Rock County v. P. P. ( 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.
December 16, 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. 2021AP678 Cir. Ct. No. 2020ME63
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
IN THE MATTER OF THE CONDITION OF P.P.:
ROCK COUNTY,
PETITIONER-RESPONDENT,
V.
P. P.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Rock County:
DANIEL T. DILLON, Judge. Affirmed.
No. 2021AP678
¶1 BLANCHARD, P.J.1 In April 2020, the circuit court ordered P.P.
to be subject to an involuntary mental health commitment and an involuntary
medication or treatment order pursuant to WIS. STAT. ch. 51. P.P. challenges only
the involuntary medication or treatment order, arguing that the evidence was
insufficient to meet Rock County’s burden of proof by clear and convincing
evidence. I conclude that the only issue raised on appeal is moot and that no
exception to the mootness doctrine applies. Accordingly, I affirm the circuit court
without reaching the merits.
BACKGROUND
¶2 P.P. was placed in emergency detention in Winnebago Mental
Health Institute in March 2020, and the police officer who took him into custody
filed a statement of emergency detention. See WIS. STAT. § 51.15(5) (“The filing
of the statement [of emergency detention by a law enforcement officer] has the
same effect as a petition for commitment under [WIS. STAT. §] 51.20.”);
§ 51.20(1), (7)(a). The circuit court held a final hearing in April 2020 to
determine whether P.P. met the criteria for an order for involuntary commitment
and an order for involuntary treatment and medication.2 See WIS. STAT.
§§ 51.20(1), (10), (13), 51.61(1)(g). At the hearing, counsel for P.P. informed the
court that P.P. was “in agreement for the Court to order the commitment,” but was
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 unless otherwise noted.
2
I refer to orders for involuntary commitment under WIS. STAT. § 51.20 as “commitment
orders” and to orders for involuntary medication or treatment under WIS. STAT. § 51.61(1)(g) as
“medication orders.”
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taking the further position that the commitment should be “on an outpatient basis
without a medication order.”
¶3 The County called a psychiatrist to testify regarding the appropriate
level of care for P.P. and the potential need for a medication order. Without
objection by P.P., the circuit court admitted a written report of the psychiatrist
offered by the County. After hearing argument from the parties, the circuit court
issued a commitment order and a medication order. Each order was to last six
months, or until October 2020.
¶4 In September 2020, a hearing was held on the County’s petition to
extend both P.P.’s commitment and medication orders. At this hearing, P.P.,
through counsel, stipulated to twelve-month extensions of both orders.3
¶5 P.P. appeals, challenging only the April 2020 medication order.
DISCUSSION
¶6 P.P.’s sole basis for challenging the April 2020 medication order is
that it was based on insufficient evidence. As to potential mootness, he argues that
the issue raised in this appeal is not moot, despite expiration of the challenged
order. This is so, he argues, because the expired order has collateral consequences
3
P.P. argues in his reply brief on appeal that the County “rel[ies] in large part upon
documents and evidence not in the record,” citing the respondent’s appendix filed by the County
with its brief. As best I can discern, the focus of P.P.’s concern is evidence in the County’s
appendix on appeal relating to a stipulation between the parties in 2021, which the County briefly
notes in its statement of facts. The County should have moved to supplement the record with this
evidence before referencing it on appeal and I disregard the non-record evidence. However, this
does not affect the outcome here. The events described in the Background section of this opinion,
which are based on record evidence, are sufficient to support the County’s argument on mootness
and I reject as undeveloped any argument that P.P. may intend to make regarding the adequacy of
the record.
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for him that could be practically affected by reversal. In the alternative, P.P.
argues that I should disregard mootness based on multiple exceptions to the
general mootness rule. The County argues that this issue in this appeal is moot,
based largely on P.P. stipulating to a new medication order in September 2020,
and that no mootness exceptions apply. I agree with the County that the issue
raised is moot and that no exception applies.
¶7 “Mootness is a doctrine of judicial restraint.” Marathon County v.
