Portage Cnty. v. J.W.K. (In Re Mental Commitment of J.W.K.)
Portage Cnty. v. J.W.K. (In Re Mental Commitment of J.W.K.)
Opinion
*513 *678 ¶1 An issue is moot when its resolution will have no practical effect on the underlying controversy. In this review of a Chapter 51 recommitment order, we consider whether J.W.K.'s sufficiency-of-the-evidence challenge to the 2016 order extending his commitment is rendered moot because the 2016 order expired after the court extended his commitment in 2017 under a separate order. 1 Reversing the expired 2016 order for insufficient evidence would have no effect on subsequent *679 recommitment orders because later orders stand on their own under the language of the statute. We therefore hold that J.W.K.'s sufficiency challenge is moot, and we affirm the court of appeals' decision dismissing the appeal. 2
I. BACKGROUND
¶2 J.W.K. was originally committed in February 2016 for six months under
¶3 The circuit court held a hearing on the extension petition in August 2016. At the hearing, the County presented only the testimony of Dr. James Persing, who testified J.W.K. was suffering from schizophrenia, and the symptoms included "most prominently ... delusional thinking and paranoia." Persing said that J.W.K. was being treated with medication, and this medication helped "organize [J.W.K.'s] thought processes" and clear his delusional thinking and hallucinations. Persing also opined that J.W.K. would be a proper subject for commitment if treatment were withdrawn. On cross-examination, Persing clarified that he based his opinion on *514 J.W.K.'s "history" and "overall struggles with chronic mental illness for many years with variable levels of compliance with treatment, and leading up to a point of [a] variety of altercations." The doctor made clear J.W.K.'s "need for mental health commitment." 4
¶4 J.W.K. testified on his own behalf. When his attorney asked whether he understood the hearing was to determine whether his commitment would be extended, J.W.K. responded that the hearing "involve[d] more than that," and proceeded to tell the circuit court that his family was stealing his money by "breaking and entering into" his "private property and ... private home ... and removing" his important "documents." When his attorney interrupted to redirect him, J.W.K. told the circuit court he would continue treatment on an outpatient basis and take his medication even if he were not committed.
*681 ¶5 At the conclusion of the testimony, the circuit court found the statutory dangerousness standard was satisfied because "there is a substantial likelihood that [J.W.K.] would be a proper subject for commitment if treatment were withdrawn." Accordingly, the circuit court extended J.W.K.'s commitment for twelve months, ending on August 2, 2017.
¶6 J.W.K. did not timely appeal this order, but filed a pro se motion asking for an extension "due to the lack of exchange of information due to conflicting interest." The court of appeals granted the motion, reinstated J.W.K.'s postcommitment rights and gave J.W.K. until April 24, 2017 to seek postcommitment relief. The State Public Defender's office appointed counsel for J.W.K. On April 3, 2017 his counsel filed a notice of intent to seek postcommitment relief and on August 7, 2017 filed a notice of appeal.
¶7 Meanwhile, with J.W.K.'s 2016 extension order expiring on August 2, 2017, the County filed a petition seeking another twelve-month extension of J.W.K.'s commitment, which the circuit court granted after holding a hearing on July 21, 2017.
¶8 In September 2017, the court of appeals ordered J.W.K. to file a memorandum addressing whether his appeal of the August 2016 order was moot, given he filed his notice of appeal after a new order extending his commitment had been entered in July 2017. After considering submissions addressing mootness from J.W.K. and the County, the court of appeals dismissed the appeal as moot "because J.W.K. is no longer subject to the order being appealed." The court of appeals acknowledged that "exceptions to dismissal based on mootness exist, as for example, when an issue is of great public importance or arises frequently but evades review," but it did not consider the mootness *682 exceptions because J.W.K. did "not argue that any of the exceptions appl[ied] in this case."
