Outagamie Cnty. v. C.J.A. (In re C.J.A.)

404 Wis.2d 1

978 N.W.2d 493

2022 WI App 36

In the MATTER OF the Mental COMMITMENT OF C.J.A.:

Outagamie County, Petitioner-Respondent,

v.C.J.A., Respondent-Appellant.

Appeal No. 2020AP2032

Court of Appeals of Wisconsin.

Submitted on Briefs: January 18, 2022

Opinion Filed: June 1, 2022

On behalf of the respondent-appellant, the cause was submitted on the briefs of Megan Sanders-Drazen, assistant state public defender of Madison.

On behalf of the petitioner-respondent, the cause was submitted on the brief of Dawn T. Shaha, assistant corporation counsel, Appleton.

Before Stark, P.J., Hruz and Dugan, JJ.

STARK, P.J.

¶1 Catherine¹ appeals from an order extending her involuntary commitment and an order for involuntary medication and treatment, both entered pursuant to WIS. STAT. ch. 51 (2019-20).² Catherine argues that the special verdict presented to the jury did not fairly present the question of whether she was currently dangerous. Catherine further argues that her appeal is not moot because exceptions to the doctrine of mootness apply.³

¶2 We elect to address the issue Catherine raises concerning the form of the special verdict because it meets several exceptions to the mootness doctrine, including that it is likely to recur, should be decided to avoid uncertainty, and is almost certain to evade review. We conclude that the circuit court misstated the statutory test when it added language to the special verdict question concerning dangerousness. The addition resulted in an inquiry that did not properly reflect the focus of a WIS. STAT. ch. 51 recommitment proceeding: i.e., whether the individual is currently dangerous. Because the orders on appeal have expired, the court no longer has competency to correct this error by conducting a new trial using an appropriate form of the special verdict question. Accordingly, we reverse.⁴

BACKGROUND

¶3 Catherine was first committed under WIS. STAT. ch. 51 in 2016 after her paranoia, mania, and delusions stemming from her schizoaffective disorder caused her family to fear for their safety. In addition, Catherine was found to be dangerous as a result of threats she had made toward persons in the legal system.

¶4 As relevant to this appeal, an extension of Catherine's commitment was set to expire on May 8, 2020. On March 4, 2020, the Outagamie County Department of Health and Human Services ("the County") petitioned to extend Catherine's commitment for an additional year. The petition was supported by a social worker's letter explaining, in part, that Catherine was in outpatient treatment for schizophrenia and discussing the nature of that treatment. The letter also stated that Catherine lacked insight into her mental illness and that "it is believed" she would "decompensate" and "become a proper subject for a [ WIS. STAT. ch. 51] commitment" if she were not recommitted. Catherine, represented by counsel, requested a jury trial, and the single-day trial took place on August 18, 2020.⁵

¶5 At the close of evidence, the circuit court held a jury instruction and verdict conference during which it informed the parties that it had added language to question two of the special verdict. The original proposed special verdict question was taken from the form recommended in WIS JI— CIVIL 7050 (2020), the standard jury instruction at the time, and read: "[I]s the subject dangerous to herself or to others?" The court changed the special verdict question, adding the modifier "if not recommitted" to the recommended verdict question. Accordingly, the final form of question two of the special verdict submitted to the jury read: "Is [Catherine] dangerous to herself or to others if not recommitted?" The County approved this language, but Catherine objected, claiming that the additional language misstated the standard and failed to convey the primary question: whether Catherine was currently dangerous. She argued that while the jury instructions properly described the statutory dangerousness standards, the special verdict did not and, therefore, was incorrect.

¶6 The circuit court overruled Catherine's objection, noting, "I think this is the first time in 13 years I've ever deviated from pattern jury instructions. But that pattern jury instruction was really aimed at a commitment as opposed to a recommitment. To me, [that] makes all the difference." The court also quoted language from the Wisconsin Judicial Benchbooks, stating:

If there is a substantial likelihood based on the subject's individual treatment record that the individual would be a proper subject for commitment if treatment were withdrawn, then—and I stress this—the subject is considered dangerous.

So if [she's] not—if she's not recommitted, the [C]ounty's position is she's dangerous.

And that's what the case law holds. And that's what that decision holds—held. And that's—that's in the jury instructions.

See WISCONSIN JUDICIAL BENCHBOOKS : PROBATE , GUARDIANSHIP , AND MENTAL HEALTH , MH 1-42 (2020). The court read the instructions and modified special verdict question to the jury. The jury answered "yes" to all three questions on the special verdict—i.e., whether Catherine was mentally ill; whether she was dangerous to herself or others if not recommitted; and whether she was a proper subject for treatment. The court therefore entered an order extending Catherine's involuntary commitment and an order for involuntary medication and treatment during the recommitment term. Catherine now appeals.

