Milwaukee County v. E. C. H.

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.
January 14, 2020
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. 2019AP772 Cir. Ct. No. 2017ME987

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE COMMITMENT OF E.C.H.:

MILWAUKEE COUNTY,

PETITIONER-RESPONDENT,

V.

E.C.H.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
DAVID L. BOROWSKI, Judge. Dismissed.
No. 2019AP772

¶1 DONALD, J.1 E.C.H. appeals an order of the circuit court granting
a WIS. STAT. ch. 51 extension order. E.C.H. has since been released from his
commitment. Accordingly, we dismiss this appeal as moot.

BACKGROUND

¶2 On September 15, 2017, E.C.H. was committed to inpatient mental
health treatment pursuant to WIS. STAT. ch. 51 for a period of six months at the
Milwaukee County Behavioral Health Division (BHD). On or around
November 10, 2017, E.C.H. was released from the BHD to outpatient status. On
March 9, 2018, Milwaukee County filed a motion to extend E.C.H.’s original
commitment order, alleging that E.C.H. continued to be a proper subject for
mental health treatment.

¶3 On March 14, 2018, the circuit court held an extension hearing
where multiple witnesses testified. Anne Wilkowski, a registered nurse for My
Choice Family Care, an elective benefit for the Medicaid State Insurance Program,
testified that E.C.H. had been enrolled in the program since 2012 or 2013.
Wilkowski stated that E.C.H. was diagnosed with bipolar disorder and that
E.C.H’s symptoms are typically manic. Wilkowski stated that E.C.H. is
vulnerable to being taken advantage of and that E.C.H. also experiences auditory
hallucinations. Wilkowski also testified that E.C.H. is irregular with his
medication because he believes his medication is “killing him.” Wilkowski also
testified that after E.C.H.’s release in November 2017, E.C.H. was homeless and
would often “couch surf[] with strangers he’s met on the street.”

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.

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No. 2019AP772

¶4 Dr. Charles Rainey, a forensic psychiatrist appointed by the circuit
court to evaluate E.C.H., testified that E.C.H. had schizoaffective disorder bipolar
type, which Dr. Rainey classified as a treatable mental health condition.
Dr. Rainey stated that E.C.H.’s symptoms include hallucinations, grandiose
delusions, and disorganized thoughts. Dr. Rainey testified that E.C.H.’s particular
medication “helps with his hallucinations and with his delusions, both the paranoid
and the grandiose, and it also functions as a mood stabilizer.” Dr. Rainey stated
that E.C.H. would be a proper subject for commitment if treatment were
withdrawn, telling the circuit court that his opinion was based on E.C.H.’s
behavior following his previous discharge. Specifically, that E.C.H. “was given a
place to live at Crisis and he walked away.” Dr. Rainey also stated that E.C.H.
cannot articulate why he does not trust his medications, only stating that the
medications are “poison” and are “killing him.”

¶5 E.C.H. also testified, telling the circuit court that he did not suffer
from a mental illness, did not need medication, and did not want to remain
committed. E.C.H. told the circuit court that he had previously attempted suicide
and admitted to delusions, but stated that the delusions resulted from lack of sleep
and nutrition. E.C.H. told the circuit court that he was homeless and would house
hop. E.C.H. also told the circuit court that he was kicked out of one of the homes
he stayed at because of “magical bullshit around [him].”

¶6 The circuit court found that E.C.H. had a treatable mental illness and
that E.C.H. would be a proper subject for commitment if treatment were
withdrawn. Specifically, the circuit court stated:

He has presented dangerous behaviors, at least
dangerous to himself. He’s been homeless. He’s not been
taking care of himself. He’s not been taking his
medications, all of which could make his life and his

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No. 2019AP772

functioning better. Being homeless is a physical danger to
himself, including it’s still basically winter and you
encounter people that can be a threat to your health, safety
and welfare.

The circuit court ordered an extended commitment for twelve months. E.C.H.’s
commitment order underlying this appeal expired on March 14, 2019. The County
informed this court that on July 3, 2019, a new and subsequent commitment order
was entered for E.C.H. That order is not on appeal.

DISCUSSION

¶7 On appeal, E.C.H. contends that the circuit court did not make an
appropriate finding of dangerousness, pursuant to WIS. STAT. § 51.20(1)(am).
Specifically, E.C.H. contends that the circuit court erroneously equated E.C.H.’s
homelessness with dangerousness. The County contends that because the
commitment order underlying this appeal has expired, this appeal is moot. We
agree.

