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COA clarifies when Chapter 51’s 72-hour clock begins for persons detained on criminal charges

Columbia County v. J.M.C., Jr., 2020AP1001, District 4, 10/22/20 (1-judge opinion, ineligible for publication); case activity

J.M.C. was taken to jail on possible criminal charges. Two days later, the County filed a Chapter 51 petition for his commitment.  Section 51.20(7) provides that the circuit court must hold a probable cause hearing within 72 hours of taking a person into custody under §51.20.  The circuit court dismissed the petition for violation of the 72-hour rule, and the County appealed arguing that the circuit court erred in determining what triggered 72-hour clock triggered.

The State took J.M.C. into custody on May 27, 2020. The County filed the three-party petition on  Friday May 29, 2020. That same day, the circuit court issued an order of detention and scheduled a probable cause hearing on June 2nd–within 72 hours, excluding weekend days per §51.20(7).

In the circuit court, J.M.C. argued that the 72-hour clock was triggered when the State detained him on May 27th. The County countered that the 72-hour clock started after J.M.C. was taken into custody for purposes of the Chapter 51 petition. On appeal, the parties stipulated that the County’s intepretation was correct, and the court of appeals agreed. Opinion, ¶16.

The court of appeals does not indicate how a jail inmate is “taken into custody” for purposes of triggering Chapter 51’s 72-hour clock.  The answer appears to lie in §51.20(2)(b), which indicates that custody occurs when the officer serves the person with a copy of the petition, the order of detention, and written notice of his rights, and also orally informs him of his rights.

While the parties agreed on merits, they disagreed about whether the court of appeals should have just dismissed the appeal as moot given that the 72-hour deadline was long past. Believe it or not, the County argued that the appeal was not moot due its “collateral implications” under Marathon Cnty. v. D.K., 2020 WI 8, 390 Wis. 2d 50, 937 N.W.2d 901. What might those be? The County claimed that dismissal of the petition undermined its ability to show, in future Chapter 51 proceedings, that J.M.C. engaged in a pattern of dangerous conduct. Opinion, ¶7.

The court of appeals did not decide the mootness issue. It held that the issue fell within exceptions to the mootness doctrine because it was of  public importance, likely to recur, and would evade review. Opinion, ¶¶8-9. All that, yet the issue did not merit a published decision.

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