Winnebago County v. A.F.H., 2023AP1798, 5/1/24, District II (one-judge decision; ineligible for publication); case activity
In this chapter 51 appeal from an order for involuntary commitment and treatment, and an order denying postdisposition relief, the court of appeals affirms, concluding that even without the inadmissible hearsay, sufficient evidence existed supporting the underlying orders.
The circuit court found A.F.H. (“Antonin”) dangerous under the second standard, meaning that he presented “a substantial probability of physical harm to other[s].” See Wis. Stat. § 51.20(1)(a)2.b. In Antonin’s case, the court’s finding was based on testimony that Antonin threatened to kill staff members at the Wisconsin Resource Center (WRC) and that he spit at a staff member (who was separated from Antonin by glass). Postconviction, the circuit court agreed that the county presented inadmissible hearsay, but relied on a staff members testimony about Antonin’s attempt and threats to spit at him.
With regard to Antonin’s hearsay claim, raised through the lens of ineffective assistance of counsel, the court jumps to the prejudice prong and concludes that Antonin suffered no prejudice because, even assuming only inadmissible hearsay supported the alternate bases for Antonin’s dangerousness, the staff member’s testimony that Antonin spit at him (albeit while glass physically separated them), was sufficient to establish dangerousness:
In this case, whether Antonin’s spitting is viewed as an actual attempt at harm (doomed by the window protecting his target) or a threat to do future harm (to spit at staff as soon as he got a chance when the window was not between them, for example), it caused enough fear of harm that WRC staff implemented the extra security measure of wearing spit masks when dealing with Antonin. The contention that this security measure was likely to be effective and thus mitigated the fear of potential targets misses the point that Antonin made an attempt or threat sufficient to show dangerousness by the second evidentiary path of WIS. STAT. § 51.20(1)(a)2.b. The very act of prophylactically wearing spit masks is evidence of the reasonable fear that the staff had for their safety. Op., ¶19.
After addressing Antonin’s hearsay-based arguments, the court addresses what it calls Antonin’s “recency argument.” As in all original commitments, the statute requires proof of “recent” dangerousness, but how recent is recent enough? Antonin argued relied on his doctor’s testimony that that at the time of the final hearing was “like a normal person … very coherent” and therefore not presently dangerous. Op., ¶25. While “recency” is clearly an issue not defined in the statute and not thoroughly discussed in the caselaw, Antonin’s argument fails here based on the facts of his case: He “spat” at a staff member on December 29, 2022. WRC requested a civil commitment on January 5, 2023, and the county filed a petition to commit Antonin on January 26, 2023. The court then held a timely probable cause hearing, and a timely final hearing by February 16, 2023. The court strongly disagrees with Antonin:
It would be perverse to hold that commitment and involuntary medication might be warranted only of the medication properly ordered at the probable cause hearing had been ineffective such that instances of dangerous behavior had continued to take place up to the date of the final hearing. This court finds no merit in Antonin’s recency argument. Op., ¶27.
After noting its agreement with the county that the collateral consequences at issue “may very well be illusory,” the court explains that “pursuant to S.A.M., the case has been analyzed on the merits.” Thereafter, the court issues yet another all-too-common conclusory comment regarding the “cost of judicial and party resources” resulting from “yet another appeal regarding a commitment proceeding that is not decided until well after the orders at issue are expired.” The court quotes D.K. to wonder “[h]ad certain things happened in the circuit court below, perhaps [this] appeal would have been unnecessary.” Op., ¶29.
The issue that stands out in this case, despite the court’s “no merit” comment, is Antonin’s “recency argument.” Simply put, there is nothing frivolous about disputing whether past conduct satisfies the constitutional necessity to prove “current” dangerousness. If Antonin really was “like a normal person” after being treated and medicated for less than two months, what made him dangerous at the time of the final hearing? The standard of dangerousness at issue requires clear and convincing evidence of current dangerousness defined as “a substantial probability of physical harm to other individuals” as evidenced by “recent” conduct. While Chapter 51 does not define “recent” within this context, the court’s focus on the relatively limited passage of time between the incident that led to Antonin’s commitment seems to miss the point. Whether the allegedly “recent” conduct occurred 2 days, 2 weeks or 2 months ago, the question is whether the person subject to a potential civil commitment is dangerous at the time of the final hearing. In other words, the statutory prerequisite of recent conduct is not the same as clear and convincing evidence of “current dangerousness.”
