Langlade County v. D. J. W.

2020 WI 41SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP145-FT
COMPLETE TITLE: In the matter of the mental commitment of D. J.
W.:
Langlade County,
Petitioner-Respondent,
v.
D. J. W.,
Respondent-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 382 Wis. 2d 833,917 N.W.2d 234(2018 – unpublished)
OPINION FILED: April 24, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 25, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Langlade
JUDGE: Gregory E. Grau
JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which ZIEGLER, KELLY, DALLET, and HAGEDORN, JJ.,
joined. ROGGENSACK, C.J., filed a dissenting opinion. REBECCA
GRASSL BRADLEY, J., filed a dissenting opinion.
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
filed by Jeremy A. Newman, assistant state public defender. There
was an oral argument by Jeremy A. Newman.
For the petitioner-respondent, there was a brief filed by
Robin James Stowe, corporation counsel. There was an oral argument
by Robin James Stowe.
2020 WI 41NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP145-FT
(L.C. No. 2016ME75)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the mental commitment of
D. J. W.:
Langlade County, FILED
Petitioner-Respondent,
APR 24, 2020
v.
Sheila T. Reiff
Clerk of Supreme Court
D. J. W.,
Respondent-Appellant-Petitioner.
ANN WALSH BRADLEY, J., delivered the majority opinion of the Court,
in which ZIEGLER, KELLY, DALLET, and HAGEGORN, JJ., joined.
ROGGENSACK, C.J., filed a dissenting opinion. REBECCA GRASSL
BRADLEY, J., filed a dissenting opinion.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANN WALSH BRADLEY, J. The petitioner, D.J.W., seeks
review of an unpublished, authored decision of the court of appeals
affirming the circuit court's order extending his involuntary
No. 2018AP145-FT
commitment.1 The court also continued his involuntary medication
and treatment on an inpatient basis. D.J.W. contends that Langlade
County (the County) did not present sufficient evidence of his
dangerousness to sustain an extension of his involuntary
commitment.
¶2 At the recommitment hearing, the County's expert witness
testified that D.J.W. had lost a job, relied on his parents for
housing, and received disability benefits due to schizophrenia and
delusions. D.J.W. takes issue with the County's reliance on this
information in demonstrating that he is "dangerous" to himself
pursuant to Wis. Stat. § 51.20(1)(a)2. In response, the County
asserts that taken as a whole the testimony is sufficient to
determine that D.J.W. would be a proper subject for commitment if
treatment were withdrawn under § 51.20(1)(am).
¶3 We determine that going forward circuit courts in
recommitment proceedings are to make specific factual findings
with reference to the subdivision paragraph of Wis. Stat.
§ 51.20(1)(a)2. on which the recommitment is based. Further, we
conclude that the evidence introduced at the recommitment hearing
was insufficient to support a conclusion that D.J.W. is "dangerous"
pursuant to either §§ 51.20(1)(a)2.c. or 2.d. and 51.20(1)(am).
Langlade Cty. v. D.J.W. (D.J.W. II), No. 2018AP145-FT,
1
unpublished slip op. (Wis. Ct. App. May 1, 2018) (affirming order
of the circuit court for Langlade County, Gregory E. Grau, Reserve
Judge). The appeal was decided by one judge, Judge Mark Seidl,
pursuant to Wis. Stat. § 752.31(2)(d) (2017-18).
All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
2
No. 2018AP145-FT
¶4 Accordingly, we reverse the decision of the court of
appeals.
I
¶5 On January 30, 2017, the circuit court for Langlade
County2 entered an order committing D.J.W. to the custody and care
of the County for a period of six months. The circuit court
determined D.J.W. to be mentally ill, dangerous, and a proper
subject for treatment. Further, the circuit court ordered
involuntary medication and treatment.3
¶6 As the expiration of D.J.W.'s initial commitment
approached, the County petitioned the circuit court to extend
D.J.W.'s commitment for one year. The circuit court appointed Dr.
John T. Coates to examine D.J.W.
¶7 At the recommitment hearing, the County called a single
witness, Dr. Coates.4 D.J.W. testified on his own behalf and did
not call any other witnesses.
¶8 Dr. Coates testified that he had diagnosed D.J.W. with
schizophrenia. He further observed that D.J.W. had "a history of
2 The Honorable John B. Rhode presided at the initial
commitment hearing, and the Honorable Gregory E. Grau presided at
the recommitment proceedings.
3 D.J.W. appealed his initial commitment, and the court of
appeals affirmed the circuit court's order. Langlade Cty. v.
D.J.W. (D.J.W. I), No. 2017AP1313-FT, unpublished slip op. (Wis.
Ct. App. Nov. 7, 2017).
4 Dr. Coates testified that he produced a report after his
examination of D.J.W., but the report was never admitted into
evidence at the recommitment hearing. Accordingly, the evidence
presented by the County at the recommitment hearing consisted
solely of Dr. Coates's testimony.
3
No. 2018AP145-FT
auditory and visual hallucinations" and that "[h]is thought
process is illogical and again some grandiose illusions."
¶9 According to Dr. Coates's testimony, D.J.W. "did admit
that he has had kind of the same hallucinations for about three
years. He told me that about four months ago he saw the devil and
that two months ago he was hearing voices." The doctor described
D.J.W.'s illness as "treatable with psychotropic medications."
¶10 On direct examination, the attorney for the County asked
Dr. Coates, "Do you have an opinion as to whether or not [D.J.W.],
as a result of his current condition, is a risk of danger to
himself or to others?" Dr. Coates responded:
Well, the main danger is risk to himself if he should go
off treatment. He's apt to have exacerbation of his
illness. He's apt to experience, you know,
hallucinations to a greater degree. Become delusional.
In the past, he has had some problems with aggressive
behavior and property damage. But I think the greater
risk is just his inability to properly care for himself
and to properly socialize if he goes untreated.
¶11 As examples of D.J.W.'s inability to properly care for
himself in the event treatment were withdrawn, Dr. Coates
testified:
[H]e's living with his parents now. He quit his job
because he, you know, was delusional. He has obtained
disability. That disability points to the fact that
he's not able to independently care for himself at this
point. And he would be homeless I think if he wasn't
able to live with his parents. . . . His judgment is
currently still impaired. He feels that he can manage
his illness in the presence of
hallucinations. . . . [H]e feels that you know,
hallucinations really aren't a problem for him. . . . He
feels the medication is actually the problem, not his
illness.
4
No. 2018AP145-FT
¶12 Dr. Coates further testified that D.J.W. was not
necessarily homicidal or suicidal: "I don't know if he's highly
suicidal or highly homicidal. I can say that people when they're
acutely psychotic are unpredictable and their actions are
unpredictable." The "major danger," as Dr. Coates saw it, was as
follows:
[I]f he goes off his medications, he will be delusional.
He will be hallucinating. He will not be able to
interact appropriately with others. Like I said, at the
beginning of the year he quit a job because he thought
he was the Messiah. So the major danger is to himself.
I don't think he's necessarily a violent man that's going
to go out and harm others.
¶13 In summation, Dr. Coates recommended that D.J.W. stay on
his medication. He concluded that D.J.W. is "incapable of refusing
medication or incompetent to refuse medication based on his
inability to apply the understanding of the advantages and
disadvantages and the alternatives in treating his illness."
¶14 On cross examination, Dr. Coates again emphasized that
D.J.W. "harmed himself by quitting his job because he thought he
was the Messiah." When asked by D.J.W.'s counsel how that is
"dangerous to himself or somebody else[,]" Dr. Coates responded
that "[h]e lost employment. He can't take care of himself. He
can't provide for his basic needs because he can't maintain
employment because he's the Messiah." Dr. Coates also reiterated
on cross examination that D.J.W. had moved in with his parents and
"would be homeless if it wasn't for others." However, Dr. Coates
was unaware of any point at which D.J.W. had actually been
homeless.
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No. 2018AP145-FT
¶15 Testifying again on cross examination that D.J.W. does
well while under treatment, Dr. Coates stated:
[W]hen he goes off treatment we've seen the results of
that he can't care for himself, he can't maintain a job.
He needs to rely on his parents for housing. He has
received disability so he's been found disabled. You
know, you can't have it both. You can't be disabled and
say I'm fine to do whatever I want to do.
¶16 As he did on direct examination, Dr. Coates again
emphasized on cross examination his view that D.J.W. was dangerous
to himself but not necessarily to others:
Again, you know like I say, he quit a job in January
because he was the Messiah. That is danger to himself.
He, you know, lost employment because of his illness.
Again, he's unable to independently care for himself.
He proved that by obtaining disability. Danger in my
opinion is not suicidal and homicidal ideations.
Although those are possibilities.
¶17 D.J.W. also took the stand and testified. He
acknowledged that he hears voices, sees things that other people
cannot, and believes that he is the Messiah with a mission of
"invent[ing] a way out of" global warming. Further, D.J.W.
confirmed that he received help from his family, stated that he
had a job on a farm, and had applied for and obtained disability
benefits. He additionally expressed a dislike for his medication.
¶18 At the close of the recommitment hearing, the circuit
court rendered a decision and recommitted D.J.W. for a period of
one year. It determined first that D.J.W. suffers from a mental
illness. Second, it concluded that his mental illness is
treatable, as evidenced by the testimony that his hallucinations
and delusions decreased while he had been subject to treatment.
