Rock County v. R. J.

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.
August 13, 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. 2020AP93 Cir. Ct. No. 2019ME73

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN THE MATTER OF THE MENTAL COMMITMENT OF R. J.:

ROCK COUNTY,

PETITIONER-RESPONDENT,

V.

R. J.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Rock County:
DANIEL T. DILLON, Judge. Affirmed.
No. 2020AP93

¶1 GRAHAM, J.1 R.J. was involuntary committed for treatment for six
months pursuant to WIS. STAT. § 51.20, and he was subsequently recommitted for
a period of one year. In this appeal of his initial commitment, R.J. argues that the
County failed to meet its burden to prove that he was dangerous. I conclude that
this appeal is moot and decline to reach its merits; therefore, I affirm.

BACKGROUND

¶2 One night in March of 2019, a woman called Janesville police to
report that she had nearly hit a man who was standing in the middle of a dimly lit
street. When police responded, they found R.J., a man they knew to be homeless,
walking back and forth across the street. R.J. told the officers that he was trying to
escape from snipers sent by his prior landlord. I refer to this incident as the
“traffic incident” throughout this opinion.

¶3 Based on the traffic incident and another incident earlier the same
day in which he made similar statements in a church, the County detained R.J. on
an emergency basis under WIS. STAT. § 51.15(1). It then sought to involuntarily
commit him for six months pursuant to WIS. STAT. § 51.20. To commit an
individual under that statute, the County must prove by clear and convincing
evidence that the individual is mentally ill, a proper subject for treatment, and
dangerous. See § 51.20(1)(a). At a hearing held a few days later, the circuit court
determined that there was probable cause to support a commitment based on the
testimony of one of the officers who responded to the traffic incident, and also on

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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the testimony of a physician who had examined R.J. The matter then proceeded to
a bench trial.

¶4 At trial, the County presented the expert testimony of two doctors
who had met with R.J. while he was detained. The first witness, Dr. Leslie Taylor,
had examined R.J. and reviewed his hospital records. She testified that R.J.
suffered from an unspecified psychotic disorder and that his condition could be
improved by medication that he would not voluntarily take if released. As to
dangerousness, Dr. Taylor testified that R.J. “would certainly be able to” satisfy
his basic health needs, but that he “probably would not be safe in the community”
because “he would likely not be able to figure out where to go to stay in a hotel or
how to buy food or where he would get money.” Although she had no firsthand
knowledge of the traffic incident that precipitated R.J.’s detention, she testified
about her understanding of what had occurred. R.J.’s counsel did not object to this
testimony as hearsay, and in fact questioned Dr. Taylor about the traffic incident.

¶5 The County also called Dr. James Black, who had not examined R.J.
because R.J. had refused his interview request. Dr. Black’s testimony was based
on his brief initial encounter with R.J. and his review of R.J.’s medical records.
Like Dr. Taylor, Dr. Black testified that he believed R.J. was mentally ill, a proper
subject for treatment, and dangerous. Also like Dr. Taylor, Dr. Black testified
about the traffic incident despite a lack of firsthand knowledge. Again, R.J.’s
counsel did not object to this testimony and instead questioned Dr. Black about the
incident. Finally, Dr. Black testified about an incident several months earlier in
Winnebago where R.J. had “gotten into an altercation with someone in public”;
this incident had led to a prior commitment proceeding that was ultimately
dismissed.

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¶6 The County offered each doctor’s report into evidence. Both reports
contained secondhand accounts of the traffic incident, but R.J. did not object to the
admission of either report. Both were received.

¶7 After the close of the evidence, R.J argued in closing that the County
had failed to meet its burden to prove that he was dangerous. He explained that
the only facts about the traffic incident came from the experts’ secondhand
accounts, and he cited S.Y. v. Eau Claire Cty., 156 Wis. 2d 317, 327, 457 N.W.2d
326 (Ct. App. 1990) for the proposition that the expert accounts were hearsay and
therefore “inadmissible” to prove dangerousness. In its oral ruling, the circuit
court appeared to characterize this argument as a “hearsay objection” and stated
that it was “well taken.” Nevertheless, the court determined that there was “ample
evidence” to conclude that R.J. was dangerous “without resorting to the hearsay
concern” that R.J. had raised. The court ordered R.J. to be committed for a period
of six months.

