Eau Claire County v. J. M. P.

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.
June 22, 2021
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. 2020AP2014-FT Cir. Ct. No. 2019ME9

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE MENTAL COMMITMENT OF J. M. P.:

EAU CLAIRE COUNTY,

PETITIONER-RESPONDENT,

V.

J. M. P.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Eau Claire County:
EMILY M. LONG, Judge. Reversed.

¶1 STARK, P.J.1 Jordan appeals an order extending his involuntary
commitment under WIS. STAT. ch. 51 and an order for involuntary medication and

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2020AP2014-FT

treatment.2 Jordan contends reversal is warranted because the circuit court failed
to “make specific factual findings with reference to the subdivision paragraph of
WIS. STAT. § 51.20(1)(a)2. on which the recommitment [was] based,” as required
by Langlade County v. D.J.W., 2020 WI 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d
277. Jordan also argues Eau Claire County failed to meet its burden to prove that
he is dangerous.

¶2 We agree with Jordan that the circuit court failed to make specific
factual findings with respect to the subdivision paragraph of WIS. STAT.
§ 51.20(1)(a)2. on which his recommitment was based, as required by D.J.W. We
therefore reverse the order extending Jordan’s commitment and the associated
order for involuntary medication and treatment.

BACKGROUND

¶3 Jordan was involuntarily committed under WIS. STAT. ch. 51 on
February 14, 2019, for a period of six months. On August 1, 2019, Jordan’s
commitment was extended for twelve months. On June 4, 2020, the County filed
a petition seeking another extension of Jordan’s commitment. The circuit court
held a hearing on that petition on July 14, 2020, at which two witnesses testified—
a psychologist and a social worker.

¶4 Given our resolution of this appeal, we need not delve too deeply
into the substance of these witnesses’ testimony. For our purposes, it is sufficient
to note that psychologist Brian Stress testified that: (1) Jordan had a history of

2
This is an expedited appeal under WIS. STAT. RULE 809.17. For ease of reading, we
refer to the appellant in this confidential matter using a pseudonym, rather than his initials.

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No. 2020AP2014-FT

schizophrenia and polysubstance abuse and suffered from drug-induced psychosis,
as well as alcohol, cannabis, and methamphetamine use disorders; (2) Jordan
reported hearing voices at least once a week and stated the voices “tell him to hurt
people and himself and call him names”; (3) Jordan was dangerous because there
was a substantial likelihood, based on his treatment records, that he would be a
proper subject for commitment if treatment were withdrawn; (4) Jordan’s “insight
and judgment” were impaired because of “his alcohol, drug, and mental health
difficulties”; (5) Jordan continued to report auditory hallucinations and stated that
he did not believe he qualified for a mental health diagnosis of schizophrenia or a
psychotic disorder; and (6) Jordan had stated that he would resume using cannabis
and alcohol if not in a group home and that he would not take his medications “if
left to his own devices.” Stress opined that if Jordan stopped taking his
medications and resumed using cannabis and alcohol, it was likely that his
auditory hallucinations would become more prominent, “[w]hich could result in
poor behavioral choices that could result in him participating [in] behaviors that
injure or kill himself or others.”

¶5 Following the witnesses’ testimony and arguments by the parties, the
circuit court found that Jordan suffers from a mental disorder—specifically,
drug-induced psychosis. Turning to the issue of dangerousness, the court stated:

I’m a little confused as to the defense argument there has
not been a sufficient showing [of dangerousness] given that
Dr. Stress testified—and there really doesn’t seem to be
any dispute of the fact—that [Jordan] has these command
voices and the command voices tell him to do bad things.
And then [Jordan] apparently voices them outwardly
toward other people threatening to harm himself and
threatening to harm others, that’s clearly a threat to act.

And the fact that he hasn’t apparently taken a physical act
yet is not really necessary. The fact is he has threat [sic] to
harm himself and others and clearly to the extent that others
have felt the need to report these threats.

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No. 2020AP2014-FT

Dr. Stress also talked about some differences between
curable and treatable, et cetera. But clearly it was his
position that treatment in terms of medication and/or—
well, medication was necessary, that a group home was
necessary to be able to do it.

And it seems pretty clear that [Jordan] does not wish to
take medications unless he’s forced to do so. And, in fact,
was not taking his medications when he probably should
have been and therefore likely ended up where we are
today.

So I am finding that the county has met its burden, that the
least restrictive placement is in a group home.