¶9 J.W.K. petitioned for review, arguing his appeal was not moot and asserting the evidence presented at the August 2016 extension hearing was insufficient to prove he was dangerous. We granted the petition.
II. ANALYSIS
A. Standard of Review
¶10 Mootness is a question of law we review de novo.
PRN Assocs. LLC v. DOA
,
*515
Waukesha Cty. v. J.W.J.
,
B. Discussion
¶11 Before addressing J.W.K.'s substantive claim on sufficiency of the evidence, we must first consider the threshold issue of whether J.W.K.'s appeal
*683
is moot. If the appeal is moot, then we do not reach J.W.K.'s sufficiency argument. "An issue is moot when its resolution will have no practical effect on the underlying controversy."
PRN Assocs. LLC
,
A moot case has been defined as one which seeks to determine an abstract question which does not rest upon existing facts or rights, or which seeks a judgment in a pretended controversy when in reality there is none, or one which seeks a decision in advance about a right before it has actually been asserted or contested, or a judgment upon some matter which when rendered for any cause cannot have any practical legal effect upon the existing controversy.
Fort Howard Paper Co. v. Fort Howard Corp.
,
¶12 Appellate courts generally decline to reach moot issues, and if all issues on appeal are moot, the appeal should be dismissed.
See
id.
;
PRN Assocs. LLC
,
¶13 The record is undisputed as to several critical facts. First, J.W.K. is no longer subject to the August 2016 recommitment order forming the basis for this appeal. That order lapsed when the court entered a new commitment order on July 21 2017. 5 Second, J.W.K. does not allege any defects in the July 2017 recommitment order. This makes J.W.K.'s challenge to the 2016 commitment order moot.
*516
¶14 An appeal of an expired commitment order is moot.
See
Winnebago Cty. v. Christopher S.
,
¶15 J.W.K. acknowledges the apparent lack of a live controversy, but he argues this case is not moot, and urges the court to address his sufficiency argument. He hinges his argument on what he construes to be different evidentiary standards governing initial commitment orders versus recommitment orders. J.W.K. contends a reversal of the August 2016 recommitment order would necessarily invalidate all later extensions, creating a domino effect voiding subsequent recommitment orders. Citing
State ex rel. Serocki v. Circuit Court For Clark Cty.
,
¶16 "[C]ommitment for any purpose constitutes a significant deprivation of liberty that requires due process protection."
Jones v. United States
,
¶17 To initiate commitment proceedings involving a mentally ill individual under
¶18 Wisconsin Stat. § 51.20 allows the initial commitment order to be extended for "a period not to exceed one year." § 51.20(13)(g) 1, (13)(g)3.
Upon application for extension of a commitment by the department or the county department having custody of the subject, the court shall proceed under subs. (10) to (13). [ 7 ] If the court determines that the individual is a proper subject for commitment as prescribed in sub. (1)(a)1. and evidences the conditions under sub. (1)(a)2. or (am) ... it shall order judgment to that effect and continue the commitment[.]
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§ 51.20(13)(g) 3 (emphasis added). An extension requires the County to prove the same elements by clear and convincing evidence: (1) the individual is mentally ill and a proper subject for treatment, and (2) the individual is dangerous.
See
¶19 Because an individual's behavior might change while receiving treatment,
If the individual has been the subject of inpatient treatment for mental illness ... immediately prior to commencement of the proceedings as a result of ... a commitment or protective placement ordered by a court under this section ... the requirements of a recent overt act, attempt or threat to act under par. (a)2. a. or b., pattern of recent acts or omissions under par. (a)2. c. or e., or recent *518 behavior under par. (a)2. d. 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 [.]
§ 51.20(1)(am) (emphasis added). Under this provision, if the individual who is the subject of extension proceedings is under commitment "immediately prior" to the extension proceedings, then the County may, as an *689 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 would be a proper subject for commitment if treatment were withdrawn." § 51.20(1)(am). This paragraph 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. In this way, paragraph (am) functions as an alternative evidentiary path, reflecting a change in circumstances occasioned by an individual's commitment and treatment. However, dangerousness remains an element to be proven to support both the initial commitment and any extension.
