Sauk Cnty. v. S.A.M. (In re S.A.M.)

• Decision Date: 23 June 2022
• Docket Number: 2019AP1033
• Citation: 402 Wis.2d 379,975 N.W.2d 162,2022 WI 46
• Parties: In the MATTER OF the Mental COMMITMENT OF S.A.M.: Sauk County, Petitioner-Respondent, v. S.A.M., Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

402 Wis.2d 379

975 N.W.2d 162

2022 WI 46

In the MATTER OF the Mental COMMITMENT OF S.A.M.:Sauk County, Petitioner-Respondent,

v.S.A.M., Respondent-Appellant-Petitioner.

No. 2019AP1033

Supreme Court of Wisconsin.

Oral Argument: February 28, 2022

Opinion Filed: June 23, 2022

For the respondent-appellant-petitioner, there were briefs filed by Elizabeth G. Rich and Rich Law SC, Plymouth. There was an oral argument by Elizabeth G. Rich.

For the petitioner-respondent there was a brief filed by Douglas B. Raines and von Briesen & Roper, S.C., Milwaukee. There was an oral argument by Douglas B. Raines.

An amicus curiae brief was filed by Colleen D. Ball, assistant state public defender, with whom on the brief was Kelli S. Thompson, state public defender, for the Office of the State Public Defender. There was an oral argument by Colleen D. Ball.

KAROFSKY, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, HAGEDORN, and DALLET, JJ., joined. ZIEGLER, C.J., filed a concurring/dissenting opinion, in which ROGGENSACK and REBECCA GRASSL BRADLEY, JJ., joined.

JILL J. KAROFSKY, J.

¶1 This case involves the ability of involuntarily committed persons to receive appellate review of their commitment orders. Frequently, appellate courts dismiss these appeals as moot because the underlying commitment order expires before the court issues a decision on its merits. Such routine dismissals result in the validity of these liberty-depriving orders largely evading review.

¶2 S.A.M. is among those committed citizens whose appeal went unaddressed because the order extending his commitment (also called "recommitment") expired before the court of appeals could decide the merits of his appeal. He argues the court of appeals erred in dismissing his appeal as moot because either the order's ongoing collateral consequences render it not moot or an exception to mootness applies. He further asks that if we rule in his favor on the mootness issue, that we then review the merits of his due-process and sufficiency-of-the-evidence challenges.

¶3 Though in Portage County v. J.W.K. we concluded that the expiration of the recommitment order rendered the appeal moot, that holding was expressly "limited to situations where ... no collateral implications of the commitment order are raised." 2019 WI 54, ¶28 n.11, 386 Wis. 2d 672, 927 N.W.2d 509. Collateral consequences having been raised here, we hold that at least two such consequences render an appeal of an expired recommitment order not moot: (1) the restriction of one's constitutional right to bear arms; and (2) the liability for the cost of one's care. On the merits, we hold that S.A.M.’s due-process and sufficiency-of-the-evidence challenges fall short. For those reasons, we reverse the court of appeals’ dismissal of S.A.M.’s appeal and affirm S.A.M.’s recommitment order.

I. BACKGROUND

¶4 Wisconsin's legal framework governing involuntary mental-health commitments is important to understanding this case. Before initially committing a person to the state or county's care, the government must prove by clear and convincing evidence that the person is: (1) mentally ill;¹ (2) a proper subject for treatment; and (3) currently dangerous under at least one of five standards. Wis. Stat. § 51.20(1)(a), (13)(e) (2019-20).² Those five standards are:

• First Standard: there is a substantial probability of physical harm to one's self evidenced by recent threats of or attempts at suicide or serious bodily harm;

• Second Standard: there is a substantial probability of physical harm to others evidenced by recent homicidal or other violent behavior, or a recent overt act, attempt or threat to do serious physical harm that placed others in reasonable fear of serious physical harm;

• Third Standard: there is a substantial probability of physical impairment or injury to one's self or others evidenced by a pattern of recent acts or omissions manifesting impaired judgment, and there is either no reasonable provision for one's protection in the community or a reasonable probability that one will not avail himself or herself of those services; • Fourth Standard: there is a substantial probability that death, serious physical injury, serious physical debilitation, or serious physical disease will imminently ensue that makes one unable to satisfy basic needs as evidenced by recent acts or omissions, and there is either no reasonable provision for one's treatment and protection in the community or a reasonable probability that one will not avail himself or herself of those services; and

