Portage County v. E.R.R., 2019AP2033, petition for review of an unpublished dismissal order granted 8/20/20; case activity

Issues presented:

Whether an appeal from a Wis. Stat. §51.20(1)(am) recommitment order may properly be dismissed as moot.

Whether the County met its burden to prove by clear and convincing evidence that Mr. R. was currently dangerous as required by Wis. Stat. §51.20(1)(am).

Wait. Didn’t SCOW already grant review of this issue? Yes, in Waukesha County v. J.J.H., Appeal No. 2018AP168, but after briefing and argument it said that review had been improvidently granted. Hopefully, this appeal will yield a decision and put this issue to bed. Most jurisdictions in the United States hold that appeals from expired commitments are never moot because of their collateral consequences and because dismissal deprives the bench and bar of guidance on how to to apply the law and constitution in these cases. Wisconsin is an outlier. Here, the court of appeals not only dismisses appeals from expired commitments (as in this case), just last week it dismissed an appeal because the appellant failed to anticipate and refuse the county’s mootness argument in the initial brief.

SCOW recently held that an appeal from an expired initial commitment order is not moot when it results in a firearm restriction. Marathon County v. D.K., 2020 WI 8, 390 Wis. 2d 50, 937 N.W.2d 901. The court did not address other collateral consequences flowing from an involuntary commitment order, such as stigma and potential liability for the cost of care. Here’s another chance to address this issue, but it’s hard to say which way SCOW will rule.

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