Brown County v. Z. W. L.

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.
September 12, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP2201 Cir. Ct. No. 2022ME289
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
IN THE MATTER OF THE MENTAL COMMITMENT OF Z. W. L.:
BROWN COUNTY,
PETITIONER-RESPONDENT,
V.
Z. W. L.,
RESPONDENT-APPELLANT.
APPEAL from orders of the circuit court for Brown County:
TIMOTHY A. HINKFUSS, Judge. Reversed.
¶1 GILL, J.1 Zeb2 appeals an order extending his involuntary
commitment pursuant to WIS. STAT. § 51.20 and an associated order for
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2022AP2201
involuntary medication and treatment. Zeb argues that the circuit court relied on
inadmissible hearsay when it found that Zeb is dangerous under § 51.20(1)(a)2.b.
and 2.c., and that this error prejudiced him because there was no other evidence to
establish his dangerousness.3 We conclude that the court relied on inadmissible
hearsay in finding that Zeb was dangerous, that no exceptions to the hearsay rule
applied to permit the admission of the testimony, and that the admission of the
hearsay testimony was prejudicial to Zeb. Accordingly, we reverse.4
BACKGROUND
¶2 Zeb was initially committed to a behavioral health facility in
Jefferson County in March 2022 for six months, pursuant to WIS. STAT.
§ 51.20(1)(a)2. Thereafter, venue was transferred to Brown County. Brown
County subsequently petitioned for an extension of Zeb’s commitment, and in
September 2022, the circuit court held a contested hearing on the County’s
petition.
¶3 Doctor Marshall Bales, the County’s examining physician, was the
first witness to testify at the extension hearing. Bales testified that Zeb declined to
2
For ease of reading, we refer to the appellant in this confidential matter using a
pseudonym, rather than his initials.
3
In his brief, Zeb erroneously states that he was found dangerous under WIS. STAT.
§ 51.20(1)(a)2.a. While the circuit court did not specifically identify what subsection it found
Zeb dangerous under, we agree with the County that Zeb was instead found dangerous under
§ 51.20(1)(a)2.b. and 2.c. Nonetheless, the outcome would be the same regardless of the
subsection at issue.
4
An order for involuntary medication and treatment cannot exist without a valid
commitment order. See WIS. STAT. § 51.61(1)(g). Because we have determined that the order
extending Zeb’s commitment must be reversed, reversal of the involuntary medication order is
also required.
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No. 2022AP2201
meet with him but that Bales was able to complete his report by reviewing Zeb’s
records from Jefferson and Winnebago County’s detention documents, Bales’ own
prior reports of his examinations of Zeb, and by speaking to Zeb’s father. Based
on this information, Bales diagnosed Zeb with a schizoaffective disorder and noted
specific incidents where Zeb had exhibited symptoms of that disorder. Bales
noted that Zeb was opposed to receiving monthly antipsychotic medication. Bales
further testified that he believed Zeb would be a proper subject for commitment if
treatment were withdrawn.
¶4 The County moved to admit Bales’ report into evidence. Zeb’s
counsel objected to the admission of Bales’ report, claiming that the specific
events described in the report were based upon inadmissible hearsay. The circuit
court sustained the objection while admitting the nonhearsay portions of the
report.
¶5 The County’s second and final witness was Jordan Lungstrom, Zeb’s
case manager. Lungstrom testified that Zeb returned to a mental health facility on
May 16, 2022, due to Zeb calling the police and accusing his father of raping
Zeb’s mother, which was untrue. Lungstrom also stated that Zeb threatened to kill
his mother and father. Zeb’s counsel objected to this testimony as hearsay. The
circuit court overruled the objection, stating “No. 1, [Zeb is] a party opponent.
No. 2, [Lungstrom] is a case manager as part of her duties.”
¶6 On cross-examination, Lungstrom testified that she had not
personally spoken to Zeb regarding the May 16 incident and that she obtained her
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No. 2022AP2201
knowledge of the incident by reading a crisis center report.5 The report was never
offered or admitted into evidence. Lungstrom further testified that she had never
personally witnessed Zeb making a verbal threat to anyone or exhibiting violent
behavior. Zeb did not present any witnesses.