¶8 The appeal of the initial commitment was significantly delayed.2
Meanwhile, several months into the initial commitment, R.J. was transferred from
an inpatient to an outpatient program, and soon after the transfer, he went missing.
When located weeks later, he allegedly had stopped taking his antipsychotic
medication, had become “increasingly paranoid and agitated,” and threatened to
kill hospital staff. The County petitioned for a one-year recommitment, which the
court granted in September 2019.

2
We extended R.J.’s appeal deadlines twice, first due to the State Public Defender’s
difficulties finding appellate counsel to represent R.J., then again due to his appointed appellate
counsel’s difficulties contacting him. R.J.’s notice of appeal was filed in January 2020, and by
that time, his initial commitment had expired.

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No. 2020AP93

¶9 R.J. now appeals his initial commitment order, arguing that the
County failed to meet its burden to show dangerousness. R.J. did not appeal the
recommitment order, which extends through September 2020.

DISCUSSION

¶10 In an involuntary commitment proceeding, the County must prove
by clear and convincing evidence that the individual is mentally ill, a proper
subject for treatment, and dangerous. WIS. STAT. § 51.20(1)(a). To prove
dangerousness in an initial commitment, the County must satisfy at least one of
five standards set forth in § 51.20(1)(a)(2). Here, the County argued that R.J. was
a danger to himself under § 51.20(1)(a)2.c, which requires proof of “such impaired
judgment, manifested by evidence of a pattern of recent acts or omissions, that
there is a substantial probability of physical impairment or injury to [the
individual] or other individuals.”

¶11 R.J. argues that the County failed to introduce sufficient evidence to
prove dangerousness under WIS. STAT. § 51.20(1)(a)2.c. R.J.’s argument is based
on his premise that his trial counsel “objected” to the doctors’ testimony about the
traffic incident and the circuit court “correctly concluded that the doctors’
testimony” about that incident was “inadmissible hearsay.” Without admissible
evidence of this incident, R.J. argues, the County failed to prove a pattern of recent
acts showing that he was dangerous. He also argues that the County failed to
prove that there was a “substantial probability” that his impaired judgment would
result in his physical impairment or injury. He develops no argument that the

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No. 2020AP93

County still failed to meet its burden to prove dangerousness even if evidence of
the traffic incident was properly admitted.3

¶12 For reasons explained below, I conclude that R.J.’s appeal is moot.
Accordingly, I do not address his sufficiency argument beyond noting that it
appears to be based at least in part on a misunderstanding of the record. It is true
that neither doctor had firsthand knowledge of the traffic incident, but it is not true
that R.J’s trial counsel objected to admission of the doctors’ secondhand accounts
of this incident. To the contrary, the circuit court received this evidence without
objection, both through the doctors’ testimony and through their written reports.
To be sure, R.J.’s counsel argued in closing that this evidence was “inadmissible
hearsay,” but this argument cannot properly be characterized as an objection to its
admission. By that time, the evidence had long since been admitted without
objection,4 and R.J.’s own counsel even questioned the doctors about the traffic
incident. Puzzlingly, R.J. appears to contend that testimony that he himself
elicited should be disregarded as inadmissible.

¶13 Having made these observations, I now turn to the County’s
argument that R.J.’s appeal is moot. “An issue is moot when its resolution will
have no practical effect on the underlying controversy.” PRN Assocs. LLC v.

3
In fact, R.J. asserts that “perhaps the county could have met its burden” if it had
“presented a witness who had firsthand knowledge” of that incident.
4
See Allen v. Allen, 78 Wis. 2d 263, 270, 254 N.W.2d 244 (1977) (“A failure to make a
timely objection constitutes a [forfeiture] of the objection.”). Although the circuit court described
R.J.’s argument as a “hearsay objection” and at times suggested that it would ignore the doctors’
hearsay accounts of the traffic incident, it is not clear to me that the court took the unusual step of
excluding evidence after it had already been admitted. Had it done so, the County would have
been unfairly deprived of the opportunity to correct any error. See, e.g., Virgil v. State, 84 Wis.
2d 166, 193-94, 267 N.W.2d 852 (1978) (one reason why objections must be timely is to allow
the opportunity to correct error).

