Langlade County v. D.J.W., 2020 WI 41, reversing an unpublished court of appeals opinion, 4/24/20; case activity
Wisconsin’s involuntary commitment rate is higher than that of any other state–by a long shot. According to a report for the Substance Abuse and Mental Health Services, the annual commitment rate among states ranges from 0.23 to 43.8 per 1,000 adults with serious mental illness. The average is 9.4 per 1,000, with Wisconsin at 43.8. SCOW’s decision in this case can reduce the number of fait accompli commitment hearings–but only if defense lawyers invoke it and trial courts take it seriously.
Langlade County petitioned to extend D.J.W.’s involuntary commitment and medication order because when he goes off treatment, he can’t maintain his job, he relies on his parents for housing, and he receives social security benefits due to schizophrenia.
In order to recommit a person under §51.20(1)(am), a county must prove that (1) he is mentally ill, (2) he is a proper subject for treatment, and (3) if treatment were withdrawn, he would become the proper subject of commitment. As defense lawyers in this field know, counties insist that (3) relieves of them of having to prove that the person would become dangerous under any 1 of the 5 stands of dangerousness in §51.20(1)(a)2. Instead, they just need to put on a doctor to recite that if treatment were withdrawn, the person would stop medication and/or decompensate.
Not any more. Now the county must specify which standard of dangerousness at the recommitment stage and going forward circuit courts “are to make specific factual findings with reference to the subdivision paragraph of §51.20(1)(a)2 on which the recommitment is based.” Opinion, ¶40. (Emphasis supplied).
Justice A.W. Bradley (author of the majority opinion) explained that this requirement is “manifest in the language of §51.20(1)(am).” Opinion, ¶41. Furthermore, directing circuit courts to make specific factual findings “provides clarity and extra protection to patients undergoing recommitment.” Opinion, ¶42. These findings will “clarify issues raised on appeal of recommitment orders and ensure the soundness of judicial decision making, specifically with regard to challenges based on the sufficiency of the evidence.” They will also ensure meaningful appellate review of the evidence in recommitment proceedings. Opinion, ¶44.
Sound familiar? Justice A.W. Bradley also wrote State v. Gallion.
Because Langlade County failed to specify a standard of dangerousness, SCOW had to guess which one to apply. It chose the standard used at D.J.W.’s initial commitment hearing–§51.20(1)(a)2d (recent acts indicating an inability to satisfy basic needs). It also used the standard employed by the court of appeals–§51.20(1)(a)2c (pattern of recent acts creating a substantial probability of physical impairment). SCOW found insufficient evidence to support recommitment under either standard:
¶53 Inability to care for oneself does not equate with a “substantial probability” that “death, serious physical injury, serious physical debilitation, or serious physical disease” would ensue if treatment were withdrawn. Nothing in Dr. Coates’s testimony even hints at a serious physical consequence to D.J.W. if treatment were to be discontinued. His testimony on this subject relied only on generalized propositions with regard to people with schizophrenia, not anything specific to D.J.W. For example, Dr. Coates indicated that “[d]anger in my opinion is not suicidal and homicidal ideations. Although those are possibilities. There is an increased risk of suicide in people with schizophrenia. That’s just a statistical fact.”
¶55 Again, Dr. Coates’s testimony established only that if treatment were withdrawn, D.J.W. would be unable to maintain a job, would have to rely on disability for income, and would have to live with family. As detailed above, the testimony does not support a determination that D.J.W. was dangerous. Without more, and given that D.J.W.’s family demonstrated willingness to help, recommitment based on this record would run afoul of O’Connor.
¶57 The County’s argument fares no better under subd. para. 2.c. than it does under 2.d. Again, no testimony was offered at the recommitment hearing that would support a determination of any “substantial probability of physical impairment or injury” that may inure to D.J.W. specifically in the event treatment were withdrawn. A diagnosis of schizophrenia, by itself, does not demonstrate the requisite “substantial probability of physical impairment.” If it did, the statutory elements of mental illness and dangerousness would be merely redundant.
Chief Justice Roggensack dissented, ¶¶61-115, arguing that SCOW should have affirmed D.J.W.’s recommitment under the 5th standard of dangerousness. Nobody (not even the county) ever argued the 5th standard in this case. So her view is that appellate courts can pull a dangerousness standard out of thin air to affirm. Justice R.G. Bradley also dissented arguing that SCOW should have dismissed this case because D.J.W. died during the appeal, rendering the issues moot. R.G. Bradley’s dissent, ¶¶116-127.
Trial lawyers: If counties must specify the standard of dangerousness and circuit courts must make explicit factual findings tied to that standard at a recommitment hearing, then surely they must follow the same rule at the initial commitment hearing. Right now they don’t. Please object to violations of this rule early and often–whether your client is at the initial commitment stage or the recommitment stage. Your appellate lawyer will ❤ you.
Appellate lawyers: If you have a pending Chapter 51 appeal where the evidence is borderline or the county and/or circuit court failed to specify the standard of dangerousness, consider requesting supplemental briefing in light of SCOW’s decision in this case.
A note on doctors’ reports: Counties rarely bother to ask to have them admitted into evidence. When that happens Footnote 4 of this decision suggests that the report should not be considered by an appellate court reviewing the sufficiency of the evidence.
This decision is long overdue but a welcome one.