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Court of appeals applies “law of the case” doctrine to extensions of Chapter 51 commitments.

Polk County  Human Services Dep’t v. Boe H., 2013AP1719, District 3, 1/14/13 (not recommended for publication); case activity

This appeal turns on the court of appeals’ application of the law of the case doctrine,  so it’s necessary to recap some procedural history.

After a jury found Boe mentally ill, a proper subject for treatment, and dangerous under the “fifth standard”, Wis. Stat. § 51.20(1)(a)2.e, the circuit court committed him to the DHS for 6 months.  Boe spent the first 30 days in a hospital.  Because § 51.20(13)(g)2d.a, says that a person committed per this standard may be “treated only on an outpatient basis” after 30 days, the DHS then moved him to a group home.  Near the end of 6 months, the DHS petitioned for to extend his commitment.  The court granted the petition and continued Boe’s placement in the group home for 12 months.  Boe appealed (Boe I). During briefing, the DHS petitioned to extend his commitment again and won.  Boe appealed (Boe II).

In Boe I, Boe argued that his placement in a group home violated § 51.20(13)(g)2d.a’s “outpatient treatment” requirement.  The court of appeals disagreed.  See Boe I and our prior post on it here.  Boe raised the very same issue here in Boe II, arguing, among other things, that because extension orders last only one year, this is a new case.   No dice, said the court of appeals:

¶12 . . . “The law of the case doctrine is a ‘longstanding rule that a decision on a legal issue by an appellate court establishes the law of the case, which must be followed in all subsequent proceedings in the trial court or on later appeal.’” State v. Stuart, 2003 WI 73, ¶23, 262 Wis. 2d 620, 664 N.W.2d 82 (citation omitted).  The purpose of the law of the case doctrine is that “courts should generally follow earlier orders in the same case and should be reluctant to change decisions already made, because encouragement of change would create intolerable instability for the parties.”  Id. (citation omitted).

¶13 However, the rule is not absolute.  Id., ¶24.  “There are now certain circumstances, when ‘cogent, substantial, and proper reasons exist,’ under which a court may disregard the doctrine and reconsider prior rulings in a case.”  Id. (citation omitted).   Specifically, our supreme court has stated, “[A] court should adhere to the law of the case ‘unless the evidence on a subsequent trial was substantially different, [or] controlling authority has since made a contrary decision of the law applicable to such issues.’”  Id. (citation omitted). More broadly, our supreme court has stated, “It is within the power of the courts to disregard the rule of ‘law of the case’ in the interests of justice.”  Id. (citation omitted).

¶16 . . . Our decision in Boe I regarding Boe’s placement in the group home established the law of the case.  Here, Boe has pointed to no change in the law or substantially different evidence that would compel us to disregard the law of the case.  Further, the arguments Boe advanced in his reply brief do not persuade us it is in the interest of justice to revisit our decision in Boe I regarding the Department’s ability to place Boe in a group home.

The briefs are confidential but the decision indicates that Boe’s “interests of justice” arguments were that: (a) Boe I was unpublished; (b) Boe II is a new case; (c) Chapter 51’s annual review requirement shows that stability between the parties is not the goal in these case; and (d) Boe I challenged the court’s authority to place him in a group home, Boe II challenges the DHA’s authority to place him in a group home.

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