Sheboygan County v. M.J.M. ( 2021 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 9, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2020AP1744 Cir. Ct. No. 2016ME141
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II
IN THE MATTER OF THE MENTAL COMMITMENT OF M.J.M.:
SHEBOYGAN COUNTY,
PETITIONER-RESPONDENT,
V.
M.J.M.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Sheboygan County:
KENT R. HOFFMANN, Judge. Affirmed.
No. 2020AP1744
¶1 REILLY, P.J.1 M.J.M. appeals from an order of the circuit court
extending his involuntary commitment. He argues that Sheboygan County (the
County) failed to establish that he is dangerous pursuant to WIS. STAT.
§ 51.20(1)(a), (am). We conclude that the evidence supports the circuit court’s
conclusion that M.J.M. is mentally ill, a proper subject for treatment, and would be
a proper subject for commitment if treatment were withdrawn. See § 51.20(1)(a),
(am). We affirm.
Background
¶2 The County petitioned to recommit M.J.M. in January 2020,2 based
on an evaluation by Samuel Weber, a case manager with Sheboygan County
Health and Human Services. Weber recommended recommitment due to M.J.M.’s
“[c]ontinued and persistent mental illness,” “[p]ossible danger to self and/or others
if not taking prescribed medication,” and “[r]esistance to treatment when off
[c]ommitment.”
¶3 In March 2020, the circuit court held an extension hearing. Weber,
Dr. Marshall Bales, M.D., and M.J.M. testified. We will recount the details of
their testimony as necessary below. After reviewing the evidence and the
arguments of the parties, the circuit court granted the County’s request for an
extension and entered the orders for the extension of the involuntary commitment
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version.
2
M.J.M.’s previous order of commitment was due to expire on March 11, 2020.
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and involuntary medication and treatment effective for one year.3 M.J.M.
appeals.4
Involuntary Commitment and Standard of Review
¶4 To involuntarily commit a person, a county must prove three
elements by clear and convincing evidence: (1) the person is mentally ill, (2) the
person is a proper subject for treatment, and (3) the person is dangerous pursuant
to any of the five dangerousness standards enumerated in WIS. STAT.
§ 51.20(1)(a)2.a.-e. See § 51.20(1)(a)1.-2., (13)(e); Langlade County v. D.J.W.,
2020 WI 41, ¶¶23, 29, 391 Wis. 2d 231, 942 N.W.2d 277; Fond du Lac County v.
3
M.J.M. does not present any arguments concerning the order for involuntary
medication and treatment. We address it no further.
M.J.M. also sent a letter to the circuit court seeking a change of venue from Sheboygan
County to Trempealeau County, which the circuit court denied. M.J.M. does not challenge the
circuit court’s ruling on appeal.
4
The County argues on appeal that M.J.M.’s extension of commitment is moot, as that
order has expired and there are no collateral consequences from this extension. Whether an issue
is moot is a question of law that we review de novo. Marathon County v. D.K., 2020 WI 8, ¶16,
390 Wis. 2d 50, 937 N.W.2d 901. “An issue is moot when its resolution will have no practical
effect on the underlying controversy.” Id., ¶19 (citation omitted). An appeal of an expired
commitment order might not be moot, however, if there are collateral consequences that persist
after the order has expired. Portage County v. J.W.K., 2019 WI 54, ¶28 n.11, 386 Wis. 2d 672,
927 N.W.2d 509. Our supreme court has “previously concluded that an expired initial
commitment order is moot,” but where an individual remains “subject to the lasting collateral
consequence of a firearms ban” after the order has expired, the expired commitment order is “not
moot.” D.K., 390 Wis. 2d 50, ¶¶22, 25 (emphasis added). Here, M.J.M. argues that he is subject
to a firearm ban, which is a “serious collateral consequence associated with M.J.M.’s
commitment,” and that the “firearm ban does not terminate upon expiration of the commitment.”
M.J.M. also notes that the “stigma associated with an involuntary commitment,” travel
restrictions, and monetary liability are also collateral consequences of his commitment. The
County argues that none of the collateral consequences addressed by M.J.M. stem from the
extension of the commitment; instead, those consequences would remain as a result of the initial
commitment, which is not under review. We note that our supreme court has granted the petition
for review in Sauk County v. S.A.M., No. 2019AP1033, unpublished slip op. (WI App Sept. 3,
2020), wherein this court found S.A.M.’s challenge to a recommitment order moot under similar
facts. We choose to reach the merits of this case.