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No. 2020AP93

State, Dep’t of Admin., 2009 WI 53, ¶25, 317 Wis. 2d 656, 766 N.W.2d 559.
Appellate courts generally decline to address issues that are moot unless review is
nevertheless warranted based on an exception to the mootness doctrine.5 See
Marathon Cty. v. D.K., 2020 WI 8, ¶19, 390 Wis. 2d 50, 937 N.W.2d 901. For
the reasons explained below, I conclude that R.J.’s sufficiency challenge is moot
and decline to address it.

¶14 The maximum length of an initial commitment is six months; after
that, the commitment expires unless the county successfully petitions for
recommitment. WIS. STAT. § 51.20(13)(g)1. Each subsequent recommitment may
last up to one year. Id. Because commitment orders are relatively short in
duration, it is often the case that an order has already expired by the time the
appellate court has a chance to decide the appeal. See Waukesha Cty. v. S.L.L.,
2019 WI 66, ¶16, 387 Wis. 2d 333, 929 N.W.2d 140. There are two possibilities
at that point: either the individual has been released from the involuntary
commitment, see D.K., 390 Wis. 2d 50, or the individual has been recommitted
pursuant to a new order, see Portage Cty. v. J.W.K., 2019 WI 54, ¶29, 386 Wis. 2d
672, 927 N.W.2d 509. Accordingly, mootness is often a central issue in appeals of
commitment orders, and appellate courts frequently address whether such orders
are moot and the exceptions to the doctrine in this context. Three recent decisions

5
Our cases generally recognize five exceptions: “(1) the issue is of great public
importance; (2) the issue involves the constitutionality of a statute; (3) the issue arises often and a
decision from this court is essential; (4) the issue is likely to recur and must be resolved to avoid
uncertainty; or (5) the issue is likely of repetition and evades review.” Marathon Cty. v. D.K.,
2020 WI 8, ¶19, 390 Wis. 2d 50, 937 N.W.2d 901.

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No. 2020AP93

of our supreme court addressing these topics are particularly relevant to this
appeal, and I briefly summarize those decisions here.6

¶15 In J.W.K., the court considered a scenario in which the committed
individual had been twice recommitted after the expiration of the initial
commitment order. Id., ¶13 & n.5. J.W.K. appealed the first of the recommitment
orders. His notice of appeal was significantly delayed, and by the time he filed it,
the first recommitment order was no longer in effect and had been replaced by the
second recommitment order, which he did not appeal. Id., ¶¶6-8, 13.

¶16 J.W.K. argued that the evidence was insufficient to enter the first
recommitment order, and that his appeal was not moot because “a recommitment
order is merely a continuation of the initial commitment and creates a chain
linking each prior commitment order to any extension that follows it.” Id., ¶15.
By J.W.K.’s reasoning, a successful challenge to his first recommitment order
would render any subsequent orders invalid. Id. The court rejected this argument.
It concluded that the initial commitment and each subsequent commitment is
“independently [] based upon current, dual findings of mental illness and
dangerousness; accordingly, the sufficiency of the evidence supporting prior
orders has no impact on any subsequent order.” Id., ¶21; see also id., ¶24 (“Each
extension hearing requires the County to prove the same elements with the same
quantum of proof required for the initial commitment.”). On that basis, it

6
Many other appellate decisions have also addressed mootness in commitment appeals.
See, e.g., Waukesha Cty. v. S.L.L., 2019 WI 66, 387 Wis. 2d 333, 929 N.W.2d 140 (concluding
that three issues in an appeal of a commitment order were moot, but choosing to reach the merits
of two of those issues); Christopher S. v. Winnebago Cty., 2016 WI 1, ¶32, 366 Wis. 2d 1, 878
N.W.2d 109 (concluding that an appeal of a commitment order was moot but choosing to reach
the merits); G.S. v. State, 118 Wis. 2d 803, 348 N.W.2d 181 (1984) (concluding that an appeal of
an involuntary commitment and medication order was moot and declining to reach the merits).

