Outagamie County v. Michael H. ( 2014 )

2014 WI 127SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP1638-FT
COMPLETE TITLE: In the matter of the mental commitment of
Michael H.:
Outagamie County,
Petitioner-Respondent,
v.
Michael H.,
Respondent-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 352 Wis. 2d 248, 841 N.W.2d 582)
(Ct. App. 2013 – Unpublished)
OPINION FILED: December 16, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 7, 2014
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Outagamie
JUDGE: Dee R. Dyer
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
by Suzanne L. Hagopian, assistant state public defender, and
oral argument by Suzanne L. Hagopian.
For the petitioner-respondent, there was a brief by Patrick
M. Taylor, assistant Outagamie County corporation counsel, and
oral argument by Patrick M. Taylor.
2014 WI 127NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP1638-FT
(L.C. No. 2012ME87A)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the mental commitment of
Michael H.:
Outagamie County, FILED
Petitioner-Respondent, DEC 16, 2014
v. Diane M. Fremgen
Clerk of Supreme Court
Michael H.,
Respondent-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 N. PATRICK CROOKS, J. Outagamie County filed a
petition for the involuntary commitment of Michael H., and based
on the jury's determination that he was dangerous to himself,
the Outagamie County Circuit Court ordered him committed for
treatment pursuant to Wisconsin's involuntary commitment
statute, Wis. Stat. § 51.20. The heart of the case is the
dispute over the evidence that he was dangerous. Michael
challenges the sufficiency of the evidence, and we must
determine whether the evidence was sufficient to support the
jury's conclusion that he was dangerous within the meaning of
No. 2013AP1638-FT
Wis. Stat. § 51.20(1)(a)2.a. or 2.c. or both——that there was a
substantial probability of injury to himself, based either on
threats of suicide or impaired judgment.1 Because we cannot
evaluate the sufficiency of the evidence without examining the
meaning of the statute's words, we also must decide what
satisfies the statute's requirement of "evidence of recent
threats . . . of suicide"——specifically, whether the acts in
this case can constitute a threat. Jurors are asked in these
difficult cases to determine whether clear and convincing
evidence2 supports a finding of dangerousness, knowing they
should neither wrongly deprive a person of liberty nor fail to
authorize intervention before a dangerous person harms himself.
¶2 Wisconsin Stat. § 51.20 (2011-12)3, which establishes
the prerequisites for involuntary commitment for treatment,
requires a determination that a person is dangerous and provides
five grounds for making such a determination. The statute
spells out what may serve as grounds for such a determination.
In this case, the two grounds alleged relate to Michael's
1
Michael does not dispute Outagamie County's allegation
that he is mentally ill and a proper subject for treatment under
Wis. Stat. § 51.20(1)(a)1.
2
State v. Randall, 192 Wis. 2d 800, 818, 532 N.W.2d 94(1995) (stating, "In civil commitment proceedings, the state is
required to prove by clear and convincing evidence that a
proposed committee is mentally disabled and dangerous. This is
often referred to as the Addington burden, named for the
decision that first stated the principle.") See ¶26, infra.
3
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
2
No. 2013AP1638-FT
dangerousness to himself. Wisconsin Stat. §§ 51.20(1)(a)2.a.,
(1)(a)2.c. The County did not allege that Michael qualified for
commitment on the basis of his dangerousness to others. What
the County must prove by clear and convincing evidence in this
case is that there was a substantial probability that Michael
was dangerous to himself. This can be demonstrated by either
"recent threats . . . of suicide or serious bodily harm";4
"impaired judgment, evidenced by a pattern of recent acts or
omissions";5 or both.
¶3 As to the first basis alleged for finding
dangerousness, relating to "recent threats of . . . suicide,"
Michael contends that the sole evidence is the fact that he
answered "yes" to a nurse who asked if he was suicidal. He
4
Wisconsin Stat. §51.20 (1)(a)2.a. states, "The individual
is dangerous because he or she . . . [e]vidences a substantial
probability of physical harm to himself or herself as manifested
by evidence of recent threats of or attempts at suicide or
serious bodily harm."
5
Wisconsin Stat. § 51.20(1)(a)2.c. states:
The individual is dangerous because he or she . . .
[e]vidences such impaired judgment, manifested by
evidence of a pattern of recent acts or omissions,
that there is a substantial probability of physical
impairment or injury to himself or herself. The
probability of physical impairment or injury is not
substantial under this subd. 2. c. if reasonable
provision for the subject individual's protection is
available in the community and there is a reasonable
probability that the individual will avail himself or
herself of these services, if the individual may be
provided protective placement or protective services
under ch. 55 . . . .
