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SVP- Postdisposition – Re-examination time limit – Initial Re-exam

State ex rel. William E. Marberry v. Macht, 2003 WI 79, reversing 2002 WI App 133, 254 Wis. 2d 690, 648 N.W.2d 522; prior history omitted
For Marberry: Donald T. Lang, SPD, Madison Appellate


¶19. As we have noted, Chapter 980 is a civil commitment statute with dual objectives: protection of the public and treatment of persons with dangerous mental disorders. Untimely periodic reexamination frustrates the treatment objective and may keep persons who are no longer a danger to the public in institutionalized care longer than necessary.

¶20. In this regard, the failure to comply with the time limits for periodic reexamination has substantial consequences for the committed person. The initial and periodic reexaminations determine the committed person’s appropriateness for continued institutional care, supervised release, or discharge. As the court of appeals observed, the “committed person’s liberty hinges upon this initial reexamination.” Marberry, 254 Wis. 2d 690, ¶27.

¶21. The weight of these considerations leads us to conclude, as did the court of appeals, that the time limits for periodic reexamination in Wis. Stat. § 980.07(1) are mandatory. This conclusion, however, does not necessarily require release and discharge from commitment as a remedy for noncompliance with the statutory mandate.

The court agrees unanimously that Marberry is not entitled to release despite violation of the mandatory time limit for periodic reexamination, but splits 3-3 on the remedy for this violation. As a result, “neither the lead opinion nor the concurring opinion establishes precedent on this issue.” ¶37 n. 1. Lead opinion’s remedy: “a writ of mandamus to compel an initial or periodic reexamination, backed up by contempt, with a fine or jail as a sanction.” ¶27. The concurrence expressly rejects this approach and would instead “would hold this case open for two years so that DHFS can report to the legislature and the public every six months on the status of its compliance.” ¶58. See also Jackson v. State, 802 So.2d 1213, 1218 (Fla. App. 2002) (remedy for violation of review procedures is mandamus to compel compliance, not release).

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