Winnebago County v. 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.
August 30, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP505 Cir. Ct. No. 2022ME320

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE MENTAL COMMITMENT OF C.H.:

WINNEBAGO COUNTY,

PETITIONER-RESPONDENT,

V.

C.H.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Winnebago County:
TERESA S. BASILIERE, Judge. Affirmed.
No. 2023AP505

¶1 LAZAR, J.1 Charley2 appeals from orders for his initial
commitment under WIS. STAT. § 51.20(1)(am) and for the involuntary
administration of medication under WIS. STAT. § 51.61(1)(g). Charley asserts that
Winnebago County presented insufficient evidence to prove that he fell within one
of the required statutory definitions of dangerousness. Thus, he contends, both
orders must be reversed.

¶2 The County argues that the uncontroverted testimony of its two
witnesses proves by clear and convincing evidence that Charley was, in fact, a
danger to himself and to others and that his judgment was impaired sufficient to
satisfy three of the statutory standards of dangerousness. Therefore, the County
asserts this court should affirm the trial court’s findings and orders.

¶3 This court concludes that sufficient evidence was presented to
establish Charley’s dangerousness under three standards. And, because this court
affirms the trial court’s commitment order, there is no basis to reverse the order
for involuntary administration of medication. Both orders are affirmed.

BACKGROUND

¶4 The County filed a petition requesting civil commitment and an
involuntary medication order pursuant to WIS. STAT. ch. 51 on September 12,
2022. The County asserted that Charley, an inmate at the Wisconsin Resource

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
This court refers to the subject individual by a pseudonym pursuant to WIS. STAT.
§ 809.19(1)(g), to protect his confidentiality.

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No. 2023AP505

Center (WRC),3 was mentally ill and exhibited a pattern of dangerous behavior.
On October 13, 2022, the trial court conducted a contested hearing on the petition
during which three witnesses, including Charley, testified.

¶5 First, the County called Tom Larson, a psychiatric care supervisor at
the WRC. Larson testified about an incident in July 2022 when Charley refused to
remove the mattress and wet toilet paper that he had used to cover the window to
his cell, preventing the staff from completing visual wellness checks. Charley
refused to respond at all to staff inquiries. Staff entered Charley’s cell and
“decentralize[d] him to the floor to maintain control” using an “incapacitating
agent” (a skin irritant) known as oleoresin capsicum. Although Larson could not
initially recall whether this resulted in injury to Charley, upon refreshing his
recollection with a report he had authored at the time, he testified that Charley
“did strike his head on the floor” and that an officer threatened to use a Taser so
that Charley would “stop striking his head on the floor.”

¶6 Next, Dr. George Monese, a staff psychiatrist at the WRC, testified.
In his opinion, Charley “suffers from a major mental illness,” namely catatonic
type schizophrenia, that is treatable. He stated that Charley’s judgment was so
impaired that he engaged in behavior dangerous to others, and that is why he was
transferred to the WRC from the Milwaukee Secure Detention Facility (MSDF).
When admitted to the WRC, he was “catatonic, totally mute, [and] unresponsive,”
he further suffered from some episodes of “sudden excitement” that can include

3
The WRC is “a correctional institution that provides psychological evaluations,
specialized learning programs, training and supervision for inmates whose behavior presents a
serious problem to themselves or others in state prisons.” WIS. STAT. § 46.056. As the trial court
noted, Charley is an “inmate in the Wisconsin State Prison System.”

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No. 2023AP505

“violent outbursts for no reason.” At one point, “he hit another person in MSDF,”
and in August 2022, “he threw a tray at somebody.” Monese also stated that
Charley “would be given food, but because he is so much in this psychotic state,
he would simply stare at a tray and not eat …. He had lost significant weight.”
Monese opined that Charley’s catatonia posed a danger to Charley himself
because it could cause his muscles to break down or even lead to starvation and
said that “[t]hat occurred a couple times” with Charley, but the medical team was
not able “to assess how much damage” had been done because Charley would not
consent to an exam.

