In a decision recommended for publication, the court of appeals held that Outagamie County did not violate “Catherine’s” right to due process by filing a petition that failed to provide particularized notice of the standard of dangerousness warranting her recommitment. Even so, Catherine prevailed on appeal due to a defect in the special verdict submitted to the jury.
Catherine has been diagnosed with schizoaffective disorder or schizophrenia. The county has continually recommitted her since 2016 when she made threats against a judge, showed “animosity and agitation toward the legal system,” and displayed disorganized thoughts and delusions.
In 2020, a county social worker recommended recommitment because Catherine lacked insight into her mental illness and would therefore decompensate if not recommitted. Before trial, Catherine moved for an order requiring the county to specify the standard of dangerousness it was proceeding under and precluding the county from presenting evidence on standards it did not specify.
The court of appeals held that Catherine had a 14th Amendment right to procedural due process and that the notice she received was constitutionally sufficient for several reasons. First, she received all the notice required by §801.14(1) and §51.20(10)(a)--notice of the time and place of the final hearing. Opinion, ¶18.
Second, Catherine already had “notice of the dangerousness standard or standards the County would likely attempt to prove at trial” because she and her lawyer were aware of “her own mental illness diagnosis, her prior and current behaviors, and the dangerousness standards under which she was previously committed.” Opinion, ¶¶19-20.
Third, the examiners’ reports filed shortly before the hearing provided her and her lawyer notice of the conduct warranting her recommitment. Opinion, ¶21.
This rationale is backward. The county, represented by corporation counsel, must file a petition alleging probable cause for a recommitment, satisfying both the statute and due process. When it files the petition, it has had custody of the person for 6-12 months. The county’s own doctors and social workers have been actively treating the person for 6-12 months. Conversely, the person’s lawyer does not have this information because lawyers change from one commitment to the next and because a trial lawyer’s representation ends with the file of the notice of intent. Typically defense lawyers receive access to examiners’ report just 48 hours before trial. Heading into the recommitment hearing, the county has a huge advantage.
Also, is it fair to say that a person is so far gone that she cannot recognize that she has a mental illness and she is incompetent to make her own treatment decision while also saying she is presumed to know the basis for her recommitment? Remember, a person could be committed under the 1st standard for attempting suicide but recommitted because more recent conduct satisfies a different standard of dangerousness.
This due process issue is one of several presented in Sauk County v. S.A.M., 2019AP1033. So SCOW may soon weigh in on this issue.
The court of appeals also rejected Catherine’s due process claim because she failed “to identify how her claimed lack of notice affected her ability to defend against the recommitment petition.” Opinion, ¶¶23-26.
Now on to the defense win! This was a recommitment. On the dangerousness element, the jury had to decide whether the county proved “a substantial likelihood, based on the subject individual’s treatment record, that the individual would be a proper subject for commitment if treatment were withdrawn.” Wis. Stat. §51.20(1)(am).
But the circuit court drafted a special verdict that presented this question: “Is the subject dangerous to herself or to another if not recommitted?” Opinion, ¶32. (Emphasis supplied).
The court of appeals held that the words in bold are confusing. Among other things, they direct the jury “to consider future events–i.e. whether Catherine would become dangerous in the future if she were not recommitted” rather than focusing on her current dangerousness. Opinion, ¶¶32-34, ¶36. (Emphasis supplied).
To avoid this problem in the future, the court of appeals recommended that circuit courts use WIS JI–Civil 7050A (2021), which is based on Langlade Cnty. v. D.J.W., 2020 WI 41, ¶42, 391 Wis. 2d 231, 942 N.W.2d 277. It requires the jury to specify one or more of the 5 standards of dangerousness is §51.20(1)a.2 alone or in combination with §51.20(1)(am). Opinion, ¶40.
The court of appeals reversed Catherine’s recommitment order and remanded the case for a new trial. Opinion, ¶41.
Query whether, on remand, the circuit court will have the competency to conduct a new trial on a recommitment that has expired? A variation on that question is pending before SCOW in Sheboygan County v. M.W., 2021AP6. We expect a decision by the end of this term.