3
No. 2013AP1638-FT
asserts that this is evidence only of thoughts, and that such
thoughts do not constitute clear and convincing evidence of
threats because the word "threat"6 has a common meaning of an
expression of an intention to act, and he expressed no intent to
act. As to the second way of demonstrating dangerousness,
relating to a pattern of acts indicating impaired judgment,
Michael contends that the evidence is insufficient to support
the verdict because the only pattern was a pattern of asking to
be taken to a hospital, which he did four times in the span of
five days, and because there was not enough other evidence of
impaired judgment to satisfy the "substantial probability"
requirement.
¶4 The statute does not define "threat." The word's
common meanings are "an expression of an intention to inflict
injury"7 and "an indication of impending danger or harm."8 As
mental health scholarship recognizes, "suicidal" is commonly
used by persons with intent to act and persons without intent to
6
State v. Perkins, 2001 WI 46, ¶43, 243 Wis. 2d 141, 626
N.W.2d 762 (stating that "[t]he common definition of threat is
an expression of an intention to inflict injury on another").
7
1868 American Heritage Dictionary of the English Language
(3d ed. 1992). This definition was mentioned in Perkins, 243
Wis. 2d 141, ¶43, in which this court distinguished the common
definition from the narrower definition for purposes of a
statute criminalizing threats to judges.
8
1868 American Heritage Dictionary of the English Language
(3d ed. 1992).
4
No. 2013AP1638-FT
act.9 Where credible evidence supports an inference that a
person who affirmed that he was suicidal had an intent to act,
we will not reverse a jury's dangerousness finding on the
grounds that the person was not specific enough in articulating
his intent. Although we need not adopt a precise definition for
"threat" for purposes of Wis. Stat. § 51.20, we do conclude that
the acts alleged here (which are not in dispute) can satisfy the
term's common meanings.
¶5 We turn to the sufficiency of the evidence challenge,
and we view the following evidence in a manner that is most
favorable to sustaining the verdict: Michael had recently been
given a knife and usually carried it with him; after a week of
increasingly disturbing and delusional behavior, when a nurse
asked if he was "suicidal," he answered that he was; when asked
immediately thereafter by his mother to clarify if he had a
specific plan to kill himself, he stated that it was too hard to
explain; when talking to police officers he answered that he
wanted to harm himself; he had a pattern of refusing medication;
and he had demonstrated multiple instances of impaired judgment
on a daily basis during the preceding week.
9
See infra, ¶36, for discussion of scholarship on suicidal
ideation.
5
No. 2013AP1638-FT
¶6 We conclude that an articulated plan is not a
necessary component of a suicide threat.10 If we were to hold
otherwise, it would require a person in a confused mental state
to articulate a plan before obtaining treatment through
involuntary commitment. That would write into the statute a
potential barrier to treatment that is inconsistent with its
purpose. We also conclude that the evidence was sufficient to
support Michael's involuntary commitment because credible
evidence existed in the record supporting inferences that there
was a substantial probability that he was dangerous to himself
within the meaning of Wis. Stat. §§ 51.20(1)(a)2.a., based on
threats of suicide or serious bodily harm, and (1)(a)2.c., based
on impaired judgment, manifested by a pattern of recent acts.11
10
Michael's petition for review stated this issue thus: "Do
thoughts of suicide or self-harm, without an articulated plan
for acting on those thoughts, constitute 'threats' of suicide or
serious bodily harm necessary to establish dangerousness under
Wis. Stat. § 51.20(1)(a)2.a.?" Our conclusion is that an
articulated plan is not a requirement for a threat of suicide
for purposes of the statute.
11
The special verdict returned by the jury stated as
follows:
Question 1: Is Michael [H.] mentally ill? Answer: Yes.
Question 2: If you answered question 1 "yes," then
answer this question: Is Michael [H.] dangerous to
himself? Answer: Yes.
Question 3: If you answered both questions 1 and 2
"yes," then answer this question: Is Michael [H.] a
proper subject for treatment? Answer: Yes.
The jury had been instructed with WI JI-Civil 7050, which
included both grounds for dangerousness relevant here.
6
No. 2013AP1638-FT
¶7 Ultimately, our conclusion on the sufficiency of the
evidence is dictated by the deferential review of jury verdicts.
In such cases, we view the evidence in a light most favorable to
the jury's determination. The jury could have drawn another
inference from the evidence, but the one it did draw was
supported by credible evidence. We will not strike down a jury
verdict where we see "credible evidence in the record on which
the jury could have based its decision,"12 and we "accept the
particular inference reached by the jury."13 In light of that
standard, we affirm the court of appeals.
I. BACKGROUND
¶8 The incidents that gave rise to this case occurred
when Michael came to Wisconsin for a weeklong family visit in
February of 2013. Michael had moved to Minnesota the previous
year following a hospitalization in Wisconsin for treatment of a
mental illness. Family members said he had told them he did so
to avoid a court order that he take anti-psychotic medication.
His visit was planned to coincide with celebrations of family
birthdays and a belated Christmas gift exchange.