¶7 Finally, Charley testified. He stated that he was willing to take some
medicines, although he was not aware of what was prescribed for ADHD and
thought he was taking a “[l]ower dose of—I think it was Benadryl or lorazepam,
… basically using generic, over-the-counter” medicine for schizophrenia.

¶8 The trial court found that Charley had a mental illness and was “a
danger because … of substantial probability of physical harm to himself and
others.” The court found the “more compelling” category of dangerousness in
Charley’s case to be danger to himself because in his unmedicated catatonic state
he lost weight and there was concern about starvation. The court also noted that
“the doctor indicated multiple acts” that form a “pattern” of dangerous acts.
Ultimately, the court ordered an involuntary commitment of six months and that
medication could be administered to Charley regardless of consent. Charley
appeals, arguing that the evidence was insufficient to support the court’s finding of
dangerousness.

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No. 2023AP505

DISCUSSION

¶9 To issue a civil commitment order, trial courts must find by clear
and convincing evidence that the subject individual is mentally ill, a proper subject
for treatment, and dangerous to themselves or others under at least one of five
statutory standards. Langlade County v. D.J.W., 2020 WI 41, ¶29, 391 Wis. 2d
231, 942 N.W.2d 277; WIS. STAT. § 51.20(1)(a)1.-2., (13)(e). This is critical,
because “[i]t may be true that an erroneous commitment is sometimes as
undesirable as an erroneous conviction.” Addington v. Texas, 441 U.S. 418, 428
(1979). Courts must take special care in this area of law.

¶10 The review of a civil commitment order—determining whether the
petitioner has met its burden of proof—presents a mixed question of law and fact.
Waukesha County v. J.W.J., 2017 WI 57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783.
A trial court’s findings of fact are upheld unless they are clearly erroneous, id.,
and appellate courts will “accept reasonable inferences from the facts.”
Winnebago County v. Christopher S., 2016 WI 1, ¶50, 366 Wis. 2d 1, 878
N.W.2d 109 (citation omitted). Whether those facts satisfy the statutory standards,
however, is a question of law that is reviewed de novo. Marathon County v.
D.K., 2020 WI 8, ¶18, 390 Wis. 2d 50, 937 N.W.2d 901.

I. Initial considerations

¶11 Before resolving the issue in this appeal, two matters must be
addressed, and both involve the recent and unprecedented flood of appeals in
mental commitment cases. First, several appeals could be avoided if the parties
and court below take care to ensure that the record is well-defined and
unequivocal with respect to which standard of dangerousness warrants the
subject’s commitment. Petitioners should clearly state in their pleadings and

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No. 2023AP505

argument which of the five standards applies. Both the subject individual and the
court should be advised as to which of paragraph(s) a. through e. of WIS. STAT.
§ 51.20(1)(a)2. is at issue.

¶12 To the extent it is not clear, the trial court is encouraged to inquire
under which statutory provision the petitioner is seeking commitment. Then, as
the court issues its ruling, it should expressly state which statutory provision of
dangerousness applies to the subject individual and summarize the relevant
testimony and evidence that supports each statutory paragraph. The court should
also make certain that its written order itemizes each paragraph that is relevant, as
well as each ground upon which that statutory provision is manifested by the
individual as contemplated by the new Order of Commitment forms.4 Moreover,
counsel for the subject individual could be more involved and demand clarity on
the statutory standard for dangerousness. These steps could clarify records and
potentially avoid the need for a significant number of appeals.5 See D.K., 390
Wis. 2d 50, ¶¶54-55 (explaining that while exact statutory language need not be
parroted, testimony and findings should be linked to statutory standards and, in

