Sheboygan County v. M.W. (In re M.W.), 2021AP6

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtANN WALSH BRADLEY, J.
Citation2022 WI 40
Decision Date10 June 2022
Docket Number2021AP6
PartiesIn the matter of the mental commitment of M.W. v. M.W., Respondent-Appellant-Petitioner. Sheboygan County, Petitioner-Respondent,

2022 WI 40

In the matter of the mental commitment of M.W.

Sheboygan County, Petitioner-Respondent,
v.

M.W., Respondent-Appellant-Petitioner.

No. 2021AP6

Supreme Court of Wisconsin

June 10, 2022


ORAL ARGUMENT: December 8, 2021

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 398 Wis.2d 632, 962 N.W.2d 275 (2021 - unpublished)

Circuit Court: Sheboygan County: Kent R. Hoffmann, Judge L.C. No. 2006ME163

For the respondent-appellant-petitioner there were briefs filed by Christopher B. Logel and Pinix Law, LLC, Milwaukee. There was an oral argument by Christopher B. Logel.

For the petitioner-respondent there was a brief filed by Kyle C. Lepak, assistant corporation counsel. There was an oral argument by Kyle C. Lepak, assistant corporation counsel.

An amicus curiae brief was filed by Colleen D. Ball, assistant state public defender and Kelli S. Thompson, state public defender for the Office of the Wisconsin State Public Defender.

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

ANN WALSH BRADLEY, J.

¶1 The petitioner, M.W., seeks review of an unpublished, authored decision of the court of appeals reversing the circuit court's order extending her involuntary commitment and remanding to the circuit court for

1

further proceedings.[1] She argues that the court of appeals erred by remanding to the circuit court, and that outright reversal is the proper remedy.

¶2 We are circumscribed in our review by the narrow issue presented. In Langlade County v. D.J.W., 2020 WI 41, ¶3, 391 Wis.2d 231, 942 N.W.2d 277, this court announced a new directive 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." The court of appeals here determined that the circuit court failed to make such findings and Sheboygan County (the County) has not requested review of that determination. What remains for our review is an issue of remedy. In D.J.W., we did not specify the remedy to be implemented when the circuit court runs afoul of the D.J.W. directive.

¶3 M.W. contends that outright reversal is the proper remedy for a D.J.W. violation. In contrast, the County asserts that it is more appropriate to remand the case to the circuit court for it to make the missing findings.

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¶4 We conclude that the recommitment order at issue here has expired and as a consequence the circuit court lacks competency to conduct any proceedings on remand. Therefore, reversal is the appropriate remedy in this case.

¶5 Accordingly, we reverse the decision of the court of appeals.[2]

I

¶6 M.W. has been under ch. 51 mental health commitment orders since 2006. In August of 2020, the County again filed a petition to extend her commitment.[3] Additionally, it sought an order for involuntary medication and treatment.

¶7 The circuit court held a hearing on the County's petition, at which three witnesses testified. Those witnesses called by the County were Dr. Marshall Bales, who examined M.W., and Emilee Sesing, a case worker assigned to M.W. Additionally, M.W. testified on her own behalf.

¶8 Ultimately, the circuit court granted the County's petition to extend M.W.'s commitment and entered an order for

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involuntary medication and treatment. It determined that M.W. suffers from a mental illness, is a proper subject for treatment, and that M.W. would be a proper subject for commitment if treatment were withdrawn.

¶9 The circuit court further concluded that M.W. is dangerous to herself or others. It supported this determination by referring to M.W.'s statement to Dr. Bales that she would not pursue treatment absent recommitment and to a recent incident where M.W. left a group home and traveled to New Mexico without her belongings or medications.

