Outagamie County v. C. J. A.

2022 WI APP 36
COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION
Case No.: 2020AP2032
Complete Title of Case:
IN THE MATTER OF THE MENTAL COMMITMENT OF C. J. A.:
OUTAGAMIE COUNTY,
PETITIONER-RESPONDENT,
V.
C. J. A.,
RESPONDENT-APPELLANT.
Opinion Filed: June 1, 2022
Submitted on Briefs: January 18, 2022
Oral Argument:
JUDGES: Stark. P.J., Hruz and Dugan, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYS: On behalf of the respondent-appellant, the cause was submitted on the
briefs of Megan Sanders-Drazen, assistant state public defender of
Madison.
Respondent
ATTORNEYS: On behalf of the petitioner-respondent, the cause was submitted on the
brief of Dawn T. Shaha, assistant corporation counsel, Appleton.
2022 WI App 36COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 1, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2020AP2032 Cir. Ct. No. 2016ME157
STATE OF WISCONSIN IN COURT OF APPEALS
IN THE MATTER OF THE MENTAL COMMITMENT OF C. J. A.:
OUTAGAMIE COUNTY,
PETITIONER-RESPONDENT,
V.
C. J. A.,
RESPONDENT-APPELLANT.
APPEAL from orders of the circuit court for Outagamie County:
TIMOTHY A. HINKFUSS, Judge. Reversed.
Before Stark, P.J., Hruz and Dugan, JJ.
No. 2020AP2032
¶1 STARK, P.J. Catherine1 appeals from an order extending her
involuntary commitment and an order for involuntary medication and treatment,
both entered pursuant to WIS. STAT. ch. 51 (2019-20).2 Catherine argues that the
special verdict presented to the jury did not fairly present the question of whether
she was currently dangerous. Catherine further argues that her appeal is not moot
because exceptions to the doctrine of mootness apply.3
¶2 We elect to address the issue Catherine raises concerning the form of
the special verdict because it meets several exceptions to the mootness doctrine,
including that it is likely to recur, should be decided to avoid uncertainty, and is
almost certain to evade review. We conclude that the circuit court misstated the
statutory test when it added language to the special verdict question concerning
dangerousness. The addition resulted in an inquiry that did not properly reflect the
focus of a WIS. STAT. ch. 51 recommitment proceeding: i.e., whether the individual
is currently dangerous. Because the orders on appeal have expired, the court no
longer has competency to correct this error by conducting a new trial using an
appropriate form of the special verdict question. Accordingly, we reverse.4
1
For ease of reading, we refer to the appellant in this confidential matter using a
pseudonym, rather than her initials.
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
3
This opinion was first released on April 12, 2022. Subsequently, Catherine moved this
court to reconsider its order reversing in part and remanding for a further hearing. After hearing
from both parties, we granted Catherine’s motion and withdrew our prior opinion.
4
Catherine also argues that she was denied due process because she was not given
particularized notice as to which standards under WIS. STAT. § 51.20(1)(a)2. the Outagamie County
Department of Health and Human Services intended to prove at trial in support of its petition to
extend her commitment.
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No. 2020AP2032
BACKGROUND
¶3 Catherine was first committed under WIS. STAT. ch. 51 in 2016 after
her paranoia, mania, and delusions stemming from her schizoaffective disorder
caused her family to fear for their safety. In addition, Catherine was found to be
dangerous as a result of threats she had made toward persons in the legal system.
¶4 As relevant to this appeal, an extension of Catherine’s commitment
was set to expire on May 8, 2020. On March 4, 2020, the Outagamie County
Department of Health and Human Services (“the County”) petitioned to extend
Catherine’s commitment for an additional year. The petition was supported by a
social worker’s letter explaining, in part, that Catherine was in outpatient treatment
for schizophrenia and discussing the nature of that treatment. The letter also stated
that Catherine lacked insight into her mental illness and that “it is believed” she
would “decompensate” and “become a proper subject for a [WIS. STAT. ch. 51]
commitment” if she were not recommitted. Catherine, represented by counsel,
requested a jury trial, and the single-day trial took place on August 18, 2020.5
¶5 At the close of evidence, the circuit court held a jury instruction and
verdict conference during which it informed the parties that it had added language
to question two of the special verdict. The original proposed special verdict
question was taken from the form recommended in WIS JI—CIVIL 7050 (2020), the
standard jury instruction at the time, and read: “[I]s the subject dangerous to herself
Ultimately, we reverse the orders on appeal on the issue of the verdict question, without
ordering further proceedings. As this issue is dispositive, we need not address the issue of notice.
See Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (court of
appeals need not address all issues raised by the parties if one is dispositive).
5
Catherine’s commitment expired on May 8, 2020, but both parties stipulated to delaying
her jury trial until August, 18, 2020, as a result of the COVID-19 pandemic.
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No. 2020AP2032
or to others?” The court changed the special verdict question, adding the modifier
“if not recommitted” to the recommended verdict question. Accordingly, the final
form of question two of the special verdict submitted to the jury read: “Is
[Catherine] dangerous to herself or to others if not recommitted?” The County
approved this language, but Catherine objected, claiming that the additional
language misstated the standard and failed to convey the primary question: whether
Catherine was currently dangerous. She argued that while the jury instructions
properly described the statutory dangerousness standards, the special verdict did not
and, therefore, was incorrect.
¶6 The circuit court overruled Catherine’s objection, noting, “I think this
is the first time in 13 years I’ve ever deviated from pattern jury instructions. But
that pattern jury instruction was really aimed at a commitment as opposed to a
recommitment. To me, [that] makes all the difference.” The court also quoted
language from the Wisconsin Judicial Benchbooks, stating:
If there is a substantial likelihood based on the subject’s
individual treatment record that the individual would be a
proper subject for commitment if treatment were withdrawn,
then—and I stress this—the subject is considered dangerous.
So if [she’s] not—if she’s not recommitted, the [C]ounty’s
position is she’s dangerous. And that’s what the case law
holds. And that’s what that decision holds—held. And
that’s—that’s in the jury instructions.
See WISCONSIN JUDICIAL BENCHBOOKS: PROBATE, GUARDIANSHIP, AND MENTAL
HEALTH, MH 1-42 (2020). The court read the instructions and modified special
verdict question to the jury. The jury answered “yes” to all three questions on the
special verdict—i.e., whether Catherine was mentally ill; whether she was
dangerous to herself or others if not recommitted; and whether she was a proper
subject for treatment. The court therefore entered an order extending Catherine’s
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No. 2020AP2032
involuntary commitment and an order for involuntary medication and treatment
during the recommitment term. Catherine now appeals.
DISCUSSION
I. Mootness
¶7 The recommitment order at issue in this appeal expired on August 18,
2021. As a result, we would ordinarily decline to consider the special verdict issue
before us as moot. “An issue is moot when its resolution will have no practical
effect on the underlying controversy.” State ex rel. Olson v. Litscher, 2000 WI App
61, ¶3, 233 Wis. 2d 685, 608 N.W.2d 425. Moot appeals are generally dismissed,
but courts have discretion to decide them under “exceptional or compelling
circumstances.” City of Racine v. J-T Enters. of Am., Inc., 64 Wis. 2d 691, 702,
221 N.W.2d 869 (1974).
¶8 The parties ask us to consider the issue on appeal because it fits into
multiple exceptions to the doctrine of mootness. This court may elect to address a
moot issue if: (1) the issue is of great public importance; (2) the constitutionality of
a statute is involved; (3) the issue arises often, making a definitive decision
necessary to guide circuit courts; (4) the issue is likely to arise again and needs to
be resolved to avoid uncertainty; or (5) the issue is “likely of repetition and evades
review.” See Marathon Cnty. v. D.K., 2020 WI 8, ¶19, 390 Wis. 2d 50, 937 N.W.2d
901.