4
See State Bar Form ME-911, 03/22 Order of Commitment/Extension of
Commitment/Dismissal Order form. Paragraph 2B of that form requires the trial court to check
which statutory standard of dangerousness under WIS. STAT. § 51.20(1)(a)2., or combined with
§ 51.20(1)(am) for recommitments, applies to the subject individual. It further requires that the
court indicate the grounds and check how the dangerousness is “manifested or shown by” the
individual. Those secondary boxes match up directly with the first four standards as set forth in
§ 51.20(1)(a)2.a.-d. For cases in which the fifth standard (§ 51.20(1)(a)2.e.) applies, courts are to
use a separate order form: the State Bar Form ME-914, 03/22 Order of Commitment/Extension
of Commitment/Dismissal (Fifth Standard Under § 51.20(1)(a)2.e., WIS. STATS.) Order form.
5
This court does not wish to criticize petitioners or trial courts; this area of the law
typically involves hearings with less than a week’s time to prepare and usually results in many
cases stacked up on each hearing date. It is understandable why some records are less than clear
or incomplete.

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No. 2023AP505

“speak[ing] to the bench and the bar,” noting that “[t]aking more time at the [trial]
court can save years of uncertainty on appeal.”).

¶13 Second, while this court acknowledges that our supreme court has
determined that mental commitment appeals are not moot based upon two (or
possibly three) collateral consequences, see Sauk County v. S.A.M., 2022 WI 46,
402 Wis. 2d 379, 975 N.W.2d 162, this court notes that in many cases such
consequences are illusory. For instance, the first consequence articulated in
S.A.M. is that the subject individual is subject to a firearm prohibition. Id., ¶23.
But, as noted in the concurrence/dissent to S.A.M., that ban could be duplicative in
some cases, effectively rendering it moot. Id., ¶¶41-43 (Ziegler, C.J., concurring
in part and dissenting in part). The individual in S.A.M. was already subject to a
prior firearm ban from an initial commitment that had not been appealed, but the
court reasoned that an additional ban could have a practical effect (albeit
“marginal”) if and when a future court considered restoration of gun rights. Id.,
¶23. However theoretically possible that effect might be, Charley’s appeal
presents a lesser “practical effect” because he is a prisoner of the state being
housed in the WRC: that means that he is likely a felon (misdemeanor offenders
are not placed in prison), and, as such, he is already subject to a lifetime firearm
prohibition. See WIS. STAT. § 941.29. Thus, the first collateral consequence may
not be applicable in this appeal.

¶14 The second collateral consequence mentioned in S.A.M. is that a
county may seek to recoup payments from the subject individual that it made to
supply recovery care and medication. 402 Wis. 2d 379, ¶24; see also WIS. STAT.
§ 46.10(2). In this case, as in many (if not most), the County has made no
indication that it would seek such reimbursement. Nor has Charley’s counsel
indicated that the County actually made a financial reimbursement demand. And,

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No. 2023AP505

Charley’s counsel has provided no legal authority by which a county is able to
seek that type of recovery when the State Department of Corrections—and not a
county—is the entity supplying treatment and medication.

¶15 The final possible collateral consequence—social stigma—is not
asserted by Charley in this appeal. Perhaps for good reason, since “no Wisconsin
court has ever concluded that social stigma alone is a collateral consequence of
commitment that will defeat the mootness doctrine.” S.A.M., 402 Wis. 2d 379,
¶51 (Ziegler, C.J., concurring in part and dissenting in part).

¶16 As Chief Justice Ziegler presaged in her concurrence/dissent, “[w]ith
no moot appeals in these [commitment] cases, the appellate system will be
flooded.” Id., ¶38. And, flooded the system is.6 Appellate courts should carefully
assess whether a potential collateral consequence truly exists in an expired
commitment appeal. Here, Charley is already subject to a firearm prohibition that
is not in any way tied to his commitment. And, he has presented no evidence that
the County has any standing to seek to recover costs for his care at the WRC, nor
that the County is even the entity that pays such costs in the first place. It is his
obligation to develop7 his arguments, including a basis to have his appeal heard.
That being the case, and the fact that Charley’s six-month commitment expired in