¶10 M.W. appealed the circuit court's recommitment order. She argued, among other things, that the circuit court failed to adhere to D.J.W.'s directive that it make specific factual findings with reference to the subdivision paragraph of Wis.Stat. § 51.20(1)(a)2. on which the recommitment is based.[4]

¶11 The court of appeals agreed with M.W. on this point and reversed the recommitment order. Sheboygan County v. M.W., No. 2021AP6, unpublished slip op. (Wis. Ct. App. May 12, 2021). It observed that "the record shows, and the County acknowledges that the circuit court failed to state the subdivision paragraph of Wis.Stat. § 51.20(1)(a)2. on which it based M.W.'s recommitment." Id., ¶10. Additionally, "in its ruling, the [circuit] court failed to clearly track the necessary elements

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of any particular subdivision paragraph and state how the evidence satisfied those elements." Id.

¶12 Finding "clarity and specificity . . . lacking in the [circuit] court's ruling in this case," the court of appeals refused to "engage in guesswork to determine whether the County provided sufficient evidence to satisfy the dangerousness requirement of [Wis. Stat. § 51.20(1)(a)2.]" Id. It further reasoned: "D.J.W. made it clear that it is not the job of an appellate court to try to piece together court comments like pieces of a jigsaw puzzle in an effort to figure out what the picture is." Id., ¶11.

¶13 After determining that a D.J.W. violation occurred, the court of appeals moved to briefly address the remedy for that violation. Citing a prior unpublished court of appeals opinion dealing with a similar issue, the court of appeals reversed and remanded to the circuit court with directions to follow the directive of D.J.W. Id., ¶14 (citing Rock Cnty. Dep't of Human Servs. v. J.E.B., No. 2020AP1954-FT, unpublished slip op., ¶27 (Wis. Ct. App. Apr. 7, 2021)). Further following the lead of the J.E.B. court, the court of appeals added:

If, on remand, and after further review of the evidence, D.J.W., and the five dangerousness standards in Wis.Stat. § 51.20(1)(a)2.a.-e., the circuit court again determines that the County has met its burden of showing current dangerousness under § 51.20(1)(a)2., then the court must "make specific factual findings with reference to the subdivision paragraph of Wis.Stat. § 51.20(1)(a)2. on which the recommitment is based" as required by D.J.W.
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M.W., No. 2021AP6, at ¶14 (quoting J.E.B., No. 2020AP1954-FT, at ¶27).

¶14 M.W. petitioned for this court's review of the remedy issue only. The County did not file a petition for cross-review of the court of appeals' conclusion that the circuit court violated D.J.W. and accordingly that issue was not presented to this court.

II

¶15 We are called upon to resolve a question of appellate remedy. The selection of the proper remedy on appeal is a question of law that we review independently. See State v. Lentowski, 212 Wis.2d 849, 853, 569 N.W.2d 758 (Ct. App. 1997). III

¶16 We begin with the necessary background regarding recommitment proceedings and the directive established by this court in D.J.W. Subsequently, we address the question raised in the petition for review, i.e. the proper appellate remedy for a D.J.W. violation.

A

¶17 In order to involuntarily commit a person pursuant to 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. Fond du Lac County 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. In an initial commitment proceeding, the "dangerousness" element can be proven through any of five standards set forth by

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statute. State v. Dennis H., 2002 WI 104, ¶14, 255 Wis.2d 359, 647 N.W.2d 851; Wis.Stat. § 51.20(1)(a)2.[5]

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¶18 Upon the impending expiration of an initial commitment, a petitioner may seek to extend the commitment for a period not to exceed one year. Wis.Stat. § 51.20(13)(g)1., (13)(g)3.; D.J.W., 391 Wis.2d 231, ¶31. To prevail in a recommitment proceeding, the petitioner must demonstrate the same three elements necessary for the initial commitment. Waukesha County v. J.W.J., 2017 WI 57, ¶20, 375 Wis.2d 542, 895 N.W.2d 783.

¶19 However, in a recommitment Wis.Stat. § 51.20(1)(am) provides an additional manner of proving dangerousness not available in the initial commitment. "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

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of extension proceedings . . . ." Portage County v. J.W.K., 2019 WI 54, ¶19, 386 Wis.2d 672, 927 N.W.2d 509.

¶20 Pursuant to Wis.Stat. § 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 . . . 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 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.

This pathway to a recommitment "recognizes that an individual receiving treatment may not have exhibited any recent overt acts or...

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