Wisconsin Supreme Court scheduled to hear oral argument in four cases in March

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The cases listed below will be heard in the Wisconsin Supreme Court Hearing Room, 231 East, State Capitol in Madison.

The cases listed below originated in the following counties:
Milwaukee, Trempealeau, Waukesha, and Winnebago

TUESDAY, MARCH 19, 2024

I. 9:45 a.m. 22AP1329 State v. B. W.

This is a review of a decision of the Wisconsin Court of Appeals, District I (headquartered in Milwaukee) that affirmed the Milwaukee County Circuit Court order, Judge Ellen R. Brostrom, presiding, terminating B.W.’s parental rights to his son.

According to court documents, on May 14, 2021, the State filed a petition to terminate B.W.’s parental rights to his son. The State alleged that B.W.’s son was a child in continuing need of protection or services (continuing CHIPS) and that B.W. had failed to assume parental responsibility. In Wisconsin, the statutory procedure for the involuntary termination of parental rights has two phases: 1) the first phase—the grounds phase—where the petitioner, in this case the State, must prove by clear and convincing evidence that one of the statutorily enumerated grounds for termination of parental rights exists; and 2) the second phase—or the dispositional phase—where the circuit court must decide whether it is in the best interest of the child that the parent’s rights be terminated.

At the initial appearance hearing in this case, the circuit court advised B.W. of his rights. The court stated that in regard to the dispositional phase, the State would have to prove by clear, convincing, and satisfactory evidence that it’s in the child’s best interest that B.W.’s parental rights be terminated. On March 2, 2022, B.W. entered a no-contest plea to the continuing CHIPS ground. During the plea colloquy with B.W., the court again stated that it was the State’s burden to prove by clear, convincing, and satisfactory evidence to a reasonable degree of certainty that the grounds exist, and B.W. said he understood. The court went on to explain that by entering the no-contest plea to the continuing CHIPS ground, B.W. was not giving up his right to a trial on the second phase (or the dispositional phase), according to court documents.

The issues for the supreme court to decide are:
1) When a parent in a termination of parental rights case enters a no contest plea to grounds, is the circuit court’s plea colloquy defective if it informs the parent of the best interest standard but miscommunicates the burden of proof it is required to apply at disposition?

2) Did the circuit court improperly rely on the adoptive parent’s assurance that she would allow B.W. to continue to visit with his son in deciding to terminate his parental rights?

II. 11 a.m. 20AP1775 Kindschy v. Aish

This is a review of a decision of the Wisconsin Court of Appeals, District III (headquartered in Wausau) that affirmed the Trempealeau County Circuit Court’s order, Judge Rian Radtke presiding, issuing an injunction against Brian Aish, forbidding him from coming near Nancy Kindschy, her place of employment, and her home, for a period of four years.

According to court documents, Kindschy is a nurse practitioner who has worked at several family planning clinics. Since 2014, Aish has protested at several family planning clinics at which Kindschy worked. In 2019, Kindschy worked at the Blair Clinic, and Planned Parenthood began providing family planning services there. Between 2019 and 2020, Aish regularly protested at the Blair Clinic.1 It is undisputed that early interactions between Aish and Kindschy were not confrontational.

On March 10, 2020, Kindschy petitioned the Trempealeau County Circuit Court for a harassment injunction against Aish, claiming that Aish had engaged in threatening behavior toward her over a period of time that caused her to fear for her safety. The circuit court conducted a two-day injunction hearing at which it heard testimony from Kindschy, two of Kindschy’s co-workers, Aish, and Aish’s wife. Aish, a retired law enforcement officer, testified he protests at Planned Parenthood and other family planning clinics to “stand for children.” Aish denied any desire to harm or intimidate Kindschy, according to court documents.

Kindschy testified that in the fall of 2019, Aish became more aggressive and confrontational toward her, and seemed to single her out while he was protesting. There were several instances of Aish approaching Kindschy, and her co-workers’ testimony confirmed she was afraid when leaving work. The Clinic arranged for additional security based on her concerns.

After hearing all the testimony, the circuit court issued an injunction, enjoining Aish from harassing Kindschy, and requiring him to avoid Kindschy’s home or any premises temporarily occupied by her, including the Blair Clinic, for four years. The court found that Aish’s actions did not serve any legitimate purpose. The court agreed that First Amendment rights are “guarded” and protected, but also said that Kindschy having to endure intimidation from Aish’s statements “crosse[d] the line” in this particular case, according to court documents.

Aish filed an appeal with the court of appeals arguing, among other things, that the injunction violated his First Amendment rights by effectively banning him from ever protesting against Planned Parenthood at the Blair Clinic. The court of appeals affirmed the circuit court’s decision, emphasizing that the circuit court specifically found that Aish engaged in harassment “with intent to harass or intimidate”

A petition for review raised the following issues:

1) Whether Wis. Stat. § 813.125, as construed by the Court of Appeals to prohibit speech from a public sidewalk intended to persuade listeners to cease their sinful conduct (participation in abortion) and repent immediately before something bad happens and they no longer have time to repent, violates the First Amendment of the U.S. Constitution and Art. I, §3 of the Wisconsin Constitution?

2) Whether speech from a public sidewalk intended to persuade listeners, even if directed to a specific listener, to cease sinful conduct (participation in abortion) and repent immediately before something bad happens and there is no longer time to repent serves “no legitimate purpose” within the meaning of Wis. Stat. §813.125?