6
No. 2018AP145-FT
¶19 The circuit court concluded next that D.J.W. would be a
proper subject for commitment if treatment were withdrawn. On
this point, it found that "given the degree of those hallucinations
and delusions ultimately that course would put his judgment and
perception in such a place that he would be a significant danger
to himself." Accordingly, the circuit court concluded that the
County met its burden under Wis. Stat. § 51.20 to recommit D.J.W.
¶20 Further, the circuit court determined that D.J.W. was
"substantially incapable of applying and understanding the
advantages, disadvantages and alternatives to his mental illness
to the point where he can't make an informed choice as to whether
to accept or refuse medication or treatment." As a result, the
circuit court ordered that he be involuntarily medicated.
¶21 D.J.W. appealed, arguing that the County presented
insufficient evidence of his dangerousness under Wis. Stat.
§ 51.20(1)(a)2. and (1)(am). The court of appeals affirmed,
concluding that "the circuit court's finding of D.J.W.'s
dangerousness under Wis. Stat. § 51.20(1)(am) was not clearly
erroneous." Langlade Cty. v. D.J.W. (D.J.W. II), No. 2018AP145-
FT, unpublished slip op., ¶10 (Wis. Ct. App. May 1, 2018).
¶22 Specifically, the court of appeals observed the circuit
court's findings that (1) D.J.W. experienced significant symptoms
due to his schizophrenia; (2) if treatment were withdrawn, D.J.W.'s
hallucinations and delusions would "take their course" and make
him a significant danger to himself; and (3) D.J.W. was incapable
of understanding the advantages and disadvantages of treatment.
Id. In the court of appeals' view, "[t]hese findings satisfy the
7
No. 2018AP145-FT
standard of dangerousness under § 51.20(1)(am), namely that there
was a substantial likelihood D.J.W. would become a proper subject
for commitment if treatment were withdrawn." Id.
II
¶23 We are asked to review the court of appeals'
determination that the circuit court correctly concluded the
County presented sufficient evidence that D.J.W. is dangerous
pursuant to Wis. Stat. §§ 51.20(1)(a)2. and 51.20(1)(am). In a
recommitment proceeding, the burden is on the County to prove by
clear and convincing evidence all required facts. Wis. Stat.
§ 51.20(13)(e); Winnebago Cty. v. J.M., 2018 WI 37, ¶59, 381
Wis. 2d 28, 911 N.W.2d 41.
¶24 Whether the County has met its burden is a mixed question
of law and fact. Waukesha Cty. v. J.W.J., 2017 WI 57, ¶15, 375
Wis. 2d 542, 895 N.W.2d 783. First, we will uphold a circuit
court's findings of fact unless they are clearly erroneous. Id.A finding of fact is clearly erroneous if it is against the great
weight and clear preponderance of the evidence. Metro. Assocs. v.
City of Milwaukee, 2018 WI 4, ¶62, 379 Wis. 2d 141, 905 N.W.2d 784.
¶25 Second, we review whether the facts satisfy the
statutory standard. J.W.J., 375 Wis. 2d 542, ¶15. In our review,
we interpret and apply Wis. Stat. § 51.20. Statutory
interpretation and application are questions of law that we review
independently of the determinations rendered by the circuit court
and court of appeals. Metro Assocs., 379 Wis. 2d 141, ¶24.
8
No. 2018AP145-FT
III
¶26 For context, we begin by setting forth the statutory
background and requirements for recommitments pursuant to chapter
51 of the Wisconsin Statutes, particularly as they pertain to the
standard for "dangerousness." Next, we clarify the statutory
underpinnings of this case. Subsequently, we examine the
sufficiency of the evidence presented at the recommitment hearing.5
5 Following this court's decision in Portage Cty. v. J.W.K.,
2019 WI 54, 386 Wis. 2d 672, 927 N.W.2d 509, and before we had
granted the petition for review in this case, we asked the parties
to address the impact of that decision on the issues presented in
D.J.W.'s petition for review. Specifically, the court in J.W.K.
determined that J.W.K.'s appeal of his recommitment order was moot
because he was no longer subject to the commitment order he was
appealing. Id., ¶31.
In response to our inquiry, the parties agreed that D.J.W.'s
sufficiency challenge was moot for the same reason. D.J.W. asked
this court to accept the petition for review pursuant to one of
the mootness exceptions. See Outagamie Cty. v. Melanie L., 2013
WI 67, ¶80, 349 Wis. 2d 148, 833 N.W.2d 607 (explaining that the
court may decide an otherwise moot issue if the issue "(1) is of
great public importance; (2) occurs so frequently that a definitive
decision is necessary to guide circuit courts; (3) is likely to
arise again and decision of the court would alleviate uncertainty;
or (4) will likely be repeated, but evades appellate review because
the appellate review process cannot be completed or even undertaken
in time to have a practical effect on the parties"). The County
urged us to deny the petition for review. We accepted the petition
for review.
Neither party raised any collateral consequences that would
affect our analysis. See Marathon Cty. v. D.K., 2020 WI 8, ¶¶22-
25, 390 Wis. 2d 50, 937 N.W.2d 901. However, the question of the
necessary evidence to support an involuntary commitment is of great
importance yet often evades appellate review. Our decision on
this case will give necessary guidance to circuit courts conducting
involuntary commitment proceedings. Thus, we reach the merits of
the parties' arguments.
9
No. 2018AP145-FT
A
¶27 The legislatively stated purpose of chapter 51 of the
Wisconsin Statutes is "to assure the provision of a full range of
treatment and rehabilitation services in the state for all mental
disorders and developmental disabilities and for mental illness,
alcoholism and other drug abuse." Wis. Stat. § 51.001(1). Such
treatment should be given to those in need by way of "the least
restrictive treatment alternative appropriate to their
needs . . . ." Id.¶28 "Because of the liberty interests affected by
involuntary commitment, public policy favors outpatient treatment
whenever possible . . . ." J.W.J., 375 Wis. 2d 542, ¶19. This
policy is clearly set forth in the statutes: "To protect personal
liberties, no person who can be treated adequately outside of a
After this court heard oral argument, but before we issued
this decision, D.J.W. passed away. This intervening fact does not
dictate a contrary result. In the criminal context, we have
previously determined that "when a defendant dies while pursuing
postconviction relief, . . . the defendant's right to bring an
appeal continues." State v. McDonald, 144 Wis. 2d 531, 532, 424
N.W.2d 411 (1988). The right to appeal, which arises from both
the constitution and statutory law, "is an integral part of a
defendant's right to a final determination of the merits of the
case. It serves as a safeguard to protect a defendant against
errors in the criminal proceedings. A defendant who dies pending
appeal . . . is no less entitled to those safeguards." Id. at
536-37.
Given the significant liberty interests at stake in a ch. 51
involuntary commitment proceeding, the same considerations are
attendant here. We thus issue this opinion despite the
petitioner's passing.
10
No. 2018AP145-FT
hospital, institution or other inpatient facility may be
involuntarily treated in such a facility." Wis. Stat. § 51.001(2).
¶29 For a person to be subject to a chapter 51 involuntary
commitment, three elements must be fulfilled: the subject
individual must be (1) mentally ill; (2) a proper subject for
treatment; and (3) dangerous to themselves or others. Fond du Lac
Cty. v. Helen E.F., 2012 WI 50, ¶20, 340 Wis. 2d 500, 814
N.W.2d 179; Wis. Stat. § 51.20(1)(a)1.-2. Each of these required
elements must be proven by clear and convincing evidence. Wis.
Stat. § 51.20(13)(e); J.W.J., 375 Wis. 2d 542, ¶19.
¶30 In an initial commitment proceeding, Wis. Stat.
§ 51.20(1)(a)2. provides five different means of demonstrating
that a person is "dangerous." State v. Dennis H., 2002 WI 104,
¶14, 255 Wis. 2d 359, 647 N.W.2d 851. Pursuant to
§ 51.20(1)(a)2., an individual is "dangerous" if any of the
following is fulfilled:
(1) Evidences 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.
§ 51.20(1)(a)2.a.
(2) Evidences a substantial probability of physical harm
to other individuals 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. § 51.20(1)(a)2.b.
(3) Evidences 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 or other
individuals. § 51.20(1)(a)2.c.
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No. 2018AP145-FT
(4) Evidences behavior manifested by recent acts or
omissions that, due to mental illness, he or she is
unable to satisfy basic needs for nourishment, medical
care, shelter or safety without prompt and adequate
treatment so that a substantial probability exists that
death, serious physical injury, serious physical
debilitation, or serious physical disease will
imminently ensue unless the individual receives prompt
and adequate treatment for this mental illness.
§ 51.20(1)(a)2.d.
(5) For an individual, other than an individual who is
alleged to be drug dependent or developmentally
disabled, after the advantages and disadvantages of and
alternatives to accepting a particular medication or
treatment have been explained to him or her and because
of mental illness, evidences either incapability of
expressing an understanding of the advantages and
disadvantages of accepting medication or treatment and
the alternatives, or substantial incapability of
applying an understanding of the advantages,
disadvantages, and alternatives to his or her mental
illness in order to make an informed choice as to whether
to accept or refuse medication or treatment; and
evidences a substantial probability, as demonstrated by
both the individual's treatment history and his or her
recent acts or omissions, that the individual needs care
or treatment to prevent further disability or
deterioration and a substantial probability that he or
she will, if left untreated, lack services necessary for
his or her health or safety and suffer severe mental,
emotional, or physical harm that will result in the loss
of the individual's ability to function independently in
the community or the loss of cognitive or volitional
control over his or her thoughts or actions.
