Walworth Cnty. v. E.W. (In re E.W.)

1

In the matter of the mental commitment of E.W.:

Walworth County, Petitioner-Respondent, v. E.W., Respondent-Appellant.

No. 2023AP289

Court of Appeals of Wisconsin, District II

November 1, 2023

This opinion will not be published.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

APPEAL FROM ORDERS OF THE CIRCUIT COURT FOR WALWORTH COUNTY, NO 2018ME30 KRISTINE E. DRETTWAN, JUDGE.

GUNDRUM, P.J. ^[1]

¶1 Edward^[2] appeals from orders of the circuit court extending his involuntary commitment under Wis.Stat. ch. 51 and continuing the involuntary administration of medication and treatment.^[3] He contends that if the court had not committed "plain error" by relying upon improperly admitted hearsay evidence presented at the hearing on the County's related petition, the evidence presented would have been insufficient to support the orders. He additionally contends Wisconsin's involuntary medication statute Wis.Stat. § 51.61(1)(g)3., is "facially unconstitutional when combined with the recommitment standard under Wis.Stat. § 51.20(1)(am)." For the following reasons, we affirm.

Background

¶2 In February 2022, Walworth County filed a petition to extend Edward's involuntary commitment. Along with the petition the County filed an affidavit of Samantha Sanders, a crisis case management employee for the County. Edward contested the petition, and the circuit court held a hearing at which Sanders and Dr. Robert Rawski, an examining psychiatrist testified.

¶3 Edward has been involuntary committed, but not continuously, since at least 2012. Rawski testified that he had last seen Edward in February 2020 for an annual commitment extension evaluation. Edward and Rawski "missed each other" in 2021, and Edward did not show up for the evaluation scheduled on February 4, 2022. As relevant here, Edward chose to stop receiving his required medication injection in December 2021 and, as of the date of the hearing, February 24, 2022, he had not received it.

Discussion

Plain Error-Insufficiency of the Evidence Claim

¶4 An individual is a proper subject for a recommitment under Wis.Stat. § 51.20(1) if the County proves by clear and convincing evidence that the individual is mentally ill, a proper subject for treatment, and dangerous. See Langlade County v. D.J.W., 2020 WI 41, ¶31, 391 Wis.2d 231, 942 N.W.2d 277. Edward does not dispute the circuit court's conclusions that he is mentally ill and a proper subject for treatment. He insists, however, the court erred in concluding the County met its burden to prove he is dangerous.^[4] ¶5 As indicated, Edward's challenge to the sufficiency of the evidence is founded upon his contention that the circuit court erroneously determined he was currently dangerous (i.e., dangerous at the time of the hearing) because it erroneously relied on "inadmissible hearsay" in making that determination. Importantly, he does not challenge the lawfulness of the court's orders on the basis that the evidence presented at the hearing was insufficient if we conclude, as we do, that the evidence Edward claims the court erroneously relied upon was in fact properly relied upon.^[5]

¶6 Edward claims the "hearsay" evidence that was inappropriately admitted at the hearing includes statements related to him

making threats and damaging property at a church in 2012. Then in 2017, there was a series of incidents reported in a petition for commitment, including swimming in the marina in Racine, sleeping in homeless shelters or on the streets of downtown Racine, sleeping in someone's yard, climbing onto someone's roof to watch the Fourth of July parade, destroying his television with a baseball bat, and sending threatening texts to a former girlfriend.

He criticizes that "Dr. Rawski did not observe any of this behavior and relied entirely on the hearsay contained in his report." Edward next complains that Rawski

relied entirely on the hearsay contained in his report for his assertions that [Edward] had become more hostile toward staff, displayed "a significant paranoid hostility toward his case manager," became "argumentative in a paranoid fashion" with her, and began "arguing semantics" with her about his medications…. Dr. Rawski also relied on "a reference to a paranoia exhibited in the office during interviews with Dr. Ortell."

