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Defense win! 72-hour filing deadline for revoking NGI conditional release is mandatory

State v. Larry W. Olson, 2019 WI App 61; case activity (including briefs)

Olson and the state resolved some felony counts with an agreement that he’d plead not guilty by reason of mental disease or defect. The court found him NGI and committed him for 19 years, placing him on conditional release immediately. A few weeks later, Olson admitted violating his release conditions by smoking methamphetamine. DHS, which supervises NGI committees, immediately took him into custody. For reasons unknown, it held him for eight days before filing a petition to revoke his supervised release. This, everyone agrees, violated Wis. Stat. § 971.17(3)(e), which says such a petition “shall” be filed within 72 hours of detention (excluding weekends and holidays). The dispute on appeal is what that violation means: the state says there’s no consequence at all; Olson says a late petition is no good and must be dismissed. In legalese, the question is whether the word “shall” is mandatory or directory.

The state argues that the answer is found in State v. Schertz, 2002 WI App 289, 258 Wis. 2d 351, 655 N.W.2d 175, which held a separate deadline–the 30 days within which a court must decide petition for revocation of conditional release–to be directory only. The court of appeals disagrees, noting that Schertz simply didn’t address the 72-hour rule, that the two deadlines govern different actors (DHS for the 72-hour rule, the court for the 30-day deadline), and that the 72-hour rule, unlike the 30-day deadline, is waivable. (¶¶16-19).

Unshackled by precedent, the court turns to the mandatory/directory test outlined in State v. R.R.E., 162 Wis. 2d 698, 470 N.W.2d 283 (1991):

(1) the purpose of the statute; (2) the statute’s history; (3) whether a penalty or prohibition is imposed for the violation of the time limit; and (4) the consequences of interpreting the statutory time limit as either mandatory or directory, including whether the failure to act within the time limit works an injury or wrong.

The court finds that the third factor weighs in favor of the state’s argument: there’s no enumerated penalty for noncompliance with the deadline. (¶29). But that’s overwhelmed by the other three factors, all of which, the court says, point to a mandatory deadline. As to purpose, the parties agree it’s twofold: to protect the public and prevent delay. But the court is persuaded that the latter purpose can’t be satisfied by a toothless deadline. It quotes Olson’s observation that

before the Department goes to court it is detaining a person at its complete discretion. Each day the Department delays filing, the person is locked up without court oversight—the court has no way of even knowing the person has been taken into custody.

Moreover, the petition is the means by which the Department notifies the public defender that the person has been detained. … So, if the Department delays, it also
obstructs the person’s access to counsel. Before the petition was filed, Mr. Olson was simply being detained, unilaterally, by the state. There was no finding of probable cause; there was no judicial oversight at all.

(¶21). Moreover, the court notes that state has ample alternate means to protect the public: the Department’s supervision, the availability of a second petition if there is true danger, and the ability to pursue criminal charges or civil commitment. (¶23).

On legislative history, the court observes that the 72-hour rule has actually been loosened recently–an accommodation that would be unnecessary if there were no consequence for its violation. (¶26). And the court isn’t buying the state’s argument that there’s no real harm in a late petition because there are other remedies available to the detainee–namely, mandamus or habeas corpus:

We are unpersuaded by the State’s attempt to gainsay the concerns raised by Olson. Again, Olson’s argument is that when the Department fails to comply with the seventy-two-hour time limit to file its submissions, the detained person is without access to counsel because the Department has failed to follow the statutory requirement to notify “the regional office of the state public defender” of his or her detention. See WIS. STAT. § 971.17(3)(e). It would be absurd to conclude that in order to remedy this wrong the detained person must seek, pro se, the “extraordinary writ of habeas corpus,” which itself is “available to a petitioner only under limited circumstances.” See State ex rel. Haas v. McReynolds, 2002 WI 43, ¶12, 252 Wis. 2d 133, 643 N.W.2d 771. Rather, we conclude that the injury occasioned by the Department’s failure counsels strongly in favor of construing the time limit as mandatory.



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