• Fifth Standard: (1) there is a substantial probability both that one needs care or treatment to prevent further disability or deterioration and that, if left untreated, one will lack necessary services and suffer severe mental, emotional, or physical harm that will result in the loss of one's ability to function independently in the community or the loss of cognitive or volitional control over one's thoughts or actions; (2) either (a) an incapability of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives after such were explained, or (b) a substantial incapability of applying such an understanding to one's mental illness to make an informed choice as to whether to accept or refuse medication or treatment; and (3) either no reasonable provision for one's care or treatment in the community or a reasonable probability that one will not avail himself or herself of those services.

§ 51.20(1)(a)2.³ Upon sufficient evidence of both a treatable mental illness and at least one of these forms of dangerousness, the circuit court must order the person initially committed for no more than six months. § 51.20(13)(a), (g)1. It must then also issue a firearms ban, i.e. "order the individual not to possess a firearm, [and] order the seizure of any firearm owned by the individual." § 51.20(13)(cv)1.

¶5 The government may thereafter seek to extend the initial commitment. Recommitment again requires clear and convincing evidence of the same three elements required for the initial commitment: mental illness, treatability, and current dangerousness under at least one of the five standards outlined above. Recommitment proceedings can differ from initial commitment proceedings in one significant way. In an initial commitment proceeding, the government may prove dangerousness only with evidence of recent acts, omissions, or behavior. In a recommitment proceeding, though, the government may alternatively prove dangerousness by "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 [under one of the five dangerousness standards] if treatment were withdrawn." § 51.20(1)(am). If the government presents clear and convincing evidence that the committed person remains mentally ill, treatable, and dangerous under one of the five standards (whether by recent conduct or via the § 51.20(1)(am) alternative showing), then the court must order that person recommitted for a period not to exceed one year, along with another firearms ban. § 51.20(13)(cv)1., (g)1. & (g)3.

¶6 Given these orders’ limited duration, timely appellate review before their expiration proves difficult. The court of appeals reports that between 2018 and 2020, it issued no decision regarding an initial six-month commitment before the order expired.

Recommitment orders, which last for generally one year, fared somewhat better; the court of appeals decided 40 percent of those appealed before their expiration. Though the reasons for delay vary, rarely does fault lie with the person committed—as is certainly the case for S.A.M.

¶7 S.A.M. is diagnosed with bipolar disorder

with psychotic features. In late 2017, S.A.M. was subjected to an emergency detention after his father reported that he made statements about wanting to die. His father informed the responding sheriff that S.A.M. had been homeless for some time. S.A.M. displayed signs of malnourishment and suffered from trench foot due to not changing his shoes for long periods of time. An examining psychiatrist noted that S.A.M. had discontinued taking previously prescribed medication and had a long history of such noncompliance. S.A.M. admitted to acts of self-harm and substance abuse, predominantly alcohol but illicit drugs as well. In January 2018, in statements to his sister, S.A.M. threatened self-harm and told her he wanted to die. Based on this behavior, Sauk County ("the County") successfully petitioned to have S.A.M. involuntarily committed to its care for six months of compelled treatment. This initial commitment order included a firearms ban that would "remain in effect until lifted by the court" and survive the commitment order's expiration. S.A.M. did not appeal this initial commitment order.

¶8 Before the initial commitment order expired, the County petitioned to extend S.A.M.’s involuntary commitment. The petition contained two relevant representations from psychiatrist Dr. Linda DiRaimondo: (1) S.A.M. suffers from a "chronic mental disorder" (bipolar disorder

); and (2) though currently medication compliant, S.A.M. "has not been in the past when not on commitment and has regressed to an acute psychotic state and required hospitalization." On those bases, Dr. DiRaimondo opined that there is "a substantial likelihood, based on [S.A.M.’s] treatment record, that if treatment were withdrawn, [he] would regress and become a proper subject for commitment." The day before the recommitment trial, S.A.M. filed a motion asking, in part, for the circuit court⁴ to order the County to "elect under which standard of dangerousness it seeks to proceed" and preclude it "from presenting evidence as to other forms of dangerousness."

¶9 The circuit court addressed S.A.M.’s motion at the start of the trial. S.A.M. argued that the petition "clearly enunciated" only one method of proving...