Winnebago County v. D.E.W., 2024 WI 21 (per curiam), 5/14/24, review of an unpublished court of appeals decision; case activity
Although many practitioners may have hoped that this case would resolve recurrent issues in appeals of involuntary medication orders, those issues will have to be resolved another day given SCOW’s order dismissing the petition as improvidently granted.
We get it: We’ve already posted a lot on this issue. Suffice it to say, however, that D.E.W.’s appeal reveals there are still many unanswered questions for lower court actors. Here, the central issue concerns the quantum of evidence the County must elicit at an involuntary medication hearing. D.E.W., relying on SCOW’s decision in Melanie L. as well as some more recent unpublished COA wins, argued that the County must do more than offer merely conclusory testimony and needs to put meaningful detail into the record. The County, for its part, disagrees and asserts that even conclusory testimony from an otherwise unchallenged expert witness–so long as that witness properly recites the statutory standard–is just fine. In support, it relied on SCOW’s decision in Christopher S. as permitting this lower burden. Given the existence of two potentially contradictory SCOW decisions, COA has struggled to consistently articulate a unifying principle; instead, decisions reach different results depending on which SCOW decision is given more emphasis in the court’s analysis–an obvious source of uncertainty and tension in our common law.
That’s not all. It turns out, based on the oral argument, that there other unanswered questions. Many justices wanted to know whether an expert report–submitted to the court but never moved “into” evidence at the hearing–could be used to shore up the County’s sufficiency arguments. Others were interested in whether standalone challenges to involuntary medication orders are moot or whether SCOW’s recent jurisprudence in the 51 arena keeps those challenges alive, as well.
Given SCOW’s order, however, all of these issues will now have to wait for another day. Readers interested in litigating this issue are therefore encouraged to review our post on COA’s decision and to continue preserving such challenges for this case’s inevitable sequel.
As is SCOW’s custom, it does not explain why the petition is dismissed as improvidently granted–an issue, that, as Justice R.G. Bradley points out, is a recurrent source of friction given Justice A.W. Bradley’s view that at least some explanation ought to be required. (According to a footnote in Justice R.G. Bradley’s concurrence, this is the sixth time the dispute has played out in connection with a DIG order).
Turning away from the quirks of judicial administration and back to the merits, Justice Dallet files a short dissent in which she agrees that a decision from SCOW in this area may be necessary to “clear up potential uncertainty” about the “interplay between” Melanie L. and Christopher S. (¶7). She also believes that the issue pertaining to expert reports is ripe for examination in a hypothetical future case. (¶9).