§ 51.20(1)(a)2.e.
¶31 Upon the impending expiration of an initial six-month
commitment, a county may seek an extension of the commitment for
a period not to exceed one year. Wis. Stat. § 51.20(13)(g)1.,
(13)(g)3.; Portage Cty. v. J.W.K., 2019 WI 54, ¶¶17-18, 386
Wis. 2d 672, 927 N.W.2d 509. To prevail in a recommitment
proceeding, the County must prove the same elements necessary for
12
No. 2018AP145-FT
the initial commitment by clear and convincing evidence——that the
patient is (1) mentally ill; (2) a proper subject for treatment;
and (3) dangerous to themselves or others. J.W.J., 375
Wis. 2d 542, ¶20; J.M., 381 Wis. 2d 28, ¶59 (citing Wis. Stat.
§ 51.20(1)(a), (13)(e)).
¶32 In a recommitment proceeding, however, there is an
additional manner of proving dangerousness provided by Wis. Stat.
§ 51.20(1)(am). "Because an individual's behavior might change
while receiving treatment, Wis. Stat. § 51.20(1)(am) 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 . . . ." J.W.K., 386
Wis. 2d 672, ¶19. Pursuant to § 51.20(1)(am),
If the individual has been the subject of inpatient
treatment for mental illness . . . immediately prior to
commencement of the proceedings as a result of . . . a
commitment or protective placement ordered by a court
under this section . . . the requirements of a recent
overt act, attempt or threat to act under par. (a)2.a.
or b., pattern of recent acts or omissions under par.
(a)2.c. or e., or recent behavior under par. (a)2.d. may
be satisfied by a showing 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.
¶33 Wisconsin Stat. § 51.20(1)(am) "recognizes that an
individual receiving treatment may not have exhibited any recent
overt acts or omissions demonstrating dangerousness because the
treatment ameliorated such behavior, but if treatment were
withdrawn, there may be a substantial likelihood such behavior
would recur." J.W.K., 386 Wis. 2d 672, ¶19. "However,
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No. 2018AP145-FT
dangerousness remains an element to be proven to support both the
initial commitment and any extension." Id.¶34 Indeed, "[t]he County must prove the individual 'is
dangerous.'" Id., ¶24 (citing Wis. Stat. § 51.20(1)(a)2. and
(13)(g)3.). It is not enough that the individual was at one point
dangerous. Thus, "[e]ach extension hearing requires proof of
current dangerousness." 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." Id.
B
¶35 With the above background in hand, we next clarify the
statutory underpinnings of this case.
¶36 The statutory basis for D.J.W.'s commitment in this case
has been somewhat of a moving target. It was not clear at either
the initial commitment hearing or the extension hearing on which
subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. the commitment
was based.
¶37 After D.J.W. was initially committed, he appealed that
commitment. In affirming the initial commitment, the court of
appeals specifically determined that the subdivision paragraph of
Wis. Stat. § 51.20(1)(a)2. under which commitment was appropriate
was § 51.20(1)(a)2.d. Langlade Cty. v. D.J.W. (D.J.W. I), No.
2017AP1313-FT, unpublished slip op., ¶14 (Wis. Ct. App. Nov. 7,
14
No. 2018AP145-FT
2017). That is, it determined that D.J.W. met the following
standard of dangerousness:
Evidences behavior manifested by recent acts or
omissions that, due to mental illness, he or she is
unable to satisfy basic needs for nourishment, medical
care, shelter or safety without prompt and adequate
treatment so that a substantial probability exists that
death, serious physical injury, serious physical
debilitation, or serious physical disease will
imminently ensue unless the individual receives prompt
and adequate treatment for this mental illness.
§ 51.20(1)(a)2.d.
¶38 In the court of appeals in the present appeal, the
County's brief did not cite any specific subdivision paragraph of
Wis. Stat. § 51.20(1)(a)2. under which it argued that D.J.W. was
dangerous. Accordingly, D.J.W. reasonably followed the
formulation of the court of appeals with regard to the initial
commitment, and at the outset of his oral argument before this
court set forth the relevant statutory provisions as
§ 51.20(1)(a)2.d. and (1)(am).
¶39 However, in its oral argument before this court, the
County apparently took a new tack and asserted that D.J.W. would
be a proper subject for commitment in the event treatment were
discontinued not under subd. para. 2.d., but under 2.c. Pursuant
to Wis. Stat. § 51.20(1)(a)2.c., one is a proper subject for
commitment if that person "[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 or other individuals."
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No. 2018AP145-FT
¶40 The record in this case is therefore quite unhelpful in
guiding this court's analysis. We have received conflicting
messages from the County and the court of appeals regarding the
statutory basis for this commitment. In order to avoid this
problem in the future, we determine that going forward circuit
courts in recommitment proceedings are to make specific factual
findings with reference to the subdivision paragraph of
§ 51.20(1)(a)2. on which the recommitment is based.6
¶41 Such a requirement is manifest in the language of Wis.
Stat. § 51.20(1)(am), which references the dangerousness pathways
of § 51.20(1)(a)2. Specifically, pursuant to § 51.20(1)(am),
6 Justice Rebecca Grassl Bradley's dissent asserts that the
guidance we offer in this opinion is redundant to that provided in
D.K., 390 Wis. 2d 50. Justice Rebecca Grassl Bradley's Dissent,
¶124. It contends that we should simply dismiss this case as moot
and not decide the substantive issues before us. Id., ¶116.
However, D.K. mandated no such rule as we do in the present
case. The majority/lead opinion indicated only that the circuit
court "could have made more detailed and thorough factual findings
and clarified its legal conclusions." D.K., 390 Wis. 2d 50, ¶55
(Ziegler, J., joined by Roggensack, C.J., and Hagedorn, J.)
(emphasis added). Such a determination creates no clear
requirement such as that contained in this opinion.
Likewise, the concurrence in D.K. indicated that "[b]ecause
circuit courts bear the responsibility of determining whether the
evidence satisfies the statutory standard, circuit courts must
expressly make independent factual findings on the record,
separate from any legal conclusions." Id., ¶68 n.4 (Rebecca Grassl
Bradley, J., concurring, joined by Kelly, J.). Even if this
language can be read as a directive to circuit courts, it sets
forth the position of two justices only and does not create any
binding holding. Rather than leaving circuit courts to discern a
mandatory rule from the suggestive language contained in separate
opinions in D.K., our conclusion in the present case aims to
provide clarity for circuit courts going forward.
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No. 2018AP145-FT
the requirements of a recent overt act, attempt or threat
to act under par. (a)2.a. or b., pattern of recent acts
or omissions under par. (a)2.c. or e., or recent behavior
under par. (a)2.d. may be satisfied by a showing 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. (Emphasis added).
Para. (1)(am) thus mandates that circuit courts ground their
conclusions in the subdivision paragraphs of subd. 2.
¶42 Further, the purpose of making specific factual findings
with reference to a subdivision paragraph of Wis. Stat.
§ 51.20(1)(a)2. is twofold. First, it provides clarity and extra
protection to patients regarding the underlying basis for a
recommitment. The United States Supreme Court "repeatedly has
recognized that civil commitment for any purpose constitutes a
significant deprivation of liberty that requires due process
protection." Addington v. Texas, 441 U.S. 418, 425 (1979).
"Freedom from physical restraint is a fundamental right that 'has
always been at the core of the liberty protected by the Due Process
Clause from arbitrary governmental action.'" State v. Post, 197
Wis. 2d 279, 302, 541 N.W.2d 115 (1995) (quoting Foucha v.
Louisiana, 504 U.S. 71, 80 (1992)).
¶43 With such an important liberty interest at stake, the
accompanying protections should mirror the serious nature of the
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No. 2018AP145-FT
proceeding.7 Requiring circuit courts to provide specific factual
findings with reference to the subdivision paragraph of Wis. Stat.
§ 51.20(1)(a)2. on which the recommitment is based provides
increased protection to patients to ensure that recommitments are
based on sufficient evidence.
¶44 Second, a requirement of specific factual findings with
reference to a subdivision paragraph of Wis. Stat. § 51.20(1)(a)2.
will clarify issues raised on appeal of recommitment orders and
ensure the soundness of judicial decision making, specifically
with regard to challenges based on the sufficiency of the evidence.
See Klinger v. Oneida Cty., 149 Wis. 2d 838, 846-47, 440 N.W.2d 348(1989) ("[A]s this court has stated many times, the circuit court
must make a record of its reasoning to ensure the soundness of its
own decision making and to facilitate judicial review."). A more
substantial record will better equip appellate courts to do their
job, further ensuring meaningful appellate review of the evidence
presented in recommitment proceedings.
¶45 In this case, in the absence of explicit factual findings
with reference to any subdivision paragraph of Wis. Stat.
The stakes of a recommitment proceeding are further
7
heightened when involuntary medication is a possibility.
Administration of psychotropic drugs is no small matter. See
K.N.K. v. Buhler (Matter of Guardianship of K.N.K.), 139
Wis. 2d 190, 207 n.3, 407 N.W.2d 281 (Ct. App. 1987); In re
Guardianship of Roe, 421 N.E.2d 40, 53 (Mass. 1981) (explaining
that antipsychotic medication "[is] powerful enough to immobilize
mind and body[,]" has a "profound effect . . . on the thought
processes of an individual[,]" and has a "well-established
likelihood of severe and irreversible adverse side
effects . . . .").
