Follow Us

Facebooktwitter
≡ Menu

Circuit court’s failure to specify ch. 51 dangerousness standard was harmless error

Barron County v. K.L., 2021AP133, District 3, 8/9/22 (one-judge decision; ineligible for publication); case activity

Langlade County v. D.J.W., 2020 WI 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277, held that “going forward circuit courts in recommitment proceedings are to make specific factual findings with reference to the subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. on which the recommitment is based.” Deciding an issue addressed in the dissenting opinion in Sheboygan County v. M.W., 2022 WI 40, the court of appeals holds the failure to comply with D.J.W.‘s findings requirement can be a harmless error and was harmless in this case.

In granting the County’s petition to extend “Kayla’s” commitment, the circuit court made various factual findings but didn’t cite a specific subdivision paragraph under § 51.20(1)(a)2. (¶¶16-18). Kayla appealed, arguing the court’s failure to make reference to a subdivision paragraph as required by D.J.W. requires reversal of the extension order. (¶30). In response, the County argued any error was harmless, particularly given that Kayla wasn’t challenging the sufficient of the evidence to support a dangerousness finding and that the subdivision paragraph the circuit court was applying—§ 51.20(1)(a)2.d.—was “self-evident” based on the court’s findings and the evidence. (¶31). Kayla countered by asserting that the failure to make D.J.W. findings can’t be harmless because it’s a structural error, and that if the error can be harmless it wasn’t here because the circuit court failed to make specific factual findings to support all the elements the dangerousness standard the County was relying on. (¶32).

The court of appeals agrees with the County that a D.J.W. error isn’t structural:

¶33     …. Our supreme court has explained that “there are a very limited number of structural errors that require automatic reversal.” State v. Pinno, 2014 WI 74, ¶49, 356 Wis. 2d 106, 850 N.W.2d 207. “Structural errors are different from regular trial errors because they ‘are structural defects in the constitution of the trial mechanism, which defy analysis by “harmless-error” standards.’” Id. (citation omitted). “Structural defects affect ‘[t]he entire conduct of the trial from beginning to end,’” and “[a]n error also may be structural because of the difficulty of determining how the error affected the trial.” Id. (citation omitted). In the criminal law context, for example, the “limited class” of structural errors includes: “complete denial of the right to counsel, a biased judge, excluding members of the defendant’s race from a grand jury, denial of the right to self-representation, denial of the right to a public trial, and a defective reasonable doubt instruction.” Id., ¶50 (footnotes omitted).

¶34     We conclude a circuit court’s failure in a recommitment proceeding to reference a specific subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. does not rise to the level of the structural errors listed above. As Chief Justice Annette Kingsland Ziegler recently observed in her dissenting opinion in Sheboygan County v. M.W., 2022 WI 40, ___ Wis. 2d ___, 974 N.W.2d 733, “the failure of a circuit court to state factual conclusions upon review of an established record and the failure to cite a statutory subsection are not structural errors in line with the ‘complete denial of the right to counsel.’” M.W., ___ Wis. 2d ___, ¶60, 974 N.W.2d at 748 (Ziegler, C.J., dissenting) (quoting Pinno, 356 Wis. 2d 106, ¶50). To the contrary,

[a]ppellate courts are more than capable of reviewing a record, party arguments, and circuit court reasoning to determine if a dangerousness pathway has been met. In addition, the failure of a circuit court to be precise in its reasoning does not infect the entire recommitment proceeding with a constitutional violation….

Id. (Ziegler, C.J., dissenting). For these reasons, we reject Kayla’s argument that the error at issue in this appeal was structural and therefore not subject to a harmless error analysis.

If may strike a reader as odd that the court of appeals relies on a dissent for its reasoning, since “[a] dissent is what the law is not.” State v. Perry, 181 Wis. 2d 43, 49, 510 N.W.2d 722 (Ct. App. 1993). However, as we discussed in our post on M.W., and as the court of appeals itself explains in a footnote (¶34 n.8), the majority in M.W. didn’t address harmless error. That’s because the posture of the case made the issue presented so narrow it would have been inappropriate for the court to reach out and decide the issue, as Justice Hagedorn’s concurrence in M.W. clearly and succinctly points out. Justice Hagedorn also expressed the opinion that not all D.J.W. errors are the same and that there was “some force” to the argument that some, if not all, of such errors could be harmless, though a decision should wait till the right case appears. M.W., 2022 WI 40, ¶¶40-43 (Hagedorn, J., concurring). With no binding majority decision on the issue in M.W., the court of appeals is free to come to its own conclusion. As to whether its conclusion matters, see below.

The court of appeals also agrees that any error in this case was harmless, for two reasons:

  • D.J.W. involved a challenge to the sufficiency of the evidence, and that context was “critical” to D.J.W.‘s reasoning because the requirement was imposed to help ensure the “soundness” of the circuit court’s decision and take the “guesswork” out of appellate review of the sufficiency of the evidence. In the absence of a sufficiency challenge, it can’t be argued the circuit court’s failure to refer to the specific standard contributed to the outcome or affected Kayla’s rights. (¶¶36-37, (citing D.J.W., 391 Wis. 2d 231, ¶¶43-45)).
  • The record in this case clearly shows the circuit court applied § 51.20(1)(a)2.d. and the evidence provides ample support for a finding of dangerousness under that standard. (¶¶38-42).

How much does this decision matter? It’s not published (or publishable), so it’s not binding, though it is citable for persuasive value. § 809.23(1)(b)4. and (3)(b). Yet it’s not clear this issue will come up very often in the future. The extension hearing in this case was in July 2020 (¶5), shortly after D.J.W. was issued (April 2020). There were a flurry of appeals based on D.J.W. errors in commitment hearings conducted in the several months following D.J.W., presumably because it took some time for the decision’s requirement to fully percolate through the trial court system. But since D.J.W. the mandatory circuit court form recommitment order has been changed to require the circuit court to specify a standard of dangerousness that the person will satisfy if treatment is withdrawn. So if circuit courts use the form (as they’re supposed to under § 807.001(1)), the incidence of D.J.W. errors should be vanishingly small and there’ll be little to no need to decide whether such an error was harmless in a particular case.

Sharp-eyed readers might also be asking why, if this is an appeal about a 12-month extension order (¶19) issued in July 2020, the case isn’t moot. The answer to that is provided by another recent supreme court decision, Sauk County v. S.A.M., 2022 WI 46, which held an appeal from an expired commitment order isn’t moot because of the continuing collateral consequences of liability for the cost of care and the commitment order’s firearms ban. (¶¶20-24).

Facebooktwitterlinkedinmail
{ 0 comments… add one }

Leave a Comment