D.K., 2020 WI 8, ¶19, 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.(quoted source omitted). “Because moot issues do not affect a live controversy,”
appellate courts generally decline to reach them. See id. This court may overlook
mootness when one of several exceptions applies, as addressed below. See id.Whether the issue raised in this appeal is moot and whether an exception applies
are questions of law that I determine independently. See id.; Waukesha County v.
S.L.L., 2019 WI 66, ¶10, 387 Wis. 2d 333, 929 N.W.2d 140.
Collateral Consequences
¶8 P.P. argues the issue he raises on appeal is not moot based on the
concept of collateral consequences as it is discussed in case law regarding the
mootness of involuntary commitment orders. I summarize this law before
describing P.P.’s argument in more detail.
¶9 Our supreme court has stated that a challenge to a commitment order
is not moot if the subject of the order would experience negative collateral
consequences from the existence of the order. See D.K., 390 Wis. 2d 50, ¶¶23-25.
The specific collateral consequence referred to in D.K. was a ban on D.K.
possessing firearms. The firearms ban resulting from the commitment order lasted
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No. 2021AP678
beyond the expiration of the commitment order. See id., ¶25. The court noted
that, in the absence of the firearms ban, D.K. would otherwise have a
constitutional right to bear arms, which is “no minor consequence.” See id. The
court stated that a decision in that case could have a “practical effect” because a
reversal of the order would “void the firearms ban.” See id. Because the firearms
ban on its own was a collateral consequence that prevented mootness from arising,
the court did not address whether other potential consequences for the subject of a
commitment order that can last beyond the order’s expiration—specifically the
payment of costs of care under WIS. STAT. § 46.10(2)-(3) or “negative stigma”—
could also avoid application of the mootness doctrine. See D.K., 390 Wis. 2d 50,
¶25 n.7.
¶10 As both parties note, our supreme court in D.K. drew on the logic of
case law discussing mootness in the context of challenges to criminal convictions
when the sentences were fully served before the appeals processes were resolved.
See D.K., 390 Wis. 2d 50, ¶¶23-24. The court noted that, in its earlier decision
State v. Theoharopoulos, 72 Wis. 2d 327, 240 N.W.2d 635 (1976), the court had
concluded that a challenge to a conviction with a completed sentence was not
moot because “‘on the face of the record, there [was] a causal relationship between
the defendant’s present confinement [due to a later conviction] and the prior
conviction which he wishes to attack.’” D.K., 390 Wis. 2d 50, ¶23 (quoting
Theoharopoulos, 72 Wis. 2d at 333) (first alteration in D.K.). The court in D.K.
went on to state that, although D.K. dealt with a chapter 51 commitment order and
not a criminal matter, “the logic of Theoharopoulos, is just as sound here,”
because in D.K. there was a “‘causal relationship between’” the firearms ban and
the expired civil commitment. See D.K., 390 Wis. 2d 50, ¶24 (quoted source
omitted). And, as P.P. emphasizes, D.K. also quotes U.S. Supreme Court
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No. 2021AP678
precedent stating that an issue in a “criminal case is moot only if it is shown that
there is no possibility that any collateral legal consequences will be imposed on
the basis of the challenged conviction.” See Sibron v. New York, 392 U.S. 40, 57
(1968); D.K., 390 Wis. 2d 50, ¶23.
¶11 Against this background, P.P. argues that his sufficiency challenge is
not moot based on the collateral consequence of negative stigma for him arising
from the April 2020 medication order. See Addington v. Texas, 441 U.S. 418,
425-26 (1979) (noting that “stigma” is one label for the “adverse social
consequences” to committed individuals that can be caused by the “finding of
probable dangerousness to self or others” involved in a commitment).4
4
To illustrate the breadth of what P.P. means in invoking the concept of stigma, he
further cites to the following discussion from non-binding federal law:
In addition to the statutory disabilities associated with an
adjudication of mental illness, and just as serious, are the
difficulties that the committed individual will face in attempting
to adjust to life outside the institution following release.…
Evidence is plentiful that a former mental patient will encounter
serious obstacles in attempting to find a job, sign a lease or buy a
house.
Lessard v. Schmidt, 349 F. Supp. 1078, 1089 (E.D. Wis. 1972), vacated on other grounds, 414
U.S. 473 (1974).
