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SCOW to address mootness, the due process right interpreters, and other Chapter 51 issues

Waukesha County v. J.J.H., 2018AP168, petition for review granted 9/3/19, case activity


  1.  Whether the mootness doctrine should apply to an appeal from a commitment order?

  2. Whether the circuit court violated due process when it held a Chapter 51 probable cause hearing and ordered a 30-day commitment/temporary guardianship/protective placement under §51.67 without providing J.J.H., who is deaf, sign language interpreters?

  3. Whether the circuit court erred in entering a §51.67 conversion order (a) at the probable cause stage of a Chapter 51 commitment and (b) without making any of the statutorily-required findings for the order?

  4. What is the mechanism for appealing a §51.67 order?

Who knew a teentsy tiny summary disposition could generate so many issues? Less than 3 months ago SCOW itself reaffirmed that the mootness doctrine applies to Chapter 51 appeals. To get an opinion on the merits the appellant must first prove that an exception applies. See Waukesha County v. S.L.L., 2019 WI 66, 387 Wis. 2d 333, 929 N.W.2d 140 and Portage County v. J.W.K., 2019 WI 54, 386 Wis. 2d 672, 927 N.W.2d 509. So is the first issue in this appeal D.O.A.? It shouldn’t be. Many states either don’t apply the mootness doctrine to appeals from mental commitments or they categorically except these appeals from the mootness doctrine partly mental commitments have collateral consequences (stigma, loss of 2nd Amendment rights, financial consequences, etc.) and partly because dismissing these appeals as moot deprives lower courts and the public of guidance on mental commitment law. See Matter of Naomi B., 435 P.3d 918 (Alaska 2019)(and authorities cited therein).

Then there’s the 2nd issue for review. J.J.H. had a right to a probable cause hearing within 72 hours and a right to have sign language interpreters so she could understand witness testimony, talk to her lawyer, testify and otherwise participate in her a hearing where her freedom from commitment and medication were at stake. The circuit court couldn’t find interpreters on short notice so it proceeded without them over J.J.H.’s objection.  State v. Neave, 117 Wis. 2d 359, 244 N.W. 2d 181 (1984) and Strook v. Kedinger, 2009 WI 31, 316 Wis. 2d 548, 766 N.W.2d 219 addressed similar situations but they aren’t Chapter 51 cases.

As for the 3rd and 4th issues for review, there does not appear to be any Wisconsin case law on these issues. The court of appeals punted on these issues, so good or bad SCOW’s decision in this case will be instructive.

{ 3 comments… add one }
  • Benbow Cheesman September 5, 2019, 10:46 am

    Asssuming, as I do, that J.J.H. had counsel more than 72 hours prior to the hearing, he/she should have notified the court at once of the need for an interpreter, and perhaps even located one to refer to the court. On the other hand, the court, faced with the dilemma of violating the time limit or violating due process, should have chosen the former option. It causes less harm.

  • Benbow Cheesman September 5, 2019, 10:50 am

    Assuming, as I do, that J.J. H. had counsel more than 72 hours before the hearing, counsel should have notified the court of the need for an interpreter as soon as he/she tookk the case. On the other hand, the court, faced with the dilemma of either violating the 72-hour rule or violating J.J.H.’s right to due process, should have chosen the first option. It does less harm to J.J.H.

  • Elizabeth Gamsky Rich September 23, 2019, 7:28 am

    In response to the comment above: I handle Chapter 51 cases on a regular basis. More often than not, I am appointed to represent a client at a probable cause hearing less than 24 hours in advance of the hearing. It is not defense counsel’s obligation to ascertain the need for and obtain an interpreter. Neither violation of the 72-hour rule nor deprivation of due process for lack of an interpreter was an acceptable option in this case. The county should have dismissed the case.

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