18
No. 2018AP145-FT
§ 51.20(1)(a)2., we will address the arguments made in this case
as they relate to § 51.20(1)(a)2.d., on which the court of appeals
determined the initial commitment was based, and
§ 51.20(1)(a)2.c., on which the County relied at oral argument.8
In the future, such guesswork will be avoided by our newly
instituted requirement for specific factual findings with
reference to a subdivision paragraph of § 51.20(1)(a)2.9
IV
¶46 We now turn to examine the sufficiency of the evidence
presented at the recommitment hearing in this case to support a
determination of dangerousness.
¶47 At the outset of our examination of this question, we
observe that the court of appeals in this case applied a clearly
erroneous standard of review to a determination of dangerousness.
D.J.W. II, No. 2018AP145-FT, unpublished slip op., ¶10. A
determination of dangerousness is not a factual determination, but
a legal one based on underlying facts. The court of appeals thus
erred by applying the standard of review for findings of fact to
8Chief Justice Roggensack's dissent would justify
recommitment pursuant to the "fifth standard" set forth by Wis.
Stat. § 51.20(1)(a)2.e. Chief Justice Roggensack's Dissent, ¶61.
Neither party raised this argument. At oral argument, the County
conceded that it relies on subd. para. 2.c. only and counsel for
D.J.W. indicated that "this case has never been a fifth standard
case. It wasn't alleged by the County either in the original
commitment or in this extension as a fifth standard case."
9We recognize that there may be cases where a person
satisfies the criteria contained in several statutory subdivision
paragraphs. In such a case, we encourage circuit courts to state
each subdivision paragraph that is fulfilled.
19
No. 2018AP145-FT
a legal determination of dangerousness. See Metro. Assocs., 379
Wis. 2d 141, ¶25 ("Factual findings made by the circuit court will
not be disturbed unless they are clearly erroneous."). Whether
facts satisfy the statutory standard must be reviewed
independently of the determinations rendered by the circuit court
and court of appeals. J.W.J., 375 Wis. 2d 542, ¶15.
¶48 D.J.W. contends that Dr. Coates's testimony was
insufficient to support the extension of his commitment because it
does not establish that he is dangerous as is required. He
characterizes Dr. Coates's testimony as establishing only that as
a result of his mental illness he lost his job, sought and received
disability benefits, and would be homeless were it not for his
family. In D.J.W.'s view, none of these propositions provides any
evidence that he is "dangerous" under Wis. Stat. § 51.20(1)(a)2.d.
¶49 The County, on the other hand, argues that Dr. Coates's
testimony is sufficient to establish that D.J.W. is dangerous to
himself. It focuses its argument on Dr. Coates's testimony that
D.J.W. suffers from impaired judgment and delusions that would be
exacerbated if he were to discontinue treatment.
¶50 We agree with D.J.W. that the evidence presented at the
recommitment hearing is insufficient to support a conclusion that
he is "dangerous" within the meaning of the commitment statute.
First, we focus on whether the introduced testimony meets the
standard for dangerousness set by Wis. Stat. § 51.20(1)(a)2.d., as
viewed through the lens of § 51.20(1)(am). That is, the testimony
must provide sufficient evidence to support the conclusion that
D.J.W. would be "unable to satisfy basic needs for nourishment,
20
No. 2018AP145-FT
medical care, shelter or safety without prompt and adequate
treatment so that a substantial probability exists that death,
serious physical injury, serious physical debilitation, or serious
physical disease will imminently ensue[,]" § 51.20(1)(a)2.d., if
treatment were withdrawn. § 51.20(1)(am).
¶51 Dr. Coates's testimony provided no evidence that "death,
serious physical injury, serious physical debilitation, or serious
physical disease" would ensue if treatment were withdrawn.
Instead, Dr. Coates testified only that if treatment is withdrawn,
D.J.W. "can't care for himself" in various ways, including being
unable to maintain a job, having to rely on disability for income,
and living with family.
¶52 The doctor's testimony further indicated that
discontinuing treatment would exacerbate D.J.W.'s illness and that
as a result he would "experience . . . hallucinations to a greater
degree." Dr. Coates stated that "the greater risk is just his
inability to properly care for himself and to properly socialize
if he goes untreated."
¶53 Inability to care for oneself does not equate with a
"substantial probability" that "death, serious physical injury,
serious physical debilitation, or serious physical disease" would
ensue if treatment were withdrawn. Nothing in Dr. Coates's
testimony even hints at a serious physical consequence to D.J.W.
if treatment were to be discontinued. His testimony on this
subject relied only on generalized propositions with regard to
people with schizophrenia, not anything specific to D.J.W. For
example, Dr. Coates indicated that "[d]anger in my opinion is not
21
No. 2018AP145-FT
suicidal and homicidal ideations. Although those are
possibilities. There is an increased risk of suicide in people
with schizophrenia. That's just a statistical fact."
¶54 Further, the County's argument is at odds with United
States Supreme Court precedent. Specifically, in O'Connor v.
Donaldson, 422 U.S. 563, 576 (1975), the Court determined that "a
State cannot constitutionally confine without more a nondangerous
individual who is capable of surviving safely in freedom by himself
or with the help of willing and responsible family members or
friends."
¶55 Again, Dr. Coates's testimony established only that if
treatment were withdrawn, D.J.W. would be unable to maintain a
job, would have to rely on disability for income, and would have
to live with family. As detailed above, the testimony does not
support a determination that D.J.W. was dangerous. Without more,
and given that D.J.W.'s family demonstrated willingness to help,
recommitment based on this record would run afoul of O'Connor.
¶56 We now turn to an examination of Dr. Coates's testimony
through the lens of Wis. Stat. § 51.20(1)(a)2.c. Subd. para. 2.c.,
in combination with para. (1)(am), provides that "dangerousness"
in a recommitment can be shown if a person would "[e]vidence[]
such impaired judgment . . . that there is a substantial
probability of physical impairment or injury to himself or herself
or other individuals" if treatment were withdrawn.
¶57 The County's argument fares no better under subd. para.
2.c. than it does under 2.d. Again, no testimony was offered at
the recommitment hearing that would support a determination of any
22
No. 2018AP145-FT
"substantial probability of physical impairment or injury" that
may inure to D.J.W. specifically in the event treatment were
withdrawn. A diagnosis of schizophrenia, by itself, does not
demonstrate the requisite "substantial probability of physical
impairment." If it did, the statutory elements of mental illness
and dangerousness would be merely redundant.
¶58 Accordingly, we conclude that the evidence introduced at
the recommitment hearing was insufficient to support a conclusion
that D.J.W. is "dangerous" pursuant to either Wis. Stat.
§§ 51.20(1)(a)2.c. or 2.d. and 51.20(1)(am).
V
¶59 In sum, we determine that going forward circuit courts
in recommitment proceedings are to make specific factual findings
with reference to the subdivision paragraph of § 51.20(1)(a)2. on
which the recommitment is based. Further, we conclude that the
evidence introduced at the recommitment hearing was insufficient
to support a conclusion that D.J.W. is "dangerous" pursuant to
either Wis. Stat. §§ 51.20(1)(a)2.c. or 2.d. and 51.20(1)(am).
¶60 Accordingly, we reverse the decision of the court of
appeals.
By the Court.—The decision of the court of appeals is
reversed.
23
No. 2018AP145-FT.pdr
¶61 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). The
majority opinion concludes that D.J.W.'s commitment was
erroneously extended under Wis. Stat. § 51.20(1)(am) by the
circuit court and that the court of appeals erred by affirming.
The majority reverses because it concludes that "the evidence
introduced at the recommitment hearing was insufficient to support
a conclusion that D.J.W. is 'dangerous' pursuant to either
§§ 51.20(1)(a)2.c. or 2.d. and 51.20(1)(am)."1 Although I
understand why the majority chose to evaluate the evidence that
was presented under § 51.20(1)(a)2.c. and 2.d., the majority errs
because the evidence fully satisfies the "fifth criterion" for
dangerousness found in § 51.20(1)(a)2.e., which we carefully
explained in State v. Dennis H., 2002 WI 104, 255 Wis. 2d 359, 647
N.W.2d 851.
¶62 I write in dissent not only because the majority errs
but also because it is important for this court, and all Wisconsin
courts who adjudicate civil commitments and recommitments under
Wis. Stat. ch. 51, to recognize that there is a category of
seriously mentally ill individuals whose symptoms are described in
Wis. Stat. § 51.20(1)(a)2.e. They are dangerous to themselves
because their illness prevents them from understanding the
advantages and disadvantages of treatment and, as demonstrated by
their treatment history, they need care or treatment to prevent
further disability or deterioration and they have a substantial
probability, if left untreated, of losing the ability to function
1 Majority op., ¶3.
1
No. 2018AP145-FT.pdr
independently in the community or of losing cognitive or volitional
control over their thoughts or actions.
¶63 These seriously, mentally ill individuals often are very
fragile, and when they do not receive the care they need, they are
a significant danger to themselves even when not overtly suicidal.2
Wisconsin Stat. § 51.20(1)(a)2.e.'s fifth criterion of
dangerousness forms an appropriate basis for evaluation of these
individuals. The majority should have so employed it to evaluate
the evidence presented in regard to D.J.W., which evidence fully
satisfies § 51.20(1)(a)2.e.'s criterion for dangerousness.
