Marathon County v. N.R.P., 2023AP638, 6/11/24, District III (one-judge decision; ineligible for publication); case activity
In yet another Chapter 51 reversal, COA finds fault with both the circuit court’s decision to admit and rely on hearsay evidence and its failure to make the required findings.
Hearsay Evidence
As is common at recommitment proceedings, the County chose to rely solely on the testimony of two medical experts (Dr. Coates and Dr. Elmergreen), rather than calling other fact witnesses. During Dr. Coates’s testimony, he testified at length about prior dangerous acts committed by “Noah.” (¶4). The circuit court overruled counsel’s hearsay objection, asserting that experts are allowed to “testify as to the basis of” their opinions. (Id.). The County’s second witness presented more of the same, testifying about what he had learned about Noah by reviewing his medical records. (¶6). The court once again overruled counsel’s objection. (Id.).
On appeal, the County appears to concede that the testimony was hearsay. (¶18). Instead, it argues that the circuit court properly relied on the expert opinions at issue. (Id.). In three paragraphs that should be front and center in any future Chapter 51 appeal regarding hearsay, COA makes clear that hearsay evidence cannot be admitted and relied on at such hearings. Thus, while doctors can rely on hearsay in formulating their opinions, that does not mean the underlying hearsay is admissible. Instead, “The County must provide direct evidence of the events that provided a basis for the doctors’ opinions, or it must cite an exception to the hearsay rule if it wishes to rely upon hearsay for the truth of the matter asserted.” (¶19). The hearsay rules are important, COA holds, because of the court’s independent obligation to make “specific factual findings of a proposed patient’s dangerousness.” (Id.). “In other words a circuit court can only rely on competent, admissible evidence to find whether underlying facts supporting a dangerousness opinion actually exist; it cannot use expert opinions as an evidentiary “loophole” to establish the veracity of the underlying hearsay evidence.” (Id.).
Accordingly, COA holds that the circuit court erroneously exercised its discretion in admitting the doctors’ hearsay evidence. (¶20).
Specific Factual Findings
Although COA concludes that it could reverse for the hearsay issue alone, it also holds that reversal is warranted given the court’s failure to comply with the D.J.W. mandate. Although the court identified a statutory subsection, it failed to make the required findings in support of that ultimate conclusion. (¶24). “Summary” or “conclusory” findings are not adequate under D.J.W.; accordingly, COA reverses. (¶24).
This is another really great citable defense win that should be back-pocketed for 51 litigators. We only pause briefly to address one other issue not discussed in the above summary–mootness. Thus, while COA ultimately opts to address the case on the merits, the first several pages of its analysis address an issue many litigators thought well-settled. Here, the County appears to have fought an especially hard battle on the mootness front. While those efforts are unavailing, this is still a great opportunity to remind our readers that mootness can never be taken for granted in such cases.
