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In re Mental Commitment of J.W.J.

Supreme Court of Wisconsin

June 8, 2017

In the matter of the mental commitment of J.W.J:
J.W.J., Respondent-Appellant-Petitioner. Waukesha County, Petitioner-Respondent,

          Submitted on Briefs: January 17, 2017

         REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 370 Wis.2d 262, 881 N.W.2d 359 (2016 - Unpublished)

         REVIEW of a decision of the Court of Appeals. Affirmed.

         Circuit Court Waukesha County L.C. 2009ME1158 William Domina Justices Judge

          For the respondent-appellant-petitioner, there were briefs filed by and an oral argument by Kaitlin A. Lamb, assistant state public defender.

          For the petitioner-respondent, there was a brief filed by and oral argument by Robert J. Mueller, corporation counsel.

          SEPARATE WRITING: ABRAHAMSON, J. writes separately, joined by A.W. BRADLEY, J.

          DANIEL KELLY, J.

         ¶1 The petitioner, J.W.J., is an adult suffering from paranoid schizophrenia. He is currently subject to an involuntary commitment order and an order requiring him to undergo treatment and take medication prescribed for his condition. Waukesha County seeks to extend those orders for an additional year; Mr. J. says further involuntary commitment and treatment will not rehabilitate him, so he is not a proper subject for treatment within the meaning of Wis.Stat. § 51.20(1) (2015-16).[1] We review the unpublished decision of the court of appeals[2] affirming the Waukesha County circuit court's extension of those orders.[3]

         I. BACKGROUND

         ¶2 Mr. J. is a 55-year-old man who has suffered from mental health or substance abuse issues for most of his life. He has been subject to commitment orders almost continuously from 1990 to 2008, at which time he started an 18-month prison term. Upon release in 2009 he was adjudged so psychotic and threatening to others that he was immediately subjected to a new set of commitment orders that have been in place since then.

         ¶3 On June 16, 2015, Waukesha County filed a petition to extend Mr. J.'s involuntary commitment and treatment orders. At the time of the petition, Mr. J. was attending his appointments, receiving medication, and living independently in the community. The County's current petition represents the sixth extension of Mr. J.'s commitment and treatment orders.

         ¶4 Mr. J.'s medical records provide a sense of his longstanding, continual struggles from his youth up through 2014:

Mr. J[4] has a lengthy history of drug and alcohol abuse. Marijuana, LSD and barbiturates abuse started at the age of 15 if not earlier. In 1979, at the age of 17, he experienced an LSD overdose which required treatment at the . . . Child and Adolescent Center. He was diagnosed with Drug Induced Schizophrenia.
[I]n-patient treatment periods extend from 1980 through 2014 . . .; approximately 12 psychiatric admissions to the [Mental Health Center]. Additionally, psychiatric treatment at the . . . Resource Center during his incarceration.
Mr. J. has a history of criminal behaviors over the years including car theft, robberies, two DWI, burning down a field as well as a 2008 conviction for selling marijuana out of a [store] . . . he ran in [a certain municipality]. His prison sentence was 18 months. During this period of time he became quite upset and wrote a threatening letter to his mother as well as [a] sexually explicit letter to the female warden. Mr. J was committed in 2009 . . . [and] has been under commitment almost consistently since 1990.
Over the course of mental health treatment Mr. J. has shown a significant lack of insight into his mental illness and a lengthy history of not cooperating with taking psychiatric medications. Many of his hospitalizations occurred after a period of refusing medications with the expected results that Mr. J. became increasingly more paranoid, rambling/pressured speech, sleep problems, often times experiencing command-type auditory hallucinations to kill himself or others along with depression and/or agitated behaviors. Significant alcohol usage has also continued over the years. Mr. J. continues to insist that it is the psychotropic medications which causes all of his mental health symptoms.
The last hospitalization . . . 3/1/14 to 3/27/14 occurred after he was taken by the Sheriff's Department to get his IM [intramuscular] injection which he had previously refused to get. Mr. J. was noted by the attending MD to be rambling and bizarre. Patient complained of "the beast" throwing glass around his apartment. He wanted the police to get him a tank and bombs so that he could kill the beast. He was then admitted to the [Mental Health Center].[5]

         ¶5 The Recommitment Report filed along with the County's petition to extend Mr. J.'s commitment described Mr. J.'s status in 2015:[6]

Mr. J. is making his appointments and is receiving his IM medication. He has been [sic] maintained his current housing and remains [in] the community. There [have] been no inpatient hospitalizations this past year. Mr. J. is experiencing a number of medical problems which may be due to his current medication. . . . His diagnoses are Axis I Schizophrenia, Alcohol Use Disorder and History of Cannabis Use Disorder. He continues to state he is allergic to all psychotropic medication. He at the last shot appointment said the medication makes him feel like he is being murdered every night. Given the medication changes being made and Mr. J's lack of insight into his illness [the advanced practice nurse prescriber] is requesting an extension of the current commitment.

         ¶6 Doctor Koch tried to personally examine Mr. J. in 2015 in connection with his involuntary commitment but could not because Mr. J. would not allow it: "Mr. J. contacted this examiner by telephone and he quickly stated that he would not cooperate in a personal interview and he would not answer questions over the telephone. Mr. J. disconnected the call prior to this examiner being able to read him his rights." Consequently, Dr. Koch based the Report on Mr. J.'s existing medical records and other information he was able to assemble without a personal examination.