¶6 The County then asked the circuit court to find that Jordan “does
meet the dangerousness level in [WIS. STAT. ch.] 51 of the—standards of [WIS.
STAT. §] 51.20 and the medication order.” The court responded, “I thought I made
the dangerousness order but just to be clear, I am finding that [Jordan] meets the
dangerousness level with those threats.” The court then further found, based on
Stress’s testimony, that Jordan was not competent to refuse medication.

¶7 The circuit court subsequently entered a written order extending
Jordan’s commitment for twelve months, as well as an order for involuntary
medication and treatment. Jordan now appeals both of those orders.3

DISCUSSION

¶8 In order to involuntarily commit an individual under WIS. STAT.
ch. 51, the petitioner has the burden to show by clear and convincing evidence that

3
Jordan clarifies in his appellate briefing that he does not separately challenge the order
for involuntary medication and treatment. He correctly notes, however, that an involuntary
medication and treatment order is only effective during the term of a lawful commitment, see
WIS. STAT. § 51.61(1)(g)3., and reversal of the commitment order in this case will therefore also
result in reversal of the involuntary medication and treatment order.

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No. 2020AP2014-FT

the individual is: (1) mentally ill; (2) a proper subject for treatment; and
(3) dangerous to himself or herself or to others. WIS. STAT. § 51.20(1)(a)1.-2. In
this case, Jordan does not dispute that the County established the first two of these
elements. With respect to the third element, however, he argues that the circuit
court did not follow the requirements set forth in D.J.W. when finding him
dangerous, and that the County did not meet its burden to show that he is
dangerous.

¶9 “In an initial commitment proceeding, WIS. STAT. § 51.20(1)(a)2.
provides five different means of demonstrating that a person is ‘dangerous.’”
D.J.W., 391 Wis. 2d 231, ¶30 (citation omitted). Each of those standards requires
the petitioner to “identify recent acts or omissions demonstrating that the
individual is a danger to himself [or herself] or to others.” Portage Cnty. v.
J.W.K., 2019 WI 54, ¶17, 386 Wis. 2d 672, 927 N.W.2d 509; see also
§ 51.20(1)(a)2.a.-e.

¶10 In a recommitment proceeding, however, the petitioner is not
required to identify “recent” acts or omissions demonstrating dangerousness.
Instead, the dangerousness requirement in a recommitment proceeding “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.” WIS. STAT. § 51.20(1)(am). The
recommitment standard in § 51.20(1)(am) “recognizes that an individual receiving
treatment may not have exhibited any recent overt acts or omissions demonstrating
dangerousness because the treatment ameliorated such behavior, but if treatment
were withdrawn, there may be a substantial likelihood such behavior would
recur.” J.W.K., 386 Wis. 2d 672, ¶19.

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¶11 The recommitment standard in WIS. STAT. § 51.20(1)(am) therefore
serves as an “alternative evidentiary path, reflecting a change in circumstances
occasioned by an individual’s commitment and treatment.” J.W.K., 386 Wis. 2d
672, ¶19. Dangerousness, however, “remains an element to be proven to support
both the initial commitment and any extension.” Id. Moreover, § 51.20(1)(am)
“mandates that circuit courts ground their conclusions [regarding dangerousness]
in the subdivision paragraphs of subd. 2.” D.J.W., 391 Wis. 2d 231, ¶41. Stated
differently, under § 51.20(1)(am), even though the petitioner need not identify
recent acts or omissions showing dangerousness, the petitioner must still prove a
substantial likelihood that the subject individual would be dangerous under one of
the five standards set forth in § 51.20(1)(a)2.a.-e. if treatment were withdrawn.

¶12 To ensure that circuit courts ground their recommitment orders in
the five dangerousness standards in WIS. STAT. § 51.20(1)(a)2.a.-e., our supreme
court held in D.J.W. that “going forward circuit courts in recommitment
proceedings are to make specific factual findings with reference to the subdivision
paragraph of § 51.20(1)(a)2. on which the recommitment is based.” D.J.W., 391
Wis. 2d 231, ¶40. The court explained that this requirement serves two purposes.
Id., ¶42. First, it provides “clarity and extra protection to patients regarding the
underlying basis for a recommitment.” Id. The court emphasized the important
liberty interest at stake in mental commitment proceedings and stated that
requiring circuit courts to make specific factual findings with reference to the
applicable subdivision paragraph of § 51.20(1)(a)2. “provides increased protection
to patients to ensure that recommitments are based on sufficient evidence.”
D.J.W., 391 Wis. 2d 231, ¶43.

