Walworth County v. E. W.

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.
November 1, 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. 2023AP289 Cir. Ct. No. 2018ME30

IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE MENTAL COMMITMENT OF E.W.:

WALWORTH COUNTY,

PETITIONER-RESPONDENT,

V.

E.W.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Walworth County:
KRISTINE E. DRETTWAN, Judge. Affirmed.
No. 2023AP289

¶1 GUNDRUM, P.J.1 Edward2 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.

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
Edward is a pseudonym.
3
We note that the commitment and involuntary medication and treatment orders Edward
appeals are dated February 24, 2022. Edward had filed several motions to extend the time to file
a postdisposition motion or notice of appeal and did not file the notice of appeal until
February 15, 2023. By that time, the County had already filed a new petition for another
extension of Edward’s commitment. After a trial to a jury, the circuit court entered orders
extending Edward’s commitment and involuntary medication and treatment through March 8,
2024.

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No. 2023AP289

¶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

4
Edward also asserts the circuit court clearly erred in finding that Edward is “showing
significant paranoid hostility toward his case manager, Ms. Sanders, who testified to that today.”
He states Sanders “said no such thing.” In its response brief, the County concedes Sanders “did
not use the words ‘significant paranoid hostility’ in her testimony,” but then adds “however, …
she did testify that she noticed changes in his behavior over the past year and that he was acting
in ways that he had not done before” and then refers to the court’s “numerous other factual
findings, which were not erroneous, that support the recommitment.” Edward does not counter
the County’s response in his reply brief. See Hoffman v. Economy Preferred Ins. Co., 2000 WI
App 22, ¶9, 232 Wis. 2d 53, 606 N.W.2d 590 (1999) (“An argument to which no response is
made may be deemed conceded for purposes of appeal.”).

(continued)

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No. 2023AP289

¶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.

Our review of the transcript shows that while Sanders herself did not testify that Edward
was “showing significant paranoid hostility” toward her, Rawski did. Rawski testified that
Edward had displayed “subtle symptoms” in the prior year “includ[ing] a significant paranoid
hostility toward his case manager,” Sanders. Rawski further testified that Edwards “has been
argumentative in a paranoid fashion with his case manager during attempts at reminding him of
the conditions of commitment” and “[w]hat you see here is a paranoid argumentativeness with
hostility which is a change from when he is asymptomatic.” Thus, evidence was presented at the
hearing supporting the court’s finding that Edward had been “showing significant paranoid
hostility toward” Sanders; the court’s error in stating that this evidence came from Sanders when
it actually came from Rawski is harmless.
5
Edward summarizes his insufficient-evidence claim as “[w]ithout the hearsay, the
admissible evidence showed only that [Edward] had been dangerous in the (fairly distant) past,
that he did not want to take medication, and that he did not believe he needed it. Again, this was
not enough to sustain” the circuit court’s orders. (Emphasis added.) Edward does not contend
that “even if” the circuit court did not commit plain error in admitting the “hearsay” evidence at
the hearing, the totality of the evidence was nonetheless insufficient to support a determination of
dangerousness.

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No. 2023AP289

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

6
Edward relies upon S.Y. v. Eau Claire County, 156 Wis. 2d 317, 457 N.W.2d 326 (Ct.
App. 1990), aff’d, 162 Wis. 2d 320, 469 N.W.2d 836 (1991), in contending that the circuit court
here could not rely upon the alleged “hearsay” evidence in determining dangerousness. In S.Y.,
however, the alleged hearsay evidence was objected to on the basis that it was hearsay, but the
objection was overruled by the circuit court. We held that the court erroneously exercised its
discretion in admitting the evidence “[b]ecause there was no stated rationale for the [circuit]
court’s decision and because the County fail[ed] to identify any statutory or case law supporting
its position on appeal.” Id. at 328. Here, Edward did not object to the alleged hearsay evidence
of which he now complains; therefore, the evidence constitutes “competent evidence.” See
Virgil, 84 Wis. 2d at 185.

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No. 2023AP289

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

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No. 2023AP289

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.

