July 22, 2026 – A 65-year-old man’s appeal of a circuit court order continuing his protective placement in a nursing facility generated dissent among Wisconsin Supreme Court justices on whether the majority properly applied the standard of review in Racine County v. R.P.L., 2026 WI 26 (July 7, 2026).
The court held 4-3 in a decision authored by Justice Susan M. Crawford that under the “mixed question of fact and law” standard of review, the evidence was sufficient to continue protective placement.
Justice Brian K. Hagedorn, joined by Justice Crawford, concurred, elaborating amicus Wisconsin Counties Association’s suggestion to “reconsider” the standard of review – for a case in which the parties argue it.
Justice Rebecca Frank Dallet’s dissent “emphasize[d] that the correct standard of review to apply in these cases remains an open question.”
Justice Rebecca Grassl Bradley and Justice Janet C. Protasiewicz, joined by Justice Dallet, dissented, arguing that the majority didn’t complete the required review.
“[T]he majority confines itself to searching for clear error under the guise of conducting a de novo review,” Justice Protasiewicz wrote, “ignoring a substantial body of case law that recognizes an appellate court’s obligation to independently review the sufficiency of the evidence.”
Justice Bradley pointed out that “[t]he court-appointed expert identified multiple” methodologies that could make Robert independent.
“The County never offered any of them to Robert, so he will remain in out-of-home care against his will. Every person’s nightmare has come true for Robert.”
Man Down
A Meals on Wheels deliverer discovered Robert (a pseudonym), “lying on the floor in his Racine home.” The deliverer brought Robert to the hospital.
Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
Robert had a history of stroke, seizures, anxiety, and language difficulties, the hospital described in its petition for Robert’s protective placement in 2023.
“Robert suffered from severe confusion, memory loss, poor judgment, and poor insight.” He was unable to care for his finances or health.
Racine County Circuit Court established a guardianship and granted protective placement. The least restrictive environment placed Robert into an adult family home, a facility that includes some nursing care.
A year later, Robert requested an independent evaluation, adversary counsel, and “a full due process hearing” to end protective placement.
Psychologist Dr. Steven Braam conducted the evaluation. The circuit court found the evidence sufficient to continue protective placement. The court of appeals affirmed.
Sufficient Evidence
Although Robert is under a 2025 order for protective placement, the majority recognized the mandatory liability for a patient’s cost of care under Wis. Stat. section 46.10(2).
The circuit court ordered the sale of Robert’s home – over his objection – to help cover those costs, the majority pointed out.
Robert’s case was not moot.
Robert argued that the county failed to prove two of the four factors necessary for protective placement, “that his incapacity endangered himself or others and that his disability was permanent.”
The majority confirmed that the standard of review for “sufficiency of the evidence to support a protective placement is a mixed question of fact and law.”
On review, a circuit court’s factual findings fail only if clearly erroneous – “against the great weight and clear preponderance of the evidence.”
Whether the evidence supports the statutory factors under Wis. Stat. section 55.08(1), the majority said, is a question of law reviewed de novo.
Robert’s physical and mental incapacities “left him unable to provide for his own care,” the circuit court found, which the majority held met the legal standard that placement protected against the “risk of serious harm.”
Robert’s condition “could potentially improve” with communications therapy, Dr. Braam testified, but it “would take time to learn” with no certainty that it would work.
But “even if Robert’s communication were improved with therapy, the cumulative effect of his disabilities on his functioning would leave him unable to provide for his own care and custody,” the circuit court found.
Any reasonable inferences from the testimony fit within the circuit court’s role as “the ultimate arbiter of the credibility of witnesses,” the majority said. The evidence was sufficient.
Justice Hagedorn’s Concurrence: Plain Error?
Standards of review form “a decisional framework” that encapsulates where power and responsibility should reside between courts, Justice Hagedorn described in his concurrence.
What standard is appropriate depends on what issue is before the court, whether of discretion, fact, or law, and “which court is better positioned to decide the question as a final matter,” given whether “uniformity or flexibility” is critical.
Evidentiary and sentencing decisions reside with the circuit court because they require flexibility. Questions of fact the circuit court decides by seeing the witnesses. Such issues involve a review of the circuit court’s discretion.
Appellate courts, in contrast, “deliberate and decide what the law is.”
“In practice, however,” Justice Hagedorn explained, “the lines between the buckets are often blurred.”
In some areas of law, such as negligence or Terry stops, “the questions of fact and law are readily distinguishable.”
For protective placement, the analysis looks “entirely different.”
The legal standard under Wis. Stat. section 55.08(1) results in findings that are “at bottom, questions of medical or procedural fact,” Justice Hagedorn described.
“The legal and factual questions are fundamentally the same. They collapse into a single … determination of fact.”
Adopting a clearly erroneous standard for protective placements, and perhaps for civil commitments, “would place us in good company,” Justice Hagedorn said. Federal review of civil commitments is for clear error.
Justice Protasiewicz’s Dissent: ‘We Do Not Know’
“Protective placements … are among the most significant infringements on individual liberty and autonomy that can be imposed absent a criminal conviction,” Justice Protasiewicz wrote in dissent.
The result can be “a life sentence.”
“After locating no clear error in the court’s factual findings, the majority declares, with little further analysis or explanation, that its de novo review of the evidence is complete,” Justice Protasiewicz wrote, and held that the evidence is sufficient.
Robert doesn’t challenge the circuit court’s findings, Justice Protasiewicz distinguished, only that he no longer meets “the statutory standards for dangerousness or permanence.”
The supreme court and court of appeals have shown that a “meaningful de novo review of the sufficiency of the evidence” evaluates whether that evidence satisfies the relevant statutory standards, Justice Protasiewicz argued.
The statutory “‘risk of serious harm’ … must be ‘substantial,’” leaving “the individual ‘so totally incapable’ of looking after ‘his or her own care or custody.’”
The county’s evidence failed to reach that level of specificity about Robert’s condition, Justice Protasiewicz explained.
“We do not know whether Robert is totally reliant on staff at the adult family home where he resides,” Justice Protasiewicz wrote. “These details matter.”
“The majority’s effort also unduly minimizes the nature and significance of Braam’s concession that he could not make a prediction about the permanency of Robert’s condition based on the record available to him,” Justice Protasiewicz concluded.
Justice Bradley’s Dissent: Review the Evidence, Apply the Law
A year after the initial placement, Dr. Braam’s evaluation of Robert revealed uncertainties, Justice Bradley described in dissent.
It was “a bit of a tricky thing to be able to get accurate information” because Robert has trouble “express[ing] his thoughts in words,” Dr. Braam testified. A neuropsychological evaluation would help understand cognitive deficits and whether Robert could get better.
Robert had recovered after his stroke, and “had significantly improved since his initial hospitalization,” Justice Bradley emphasized.
“The majority neglects to consider whether Robert’s needs could be met with in-home protective services.”
“De novo review demands an appellate court review the evidence and apply the law to the facts presented, independent of a lower court’s analysis.”
“The facts recited by the majority establish that Dr. Braam’s testimony did not support even a likelihood of permanency,” Justice Bradley concluded.
“Robert never received a legally sound answer as to why the State will not let him go home.”
This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.