¶13 Second, the D.J.W. court stated that requiring specific factual
findings with reference to a particular subdivision paragraph of WIS. STAT.

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No. 2020AP2014-FT

§ 51.20(1)(a)2. “clarif[ies] issues raised on appeal of recommitment orders and
ensure[s] the soundness of judicial decision making, specifically with regard to
challenges based on the sufficiency of the evidence.” D.J.W., 391 Wis. 2d 231,
¶44. The court reasoned that requiring such factual findings would avoid the
“guesswork” that is often required on appellate review when a circuit court fails to
make clear the statutory basis for its determination of dangerousness. Id., ¶45.

¶14 The recommitment hearing at issue in this appeal took place on
July 14, 2020, over two months after our supreme court issued its decision in
D.J.W. D.J.W.’s holding—i.e., that “going forward” circuit courts in
recommitment proceedings must make specific factual findings with reference to
the subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. upon which
recommitment is based—therefore applies to this case. At the close of the
recommitment hearing, Jordan’s attorney expressly noted that D.J.W. required the
circuit court to make specific factual findings with respect to the subdivision
paragraph of § 51.20(1)(a)2. upon which Jordan’s recommitment was based. The
court did not, however, comply with that requirement.

¶15 Instead, the circuit court merely found that: (1) Jordan “has these
command voices and the command voices tell him to do bad things. And then
[Jordan] apparently voices them outwardly toward other people threatening to
harm himself and threatening to harm others, that’s clearly a threat to act”;
(2) Jordan “has threat [sic] to harm himself and others and clearly to the extent
that others have felt the need to report these threats”; and (3) Jordan “does not
wish to take medications unless he’s forced to do so,” and his refusal to take
medication “likely ended up where we are today.” When the County subsequently
asked the court to clarify the basis for its decision, the court merely stated, “I am
finding that [Jordan] meets the dangerousness level with those threats.”

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No. 2020AP2014-FT

¶16 On this record, we conclude the circuit court failed to comply with
its obligation under D.J.W. to make specific factual findings with reference to the
subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. upon which Jordan’s
recommitment was based. The County, for its part, does not argue that the court
made the specific factual findings required by D.J.W. Instead, the County argues
D.J.W.’s requirement of specific factual findings does not apply in this case
because the evidence at the recommitment hearing established that Jordan was
dangerous under multiple subdivision paragraphs of § 51.20(1)(a)2. The County
cites footnote 9 of the D.J.W. opinion, in which our supreme court stated: “We
recognize that there may be cases where a person satisfies the criteria contained in
several statutory subdivision paragraphs. In such a case, we encourage circuit
courts to state each subdivision paragraph that is fulfilled.” D.J.W., 391 Wis. 2d
231, ¶45 n.9. Based on footnote 9, the County argues that in a case where the
subject individual is found to be dangerous under multiple subdivision paragraphs
of § 51.20(1)(a)2., the circuit court is merely encouraged, but not required, to
articulate the applicable subdivision paragraphs.

¶17 We conclude that the County’s argument in this regard is meritless,
as it fails to read footnote 9 of D.J.W. in context with the remainder of the court’s
opinion. The D.J.W. court expressly stated that, going forward, 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.” D.J.W., 391 Wis. 2d 231, ¶40. Thereafter, the court
repeatedly referred to that holding as a “requirement,” or as something that circuit
courts are now required to do. Id., ¶¶41, 43-44. Finally, the court explained that
the absence of specific factual findings with reference to a subdivision paragraph
of § 51.20(1)(a)2. requires a reviewing court to engage in “guesswork” on appeal.

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No. 2020AP2014-FT

D.J.W., 391 Wis. 2d 231, ¶¶44-45. The court then stated, “In the future, such
guesswork will be avoided by our newly instituted requirement for specific factual
findings with reference to a subdivision paragraph of § 51.20(1)(a)2.” D.J.W.,
391 Wis. 2d 231, ¶45. Footnote 9, on which the County relies, appears
immediately after that sentence. See id., ¶45 & n.9.