¶9 As the jury heard, it was a difficult week. Michael
drove in from Minnesota, arriving at his mother's home about
5:00 a.m. on a Saturday. His mother testified that when she
first saw him on Saturday afternoon, his symptoms had returned
12
Morden v. Cont'l AG, 2000 WI 51, ¶38, 235 Wis. 2d 325,
611 N.W.2d 659.
13
Id., ¶39.
7
No. 2013AP1638-FT
and he had a look in his eyes that reminded her of his
appearance prior to his hospitalization.
¶10 On Sunday, he abruptly and without explanation became
shaken and distressed and refused to go to the mall for a
planned family photo studio appointment.
¶11 On Monday, he walked two miles through very cold
weather with his five-year-old niece to demand a car from a
sister because he believed that another sister was in danger.
Later that day, he asked to go the hospital and was taken but
refused medication and did not stay.
¶12 On Tuesday, after a family birthday dinner, he again
stated he wanted to go to the hospital and was taken but refused
medication and did not stay.
¶13 On Wednesday, he asked to go to the hospital, was
taken, refused medication and did not stay. While he was with
his father, his mother went to the police department, seeking
help. Although the officer contacted the crisis worker, both
told her there was nothing that could be done at that point.
¶14 On Thursday, he picked up his niece, age 5, saying
they were just going for lunch at McDonald's. They were gone
for hours, and repeated calls to his phone were unanswered,
which alarmed family members and sent them scrambling
frantically to find the child. Family members reached a car
repair shop where he had taken his vehicle and learned that he
had been there three times but two times did not appear to have
the child with him. Michael's sister went to the police for
help. When Michael returned to his mother's, the child was safe
8
No. 2013AP1638-FT
with him, but he was oblivious to their worry and furious about
several unrelated events, such as clothing he was missing and
cell phones he could not activate, which he viewed as proof that
unidentified people were following him.
¶15 On Friday evening after dinner, he returned to his
mother's house, asking yet again to go to the hospital. As
Michael's mother later testified at trial, he told her that
evening, "[M]om, something's not right in my head. . . . I
can't think straight. I don't know what's going on. I need to
go to the hospital . . . ." She testified that when she
reminded him that the hospital could not help him if he would
not take medication, he did not answer. She described how he
went into a bedroom and laid down, and she asked him what was
wrong. She testified that, at that point, "He just said I'm so
lonely. I don't know what's going on in my head." She said she
got him to agree to take medication this time if they went back
to the hospital, and she agreed to take him.
¶16 The statements made during that Friday evening
emergency room visit are the ones on which Michael's argument
primarily focuses. When he arrived at the hospital, the nurse
asked him, with his mother nearby, if he was suicidal. He said
yes. This answer alarmed his mother; she said he had never made
such a statement before. Concerned at this indication that he
may have been planning to kill himself, his mother then asked
him, as the nurse left to contact a mental health crisis worker,
what his plan was. Rather than denying a plan, he responded
that it was too hard to explain, it was too long, he could not
9
No. 2013AP1638-FT
explain, and he did not know. Moments later, he took his jacket
and ran from the hospital.
¶17 Police officers found him shortly thereafter in a park
and returned him to the hospital. He denied thinking of suicide
and told one of the officers that he had only wanted to hurt
himself.
¶18 An officer placed Michael under an emergency
detention. Following a probable cause hearing, a jury trial was
held to determine whether clear and convincing evidence existed
to commit Michael involuntarily for treatment under Wis. Stat.
§ 51.20. The jury heard testimony from the emergency room
nurse, the police officer who brought Michael back to the
hospital, a doctor who examined him prior to trial, and
Michael’s mother. Among the evidence heard by the jury were the
following facts:
- He had made repeated statements to his mother and sister
that "nobody's safe."
- He had acknowledged that he was suicidal to a nurse and
made ambiguous statements about being suicidal to his
mother.
- He had acknowledged to a police officer that he wanted to
harm himself.
- He had delusional behavior and behaved in a paranoid
manner, stating to his mother that she and his father
should not sleep at home because unnamed persons were after
him and would also be after them.
10
No. 2013AP1638-FT
- He owned a knife that he had received that week as a
belated Christmas gift and usually carried it with him.
- He had access to guns.
- He had walked with a young child through the snow for two
miles based on his fear that one of his sisters was in
danger.
- He had purchased several cell phones and explained that
he did so to avoid being tracked by unnamed persons; he had
thrown one phone out the car window believing it to be
bugged.
- He had been unable to sleep.
- He had repeatedly told his mother that his head was not
right and that he could not think straight and was lonely
and sad.
- He had refused medication, and according to a doctor who
examined him, he "could [be dangerous] without treatment."
¶19 The jury found that Michael was mentally ill, was a
proper subject for treatment, and was dangerous. Based on that
verdict, the Outagamie County Circuit Court, the Honorable Dee
R. Dyer presiding, issued an order committing Michael
involuntarily for treatment for six months.14
14
The court made a finding that Michael was incompetent to
refuse medication and an order for involuntary medication was
also entered; that order was not appealed and is not before us.