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No. 2020AP1744
Helen E.F., 2012 WI 50, ¶20, 340 Wis. 2d 500, 814 N.W.2d 179. The circuit
court may then extend the commitment for up to one year. Sec. 51.20(13)(g)1.;
Portage County v. J.W.K., 2019 WI 54, ¶¶17-18, 386 Wis. 2d 672, 927 N.W.2d
509. The same standards apply to extensions of the commitment, except the
county may satisfy the showing of dangerousness by demonstrating “that there is 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.” Sec. 51.20(1)(am); J.W.K., 386 Wis. 2d 672, ¶¶18-19.
¶5 Whether the county has met its burden in a commitment proceeding
is a mixed question of fact and law. D.J.W., 391 Wis. 2d 231, ¶24. We will
uphold the court’s findings of fact unless clearly erroneous. Id. Whether the facts
in the record satisfy the statutory standard for recommitment, however, is a
question of law that this court reviews de novo. Id., ¶25.
Sufficiency of the Evidence: Dangerousness
¶6 M.J.M.’s primary argument on appeal is that the evidence presented
by the County was insufficient to establish that he is dangerous.5 Specifically,
M.J.M. argues that “[n]o evidence of recent dangerous behavior was introduced at
trial,” and the circuit court’s statement that “there doesn’t need to be dangerous
behavior evidenced during the commitment period for the extension” was “clearly
contrary to the standard articulated in J.W.K.” We disagree.
5
On appeal, M.J.M. does not challenge the findings that he is mentally ill and a proper
subject for treatment. See WIS. STAT. § 51.20(1)(a)1.
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¶7 WISCONSIN STAT. § 51.20(1)(am) recognizes that “an individual’s
behavior might change while receiving treatment” and, accordingly, “provides a
different avenue for proving dangerousness if the individual has been the subject
of treatment for mental illness immediately prior to commencement of the
extension proceedings” as the individual “may not have exhibited any recent overt
acts or omissions demonstrating dangerousness because the treatment ameliorated
such behavior.” J.W.K., 386 Wis. 2d 672, ¶19 (emphasis added). Thus, the
County was not required to show that M.J.M. had demonstrated recent acts,
omissions, or behaviors demonstrating dangerousness. As we have said before, in
that way, § 51.20(1)(am) is an “alternative evidentiary path, reflecting a change in
circumstances occasioned by an individual’s commitment and treatment.” J.W.K.,
386 Wis. 2d 672, ¶19. “However, dangerousness remains an element to be proven
to support both the initial commitment and any extension.” Id. “The evidentiary
pathway set forth by sub. (1)(am) ‘acknowledges that an individual may still be
dangerous despite the absence of recent acts, omissions, or behaviors exhibiting
dangerousness outlined in § 51.20(1)(a)2.a-e.’ but it ‘does not change the elements
or quantum of proof required.’” D.J.W., 391 Wis. 2d 231, ¶34 (quoting J.W.K.,
386 Wis. 2d 672, ¶24).
¶8 We conclude that pursuant to WIS. STAT. § 51.20(1)(am), the County
has established by clear and convincing evidence that there is a substantial
likelihood that M.J.M. would be a proper subject for commitment if treatment
were withdrawn. At the hearing, Dr. Bales testified that he met with M.J.M. by
video conference for this current examination, but that he had met with him in
person in 2016. Bales indicated that his findings were based on his review of the
records from both Sheboygan and Trempealeau Counties, a review of his report
from October 13, 2016, and conversations with M.J.M. as well as M.J.M.’s case
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No. 2020AP1744
manager. According to Bales, M.J.M. has schizoaffective disorder with psychotic
symptoms, which “grossly impair[s] [M.J.M.’s] judgment, behavior, and ability to
meet the ordinary demands of life.” Bales also noted that M.J.M. “has …
antisocial traits, and that complicates his main problem of schizoaffective
disorder” and “makes this whole situation all the more dangerous.”
¶9 As to the subject of medication and treatment, Bales opined that
M.J.M. is a proper subject for treatment and that prescribed medications are
“therapeutic for him.” According to Bales, however, M.J.M. “will not take
medication,” “will be noncompliant,” and “will not pursue voluntary treatment,”
and if he stops medication he would decompensate. Bales testified that “the best
way to measure future conduct is to look at past conduct and he has a long history
of noncompliance, he said that he’s paranoid of psychiatrists, and so … he will not
take his medications without a medication order.” He indicated that he discussed
the advantages, disadvantages, and alternatives to medication or treatment with
M.J.M. and opined that M.J.M. is “not adequately” able to express an
understanding of them. Bales explained that M.J.M. “just doesn’t think there is a
problem,” as he “said that he was not really ill, there’s nothing wrong with him,”
and “[h]e points fingers at everybody else and he’s sometimes violently so, very
threateningly so.”6 In Bales’ opinion, if M.J.M. was not subject to a commitment
order, “he would stop taking his medications, withdraw from treatment, and
subsequently decompensate” and “there’s a substantial likelihood that he would
again become a proper subject for commitment.”