Accordingly, I respectfully dissent from the majority opinion.
I. BACKGROUND
¶64 D.J.W. had a long history of mental illness that began
to be recorded in October of 2016 with his emergency detention.
The Statement of Emergency Detention relayed that D.J.W. had
"somatic delusions" and believed that he had parasites in his
intestines. It was reported that D.J.W. was vomiting his food
because he believed that medicine was being placed in it; that he
was paranoid; that he "believes that the devil had tap[p]ed him on
the shoulder;" that due to his "current altered state he is not
able to care for himself;" and that his mother reported that she
is concerned for her safety because D.J.W. was standing outside of
her bedroom door with a knife in his hand.
¶65 D.J.W.'s medical records reveal that in October of 2016,
he reported hearing "the devil who tells him to destroy himself by
2 Darold A. Treffert, M.D., The MacArthur Coercion Studies:
A Wisconsin Perspective, 82 Marq. L. Rev. 759 (1999) (discussing
the balance of the right to be sick with the right to be rescued).
2
No. 2018AP145-FT.pdr
various actions." He also reported that he has "learned to ignore
the devil and is not afraid of the devil." His assessment in 2016
evaluated him as a "moderate risk" for suicide and noted that two
of D.J.W.'s cousins committed suicide.
¶66 In 2016, D.J.W., with the advice of counsel, entered
into a court approved settlement agreement, wherein he agreed to
take all prescribed doses of psychotropic medications and keep all
psychiatric and psychological appointments. However, D.J.W. said
that when the settlement term ended, he would stop complying with
its requirements. This resulted in his detention at North Central
Health Care, in Wausau, Wisconsin.
¶67 Langlade County petitioned for his commitment pursuant
to ch. 51. A hearing on Langlade County's petition was held on
January 30, 2017. Dr. John T. Coates, M.D., a psychiatrist, was
retained by the County to examine D.J.W. He did so.
¶68 Dr. Coates filed his report on January 25, 2017, after
he met with D.J.W., who largely "exercised his right to remain
silent." Dr. Coates reported that D.J.W. did "not believe that he
was mentally ill or in need of medication" and "claims that he is
the Messiah who has been sent from God to save humanity." Dr.
Coates noted that D.J.W. was hearing voices, having
hallucinations, had persecutory delusions and impaired judgment.
He diagnosed D.J.W. as suffering from schizophrenia and cannabis
use disorder.
¶69 In his report, Dr. Coates noted that D.J.W. was a
"significant risk of dangerousness" to himself, also to others and
that he is unable to independently care for himself. He noted
3
No. 2018AP145-FT.pdr
that D.J.W. had a history of "aggressive behavior and property
damage." He recommended commitment in an institution. However,
he opined that "eventually" D.J.W.'s care and treatment could be
provided as an outpatient. He stated that he had explained the
advantages and disadvantages of accepting medication or treatment,
but that D.J.W.'s mental illness was preventing his understanding
and that he was "substantially incapable of applying an
understanding" of the advantages and disadvantages of treatment
due to his mental illness.
¶70 The County also retained Dr. Nicholas Starr, a
psychologist, to examine D.J.W. D.J.W. refused to participate in
Dr. Starr's examination. Therefore, Dr. Starr's examination was
limited to D.J.W.'s medical records. His report, based on this
review, concluded that D.J.W. was mentally ill and dangerous
because there was "[a] substantial probability of physical harm to
himself . . . as manifested by evidence of recent threats of or
attempts at suicide or serious bodily harm." He said D.J.W. was
dangerous because there was a "substantial probability, as
demonstrated by both . . . [his] treatment history and
[his] . . . recent acts or omissions, that [he] . . . needs care
or treatment to prevent further disability or deterioration."
¶71 Dr. Starr noted that D.J.W. was "passively suicidal,"
and that he questioned the point of living. He, too, recommended
treatment in a locked institution, but said that when D.J.W. is
stabilized by medication, he could be released to outpatient
treatment.
4
No. 2018AP145-FT.pdr
¶72 At the commitment hearing held January 30, Dr. Coates
testified consistent with his report.3 He explained that although
D.J.W. was seriously mentally ill, his condition, schizophrenia,
is treatable with psychotropic medication, counseling and
behavioral adjustments. He said that D.J.W. does not believe he
is schizophrenic or in need of medications. He believes that
others can hear his thoughts, so he has no privacy. He opined
that D.J.W. was more of a danger to himself, but due to past
aggressive behaviors, he was a danger to others as well. He
explained that D.J.W. was unpredictable and unable to care for
himself when in an acute psychotic state. He testified that at
the time of the hearing the least restrictive treatment would be
in an institution, initially.
¶73 D.J.W. also testified. He said that he is fully aware
that he sees and hears things that others do not see or hear. He
said that if commitment was not ordered, he would not continue
outpatient treatment. He does not believe the medicine or
counseling helped him.
¶74 The court concluded that D.J.W. was dangerous due to his
mental illness and ordered a six month commitment for care and
medication.
¶75 On June 16, 2017, in advance of the expiration of
D.J.W.'s six month commitment, a Petition for Recommitment was
commenced pursuant to Wis. Stat. § 51.20(1)(am). Outpatient
treatment with community supports in place was requested. The
petition did not state whether the County was relying on a
3 The Honorable John B. Rhode presided.
5
No. 2018AP145-FT.pdr
§ 51.20(1)(a)2. criterion of dangerousness for its recommitment
petition. A hearing was set for July 18, 2017. It is the
recommitment order that resulted from this hearing that is now
before us.
¶76 Dr. John Coates was again retained to examine D.J.W. and
to file a report at least 48 hours before the hearing. He did so,
filing his report on July 3, 2017. His report explained that
D.J.W. had a defiant attitude, and that D.J.W. said he saw the
devil three months ago and last heard voices two months ago. Dr.
Coates opined that D.J.W.'s thought process was impaired and
delusional. He said that if treatment were withdrawn, D.J.W. would
be unable to care for himself, and that he has a history of
aggressive behavior that concerned him. He recommended extending
D.J.W.'s commitment for 12 months, with medication, and that
treatment could be provided outside an institution.
¶77 Dr. Coates reported that he had explained the advantages
and disadvantages of accepting treatment and medication to D.J.W.,
but that he was "substantially incapable of applying an
understanding of the advantages, disadvantages and alternatives
[due] to his [] mental illness . . . in order to make an informed
choice as to whether to accept or refuse medication or treatment."
¶78 At the July 18, 2017 hearing, Dr. Coates testified by
telephone consistent with his report.4 He explained that D.J.W.
has "a history of auditory and visual hallucinations. His thought
process is illogical and has some grandiose illusions." He
repeated in his testimony that D.J.W. had told him that he saw the
4 The Honorable Gregory Grau presided.
6
No. 2018AP145-FT.pdr
devil four months ago and last heard voices two months ago. Dr.
Coates opined that D.J.W.'s schizophrenia is treatable with
psychotropic medication, and that he was showing a response to the
medication he has been receiving.
¶79 When asked if D.J.W. was a danger to himself or to
others, Dr. Coates said that "the main danger is risk to himself
if he should go off treatment." If he does so, his illness will
be exacerbated and he will lose his ability to properly care for
himself.
¶80 Dr. Coates said that D.J.W. had a month's
institutionalization in January because he was very delusional and
had quit his job because he thought he was the Messiah sent from
God to save humanity. He was hearing voices on a daily basis and
thought others could hear his thoughts. He also did not believe
he was mentally ill, but rather, a psychic. Dr. Coates testified
that D.J.W. believes that "he can manage his illness in the
presence of hallucinations" and without medication. D.J.W.
believed that Haldol, which he was receiving, is disabling him,
rather than a mental illness.
¶81 Dr. Coates said that "dangerousness to others is
unpredictable." He explained that, "I don't believe that he's an
aggressive-type person who is apt to act out, but you can't predict
the behavior when someone is acutely psychotic." He also said, he
is a danger to himself and "unable to independently care for
himself." He said that danger "is not suicidal and homicidal
ideations. Although those are possibilities. There is an
increased risk of suicide in people with schizophrenia."
7
No. 2018AP145-FT.pdr
¶82 Counsel for Langlade County asked Dr. Coates whether:
[I]s it accurate to say that if the subject individual
in the past, there has been no evidence that that subject
has made a suicidal threat to harm himself or herself,
that when you do this examination, that you still can
have a finding or express a medical opinion that that
individual may present a suicide risk if treatment were
withdrawn?
Dr. Coates answered, "Yes."
¶83 Counsel continued:
Q. Doctor, I note in your report when to the
question does this individual present a significant risk
of dangerousness at this time or if treatment were to be
withdrawn, you've basically checked all the statutory
criteria that constitutes risk of
dangerousness. . . . [I]f treatment were to be
withdrawn, then he would meet, in your opinion, all of
those four criteria for dangerousness?
A. . . . [I]f treatment were withdrawn, all four
of those things would be more evident. . . . [H]e's not
able to independently care for himself at this point.
And he would be homeless I think if he wasn't able to
live with his parents. . . . His judgment is currently
still impaired. He feels that he can manage his illness
in the presence of hallucinations.
¶84 D.J.W. testified at the July hearing, as he had in
January. He said that he first sought help because he "felt
suicidal at the time." He said that he was hospitalized for one
week, during which time he received medication. After he was
discharged he stopped taking the medications.