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concluded that J.W.K.’s appeal of the first recommitment order was moot. Id.,
¶28.

¶17 The J.W.K. court noted that its reasoning was limited to cases where
no collateral consequences are raised. Id., ¶28 n.11. It suggested that an appeal of
an expired commitment order might not be moot if the committed individual
continued to be affected by collateral consequences of the order. Id. The court
mentioned firearms bans7 and liability for the costs of care8 as potential collateral
consequences of commitments. Id.

¶18 Then, in D.K., the court addressed this open question and considered
whether collateral consequences can “render an expired commitment not moot.”
390 Wis. 2d 50, ¶22. D.K. had been committed for six months, after which he was
released from commitment. The court took up his appeal after his commitment
order had already expired; D.K. argued that his appeal was not moot due to the
firearms ban, the potential liability for costs of care, and “the negative stigmas
often attached to mental commitment.” Id., ¶20. The court concluded that D.K.’s
commitment was “not a moot issue because it still subjects him to the collateral
consequence of a firearms ban” and a decision in his favor “would void the
firearms ban.” Id., ¶25. The court expressly declined to decide whether the other
collateral consequences that D.K. had raised, liability for care and stigma, were
sufficient to overcome mootness. Id., ¶25 n.7.

7
Federal law prohibits individuals who have been committed from owning firearms. 18
U.S.C. § 922 (g)(4) (2020); see also D.K., 390 Wis. 2d 50, ¶¶22, 24-25.
8
Committed individuals may be liable for the costs of their care to the extent that they
can pay. WIS. STAT. § 46.10(2)-(3); see also Portage Cty. v. J.W.K., 2019 WI 54, ¶28 n.11, 386
Wis. 2d 672, 927 N.W.2d 509; D.K., 390 Wis. 2d 50, ¶20.

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No. 2020AP93

¶19 Most recently, in Langlade Cty. v. D.J.W., 2020 WI 41, 391 Wis. 2d
231, 942 N.W.2d 277, the court considered a scenario in which the committed
individual had passed away during the course of the appeal. The parties agreed
that the case was moot, but D.J.W.’s attorney argued that the court should
nevertheless decide the issue because there were exceptional circumstances. Id.,
¶26 n.5. The court agreed, stating that it would reach the moot issue because “the
question of the necessary evidence to support an involuntary commitment is of
great importance yet often evades appellate review.” Id. But this conclusion was
not unanimous; one dissenting justice determined that the appeal was moot and
would not have addressed its merits. Id., ¶123 (R.G. Bradley, dissenting).9

¶20 As these cases illustrate, the mootness doctrine is often a central
issue in appeals of expired commitment orders. The results of these appeals often
turn on the doctrine, and the law in this area continues to develop.

¶21 Even though R.J.’s initial commitment expired before he filed his
notice of appeal and despite the frequency with which appeals like his turn on
questions of mootness, R.J.’s opening brief mentions the doctrine only in passing
and does not develop any mootness argument. The discussion of mootness in the
opening brief consists of just one footnote with the conclusory assertion that the
appeal is not moot because “the commitment has been extended and because the
collateral consequences of a commitment remain even after an individual is no
longer under a commitment.” R.J.’s opening brief does not contend that his case
is distinguishable from J.W.K., which, like his case, concerned an appeal of an

9
See also S.L.L., 387 Wis. 2d 333, ¶41 (concluding that no mootness exception applied
in a challenge to the sufficiency of the evidence supporting commitment).

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No. 2020AP93

expired commitment order that had been replaced by a subsequent order. It does
not identify any specific collateral consequences that continue to apply to R.J. as a
result of his initial commitment order, as the appellant did in D.K. Nor does it
advance any argument about why I should reach the merits of the appeal even if I
conclude that it is moot. See D.J.W., 391 Wis. 2d 231, ¶26 n.5.

