Outagamie County v. L.X.D.-O, 2020AP1806, 3/7/23, District 3, (recommended for publication); case activity

Unfortunately, the court of appeals just turned Chapter 51 and due process upside down in a published opinion. It holds that counties must move examiners’ reports into evidence at recommitment hearings, but not at initial commitment hearings. This appeal concerns an initial commitment. So the court of appeals says when reviewing the sufficiency of evidence, it may consider an examiner’s report that the county neglected to move into evidence. What a fist on the scales of justice for the county.

Mootness.  Before reaching the lead issue, the court of appeals resolved the county’s mootness challenge in a way helpful to the defense. Larry stipulated to his initial commitment but challenged whether the evidence was sufficient to support the court’s involuntary medication order. Because the order had expired, the court of appeals held the appeal moot. Opinion, ¶2.

However, SCOW recently held that appeals from expired commitments are never moot due to their collateral consequences, one being that the individual is potentially liable for the cost of care during his commitment per §46.10(2), unless his commitment is reversed. See Sauk County v. S.A.M., 2022 WI 46, ¶¶21-27, 402 Wis. 2d 379, 975 N.W.2d 162. Here, Larry argued that the “cost of care” would include the costs of medication, administering medication, and monitoring him while he was on medication.

The court of appeals “acknowledged that an argument could be made that the costs of care may be reduced if a medication were vacated.” However, it did not decide the point because Larry did not sufficiently develop the argument. Opinion, ¶14 n.8. Thus, this argument is fair game in other involuntary med appeals.

Despite finding the appeal moot, the court of appeals decided it based on the “capable of repetition yet evades review” exception to the mootness doctrine.  The record showed that Larry has ongoing mental health problems. He has been the subject of prior commitments, so it’s likely he will be the subject of future commitment and medication proceedings where these issues will arise again. Opinion, ¶18. Although the court of appeals did not cite it, Washington v. Harper, 494 U.S. 210, 219 (1990) says the same thing regarding an appeal from an expired medication order.

Moving examiners’ reports into evidence. In two recommitment cases, SCOW and the court of appeals held that when a county fails to move an examiner’s report into evidence, the appellate court could not rely on it when reviewing the sufficiency of the county’s evidence. See Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, ¶7, n.4, 942 N.W.2d 277; Winnebago County v. S.H., 2020 WI App 46, ¶2 n. 3, 292 Wis. 2d 511, 947 N.W.2d 761.

The court of appeals now holds that initial commitment proceedings are different. Counties need not move examiners’ reports into evidence because they are governed by §51.20(9)(a)5. Under that subsection, once a court finds probable cause for an initial commitment, it must appoint two licensed doctors to examine the individual, “make independent reports to the court” and file their written reports “with the court.” Allegedly, this subsection shows that the reports are made for the court’s benefit. They are “not created for the parties’ benefit such that the parties must then seek to admit the evidence in the record.” Opinion, ¶33.

The court of appeals has made a significant error.  In contested hearings, the reports are for the parties’ benefit. The county needs them to figure out which examiner to call to carry its burden of proof. More importantly, the individual needs them to mount a defense.  Indeed, §51.20(10)(b) expressly provides that defense counsel “shall have access” to the reports “48 hours in advance of the final hearing.”

SCOW addressed these matters in R.S. v. Milwaukee County, 162 Wis. 2d 197, 470 N.W.2d 260 (1991), a case the court of appeals does not discuss. R.S. involved a contested guardianship proceeding where the county moved to admit an examiner’s report into evidence without calling the examiner to testify. SCOW held that the report alone is hearsay, and the guardianship statute that requires the examiner to file the report with the circuit does not say that the “report is admissible in evidence as an exception to the hearsay rule.”

SCOW explained why the legislature requires examiners to file their reports with the circuit court. Significant liberty interests are at stake in guardianship proceedings. Yet there will be cases where the ward does not contest the guardianship or the admission of the report into evidence. In uncontested guardianship cases, the filing requirement ensures that the court has a disinterested, professional opinion to rely upon before granting the petition.  Id., 162 Wis. 2d at 207-208.

Now consider Larry’s case. Nowhere does §51.20(9)(a)5. state that examiners’ reports filed with the circuit court are automatically admitted into the evidence. The court of appeals is reading language into the statute.

Significant liberty interests are also at stake in commitment proceedings. That’s why, under the 14th Amendment, a court may not commit a person without a psychiatrist’s or psychologist’s opinion that the person is both mentally ill and dangerous. Addington v. Texas, 441 U.S. 418, 429 (1979). As with Chapter 54 guardianships, people sometimes stipulate to Chapter 51 commitments. In that situation, §51.20(9)(a)5. ensures that the circuit court does not commit a person without a medical basis.

Furthermore, examiners’ reports are loaded with hearsay. When counties must move reports into evidence, defense lawyers have an opportunity to object. One potential consequence of the court of appeals decision in Larry’s case is that for initial commitment hearings §51.20(9)(a)5’s filing requirement exempts the county from the rule against hearsay and deprives the individual of his statutory and constitutional right to confront and cross-examine witnesses. Wis. Stat. §51.20(5); Vitek v. Jones, 445 U.S. 480, 494-495 (1980).

The court of appeals says its analysis is bolstered by Waukesha County v. S.L.L., 2019 WI 66, ¶24, 387 Wis. 2d 333, 929 N.W.2d 140, a case that grossly misconstrued the plain language of Chapter 51.  S.L.L. held that petitions for recommitment are only governed by §§51.20(10) to (13). Thus, reasoned the court of appeals, §51.20(9)(a)5’s filing requirement only applies to initial commitments. Opinion, ¶35.

By that logic, no examiner’s report is required for a recommitment proceeding because §§51.20(10) to (13) don’t require the circuit court to appoint an examiner for a recommitment proceeding. Yet under the 14th Amendment, a court may not commit a person without a psychologist’s or psychiatrist’s opinion certifying that the person is mentally ill and dangerous.

Sufficiency of evidence. In Larry’s case, the court of appeals held that Dr. Bales’ testimony was not sufficient to support an involuntary medication order. His perfunctory statement that he attempted to talk to Larry about medication does not prove that he received a reasonable explanation of the proposed medication. Besides, Dr. Bales neglected to say whether Larry met §51.61(1)(g)4.a or b. Opinion, ¶¶25-27.

But the court of appeals did not stop there. Dr. Bales’ report gave far more detail about the medication explanation provided to Larry and specified the applicable standard–§51.61(1)(g)4.b. Considering both Dr. Bales’ testimony and report, the court of appeals held that the County carried its burden of proof.