Waukesha County v. R.D.T., 2024AP1390, 2/12/25, District II (1-judge decision, ineligible for publication); case activity
COA dismisses “Rex’s” D.J.W. and sufficiency challenges to his 2023 recommitment and involuntary medication orders as moot.
Rex was initially committed in 2021, and recommitted twice more before the recommitment at issue in this appeal. (¶2). The circuit court appointed two doctors to examine Rex, neither of whom was able to personally examine him. (¶4). At the recommitment hearing, only one of the doctors and a social worker testified. (¶5). The social worker’s testimony established that Rex is diagnosed with schizoaffective disorder, was on antipsychotic medication, and that the county was requesting an order requiring him to remain on medication. She also detailed Rex’s treatment and commitment history, explained that Rex does not believe he has a mental illness, that he has a history of stopping oral medications, and that without medication, Rex would “decompensate in the community,” lose his housing, lose his job, would require “inpatient hospitalization,” and that there would be “concerns for [the] public and his safety.” (¶5).
The doctor testified that he concluded based on records that Rex has a treatable mental illness, has delusions and is incapable of making an informed choice on medication and treatment, and that absent a commitment requiring medication, Rex’s symptoms would worsen and he would “become physically aggressive toward others[.]” Rex did not object during the testimony. (¶6). He did object to the admission of the two doctors’ reports to the extent that they contained otherwise inadmissible hearsay, and both were admitted into evidence.
On appeal, Rex seeks to vacate the commitment and medication orders based on the circuit court’s failure to comply with the Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, requirement to make specific factual findings on dangerousness, and because the County’s only evidence showing dangerousness was inadmissible hearsay. (¶8). COA concludes it need not address the merits of Rex’s appeal because the orders appealed from are moot as a result of the subsequent recommitment order entered in 2024. (¶8).
The court cites Sauk County v. S.A.M., 2022 WI 46, ¶¶24-27, 37, 402 Wis. 2d 379, 975 N.W.2d 162, for the proposition that appeals from expired commitment or recommitment orders may not be moot if “ongoing collateral consequences causally related to [the expired recommitment order] could be practically affected by a favorable decision” and states that it is not convinced that any collateral consequences meet that standard. Rex apparently argued that under Marathon County v. D.K., 2020 WI 8, ¶23, 390 Wis. 2d 50, 937 N.W.2d 901, the expired orders result in the following: (1) stigma; (2) the use of those records in subsequent legal proceedings; (3) the potential that the County may seek reimbursement from him for costs of his treatment pursuant to Wis. Stat. § 46.10(2); and (4) a firearms ban. (¶12).
The court rejects (1), (2), and (4) due to the prior recommitments. As to use of the records, it also references the requirement for each re-examination and new reports for each extension. The court rejects Rex’s argument on costs as “too . . . illusory” because there is no indication that the county is seeking reimbursement. (¶13). It also declines Rex’s request to address the merits based on an exception to mootness because it “is unconvinced that any of the mootness exceptions apply[.]” (¶13). COA further holds that any alleged errors were harmless, based on the testimony that Rex seems to have challenged on appeal. (¶¶15-16).
In a footnote, COA indicates that it is denying the county’s motion to convert this appeal to a three-judge panel.
As we recapped in our post on Winnebago County v. J.L.C., mootness used to be a common obstacle for ch. 51 litigators given the numerous delays present in an overburdened system of appellate review, the short lifespan of an underlying order, and the frequency of recommitment proceedings. Appeals were stayed multiple times while SCOW tried to sort out the mess–first holding that initial commitment orders are not necessarily moot in D.K., then failing to reach a consensus on the mootness of recommitment orders in E.R.R. before ultimately embracing defense-friendly arguments in S.A.M. and holding that recommitment orders are presumably non-moot. Again, despite S.A.M., COA holds that appeal of this expired order is moot.
Although the decision here seems to gloss over much of the discussion present in J.L.C., our concerns remain the same. As we noted, on the firearm issue, removing one obstacle to lawful possession is enough to disprove mootness, even if reversal will have only a “marginal” impact on the person’s situation. Again, COA also wholly ignores the broader impact of S.A.M. As SCOW recognized, § 46.10(2) provides that a committed person “shall be liable for the “cost of care, maintenance, services, and supplies” related to each commitment period. That mandatory language essentially allowed SCOW to presume a continuing consequence in S.A.M., thereby rejecting arguments that S.A.M. needed to show proof of actual efforts to collect.
This opinion reminds us that ch. 51 litigators cannot assume that mootness challenges are behind them. Unless and until these opinions are corrected via a petition for review or a motion for reconsideration, litigators should continue to affirmatively argue non-mootness via citation to the language of S.A.M. in their opening brief.