¶9 We agree with both parties that the proper form of the special verdict
question fits into several established exceptions to the mootness doctrine. The
proper form of the special verdict question is an issue that will likely recur in future
recommitment trials, and therefore we should resolve the issue to prevent
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No. 2020AP2032
uncertainty.6 Further, this issue is of great public importance because the question
of dangerousness is the cornerstone of the jury’s analysis in a recommitment
hearing. Therefore, that analysis directly impacts whether a subject individual’s
liberty interest will be affected by an extension of his or her commitment. This issue
is also likely to evade review because commitments last for relatively short periods
of time and the appellate process can be lengthy. Accordingly, we elect to decide
the issue on its merits.
II. Special Verdict
¶10 Catherine argues that when the circuit court added the language “if
not recommitted” to the dangerousness question on the special verdict form, it
improperly changed the question of whether Catherine was currently dangerous to
whether she would become dangerous if not recommitted. This, Catherine argues,
is an error of “constitutional magnitude.”
¶11 “[T]he content of the special verdict remains within the discretion of
the circuit court[.]” Stuart v. Weisflog’s Showroom Gallery, Inc., 2008 WI 22, ¶12,
308 Wis. 2d 103, 746 N.W.2d 762. “[T]his court will not interfere with the special
verdict submitted, so long as all material issues of fact are covered by appropriate
questions, and so long as the form correctly and adequately covers the law that
applies to the case.” Id. (citations omitted). Whether a special verdict reflects an
accurate statement of the law is a question of law that we review de novo. City of
Milwaukee v. NL Indus., 2008 WI App 181, ¶83, 315 Wis. 2d 443, 762 N.W.2d
6The Wisconsin Supreme Court recently mandated that dangerousness findings in WIS.
STAT. ch. 51 recommitment proceedings be made with particularity and with reference to the
particular subsection(s) of WIS. STAT. § 51.20(1)(a)2. under which they are made. Langlade Cnty.
v. D.J.W., 2020 WI 41, ¶¶40, 42, 391 Wis. 2d 231, 942 N.W.2d 277. This new case law has not
yet been addressed in the context of a verdict question at trial, and thus it contributes to the
uncertainty that prompts us to address this issue, even though the issue is moot.
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No. 2020AP2032
757. We consider special verdicts in tandem with the associated jury instructions.
Z.E. v. State, 163 Wis. 2d 270, 276, 471 N.W.2d 519 (Ct. App. 1991).
¶12 We agree with Catherine that the special verdict question regarding
dangerousness was confusing and failed to ask the jury to determine whether
Catherine was currently dangerous. In a WIS. STAT. ch. 51 proceeding, a petitioner
has the burden to prove by clear and convincing evidence that a subject individual
is mentally ill, a proper subject for treatment, and dangerous. See WIS. STAT.
§ 51.20(1)(a), (13)(e). A petitioner may prove that a person is dangerous and
warrants commitment under any of the five standards set forth in § 51.20(1)(a)2.a.-
e. or, in the case of a recommitment, under those five standards in combination with
§ 51.20(1)(am). Portage Cnty. v. J.W.K., 2019 WI 54, ¶18, 386 Wis. 2d 672, 927
N.W.2d 509.
¶13 Importantly, in a recommitment proceeding, the petitioner has the
burden of proving that the subject individual is currently dangerous under WIS.
STAT. § 51.20(1)(a)2. See Langlade Cnty. v. D.J.W., 2020 WI 41, ¶34, 391 Wis. 2d
231, 942 N.W.2d 277. Under § 51.20(1)(am), if the subject individual is under a
commitment “immediately prior” to the extension proceedings, then the petitioner
may, as an alternative to the options outlined in § 51.20(1)(a)2.a.-e., prove
dangerousness by showing “a substantial likelihood, based on the subject
individual’s treatment record, that the individual would be a proper subject for
commitment if treatment were withdrawn.” Sec. 51.20(1)(am); see also J.W.K.,
386 Wis. 2d 672, ¶19. In essence, this provision removes the requirement that the
petitioner show recent acts or omissions in order to establish dangerousness in a
recommitment proceeding, which can be difficult to show for a person whose
symptoms are being effectively managed by his or her medication and treatment.