         ¶7 Dr. Koch's evaluation resulted in this assessment:

This past treatment year Mr. J. has not been hospitalized. He has maintained his current housing and remains in the community. Mr. J. has been compliant with psychotropic medications but he has stated that he is "allergic" to all psychotropic medications. He continues to show lack of insight into his illness.

         Dr. Koch checked the boxes in the Report that indicate it was his opinion, to a reasonable degree of professional certainty, that Mr. J. is mentally ill, [7] dangerous, [8] is an appropriate subject for outpatient treatment, and that psychotropic medication would be therapeutically valuable to him. Dr. Koch also wrote that Mr. J.'s mental illness makes him "substantially incapable of applying an understanding of the advantages, disadvantages and alternatives in order to make an informed choice as to whether to accept or refuse psychotropic medication." Dr. Koch concluded that "[t]here is nothing in [Mr. J.'s] record to suggest there has been any significant change in his status. He continues to be a patient who has a history of improved behaviors when appropriately medicated and deterioration in the ability to function in the community when not appropriately medicated."

         ¶8 At the hearing on the County's petition to extend Mr. J.'s commitment, Dr. Koch testified consistently with his report. In particular, he said Mr. J.'s schizophrenia is treatable "to the extent that when treated with medications . . . his behavior is improved and he can survive in the community." He explained that this treatment lessens the disordering of Mr. J.'s thought, mood, and perception.

         ¶9 Dr. Koch also explained why he believes Mr. J. is dangerous. He testified that Mr. J.'s "history is one of inconsistent utilization of psychotropic medications. When he's not appropriately medicated, he becomes increasingly more agitated, paranoid, grandiose at times, and he started having hallucinations, demand hallucinations to either harm himself or others." However, "[w]hen he's taking medications, while some of those experiences and symptoms may still be present, he doesn't act on them."

         ¶10 Doctor Koch said he does not believe Mr. J. would take his medications absent a court order to do so: "[T]he current evidence from the extension report as well as my prior history with him and his behaviors indicates that when not ordered to take psychotropic medications that he doesn't do it." And without his medications, Dr. Koch said, Mr. J. would require confinement for inpatient care.

         ¶11 When the hearing concluded, the circuit court granted the County's petition. It found that Mr. J. continues to suffer from a mental illness (in the form of paranoid schizophrenia), he is a proper subject for treatment and benefits from it, he can function in the community in large part because of this treatment, and he satisfies the definition of "dangerousness" because if treatment were to cease, he would be a proper subject for commitment. The court extended Mr. J.'s involuntary commitment order for 12 months. It also extended the medication and treatment order, which requires Mr. J., inter alia, to attend his appointments, take his medications as prescribed, not engage in any acts or attempts or threats to harm himself or others, and not take any non-prescription controlled substances or alcoholic beverages.

         ¶12 The court of appeals, in a concise opinion, affirmed the circuit court in all respects. The court of appeals applied the analytical framework we described in Fond du Lac County v. Helen E.F., 2012 WI 50, 340 Wis.2d 500, 814 N.W.2d 179, and found that because Mr. J. has rehabilitative potential, he was a "proper subject of treatment."

         ¶13 We granted Mr. J's petition for review and now affirm.


         ¶14 This case requires us to interpret provisions of Wis.Stat. ch. 51. While our review of questions of law is independent from the circuit court and court of appeals, we benefit from their analyses. State v. Steffes, 2013 WI 53, ¶15, 347 Wis.2d 683, 832 N.W.2d 101.

         ¶15 We must also review whether the County has met its burden of proof to support extension of Mr. J.'s commitment. This presents a mixed question of law and fact. We uphold a circuit court's findings of fact unless they are clearly erroneous. K.N.K. v. Buhler, 139 Wis.2d 190, 198, 407 N.W.2d 281 (Ct. App. 1987). Whether the facts satisfy the statutory standard is a question of law that we review de novo. Id.

         III. ANALYSIS

         ¶16 Mr. J. wishes to live his life free of Waukesha County's commitment and medication orders because he believes they have brought him as much rehabilitation as they are capable of bringing. Waukesha County, however, says that Mr. J.'s condition will deteriorate if the orders lapse, making him a danger to himself and those around him.

         ¶17 There is, of course, an inherent tension between the public's interest in involuntarily treating an individual and that individual's liberty interest.[9] On the treatment side, the people of Wisconsin have recognized the challenges that mental illness, developmental disabilities, and substance abuse present--both to the public and the individuals suffering from such disorders. So "[i]t is the policy of the state to assure the provision of a full range of treatment and rehabilitation services . . . for all mental disorders and developmental disabilities and for mental illness, alcoholism and other drug abuse." Wis.Stat. § 51.001(1).

         ¶18 However, not all who could benefit from such services will partake of them. And of those who will not, there will be a subset whose condition will make them dangerous--either to themselves, or to others. To ward against the danger their condition presents, our statutes provide for involuntary commitment when: "1. The individual is mentally ill or . . . drug dependent or developmentally disabled and is ...

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