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COA: Counties needn’t attempt personal service of Ch. 51 recommitment petitions

Marathon County v. R.J.O., 2020 WI App 20; case activity

This is an important, published, and demonstrably incorrect court of appeals’ decision regarding Chapter 51 recommitment procedure.

The county petitioned to recommit R.J.O. but the Marathon County Sheriff’s Department did not bother trying to serve her. Its certificate of service states: “There were no attempts made to serve [R.J.O.] as she is homeless and Deputies had no further information to locate her.” Opinion, ¶6. Although the county never served R.J.O., it apparently did serve her lawyer (no details on how it knew her lawyer’s identity).

R.J.O.’s lawyer told her she did not need to attend the recommitment hearing due to lack of personal service, so she didn’t. Last term, SCOW held that Wisconsin circuit courts could enter default, 12-month orders for involuntary recommitment and medication against people who were not personally served and whom the county could not even locate. Waukesha County v. S.L.L., 2019 WI 66, 387 Wis. 2d 333, 929 N.W.2d 140. Under that decision, the court here could have entered a default commitment.

But it didn’t. Instead it followed §51.20(d), which states that is the subject fails to appear for a final hearing, the court may issue a detention order and shall hold a final  hearing within 10 days of detention. It issued the detention order on August 10, 2016–one day before R.J.O.’s commitment expired. Counsel moved to vacate the detention order because the county had failed to personally serve R.J.O. That failed.

Long after R.J.O.’s commitment would have expired, the county detained her. Her lawyer again moved to dismiss for lack of personal service and lost. The court recommitted her for 12 months. Postcommitment she argued that either she should did not receive sufficient service, or if she did, her lawyer was ineffective for advising her not to attend her final hearing.

The court of appeals rejected both arguments. It first held that, per S.L.L., §51.20(2)(b), which requires personal service of a petition on both the person and her lawyer, does not apply at the recommitment stage. Opinion, ¶¶15-18. It held that §51.20(2)(b) is “inapplicable because ‘the procedures governing commitment extensions are located in §51.20(10)-(13), not §51.20(2).” Opinion, ¶18 (quoting S.L.L., ¶27).(emphasis added).

This is where S.L.L. walked off a cliff, and the court of appeals, bound by precedent, had to follow like lemmings.  Section 51.20(13)(g)3 says: “[U]pon application for extension of commitment by the department or the country department having custody of the subject, the court shall proceed under subs. (10)-(13)(which govern hearings, jury trials, open hearings and dispositions). But that doesn’t mean that subs. (1) through (9) categorically don’t apply to recommitments.

Section 51.20(1) authorizes petitions for commitment. Sub. (a) specifies the contents of a petition for original commitment. Sub. (am) specifies them for petitions for recommitment. Section 51.20(2) governs the “notice of hearing and detention” for both commitments and recommitments. Sub. (a) prescribes the procedure for detaining people under 51.20(1)(a) and (am) (in other words, for commitments and recommitments). Sub. (c) provides that if an officer receives a detention order issued under (1)(a) or (1)(am) (again commitments or recommtiments) it “shall take the subject individual into custody.”

Section 51.20(2)(b) requires law enforcement to personally serve the subject individual with the petition. S.L.L. and the court of appeals see no reference to (1)(am) in this section. But by that reasoning it cannot apply to initial commitments because it does not reference (1)(a) either. If. §51.20(2)(b).

Anyway, the idea that recommitments are only governed by §51.20(10)-(13) is a myth perpetuated by S.L.L. and now the court of appeals. At a minimum, the following Chapter 51 provisions explicitly govern recommitment proceedings: §§51.20(1)(am), 51.20(1)(m), 51.20(2)(a), 51.20(2(c). Note that they all precede §51.20(10).

On appeal, R.J.O. argued that the circuit court lost competency to hear the county’s petition for recommitment when it failed to hold the recommitment hearing before the prior commitment expired. The court of appeals noted that under §51.20(10)(d)i a person fails to appear for a final hearing the court may issue a detention order and hold a hearing within 7 days of detention. This, it reasoned, necessarily implies that the deadline for a recommitment hearing is automatically extended upon issuance of a detention order. Opinion, ¶29 (citing G.O.T. v. Rock Cty., 151 Wis. 2d 629, 632, 445 N.W.2d 697 (Ct. App. 1989)).

The court of appeals also held that it would not allow R.J.O. to game the system: i.e. fail to appear for her recommitment hearing and later, after her commitment expired, argue that the court lost competency to recommit her. Opinion, ¶¶33-34. (citing County of Milwaukee v. Edward S., 2001 WI App 169, 247 Wis. 2d 87, 633 N.W.2d 241)).

Lastly, R.J.O. filed jury demands more than 48 hours before her final hearing, but the circuit court denied them. The court of appeals held that §51.20(11)(a) required the demands to be filed at least 48 hours before “the time set” for the final hearing, and counsel missed that deadline. It rejected R.J.O.’s ineffective assistance of counsel claim because she did not show she was prejudiced from being tried by the court rather than a jury. Opinion, ¶47.





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