¶85 D.J.W. said that his next hospitalization was at North
Central Health Care, where he stayed for two weeks. He said that
after discharge he did continue with medications, but they "didn't
affect me." He said that he told his doctor that he "had not
8
No. 2018AP145-FT.pdr
intended to continue taking the meds after the settlement agreement
expired." That's when commitment was proposed.
¶86 He acknowledged that he had damaged property at his
parent's residence, but asserted that no person was harmed. He
explained that he did not need community services because his
parents or his sister would help him with food and housing, as
they had in the past. He said his current medication, Haldol,
hurts, rather than helps him. He said that he was not then hearing
voices or seeing things others do not see. That they had "stopped
recently."
¶87 In closing, Langlade's counsel argued that the only
medical testimony that was presented, that of Dr. Coates, provided
clear and convincing evidence that D.J.W. has a mental illness,
schizophrenia, which is treatable. He explained because the County
is proceeding under Wis. Stat. 51.20(1)(am) for recommitment,
recent dangerous acts or thoughts are not required, but rather the
court must look at D.J.W.'s whole record. Counsel pointed out
that in regard to dangerousness, Dr. Coates testified that if
treatment were withdrawn, D.J.W. would become dangerous to
himself.
¶88 Counsel for D.J.W. argued that D.J.W. objected to
medication and that he was fine when he was not on it. She
acknowledged that the first time he checked himself into a facility
for voluntary services he was having suicidal thoughts. She
pointed out, however, that he did not act on those thoughts.
¶89 The circuit court found that D.J.W. suffered from a
mental illness, schizophrenia, which is treatable. The court also
9
No. 2018AP145-FT.pdr
found that D.J.W. does not believe that he suffers from
schizophrenia. The court cited D.J.W.'s testimony that recently
the hallucinations and delusions have decreased. The court found
that this seems to evidence a response to the treatment he has
been receiving.
¶90 The court found that if the treatment were withdrawn,
D.J.W. would be a proper subject for commitment because of the
severity of the hallucinations and delusions he has suffered in
the past. If that were to occur, D.J.W.'s judgment and perception
would be affected such that he would be a "significant danger to
himself." The court explained that D.J.W. is "substantially
incapable of applying and understanding the advantages,
disadvantages and alternatives to his mental illness to the point
where he can't make an informed choice as to whether to accept or
refuse medication or treatment." The court then continued D.J.W.'s
commitment as an outpatient, and found that because medication and
treatment will continue to have therapeutic value, they were
ordered.
II. DISCUSSION
A. Standard of Review
¶91 This case presents as a claim that the evidence was not
sufficient to recommit D.J.W. pursuant to Wis. Stat.
§ 51.20(1)(am) because there was insufficient evidence of
dangerousness. In order to evaluate the evidence presented under
the required statutory standard, we interpret and apply
§ 51.20(1)(am) and § 51.20(1)(a)2. We interpret and apply
statutes independently of the court of appeals' and circuit court's
10
No. 2018AP145-FT.pdr
decisions, while benefitting from their discussions. Daniel v.
Armslist, LLC, 2019 WI 47, ¶13, 386 Wis. 2d 449, 926 N.W.2d 710.
¶92 When the sufficiency of evidence is challenged, we
sustain the circuit court's findings of fact unless they are
clearly erroneous. State v. Anderson, 2019 WI 97, ¶20, 389 Wis. 2d
106, 935 N.W.2d 285. Findings of fact are clearly erroneous when
they are "contrary to the great weight and clear preponderance of
the evidence." Richards v. First Union Sec., Inc., 2006 WI 55,
¶12, 290 Wis. 2d 620, 714 N.W.2d 913. We independently determine
whether the facts fulfill statutory standards, again while
benefitting from prior courts' discussions. Westmas v. Creekside
Tree Serv., LLC, 2018 WI 12, ¶17, 379 Wis. 2d 471, 907 N.W.2d 68.
B. Recommitment
1. Civil Commitment Generally
¶93 The role that the State of Wisconsin has taken in civil
commitments has moved like a pendulum. For example, in the early
1970s, civil commitments of mentally ill individuals in Wisconsin
were easily obtained, which came to national attention with the
issuance of Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972),
vacated on other grounds, 414 U.S. 473 (1974) (per curiam). In
1972, many individuals had been institutionalized without well-
defined procedural standards. Lessard, a class action, was brought
on behalf of persons who were being held involuntarily under
emergency, temporary or permanent commitment provisions of
Wisconsin statutes. Id. at 1082.
¶94 The federal district court panel reasoned that the
"power of the state to deprive a person of the fundamental liberty
11
No. 2018AP145-FT.pdr
to go unimpeded about his or her affairs must rest on a
consideration that society has a compelling interest in such
deprivation." Id. at 1084. The court noted that it is the role
of courts to review procedural guarantees of due process that
commitment statutes should provide. Id. at 1086. Court review
was necessary because "the commitment adjudication carries with it
an enormous and devastating effect on an individual's civil
rights." Id. at 1089.
¶95 The court in Lessard, set out procedural requirements in
protection of civil rights of civil committees: notice and an
opportunity to be heard, id. at 1091; proof that commitment was
required because the individual poses a serious danger of harm to
others or himself, id. at 1095; the right to counsel, id. at 1097;
and the privilege against self-incrimination, id. at 1100, to name
a few required protections.
¶96 In 1976, Wisconsin significantly amended its procedural
standards for civil commitment, accepting most of Lessard's
conclusions. Many individuals were released from institutions, in
part because the amended standards for dangerousness were
difficult to meet.5
¶97 While the release of mentally ill persons who did not
require institutionalization to treat their illnesses was very
important, the change in the law also created obstacles that
prevented families and those concerned with obtaining care for the
mentally ill from being able to do so. This change resulted in a
significant increase in homelessness for mentally ill individuals,
5 Treffert, 82 Marq. L. Rev. 759.
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which began to be recognized.6 Accordingly, the pendulum on civil
commitment for treatment began to swing back toward greater
intervention and care for the lives of those who were chronically
mentally ill.7
¶98 Of importance in the matter before us, is the statutory
amendment that recognized that mental illness, itself, may render
the individual incapable of recognizing his or her illness and
accepting treatment. Wisconsin Stat. § 51.20(1)(a)2.e. is
Wisconsin's response to this concern. It focuses on dangerousness
to self that can arise when, due to mental illness, the individual
is incapable of understanding or applying advantages and
disadvantages of treatment or medication and if left untreated,
will suffer severe mental, emotional or physical harm. Also
important here is § 51.20(1)(am), which is employed for
recommitments for treatment as addressed below.
2. D.J.W.'s Recommitment
¶99 The matter before us is a recommitment. To recommit an
individual, the county is required to prove by clear and convincing
evidence that the individual is: (1) mentally ill; (2) a proper
subject for treatment; and (3) dangerous. Portage Cty. v. J.W.K.,
2019 WI 54, ¶18, 386 Wis. 2d 672, 927 N.W.2d 509.
6 See generally, Steven K. Erickson, Michael J. Vitacco and
Gregorgy J. Van Rybroek, Beyond Overt Violence: Wisconsin's
Progressive Civil Commitment Statute As a Marker of a New Era in
Mental Health Law, 89 Marq. L. Rev. 358 (2005).
7 Darold A. Treffert, 1995 Wisconsin Act 292: Finally, the
Fifth Standard, Wis. Med. J., Aug. 1996 (explaining that Act 292
was necessary for individuals who were being disenfranchised from
treatment and care post-Lessard when they were obviously seriously
ill and deteriorating).
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¶100 Wisconsin Stat. § 51.20(1)(am) provides statutory
requirements that a county must meet. They differ from the
requirements for an initial commitment. Section 51.20(1)(am)
provides in relevant part:
If the individual has been the subject of inpatient
treatment for mental illness . . . immediately prior to
commencement of the proceedings as a result of . . . a
commitment . . . ordered by a court under this
section . . . or if the individual has been the subject
of outpatient treatment for mental
illness . . . immediately prior to commencement of the
proceedings as a result of a commitment ordered by a
court under this section, the requirements of a recent
overt act, attempt or threat under . . . par. (a)2.c.
or e., . . . may be satisfied by a showing 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.
As the court of appeals explained, § 51.20(1)(am) avoids "the
'revolving door' phenomena whereby there must be proof of a recent
overt act to extend the commitment but because the patient was
still under treatment, no overt acts occurred and the patient was
released from treatment only to commit a dangerous act and be
recommitted." State v. W.R.B., 140 Wis. 2d 347, 351, 411 N.W.2d
142 (Ct. App. 1987). Accordingly, a petition for recommitment
brings before the court the individual's complete mental health
record.
¶101 Under Wis. Stat. § 51.20(1)(am), the circuit court was
not limited to considering D.J.W.'s acts or omissions that occurred
immediately before the petition for recommitment was filed. Id.The circuit court's findings may be based on acts or omissions
that occurred prior to the initial commitment and are documented
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in his medical records, as well as psychiatric examination reports
and testimony presented at hearings.
¶102 Wisconsin Stat. § 51.20(1)(am) requires proof
that: (1) the individual has been the subject of either inpatient
or outpatient treatment for mental illness; (2) immediately before
the recommitment petition was filed; (3) which treatment was court
ordered; and (4) based on the subject individual's treatment
record, there is a substantial likelihood that the individual would
be a proper subject for commitment if treatment were withdrawn.
