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Defense win! County’s appeal of dismissal is moot

Milwaukee County v. Earl Z., 2010AP704, District 1, 9/23/10

court of appeals decision (1-judge, not for publication); for Earl Z.: Jeremy Perri, SPD, Milwaukee Appellate

County appeal of dismissal of emergency detention at probable cause stage is moot, where facts supporting that requested detention are no longer operative. Exceptions to mootness — appellate court may reach merits if the issue is sufficiently important or likely repetitious but evasive of review — don’t apply here. The underlying question is whether the post-detention “72-hour clock” ran out before the probable cause hearing The court says that this area isn’t unsettled, therefore the County can’t overcome the mootness obstacle.

¶17      Facts triggering the seventy-two-hour clock are well established as a matter of law. In Milwaukee County v. Delores M., this court held that the seventy-two-hour time limit for emergency detention under WIS. STAT. § 51.15(4)(b) is triggered only when a person is both (1) taken into custody under that provision and (2) transported to any of the facilities designated by § 51.15(2). Milwaukee County v. Delores M., 217 Wis. 2d 69, 78, 577 N.W.2d 371 (Ct. App. 1998).

¶18      The County also does not point to ambiguities in the definitions of custody or applicable detention facilities specific to facts developed in the record of this case. The definition of “custody” is the subject of extensive case law. Seee.g.State v. Koput, 142 Wis. 2d 370, 379-80, 418 N.W.2d 804 (1988) (whether a reasonable person in the same circumstances would have felt free to leave). Additionally, the types of facilities to which detained individuals have been brought must fit one of the statutory definitions pursuant to WIS. STAT. § 51.15(2) to trigger the time limits; it does not have to be a facility specifically chosen by the County for the receipt of such persons. See Delores M., 217 Wis. 2d at 71.

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