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A bad decision on whether courts should conduct colloquies in ch. 51 cases

Kenosha County v. L.A.T., 2022AP603, 1/11/22, District 2; (1-judge opinion, ineligible for publication); case activity

This appeal involves an important, recurring issue. Must the circuit court conduct a colloquy to determine whether the subject of a ch. 51 commitment proceeding knowingly and voluntarily stipulates to a commitment and medication? The court of appeals holds that there is no colloquy requirement, and there shouldn’t be one. The subject of ch. 51 commitment is presumed competent. If she says she’s stipulating to a commitment and medication, then the circuit court can (1) presume she’s making a knowing, intelligent and voluntary decision, and (2) find her dangerous without specifying a standard of dangerousness.

During a break in her jury trial, the lawyers told the circuit court that L.A.T. was willing to stipulate to an initial commitment and involuntary medication. The court asked L.A.T. if she heard what her lawyer said and asked if the lawyer was correct. She replied “yes” but she wanted to see the stipulation and name of the medication on paper. The court told L.A.T. that it had no control over the medication. Opinion, ¶¶19-20.

Next, the court asked defense counsel if she had “an opportunity to have whatever discussion she wanted with L.A.T.?” Answer: “Yes.” The court asked L.A.T. if she had enough time to have her questions answered by defense counsel. Answer: “Yes.” The court also asked if she was agreeing to a 6-month commitment with involuntary medication, if necessary. Answer: “I think, yes.” Opinion, ¶¶21-22.

On appeal, L.A.T. argued that her stipulation was not knowing, intelligent, and voluntary. The court of appeals rejected the argument because L.A.T. was presumed competent under §51.59(1). She failed to rebut that presumption. Opinion, ¶¶14-15.

The court of appeals missed the mark. Consider a criminal case. The fact that a  defendant is “competent” to plead guilty doesn’t prove that his plea is “knowing, intelligent and voluntary.” The circuit court has to determine the defendant’s education, comprehension, understanding of the charge, range of punishments, collateral consequences, and so forth. The colloquy between the circuit court and L.A.T. in the court of appeals opinion does not begin to demonstrate a knowing, voluntary, and intelligent stipulation.

The court of appeals said that L.A.T. was implicitly seeking the overruling of Dane County v. N.W., No. 2019AP48, unpublished slip op. (WI App Aug. 29, 2019), review denied (WI Dec. 10, 2019). N.W. held that the statutorily mandated colloquies in criminal and TPR cases are not required in ch. 51 cases. Opinion, ¶14.

N.W. is an unpublished opinion from District 4. The District 2 court of appeals wasn’t bound by it and didn’t need to overrule it. Furthermore, in N.W. the court of appeals had significantly more evidence that the person’s stipulation to the commitment was knowing, intelligent and voluntary.  The person committed actually signed a “Waiver of Recommitment Trial” form and placed his initial next to each of the trial rights he was waiving by stipulating to the commitment. Here, in contrast, there’s no mention of the rights that L.A.T. was waiving and no indication that she knew that she was waiving them.

The court of appeals also held–without citation to anything–that forcing people to appear for colloquies in ch. 51 cases would be “traumatic,” “stressful,” and “harmful.” Opinion, ¶¶17-18. Far better to get them committed and medicated than hold a Zoom hearing to confirm that they know they are waiving their rights to know the county’s evidence, be heard in person, present evidence, confront and cross-examine the county’s witnesses, and so forth. See §51.20(1) (statutory rights for commitment hearing) and Vitek v. Jones, 445 U.S. 480, 495 (1980) (14th Amendment rights for commitment hearings).

As in other cases, the court of appeals here held Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277 applies to initial commitments. Thus, the circuit court was required to specify the standard of dangerousness it was committing L.A.T. under. It failed to do so.  Normally that would require reversal. Opinion, ¶¶39-40. It doesn’t here because: “an individual who enters a stipulation and stops the entry of further evidence at trial cannot be allowed to later eviscerate the stipulation by arguing lack of specificity of a dangerousness finding.” Opinion, ¶41.

Question: How does the court of appeals know that L.A.T. knew she was waiving the D.J.W. requirement? For that matter, did she know that she was giving up her 2nd Amendment right to bear arms and potentially subjecting herself to financial liability for the commitment?

Whether an individual who wants to stipulate to a commitment is entitled to a colloquy to ensure that she is making a knowing, intelligent and voluntary decision is a recurring issue in Wisconsin. It was the issue in N.W., which is unpublished (PFR denied). It was an issue in Sauk County v. Aaron J.J., 2004 WI App 220, 277 Wis. 2d 590, 690 N.W.2d 25 (unpublished).  SCOW granted review in Aaron J.J. and then dismissed it as improvidently granted because the parties did not brief questions such as what is the proper procedure for determining whether a stipulation is knowing intelligent and voluntary? And if the stipulation isn’t knowing, what are the consequences? Sauk County v. Aaron J.J., 2005 WI 162, 286 Wis. 2d 376, 706 N.W.2d 659. A variation of the issue (is a colloquy required to waive the right to be present) has been raised in multiple appeals but SCOW never grants review. A binding decision on this important issue would be really helpful.

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