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Court commissioners not required to make verbatim record of Chapter 51 probable cause hearings

Dane County v. T.B., 2015AP799. 10/1/15, District 4 (1-judge opinion, ineligible for publication); case activity

T.B. sought to vacate an order for a Chapter 51 commitment on the grounds that the circuit court lost competency to proceed when it failed to make a verbatim record of his probable cause hearing per Wis. Stat. §51.20(5). According to the court appeals, SCR 71.01(2)(a) excepts from the reporting requirement proceedings before a court commissioner that may be reviewed de novo, which includes probable cause hearings.

Here, the probable cause hearing was held by a court commissioner, and under WIS. STAT. § 757.69(8), the court commissioner’s decision shall be  reviewed de novo by the circuit court upon a motion by T. B. or the County. Accordingly, the probable cause hearing was a “proceeding before a court commissioner that may be reviewed de novo,” and was excepted from the reporting requirement in WIS. STAT. § 51.20(5) under SCR 71.01. Thus, T. B. is not entitled to a verbatim record of the probable cause hearing before the court commissioner, and the circuit court did not lose competency to adjudicate this case. Slip op. ¶12.

Here’s a queer bit of reasoning. T.B. pointed out that requiring him to request a 2nd probable cause hearing before the circuit court in order to obtain a verbatim record is impractical and unmanageable in light of the circuit court’s limited resources. The court of appeals response? “T.B. fails to explain why the asserted effect on the circuit courts’ workload matters.” Slip  op. ¶13.

T.B. also argued that §757.69(8) doesn’t apply because the timeline specified in §51.20(7) sets a specific timeline for only one probable cause hearing, not two.  According to the court of appeals, “§51.20(7) does not specifically limit the availability of a second probable cause hearing. Therefore, §51.20(7) does not preclude a request for a de novo hearing under §757.69(8).” Slip op. ¶15.

Hey, Chapter 51 counsel, are you thinking what we’re thinking? Request a 2nd de novo hearing in every single case and let’s see how long it takes to get courts to change their tune. 🙂

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