11
No. 2013AP1638-FT
¶20 The court of appeals affirmed the jury verdict.15 As
to the dangerousness requirement, it affirmed on the grounds
that evidence supported a finding of dangerousness under
subsection (1)(a)2.a., relating to threats of suicide or self-
harm. In its analysis, it employed a common definition of
"threat" as "an expression of an intention to inflict injury"
and cited the evidence of Michael's statements that he was
thinking of suicide and harming himself, as well as his
statements implying that he had a plan to do so even though he
refused to share it with his mother because it was "too hard to
explain."16 Because it found the evidence sufficient to satisfy
the requirement under subsection (1)(a)2.a., the court of
appeals did not address the question of whether evidence was
sufficient to satisfy dangerousness grounds under subsection
(1)(a)2.c., relating to impaired judgment that leads to a
substantial probability of harm to oneself.
II. STANDARD OF REVIEW
¶21 The standard of review is significant in this case.
The challenge is to the sufficiency of evidence to support a
jury verdict, and in such a challenge, a reviewing court views
evidence most favorably to sustaining a verdict. Tammy W-G. v.
Jacob T., 2011 WI 30, ¶17, 333 Wis. 2d 273, 797 N.W. 2d 854. We
"review as a question of law whether the evidence presented to a
15
Outagamie County v. Michael H., No. 2013AP1638,
unpublished slip op. (Wis. Ct. App. Nov. 26, 2013).
16
Id., ¶25.
12
No. 2013AP1638-FT
jury is sufficient to sustain its verdict." Sheboygan Cnty.
Dep't of Health & Human Services v. Tanya M.B., 2010 WI 55, ¶18,
325 Wis. 2d 524, 785 N.W.2d 369 (citing State v. Booker, 2006 WI
79, ¶12, 292 Wis. 2d 43, 717 N.W.2d 676). "A jury's verdict
must be sustained if there is any credible evidence, when viewed
in a light most favorable to the verdict, to support it." Id.,
¶49. We have emphasized the narrowness of our review in this
type of case:
Our review of a jury's verdict is narrow. Appellate
courts in Wisconsin will sustain a jury verdict if
there is any credible evidence to support it.
Moreover, if there is any credible evidence, under any
reasonable view, that leads to an inference supporting
the jury's finding, we will not overturn that finding.
In applying this narrow standard of review, this court
considers the evidence in a light most favorable to
the jury's determination. We do so because it is the
role of the jury, not an appellate court, to balance
the credibility of witnesses and the weight given to
the testimony of those witnesses. To that end,
appellate courts search the record for credible
evidence that sustains the jury's verdict, not for
evidence to support a verdict that the jury could have
reached but did not. If we find that there is "any
credible evidence in the record on which the jury
could have based its decision," we will affirm that
verdict. Similarly, if the evidence gives rise to more
than one reasonable inference, we accept the
particular inference reached by the jury. This court
will uphold the jury verdict "even though [the
evidence] be contradicted and the contradictory
evidence be stronger and more convincing."
Morden v. Cont'l AG, 2000 WI 51, ¶¶38-39, 235 Wis. 2d 325, 611
N.W.2d 659 (emphasis added).
¶22 The questions presented about the meaning of the word
"threat" in Wis. Stat. § 51.20 require us to interpret the
13
No. 2013AP1638-FT
meaning of a statute, and that is a question subject to de novo
review. Fond du Lac County v. Helen E.F., 2012 WI 50, ¶10, 340
Wis. 2d 500, 814 N.W.2d 179.
III. DISCUSSION
A. Involuntary Commitment and
the History of the Requirement of Dangerousness
¶23 Up until the early 1970s, there were few requirements
for the government to meet in order to commit a person
involuntarily for mental treatment.
In 1961, the American Bar Association published an
analysis of then-existing state statutes governing
involuntary hospitalization. In the late 1950s, just
seven states required some sort of dangerousness (to
self, others, or property) as justification for
involuntary hospitalization. In twenty-two states,
simply needing care or treatment was sufficient
grounds, and seven other states permitted commitment
if it seemed necessary for the patient's welfare or
the welfare of others. Massachusetts permitted
commitment of persons deemed "likely" to violate "the
established laws, ordinances, conventions, or morals
of the community." Seventeen states had no specific
statutory criteria for commitment, apparently leaving
the choice of rationale entirely to legal decision-
makers.