Separately, I reject each of the following as additional purported collateral consequences
identified by P.P. because he fails to explain how reversal of the April 2020 medication order
would have a practical effect on any of these alleged risks. P.P. generally alleges that medication
orders themselves can lead to (1) harmful side effects, some permanent, due to the taking of
psychotropic medication, (2) long-lasting psychological trauma that may arise from the forced
administration of the drugs by injection if the committed person refuses to take them, and
(3) harmful and potentially long-lasting effects of withdrawal from the drugs if the committed
person exercises his or her right to cease taking them after all pertinent orders expire. P.P. leaves
an unexplained disconnect between these alleged dangers and the concept of collateral
consequences pertinent to mootness analysis.
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No. 2021AP678
¶12 In support of this argument, P.P. urges this court to extend the
reasoning of D.K. in several ways. First, P.P. argues that I should treat the
mootness-related discussion in D.K. in the context of commitment orders as
analogously applicable to medication orders. Second, P.P. contends that the
question of whether stigma should count as a collateral consequence preventing
mootness, left open in D.K., should be resolved against mootness. Indeed, P.P.
contends that an appeal challenging a medication order should never be deemed
moot based on the fundamental liberty interests at stake, or at least not unless the
petitioner shows “that there is no possibility that any collateral legal consequences
will be imposed on the basis of the challenged [medication order].” See Sibron,
392 U.S. at 57.
¶13 I assume without deciding, in P.P.’s favor, that the stigma that
potentially arises from the existence of a medication order is a collateral
consequence that could, at least under some circumstances, render an otherwise
moot issue not moot for purposes of challenging the order on appeal.5 Further, I
assume without deciding that P.P. need not provide affirmative evidence that he
does, or likely will, face some amount of stigma from the April 2020 order, and
that it is the County’s burden to show that the April 2020 order creates no risk of
stigma. But see Diaz v. Duckworth, 143 F.3d 345, 346 (7th Cir. 1998)
(concluding that in Spencer v. Kemna, 523 U.S. 1 (1998), the Supreme Court
“appear[ed] to have confined [Sibron and its presumption of collateral
consequences] to criminal convictions”). I also assume that whatever stigma
5
As part of this assumption and other assumptions I make in P.P.’s favor, I set to the
side the fact that, under WIS. STAT. ch. 51, there are at least some measures taken to maintain the
confidentiality in proceedings relating to potential commitment and medication orders.
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No. 2021AP678
could be caused by a medication order can be remedied by reversing the order.
Having made these assumptions, I conclude that the County shows that resolving
P.P.’s sufficiency challenge to the April 2020 medication order would not
practically affect mental-health-related stigma faced by P.P. As I now explain,
this is due to the presence of other orders that limit his liberties based on findings
regarding his mental health—orders which, so far as the record shows, P.P. has
never challenged, so that there is no prospect that these other orders will at some
point also be reversed.
¶14 Explaining further, I agree with the County that reversing the April
2020 medication order would not have a practical effect on the assumed stigma
associated with his having been involuntarily medicated under that order, given
the existence of the other commitment and medication orders noted above that P.P.
did not successfully contest. Those other commitment and medication orders
stand as valid orders representing findings that P.P. was, at pertinent times,
deemed by a court to be dangerous to himself or others and to have a mental
illness. See WIS. STAT. §§ 51.20(1)(a)1.-2., 51.61(1)(g). As I understand P.P.’s
argument, these are the kinds of findings that “engender” the “adverse social
consequences” that can fit under the broad label of “stigma.” See Addington, 441
U.S. at 425-26. The problem for P.P. is that these findings persist in a broad sense
whether or not the April 2020 order is invalidated. Put in terms of the discussion
in D.K. and as suggested by the County, the existence of the unchallenged
commitment and medication orders breaks the causal link between the challenged
April 2020 medication order and assumed stigma based on that specific order
faced by P.P.
