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Defense win! COA reverses default recommitment

Outagamie County v. R.G.K., 2019AP2134, 9/20/22, District 3 (1-judge opinion, ineligible for publication); case activity

After the county petitioned to recommit “Rick” only his counsel appeared at the final hearing. The court found good cause to extend the recommitment in order to schedule a new final hearing. Unfortunately, Rick did not appear at the rescheduled hearing either, so the circuit court defaulted him.

Rick’s lawyer did appear at the rescheduled hearing. She informed the court that she had spoken to Rick, and he wanted to contest the recommitment. She thought that he knew the time of the hearing. However, due to conflicting information from the court, it was possible that he did not. The county moved for a default judgment, and, as noted,  the circuit court granted it. The court said that “Rick waived his appearance by failing to show up for court” and not much more.

The court of appeals reversed. It noted that Waukesha County v. S.L.L., 2019 WI 66, 387 Wis. 2d 333, 929 N.W.2d 140 holds that the county was only required to serve written notice on Rick’s lawyer, not on Rick himself, so there was no due process violation. Opinion, ¶¶15-18.

Note to practitioners: S.L.L.’s holding on this point appears to conflict with Vitek v. Jones, 445 U.S. 480, 495 (1980), which holds that the subject of a commitment proceeding (in that case, a prisoner) has a 14th Amendment right to “written notice” of the commitment hearing. S.L.L. does not address Vitek.

Then, again citing S.L.L., the court of appeals held that a person does not have the right to appear at a commitment proceeding in the same way as at a criminal trial. The rules of civil procedure, including §806.02(5) governing default judgments, apply to recommitment hearings.  Therefore, the circuit court had authority to enter a default judgment against Rick. Opinion, ¶¶19-22.

Again, S.L.L. did not consider Vitek, which holds that the subject of a commitment hearing has, at a minimum, the following 14th Amendment  due process rights, which look a lot like a criminal defendant’s rights: (a) written notice of the hearing; (b) a hearing, sufficiently after the notice so that the person can prepare a defense, where the government discloses its evidence and where the person has “an opportunity to be heard in person” and to present evidence; (c) the right to present the testimony of witnesses and to “confront and cross-examine” the government’s witnesses; (d) an independent decisionmaker (e) a written statement of the factfinder indicating the facts relied upon the reasons for its decision; and (f) effective and timely notice of all of the above rights. Vitek, 445 U.S. at 494-495.

The court of appeals ultimately reversed the default judgment only because the circuit court erroneously exercised its discretion–that is, it failed to adequately explain its decision to enter the default judgment. Opinion, ¶¶28-30.

Another note to practitioners: After S.L.L. some counties don’t bother serving our clients with petitions for recommitment, so our clients don’t get notice of their recommitment hearings. Because S.L.L. did not address Vitek, one option is for defense counsel to move to dismiss based on Vitek.

The court of appeals helpfully suggests another defense strategy–one that S.L.L. did not address. See Footnote 7 of the court of appeals’ decision. If the rules of civil procedure apply to ch. 51 recommitments, then Rick was allowed to appear by counsel. A court cannot enter a default judgment against a party who appears by counsel. See Sherman v. Heiser, 85 Wis. 2d 246, 254-55, 270 N.W.2d 397 (1978) (explaining that a party in a civil action does “‘appear’ at trial by the fact that … counsel appeared” and that trial judges should not grant default judgment under WIS. STAT. § 806.02(5) when a person appears through an attorney based on WIS. STAT. § 757.27 (1977-78), the statutory predecessor to SCR 11.02).

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