In a case with potentially far-reaching implications for Chapter 51 appeals, the Wisconsin Supreme Court issues a narrow holding that leaves a major D.J.W. issue for another day.
M.R.M. claims he was wrongly denied a jury trial when the circuit court relied on Marathon County v. R.J.O. to hold that he failed to make a timely request. (¶¶ 4-5). In so doing, the circuit court relied on an erroneous reading of § 51.20(11)(a) which was rejected by a slim majority in Waukesha County v. E.J.W. See our post on that decision here.
E.J.W. was decided after M.R.M.’s final hearing, but before he initiated this appeal. (¶6). Five justices agree that E.J.W. applies retroactively, although the path to that outcome is anything but straightforward. Writing for four justices, Justice Dallet applies the three-factor test from Kurtz v. City of Waukesha to determine that retroactivity is warranted here. (¶10). In essence, applying E.J.W. retroactively will give effect to the “legislature’s policy choices”–namely, protecting the due process rights of individuals facing involuntary civil commitment–and avoid an inequitable outcome whereby E.J.W. obtains relief while the similarly situated M.R.M. does not due solely to the timing of when R.J.O.’s flawed holding was rejected by SCOW. (¶¶13-14).
As Justice R.G. Bradley notes in her concurrence and Justice Dallet acknowledges in a footnote, there is significant room to argue about the proper interpretation and analysis of Wisconsin’s law on the retroactivity of civil decisions. This is a niche issue so we won’t waste words on the dispute here; but if you have one of these cases this is an essential read.
Next, the Court determines what remedy is required on appeal when the lower court errs in a recommitment proceeding. Although this issue has vexed appellate courts, here, the majority wholly accepts M.R.M.’s arguments and agrees that reversal is the correct outcome because the circuit court no longer has competency to conduct a hearing on remand. (¶23.).
The Court goes on to clarify an important distinction when discussing competency to conduct remand proceedings in the 51 context. Under one view, the lower court will clearly not have competency to conduct a hearing on remand if the recommitment order at issue has expired while the appeal was pending, a clear cut legal reality acknowledged by another slim majority in Sheboygan County v. M.W. While the Court acknowledges it could apply M.W.because the order on appeal has expired, it ultimately goes further. The Court holds that competency should be assessed based not on the expiration of the recommitment order at issue on appeal, but instead on the expiration date for the preceding valid order. (¶24.). Because the recommitment order needs to be entered before the preceding order expires (or else the court loses competency to extend the commitment), it makes little sense to send the matter back for a “new” recommitment hearing long after that deadline has passed. (Id.).
Hold on! You might be saying. What about the rejected “domino theory” at issue in Portage County v. J.W.K? Does this mean that a break in the “chain” will result in relief for the respondent? (This is the thrust of Justice Roggensack’s dissent, which asserts that the majority has created tension with that holding.) The majority clarifies, however, that any such “tension” arises from a misunderstanding of its holding:
Despite the dissent’s claims to the contrary, nothing in this decision affects the validity of any commitment order M.R.M. may be subject to currently.
Moreover, our conclusion that the circuit court lost competency to conduct further proceedings on remand when it failed to enter a lawful extension order before the preceding commitment order expired does not mean that the circuit court would necessarily lack competency to extend any commitment order that M.R.M. may be subject to currently or to consider a new petition for commitment.
Thus, M.R.M.‘s narrow holding is only about the competency of a circuit court to conduct a recommitment hearing on remand. If the County is able to obtain a new, valid, commitment order while your appeal pends, then you are out of luck. Yet, with fast-tracked appeals–and an alleged effort on the part of the court of appeals to promptly address 51 appeals–M.R.M. will result in meaningful relief for clients who can get their recommitment orders addressed on appeal before the County obtains a new order.
The final issue in this case concerns Langlade County v. D.J.W. As every reader of this blog presumably knows, D.J.W. requires the circuit court to make specific dangerousness findings in the recommitment context. The court of appeals has interpreted D.J.W. to require reversal when the circuit court fails to make explicit findings–an issue we have posted on many, many times. This reading of D.J.W. is not ironclad, however. In M.W., three justices signed onto a fiery dissent bemoaning the transformation of the Court’s holding in D.J.W. into a requirement for “magic words” and criticizing the majority’s failure to recognize the applicability of a harmless error requirement as set forth in § 51.20(10)(c). Justice Hagedorn, in a concurrence, broadly hinted that he might be willing to join that group under the correct circumstances. Thus, it appears there might be 4 justices willing to implicitly overrule D.J.W. and neutralize its usefulness for litigants on appeal. At least one unpublished court of appeals decision has already denied relief using a harmless error rationale.
However, given M.R.M.’s win on the jury demand issue, the majority ultimately determines it is unnecessary to reach the D.J.W. issue and thus saves any discussion of harmless error for another day. (¶7 n.3.).
Chief Justice Ziegler, in a dissent also calling for E.J.W. to be overruled, argues that a harmless error rule should apply. (¶46.). Clearly we have not seen the last of this issue in this Court.