¶20 After the initial commitment period, which may last no longer than six months, "all subsequent consecutive orders of commitment of the individual may be for a period not to exceed one year."
¶21 J.W.K.'s domino theory that each extension depends on the validity of previous commitment orders is not supported by the text of the statute. First, reversing the August 2016 recommitment order does not retroactively deprive the circuit court that issued a subsequent commitment order of competency. The statute permits the extension of an individual's commitment for up to one year at a time, and contemplates consecutive orders of commitment.
See
¶22 While J.W.K. correctly notes the circuit court lacks competency to extend a commitment order once the previous order expires, the August 2016 order *691 remained in effect at the time J.W.K.'s commitment was extended in July 2017. Accordingly, the circuit court had competency to extend the commitment. An appellate court's later conclusion that the evidence was insufficient to support the August 2016 extension order would not retroactively change the fact that at the time the circuit court entered the extension order in July 2017, the prior order had not expired; therefore, the circuit court retained competency to enter the unchallenged July 2017 order.
¶23 Second, J.W.K. fails to identify any provision in
¶24 Each extension hearing requires the County to prove the same elements with the same quantum of proof required for the initial commitment.
See
¶25 Accordingly, even if we assume the insufficiency of the County's proffered evidence to support its petition for an extension of J.W.K.'s commitment in August 2016, J.W.K. received due process during the July 2017 recommitment proceedings because the County was required to establish the same elements required for any commitment or recommitment: J.W.K.'s mental illness and dangerousness. J.W.K. does not suggest the County failed to carry its burden of proof during the 2017 proceeding; therefore, J.W.K.'s due process rights were fully protected. 10
¶26 We reject J.W.K.'s and the concurrence/dissent's claim that
Serocki
supports J.W.K.'s domino theory. The issue in
Serocki
was whether an individual being committed timely filed a request for substitution prior to "any preliminary contested matters."
Serocki
,
¶27 However, the fact that recommitment proceedings are procedurally part of the original commitment action does not mean that the requisite findings of mental illness and dangerousness necessary to support a recommitment may be borrowed from the original proceeding. To the contrary, in
Serocki
, we explicitly acknowledged that "the circuit court must make a new determination of the individual's suitability for commitment at the recommitment hearing."
¶28 Because a decision invalidating the August 2016 recommitment order has no
*521
impact on subsequent extensions, each of which independently requires the County to meet the statutory burden of proof, J.W.K.'s argument that insufficient evidence supported the August 2016 order is moot.
11
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¶29 J.W.K. argues that concluding his case is moot may deprive him of meaningful appellate review because appellate proceedings in Chapter 51 commitments are rarely completed before a subsequent recommitment order is entered. The concurrence/dissent similarly laments the "lack of remedy," which it considers "especially troubling in light of the fact that an extension order is valid for no more than one year, and therefore, by the time an appeal is heard, there is likely to be a subsequent extension order in effect." Concurrence/dissent, ¶37 (footnote omitted). That a recommitment order will likely expire before appellate proceedings conclude does not transform a moot issue into a live controversy. Rather, such concerns may be addressed under the well-established exceptions to dismissal for mootness, particularly, issues capable of repetition yet evading review. In
G.S. v. State
, we explained the exceptions to dismissal for mootness include situations involving: (1) "issues [ ] of great public importance;" (2) "the constitutionality of a statute;" (3) issues that arise so often "a definitive decision is essential to guide the trial courts;" (4) "issue[s] ... likely to arise again and [that] should be resolved by the court to avoid uncertainty;" or (5) an issue "
capable and likely of repetition and yet evades review because
*696
the appellate process usually cannot be completed and frequently cannot even be undertaken within a time that would result in a practical effect upon the parties
."