¶7 During its closing argument, the County asked the circuit court to
find Zeb dangerous based on the May 16 incident and to extend Zeb’s
commitment. Upon the conclusion of closing arguments, the court again
addressed the disputed hearsay testimony regarding the May 16 incident, stating,
“I misunderstood. I thought [Zeb] made those statements.” The court then stated,
“It was his acts that the caseworker reviewed with [Zeb].” The court then
reasoned, “I do think being the case worker [Lungstrom] … should and she did
discuss this case with [Zeb] because this came up on his case history. I mean, this
is what case managers are supposed to do. And to me, that’s an exception to any
of the hearsay rules.”
¶8 Based upon the evidence concerning the May 16 incident, the circuit
court subsequently found that Zeb was dangerous under WIS. STAT.
§ 51.20(1)(a)2.b. and 2.c., and it ordered Zeb’s twelve-month recommitment and
his involuntary medication and treatment. Zeb now appeals the order extending
his commitment and the associated order for involuntary medication and
treatment.
5
This report was compiled by a crisis counselor, who collected statements from the
police and Zeb.
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No. 2022AP2201
DISCUSSION
¶9 Zeb argues that the circuit court erroneously exercised its discretion
when it found Zeb to be dangerous under WIS. STAT. § 51.20(1)(a)2.b. and 2.c. by
admitting and relying on Lungstrom’s inadmissible hearsay testimony concerning
statements made by Zeb. Specifically, Zeb asserts that Lungstrom’s testimony
contained at least two levels of hearsay. First, Lungstrom testified concerning the
contents of the written crisis report, and second, that report contained oral
statements made by others to the crisis counselor, and that no exceptions apply to
either level of hearsay. Zeb also argues that the admission of the hearsay was
prejudicial because the County’s admissible evidence against him is insufficient to
prove, by clear and convincing evidence, that he is dangerous.
¶10 We review the circuit court’s decision to admit evidence for an
erroneous exercise of discretion. State v. Stevens, 171 Wis. 2d 106, 111, 490
N.W.2d 753 (1992). A court’s discretionary decision will be upheld if the court
“examined the relevant facts, applied a proper standard of law, and, using a
demonstrated rational process, reached a conclusion that a reasonable judge could
reach.” Appleton Post-Crescent v. Janssen, 149 Wis. 2d 294, 302-03, 441
N.W.2d 255 (Ct. App. 1989).
¶11 Hearsay is “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” WIS. STAT. § 908.01(3). Hearsay is inadmissible unless an exception
applies. WIS. STAT. § 908.02. Hearsay within hearsay is inadmissible unless each
part of the combined statements conforms to a hearsay exception. WIS. STAT.
§ 908.05. One exception to the exclusion of hearsay testimony is based upon a
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No. 2022AP2201
statement that is made by a party opponent and offered against that party.
Sec. 908.01(4)(b)1.
¶12 Zeb argues, and the County does not dispute, that the party-opponent
exclusion does not apply to Lungstrom’s testimony regarding the May 16 incident.
Zeb further contends, and the County does not dispute, that there is no “case
manager” exception to the rule against hearsay. We agree on both counts.
¶13 Here, Lungstrom’s testimony does not fall within the party-opponent
exception because Lungstrom did not testify about any discussions that she had
with Zeb regarding the May 16 incident. Rather, Lungstrom based her testimony
on the content of the crisis center report. The report was drafted by a crisis center
counselor and consisted of statements from police officers and Zeb. Because
Lungstrom’s testimony rests upon two layers of hearsay, there must be an
exception for each level of hearsay for Lungstrom’s testimony to be admissible.
See WIS. STAT. § 908.05.
¶14 The party-opponent exception applies to Zeb’s oral statements to the
police and the crisis worker because Zeb directly made those statements. See WIS.
