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Defense win! Circuit courts lack competency to conduct remand proceedings after ch. 51 commitment expires

Sheboygan County v. M.W., 2022 WI 40, reversing an unpublished court of appeals opinion; case activity

The crisp majority opinion of this 50-page split decision confirms a narrow but important point of law for ch. 51 cases. When an appellate court reverses a commitment order that has expired, the circuit court lacks competency to conduct remand proceedings in the case. The majority opinion does not address whether, in all cases, an appellate court must reverse a “D.J.W. error” outright or whether it may instead conduct a harmless error analysis. The dissent does not fully grasp this point and thus presents a long, confusing attack on an imaginary majority opinion.

Langlade County v. D.J.W., 2020 WI 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277, held that “going forward circuit courts in recommitment proceedings are to make specific factual findings with reference to the subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. on which the recommitment is based.”

In M.W.’s case, the court of appeals held that the circuit court ordered a ch. 51 recommitment without making these “D.J.W. findings.” The court of appeals reversed, remanded, and ordered the circuit court to comply with D.J.W.

M.W. filed a petition for review asking whether the remedy for a D.J.W. error is outright reversal or reversal with a remand for further proceedings. The majority, written by Justice A.W. Bradley, does not attempt to answer that question for all D.J.W. errors.  As the concurrence, written by Justice Hagedorn, explains not all D.J.W. are “created equal.”

¶42 . . . A circuit court might, for example, neglect to explicitly reference the standard of dangerousness on which the recommitment is based, even as the transcript makes abundantly clear which standard was relied on. Other times, the transcript might fail to shed any light on which standard the circuit court employed. Alternatively, D.J.W.’s instructions could be violated by failing to make specific factual findings on a small or large scale.

The majority and concurrence leave open the possibility that some of these mistakes could be subjected to a “harmless error” analysis. The reason they don’t touch harmless error is that the county made a procedural blunder. It failed to file a cross-petition for review challenging the court of appeals’ holding that the circuit court violated D.J.W. As a result, the question of whether the circuit court violated D.J.W. and, if so, whether the error was harmless, was not before SCOW.  Opinion, ¶5 n.2 (citing Betchkal v. Willis, 127 Wis. 2d 177,183 n.4, 378 N.W.2d 684 (1985)).

Three cheers to the majority for following, not violating, long-settled procedural rules. A number of recent SCOW decisions have penalized defense lawyers for allegedly violating this rule while giving the government a free pass. Click here and scroll down. It’s nice to see the rule applied evenly.

The majority held for the defense in this case because the circuit court’s recommitment order had expired, and a circuit court lacks competency to conduct proceedings on an expired recommitment order. SCOW made this same point in a footnote to Waukesha County v. E.J.W., 2021 WI 85, ¶40 n.10, 399 Wis. 2d 471, 966 N.W.2d 590. Here, the point moves to the body of the majority opinion and is dispositive of the sole issue for review. Majority, ¶37.

The dissent, written by Chief Justice Ziegler and joined by Roggensack and R.G. Bradley, never disagrees that a circuit court cannot conduct remand proceedings on an expired recommitment order. Instead, the dissent seems aimed a majority opinion that does not exist. It accuses the majority of imposing a “magic words” requirement whereby the circuit court’s failure to specify a standard of dangerousness results in automatic reversal and a parade of horribles.

¶63 If D.J.W. errors result in automatic reversal, without any consideration of the record as a whole or harmless error, we will transform Chapter 51 appeals into contests over magic words. Appellate courts would put aside any consideration of
the merits. Instead, the driving focus would become whether the circuit court cited or quoted a subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. This would create horrible incentives for litigants. If a commitment can be overturned on mere citations and labels, the opportunities for gamesmanship would substantially increase. Specifically, committees and their representatives will have no incentive to assist circuit courts in complying with D.J.W. Even in cases where the record overwhelmingly supports commitment and the individual desperately needs treatment, if a circuit court mistakenly fails to cite a subdivision paragraph of § 51.20(1)(a)2., the committee can remain silent and overturn his or her commitment on appeal.

¶66 . . . Even the most suicidal or homicidal individuals may have their commitments overturned on the basis of a circuit court’s procedural error. This would be a grave disservice to the fair and proper administration of justice. More significantly, it would symbolize a failure of the judiciary to the many victims of severe mental illness, who rely on Chapter 51 for safety and protection. In cruel irony, unjustified reversal will harm civil committees the most. Addington, 441 U.S. at 430 (“Such ‘freedom’ for a mentally ill person would be purchased at a high price.”).

First (and to repeat), the majority did not hold that D.J.W. errors result in automatic reversal. The county conceded the D.J.W. error by not challenging the court of appeals’ holding on this point.

Second, a defense lawyer has no obligation to point out county or circuit court errors in order to make a commitment appeal proof.  A defense lawyer who does arguably violates their ethical duties to their client.

Third, the majority opinion hinges on the fact that the challenged recommitment has expired. That’s why the remedy for M.W.’s case is outright reversal. The circuit court lacks competency to conduct proceedings on an expired recommitment order.

Fourth, outright reversal of commitment order that has expired does not harm the person or the public. When a commitment or recommitment is set to expire the county either recommits the person again (in which case the person is still being confined and treated) or the county lets the person go because it has determined that the person is no longer dangerous to themselves or others.

Fifth, according to a letter filed by the court of appeals in Sauk County v. S.A.M. (still pending), between 2018 to 2020 only 68 appeals from recommitment orders were filed.  The court of appeals decided 40% of them before the recommitment order expired. So this decision will affect maybe a dozen recommitment appeals each year. The actual number will be lower because . . .

Sixth, after SCOW issued D.J.W., the mandatory circuit court form recommitment order changed. It now requires the circuit court to specify a standard of dangerousness that the person will satisfy if treatment is withdrawn. So if circuit courts use the “mandatory” form, they are unlikely to commit D.J.W. errors. There’s no need to lose sleep over “magic words,” “gamesmanship,” “cruel ironies,” “the failure of the judiciary to victims of severe mental illness” or the like.

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