G.S.
,
¶30 J.W.K. makes no argument that any of the exceptions to dismissal for mootness apply, and his sufficiency challenge does not appear to fit into any of the exceptions. J.W.K.'s sufficiency challenge is fact-specific. While it is undoubtedly extremely important to J.W.K., the issue is not of great
public
importance; the sufficiency of the evidence will be different in each case. J.W.K. raises no arguments concerning the constitutionality of
III. CONCLUSION
¶31 We agree with the court of appeals and hold J.W.K.'s sufficiency of the evidence *522 argument is moot because J.W.K. is no longer subject to the recommitment *697 order he is appealing. Accordingly, we affirm the court of appeals' decision dismissing J.W.K.'s appeal as moot.
By the Court. -The decision of the court of appeals is affirmed.
REBECCA FRANK DALLET, J. (concurring in part, dissenting in part).
¶32 The majority opinion concludes that because J.W.K. received due process during the July 2017 hearing, the validity of the August 2016 extension order is irrelevant and J.W.K.'s challenge to that order is moot. 1 I respectfully disagree. I conclude that the sufficiency of the evidence presented at J.W.K.'s August 2016 extension hearing determines the validity of the August 2016 extension order and necessarily also determines the validity of any subsequent extension orders. Thus, although J.W.K. is no longer subject to the order being appealed, the appeal from the August 2016 extension order is not moot. Accordingly, I examine the evidence presented at the August 2016 extension hearing and conclude that the circuit court's finding of current dangerousness was not erroneous.
¶33 In order to confine someone who is mentally ill, the County must show by clear and convincing evidence that the person is currently mentally ill and dangerous.
*698
Foucha v. Louisiana
,
¶34 As recognized by the majority, the circuit court lacks competency to extend a commitment order once the initial commitment order has expired. Majority op., ¶22.
See
G.O.T. v. Rock Cty.
,
¶35 J.W.K. properly asserts that an extension order is a continuation of the original commitment and creates a chain linking each prior order to any extension that follows. The statutory language supports this premise.
See
¶36 If the requirements of
¶37 The importance of the circuit court making a sufficient finding of current dangerousness prior to an extension of commitment cannot be overstated. The United States Supreme Court has emphasized that in order to confine a mentally ill individual, due process requires the County to show by clear and convincing evidence that the individual is currently mentally ill and dangerous.
Foucha
,
¶38 Because I find that J.W.K.'s appeal of the sufficiency of his August 2016 extension order is not moot, I reach the issue J.W.K. sought to raise on appeal: whether the County proved by clear and convincing evidence at the August 2016 extension hearing that J.W.K. would still be a proper subject for commitment if treatment were withdrawn.
5
This court defers to the circuit court's factual findings unless they are clearly erroneous.
See
Phelps v. Physicians Ins. Co. of Wis., Inc.
,
¶39 On direct examination, Dr. James Scott Persing testified that he examined J.W.K. and that, in his opinion, there was a substantial likelihood that J.W.K. would be a proper subject for commitment if treatment were withdrawn, pursuant to
¶40 The circuit court found that based upon the testimony of Dr. Persing and J.W.K., there was a substantial likelihood that J.W.K. would be a proper subject for commitment if treatment were withdrawn. While the testimony supporting Dr. Persing's opinion as to J.W.K.'s current dangerousness was minimal, I nevertheless conclude that the findings of the circuit court are not clearly erroneous and must be upheld.
¶41 In sum, I conclude that J.W.K.'s appeal of his August 2016 extension order is not moot and therefore I would reverse the court of appeals' decision. Further, I reach the issue regarding the sufficiency of the evidence presented at the August 2016 extension hearing, which the majority opinion and court of appeals failed to address, and conclude that the circuit court's finding that J.W.K. was dangerous was not clearly erroneous. Therefore, I concur in part and would affirm the circuit court's August 2016 extension order.