STAT. § 908.01(4)(b)1. However, the party-opponent exception does not apply to
the report itself. See id. While Zeb’s statements may have been admissible if
testified to by the crisis worker or police officers, neither was called to testify at
the hearing. See State v. Patino, 177 Wis. 2d 348, 363, 502 N.W.2d 601 (Ct. App.
1993); see also § 908.01(4)(b)1. Moreover, there is no “case manager” exception
to the hearsay rule enumerated in the statutes or rules adopted by our supreme
court. See WIS. STAT. §§ 908.01-045.
¶15 The County nonetheless appears to argue that the circuit court did
not erroneously exercise its discretion by admitting the hearsay testimony because
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No. 2022AP2201
it was proffered to show why Zeb returned to the behavioral health facility.6 We
construe this argument as an assertion that the County was not offering the
evidence for the truth of the matter asserted.
¶16 We reject this argument. In its closing argument, the County asked
the circuit court to find Zeb dangerous based on the May 16 incident, and the court
mentioned the May 16 incident in support of its dangerousness finding. Thus, the
evidence was clearly offered for that purpose. Additionally, as we discuss below,
there is no evidence on which the court could base its dangerousness finding
without Lungstrom’s testimony regarding the May 16 incident. Thus, the County
clearly intended for the court to rely upon—and the court did in fact rely upon—
Lungstrom’s testimony for the truth of the matter asserted regarding the May 16
incident.
¶17 In response, the County contends that Zeb failed to timely object
while Lungstrom testified about the May 16 incident, thereby forfeiting his
hearsay objection. The County supports this contention by noting that Zeb’s
counsel did not object directly after Lungstrom testified about Zeb calling the
police but, rather, counsel objected when the County asked Lungstrom what Zeb
said to the police. The County asserts that Zeb’s counsel only objected to
Lungstrom’s statement regarding what Zeb said to the police. We disagree.
6
The County also argues that Lungstrom “was simply testifying to the historical record.”
We reject this argument as undeveloped. See M.C.I., Inc. v. Elbin, 146 Wis. 2d 239, 244-45, 430
N.W.2d 366 (Ct. App. 1988). Moreover, the County’s argument that Lungstrom was testifying to
the “historical record” is unsupported by legal authority. See Wal-Mart Real Est. Bus. Tr. v. City
of Merrill, 2023 WI App 14, ¶32, 406 Wis. 2d 663, 987 N.W.2d 764 (stating that arguments
unsupported by legal authority need not be considered).
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No. 2022AP2201
¶18 “The purpose of the rule requiring that the grounds for objection be
stated on the record is to afford the opposing party and the [circuit] court an
opportunity to correct the error and to afford appellate review of the grounds for
the objection.” Air Wis., Inc. v. North Cent. Airlines, Inc., 98 Wis. 2d 301, 311,
296 N.W.2d 749 (1980). Here, Zeb’s counsel alerted the court to the hearsay in
Lungstrom’s testimony by stating, “I’m just going to object to this line of
questioning unless there’s a basis to show Ms. Lungstrom has personal knowledge
of this, these events.” Further, during Lungstrom’s cross-examination, Zeb’s
counsel emphasized that Lungstrom had no personal knowledge of the May 16
incident and had only obtained her information regarding it from the crisis center
report. Finally, Zeb’s counsel started his closing argument by renewing his
objection to Lungstrom’s testimony, stating, “I know the court has ruled on that
and has already heard the testimony, but I believe that that testimony was multiple
layers of hearsay…. So I would object to the court relying on that for the truth of
any events that happened that day.” Therefore, contrary to the County’s argument,
Zeb did not forfeit his objection to the hearsay testimony; Zeb’s counsel alerted
the court to the hearsay evidence in Lungstrom’s testimony—not only to the
specific question of what Zeb said to the police, but to the entire line of
questioning regarding the May 16 incident.
¶19 Accordingly, we conclude that the circuit court erroneously
exercised its discretion when it applied the party-opponent and so-called “case
manager” exceptions to Lungstrom’s testimony. We now turn to whether the
admissible evidence presented at the extension hearing was sufficient to support
the court’s finding that Zeb was dangerous under WIS. STAT. § 51.20(1)(a)2.b. and
2.c.
