In State ex rel. Watts v. Combined Community Services Bd. of Milwaukee County, 122 Wis. 2d 65, 84, 362 N.W.2d 104 (1985), the state supreme court held that equal protection entitles a person protectively placed under Wis. Stat. ch. 55 to “annual” court review of the placement. The court of appeals (in a citable, but not controlling, decision) now holds that completing such a review more than 16 months after the original placement is good enough.
Before we go further, it’s worth noting that the court of appeals has previously held a review completed 16 months after the original placement not good enough, and ordered the commitment dismissed. That was in Douglas County v. Florence S., 205 Wis. 2d 738, 557 N.W.2d 257 (Ct. Apps. 1996). Unlike in this case, in Florence S. it appears that the proceedings did not even begin within a year of the original placement, though it’s unclear why that should make a difference; in any case, Florence S. is pre-2009 and therefore totally uncitable. DO NOT CITE Florence S. Florence S. is for entertainment purposes only.
Back to this case. The county initiated the review process 10 months after the initial placement, but it was not completed for six and a half more months, for a total of 16.5 months between placement orders. (¶¶5-6). C. L.-K. argues, as you might expect, that getting a review every 16.5 months is not the same thing as getting an “annual review,” and that the placement should therefore be dismissed.
The court disagrees:
First, the supreme court’s decision never said the annual review must be completed within one year. Certainly, considering the careful analysis and lengthy detail in the opinion, the court could have said the words, “and the annual review must be completed in one year.” It did not. And simply using the word “annual” does not impose a one-year completion requirement.
It doesn’t? Under the timeline that the court here approves, C. L.-K., who had her final hearing on July 16, 2014, would get another one around December 1, 2015, and the next one around April 15, 2017, and the next one around September 1, 2018. In other words, her placement will be reviewed not quite three times every four years. Can that be what the Watts court meant by “annual” reviews?
The court goes on to note that Watts expressly rejected the remedy of engrafting all of the Wis. Stat. ch. 51 procedures onto Wis. Stat. ch. 55 proceedings as “cumbersome and unnecessary.” (¶30). Specifically, the opinion asserts that Watts “specifically considered and rejected imposing the same one-year time limit on a Chapter 55 order as the Chapter 51 orders have.”
Well, not quite. Watts did decide against importing the entirety of the § 51.20 procedures, but nowhere in the opinion will you find language “considering and rejecting” the notion of a one-year time limit. What you will find, not to bore you, is the term “annual review.” Perhaps this case will provide SCOW with an occasion to clarify whether its definition of the term “annual” coincides with, say, Webster’s.
Two side notes: first, the court intimates that ch. 51 itself may not require “completion of the review within one year,” (¶23), but case law suggests to the contrary. See G.O.T. v. Rock County, 151 Wis. 2d 629, 445 N.W.2d 697 (1989) (“the trial court must hold the extension hearing before the initial commitment expires to determine whether the defendant is … ‘a proper subject for commitment,’ unless a timely demand for a jury has been made.”). Second, note that the court’s holding here applies only to annual reviews; time limits for initial placements are mandatory and failure to adhere to them deprives the court of competency. State ex rel. Sandra D. v. Getto, 175 Wis. 2d 490, 497, 498 N.W.2d 892 (Ct. App. 1993).