¶22 In its response brief, the County points out that the order that R.J. is
appealing has expired, and it addresses the conclusory argument that R.J. made in
his opening brief. Regarding R.J.’s assertion that his “commitment has been
extended,” the County cites J.W.K.’s rule that in commitment proceedings, “the
sufficiency of the evidence supporting prior orders has no impact on any
subsequent order.” J.W.K., 386 Wis. 2d 672, ¶21. And regarding R.J.’s assertion
about unspecified collateral consequences, the County explains that even if R.J.’s
initial commitment order were vacated, his right to possess firearms would not be
restored because he is subject to the recommitment order, which he did not appeal,
and which also prohibits him from possessing firearms.

¶23 It is not until his reply brief that R.J. attempts to develop any
arguments about mootness. He asserts that J.W.K. is distinguishable because it
was a challenge to a recommitment order, rather than an initial commitment
order.10 He also contends that he continues to be subjected to the collateral
consequences of the initial order in two ways. First, regarding the firearms ban, he

10
R.J. does not address language in J.W.K. which appears to be contrary to his position
that there is a meaningful distinction between a sufficiency challenge to an initial commitment
and a sufficiency challenge to a recommitment. See J.W.K., 386 Wis. 2d 672, ¶24 (“Each
extension hearing requires the County to prove the same elements with the same quantum of
proof required for the initial commitment. The dangerousness standard is not more or less
onerous during an extension proceeding ….”) (citation omitted).

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concedes that his recommitment order also prohibits him from possessing firearms
but points out that such bans “become[] effective the first time a court adjudicates
someone a ‘mental defective’ or commits him to a mental institution.”11 Second,
R.J. asserts that he “may be liable for the cost of his care, maintenance, services
and supplies” under WIS. STAT. § 46.02—an argument explicitly left unresolved in
D.K. Finally, R.J. argues for the first time that even if his appeal is moot, I should
nevertheless reach the merits because his case raises questions of substantial
importance that often evade appellate review, including the evidence necessary to
support a commitment and whether the conduct alleged in a commitment petition
must be proved by a witness with firsthand knowledge.

¶24 As a general rule, I do not consider arguments made for the first time
in a reply brief. “It is inherently unfair for an appellant to withhold an argument
from its main brief and argue it in its reply brief because such conduct would
prevent any response from the opposing party.” A.O. Smith Corp. v. Allstate Ins.
Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998). As shown above,
the County squarely addresses the conclusory argument that R.J. makes in his
opening brief; then, in his reply brief, R.J. makes complex arguments that go far
beyond the County’s response. These arguments touch on difficult questions that
have been raised but not resolved in recent opinions of our supreme court, and by
waiting until his reply brief to make these arguments, R.J. prevented the County
from having any opportunity to be heard on these questions.

11
If I understand his reasoning, even though R.J. concedes that the recommitment order
currently prevents him from owning a firearm, he contends that he continues to suffer the
collateral consequence of having been prohibited from owning a firearm during the six months of
his initial commitment. An issue is moot when its resolution would have no “practical effect,”
and R.J. does not explain how his right to own a firearm for six months in the past would have
any practical effect on him now.

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¶25 To be sure, in some appeals, there may be unanticipated mootness
arguments raised in a response brief, and under such circumstances it might be
inequitable to enforce the general rule against addressing arguments made for the
first time in a reply brief. But that is far from the situation here. As explained
above, Wisconsin authority shows that the question of mootness is of obvious and
central importance in an appeal from an expired commitment order. Under these
circumstances, I see no reason to resolve the mootness arguments that R.J. makes
for the first time in a reply brief. Cf. Porco v. Trustees of Indiana Univ., 453 F.3d
390, 395 (7th Cir. 2006) (when events before the appeal made it clear that
mootness was at issue, the appellant forfeited mootness arguments by waiting until
his reply brief to raise them).

¶26 In sum, because R.J. deprived the County of any opportunity to
respond to his mootness argument, I conclude that this appeal of his initial
commitment order is moot and decline to reach its merits. I affirm the circuit
court.

By the Court.—Order affirmed.

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

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