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SCOW to address 48-hour deadline for filing Chapter 51 examiners’ report

Fond du Lac County v. S.N.W., 2019AP2073, petition for review granted 11/19/20; case activity

Issues presented:

1. Did the circuit court lack competency to adjudicate this Chapter 51 commitment proceeding due to the county’s violation of the rule requiring it to file psychiatric reports 48 hours before the final hearing?

2. If the circuit court retained competency, did it err in admitting a tardy report and the testimony of the report’s author?

In recognition of the significant liberty interest an individual has in living where and under what conditions she chooses, the legislature has imposed tight time limits in connection with involuntary detention proceedings.” Dane County v. Stevenson L.J., 2009 WI App 84, ¶11, 320 Wis. 2d 194, 768 N.W.2d 223. When the county violates one of these time limits, the circuit court must dismiss the case for lack of competency to adjudicate it.

In any involuntary commitment proceeding, the county’s most damning evidence is the report and testimony by an examiner (or examiners) opining that the individual is mentally ill, a proper subject for treatment, and dangerous.  This evidence is so important that the legislature requires the county to file psychiatric reports 48 hours before the final commitment hearing. Wis. Stat. §51.20(10)(b). Chapter 51 and due process also requires the county to disclose its witnesses and the substance of their testimony at a reasonable time before the final hearing. Wis. Stat. §51.20(10)(a); Lessard v. Schmidt,  349 F. Supp. 1078, 1092 (E.D. Wis. 1972) (to comply with due process, the county must inform the individual–sufficiently in advance of the hearing so he can prepare–the names of the examiners and the substance of their testimony).

S.N.W. argues that a county’s failure to file examiners’ reports 48 hours before the final hearing is the sort of deadline violation that deprives the circuit court of competency to act. Several court of appeals’ decisions have held or suggested as much, so the court of appeals about-face in S.N.W.’s case was quite a surprise. See e.g.  State ex rel. Sandra D. v. Getto, See 175 Wis. 2d 490, 495, 498 N.W.2d 892 (Ct. App. 1993). See also, the cases listed in our prior post here.

If the county’s violation of the 48-hour rule does not require dismissal, then what is the individual’s remedy? That’s what the second issue for review asks. The answer could be a continuance or exclusion of the examiner’s report.

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