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No. 2023AP289

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 committee who is “not
competent to refuse medication” without being required to prove that the person is
dangerous; the statutory scheme “permits indefinite involuntary medication of
individuals based solely on predictions of future potential dangerousness”; the
prevention of “hypothetical future danger” is an insufficient basis for the
“substantial interference with [a] person’s liberty,” that is, involuntarily
medicating a person; these statutes allow for involuntary medication of people “to
prevent them from possibly becoming dangerous at some future time”; involuntary
medication “cannot be justified merely because an expert predicts that the person
may become dangerous if unmedicated”; the statutory scheme “allows involuntary
medication based on incompetence without dangerousness”; and “without a
requirement of any recent act or omission, he can be forcibly medicated based on
his past behavior and a prediction about his future behavior regardless of whether
he actually poses any danger right now.” Edward’s facial challenge falls quickly
as its entire foundation—that a person can be involuntarily medicated without a

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No. 2023AP289

finding of current dangerousness—is simply incorrect. In fact, his contention
borders on frivolous.

¶14 In the context of a facial substantive due process challenge
stemming from a recommitment order, our state supreme court has held, fairly
recently, that the very statute underpinning Edward’s challenge here, WIS. STAT.
§ 51.20(1)(am) “is facially constitutional because it requires a showing of mental
illness and current dangerousness, as due process demands.” Waupaca County v.
K.E.K., 2021 WI 9, ¶21, 395 Wis. 2d 460, 954 N.W.2d 366 (emphasis added). As
the K.E.K. court pointed out, this statutory provision “require[s] that the County
prove, by clear and convincing evidence, that the individual is mentally ill, a
proper subject for treatment, and currently dangerous.” Id., ¶26 (emphasis
added).7 So, the statute does require a showing of current dangerousness not
merely a showing of “possibly becoming dangerous at some future time,” as

7
The K.E.K. court reiterated

The dangerousness standard is not more or less onerous during
an extension proceeding; the constitutional mandate that the
County prove an individual is both mentally ill and dangerous by
clear and convincing evidence remains unaltered. Each
extension hearing requires proof of current dangerousness. It is
not enough that the individual was at one point a proper subject
for commitment. The County must prove the individual “is
dangerous.” The alternate avenue of showing dangerousness
under paragraph (am) does not change the elements or quantum
of proof required. It merely acknowledges that an individual
may still be dangerous despite the absence of recent acts,
omissions, or behaviors exhibiting dangerousness outlined in
§ 51.20(1)(a)2.a.-e.

395 Wis. 2d 460, ¶25 (quoting Portage County v. J.W.K., 2019 WI 54, ¶24, 386
Wis. 2d 672, 927 N.W.2d 509).

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No. 2023AP289

Edward erroneously asserts.8 The K.E.K. court could not have been clearer in
saying that:

[A]s we authoritatively determined in J.W.K., WIS. STAT.
§ 51.20(1)(am) merely provides an alternative path for the
County to prove current dangerousness—it does not
change the requirement that the County prove, by clear and
convincing evidence, that the individual is mentally ill, a
proper subject for treatment, and currently dangerous. We
reaffirm that determination.

Id., ¶26 (emphasis added). Indeed, contrary to the requirement Edward appears to
be impliedly requesting us to create through this appeal, the K.E.K. court
specifically “decline[d] to create … a constitutional requirement that a county use
recent acts or omissions at a commitment extension proceeding.” See id., ¶28.
The court even went on to say that “to succeed on a [substantive] due process
claim here, K.E.K. must prove that [WIS. STAT] § 51.20(1)(am) does not require a
showing of current dangerousness. K.E.K. cannot do so because, as this court
unanimously recognized, § 51.20(1)(am) creates an alternative evidentiary path to
prove current dangerousness.” Id., ¶29. Lastly, the K.E.K. court concluded,
“because … § 51.20(1)(am) requires proof of current dangerousness, it satisfies
the Due Process Clause’s requirements.” Id., ¶30. Edward’s constitutional
argument fails.

8
Edward attempts to distinguish this case from Waupaca County v. K.E.K., 2021 WI 9,
¶21, 395 Wis. 2d 460, 954 N.W.2d 366, because recommitment was at issue in K.E.K. and
involuntary medication is at issue in this case. But, as Edward emphasizes in another section of
his brief, quoting Addington v. Texas, 441 U.S. 418, 425 (1979), “[a] ‘civil commitment for any
purpose constitutes a significant deprivation of liberty that requires due process protection.’”
Yet, he fails to sufficiently develop an argument as to why these two interferences with a person’s
liberty interests—recommitment and involuntary medication—should be treated differently.
More importantly, the underpinning of his entire argument is his contention that WIS. STAT.
§ 51.20(1)(am) does not require a showing of current dangerousness, which, as we note, is
directly at odds with K.E.K. and J.W.K.

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No. 2023AP289

By the Court.—Orders affirmed.

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

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