Elizabeth Rich, President of Andrew’s V.O.I.C.E., is preparing for oral argument before the Wisconsin Supreme Court in an important case raising constitutional issues in involuntary civil commitments.
The case will be argued at 9:45 A.M. on February 28, 2022. You can find the oral argument schedule here: https://www.wicourts.gov/supreme/sc_oralargs.jsp You can watch and listen to the argument for free in real time on the Supreme Court’s website here: https://www.wicourts.gov/opinions/soralarguments.htm; or for a paid subscription to WisconsinEye ($7.99 per month), you can listen any time during or after the argument here: https://wiseye.org/schedule/.
The issues for review are: (1) Whether SAM’s appeal from his recommitment is moot because it expired before SAM filed his notice of appeal; (2) Whether the county failed to meet its burden of proving dangerousness by clear and convincing evidence; and (3) Whether SAM was denied procedural due process because the county failed to provide particularized notice of the basis for his recommitment, including which standard of dangerousness was being alleged. Additionally, the court asked the parties to address how the Supreme Court might use its statutory and constitutional powers to address the persistent problem of involuntary commitment proceedings being dismissed as moot because the commitments–through no fault of the respondents–expire before the respondents are able to exercise their statutory and constitutional rights to appeal them.
These constitutional issues are BIG. Mootness in mental health cases has become a pressing problem in Wisconsin. All agree that involuntary civil commitment represents a massive curtailment of liberty; yet Wisconsin appellate courts continue to dismiss as moot appeals of commitments that have expired before decisions are rendered. If that is a correct application of the mootness doctrine, then a startling 100% of appeals of initial commitments would be dismissed as moot. And 50-60% of recommitment appeals are subject to dismissal for mootness because the recommitments expired before appeals could be filed. These appellants will be denied their constitutional and statutory right to appeal their involuntary commitments, all due to the application of a doctrine of judicial economy.
SAM also argues that he was denied procedural due process because he did not receive particularized notice of the basis for his recommitment. The County must prove a person is dangerous in order to support an involuntary commitment or a recommitment. Wisconsin statute §51.20(1)(a)(2)a-e sets out five standards of dangerousness. In addition, there is a “recommitment” standard set forth at Wis. Stat. §51.20(1)(a)(2)(am), which provides that dangerousness can be proven if, based on a person’s treatment record, there is a substantial likelihood that the person would be a proper subject for commitment if treatment were withdrawn. As noted in a previous post, however, the County cannot rely upon this provision alone; it must still prove current dangerousness in order to recommitment the individual.
What happens routinely, and what happened to SAM, is that the hearing proceeds with no notice of what standard of dangerousness is being alleged. This is problematic because defense counsel cannot adequately prepare a defense without this information. Particularized notice lets defense counsel know what claim must be refuted at the recommitment hearing. Without treatment, will the client become suicidal, homicidal, unable to care for himself or access community services, all of the above, or something else? Particularized notice also helps the circuit court to prepare for objections, draft jury instructions, and assess the sufficiency of the evidence.
Currently, respondents to involuntary commitments in Wisconsin face a moving target when defending against the government’s deprivation of their civil liberties. SAM proposes that basic principles of due process require that respondents be given notice of why the proposed deprivation is occurring; and that they not be deprived of their right to appeal based on delays over which they have no control.