6
One-judge appeals in the Wisconsin courts of appeals have increased from 413 in 2020
(when the first supreme court decision holding appeals of expired mental commitments are not
moot was issued in Marathon County v. D.K., 2020 WI 8, 390 Wis. 2d 50, 937 N.W.2d 901) to
564 in 2022 (the last report of appellate Case Load Statistics). Wisconsin Court System, Court of
Appeals Annual Reports (2020 and 2022), https://www.wicourts.gov/other/appeals/statistical.jsp.
7
See ABKA Ltd. P’ship v. Board of Rev., 231 Wis. 2d 328, 349 n.9, 603 N.W.2d 217
(1999) (appellate courts typically do not address undeveloped arguments).

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No. 2023AP505

April 2023—long before the first appellate brief was even filed—this court has
serious doubts about whether his appeal is not moot.

¶17 Regardless of the potential lack of a viable, non-moot appeal, this
court will still address the merits of this appeal.

II. Despite a lack of clarity about the relevant dangerousness
standard, the trial court’s finding of dangerousness was
supported by sufficient evidence.

¶18 The County, in its appellate brief, now clearly identifies the statutory
standards upon which it believes the trial court found Charley to be dangerous:
paragraph b—“a substantial probability of physical harm to other individuals;”
paragraph c—“a substantial probability of physical impairment or injury to
himself … or other individuals” due to “such impaired judgment;” and paragraph
d—“a substantial probability exists that death, serious physical injury, serious
physical debilitation, or serious physical disease will imminently ensue unless the
individual receives prompt and adequate treatment for this mental illness.” WIS.
STAT. § 51.20(1)(a)2.b.-d. These findings were based upon the hearing testimony
and are summarized below.

¶19 Monese testified that catatonia does not just implicate mute and
nonresponsive behavior, but it can include “catatonic excitement.” Here, several
examples of that excitement support the finding that Charley is dangerous because
there is a substantial probability of physical harm to other individuals. See WIS.
STAT. § 51.20(1)(a)2.b. Charley was transferred from MSDF due to his violent
behavior there, including hitting another inmate. Even at WRC, Charley threw a
food tray at another person. These actions were in the six months prior to the
hearing—one even took place a month before the hearing.

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No. 2023AP505

¶20 Next, the trial court was most concerned about Charley’s impaired
judgment that had, in its view, a substantial probability of resulting in physical
impairment or injury to Charley himself. See WIS. STAT. § 51.20(1)(a)2.c. The
court found8 that several of Charley’s actions led it to conclude that he could harm
himself. Monese testified as to Charley’s impaired judgment9 in detail:

Okay. I’ll start with a––with a––with the judgment. His
judgment was so impaired in many occasions that he would
engage in behaviors that are a danger to others, and that is
the main reason––that is one of the main reasons he was
transferred to [the] Wisconsin Resource Center. I reviewed
the records from the previous institution, as at the time of
admission he was so catatonic––so catatonic, totally mute,
unresponsive. I mean, verbally, fully awake, but not
responding. You know, just staring like that.

….

And one of that information was in his medical records,
pointing that prior to coming to [the] Wisconsin Resource
Center as a referral, he engaged in behavior that was a
danger to others, wherein he hit another person in MSDF. I
was aware of those and I tried to engage him in a
conversation so that we can start appropriate treatment, but
he wouldn’t. So that is one other aspect of lack of
judgment at the time.