¶15 P.P. contends in reply that, under the standard laid out in Sibron, as
cited in D.K., “it does not matter how many convictions or commitments or
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No. 2021AP678
involuntary medication orders a person has on his record—the court of appeals
cannot say he has no interest in appealing” those results. P.P. does not explain
how applying any principle from those cases supports this broad statement, at least
as applied to the collateral consequence of stigma that he purports to identify. At a
minimum, P.P. seems to confuse the “collateral legal consequences” caused by a
challenged conviction or medication order with the concept of social stigma
resulting from a conviction or a medication order. See Sibron, 392 U.S. at 55-58(emphasis added); Addington, 441 U.S. at 425. In any event, P.P. does not come
to grips with the problem of causality noted by the County and does not
meaningfully address how the other pertinent WIS. STAT. ch. 51 orders to which he
has been subject undermine his contention that he faces stigma as a specific
collateral consequence of the April 2020 order.6
6
I reject P.P.’s request, made for the first time in his reply brief, that I should withhold
decision in this appeal pending our supreme court’s resolution of Sauk County v. S.A.M., appeal
No. 2019AP1033. P.P.’s only support for this request is to broadly assert that the appeal before
the supreme court will address “the issue of mootness in Chapter 51 appeals.” The supreme court
describes the pertinent issue on appeal in S.A.M. as follows: “Whether respondent’s appeal of his
recommitment was moot because the commitment expired before respondent filed his notice of
appeal.” CLERK OF SUPREME COURT, Wisconsin Supreme Court Pending Cases (last visited
December 7, 2021), https://www.wicourts.gov/supreme/sc_tabpend.jsp (emphasis added). There
are significant differences between the posture of this case and the posture of S.A.M. P.P. fails to
persuade me that, given the particulars of this case as discussed in this opinion, any statement that
is likely to be contained in the supreme court’s decision in S.A.M. could affect the result here.
P.P. may intend to suggest that our supreme court in S.A.M. may decide to adopt the
approach of the Alaska courts. Under this law, in P.P.’s words, “appeals of civil commitments
will always satisfy the public interest exception to the mootness doctrine.” See Matter of
Naomi B., 435 P.3d 918, 924 (Alaska 2019). P.P. contends that if this approach were adopted, by
analogy, in Wisconsin courts no challenge to chapter 51 medication orders could be deemed
moot, or in the alternative such challenges would always be subject to a mootness exception.
However, given the nature of Wisconsin case law to date, I see no reason to suspect that our
supreme court would diverge so far from its traditional approach to adopt a categorical exception
to mootness that would shield from the mootness bar all challenges to chapter 51 medication
orders, including under the circumstances presented here. See Waukesha County v. S.L.L., 2019
WI 66, ¶41, 387 Wis. 2d 333, 929 N.W.2d 140 (declining to address sufficiency challenge to
involuntary commitment due to mootness).
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No. 2021AP678
Mootness Exceptions
¶16 A court reviewing an expired medication order may address moot
issues under certain circumstances. See Outagamie County v. Melanie L., 2013
WI 67, ¶¶79-80, 349 Wis. 2d 148, 833 N.W.2d 607. Specifically, this court “may
overlook mootness if the issue falls within one of five exceptions:”
(1) the issue is of great public importance; (2) the issue
involves the constitutionality of a statute; (3) the issue
arises often and a decision from this court is essential;
(4) the issue is likely to recur and must be resolved to avoid
uncertainty; or (5) the issue is likely of repetition and
evades review.
See D.K., 390 Wis. 2d 50, ¶19. I understand P.P. to argue that the issue raised on
appeal should be addressed, even if it is moot, based on all of these exceptions but
the second, which involves challenges to the constitutionality of the statute.7
¶17 As to public importance, P.P. points to the indisputably significant
liberty interests at stake for persons who are potentially subject to medication
orders under WIS. STAT. ch. 51. See Melanie L., 349 Wis. 2d 148, ¶43
(“Competent individuals also retain a ‘significant liberty interest in avoiding
forced medication of psychotropic drugs.’” (quoting Wisconsin case that in turn
cites Washington v. Harper, 494 U.S. 210, 221 (1990))); Lenz v. L.E. Phillips
Career Dev. Ctr., 167 Wis. 2d 53, 69, 482 N.W.2d 60 (1992) (WIS. CONST. art. I,
§ 1 protects “an individual’s choice of whether or not to accept medical
treatment”). However, as the County notes, P.P. does not explain how reaching
7
In his initial brief, P.P. contends that “all the exceptions to mootness are sufficiently
present in this case,” but does not develop an argument that any provision of WIS. STAT.