3) Whether enjoining, for a period of four years, a longtime prolife, anti- Planned Parenthood protestor from protesting on a public sidewalk in front of a Planned Parenthood during its business hours because he made comments urging a Planned Parenthood worker to repent before something bad happens and there was no more time to repent, constitutes an unconstitutional restraint on First Amendment protected expression?

600 U.S. ___, 143 S. Ct. 2106 (2023). Of a criminal prosecution, apply to all civil injunction cases under § 813.125 where the speech relied upon by the circuit court is alleged to fall within the category of “true threats?” Why or why not?

If strict scrutiny applies to the issuance of a harassment injunction under § 813.125 in this case, does the injunction issued under § 813.125 satisfy strict scrutiny, including in light of the reasoning of Counterman v. Colorado?

WEDNESDAY, MARCH 20, 2024 at 9:45 a.m.

III. 23AP215 Winnebago County v. D.E.W.

This is a review of a decision of the Wisconsin Court of Appeals, District II (headquartered in Waukesha) that affirmed the Winnebago County Circuit Court order, Judge Scott C. Woldt presiding, for involuntary mediation and treatment to D.E.W.

According to court documents, D.E.W. is an inmate in the Wisconsin prison system. Winnebago County filed a petition to extend D.E.W.’s mental commitment and for the involuntary administration of medication. At a hearing on the petition, the medical director at the Wisconsin Resource Center (WRC) testified that he had reviewed D.E.W.’s treatment records and had personally examined him on a number of occasions between August 24, 2022, the date of D.E.W.’s admission to the WRC, and the date of the hearing, October 20, 2022, including the morning of the hearing.

The medical director opined that D.E.W. suffers from schizoaffective disorder which “grossly impair[s] . . . [p]redominantly [his] behavior and capacity to recognize reality.” The doctor also opined that D.E.W. is dangerous and that his medical records “reflect on multiple incidences of dangerousness,” and further that D.E.W. is not competent to refuse medication,

The circuit court entered a written order for involuntary medication and treatment. The court found that “[m]edication or treatment will have therapeutic value”; D.E.W. “needs medication or treatment”; “[t]he advantages, disadvantages, and alternatives to medication have been explained” to D.E.W.; and “[d]ue to mental illness” D.E.W. “is not competent to refuse psychotropic medication or treatment because [he] is . . . substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his . . . condition in order to make an informed choice as to whether to accept or refuse psychotropic medications.”

D.E.W. appealed, arguing that Winnebago County failed to show by clear and convincing evidence that he was incompetent to refuse medication. The court of appeals disagreed and affirmed the medication order, holding that there was sufficient evidence in the record to support the circuit court’s findings that the County met its burden of proof.

D.E.W. petitioned the Supreme Court to review the court of appeals’ decision.

The issues for the supreme court to decide are:
1) What kind of testimony must the County present to satisfy the “reasonable explanation” requirement in Wis. Stat. § 51.61(1)(g)4?
2) Does this Court’s decision in Winnebago County v. Christopher S., 2016 WI 1, 366 Wis. 2d 1, 878 N.W.2d 109, permit the court of appeals to uphold a finding that the patient is incompetent to refuse medication based on “conclusory” testimony from the testifying doctor so long as the lower court finds that testimony “credible”?

IV. 23AP533 Waukesha County v. M.A.C.

This is a review of a decision of the Wisconsin Court of Appeals, District II (headquartered in Waukesha) affirming the Waukesha County Circuit Court order, Judge Laura F. Lau presiding, for the recommitment and involuntary medication of M.A.C. under Chapter 51 of the Wisconsin Statutes.

According to court documents, M.A.C. was first committed in June 2020, and since then has been recommitted several times. She is diagnosed with schizoaffective disorder, which is treated with a monthly injectable dose of Abilify Maintena along with two oral medications. During the initial commitment, M.A.C. was released to outpatient commitment under a conditional order that provided if she missed scheduled medication appointments, a statutory “DM” order4 would be issued authorizing the sheriff to bring her in for her monthly injection. M.A.C. repeatedly expressed the opinion that she did not have a mental illness and did not need medication. At some point, M.A.C. was evicted from her apartment.

On July 19, 2022, Waukesha County filed a petition with the Waukesha County Circuit Court seeking an extension of M.A.C.’s commitment. At the time the petition as filed, M.A.C. was homeless. The petition requested a recommitment hearing, asserting that M.A.C.’s recommitment was necessary to protect society, M.A.C., or both, and that M.A.C. is “dangerous because there is a substantial likelihood . . . that [M.A.C.] would be a proper subject for commitment if [her current] treatment is withdrawn,” according to court documents.

The court scheduled a recommitment hearing and the notice of that hearing directed M.A.C. to contact two court-appointed doctors for examination prior to the recommitment hearing. The notice provided the doctors’ phone numbers. The notice listed M.A.C. as homeless but indicated it was mailed to M.A.C., even though no mailing address was listed; the notice was mailed to the State Public Defender and to M.A.C.’s case manager. It is undisputed that M.A.C. was not personally served with notice of the recommitment hearing. M.A.C. did not contact either court-appointed doctor. Both doctors filed reports opining that M.A.C. met the statutory criteria for recommitment, according to court documents.