6
M.J.M. has a history of being hostile toward his providers. For example, Bales
explained that M.J.M. called “all of the doctors and staff” at Trempealeau County Health Care
Center “quacks” and, on the record at the recommitment hearing, M.J.M. called Bales both a
“freaking douchebag” and later a “lying douchebag.”
6
No. 2020AP1744
¶10 Bales’ testimony also shed light on how M.J.M.’s decompensation
might manifest itself, based on his prior history of dangerous behavior. Bales
testified that within the last year—while he was subject to the most recent
commitment order—M.J.M. made “dangerous threats” over the phone against
Weber7 and another staff member at Winnebago Mental Health Institute, resulting
in his removal from Winnebago to Trempealeau County Health Care Center.
Bales testified that M.J.M. “left a voicemail for the case [manager] threatening to
kill the case [manager] and [his psychiatrist],” and M.J.M. “admitted to making
that verbal threat.”8 Bales also testified that this was not the first incident in which
7
Weber also testified at the hearing, indicating that he was the case manager that M.J.M.
made threats against, and after the threatening voicemail, M.J.M. was assigned a different case
manager. The remainder of his testimony addressed whether venue in Sheboygan County was
proper.
8
M.J.M. argues that “Dr. Bales and [the County] made much of M.J.M.’s telephone
threats to kill his caseworker and psychiatrist. But those threats were made by phone, when
M.J.M. was in a mental health crisis and was incarcerated in a lockdown psychiatric ward.”
According to M.J.M., any fear on the part of the case manager or the psychiatrist was not a
“reasonable fear,” as “threats made over the telephone with no possibility that they could be
carried out cannot be said to create any ‘reasonable fear’ that M.J.M. could do ‘serious physical
harm’ to the persons threatened.” See WIS. STAT. § 51.20(1)(a)2.b. Further, M.J.M. argued that
“the threats were made from afar and were not imminent,” nor were they “recent,” as they “were
made on November 19, 2019,” while the “hearing was held on March 5, 2020.”
The County’s point in response is well taken: the fact that M.J.M. was in a locked
inpatient facility and could not easily act on his threats to kill his providers does not mean that his
actions cannot satisfy the terms of the statute. Indeed, the fact that his commitment “ameliorated”
some of his dangerous behavior (“by placing him in a locked inpatient unit so that he could not
harm anyone”) speaks to the basis for why WIS. STAT. § 51.20(1)(am) provides an “alternative
evidentiary path.” See J.W.K., 386 Wis. 2d 672, ¶19. M.J.M. has also not presented any legal
authority indicating that four months is not sufficiently “recent” under the statute. As stated
above, however, § 51.20(1)(am) does not require recent behavior; regardless, we consider a threat
made during the most recent commitment period to be “recent.”
M.J.M. did note in his brief-in-chief that a “more recent threat to staff” was contained in
Bales’ report: during that incident, in January 2020, M.J.M. “was overheard by staff saying that
when he is discharged, he is going to come back and ‘shoot up this place.’” The County,
however, did not introduce Bales’ report into evidence, so we review only Bales’ testimony at the
hearing. See Langlade County v. D.J.W., 2020 WI 41, ¶7 n.4, 391 Wis. 2d 231, 942 N.W.2d
277; Winnebago County v. S.H., 2020 WI App 46, ¶2 n.3, 393 Wis. 2d 511, 947 N.W.2d 761.
7
No. 2020AP1744
M.J.M. had threatened violence, explaining that in October 2016 M.J.M.
“admitted to all of those allegations[9] … and he was going to kill people. He was
slightly psychotic. He was going to kill African Americans ….”
¶11 M.J.M. also testified at the recommitment hearing. According to
M.J.M., he was not suicidal, he did not want to harm himself, and he did not want
to harm anyone else. When asked whether he would be willing to work with a
doctor and take prescribed medication, he stated, “I have…. I’m working with a
[doctor at Trempealeau] and I take every med she prescribes that she feels is right
for me.” He also expressed that he wishes to remain at Trempealeau so he may
transition into a group home.
¶12 Based upon the above evidence, the circuit court found that the
County had established that M.J.M. is dangerous pursuant to WIS. STAT.