8
This court does note that the trial court erred by not checking the box under the second
part of paragraph 2B on the order of commitment to indicate that there was “a pattern of recent
acts or omissions under §51.20(1)(a)2.c, Wis. Stats.” to support the finding of dangerousness
under that statutory provision. That was a clerical error, and “the law is clear that a court has the
power to correct clerical errors at any time.” See State v. Prihoda, 2000 WI 123, ¶17, 239
Wis. 2d 244, 618 N.W.2d 857. Moreover, the trial court’s failure to expressly check this box or
more clearly state a finding on the record is not necessarily a basis for reversal if the record
contains evidence that supports the court’s oral ruling. See State v. Martwick, 2000 WI 5, ¶31,
231 Wis. 2d 801, 604 N.W.2d 552 (“if a [trial] court fails to make a finding that exists in the
record, an appellate court can assume that the [trial] court determined the fact in a manner that
supports the [trial] court’s ultimate decision.”). Here, that evidence is in the record.
9
Both of these examples of impaired judgment also relate to dangerousness under
paragraph b. See WIS. STAT. § 51.20(1)(a)2.b.

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No. 2023AP505

¶21 Finally, the trial court heard and relied upon testimony that showed
Charley required prompt and adequate treatment to avoid imminent serious
physical injury or serious physical debilitation due to his recent behavior sufficient
to satisfy the fourth standard of dangerousness under the statute. See WIS. STAT.
§ 51.20(1)(a)2.d. Larson testified that when staff entered Charley’s cell, he had to
be threatened with a Taser before he stopped striking his head on the floor.
Monese testified that, due to Charley’s catatonia, he would often not eat, had lost
significant weight, and forbade physicians to conduct proper assessments to
determine if there was ongoing or existing damage due to possible muscle
breakdown and/or starvation. Monese further testified that Charley would just sit
staring, mute and totally nonresponsive.

¶22 Charley’s counsel argues that Monese’s testimony that Charley had
recently improved, was moved to a less restrictive environment within WRC, and
had been eating on his own is proof that there are and were no concerns for
Charley’s physical well-being. To the contrary, those examples show the
opposite. They evidence that, without the intervention of Monese and other staff,
Charley was at substantial risk of serious physical injury or debilitation.

¶23 The trial court agreed, finding in its oral ruling that there were
compelling concerns of danger to Charley personally. It explained that it relied
upon Monese’s testimony about Charley’s catatonic state and how that “affects
eating and, therefore, starvation; there is a loss of weight by [Charley], and
concern over a breakdown of muscle due to the catatonic state.” Due to that
catatonia and accompanying weight loss, there was sufficient basis to conclude
that Charley was at a substantial probability of serious harm to himself if left
untreated.

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No. 2023AP505

¶24 Accordingly, there was sufficient evidence in the record for the trial
court to find that the County had met its burden of proof with respect to each of
these three standards of dangerousness. The court then looked to whether such
dangerousness was based upon “a recent overt act, attempt or threat to do serious
physical harm” (WIS. STAT. § 51.20(1)(a)2.b.), “a pattern of recent acts or
omissions” (§ 51.20(1)(a)2.c.), or “recent acts” (§ 51.20(1)(a)2.d.). Concluding
that Charley’s acts of dangerousness were recent, the court checked off the
appropriate boxes on the order and made the following finding on the record:

Court does find that the testimony did include––I believe
the doctor indicated multiple acts. And the catatonia that
goes on from day-to-day, certainly an argument can be
made that that is a pattern of acts.

That was adequate to establish that the court heard, considered, and found
dangerousness for each of the three relevant standards in the testimony and
evidence. It was not necessary that the court use “magic words” to link conduct to
each standard. See D.K., 390 Wis. 2d 50, ¶54. Taking the testimony as a whole
and considering the court’s findings, see id., ¶51, there is sufficient evidence
present in this case (albeit not carefully detailed and lined up as this court suggests
be done in future cases) to support Charley’s commitment and corresponding
medication order.

CONCLUSION

¶25 Based upon the foregoing, this court concludes that Winnebago
County presented sufficient evidence to establish Charley was dangerous under
three of the statutory standards. Accordingly, this court affirms the trial court’s
order committing Charley and the corresponding order for the involuntary
administration of medication and treatment.

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No. 2023AP505

By the Court.—Orders affirmed.

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

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