Douglas Mossman, M.D. et al., Risky Business Versus Overt Acts:
What Relevance Do "Actuarial," Probabilistic Risk Assessments
Have for Judicial Decisions on Involuntary Psychiatric
Hospitalization?, 11 Hous. J. Health L. & Pol'y 365, 373-76
(2012) (footnotes omitted). Wisconsin's statutory scheme for
involuntary commitment at that time was characterized as
follows:
14
No. 2013AP1638-FT
it failed to require effective and timely notice of
"charges" justifying detention; failed to require
notice of rights including right to jury trial,
permitted detention longer than 48 hours without
hearing on probable cause; permitted detention longer
than two weeks without full hearing on necessity for
commitment; permitted commitment based on hearing in
which person detained was not represented by adversary
counsel, at which hearsay evidence was admitted, and
in which psychiatric evidence was presented without
patient having been given benefit of privilege against
self-incrimination; permitted commitment without proof
of mental illness and dangerousness beyond reasonable
doubt; and failed to require those seeking commitment
to consider less restrictive alternatives.17
¶24 Then, two cases changed the landscape of involuntary
commitment law dramatically. One was O'Connor v. Donaldson,18
which held that in order to commit a person involuntarily, the
state must prove that a mentally ill person was "dangerous to
himself or others":
The modern history of involuntary commitment began
with the Supreme Court decision in O'Connor v.
Donaldson in 1975. Donaldson, diagnosed with paranoid
schizophrenia, was kept in a state-run mental hospital
for nearly fifteen years following an involuntary
commitment initiated by his father. He repeatedly
asked for his release, arguing that he was not being
treated for his mental condition and did not pose a
danger to himself or others.
The Supreme Court agreed, holding that in order to
constitutionally commit and confine an individual, the
state must show that the person is dangerous to
himself or others and that they are not capable of
living safely under the supervision of family or
friends.
17
Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis.
1972) (vacated and subsequently reinstated).
18
O'Connor v. Donaldson, 422 U.S. 563 (1975).
15
No. 2013AP1638-FT
Dan Moon, The Dangerousness of the Status Quo: A Case for
Modernizing Civil Commitment Law, 20 Widener L. Rev. 209, 212
(2014) (footnotes omitted).
¶25 The other was Lessard v. Schmidt,19 a Wisconsin case
that established substantive and procedural rights for those
undergoing commitment procedures. In that case, a federal
three-judge panel held that in order to satisfy due process
guarantees, persons subject to involuntary commitment
proceedings were entitled to written and oral notice of various
rights, a probable cause hearing within a limited period of time
with appointed counsel, written notice of the final hearing, and
a full hearing within 14 days of the original detention.
¶26 The case is regarded as groundbreaking. The Wisconsin
Supreme Court called the change resulting from Lessard
"radical":
19
The case has a complicated procedural history, but the
substance of its holding was never overruled; the original order
was altered to add more specificity and ultimately reinstated.
The first order, Lessard v. Schmidt (Lessard I), 349 F.Supp.
1078 (E.D. Wis. 1972), generally held that the state's existing
involuntary commitment statutory scheme was unconstitutional.
When the order was appealed, the United States Supreme Court
held that the injunctive relief granted needed to be specific
and remanded to the district court for that purpose. Lessard
II, 414 U.S. 473 (1974)). On remand, in Lessard III, 379
F.Supp. 1376, 1380-82 (E.D. Wis. 1974), the district court
stated the injunctive relief from its original order in more
specific terms. When the case was again appealed, the United
States Supreme Court remanded for further consideration in light
of another recently decided case. Lessard IV, 421 U.S. 957(1975). On remand, the district court reinstated the prior
order of the court. Lessard V, 413 F.Supp. 1318 (E.D. Wis.
1976).
16
No. 2013AP1638-FT
Wisconsin law regarding the institutionalization of
the mentally disabled underwent radical change with
the landmark federal district court decision in
Lessard v. Schmidt, in which Wisconsin's involuntary
civil commitment law was held unconstitutional. In
response to Lessard, the legislature enacted three new
civil commitment laws . . . [including] one for
persons who are acutely mentally ill . . . . [T]hese
laws authorize court ordered institutionalization of
mentally disabled individuals for the purpose of care
and custody.
Watts v. Combined Cmty. Servs. Bd. of Milw. Cnty., 122 Wis. 2d
65, 72, 362 N.W.2d 104 (1985) (citations omitted). But the
changes reverberated far beyond Wisconsin. "Lessard's legal
model launched a sweeping trend toward stricter commitment
criteria and greater procedural protection not only in the
courts, but in the state legislatures as well." Ronald L.
Wisor, Jr., Community Care, Competition and Coercion: A Legal
Perspective on Privatized Mental Health Care, 19 Am. J.L. & Med.
145, 150 (1993).
Passage of . . . statutes [encouraging community
treatment rather than institutionalization] coincided
with several court decisions that elaborated the
substantive and procedural due process rights of
individuals subject to civil commitment. . . . [T]he
most significant of these cases is Lessard v. Schmidt,
a 1972 Wisconsin federal district court decision that
sparked a nationwide transformation in civil
commitment statutes.
Mossman, supra at 373-376 (footnotes omitted).