See J.W.K., 386 Wis. 2d 672, ¶19.
7
No. 2020AP2032
¶14 While WIS. STAT. § 51.20(1)(am) may alter the type of evidence
required, “[t]he alternate avenue of showing dangerousness … does not change the
elements or quantum of proof required. It merely acknowledges that an individual
may still be dangerous despite the absence of recent acts, omissions, or behaviors
exhibiting dangerousness.” J.W.K., 386 Wis. 2d 672, ¶24. Therefore, under any of
the five base standards in conjunction with § 51.20(1)(am), the petitioner is still
required to prove that the person is currently dangerous, despite the fact that the
person’s supervision and treatment have been effective such that no recent
dangerous acts have occurred. J.W.K., 386 Wis. 2d 672, ¶24.
¶15 The unmodified verdict question, as taken from the standard jury
instruction at the time of trial—i.e., “Is the subject dangerous to herself or to
others?”—asks whether the subject individual is currently dangerous. The circuit
court’s addition of the language “if not recommitted” plainly modified the question
by directing the jury to consider future events—i.e., whether Catherine would
become dangerous in the future if she were not recommitted. We agree with
Catherine that this language gave the jury conflicting and confusing information
about whether it was supposed to consider Catherine’s present status or conduct a
forward-looking analysis, the latter of which could be based on any number of
considerations divorced from the statutory focus on current dangerousness. The
jury should only have determined if Catherine was currently dangerous.
¶16 The statutory distinction between basing a commitment on an
individual’s current dangerousness rather than a possibility that the individual might
become dangerous in the future is one grounded in constitutional principles. The
United States Supreme Court 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). It has further held that
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No. 2020AP2032
a commitment cannot continue after the constitutional basis for it ceases to exist.
Any findings of mental illness and dangerousness must therefore be current, not
retrospective. See Foucha v. Louisiana, 504 U.S. 71, 77-78 (1992). By that same
token, a commitment cannot be valid if it occurs before the constitutional basis for
it exists. If an individual is not yet dangerous, then the individual fits into the well-
established principle that “there is still no constitutional basis for
confining … persons involuntarily if they are dangerous to no one.” O’Connor v.
Donaldson, 422 U.S. 563, 575 (1975).
¶17 The Wisconsin statutory scheme in WIS. STAT. § 51.20 reflects these
constitutional principles. The recommitment analysis narrowly assesses current
dangerousness based on recent acts or specific instances of past dangerous behavior.
The Supreme Court has recognized previous acts of violent behavior as being “an
important indicator of future violent tendencies.” See Heller v. Doe, 509 U.S. 312,
323 (1993); see also Kansas v. Hendricks, 521 U.S. 346, 357 (1997). This statutory
scheme prevents an individual from losing his or her liberty based on some
dangerous event that might happen, or even is likely to happen, but for which there
is no basis in concrete acts.
¶18 Although we consider special verdict questions in conjunction with
the jury instructions, doing so does not remedy the defect in the special verdict
question in this case. See Z.E., 163 Wis. 2d at 276. The jury instructions listed the
dangerousness standards under WIS. STAT. § 51.20(1)(a)2., using language
describing current dangerousness. However, because the special verdict question
asked the jury to assess future dangerousness—an analysis that is not part of the
standards under § 51.20(1)(a)2.—the jury instructions only served to confuse, rather
than clarify, the ultimate question for the jury.
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No. 2020AP2032
¶19 The County argues that the added language comports with WIS. STAT.
§ 51.20(1)(am), which is a future-looking inquiry in the sense that it asks the jury to
consider whether there is a substantial likelihood that a person would be a proper
subject for commitment if treatment were withdrawn.7 The County fails to discern,
however, that the question of whether 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” under § 51.20(1)(am) is a very
different question from the language at issue in the circuit court’s modified special
verdict question, which asked whether Catherine would be dangerous to herself or
to others “if not recommitted.”
