Once committed, always committed . . . at least under Chapter 51

Waukesha County v. M.J.S., 2017AP1843, 8/1/18, District 2, (1-judge opinion, ineligible for publication), case activity

In May On Point reported a defense win in this case.  One week later, Waukesha County moved for reconsideration. The court of appeals just granted the motion and issued this new opinion. The difference between the two is that the May opinion only addressed (and reversed) the circuit court’s involuntary medication order. The August opinion addresses (and affirms) the circuit court’s order to extend M.J.S.’s commitment, while maintaining the reversal of his involuntary medication order. The court of appeals’ reasons for affirming the extension of commitment are unsettling.

M.J.S. has schizophrenia. He was originally committed in 1994. After his release, he stopped taking his medication and was hospitalized several times. This led to an incident in 1996 where he drove his bicycle erratically on a state highway and he fought with police after they confronted him. M.J.S.’s commitment has been extended ever since based on that incident–for 21 years!

To commit someone, the County must prove by clear and convincing evidence that the person is mentally ill, dangerous, and proper subject for treatment. See §51.20(1)(a). To extend the commitment, it must prove the same 3 elements except that it may satisfy the “dangerous” requirement by showing the person would become the proper subject for commitment if treatment were withdrawn. See §51.20(1)(am). According to the court of appeals, that incident 21 years ago shows that if treatment were withdrawn, M.J.S. would again become the proper subject of treatment.

¶17 We are unpersuaded by M.J.S.’s insistence that his earlier incident with police does not support a finding that he would be a proper subject for treatment if it were withdrawn. In fact, the absence of a similar incident in the twenty-one years following supports the conclusion that M.J.S.’s illness had been successfully managed through the commitment process. This testimony was sufficient to demonstrate “based on [M.J.S.’s] treatment record,” see WIS. STAT. § 51.20(1)(am), he would be a proper subject for treatment if treatment were withdrawn. Accordingly, we affirm the order extending M.J.S.’s commitment.

If that’s what the plain language of §51.20(1)(am) means, then perhaps it violates the Due Process Clause of the United States Constitution. See Foucha v. Louisiana, 504 U.S. 71, 78 (“keeping Foucha against his will in a mental institution is improper absent a determination in civil commitment proceedings of current mental illness and dangerousness.”)(Emphasis supplied). Also, it appears that M.J.S. was not just committed–he was also medicated–for schizophrenia for 21 years. Surely the medication has changed his brain in some way. Is it scientifically possible to say (to a reasonable degree of medical certainty) how he would behave today if treatment were withdrawn unless tries it? Maybe those meds have rendered him docile.