¶27 Lessard's requirements have generally stood the test
of time, although the burden of proof it imposed was lowered in
a subsequent case by the United States Supreme Court to the
17
No. 2013AP1638-FT
"clear and convincing evidence" standard.20 Addington v. Texas,
441 U.S. 418, 419-20 (1979).
B. What it Takes to Satisfy the Wisconsin Statute's
Requirement of Dangerousness
¶28 As noted, Wisconsin involuntary commitment statutes,
which did not previously contain a requirement of dangerousness,
were accordingly revised. Wisconsin Stat. § 51.20, the
20
The United States Supreme Court's analysis on the issue
is summarized thus:
The question of what standard of proof courts should
apply to satisfy the Due Process Clause of the
Fourteenth Amendment in an involuntary civil
commitment proceeding remained unanswered until the
Supreme Court addressed the issue in Addington v.
Texas, 441 U.S. 418, 419-20, 432-33 (1979). . . . The
Court balanced the individual's interest in not being
involuntarily committed for an open-ended period of
time against the state's interest in confining the
dangerous mentally ill. The Court carefully considered
the criminal standard of proof of "beyond a reasonable
doubt" but rejected that standard, finding it
practically impossible to prove in the context of the
uncertain and imperfect character of psychiatric
diagnosis. The Court similarly rejected the
"preponderance of the evidence" standard as too
minimal to satisfy due process requirements, given the
serious deprivation of freedom involved in the
involuntary civil commitment process. Instead, the
Court held that the intermediate standard of "clear
and convincing" satisfies due process requirements in
cases of involuntary civil commitment.
Alison Pfeffer, "Imminent Danger" and Inconsistency: The Need
for National Reform of the "Imminent Danger" Standard for
Involuntary Civil Commitment in the Wake of the Virginia Tech
Tragedy, 30 Cardozo L. Rev. 277, 285-86 (2008) (citations
omitted).
18
No. 2013AP1638-FT
involuntary commitment statute, requires the county to prove by
clear and convincing evidence that the individual whose
commitment is sought is mentally ill and is a proper subject for
treatment, and that the person is dangerous to himself or
herself, or others. Wis. Stat. §§ 51.20(1)(a)1., (1)(a)2.
¶29 The statute identifies five ways the county can meet
its burden to prove dangerousness, two of which are relevant
here. (As previously noted, Michael does not contest that he
meets the first qualification for commitment, that he is
mentally ill and a proper subject for treatment.)
¶30 The County can demonstrate that "[t]he individual is
dangerous because he or she . . . [e]vidences a substantial
probability of physical harm to himself or herself as manifested
by evidence of recent threats of or attempts at suicide or
serious bodily harm." Wis. Stat. §51.20 (1)(a)2.a.
¶31 The County can also demonstrate dangerousness by
showing clear and convincing evidence of a pattern of acts
showing such impaired judgment that he was dangerous to himself:
The individual is dangerous because he or she . . .
[e]vidences such impaired judgment, manifested by
evidence of a pattern of recent acts or omissions,
that there is a substantial probability of physical
impairment or injury to himself or herself. The
probability of physical impairment or injury is not
substantial under this subd. 2. c. if reasonable
provision for the subject individual's protection is
available in the community and there is a reasonable
probability that the individual will avail himself or
herself of these services, if the individual may be
provided protective placement or protective services
under ch. 55 . . . .
Wis. Stat. §51.20 (1)(a)2.c.
19
No. 2013AP1638-FT
C. Whether Credible Evidence Supported the Commitment Under
2.a., Relating to Threats of Suicide or Self-harm
¶32 The first of Michael's challenges is to the jury's
verdict that the evidence was sufficient to find him dangerous
if that is demonstrated under the (1)(a)2.a. standard, which
bases dangerousness on "recent threats of . . . suicide or
serious bodily harm." The evidence that he answered "yes" when
he was asked if he was suicidal is not evidence of a recent
threat of suicide, he contends, because thoughts are not threats
and because he took no act in furtherance of the thoughts. He
points to the common definition of "threat" cited in State v.
Perkins, "an expression of an intention to inflict injury,"21 and
argues that his statements fall short of expressing "an
intention." He cites to two cases to illustrate the contrast
between specific intentional plans and a lack of evidence of
specific dangerous conduct. In support of the former, he cites
R.J. v. Winnebago County, 146 Wis. 2d 516 (Ct. App. 1988), in
which the court held that graphic threats to seriously harm
another person were sufficient to support involuntary commitment
even if the intended person was unaware of the threat. As an
illustration of the latter, he cites to Milwaukee County v.
Cheri V., unpublished slip op. (Ct. App., Dec. 18, 2012), which
held that evidence was insufficient on the dangerousness prong
where all the evidence showed was that the person was upset,
21
Perkins, 243 Wis. 2d 141, ¶43.
