In a Chapter 51 case with troubling due process implications, COA is compelled to affirm by virtue of what it believes to be binding precedent.
(Note: This post has been updated to reflect that this decision was previously issued on 7/12/23, withdrawn, and then reissued without any substantive changes.).
M.A.C. was first involuntarily committed in 2020. (¶2). Since then, there have been multiple extensions culminating with the problematic extension proceeding at issue in this appeal. (Id.). Notably, at the time the County petitioned to extend her commitment order, M.A.C. was outpatient and free to live at large in the community. (Id.). She was under a “conditional” release order that required her to appear for regular doses of injectable medication. (Id.).
M.A.C., like many Chapter 51 clients, also struggles with housing insecurity. (Id.). In July of 2022, the County filed a petition for recommitment. (¶3). The circuit court set the matter for a hearing and generated a notice of hearing. (¶4). Although no mailing address was listed, the notice claimed to have been mailed to M.A.C. (¶4). The County sent a separate notice to M.A.C.’s attorney and her case manager, although it “is undisputed that M.A.C. was not personally served with the notice of the recommitment hearing.” (Id.). Both court-appointed doctors, despite never having contact with M.A.C., then filed reports recommending recommitment. (¶5). The circuit court held a hearing, at which time M.A.C. was found in default due to her nonappearance. (¶9).
At that hearing, and in response to the County’s arguments that M.A.C. should be recommitted and a medication order issued, M.A.C.’s attorney told the court she was “not in a position to object.” (¶10). Relying on the doctors’ reports, the circuit court found M.A.C. dangerous under the third standard, 51.20(1)(a)2.c., ordered a twelve-month extension, and also granted the County’s request for involuntary medication. (Id.).
On appeal, M.A.C. raises three challenges. First, M.A.C. argues that the orders must be reversed as the “County failed to give her personal notice of the recommitment hearing and instead sent the notice to her appointed lawyer” contrary to her reading of 51.20(10)(a). (¶12). Even though the plain text of that statute seems to indisputably support her position, COA instead relies on SCOW’s decision in Waukesha County v. S.L.L., where SCOW “determined that service of the recommitment hearing notice on the subject’s lawyer complied with the statutes and that using indirect service methods did not violate due process when the subject was homeless and had failed to adhere to the required condition of keeping the County informed of her current address.” (¶13). In choosing to rely on S.L.L., COA rejects M.A.C.’s arguments that an earlier SCOTUS case–Vitek v. Jones–compels a different result. (¶14). Vitek’s existence does not allow COA to disregard Cook v. Cook and, in any case, COA believes Vitek is factually distinguishable. (¶14).
This first issue is a good candidate for a petition for review. COA claims SCOW was impliedly aware of Vitek when it issued its decision in S.L.L. However, Vitek is never cited or discussed therein. On its face, this case presents an unavoidable conflict between SCOTUS and SCOW as to due process notice requirements.
Second, M.A.C. argues the circuit court erred in entering a default judgment against her as she was “appearing” by counsel at the extension hearing. (¶15). Relying once again on S.L.L., COA rejects M.A.C.’s arguments and affirms the circuit court’s discretionary decision. (¶16).
As we discussed in our post on S.L.L., the holding regarding the availability of a default judgment in a 51 rests on relatively shaky ground. Perhaps this case is the proper vehicle for SCOW to reevaluate that problematic holding.
Finally, M.A.C. argues there was insufficient evidence of dangerousness. (¶17). Without much analysis, COA affirms based on vague references to the doctors’ reports in the appellate record. (¶19). Although COA “agrees that circuit courts need to take care to make specific findings,” it determines that reversal would not be warranted under the facts of this case, where M.A.C.’s attorney did not meaningfully contest the County’s request(s). (¶20). If M.A.C.’s attorney had objected, the County would have been given a more robust opportunity to develop the record. (¶21). COA therefore concludes that M.A.C. has forfeited her ability to challenge both the recommitment order and the medication order. (¶22). Allowing M.A.C. to challenge these orders now would be “sandbagging” and M.A.C.–a mentally ill person struggling with housing insecurity who was never given notice of these legal proceedings–is faulted for failing to “fight for his or her liberty rights in the circuit court […].” (¶23).
Setting aside the inherent unfairness of this decision and its problematic reliance on a controversial and (some would say) unreasonable decision from SCOW, the medication issue deserves brief comment. As COA acknowledges in a lengthy footnote, there’s a decent argument that M.A.C. could not forfeit her ability to challenge the forced administration of psychotropic meds on appeal. Why that discussion is relegated to a lengthy footnote–and why M.A.C.’s medication challenge is buried within the text of this opinion–is unclear. In any case, M.A.C.’s case presents a bevy of very good appellate issues to raise in SCOW. Here’s hoping we haven’t seen the last of this case.