¶8 Mootness of a legal action or issue presents a question of law for our
de novo review. See PRN Assocs. LLC v. DOA, 2009 WI 53, ¶25, 317 Wis. 2d
656, 766 N.W.2d 559. An action or issue is moot when its determination “cannot
have any practical legal effect upon a then existing controversy.” Winnebago Cty.
v. Christopher S., 2016 WI 1, ¶31, 366 Wis. 2d 1, 878 N.W.2d 109 (citation
omitted). Absent special exceptions, we decline to decide moot issues. See State
ex rel. Riesch v. Schwarz, 2005 WI 11, ¶12, 278 Wis. 2d 24, 692 N.W.2d 219.

¶9 E.C.H. argues that his appeal is not moot because of multiple
collateral consequences; specifically, E.C.H. contends that: (1) there is a social
stigma associated with involuntary commitment; (2) he is subject to a firearms

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No. 2019AP772

ban; and (3) there is a monetary liability associated with WIS. STAT. ch. 51
commitments. We are not convinced by E.C.H.’s arguments.

¶10 First, we recognize the impact that the social stigma associated with
an involuntary commitment can have on an individual. However, at issue in this
appeal is the order extending E.C.H.’s commitment—not the initial commitment
order. Any social stigma E.C.H. would potentially endure stems from his initial
commitment, not from an extension order. Moreover, E.C.H. has not alleged that
he has suffered from any particular stigma associated with either his initial
commitment or the extension of his commitment.

¶11 Second, a vacatur of the extension order underlying this appeal
would not impact the firearms ban E.C.H. complains of. E.C.H. has two separate
commitment orders that would leave him in the same situation. Accordingly,
vacating this extension order would have no practical legal effect on E.C.H.’s
firearm restriction.

¶12 Finally, as to E.C.H.’s alleged monetary liability, we conclude that
E.C.H. has not shown an actual monetary liability for which he has been held
responsible. E.C.H.’s argument is hypothetical. We decline to address this
argument further.

¶13 Moreover, E.C.H. ignores the fact that vacating the extension order
is not the equivalent of expunging the order. See Waukesha Cty. v. S.L.L., 2019
WI 66, ¶40, 387 Wis. 2d 333, 929 N.W.2d 140. In other words, even if we agreed
that the circuit court erred in granting the extension order and we vacated the
order, the order would “still be a matter of record; it would simply have no
operative effect.” See id. In other words, vacating E.C.H.’s now-expired
extension order would have no practical effect. Whether we affirm the circuit

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No. 2019AP772

court or vacate the order, E.C.H. remains released from inpatient treatment
(pursuant to the order on appeal) and the extension order would remain a matter of
record.

¶14 E.C.H. also contends that his appeal, despite the expiration of the
extension order, warrants a decision on the merits by this court because he has
demonstrated that the facts of his case fall within the five specific circumstances in
which we review otherwise moot issues. See State v. Leitner, 2002 WI 77, ¶14,
253 Wis. 2d 449, 646 N.W.2d 341.2 We disagree. E.C.H. challenges the circuit
court’s factual finding of dangerousness. Such a challenge is “necessarily [a] fact-
bound inquir[y] that will vary from case to case.” See S.L.L., 387 Wis. 2d 333,
¶41. Therefore, a decision in this case would not provide the type of guidance for
circuit courts that E.C.H. requests, “nor would it preclude uncertainty in
evaluation of [factual findings] in other cases.” See id. Accordingly, there is no
reason to deviate from the mootness doctrine in E.C.H.’s appeal. See id.

¶15 For the foregoing reasons, we dismiss this appeal as moot.

2
State v. Leitner, states:

[The court] will retain a matter for determination although that
determination can have no practical effect on the immediate
parties: Where the issues are of great public importance; where
the constitutionality of a statute is involved; where the precise
situation under consideration arises so frequently that a definitive
decision is essential to guide the trial courts; where the issue is
likely to arise again and should be resolved by the court to avoid
uncertainty; or where a question was capable and likely of
repetition and yet evades review because the appellate process
usually cannot be completed and frequently cannot even be
undertaken within the time that would have a practical effect
upon the parties.

Id., 2002 WI 77, ¶14, 253 Wis. 2d 449, 646 N.W.2d 341 (citation omitted.)

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No. 2019AP772

By the Court.—Appeal dismissed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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