20
No. 2013AP1638-FT
angry, and agitated but made no statements regarding harm to
herself or others.22
¶33 The County argues that the evidence on this point was
sufficient to support the verdict. It argues that the four
witnesses were credible. It notes that he answered that he was
suicidal, and in a separate conversation he told police he
wanted to harm himself, and those answers did constitute
evidence of a threat of suicide or serious bodily harm. The
County notes that in addition to the narrow definition of
"threat" discussed by Michael, the word has common meanings that
are more broad, such as "an indication of impending danger or
harm." It also argues that in response to his mother's question
about a suicide plan, it would have been reasonable to expect
him to deny having a plan, if that were the case; instead, his
answers were evasive, and he fled the room. The County argues
that a narrow interpretation of the word "threat" would
undermine the purposes of the involuntary commitment statute by
limiting such commitments to situations where a person
articulates a clear intention of plans for self-harm.
22
Michael also cites to two involuntary commitment cases
from the Oregon Court of Appeals as instructive. Michael does
not address the fact that the statutes involved, Oregon Rev.
Stats. §§ 426.005 and 426.130, differ significantly from the
Wisconsin statute; the statute does not provide what constitutes
grounds for a finding of dangerousness, for example, so there is
no provision comparable to the ones we consider here. For that
reason the cases are of little help in interpreting the
provision concerning threats of self-harm in Wis. Stat. § 51.20.
21
No. 2013AP1638-FT
¶34 As noted, the statute does not define "threat."
Perkins merely recited a common meaning of the word in contrast
to the more narrow meaning given to it in a particular criminal
statute; therefore, that case provides little guidance for
purposes of defining "threat" in this context. The ordinary
definitions of threat include "an indication of impending danger
or harm," and under that definition, the jury could reasonably
have considered Michael's statements to be threats.
¶35 As the County correctly points out, one of the
purposes of Chapter 51 is to facilitate treatment for the
dangerous mentally ill who will benefit from it. It would be
unreasonable to expect a person who is in a poor or confused
mental state to be capable of making a clear and coherent
statement of intention of what his or her plans are. Doing so
would render the statute unworkable for the very people for whom
it is designed.
¶36 Michael did undisputedly acknowledge that he was
suicidal. The meaning of "suicidal," according to mental health
professionals and established instruments for treatment,
encompasses both suicidal ideation that is without intent and
suicidal ideation that is made with intent to harm. The
Columbia Suicide Severity Rating Scale (C-SSRS)23 is a
23
The Columbia Suicide Severity Rating Scale (C-SSRS)
"involves a series of probing questions to inquire about
possible suicidal thinking and behavior." 3 Draft Guidance For
Industry Suicidality: Prospective Assessment Of Occurrence In
Clinical Trials, Food and Drug Administration, Center for Drug
Evaluation and Research (September 2010).
22
No. 2013AP1638-FT
questionnaire in extensive use by mental health professionals to
assess suicide risk. In the category of "suicidal ideation,"
the scale lists five categories, some without intent to act and
some with intent to act: "wish to be dead," "suicidal thoughts,"
"suicidal thoughts with method (but without specific plan or
intent to act)," "suicidal intent (without specific plan)," and
"suicidal intent with specific plan." There is extensive debate
in the mental health treatment community about how to predict
which suicidal patients are at highest risk of killing
themselves.24 It is within the realm of ordinary experience that
some suicidal people have an intent to follow through and harm
themselves and others do not. The jury could have drawn the
inference from Michael's statement and the other evidence
presented that he was not making a "threat of suicide or bodily
harm." But it did not draw that inference.
¶37 We see no reason to hold that an articulation of a
specific plan is necessary in order to constitute a threat for
purposes of this statute. Therefore, we conclude that the
24
The challenge posed by the lack of useful, universal
nomenclature for the study and prevention of suicide was
discussed in one seminal academic writing that noted what it
called "a basic, almost incredible reality: Despite hundreds of
years of writing and thinking about suicide, and many decades of
focused suicide research, there is to this day no generally
accepted nomenclature for referring to suicide-related
behaviors——not even at the most basic, conversational level."
Patrick W. O'Carroll, et al., 238 Beyond the Tower of Babel: A
Nomenclature for Suicidology, Suicide and Life-Threatening
Behavior, Vol. 26(3), Fall 1996.
23
No. 2013AP1638-FT
verdict as to the basis in Wis. Stat. § 51.20 (1)(a)2.a. is
supported by credible evidence and we will not disturb it.
D. Whether Credible Evidence Supported the Commitment Under
2.c., Relating to a Pattern of Acts Indicating Impaired Judgment
¶38 Wisconsin Stat. § 51.20 (1)(a)2.c., the second grounds
for dangerousness relevant here, states:
The individual is dangerous because he or she . . .
[e]vidences such impaired judgment, manifested by
evidence of a pattern of recent acts or omissions,
that there is a substantial probability of physical
impairment or injury to himself or herself. The
probability of physical impairment or injury is not
substantial under this subd. 2. c. if reasonable
provision for the subject individual's protection is
available in the community and there is a reasonable
probability that the individual will avail himself or
herself of these services, if the individual may be
provided protective placement or protective services
under ch. 55 . . . .
