COURT OF APPEALS DECISION DATED AND FILED August 13, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from orders of the circuit court for
¶1 BROWN, C.J.[1] Heidi G. H. appeals the orders extending her commitment due to mental illness and allowing for involuntary medication and treatment under Wis. Stat. §§ 51.20 and 51.61(1)(g)2. The orders were entered following a jury trial. Heidi’s first complaint on appeal is that the verdict form asked only whether she was “dangerous to herself or to others.” Heidi argues that dangerousness to herself, on one hand, and to other people, on the other hand, are separate grounds for a mental health commitment. Thus, she goes on, she has a due-process right not to be committed unless five-sixths of the jurors agree on one or the other of these grounds. Under the verdict form as written, however, the jury might have reached a five-sixths verdict when, for example, three jurors believed she was dangerous to herself, and two that she was dangerous to others. We affirm because we conclude that the different forms of dangerousness listed in § 51.20 do not constitute separate elements required for commitment. Rather, the element upon which five-sixths of the jury must agree is the overarching finding of dangerousness. We further conclude, in response to Heidi’s second argument, that the jury heard sufficient evidence of Heidi’s dangerousness that we must sustain its verdict.
¶2 The Sheboygan County Health and Human Services Department filed petitions in the circuit court for an extension of Heidi’s commitment, and for involuntary medication and treatment, in July 2007. At the time, Heidi was residing at the Trempealeau County Health Care Center, having been committed there in January of that year. Heidi requested a jury trial, which was held in August. The jury heard testimony from Heidi, as well as from a psychiatrist, a social worker, and a nurse care manager, all of whom had experience with Heidi.
¶3 At the conclusion of testimony, the court held a brief jury instruction conference. The proposed instruction on dangerousness repeatedly referred to whether Heidi was “dangerous to herself or others.” However, the definition of “dangerous to herself or others” referred only to probability of physical harm to others and to others being placed in “reasonable fear of violent behavior and serious physical harm.” This is the definition of dangerousness to others found at Wis. Stat. § 51.20(1)(a)2.b; the instruction did not incorporate the definition of dangerousness to oneself found in § 51.20(1)(a)2.a. Heidi’s counsel questioned whether the “dangerous to herself” language was appropriate, but the court stated that it would remain in the instruction because it “recites the statutory language.” Because the proceeding was one for an extension of commitment, the jury was also instructed that it could find Heidi dangerous to herself or others if there was a substantial likelihood that she would be a proper subject for commitment if her treatment were withdrawn. See § 51.20(1)(am).
¶4 The jury returned a verdict finding that Heidi was mentally ill, dangerous to herself or others, and a proper subject for treatment. See Wis. Stat. § 51.20(1)(a)1. and 2. The jury was unanimous on the first and third questions, but one juror dissented on the question of dangerousness. Heidi appealed.
¶5 Wisconsin Stat. § 51.20(11)
provides that if an individual subject to commitment demands a jury trial, the
jury is to consist of six jurors, five of whom must agree to the verdict. The burden is on the petitioner to show all
required facts by clear and convincing evidence. Section 51.20(13)(e). Heidi first argues that because the jury
instruction referred both to dangerousness to self and dangerousness to others,
there may not have been a five-sixths verdict on either type of dangerousness.[2] She relies primarily on State v. Aimee M., 194
¶6 On appeal, Aimee argued that the verdict form was inadequate
for two reasons: it failed to ensure
that five-sixths of the jury agreed to the same factual allegation; and it
asked the jury to determine whether the children were in need of protection or
services, which Aimee contended was a legal question for the court.
Taken together, the requirements for particularized pleadings in the petition, the subsequent fact-finding hearing requiring the allegations to be proved by clear and convincing evidence, followed by the dispositional hearing where new evidence is limited to the issue of disposition, belies the county’s assertion that the legislature intended the fact finder to lump all the jurisdictional grounds together and to consider them in the aggregate.
¶7 In our view, there are two crucial differences between the
statutory scheme at issue in Aimee M. and the one at issue
here. First, the grounds for meeting the
jurisdictional requirement of the CHIPS statute are numerous, diverse, and
discrete. For example, a child who is
without a parent or guardian comes within the statute, as does one whose
parents are neglectful; but so does one who has not been immunized, or exempted
from immunization, according to Wis.
Stat. § 252.04. Wis. Stat. § 48.13(1), (10),
(10m), (13). So does a child who is
being physically or sexually abused, or a child in whose home methamphetamine
is being manufactured, or a child who is abusing drugs and whose parents are
not providing adequate treatment. Sec.