§ 51.20(1)(am).10 The court made the following findings of fact:
Grounds for the extension—for the extension of the
commitment have been established. The subject is
mentally ill, he is dangerous as he evidences one or more of
the standards under [WIS. STAT. §] 51.20, and I would point
out the testimony has this threat that occurred just in
November, which isn’t that long ago. He’s a proper subject
for treatment, and I will make the finding that he is a
resident of Sheboygan County.
9
We assume “all of those allegations” refers to the allegations contained in Bales’
report, which indicated that M.J.M. “said he would go to a cemetery and take all his pills to kill
himself,” that he had “killed himself 33 times,” and that he “want[ed] to kill African Americans
in Milwaukee.”
10
We note that the circuit court did not “make specific factual findings with reference to
the subdivision paragraph of [WIS. STAT. §] 51.20(1)(a)2. on which the recommitment is based,”
see D.J.W., 391 Wis. 2d 231, ¶59, but our supreme court’s pronouncement on this issue, which
came after M.J.M.’s hearing, is prospective, and, thus, does not apply to this case, see id. (“going
forward”); S.H., 393 Wis. 2d 511, ¶¶13-14. Both the County and M.J.M. appear to agree that
§ 51.20(1)(a)2.b. is the applicable dangerousness standard in this case; therefore, we will address
the sufficiency of the evidence as it relates to that dangerousness standard.
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No. 2020AP1744
The court agreed with the County that “there doesn’t actually need to be
dangerous behavior evidenced during the commitment period for the extension.”
According to the court, “[t]he analysis is whether—if treatment were withdrawn,
would the person or the individual become a proper subject for commitment …
and I do find Dr. Bales’ testimony credible that if treatment were withdrawn
[M.J.M.] would not take medications.” While the court “commended” M.J.M. for
his “significant progress,” the court found that the level of treatment appropriate
for M.J.M. was a locked inpatient facility based on Bales’ credible testimony and
that M.J.M. was “not yet today at that position where he can get into an outpatient
facility at this moment.”
¶13 We conclude that the factual findings of the circuit court were not
clearly erroneous. M.J.M. faults the circuit court for its “acceptance of Dr. Bales’
prediction that M.J.M. would stop taking his medication and would become
dangerous if he were released from the commitment,” noting that “Dr. Bales’
statement contradicts numerous studies, as well as case law, recognizing the
unreliability of predicting dangerousness.” As we have stated before, however,
“[d]angerousness in an extension proceeding [under WIS. STAT. § 51.20(1)(am)]
can and often must be based on the individual’s precommitment behavior, coupled
with an expert’s informed opinions and predictions,” and we have frequently
affirmed a court’s finding of dangerousness pursuant to an expert’s opinion based
on precommitment behavior and rooted in the individual’s treatment record. See
Winnebago County v. S.H., 2020 WI App 46, ¶13, 393 Wis. 2d 511, 947 N.W.2d
761; § 51.20(1)(am).
¶14 M.J.M. does not dispute that he is mentally ill and a proper subject
for treatment. On the issue of M.J.M.’s dangerousness, we must consider whether
Bales’ testimony meets the standard for dangerousness under WIS. STAT.
9
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§ 51.20(1)(a)2.b. “as viewed through the lens of § 51.20(1)(am).” See D.J.W., 391
Wis. 2d 231, ¶50. In other words, the testimony must provide sufficient evidence
to support a conclusion that if treatment were withdrawn, “a substantial probability
of physical harm to other individuals” would exist “as manifested by evidence of
recent homicidal or other violent behavior, or by evidence that others are placed in
reasonable fear of violent behavior and serious physical harm to them, as
evidenced by a recent overt act, attempt or threat to do serious physical harm.”
See § 51.20(1)(a)2.b., (am); D.J.W., 391 Wis. 2d 231, ¶50.
¶15 Bales’ testimony revealed that M.J.M. had made “recent” threats to
kill his case manager and psychiatrist, which resulted in his removal from
Winnebago to Trempealeau and the assignment of new treatment providers. Bales
further testified that M.J.M. made similar threats against other groups in 2016.
The court properly credited Bales’ conclusion, based on M.J.M.’s treatment
record, that if M.J.M. were not subject to a commitment order “he would stop
taking his medications, withdraw from treatment, and subsequently
decompensate” and “that there’s a substantial likelihood that he would again
become a proper subject for commitment.” See WIS. STAT. § 51.20(1)(am). As
the record on appeal supports this conclusion, the circuit court’s findings of fact
were not clearly erroneous, and our independent review indicates that the court
properly found that M.J.M. is dangerous within the meaning of the commitment
statute such that he “would be a proper subject for commitment if treatment were
withdrawn.” See § 51.20(1)(a)2.b., (am). We affirm.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.
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11