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Court of appeals asks SCOW to address notice required for ch. 51 recommitments

Rusk County v. A.A., Appeal No. 2019AP839 and 2020AP1580 (consolidated); certification granted 4/13/21, District 3; case activity here and here

SCOW recently held that recommitment proceedings are governed only by the procedures in §§51.20(10)-(13). Waukesha County v. S.L.L., 2019 WI 66, 387 Wis. 2d 333, 929 N.W.2d 140. Thus, the procedural requirements in §§(1)-(9) do not apply. Id., ¶¶24, 27. This court of appeals certification asks SCOW to decide whether S.L.L. violates the plain language of Chapter 51. If not, then does Chapter 51 violate 14th Amendment due process and equal protection given that, under S.L.L.‘s construction, it denies people undergoing recommitment fundamental procedural rights guaranteed to people undergoing initial commitments.

This certification stems from consolidated appeals involving Rusk County’s recommitment of “Andy.” In 2017, Rusk County petitioned to recommit him  because “if treatment were withdrawn he would become a proper subject of treatment.”  [Note: §51.20(1)(am) authorizes recommitment when if treatment were withdrawn the individual would become the proper subject for commitment.] The county’s petition alleged no facts to warrant recommitment.

In 2018, Rusk County refiled the 2017 petition for recommitment. It did not allege a factual basis for recommitment. It did not update the date of the order it was seeking to extend. It did not correct its erroneous recitation of the legal standard for recommitment.  Andy moved to dismiss the petition, but the circuit court denied his motion and recommitted him. Andy appealed.

In 2020, Rusk County filed the 2017 petition for recommitment yet again. It alleged no factual basis for recommitment, and it misstated the legal standard. Andy moved to dismiss. The circuit held that because §51.20(1) does not apply to recommitment proceedings, the Rules of Civil Procedure govern. They require only “notice pleading.” The County’s petition provided notice of a recommitment proceeding.  Motion to dismiss denied. Andy appealed.

According to the court of appeals certification, S.L.L.’s holding that only §51.20(10) through (13) apply to recommitment proceedings, appears to violate the plain language of §51.20.  In fact, §51.20(1)(am) (i.e. the recommitment standard itself) falls under §51.20(1). And §51.20(1)(am) is explicitly referenced in §51.20(1)(m), and §51.20(2)(a).  Certification at 7-16.

Furthermore, if §51.20(1)(c)’s requirement that a petition must contain a clear and concise statement of the facts constituting probable cause for a recommitment does not apply at the recommitment stage, then the circuit court cannot fulfill its legislative mandate under §51.20(2)(a). That subsection requires the circuit court to review a petition within 24 hours to determine whether the county has alleged probable cause for a commitment under (1)(am) (the recommitment standard).

In any event, recommitments don’t fit with the Rules of Civil Procedure. Section 802.02(1)(a), if applied to a recommitment proceeding, would require the county to allege “[a] short and plain statement of the claim, identifying the transaction or occurrence or series of transactions or occurrences out of which the claim arises and showing that the pleader is entitled to relief.” A recommitment does not arise from a transaction or occurrence between two parties. The county does not ask for a judgment of relief against an individual. Certification at 16. 

The certification also notes that if S.L.L. is correct, then §51.20 arguably violates due process and equal protection. It requires counties to give due process notice of the factual basis and legal standard for an initial commitment, but not for a recommitment. In addition, because S.L.L. holds that only §51.20(10-(13) apply at the recommitment stage, §51.20(9) would require a personal examination by two doctors for an initial commitment but no personal examination by anyone for a recommitment. Certification at 17-21.

The court of appeals cannot contradict, modify or clarify S.L.L. The court of appeals said: “For that reason—and given the importance of the issues raised in these appeals and the high likelihood that they will recur in future cases—we believe supreme court review is both appropriate and necessary. A decision by the supreme court ‘will help develop, clarify or harmonize the law,’ WIS. STAT. RULE 809.62(1r)(c), providing much-needed guidance to Wisconsin attorneys, litigants, and lower courts.” Certification at 21.

UPDATE: SCOW denied this certification request on May 19, 2021.

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