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COA creates exception to deadline for holding ch. 51 probable cause hearings

Jefferson County v. S.M.S., 2020AP814, 3/11/21, District 4 (1-judge opinion, ineligible for publication); case activity

It is blackletter law that the probable cause hearing for a Chapter 51 commitment must be held within a statutorily-prescribed time from the subject individual’s detention or the circuit court must dismiss the proceeding for lack of competency to adjudicate it. See §51.20(7)(a) and Dodge Cnty. v. Ryan E.M., 2002 WI App 71, ¶5, 252 Wis. 2d 490, 642 N.W.2d 592. In this case, the court of appeals held that the Ryan E.M. rule did not apply because the individual’s conduct (he was pro se) made it necessary for the circuit court to adjourn the probable cause hearing beyond the 72-hour period expired.

The court of appeals addressed a similar, but not identical, situation in Milwaukee Cnty. v. Edward S., 2001 WI App 169, ¶9, 247 Wis. 2d 87, 633 N.W.2d 241. Edward S. concerned the 14-day deadline for holding a final commitment hearing. On the 13th day, the individual fired his attorney so the court rescheduled the hearing beyond the 14-day period. The defense argued for dismissal based on  State ex rel. Lockman v. Gerhardstein, 107 Wis. 2d 325, 320 N.W.2d 27 (Ct. App. 1982) (dismissing commitment proceeding for violation of the 14-day deadline).

The Edward S. distinguished Lockman where the county’s conduct caused the delay in the final commitment hearing. In contrast, in Edward S. the individual’s conduct–firing his lawyer on the 13th day–required postponement of the final hearing. The court of appeals held that applying the Lockman rule in this situation would give individuals an incentive to fire their lawyers on the 14th day in order to gain release. Edward S., ¶8.

In S.M.S’s case, the court of appeals basically extended the Edward S. exception to the probable cause stage of a commitment proceeding.  It held that S.M.S.’s conduct during his pro see representation made it impossible for the circuit court to conclude the probable causing hearing within 72 hours. What was that conduct?

Apparently, the court had set aside 2 hours for the probable cause hearing. The county called 4 witnesses. S.M.S. interrupted their testimony, vigorously cross-examined them, moved to dismiss the case on the merits, asked the court to order genetic testing of his mother, and asked the sheriff to arrest his mother. The hearing continued past 5:00 p.m. at which point S.M.S. said he still wanted to testify on his own behalf.

Both the county and defense counsel told the circuit court that the hearing needed to be completed that day or it would have to be dismissed. Opinion, ¶4. The circuit court disagreed. It continued the hearing the next day and then found probable cause to commit S.M.S.

The court of appeals held that the circuit court acted appropriately. S.M.S. did not intentionally delay the probable cause hearing in order to gain dismissal of the case. But he did want an opportunity to present his side of the story, and this created the need for the adjournment. Ultimately, the circuit court’s decision “benefitted rather than harmed” S.M.S.’s due process rights. Opinion, ¶¶16-18.

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