearsay is not “significant evidence.” See Lessard at 1102. When the county offers skimpy evidence of the statutory element, consider preserving the argument that the 5th standard is unconstitutional “as applied” to your client. Your friendly neighborhood appellate lawyers will thank you for it.