¶103 In the matter before us, D.J.W. easily meets the first
three requirements of Wis. Stat. § 51.20(1)(am) based on D.J.W.'s
mental health records. Furthermore, there is no dispute that
D.J.W. received inpatient treatment and outpatient treatment for
mental illness immediately before the recommitment petition was
filed and that his treatment was court ordered. Those findings
are not clearly erroneous.
¶104 Because the fourth requirement of Wis. Stat.
§ 51.20(1)(am) directs that there must be "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," and because commitments require a
finding of dangerousness, recommitments also require a substantial
likelihood of dangerousness to self or others if treatment were
withdrawn. J.W.K., 386 Wis. 2d 672, ¶19.
¶105 In Wis. Stat. § 51.20(1)(a)2.a.-e., the legislature set
out five criteria through which dangerousness may be shown in the
course of a commitment. Wisconsin Stat. § 51.20(1)(am) does not
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directly incorporate these standards but relates that
§ 51.20(1)(a)2.a.-e. are satisfied when 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." Accordingly, subd. para. 2.a.-e.
provides an assist to my interpretation of how dangerousness may
be shown in a recommitment proceeding.
¶106 Of relevance, given the factual underpinning of the case
before us, is the fifth criterion for dangerousness, Wis. Stat.
§ 51.20(1)(a)2.e. It is my focus because of the effect that
D.J.W.'s mental illness has had on his ability to evaluate
treatment and care options and make a rational decision about
whether to accept them or not. As we have explained, subd. para.
2.e. "applies to mentally ill persons whose mental illness renders
them incapable of making informed medication decisions and makes
it substantially probable that, without treatment, disability or
deterioration will result, bringing on a loss of ability to provide
self-care or control thoughts or actions." Dennis H., 255 Wis. 2d
359, ¶33.
¶107 Wisconsin Stat. § 51.20(1)(a) provides in relevant part:
2. The individual is dangerous because he or she
does any of the following:
. . . .
e. For an individual, other than an individual who
is alleged to be drug dependent or developmentally
disabled, after the advantages and disadvantages of and
alternatives to accepting a particular medication or
treatment have been explained to him or her and because
of mental illness, evidences . . . [has a] substantial
incapability of applying an understanding of the
advantages, disadvantages, and alternatives to his or
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her mental illness in order to make an informed choice
as to whether to accept or refuse medication or
treatment; and evidences a substantial probability, as
demonstrated by both the individual's treatment history
and his or her recent acts or omissions, that the
individual needs care or treatment to prevent further
disability or deterioration and a substantial
probability that he or she will, if left untreated, lack
services necessary for his or her health or safety and
suffer severe mental, emotional, or physical harm that
will result in the loss of the individual's ability to
function independently in the community or the loss of
cognitive or volitional control over his or thoughts or
actions.
¶108 In Dennis H., we set out five requirements of Wis. Stat.
§ 51.20(1)(a)2.e.: First, the person must be mentally ill. Id.,
¶19. Second, the person must be "incompetent to make medication
or treatment decisions" due to his mental illness. Id., ¶21.
Incompetence may be shown by a "substantial incapability of
applying an understanding of the advantages, disadvantages, and
alternatives" because of mental illness, "after the advantages and
disadvantages of and alternatives to accepting a particular
medication or treatment have been explained." Id. Third, the
person must show "a 'substantial probability' that he or she 'needs
care or treatment to prevent further disability or
deterioration.'" Id., ¶22. In a recommitment, these requirements
can be satisfied by either the person's treatment history or his
recent acts or omissions.
¶109 Fourth, "the person must evidence a 'substantial
probability that he or she will, if left untreated, lack services
necessary for his or her health or safety,'" or "suffer severe
mental, emotional, or physical harm that will result in the loss
of the individual's ability to function independently in the
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community or the loss of cognitive or volitional control over his
or her thoughts or actions." Id., ¶¶23, 24.
¶110 The fifth criterion for dangerousness, by its terms,
directs that the above requirements be evident to a "substantial
probability." This is the applicable degree of proof for
dangerousness under the fifth criterion set out in Wis. Stat.
§ 51.20(1)(a)2.e. Id., ¶26. D.J.W.'s treatment history and
current actions evidence that D.J.W. meets the requirements of
subd. para. 2.e. to a substantial probability thereby showing by
clear and convincing evidence that he will become dangerous if his
care and treatment were withdrawn.
¶111 First, there is no question that D.J.W. is seriously
mentally ill, as he has been for years. Second, Dr. Coates's
reports and testimony show that D.J.W. is incompetent to make
medication or treatment decisions because of his mental illness.
His report submitted on June 30, 2017 specifically found that
D.J.W. was "INCOMPETENT to refuse medication or treatment because
of mental illness." Dr. Coates said that D.J.W. "is substantially
incapable of applying an understanding of the advantages,
disadvantages and alternatives to his . . . mental
illness . . . in order to make an informed choice as to whether to
accept or refuse medication or treatment."
¶112 Third, Dr. Coates explained that D.J.W. needed treatment
to prevent further disability or deterioration. He said that if
D.J.W. goes off treatment "[h]e's apt to have exacerbation of his
illness. He's apt to experience, you know, hallucinations to a
greater degree. Become delusional."
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¶113 Fourth, Dr. Coates said that without treatment, D.J.W.
"would be homeless" if his parents could no longer care for him
because he is "unable to independently care for himself."
Dr. Starr's report said that without treatment there is a
"substantial probability" that D.J.W. "will lack the services
necessary for his [] health or safety, and will suffer severe
mental, emotional or physical harm that will result in loss
of . . . cognitive or volitional control over [his] thoughts or
actions." There can be no question that D.J.W. has an inability
to control his delusions or hallucinations on his own. He has
seen some recent progress, but that has been due to medication.
¶114 Based on D.J.W.'s medical record and the reports and
testimony of Drs. Coates and Starr, Langlade County has met its
burden to prove by clear and convincing evidence that if treatment
were withdrawn, D.J.W. would be a proper subject for commitment,
with dangerousness established within the parameters of Wis. Stat.
§ 51.20(1)(a)2.e.
III. CONCLUSION
¶115 In conclusion, although I understand why the majority
chose to evaluate the evidence that was presented under Wis. Stat.
§ 51.20(1)(a)2.c. and 2.d., the majority errs because the evidence
fully satisfies the "fifth criterion" for dangerousness found in
§ 51.20(1)(a)2.e., which we carefully explained in Dennis H., 255
Wis. 2d 359. Accordingly, I respectfully dissent.
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¶116 REBECCA GRASSL BRADLEY, J. (dissenting). Both the
majority opinion and Chief Justice Roggensack's dissent reach the
merits of this case. I write separately without joining either
opinion because it is imprudent to reach the merits, as well as
contrary to our established framework regarding the disposition of
Wis. Stat. ch. 51 commitment cases that are moot. Because D.J.W.
died while his case was pending in this court, we should have
dismissed his appeal. D.J.W.'s death renders the case moot and a
disposition unnecessary.
I
¶117 The majority acknowledges D.J.W.'s death in a footnote,
see majority op., ¶26 n.5, but chooses to decide the case using as
its legal basis the criminal case of State v. McDonald, 144
Wis. 2d 531, 532, 424 N.W.2d 411 (1988). Although the court in that
case fully considered the rationale for reaching the merits when
a criminal defendant dies with an appeal pending, see id. at 535-
40, the court has never done so in the context of an appealed civil
commitment. According to the majority, D.J.W.'s death "does not
dictate a contrary result [to reaching the merits]." Majority
op., ¶26 n.5. I disagree. The reasons for reaching the merits in
a criminal case despite an intervening death do not apply in a
chapter 51 commitment case.
¶118 In determining that the court should resolve a case
involving a committee who dies while his appeal is pending, the
majority simply asserts that "the same considerations are
attendant here" as exist in a criminal matter. Id. Specifically,
the majority cites significant deprivations of liberty affecting
both criminal defendants and chapter 51 involuntary committees.
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Of course, this consideration evaporates upon the death of the
defendant or committee. Regardless, when the McDonald court
concluded a criminal case was not moot even though the defendant
died during the appellate process, it did not rely on the
deprivation of his liberty as its rationale. See McDonald, 144
Wis. 2d at 532-40. Instead, the rationale was two-fold:
(1) [A] defendant has a constitutional as well as a
statutory right to an appeal. This right . . . is
an integral part of a defendant's right to a final
determination of the merits of the case. It serves
as a safeguard to protect a defendant against
errors in the criminal proceedings. A defendant
who dies pending appeal . . . is no less entitled
to those safeguards.
(2) [B]ecause collateral proceedings may be affected by
criminal proceedings in which it is alleged that an
individual took the life of another, it is in the
interest of society to have a complete review of
the merits of the criminal proceedings.
McDonald, 144 Wis. 2d at 536-37 (emphasis added; internal
citations omitted). The court identified those collateral
proceedings affected by a final determination that the defendant
intentionally took the life of another (the underlying crime in
McDonald):
(1) "receiv[ing] money from the victim's estate under
the intestacy statute";
(2) "inherit[ing] under the victim's will";
(3) "receiv[ing] any benefit from a contract in which
the victim is the obligee and which names the
defendant as the beneficiary";
(4) "receiv[ing] any benefit, as a beneficiary, payable
as a result of the death of the victim";
(5) "receiv[ing] a benefit, as a beneficiary, from a
life insurance policy on the life of the victim";
and
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(6) "receiv[ing] the victim's interest in property held
in joint tenancy[.]"
