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COA affirms denial of adjournment and involuntary med order in ch. 51 recommitment case

Winnebago County v. P.D.G., 2022AP606-FT, 9/7/22, District 2, (1-judge opinion; ineligible for publication); case activity

Winnebago County dumped 550 pages of discovery on counsel 2 hours and 15 minutes before “Paul’s” recommitment hearing, so he requested a adjournment. “Denied!” said the circuit court because §51.20(10)(e) allows only 1 adjournment, which had already been used. If the SPD had appointed counsel sooner, this wouldn’t have happened. On appeal, Paul argued that the court misread the statute, and he can’t control the appointment process. He also argued that the county failed to prove that the examiner gave him a “reasonable explanation” of the “particular medication” prescribed for him per §51.61(1)(g)(4) and Outagamie County v. Melanie L. The court of appeals affirmed.

Adjournment. On December 21s, 2021–just before the holidays–the county filed a petition for recommitment noticing a final hearing for January 20, 2022. On Friday January 14th, the SPD prepared an order appointing counsel and filed it January 18th (the 17th was a state holiday). Newly appointed counsel tried to call the client that same day but WRC insisted on more notice.

At the January 20th hearing, counsel requested his first adjournment in order to have a chance to speak with his client before the hearing. The court granted it and postponed the hearing one day. Counsel then filed a discovery request for the records the county relied upon for its petition and that it would introduce at trial.  The next day–just 2 hours and 15 minutes before the final hearing–he received 550 pages of treatment records.

As noted, the circuit court claimed that  by statute it could only grant one adjournment. In a fastrack appeal, Paul argued the plain language of §51.20(10)(e), which provides: “At the request of the subject individual or his or her counsel the final hearing under par. (c) may be postponed, but in no case may the postponement exceed 7 calendar days from the date established by the court under this subject for the final hearing.” (Emphasis supplied). The plain language does limit the number of postponement, only the number of days of postponement.

The court of appeals deemed the argument undeveloped, said that the county was thus excused from responding to it. It then presented its own arguments as to why Pauls’ reading of the plain language could be wrong. Opinion, ¶22 n.3.

Paul further argued that his commitment did not expire until 2 weeks after the January 21st hearing date, the county didn’t object to an adjournment, so the court could have held the hearing 8 days, 10 days or 14 days later pursuant to stipulation. Plus he argued that the circuit court erroneously applied State v. Wollman, 86 Wis. 2d 459, 273 N.W.2d 225 (1979), which established 6 factors that a circuit court is to apply when deciding a request for adjournment in a criminal case.

Note: Wollman is a criminal case. This the the first ch. 51 case to apply it.

The court of appeals did not acknowledge the time remaining on Paul’s commitment, and it declined to resolve the stipulation argument. Opinion, ¶22 n.3. However, it did apply Wollman and affirmed based on factor 6: “other relevant factors.”

¶22 The last consideration—“[o]ther relevant factors”—is really the kicker here. See Wollman, 86 Wis. 2d at 470 (citation omitted). As indicated, the court was faced with a statutory seven-calendar-day time limitation for holding the hearing after January 20. By January 21, this was down to six calendar days. This was not the common scenario in which the hearing could be adjourned two months with no other litigants in other cases necessarily displaced and inconvenienced— the scenario created a significant bind for the court, one which does not arise in almost any other criminal or civil case context. This factor supports the court’s denial of P.D.G.’s request for a second adjournment.[fn 3].

¶23 “Wisconsin circuit courts have discretion to control their dockets.” Hefty v. Strickhouser, 2008 WI 96, ¶31, 312 Wis. 2d 530, 752 N.W.2d 820. As indicated, here the circuit court was particularly crunched due to the statutory time limitation [7 days] for holding the hearing. The court expressed that its docket “d[id]n’t permit [the hearing] to be adjourned,” and nothing in the record suggests to the contrary . . .

“Reasonable explanation” of medications. The plain language of 51.61(1)(g)3 provides:

an individual is not competent to refuse medication or treatment if, because of mental illness . . . and after the advantages and disadvantages of and alternatives to accepting a particular medication or treatment have been explained to the individual, one of the following is true . . .

In addition, Melanie L.¶67 holds that the doctor’s explanation “should include why a particular drug is being prescribed, what the advantages of the drug are expected to be, what side effects may be anticipated or are possible, and whether there are reasonable alternatives to the prescribed medication.” (Emphasis supplied).

Paul argued that the county failed to show clear and convincing evidence that he received a “reasonable explanation” because the doctor never identified a “particular medication” that he wanted to administer to Paul and its’ advantages, disadvantages, and alternatives. The court of appeals rejected that argument:

Opinion, To begin, [Paul] cites no case law indicating that evidence that an individual is “not competent to refuse medication or treatment” is insufficient simply because the testifying medical professional fails to identify during the final hearing the name of the particular medication prescribed to the committee. A reasonable inference from Monese’s testimony is that there was some “particular medication” that was used for treating P.D.G. and that Monese discussed the advantages and disadvantages of it with P.D.G. and also tried to discuss alternatives with him. And based on his evaluation of P.D.G., Monese concluded that P.D.G. was not able to convey an understanding of the advantages, disadvantages, and alternatives to medication. Furthermore, according to Monese’s testimony, P.D.G. “doesn’t believe that he needs treatment” and simply will not accept treatment for his schizophrenia because he believes himself to be an “Egyptian pharaoh” and rejects “western medicine.”

Here, the doctor didn’t testify to a particular medication as required by the statute and Melanie L. Under the court of appeals’ reasoning, this is unnecessary when the person doesn’t believe he needs treatment or is unable to convey an understanding of a particular medication to the doctor’s satisfaction.

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