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Court lost competency in ch. 51 case because probable cause hearing occurred beyond 72-hour time limit

Waukesha County v. Steven R.C., 2014AP1032-FT, District 2, 9/10/14 (1-judge; ineligible for publication); case activity

The failure to hold a probable cause hearing within 72 hours of Steven’s initial detention deprived the circuit court of competency to proceed, despite the County’s filing of a new petition within the 72-hour time period with new allegations.

Steven was detained on a Monday and a probable cause hearing under § 51.20(7)(a) was scheduled for Thursday. But that hearing never happened; instead, the County filed a new petition with additional allegations, and then held a probable cause hearing with 72 hours of the filing of the second petition. (¶2).

Applying Dane County v. Stevenson L.J., 2009 WI App 84, 302 Wis. 2d 194, 768 N.W.2d 223 (new statement of emergency detention issued after 72-hour period passed without a hearing didn’t begin a new 72-hour time period), the court of appeals holds the probable cause hearing wasn’t timely under the plain language of the statute, even with the filing of the second petition:

¶10      The County … points out that … the second petition required and resulted in a court order for Steven’s detention, and therefore provided a procedural safeguard that was missing with the subsequent emergency detention in Stevenson L.J., which was based only upon a statement of emergency detention by the treatment director at Mendota. However, we can find nothing in the plain language of Wis. Stat. § 51.20(2)—the subsection addressing procedures for a petition for examination and related court order of detention—that suggests such a procedural safeguard affects the time period for a probable cause hearing following initial detention. Indeed, both § 51.20(2)(b) and § 51.20(7) refer to the same requirement—that a probable cause hearing is to be held “within 72 hours after the individual arrives at the facility.”

¶11      The County also argues that its second petition was “substantively different” from the first petition because it contains allegations of Steven’s dangerousness that are different from those in the first petition.  Such a difference, however, did not alter our view of the detention in StevensonL.J. where we held that

the fact that the treatment director’s subsequent statement of emergency detention contained additional allegations of dangerousness and was filed in a different county by a different detaining authority does not cure its defect. The statement’s shortcoming does not lie in its venue or in its content; instead, it lies in the fact that the detention it sought to execute was contrary to the statutory requirements and was thus unlawful.

Stevenson L.J., 320 Wis. 2d 194, ¶13. The County fails to explain how different allegations of dangerousness trump the seventy-two-hour statutory requirement, especially in light of Stevenson L.J.

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