Id. at 537 (internal citations omitted). The court expressly
limited its analysis to criminal proceedings: "society and the
deceased have a very real interest in a final determination of the
defendant's appeal from the criminal conviction." Id. at 539(emphasis added).
¶119 None of these rationales apply to an individual
challenging a chapter 51 commitment. Regarding the first reason,
no one has a constitutional or statutory right of appeal to the
Wisconsin Supreme Court, irrespective of the nature of the case.
Wis. Stat. § 809.62(1r) (2017-18)1 ("Supreme Court review is a
matter of judicial discretion, not of right[.]"); cf. Wis. S. Ct.
IOP III (Sept. 13, 2019). The second rationale espoused in
McDonald similarly does not apply to chapter 51 proceedings.
Unlike a criminal conviction based upon an intentional killing,
none of the collateral proceedings mentioned in McDonald arise
from a chapter 51 commitment proceeding.2 The absence of
collateral proceedings stemming from a chapter 51 commitment
All subsequent references to the Wisconsin Statutes are to
1
the 2017-18 version unless otherwise indicated.
While it is possible D.J.W.'s estate may be liable for the
2
cost of care he received during his commitment, see Wis. Stat.
§ 46.10(2) & (11)(b), this court has never concluded that costs of
care alone represent a collateral consequence sufficient to render
a case not moot. See Marathon Cty. v. D.K., 2020 WI 8, ¶25 n.7,
390 Wis. 2d 50, 937 N.W.2d 901 ("[W]e need not address whether the
collateral consequences of costs of care under Wis. Stat.
§ 46.10(2)-(3) . . . would render [a commitment not moot].");
Portage Cty. v. J.W.K., 2019 WI 54, ¶28 n.11, 386 Wis. 2d 672, 927
N.W.2d 509 (not addressing whether cost of care would be a
collateral consequence sufficient to render a case not moot).
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proceeding erases any general societal interest in the outcome of
appeals in these matters.
¶120 While valid reasons may exist in an appeal of a ch. 51
commitment to hold it is not moot despite the death of the
committee while the appeal is pending, appeals from criminal
convictions are fundamentally different. In order to decide
whether a committee's death moots an appeal, this court should
have ordered the parties to brief the issue after D.J.W.'s death.
Deriving a legal basis from a criminal case is incongruous.
II
¶121 "An issue is moot when its resolution will have no
practical effect on the underlying controversy." Portage Cty. v.
J.W.K., 2019 WI 54, ¶¶1, 11, 386 Wis. 2d 672, 927 N.W.2d 509(quoted source omitted); see also Marathon Cty. v. D.K., 2020 WI
8, ¶19, 390 Wis. 2d 50, 937 N.W.2d 901 (noting the same).
"Mootness is a doctrine of judicial restraint[,]" which means we
refrain from resolving moot cases in the absence of a compelling
reason. D.K., 390 Wis. 2d 50, ¶19. We recognize certain
exceptions to this general rule and opt to address moot cases when
their issues "present . . . a need for an answer that outweighs
our concern for judicial economy." Waukesha Cty. v. S.L.L., 2019
WI 66, ¶15, 387 Wis. 2d 333, 929 N.W.2d 140. These include issues:
(1) "of great public importance;" (2) challenging the
constitutionality of a statute; (3) for which "a definitive
decision is essential to guide the trial courts;" (4) "likely to
arise again and [that] should be resolved by the court to avoid
uncertainty;" or (5) "capable and likely of repetition and yet
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evade[] review[.]" J.W.K., 386 Wis. 2d 672, ¶29 (quoting G.S. v.
State, 118 Wis. 2d 803, 805, 348 N.W.2d 181 (1984)).
¶122 D.J.W.'s case is unquestionably moot because no decision
issued by the court will have any effect on the controversy. Even
before his death, D.J.W. was not subject to the original commitment
order or the subsequent recommitment order. The firearm
restriction that survives the expiration of the commitment orders
ceased to have any legal effect upon D.J.W.'s death. Cf. D.K.,
389 Wis. 2d 50, ¶25 (holding "a decision in [the petitioner's]
favor would void the firearms ban and therefore have a 'practical
effect[,]'" rendering it "not a moot issue"). When we granted
review of his case, D.J.W. conceded the case was moot but asked us
to exercise our discretion and review his sufficiency-of-the-
evidence challenge under one of the mootness exceptions.
¶123 Because D.J.W. died, no issue outweighs our concern for
judicial economy. See S.L.L., 387 Wis. 2d 333, ¶15. None of the
mootness exceptions apply. The majority claims exceptions (1),
(3), and (5) support reaching the merits. Majority op., ¶26 n.5
("[T]he question of the necessary evidence to support an
involuntary commitment is of great importance yet often evades
appellate review. Our decision on this case will give necessary
guidance to circuit courts conducting involuntary commitment
proceedings."). I respectfully disagree. Chapter 51 cases are
not so rare or procedurally unusual that they will evade appellate
review. This term alone the court reviewed four chapter 51 cases.
Two of those, the present case and D.K., 390 Wis. 2d 50, dealt
with sufficiency of the evidence challenges to findings of
dangerousness under Wis. Stat. § 51.20. Last term, this court
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reviewed two chapter 51 cases, both involving sufficiency of the
evidence challenges. See S.L.L., 387 Wis. 2d 333; J.W.K., 386
Wis. 2d 672. Six cases in two terms indicates appellate review is
readily available to parties presenting chapter 51 cases.
Admittedly, resolution of this case was of great importance to
D.J.W. However, nothing about the sufficiency of the evidence in
his extension hearing almost three years ago is of great public
importance to overcome our customary exercise of judicial
restraint.
¶124 The majority also claims a resolution will "give
necessary guidance" to circuit courts. The court's only guidance
commands that "circuit courts in recommitment proceedings are to
make specific factual findings with reference to the subdivision
paragraph of Wis. Stat. § 51.20(1)(a)2. on which the recommitment
is based." Majority op., ¶¶3, 26 n.5, 59. This "guidance" is not
new. Just this term, every member of this court detailed the
importance of making specific factual findings in chapter 51 cases.
D.K., 390 Wis. 2d 50, ¶55 (Ziegler, J., joined by Roggensack, C.J.,
and Hagedorn, JJ.) ("[The record] could have been more
detailed. . . . [T]he circuit court could have made more detailed
and thorough factual findings and clarified its legal conclusions.
A commitment is no trivial matter. Taking more time at the circuit
court can save years of uncertainty on appeal."); id., ¶68 n.4
(Rebecca Grassl Bradley, J., concurring, joined by Kelly, J.)
("Because circuit courts bear the responsibility of determining
whether the evidence satisfies the statutory standard, [they] must
expressly make independent factual findings on the record,
separate from any legal conclusions. Merely reciting testimony or
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melding factual findings with legal conclusions can constrain
appellate review. Because appellate courts overturn only factual
findings that are 'clearly erroneous,' there must be distinct
separation of factfinding from legal conclusions." (citation
omitted)); id., ¶¶86, 79 n.2 (Dallet, J., dissenting, joined by
Ann Walsh Bradley, J.) ("[Wis. Stat. ch. 51] hearings cannot be
perfunctory under the law. Attention to detail is important."
(quoted source omitted); "[T]he circuit court's factual findings
in this case are scant[.]").
¶125 The court has already emphasized that circuit courts
must make explicit factual findings on the record to support their
legal conclusions in Chapter 51 cases. Regardless of the nature
of the proceeding, a circuit court must always state the facts
upon which it bases its legal conclusions. "In all matters tried
before a court, the trial court must make findings of ultimate
facts upon which the judgment of the court rests. Adequate
findings must be made in order to protect the rights of litigants
and to facilitate review of the record by an appellate court."
Termination of Parental Rights of T.R.M., 100 Wis. 2d 681, 687,
303 N.W.2d 581 (1981) (internal footnote omitted); see also
Wis. Stat. § 805.17(2) ("In all actions tried upon the facts
without a jury . . . the court shall find the ultimate facts and
state separately its conclusions of law thereon.").
¶126 The woefully inadequate record in this case also
militates against deciding the merits. See majority op., ¶¶36-
40, 47 (discussing no consistent statutory basis for the initial
commitment, changing arguments by the County, "conflicting
messages" by the County and lower courts, and an erroneous standard
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of review by the court of appeals). Particularly in light of a
record that is "quite unhelpful in guiding this court's
analysis[,]" the court should dismiss this case as moot. D.J.W.'s
death eliminates any otherwise applicable mootness exceptions.
III
¶127 Given D.J.W.'s death, there is no reason for the court
to reach the merits. Resolution of the disputed issue has no
"practical effect" on the underlying sufficiency-of-the-evidence
challenge D.J.W. raised. This fact-specific challenge is of no
importance to the general public, these challenges commonly
receive our discretionary review, and the little guidance provided
by the court does not outweigh the overriding interest in judicial
economy. The majority declines to dismiss this case and instead
analogizes chapter 51 appeals to criminal appeals in its mootness
analysis, without acknowledging the differences between the two.
Neither the language nor rationale of McDonald supports reaching
the merits in a chapter 51 case when the committee dies during the
appeal. This case is moot, no exception applies, and the case
should be dismissed.
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