¶42 For the foregoing reasons, I concur in part and dissent in part.
¶43 I am authorized to state that Justices SHIRLEY S. ABRAHAMSON and ANN WALSH BRADLEY join this concurrence/dissent.
Wisconsin Stat. § 51.20 uses "recommitment" and "extension of a commitment" interchangeably and we do as well. See § 51.20(13)(g) 2r ("Twenty-one days prior to expiration of the period of commitment under subd. 1., the department ... shall file an evaluation of the individual and the recommendation of the department or county department regarding the individual's recommitment with the committing court and provide a copy of the evaluation and recommendation to the individual's counsel and the counsel designated under sub. (4).... A failure of the department or the county department to which an individual is committed to file an evaluation and recommendation under this subdivision does not affect the jurisdiction of the court over a petition for recommitment ." (emphasis added)); see also § 51.20(13)(g) 3 ("Upon application for extension of a commitment by the department or the county department having custody of the subject, the court shall proceed under subs. (10) to (13)." (emphasis added)).
Portage Cty. v. J.W.K. , No. 2017AP1574, unpublished slip op. (Wis. Ct. App. Jan. 24, 2018).
All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated.
Persing based his opinion primarily on J.W.K.'s treatment history; he met with J.W.K. for "approximately five minutes or less."
J.W.K. is no longer subject to the July 21, 2017 commitment order; it was in effect for only twelve months and expired in July 2018.
In
Winnebago Cty. v. Christopher S.
,
Wisconsin Stat. § 51.20(10) details the requirements for hearings, subsection (11) addresses jury trials, subsection (12) delineates an exception to the requirement of open hearings, and subsection (13) deals with the disposition of the petition for involuntary commitment. § 51.20(10) -(13).
The concurrence/dissent concludes that a later judicial determination of insufficient evidence to support the August 2016 order renders that order retroactively invalid, resulting in the expiration of the original commitment before any valid extension. Concurrence/dissent, ¶¶34,36. The concurrence/dissent misunderstands the text of Chapter 51. When the commitment was extended in July 2017, the August 2016 order remained in place, and as a factual matter, the orders were therefore consecutive. Accordingly, the circuit court retained competency to extend J.W.K.'s commitment in 2017.
Concurrence/dissent, ¶35.
Contrary to the concurrence/dissent's characterization of our due process analysis as "pay[ing] lip service" to constitutional protections afforded the mentally ill, we explain that because subsequent extension proceedings require the dual showings of mental illness and current dangerousness, the proceedings in this case protected J.W.K.'s due process rights. The concurrence/dissent misreads the applicable statutes (and apparently this opinion) in concluding otherwise.
Our holding that J.W.K.'s sufficiency challenge is moot is limited to situations where, as here, no collateral implications of the commitment order are raised. J.W.K. points out there may be "a variety of reasons other issues in chapter 51 cases are not moot even though a subsequent extension order has been entered or the order expired," including "the implications of a firearms ban when initially committed, potential civil claims related to an illegal commitment," and any attempt by the County to recover its cost of care. J.W.K. does not argue any of these collateral circumstances; therefore, we do not address them.
The majority uses the term "recommitment," however, I use the language included in the statutory provision which governs commitment beyond the initial commitment order.
See
majority op., ¶1 n.1. That section refers to the filing of an "application for extension of a commitment" and requires proof that the individual "is in need of continued commitment" in order for the circuit court to enter judgment to "continue the commitment."
See
There are other paths in
At the July 2017 hearing, the County followed the alternative evidentiary path to prove current dangerousness pursuant to
See
The circuit court extended J.W.K.'s commitment prior to completion of briefing on appeal.
Reference
- Full Case Name
- In the MATTER OF the Mental COMMITMENT OF J.W.K.: Portage County, Petitioner-Respondent, v. J.W.K., Respondent-Appellant-Petitioner.
- Cited By
- 139 cases
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- Published