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Defense win! The remedy for a D.J.W. violation is outright reversal, not remand

Eau Claire County v. J.M.P., 2020AP2014-FT, 6/22/21, District 3; (1-judge opinion, ineligble for publication); case activity

A month ago District 3 reversed the recommitment order in this case because the circuit court had violated Langlade County v. D.J.W. That is, the circuit court ordered a recommitment without making specific factual findings tied to one or more the standards of dangerousness in §51.20(1)(a)2. Thus, the court of appeals remanded the case and ordered the required factfinding. Upon reconsideration, the court of appeals has issued a new decision holding that the correct remedy is outright reversal.

You may read our post on the court of appeals’ initial decision in this case here.  After the decision, “Jordan” moved for reconsideration arguing, among other things, that once a commitment expires the circuit court loses competency to act in the case.  The court of appeals agreed:

¶21 . . . .Jordan correctly notes that a circuit court “must hold a hearing on [a] petition for extension before the previous order expires or it loses competency to extend the commitment.” See J.W.K., 386 Wis. 2d 672, ¶20. Jordan’s prior commitment order expired on August 3, 2020. Although the circuit court held a hearing on the County’s petition to extend Jordan’s commitment before that date, the court failed to enter a valid order extending Jordan’s commitment before his prior commitment order expired. We therefore agree with Jordan that when the prior commitment order expired, the court lost competency to conduct further proceedings on the County’s petition to extend Jordan’s commitment. Thus, if we were to remand for the court to make the specific factual findings required by D.J.W., the court would lack the competency to do so.

¶22 Moreover, as Jordan correctly observes, D.J.W.’s requirement that circuit courts make specific factual findings regarding the statutory basis for recommitment is intended to provide “clarity” and “extra protection” to committed individuals. See D.J.W., 391 Wis. 2d 231, ¶42. We agree with Jordan that if a petitioner and court “can seek to remedy a lack-of-findings violation ten months after the order on appeal has been entered[,] then this clarity and extra protection come[] far too late to be meaningful.”

¶23 We also agree with Jordan that because the orders at issue in this appeal will expire on August 3, 2021, a remand for the circuit court to make the factual findings required by D.J.W. would likely result in Jordan being deprived of his right to a meaningful appeal. Jordan notes that if we remanded this matter to the circuit court and he disagreed with the court’s findings on remand, there would be no realistic possibility that he could return to this court and obtain a decision regarding the validity of the circuit court’s decision before the relevant orders expired. An appeal from an expired commitment order is moot, unless the appellant can show that the order gives rise to collateral consequences that persist even after its expiration. See Marathon Cnty. v. D.K., 2020 WI 8, ¶¶22-25, 390 Wis. 2d 50, 937 N.W.2d 901.

Note that the court of appeals has been inconsistent on the remedy for a D.J.W. violation. Earlier decisions remanded for factfinding. For examples, click here and here. Hopefully, going forward the court of appeals will follow District 3’s lead.

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