Two court-appointed examiners failed to file their reports on whether T.L.T. should be recommitted 48 hours before her final hearing. Trial counsel moved to dismiss arguing that the violation of §51.20(10)(b)’s 48-hour rule deprived the circuit court of competency to adjudicate the case. The circuit court denied the motion, and without the defense’s agreement, adjourned the case so that counsel could review the reports before the hearing. T.L.T. appealed but the court of appeals dismissed her appeal as moot.
One thing is clear. The issue of whether a violation of §51.20(10(b)’s 48-hour rule deprives the circuit court of competency is so important that SCOW granted review of it in Fond du Lac County v. S.N.W., Appeal No. 2019AP2073. Like this case, S.N.W. was an appeal from an expired commitment. For unknown reasons, SCOW dismissed S.N.W. saying that “review was improvidently granted” without explaining why. As a result, this recurring issue wants a published decision.
Despite S.N.W., the court of appeals dismisses T.L.T.’s appeal as moot because her recommitment expired in May 2020 and–get this–appellate counsel did not move for a 3-judge panel. The court of appeals says that a motion for a 3-judge panel would have been a “logical step because an appeal which presents issues that warrant a decision despite mootness is usually a candidate for publication.” Opinion, ¶9 n. 5.
So to get a court of appeals decision addressing the merits, should counsel figure out a way to file a motion for 3-judge panel in every Chapter 51 appeal?
Anyway, the court of appeals does not need a motion for a three-judge panel. It’s wearing the ruby slippers. It may on its own motion ask the chief judge to assign the case to a 3-judge panel. Wis. Stat. §809.41(3).
The court of appeals also says that since it already decided this issue against the defense in S.N.W. there is no point adding another unpublished 1-judge opinion to the mix. Opinion, ¶9.
There is a point in deciding the issue. S.N.W. is not binding authority, and it was wrongly decided. Examiners violate the 48-hour rule with some frequency, which means defense lawyers (who carry heavy caseloads) have very little time to prepare a defense to an examiner’s report, which is often loaded with unsubstantiated hearsay. (Good luck finding counter witnesses within 24 hours).