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BENCH BLOG: Mental commitment case shows the need to question

Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.

Jean DiMotto is a retired Milwaukee County Circuit Court judge. She served for 16 years, and was on the criminal bench for 12 of those years.

A mental commitment case that recently went before the state Supreme Court offers a valuable lesson to attorneys and judges: listen closely.

It’s a lesson learned early on, but one that can get set aside in the day-to-day pressure of trying and deciding a case.

Case history

The case involved a 25-year-old woman who was diagnosed with a psychotic disorder after her boyfriend found her wandering through her apartment complex disoriented and confused. Outagamie County successfully petitioned for a six-month outpatient commitment and an order for involuntary administration of medication under Chapter 51.

Before the outpatient commitment and medication orders expired, the county commenced Outagamie County v. Melanie L., petitioning for a one-year extension of both orders. At the hearing on the petition, the evidence included testimony as well as the report from a psychiatrist who evaluated the woman at the behest of the county. The woman presented no evidence.

The psychiatrist reported that the woman told him she requested one antipsychotic medication, Seroquel, instead of another, Risperdal, because she felt better on Seroquel. She stopped taking a prescribed antidepressant because she believed Seroquel was sufficient, and she took an anti-anxiety medication as prescribed for intermittent anxiety. She was dissatisfied with her treating psychiatrist and was seeking a private doctor because she had received health insurance.

In his report and twice while testifying, the evaluating psychiatrist opined that although the woman understood the benefits and risks of psychotropic medications, she wasn’t able to apply that knowledge “to her advantage.”

That testimony was given despite the county’s phrasing of the question to track the statutory language of applying medication knowledge to her condition such that she could make an informed choice to accept or refuse medication.

The lower courts’ decisions

Outagamie County Circuit Judge Michael Gage concluded the woman was a person who “by the clear greater weight of the evidence” could not apply an understanding of medications “to her present circumstance.” He therefore extended the orders for commitment and involuntary administration of medication.

The woman appealed only the medication order. In a brief Third District Court of Appeals decision, Judge Mark Mangerson affirmed, writing that the psychiatrist did not have to “iterate the specific words of the statute.”

He also rejected the woman’s assertion that the record supported a conclusion that she can apply medication knowledge to her mental illness, noting that such a conclusion “overlooks the deference we give to the circuit court’s factual findings and reasonable inferences.”

State justices weigh in

Despite the fact that the medication order had by then expired and the issue was thus moot, the Wisconsin Supreme Court accepted the case in order to interpret and clarify the law on the competency standard in sec. 51.61(1)(g)4.b.

The court gave the language of the statute its plain and ordinary meaning, but first traveled through legislative and case law history to emphasize both the presumption of competence and the underlying principle of informed choice to either accept or refuse medication.

Even though the majority, in an opinion written by Justice David Prosser, thought that on the facts, it was a “close case,” it reversed the Court of Appeals decision because of “clear deficiencies” at the trial court level, namely, the judge’s misstatement of the burden of proof and the expert’s opinion that deviated from the statutory standard.

The dissent, authored by Justice Annette Ziegler, echoed the Court of Appeals that the appellate standard is to defer to a trial court’s factual findings unless they are clearly erroneous. Further, the dissent asserted that experts and trial courts are not required to use “magic words.”

Lessons to be learned

While the case has particular importance to attorneys and judges in mental commitment cases, it is instructive for the full bench and bar.

It should go without saying that both attorneys and judges must listen carefully to expert testimony. When experts use nonstatutory phrases, their opinions require legal or judicial exploration.

In most cases the proponent is on notice of the variance because it has the expert’s written report prior to the hearing. In the woman’s case, the county should have explored the variance with the doctor ahead of the hearing.

During the hearing, the county arguably could have been more diligent in eliciting the doctor’s opinion in words consonant with the statutory language. On the other hand, cross-examination should have exposed and highlighted the variance because it favored the woman’s case.

The case raises the point that judges, too, need to be alert to the governing statutory standard during expert testimony.

Thoughtful comparison of the statute with the expert’s testimony could have led the judge to question the psychiatrist: “Now, you’ve said, ‘to her advantage.’ What do you mean by that?”

The misstated burden of proof also was problematic. “Clear greater weight of the evidence” mashed together the middle burden, “clear and convincing evidence,” with the lowest burden, “greater weight of the credible evidence.”

Articulating the correct burden not only makes a clean record but also reminds the judge to evaluate the evidence at the correct level of persuasion. The dissent’s argument that the evidence was uncontroverted is off point. Even uncontroverted evidence can fail to meet the burden of clear and convincing evidence.

Attorneys need to be attentive to a judge’s statements and intervene when there is an inadvertent misstatement. Simply asking, “Your honor, I’m sorry to interrupt, but did you mean to say ‘clear and convincing evidence?’” could have helped here.

After all, it is the attorneys’ case as much as the judge’s. All three are members of the adversary system of litigation and although each one’s role is different, each should protect the collective record so that it is mistake-free.


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