DISCUSSION

I. Mootness

¶7 The recommitment order at issue in this appeal expired on August 18, 2021. As a result, we would ordinarily decline to consider the special verdict issue before us as moot. "An issue is moot when its resolution will have no practical effect on the underlying controversy." State ex rel. Olson v. Litscher , 2000 WI App 61, ¶3, 233 Wis. 2d 685, 608 N.W.2d 425. Moot appeals are generally dismissed, but courts have discretion to decide them under "exceptional or compelling circumstances." City of Racine v. J-T Enters. of Am., Inc. , 64 Wis. 2d 691, 702, 221 N.W.2d 869 (1974).

¶8 The parties ask us to consider the issue on appeal because it fits into multiple exceptions to the doctrine of mootness. This court may elect to address a moot issue if: (1) the issue is of great public importance; (2) the constitutionality of a statute is involved; (3) the issue arises often, making a definitive decision necessary to guide circuit courts; (4) the issue is likely to arise again and needs to be resolved to avoid uncertainty; or (5) the issue is "likely of repetition and evades review." See Marathon Cnty. v. D.K. , 2020 WI 8, ¶19, 390 Wis. 2d 50, 937 N.W.2d 901.

¶9 We agree with both parties that the proper form of the special verdict question fits into several established exceptions to the mootness doctrine. The proper form of the special verdict question is an issue that will likely recur in future recommitment trials, and therefore we should resolve the issue to prevent uncertainty.⁶ Further, this issue is of great public importance because the question of dangerousness is the cornerstone of the jury's analysis in a recommitment hearing. Therefore, that analysis directly impacts whether a subject individual's liberty interest will be affected by an extension of his or her commitment. This issue is also likely to evade review because commitments last for relatively short periods of time and the appellate process can be lengthy. Accordingly, we elect to decide the issue on its merits.

II. Special Verdict

¶10 Catherine argues that when the circuit court added the language "if not recommitted" to the dangerousness question on the special verdict form, it improperly changed the question of whether Catherine was currently dangerous to whether she would become dangerous if not recommitted. This, Catherine argues, is an error of "constitutional magnitude."

¶11 "[T]he content of the special verdict remains within the discretion of the circuit court[.]" Stuart v. Weisflog's Showroom Gallery, Inc. , 2008 WI 22, ¶12, 308 Wis. 2d 103, 746 N.W.2d 762. "[T]his court will not interfere with the special verdict submitted, so long as all material issues of fact are covered by appropriate questions, and so long as the form correctly and adequately covers the law that applies to the case." Id. (citations omitted). Whether a special verdict reflects an accurate statement of the law is a question of law that we review de novo. City of Milwaukee v. NL Indus. , 2008 WI App 181, ¶83, 315 Wis. 2d 443, 762 N.W.2d 757. We consider special verdicts in tandem with the associated jury instructions. Z.E. v. State , 163 Wis. 2d 270, 276, 471 N.W.2d 519 (Ct. App. 1991).

¶12 We agree with Catherine that the special verdict question regarding dangerousness was confusing and failed to ask the jury to determine whether Catherine was currently dangerous. In a WIS. STAT. ch. 51 proceeding, a petitioner has the burden to prove by clear and convincing evidence that a subject individual is mentally ill, a proper subject for treatment, and dangerous. See WIS. STAT. § 51.20(1)(a), (13)(e). A petitioner may prove that a person is dangerous and warrants commitment under any of the five standards set forth in § 51.20(1)(a) 2.a.-e. or, in the case of a recommitment, under those five standards in combination with § 51.20(1)(am). Portage Cnty. v. J.W.K. , 2019 WI 54, ¶18, 386 Wis. 2d 672, 927 N.W.2d 509.

¶13 Importantly, in a recommitment proceeding, the petitioner has the burden of proving that the subject individual is currently dangerous under WIS. STAT. § 51.20(1)(a)2. See Langlade Cnty. v. D.J.W. , 2020 WI 41, ¶34, 391 Wis. 2d 231, 942 N.W.2d 277. Under § 51.20(1)(am), if the subject individual is under a commitment "immediately prior" to the extension proceedings, then the petitioner may, as an alternative to the options outlined in § 51.20(1)(a) 2.a.-e., prove dangerousness by showing "a substantial likelihood, based on the subject individual's treatment record, that the individual...