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Defense win! SCOW reverses courts of appeals’ dismissal of Chapter 51 appeal for mootness

Waukesha County v. J.K., 2018AP616-NM, 9/3/19 (unpublished order); case activity

The court of appeals can be pretty aggressive about dismissing Chapter 51 appeals for mootness. This time SCOW slapped its hand.  J.K.’s lawyer filed a no-merit notice of appeal. Before appointed counsel could file a no-merit report, and before J.K. could respond to any such report, the court of appeals (D2) dismissed the appeal as moot because the commitment order at issue had expired and J.K. was under a new commitment order.

In a grant/vacant/remand (appellate talk for a grand slam home run), SCOW agreed with J.K. that the no-merit process (an NMR report, a response by J.K., and an independent review of the record by the court of appeals) could turn up a meritorious issue.  It therefore held:

J.K.’s appointed counsel is correct in asserting that the no-merit process described in Wis. Stat. § (Rule) 809.32 and Anders must be followed completely. A full completion of this process is necessary to protect a Chapter 51 patient’s statutory right to counsel on appeal where appellate counsel believes an appeal is frivolous. The no-merit procedure was not followed completely here.

Makes perfect constitutional sense.  Chief Justice Roggensack dissented, but the order doesn’t say why.  If you are handling an appeal from a Chapter 51 commitment or recommitment, remember that SCOW just granted review on the issue of whether Chapter 51 appeals are ever moot. Due to the collateral consequences of a mental commitment, many states hold that appeals from commitment orders are never moot. If mootness is an issue in your Chapter 51 appeal, you may want to request a stay pending the outcome of Waukesha County v. J.J.H. (depending on your client’s circumstances, of course).

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