¶7 Significantly, Edward did not object to any of the statements admitted at the hearing that he now claims constitute "inadmissible hearsay." And, as our supreme court has stated, "[H]earsay is competent evidence and may be admissible unless objected to." Virgil v. State, 84 Wis.2d 166, 185, 267 N.W.2d 852 (1978). Due to his failure to (or decision not to) object, he has forfeited a direct challenge to the admission of the alleged hearsay evidence.^[6] See Waukesha County v. S.L.L., 2019 WI 66, ¶42, 387 Wis.2d 333, 929 N.W.2d 140 (concluding that a Wis.Stat. ch. 51 committee forfeited her sufficiency of the evidence claim because she did not raise an objection on that basis before the circuit court); State v. Ndina, 2009 WI 21, ¶30, 315 Wis.2d 653, 761 N.W.2d 612 ("[F]ailure to object [at trial] constitutes a forfeiture of the right on appellate review."). In such a circumstance, a challenge to the evidence is typically made within the context of an ineffective assistance of counsel claim. State v. Counihan, 2020 WI 12, ¶28, 390 Wis.2d 172, 938 N.W.2d 530 ("Generally, if a claim is forfeited, we address that claim in the context of ineffective assistance of counsel."); State v. Carprue, 2004 WI 111, ¶47, 274 Wis.2d 656, 683 N.W.2d 31; Winnebago County v. J.M., 2018 WI 37, ¶¶7, 34, 45, 381 Wis.2d 28, 911 N.W.2d 41. However, perhaps to avoid the difficult standard that must be met with an ineffective assistance of counsel claim, Edward does not make such a claim on appeal; instead, he attempts an end-around by asserting the circuit court committed "plain error" by allowing the unobjected-to "hearsay" evidence in at the hearing.

¶8 To succeed on a claim of "plain error," an appellant bears the burden of showing not only that an error was made, but that the error was "fundamental, obvious, and substantial." See State v. Nelson, 2021 WI.App. 2, ¶46, 395 Wis.2d 585, 954 N.W.2d 11 (2020) (citation omitted). If that showing is made, "the burden then shifts to the [respondent] to show the error was harmless." State v. Jorgensen, 2008 WI 60, ¶23, 310 Wis.2d 138, 754 N.W.2d 77. "If the [respondent] fails to meet its burden of proving that the error[] w[as] harmless, then the court may conclude that the error[] constitute[s] plain error." Id. "[C]ourts," however, "should use the plain error doctrine sparingly." Nelson, 395 Wis.2d 585, ¶46 (citation omitted). We consider de novo whether plain error has occurred, State v. Bell, 2018 WI 28, ¶8, 380 Wis.2d 616, 909 N.W.2d 750.

¶9 Edward's plain error contention fails to persuade. To begin, he simply claims, without developing the claim, that the statements he challenges were "hearsay." Not only does he fail to develop an argument as to why each challenged statement was admitted erroneously on the basis that it is hearsay, he does not even attempt to convince us that any of the "errors" in admitting the statements were "fundamental, obvious, and substantial." He fails in his plain-error challenge right there.

¶10 Beyond that, as the County notes, "[m]any of the statements [Edward] asserts are hearsay, are not hearsay as they are admissions by [a] party opponent" that were "offered against him at the recommitment hearing." The County correctly points out, for example, that

Rawski clearly states [in his report] that over the years, during their in person examinations, [Edward] admitted to him that he destroyed property at his church, swam in the marina, slept in homeless shelters and outside on the street, because he "wanted to see what it was like to be homeless," had made his mother frightened of him, and that his wife contacted police because she was concerned with [Edward's] behavior. (Emphasis added.)

Indeed, these "hearsay" statements are not hearsay at all, and therefore we see no error with their admission at the hearing, much less plain error.

¶11 As to whether other statements Edward complains about were erroneously admitted at the hearing, because he did not object to them at the hearing and has failed to develop an argument to convince us their admission was "fundamental, obvious and substantial" error, he has not convinced us the admission of any of the challenged statements constitutes plain error. As a result, we conclude that all of the challenged evidence was "competent evidence," see Virgil, 84 Wis.2d at 185, for the factfinder, here the court, to consider. Because Edward's challenge to the circuit court's dangerousness determination is founded and dependent upon his incorrect contention that the circuit court committed plain error in admitting the now-challenged evidence at the hearing and relying on it in its decision, we need say no more on this issue.

Edward's Constitutional Challenge

¶12 Edward contends "the combination of [Wis. Stat.] § 51.61(1)(g)3., governing involuntary medication, and Wis.Stat. § 51.20(1)(am), governing recommitment results in a statutory scheme that is facially unconstitutional," specifically asserting the scheme violates substantive due process protections. To succeed on a facial constitutional challenge, a litigant must establish beyond a reasonable doubt that the statutory scheme is unconstitutional. See Winnebago County v. C.S., 2020 WI 33, ¶14, 391 Wis.2d 35, 940 N.W.2d 875. Edward has failed to establish this.

¶13 Edward's modestly developed constitutional argument is founded upon his contentions that under Wis.Stat. § 51.61(1)(g)3., "the [County] is permitted to involuntarily medicate" a Wis.Stat. ch. 51...