The question is therefore whether the evidence was sufficient to
support the jury's finding that Michael was dangerous to himself
if that finding was based on facts demonstrating that he had
shown "such impaired judgment, manifested by evidence of a
pattern of recent acts or omissions, that there [was] a
substantial probability of physical impairment or injury to
himself or herself."
¶39 We repeat the evidence noted above that the jury heard
about Michael's behavior because in this case, the same evidence
supporting the finding of dangerousness demonstrated under
(1)(a)2.a. also supports a finding of dangerousness demonstrated
under (1)(a)2.c. because the pattern of his paranoia and
24
No. 2013AP1638-FT
increasing distress is relevant to both ways of demonstrating
dangerousness:
- He had made repeated statements to his mother and sister
that "nobody's safe."
- He had acknowledged that he was suicidal to a nurse and
made ambiguous statements about being suicidal to his
mother.
- He had acknowledged to a police officer that he wanted to
harm himself.
- He had delusional behavior and behaved in a paranoid
manner, stating to his mother that she and his father
should not sleep at home because unnamed persons were after
him and would also be after them.
- He owned a knife that he had received that week as a
belated Christmas gift and usually carried it with him.
- He had access to guns.
- He had walked with a young child through the snow for two
miles based on his fear that one of his sisters was in
danger.
- He had purchased several cell phones and explained that
he did so to avoid being tracked by unnamed persons; he had
thrown one phone out the car window believing it to be
bugged.
- He had been unable to sleep.
- He had repeatedly told his mother that his head was not
right and that he could not think straight and was lonely
and sad.
25
No. 2013AP1638-FT
- He had refused medication, and according to a doctor who
examined him, he "could [be dangerous] without treatment."
¶40 Michael argues that the only pattern of recent acts
was the repeated trips to the hospital to seek help. But as the
facts recited above make clear, other inferences could also be
drawn about patterns of recent acts that week. The jury was not
obligated to see only the pattern Michael describes. Jurors
might reasonably have seen a pattern of delusional paranoia, a
pattern of telling family members that people were out to get
him, a pattern of refusing medication and rejecting medical
treatment, a pattern of telling people that something was wrong
with his head, and so on. Based on the testimony they heard
about the week's events, there was credible evidence from which
jurors could conclude that Michael's symptoms were worsening and
he was becoming distressed to the point that there was a
substantial probability of injury to himself——the testimony of
Michael's mother, for instance, made clear that the statement he
made to the nurse was the first time he had ever spoken of
suicide.
¶41 We also note that this provision of the statute makes
an exception for a person exhibiting such judgment
"if . . . there is a reasonable probability that the individual
will avail himself . . . of [community] services." Wis. Stat.
§ 51.20(1)(a)2.c. Although there was evidence of Michael's
repeated trips to the hospital during the week, there was also
overwhelming evidence that he was unwilling to take medication
and to avail himself of the help that was offered. The evidence
26
No. 2013AP1638-FT
showed that on three occasions he left after going to a hospital
without accepting medication. The evidence showed that on the
fourth visit to a hospital, he left almost immediately,
following an intake interview, before a doctor or crisis worker
could be summoned. We decline to hold that, as a matter of law,
merely going to a hospital and declining help satisfies the
statute's exception concerning a person's willingness to avail
himself of community services; nor does Michael assert that we
should.
¶42 Viewing the evidence most favorably to the jury
verdict, we conclude that credible evidence supports the verdict
if dangerousness is based on the grounds stated in Wis. Stat.
51.20(1)(a) 2.c.
IV. CONCLUSION
¶43 We conclude that an articulated plan is not a
necessary component of a suicide threat. If we were to hold
otherwise, it would require a person in a confused mental state
to articulate a plan before obtaining treatment through
involuntary commitment. That would write into the statute a
potential barrier to treatment that is inconsistent with its
purpose. We also conclude that the evidence was sufficient to
support Michael's involuntary commitment because credible
evidence existed in the record supporting inferences that there
was a substantial probability that he was dangerous to himself
within the meaning of Wis. Stat. §§ 51.20(1)(a)2.a. and
(1)(a)2.c.
27
No. 2013AP1638-FT
¶44 Ultimately, our conclusion is dictated by the
deferential review of jury verdicts. In such cases, we view the
evidence in a light most favorable to the jury's determination.
The jury could have drawn another inference from the evidence,
but the one it did draw was supported by credible evidence. We
will not strike down a jury verdict where we see "credible
evidence in the record on which the jury could have based its
decision,"25 and we "accept the particular inference reached by
the jury."26 In light of that standard, we affirm the court of
appeals.
By the Court.—Affirmed
25
Morden, 235 Wis. 2d 325, ¶39.
26
Id.28
No. 2013AP1638-FT
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