§ 51.61(1)(g) is unconstitutional. Further, in his reply brief, P.P. appears to clarify that he did not
intend to argue that the statute’s unconstitutionality is a basis to overlook mootness here.
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No. 2021AP678
the merits here could protect the individual rights of any person other than himself,
based on the narrow sufficiency issue raised in this appeal, and therefore he does
not complete this public importance argument. See Langlade County v. D.J.W.,
2020 WI 41, ¶26 n.5, 391 Wis. 2d 231, 942 N.W.2d 277 (noting that the opinion
would provide guidance on the “question of the necessary evidence to support an
involuntary commitment”); Melanie L., 349 Wis. 2d 148, ¶80 & n.23, ¶82 (noting
that moot issue involved statutory interpretation that once resolved helped “clarify
the law”). P.P. does not reply to this argument and I deem the point conceded.
See State v. Dieter, 2020 WI App 49, ¶10 n.3, 393 Wis. 2d 796, 948 N.W.2d 431(appellant’s failure to respond in reply brief to an argument made in response brief
may be taken as a concession).
¶18 Similarly, P.P. does not make developed arguments in support of
applying the third and fourth mootness exceptions—oft-arising or recurring issues
for which a decision of this court would be essential or avoid uncertainty. He does
not explain what essential guidance for future cases or what uncertainty would be
avoided based on a resolution of the sufficiency argument that he now raises.
¶19 P.P. makes the following points, which most clearly correspond to
the fifth mootness exception. This involves the issue of whether topics raised are
likely to repeat and evade review. To summarize, he observes that the statutory
length of initial commitment and medication orders, combined with “not
uncommon” delays in litigation (e.g., time for appointing defense counsel and
obtaining hearing transcripts), lead to the likelihood that issues in WIS. STAT.
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No. 2021AP678
ch. 51 cases evade review.8 Accepting this as true, P.P.’s argument on the fifth
exception nonetheless fails to persuade me to overlook mootness of the issue in
this appeal because he does not establish that the issue is likely to be repeated. To
be sure, there will be future sufficiency challenges to medication orders. But there
will not necessarily be any that are similar enough to this one for an analysis on
the merits here to stand for any proposition that is useful going forward. As the
County notes, “[c]hallenges to the sufficiency of evidence are necessarily fact-
bound inquiries that will vary from case to case.” See S.L.L., 387 Wis. 2d 333,
¶41. P.P. does not explain how any of the particular circumstances involved in his
sufficiency challenge are likely to be repeated.
¶20 Stepping back, the “fact-bound” nature of sufficiency challenges
undermines all of P.P.’s mootness exception arguments. Another way to describe
the incompleteness of P.P.’s arguments is that he does not address how resolving
the sufficiency challenge he presents would call for anything other than applying
well-established sufficiency standards to the particular facts of this case, in
contrast to an appeal in which the court might be expected to clarify how those
standards should be applied across some category of cases. See id. (“a definitive
decision in this case would provide no guidance to circuit courts, nor would it
preclude uncertainty in evaluation of evidentiary sufficiency in other cases”).
8
The County appears to contest how readily appeals of commitment and medication
orders evade review in the manner described by P.P. But I agree with P.P. that the County’s
arguments on this topic are not fully developed. I assume without deciding that P.P. is correct
that, in general, appeals of WIS. STAT. ch. 51 orders “will, more likely than not, evade review.”
See Outagamie County v. Melanie L., 2013 WI 67, ¶80, 349 Wis. 2d 148, 833 N.W.2d 607 (issue
regarding involuntary medication or treatment statute “likely to evade appellate review in many
instances because the order appealed from will have expired before an appeal is completed”).
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No. 2021AP678
CONCLUSION
¶21 For all of these reasons, I conclude that the only issue raised in this
appeal is moot and that no exception to the doctrine of mootness applies. I affirm
the order of the circuit court on that ground.
By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.
13