Chapter 51 defense win! Court of appeals rejects 3 doctors’ opinions to find insufficient evidence of dangerousness

Chippewa County v. M.M., 2017AP1325, 5/1/18, District 3, (1-judge opinion, ineligible for publication); case activity

You don’t see this very often. A jury found M.M. mentally ill, a proper subject for treatment, and dangerous under §51.20(1)(a)2.c based on testimony by not 1, not 2, but 3 doctors–all of whom said that M.M.’s paranoia and conduct would cause others to feel fearful and threatened and possibly assault him in an effort to protect themselves. This idea that M.M. was “indirectly” dangerous to himself did not wash with the court of appeals. It reversed and also rejected the County’s claim that M.M.’s appeal from this 6-month commitment was moot.

To find M.M. “dangerous under §51.20(1)(a)2.c, the County had to show, by clear and convincing evidence, that M.M.:

[e]vidence[d] such impaired judgment, manifested by … recent acts or omissions, that there is substantial probability of physical impairment or injury to himself.[5] The probability of physical impairment or injury is not substantial if reasonable provision for [M.M.]’s protection is available in the community and there is a reasonable probability that [M.M.] will avail himself of these services.

The court of appeals observed that the record contained no evidence that M.M. had ever made direct or indirect threats to himself or others. Nor was there evidence that his conduct had ever provoked reprisal from other in the community. Opinion ¶18.  It also rejected the doctors’ opinions that this could occur.

¶20 We reject the County’s argument that the doctors’ testimony that others might perceive M.M. as being threatening constitutes clear and convincing evidence that M.M. is a danger to himself. The County cites no legal authority in support of its apparent position that M.M. causing others in the community to feel uncomfortable or fearful, without any evidence of threats or physical acts by M.M. toward others, or by others to M.M., translates into a “substantial probability” that someone else would attack and harm M.M. No evidence was introduced showing M.M.’s behavior had ever provoked a defensive physical response from any individual.

¶21 The doctors acknowledged as much in their opinions. Doctor Lace merely stated that M.M.’s mental illnesses would place others “indirectly” in danger, based upon the “uncomfortable” behavior Lace witnessed during the examination. Doctor Tasch noted only that there was a “potential for injury” due to M.M.’s impaired judgment. Also, Dr. Helfenbein conceded that a defensive injury scenario based upon others construing M.M. as violent was only “theoretical.” In fact, Helfenbein admitted he was only “guessing” that others would perceive M.M. as dangerous.

¶22 The notion that others could seek to defend themselves from M.M. while he was in the community is not necessarily unreasonable. However, to commit M.M., the County was required to clearly and convincingly show a “substantial probability”—meaning “much more likely than not”—that M.M. would suffer physical impairment or injury for that reason. See Curiel, 227 Wis. 2d at 414; see also WIS. STAT. § 51.20(13)(e). It failed to do so. We thus cannot conclude the evidence was sufficient to prove M.M. was dangerous to himself under WIS. STAT. § 51.20(1)(a)2.c. merely because his mental illnesses would cause others to perceive him as behaving abnormally and they may respond in a way that could potentially injure M.M. We therefore reverse the commitment order.

This opinion is also noteworthy because Chapter 51 commitments are short, so they typically expire before the court of appeals decides them. This prompts the county to seek dismissal of these appeals on the grounds that they are moot. That challenge failed in this case because the commitment order stated that it would continue to affect M.M. even after its expiration. See Opinion ¶13 n.4. If you look at the standard order of commitment form you will see that it has the continuing collateral consequence of barring the subject individual from possessing a firearm. This is one way to refute a mootness challenge to an appeal form an original commitment.