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Ch. 51 respondent did not have right to be physically present at final hearing, so appearance by videoconferencing was not error

Price County DHHS v. Sondra F., 2013AP2790, District 3, 5/28/14 (1-judge; ineligible for publication); case activity

A respondent in a ch. 51 mental commitment proceeding does not have either a statutory or a due process right to be physically present at the final hearing under § 51.20. To the extent § 885.60(2)(a) provides a right to be physically present, it does not mandate physical presence, and the right under that statute is forfeited if the respondent fails to object to the videoconferencing or fails to request to be physically present.

Sondra appeared at her final hearing under § 51.20 by videoconferencing technology, as she was in a mental health facility in a different county. The court did not conduct a colloquy with her regarding her appearance by videoconference, and neither Sondra nor her attorney objected to the arrangement. (¶¶2-3). During the testimony of the county’s witnesses Sondra interjected, and the court advised her she would have a chance to testify later. Eventually, however, she left the room containing the video camera and did not return. (¶¶4-5). The hearing proceeded without her and she was committed. (¶6).

Relying on § 971.04(1) and State v. Soto, 2012 WI 93, 343 Wis. 2d 43, 817 N.W.2d 848, which applied that statute, Sondra argues she has a statutory and due process right to be physically present at the final hearing and that this right must be affirmatively waived. (¶11). The county conceded she had a right to be present under § 885.60 but argued the denial of that right was harmless. (¶¶9, 14). The court of appeals rejects Sondra’s statutory argument and the county’s concession:

13      Sondra’s reliance on Wis. Stat. § 971.04(1) and Soto is misplaced. Section 971.04(1) mandates that criminal  defendants “shall be present” at certain hearings. Sondra is a respondent in a Wis. Stat. ch. 51 mental health proceeding and not a criminal defendant. Wisconsin Stat. § 51.20(10) provides that, “except as otherwise provided in this chapter, the rules of evidence in civil actions and [Wis. Stat. §] 801.01(2) [referring to civil procedure and practice] apply to any judicial proceeding or hearing under this chapter.” As a result, § 971.04(1) does not apply to Sondra, and it does not require her physical presence or the affirmative waiver of her physical presence. There is no statute similar to § 971.04(1) that mandates civil litigants be physically present at certain hearings, and Sondra does not cite any other statutory authority mandating her physical presence at a final hearing.

Nor does § 885.60, which is part of the statutory subchapter governing use of videoconferencing, establish a right to be physically present:

15      Wisconsin Stat. § 885.60(2)(a) does provide that Sondra is “entitled to be physically present” at her final hearing. Section 885.60(2)(d) requires Sondra to specifically object to the use of videoconferencing in the context of a Wis. Stat. ch. 51 civil proceeding to avail herself to her entitlement to physically appear. However, unlike Wis. Stat. § 971.04(1), § 885.60(2) does not mandate her physical presence at the final hearing. This distinction is important because in Soto, the court concluded Soto needed to affirmatively waive his right to be physically present under § 971.04(1) as that statute mandated his presence at specified hearings. See Soto, 343 Wis. 2d 43, ¶¶34, 41; see also Wis. Stat.§ 971.04(1) (“[T]he defendant shall be present ….”). Accordingly, we reject the County’s concession that § 885.60(2) requires Sondra’s physical presence at the final hearing, such that Sondra needed to affirmatively waive that requirement before appearing by videoconferencing. 

Finally, there is no due process right to physical presence. While ch. 51 hearings “shall conform to the essentials of due process and fair treatment,” § 51.20(5), the respondent must do something to assert the right to be present:

¶20      …[I]n this case, Sondra never objected to videoconferencing or made a request to be physically present. Sondra has not provided any legal authority requiring her physical presence at the final hearing. Without such authority the rules of civil procedure apply. Pursuant to those rules, when Sondra appeared at the final hearing via videoconferencing and did not object, she forfeited her right to later object to the court’s use of videoconferencing technology. …

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{ 2 comments… add one }
  • admin June 5, 2014, 12:20 pm

    From ASPD Dennis Purtell:

    The decision does not reference the third Lessard decision at 379 F. Supp 1376 (the judgement of which was affirmed by the fourth and fifth Lessard decisions). Twice that decision held under the 14th Amendment due process clause: “. . . persons subject to (Ch. 51) proceedings have the unwaivable right to be present at the probable cause hearing . . .” Granted the opinion doesn’t say the right to be present at the “Final Hearing” but I believe that goes without saying as the subject has the unwaivable right to be at their probable cause hearing where at most a 14-day detention order may be entered, versus the Final Hearing where, though the initial commitment may be for 6 months, the commitment may be extended for life.

    Is there a reason (that I cannot discern) that the decision at 379 F. Supp. is not good law currently? I know it predates the Wisconsin Legislature’s re-write of Ch. 51 after it was found unconstitutional, and the rewritten law doesn’t have the specific words “right to be present at the hearing.” But it does require advance notice of the date, time and location of the hearing. If a subject doesn’t have the right to be there, what’s there purpose of informing the subject of when and where the hearing is?

    Note: Lessard was decided on the due process clause, and sec. 51.20(5) requires hearings under this chapter to conform to the essentials of due process.

  • Daniel chapman June 8, 2014, 5:46 pm

    She was present… By videoconference. The rules of civil procedure lets the court use videoconferencing if there is no objection from the parties, and no one objected. The ironic thing is that the first time I saw this issue the same third district rejected my no merit report making the same argument by citing the soto decision.

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