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No. 2022AP2201
¶20 Whether the County met its burden of proof to support the extension
of Zeb’s commitment “presents a mixed question of law and fact. We uphold a
circuit court’s findings of fact unless they are clearly erroneous. Whether the facts
satisfy the statutory standard is a question of law that we review de novo.” See
Waukesha County v. J.W.J., 2017 WI 57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783.
Given the essential liberty interest at stake in involuntary commitments, due
process requires a county to prove its case by clear and convincing evidence.
Addington v. Texas, 441 U.S. 418, 433 (1979); WIS. STAT. § 51.20(13)(e).
¶21 “In order to involuntarily commit a person pursuant to [WIS.
STAT.] ch. 51, the petitioner must demonstrate that three elements are
fulfilled: the subject must be (1) mentally ill; (2) a proper subject for treatment;
and (3) dangerous to themselves or others.” Sheboygan County v. M.W., 2022 WI
40, ¶17, 402 Wis. 2d 1, 974 N.W.2d 733. To prove dangerousness, a county must
satisfy at least one of the five standards of dangerousness set forth in WIS. STAT.
§ 51.20(1)(a)2.a.-e. At issue here is § 51.20(1)(a)2.b., which requires that an
individual
[e]vidences 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.
Also at issue is § 51.20(1)(a)2.c., which requires showing that an individual
“[e]vidences such impaired judgment, manifested by evidence of a pattern of
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No. 2022AP2201
recent acts or omissions, that there is a substantial probability of physical
impairment or injury to himself or herself or other individuals.”7
¶22 “The dangerousness standard is not more or less onerous during an
extension proceeding; the constitutional mandate that the County prove an
individual is both mentally ill and dangerous by clear and convincing evidence
remains unaltered.” Portage County v. J.W.K., 2019 WI 54, ¶24, 386 Wis. 2d
672, 927 N.W.2d 509. WISCONSIN STAT. § 51.20(1)(am) abrogates the
requirement of a recent act in an extension hearing when a county shows “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.” However, a county must still prove current dangerousness. J.W.K.,
386 Wis. 2d 672, ¶24. “It is not enough that the individual was at one point a
proper subject for commitment.” Id.¶23 Here, Zeb argues that absent Lungstrom’s inadmissible hearsay
testimony, the County is unable to prove that he is currently dangerous by clear
and convincing evidence. We agree.
¶24 Lungstrom testified that she has never personally witnessed Zeb
make any verbal threats to anyone or exhibit violent behavior toward himself or
anyone else. Bales testified that Zeb would be a proper subject for commitment if
treatment were withdrawn, which relieved the County of its burden of showing
recent acts that indicate dangerousness. See WIS. STAT. § 51.20(1)(am).
7
Zeb does not dispute that he is mentally ill or that his mental illness is treatable. The
only element of WIS. STAT. § 51.20(1)(a) that is contested is Zeb’s dangerousness. Thus, we
analyze only the evidence that is pertinent to Zeb’s dangerousness.
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No. 2022AP2201
However, the County was still required to prove current dangerousness. See
J.W.K., 386 Wis. 2d 672, ¶24. Neither Bales’ testimony nor Lungstrom’s
admissible testimony provided evidence that Zeb exhibits a substantial risk of
physical harm to himself or others, exhibits impaired judgment, or that Zeb
exhibits impaired judgment by a pattern of recent acts for purposes of WIS. STAT.
§ 51.20(1)(a)2.a.-e.
¶25 Accordingly, we conclude that the evidence presented at the
commitment extension hearing was insufficient to support a conclusion that Zeb is
dangerous pursuant to WIS. STAT. § 51.20(1)(a)2.a-e. We therefore reverse the
order extending Zeb’s commitment and the associated order for involuntary
medication and treatment. See Langlade County v. D.J.W., 2020 WI 41, ¶¶58-60,
391 Wis. 2d 231, 942 N.W.2d 277 (reversing a recommitment when there was
insufficient evidence to support a conclusion that the individual was dangerous).
By the Court.—Orders reversed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
11