¶18 Given this context, it is clear that when D.J.W. stated circuit courts
“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,” D.J.W.,
391 Wis. 2d 231, ¶40, it was imposing a requirement that courts make such
findings, not merely encouraging them to do so. Footnote 9 is not inconsistent
with that requirement, nor does it limit that requirement to cases where the subject
individual is found to be dangerous under only one subdivision paragraph of
§ 51.20(1)(a)2. Instead, footnote 9 merely clarifies that when a circuit court finds
a subject individual to be dangerous under multiple subdivision paragraphs, the
court is encouraged to enumerate each subdivision paragraph that applies. That
guidance does not obviate D.J.W.’s previously stated requirement that the court
make specific factual findings with reference to at least one applicable subdivision
paragraph. Stated differently, D.J.W. holds that when a circuit court in
recommitment proceedings concludes that a subject individual is dangerous under
more than one subdivision paragraph of § 51.20(1)(a)2., the court is required to
make specific factual findings with respect to at least one applicable subdivision
paragraph, but it is encouraged to go further and enumerate each subdivision
paragraph under which it finds the individual to be dangerous.

¶19 Having concluded that the circuit court failed to comply with
D.J.W., we must determine the proper remedy for the court’s noncompliance. In
his brief-in-chief, Jordan asserted that because the court failed to comply with

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D.J.W., the recommitment order and associated involuntary medication order
should be reversed. In response, the County argued, as discussed above, that the
court was not required to comply with D.J.W. In the alternative, however, the
County asked that we remand this matter to the circuit court so that it could make
the specific factual findings required by D.J.W. In his reply brief, Jordan did not
argue that a remand for such factual findings would be inappropriate.

¶20 On May 25, 2021, we released an opinion in this case in which we
agreed with the County that it was appropriate to remand this matter for the circuit
court to make the factual findings required by D.J.W. Jordan subsequently moved
for reconsideration, however, arguing for several reasons that we should instead
reverse the commitment and involuntary medication orders outright. We ordered
the County to respond to Jordan’s reconsideration motion by June 14, 2021, but
the County failed to file a response.

¶21 In light of the arguments raised in Jordan’s motion—and the
County’s failure to respond to those arguments—we now conclude reversal is the
appropriate remedy in this case. Jordan correctly notes that a circuit court “must
hold a hearing on [a] petition for extension before the previous order expires or it
loses competency to extend the commitment.” See J.W.K., 386 Wis. 2d 672, ¶20.
Jordan’s prior commitment order expired on August 3, 2020. Although the circuit
court held a hearing on the County’s petition to extend Jordan’s commitment
before that date, the court failed to enter a valid order extending Jordan’s
commitment before his prior commitment order expired. We therefore agree with
Jordan that when the prior commitment order expired, the court lost competency
to conduct further proceedings on the County’s petition to extend Jordan’s
commitment. Thus, if we were to remand for the court to make the specific
factual findings required by D.J.W., the court would lack the competency to do so.

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¶22 Moreover, as Jordan correctly observes, D.J.W.’s requirement that
circuit courts make specific factual findings regarding the statutory basis for
recommitment is intended to provide “clarity” and “extra protection” to committed
individuals. See D.J.W., 391 Wis. 2d 231, ¶42. We agree with Jordan that if a
petitioner and court “can seek to remedy a lack-of-findings violation ten months
after the order on appeal has been entered[,] then this clarity and extra protection
come[] far too late to be meaningful.”

¶23 We also agree with Jordan that because the orders at issue in this
appeal will expire on August 3, 2021, a remand for the circuit court to make the
factual findings required by D.J.W. would likely result in Jordan being deprived of
his right to a meaningful appeal. Jordan notes that if we remanded this matter to
the circuit court and he disagreed with the court’s findings on remand, there would
be no realistic possibility that he could return to this court and obtain a decision
regarding the validity of the circuit court’s decision before the relevant orders
expired. An appeal from an expired commitment order is moot, unless the
appellant can show that the order gives rise to collateral consequences that persist
even after its expiration. See Marathon Cnty. v. D.K., 2020 WI 8, ¶¶22-25, 390
Wis. 2d 50, 937 N.W.2d 901.

¶24 For the foregoing reasons, we agree with Jordan that outright
reversal of his commitment and involuntary medication orders is the appropriate
remedy in this case, rather than reversal with a remand for further proceedings.
We therefore reverse outright the circuit court’s July 14, 2020 orders extending

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Jordan’s commitment and subjecting him to involuntary medication and
treatment.4

By the Court.—Orders reversed.

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

4
Because we reverse the circuit court’s July 14, 2020 orders outright on the grounds that
the court failed to comply with its obligations under Langlade County v. D.J.W., 2020 WI 41,
391 Wis. 2d 231, 942 N.W.2d 277, we need not address Jordan’s alternative argument that the
County failed to meet its burden to prove that he was dangerous. 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).

12