48.13(3), (11m); Wis. Stat. § 48.02(1)(a),
(b), (g). Any of these factual
predicates, if found by the jury, will support the court’s legal determination
that a child is in need of protection or services. See
Aimee
M., 194
¶8 Relatedly, the ultimate finding in a CHIPS case, that a child
is in need of protection or services, is a legal conclusion that the court must
draw from the jury’s finding of certain facts.
¶9 In a Wis. Stat. ch. 51 commitment, on the other hand, though there are five varieties of dangerousness described in the statute, each shares the essential similarity that the subject person is, for whatever reason, likely to do harm to somebody. This can be because the person has recently threatened or attempted suicide; threatened or attempted to do serious physical harm to others or behaved violently or homicidally; demonstrated impaired judgment such that there is a substantial probability of physical impairment or injury to self; or demonstrated an inability to satisfy basic needs for nourishment, medical care, shelter or safety such that death or serious physical problems will imminently ensue; or shown a lack of the ability to make an informed choice about treatment and will likely suffer severe harm as a result. See Wis. Stat. § 51.20(1)(a)2.a.-e. Though each type of dangerousness listed in the statute differs, the differences are far less pronounced than those among the CHIPS grounds discussed above. Where the CHIPS grounds represent legislative judgments about a wide array of parental behaviors that call for court intervention, the subdivisions defining what is “dangerous” involve significant overlap and gray area. Further, they each describe behaviors or tendencies that are obviously, commonsensically dangerous. Unlike the CHIPS statute, in which diverse concrete factual findings (such as failure to immunize a child) lead to a finding of CHIPS simply because the statute requires it, the subdivisions of § 51.20(1)(a)2. describe behaviors that are, factually speaking, dangerous, regardless of the statutory scheme. We therefore conclude that “dangerousness” is a single element, upon with which the jury must agree. The five statutory definitions simply describe different ways in which a person may be dangerous; they do not constitute separate elements and as such do not require five-sixths of the jurors to agree on any one of them.
¶10 Though Wis. Stat. ch.
51 commitments are civil proceedings and not criminal, and though the
associated jury trial right is statutory, rather than constitutional, we find
support by analogy in the line of criminal cases running from Holland
v. State, 91 Wis. 2d 134, 280 N.W.2d 288 (1979), to State
v. Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833. Derango altered the holding of
¶11 We also reject Heidi’s analogy to State v. Marcum, 166
¶12 Heidi’s second argument is that there was insufficient evidence
of her dangerousness to sustain the jury’s verdict. She acknowledges that our review of the
jury’s fact-finding is highly deferential:
we do not reverse a verdict for insufficient evidence unless, “considering
all credible evidence and reasonable inferences therefrom in the light most
favorable to the party against whom the motion is made, there is no credible
evidence to sustain a finding in favor of such party.” Wis.
Stat. § 805.14(1). “To
reverse, this court must conclude that there is such a complete failure of proof
that the verdict must have been based on speculation.” Nieuwendorp v. American Family Ins. Co.,
191
¶13 The jury heard testimony that Heidi has achieved “very good results” within a restrictive setting but that she is likely to become uncooperative and stop taking medications if supervision is decreased. It further heard that when untreated, Heidi “can be very aggressive both verbally and physically” and that she engages in “not only verbally threatening behavior but physical aggression towards others by throwing objects and physical intimidation, striking out, that kind of thing.” Heidi argues that the jury verdict must have been speculative because “there is no evidence describing what an ‘attack’ was [and] no evidence about the ‘objects.’ One would have to speculate to conclude that the objects thrown were capable of causing serious bodily harm.” We note that the statute requires only “substantial probability of physical harm to other individuals as manifested by evidence of recent homicidal or other violent behavior.” Wis. Stat. § 51.20(1)(a)2.b. (emphasis added). We conclude that the evidence adduced was sufficient to sustain a jury verdict of dangerousness.
By the Court.—Orders affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(d) (2005-06). All references to the Wisconsin Statutes are to the 2005-06 version.
[2] The
County points out that Heidi’s counsel participated in the creation of the jury
instructions and never asked that dangerousness to self and dangerousness to
others be separated into separate verdict questions, and argues that we should
therefore apply judicial estoppel against Heidi’s claim. Heidi responds that her counsel did question
whether dangerousness to self was at issue in the case, and argues that this is
enough to preserve the issue for our review.
We decline to apply judicial estoppel here because we do not conclude
Heidi is trying to play “fast and loose” with the legal system. See
Mrozek
v. Intra Fin. Corp., 2005 WI 73, ¶23, 281