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Court of appeals dismisses Chapter 51 appeal as moot, ducks issues of 1st impression

Waukesha v. S.L.L., 2017AP1468, 5/2/18, District 2 (1-judge opinion, ineligible for publication), petition for review granted 8/15/18, affirmed, 2019 WI 66; case activity

No Wisconsin case addresses how a circuit court acquires personal jurisdiction over the subject of a Chapter 51 petition. Neither Chapter 51 nor any case authorizes a circuit court to enter a default commitment against a person whom the County failed to serve with the petition. Nor does any authority authorize doctors who have not “personally examined” the subject of a Chapter 51 petition to opine that she is mentally ill, dangerous, and the proper subject for treatment.  Yet that is what is what happened in this case.  The subject of a Chapter 51 petition could be dead, living at the North Pole, or thriving under the care of a private physician in another county, yet according to the circuit court it can still, without service, issue a default commitment against her and writ of capias to detain her next time she enters the county.

All three circuit court errors implicate the due process rights of person alleged to be mentally ill. See Lessard v. Schmidt, 349 F. Supp. 1078, 1092 (E.D. Wis. 1972), vacated on other grounds 414 U.S. 473 (1974)(subject of mental commitment must have notice and an opportunity to be heard) Shirley J.C. v. Walworth County, 172 Wis. 2d 371, 386, 493 N.W.2d 382 (Ct. App. 1992)(prohibiting summary judgment in Chapter 51 commitments on due process grounds); §51.20(9)(a)(doctors to “personally observe and examine” the subject); Walworth County v. Therese B., 2003 WI App 223, ¶13, 267 Wis. 2d 310, 671 N.W.2d 377 (Under Chapter 54, due process requires independent evaluation of subject not regurgitation of prior doctors’ reports).  The court of appeals found these issues moot and called S.L.L.’s arguments  regarding mootness “unexplained” and “undeveloped.” Opinion ¶¶1,  13, 14.

The record for this case is confidential but based on the court of appeals’ opinion and docket, here’s what appears to have happened. The County obtained an unconstitutional default judgment and a writ of capias over S.L.L., whom it had never served, back in February 2017. It held onto both for 7 months–long after S.L.L. filed a notice of appeal and established jurisdiction in the court of appeals. Just before briefing began, the County moved to dismiss the default judgment and writ of capias in the circuit court level. Then after S.L.L. filed her initial brief, the County moved to dismiss the appeal as moot. S.L.L. opposed the motion and won. That is, a court of appeals judge denied the County’s motion to dismiss and briefing proceeded. After briefing was completed, a different court of appeals judge sua sponte reconsidered the decision to deny the County’s motion, declared the appeal moot and faulted S.L.L. for inadequately briefing an issue she had already won:

¶11 S.L.L. argues the case is not moot as to her. Without explanation, she contends that the doctors’ reports and the court’s express findings based on those reports—she is mentally ill and potentially dangerous, needs “to be locked up,” and so on—are now part of her record and could be used against her in future attempts to commit her. . .

¶12 . . . S.L.L. does not explain how vacating the orders would affect the evidentiary value of the doctor’s reports going forward, one way or another. More to the point, she does not develop any sort of claim or issue preclusion revolving around commitment and medication orders, entered when she had not been served, did not receive notice, did not appear, and which were subsequently dismissed because her residency in the County could not be established. Further, S.L.L. does not cite any authority for the proposition that a live controversy endures, despite a full dismissal of the action, when an appellant disagrees with particular opinions or documents of record or findings by the court.

And, responding to evidence that the County has obtained at least one other default commitment of a person without serving them first and that other counties dismiss if they can’t effectuate service, the court of appeal said: “We have next to no basis to believe that S.L.L.’s jurisdictional and default order issues frequently arise or cause significant and ongoing confusion or inconsistency in the handling of these cases, elevating the issues to ‘great public importance.'” Opinion. ¶14.

Suffice it to say that one member of the District 2 court of appeals wanted to address the significant issues presented by this case and another member did not. Commitments giving rise to these issues will always expire before any appellate court will be in a position to decide them. By declining to address the issues, the court of appeals has told the county and the circuit courts: “You may proceed to issue default judgments and writs of capias. Just be sure to dismiss them after the subject files a notice of appeal.” We hope to see petition for review in this case, and we hope that SCOW will guide the bench and bar on issues sorely in need of a published opinion. Now that the County’s strategy for avoiding appellate review has been approved, it will be hard to get a decision on these issues in a future appeal.

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