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SCOW to address mootness and due process right to notice of recommitment hearing

Sauk County v. S.A.M., 2019AP1033, petition for review granted 2/24/21; case activity

Issues for review:

1. Whether S.A.M.’s appeal from his recommitment is moot because it expired before S.A.M. filed his notice of appeal.

2. Whether the county failed to meet its burden of proving dangerousness by clear and convincing evidence.

3. Whether S.A.M. was denied procedural due process because the county failed to provide particularized notice of the basis for his recommitment. including which standard of dangerousness was being alleged.

4.  Whether this court has the authority, through its “superintending and administrative authority over all courts” (Wis. Const. art. VII, § 3(1)) and/or its authority to “regulate pleading, practice, and procedure in judicial proceedings in all courts” (Wis. Stat. § 751.12(1)), to require the court of appeals to expedite the disposition of appeals under Wis. Stat. ch. 51, or in some other manner to ensure that appellants under Wis. Stat. ch. 51 receive an appeal that addresses the merits of the appellants’ contentions?*

SCOW was poised to decide whether appeals from expired recommitments are ever moot in Portage County v. E.R.R, But after briefing and oral argument (which justice A.W.B. did not participate in), the justices split 3-3 on the issue. In other words, it did not decide the point.

However, SCOW then amended its order granting review in this case and asked the parties to brief the following additional issue, which suggests that some suggests are interested in ordering the court of appeals to decide Chapter 51 appeals, rather than dismiss them as moot.

Whether this court has the authority, through its “superintending and administrative authority over all courts” (Wis. Const. art. VII, § 3(1)) and/or its authority to “regulate pleading, practice, and procedure in judicial proceedings in all courts” (Wis. Stat. § 751.12(1)), to require the court of appeals to expedite the disposition of appeals under Wis. Stat. ch. 51, or in some other manner to ensure that appellants under Wis. Stat. ch. 51 receive an appeal that addresses the merits of the appellants’ contentions?

The constitutional issue in this case is BIG. And now that SCOW has granted review on it, trial lawyers should consider raising it before or at recommitment hearings. Due process requires the county to give the subject of a commitment proceeding notice of the legal standard and factual basis for a commitment sufficiently in advance of the hearing so that the subject can mount a defense. Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972). More recently, Langlade County v. D.J.W. requires counties to specify, and circuit courts to find, which standard of dangerousness a person will meet after treatment is withdrawn. S.A.M. argues that when the county fails to specify the standard of dangerousness in play for the recommitment hearing,  counsel cannot mount a meaningful defense. This violates the subject’s right to procedural due process.

*Portage County v. E.R.R., 2019AP20133 raised the issue of whether appeals from expired recommitment orders are ever moot. Justice A.W. Bradley did not participate in the case. So when SCOW split 3-3 on the issue, it sua sponte amended its order granting review in this case to add the fourth issue above. See our post here.

 

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