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SCOW okays default Chapter 51 recommitments without notice to the subject individual

Waukesha County v. S.L.L., 2019WI66, affirming an unpublished court of appeals opinion, 2017AP1468; 6/12/19; case activity

This 4-3 decision is alarming. Waukesha County petitioned to recommit S.L.L., a homeless person, but failed to serve her with notice of the hearing because it had no idea where she was. Since she was not served, she didn’t appear for the hearing. The circuit court entered a default recommitment and forced medication order in her absence. SCOW says that is A-Okay.

This appeals boils down to a constitutional question. What process is due to a mentally ill person when the government seeks a 1-year recommitment and forced medication order against her? After stabilizing during her 6-month initial commitment, S.L.L. entered a “conditional transfer agreement” whereby Waukesha allowed her to move to Milwaukee and live at a motel and then a homeless shelter provided that she kept Waukesha updated on her address and returned for involuntary medication injections. Near the end of the 6 months, S.L.L. missed an injection and Waukesha petitioned to recommit her.  It mailed the petition to a homeless shelter that it knew she was barred from, so, predictably, the petition was returned undeliverable. Waukesha had no idea what happened to S.L.L. Was she dead, alive, in a hospital or overseas? It ultimately didn’t matter. When S.L.L. failed to appear for the hearing, the circuit court entered a 12-month default recommitment and involuntary medication order against her.

The majority opinion, written by Justice Kelly, is not troubled by Waukesha’s failure to personally serve S.L.L. with its recommitment petition for several reasons. First, an initial commitment and a recommitment are really all just one, long commitment.  So the County only had to personally serve S.L.L. once–at the time of the initial commitment, which it did. Opinion, ¶¶17-21 (citing State ex rel. Serocki v. Circuit Court for Clark County, 163 Wis. 2d 152, 471 N.W.2d 49 (1991) which does not concern due process or jurisdiction) Thereafter, personal jurisdiction, like a diamond ring, was forever.

By this reasoning, a person could die or disappear during an initial commitment but the county could annually obtain recommitment and forced medication orders ad infinitum without further notice because she is only entitled to personal service at the initial commitment stage.

Second, the majority writes that while §51.20(10)(a) says that the county “shall notify the subject individual and his her counsel of the time and the place of the final hearing”, it does not say how they must be notified. Under §801.14(2), when a party is represented by an attorney, service on the attorney is sufficient. The majority says §801.14(2) governs here. Opinion, ¶¶27-28.

S.L.L.’s trial counsel had not communicated with her before the commitment hearing, so notice to him was not notice to her. Also, §51.20(10)(c) incorporates the rules of civil procedure unless they conflict with Chapter 51. The majority sees no conflict between §51.20(10)(a) and §801.14(2). Opinion, ¶27.

Finally, the majority gets to heart of the matter–whether Waukesha’s failure to serve S.l.L. and the circuit court’s decision to recommit her in her absence violated her due process right to notice and an opportunity to be heard under a case we learned in Civ. Pro. I: Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306 (1950). The majority repeats its mantra: No. The circuit court acquired personal jurisdiction at the time of the time of the initial commitment. Opinion, ¶29. It also says that when a person is missing using “probably futile means of notification” is all that is required before “foreclosing their rights.” According to the majority, even though S.L.L. may be homeless and mentally ill that “does not relieve [her] of her obligations.” Here, the homeless S.L.L. failed to keep Waukesha apprised of her address. She thus “absconded” and forfeited her rights. Opinion, ¶30 (citing Mullane, at 317). Wow.

Justice A.W. Bradley wrote a dissent joined by Abrahamson and Dallet. Among other statutory violations, she points out that §51.20(10)(d) tells circuit courts what to do when a person fails to show for a recommitment hearing: They may enter a detention order (or not). Nowhere does Chapter 51 authorize a default commitment. In fact, Wisconsin prohibits commitments by summary judgment. Shirley J.C. v. Walworth Cty, 172 Wis. 2d 371, 493 N.W.2d 382 (Ct. App. 1992).

Justice Bradley also argues that the majority has approved “an egregious violation of due process.”  Mullane, requires the government to give “notice reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of an action and an opportunity to present their objections. Mullane, 339 U.S. at 314. Waukesha sent notice to the one shelter that it knew S.L.L. was barred from visiting so its notice was not “reasonably calculated” to apprise her of the recommitment hearing. Bradley notes that in a case where the government mailed notice of a tax delinquency that was returned “unclaimed” SCOTUS barred the tax commissioner from seizing his property to satisfy the deficiency. Jones v. Flowers, 547 U.S. 220 (2006). Why, she asks, is Jones afforded more due process than S.L.L.? Dissent, ¶71. [The majority responds with its mantra: The court acquired personal jurisdiction at the initial commitment, and it never ended. Opinion, ¶29 n.19] However, Jones was not about personal jurisdiction.

One final point. This opinions includes important comments on when Chapter 51 appeals are moot. The topic deserves more space than this post allows, so stay tuned for a future post on SCOW’s mootness analysis both in this opinion and in Portage County v. J.W.K., 2019 WI 54.

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