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COA again dismisses recommitment appeal re the right to be present for mootness

Milwaukee County v. K.M., 2019AP1166, 4/13/21, District 1; (1-judge opinion ineligible for publication); case activity

The saga continues. Portage County v. E.R.R. 2019AP20133 presented the question of whether appeals from recommitment orders are ever moot due to their collateral effects. When SCOW split 3-3 in that case, it granted review in Sauk County v. S.A.M., 2019AP1033 and ordered the parties to brief whether it may order the court of appeals to decide commitment appeals before they expire. See our post here. Some might see the S.A.M. order as a red flag signaling “proceed with caution” on mootness. But, like a bull, the court of appeals charges ahead to dismiss another recommitment appeal as moot.

When the circuit court called “Kristin’s” recommitment case she was not in the courtroom. Her defense lawyer said: “She’s not here. Your, honor it’s my understanding she was served. I spoke to her on the phone yesterday. I’m ready to proceed.” Opinion, ¶4.

The court did not ask where Kristin was or whether she was waiving her right to be present. It made no inquiry at all. As it happens, the county had served her with a notice indicating the wrong hearing time.

The circuit court held the recommitment hearing, admitted damaging hearsay evidence on dangerousness, and recommitted her. Kristin filed a post-disposition motion and an appeal arguing that she was denied her 14th Amendment due process right to be present, to confront and cross-examine witnesses, etc, as established by Vitek v. Jones, 445 U.S. 480 (1980). She also argued that the court failed to determine whether she had waived her right to be present.

K.M.’s recommitment order had expired by the time it reached the court of appeals. She argued that her case presented a live controversy because the recommitment order was stigmatizing and could be used against her in future legal proceedings. She also argued that the individual’s due process right to be present and the procedure for waiving that right are recurring issues that no Wisconsin court has addressed in a published option. See our post on Waukesha County v. W.E.L. here.

The court of appeals held that any social stigma that Kristin has endured “stems from her initial commitment, not from an extension order. Kristin has not alleged that she suffered any particular stigma associated with the order at issue on appeal.” Opinion, ¶20.

It also held that vacating Kristin’s recommitment order would make no difference to her because it would not “expunge” the order” it would only cause it “to have no operative effect.” Opinion, ¶21.

The court of appeals did not address Sibron v. New York, 392 U.S. 40 (1980), which SCOW cited with approval in Marathon Cty. v. D.K., 2020 WI 8, 390 Wis. 2d 50, 937 N.W.2d 901. Sibron held that a criminal defendant may appeal a conviction even after he has completed his sentence because the conviction is stigmatizing and it can be used against him in future legal proceedings. It also held that the defendant is not required to prove stigma or other collateral effects. They are presumed to flow from the conviction.

Note: D.K. agreed that Sibron‘s collateral consequences exception to the mootness doctrine applies to appeals from expired commitment orders. It refrained from deciding the stigma and future use of commitment orders in that case. That issue is before SCOW in S.A.M.

The court of appeals dismissed Kristin’s appeal as moot without addressing the argument that the right to be present and the procedure for waiving that right is a recurring issue that is evading review because it keeps dismissing these appeals as moot. See W.E.L. Hopefully SCOW will resolve the matter.

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