¶20 Although WIS. STAT. § 51.20(1)(am) asks whether the subject
individual would be a “proper subject for commitment if treatment were
withdrawn,” the overarching question under § 51.20(1)(am) is still whether the
person is currently dangerous. The circuit court’s modified language fails to reflect
this important nuance. The modified language instead diverts from the analysis
under para. (am), which addresses persons who have not recently committed
dangerous acts because they are currently being medicated, and intentionally
focuses on those individuals’ specific past actions and treatment records as
predictors of whether they would become proper subjects for commitment if
treatment were withdrawn. Without the narrow focus of para. (am) on specific past
treatment history and concrete dangerous acts, a jury could decide that Catherine
would be dangerous if not recommitted for any number of improper reasons that are
not a part of the analysis under § 51.20, including the jury’s perception of her
7
The County also seems to assert that Catherine argues the controversy in this case was
not fully tried. Catherine does not, however, make that contention in her brief-in-chief, and she
explicitly rejects the notion that she does so in her reply brief. Accordingly, we decline to address
the County’s arguments on that issue.
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No. 2020AP2032
disorder generally; behavioral history that was not dangerous or exhibited by
specific acts; or speculation regarding her character alone. The circuit court’s
modification opens the door too widely to any number of considerations divorced
from the proper statutory analysis. In addition, § 51.20(1)(am) asks the jury to
determine whether there is a “substantial likelihood” that the person would become
a proper subject for commitment if treatment were withdrawn. The special verdict
language at issue here removed that key modifying language, further distorting the
proper dangerousness analysis.
¶21 We reject the County’s assertion that we can infer the jury understood
the special verdict question simply because it did not submit any questions to the
circuit court during its deliberations. The special verdict question was misleading
and was an incorrect statement of the law, even if the jury was unaware that it was
performing a misguided analysis.
¶22 In addition, the standard presented in the modified special verdict
question makes it difficult for a reviewing court to determine the statutory basis for
the jury’s decision. Requiring the jury to determine the specific basis for a
committee’s current dangerousness comports with the specificity requirements in
D.J.W.—which require that the exact standard supporting a recommitment under
WIS. STAT. § 51.20(1)(a)2. be clear. D.J.W., 391 Wis. 2d 231, ¶40.
¶23 We note that the Wisconsin Civil Jury Instruction Committee recently
created a recommended special verdict form for recommitment cases, set forth in
WIS JI—CIVIL 7050A (2021). The new verdict question asks, “Is (respondent)
dangerous to [(himself) (herself)] or to others?” If the jury answers that question
“yes,” the verdict form then lists the standards under WIS. STAT.
§ 51.20(1)(a)2.a.-e., allowing the jury to select one or more of those standards on its
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No. 2020AP2032
own or in combination with § 51.20(1)(am) as the basis for its determination of
dangerousness. We recommend that in future jury trials involving recommitment
proceedings, circuit courts use a special verdict question with this level of specificity
so that the jury conducts the proper statutory analysis and may clearly specify the
basis for its determination of current dangerousness, in order to avoid confusion.
¶24 For all of the foregoing reasons, we conclude that the special verdict
question regarding dangerousness improperly stated the legal standard at issue, was
misleading, and was, therefore, inherently prejudicial to Catherine. Because the
recommitment order on appeal has expired, the circuit court no longer has
competency to conduct a new trial using an appropriate form of the special verdict
question.8 See Waukesha Cnty. v. E.J.W., 2021 WI 85, ¶40 n.10, 399 Wis. 2d 471,
966 N.W.2d 590. Accordingly, we reverse.
By the Court.—Orders reversed.
8
Catherine is currently subject to a more recent recommitment order. The reversal of the
orders at issue in this appeal does not affect the validity of any of Catherine’s separate, subsequent
recommitments. See Portage Cnty. v. J.W.K., 2019 WI 54, ¶21, 386 Wis. 2d 672, 927 N.W.2d 509(determining that the reversal of a recommitment order “does not retroactively deprive the circuit
court that issued a subsequent commitment order of competency”).
12