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Who needs examiner reports 48 hours before a Chapter 51 hearing?

Fond du Lac v. S.N.W., 2019AP2073, 6/17/20, District 2 (1-judge opinion, ineligible for publication); case activity

We detect the unmistakable odor of SCOW bait. One of two court appointed medical experts failed to submit his examiner’s report within 48 hours before the final hearing for an original commitment of a prisoner. S.N.W. argued that this violation deprived the circuit court of competence to adjudicate the case. Alternatively, if the court retained competency, the report had to be excluded. The court of appeals disagreed. Who needs expert reports 48 before trial? Not defense lawyers striving to defend their clients’s rights. They can just wing it. This decision is at odds with several unpublished opinions and thus sets up a good petition for review.

Section 51.20(10(b) provides that: “Counsel for the person to be committed shall have access to all psychiatric and other reports 48 hours in advance of a final hearing.” S.N.W. argued that that the short deadlines in Chapter 51 are central to its due process guarantee. Like a violation of the 72-hour deadline for holding a probable cause hearings, a violation of the 48-hour deadline deprives the circuit court of competency to act in the case.

The court of appeals held: “No statutory or case law supports the concept that a late-filed evaluation report operates in the same manner, and our review of the statute indicates the opposite.” Opinion, ¶8.  Furthermore, the court must “disregard any error. . . that does not affect the substantial rights of either party.” Opinion, ¶9 (quoting §51.20(10)(c)). The court faults S.N.W. for not proving his substantial rights were affected.

If defense counsel doesn’t have to prove that a violation of the 72-hour deadline for probable cause hearing or the 14-day deadline for a final hearing violates his client’s substantial rights and due process, why should he have to prove prejudice for a violation of the shorter 48-hour deadline?  Do courts understand that the examiners’ reports are the linchpin of a county’s Chapter 51 case? Can they imagine that a public defender might have more than one client and that 48 hours is never enough time for a defender to research his client’s mental illness and the doctor’s proposed medications, meet with his client about the reports, prepare cross-examinations of the doctors, figure out how to challenge the rampant hearsay in doctors’ reports, sleep, eat, hug his family, take a shower, dress for court and zoom (or in normal times, drive) there?

The court of appeals does not address the alternative argument that the late report should have been excluded.

Here are a few court of appeals’ decisions that this opinion appears to contradict:

Rock County v. Philip B., 179 Wis. 2d 505, 508 N.W.2d 76 (Ct. App. 1993)(unpublished). When a doctor filed his amended report less than 48 hours before the final hearing in violation of §51.20(10)(b) the patient’s right to “the essentials of due process and fair treatment” required by §51.20(5) were violated. Commitment reversed.

Sheboygan County v. John J.V., 2014 Wis. 2d 113, 552 N.W.2d 900 (Ct. App. 1996)(unpublished) When a doctor filed his report less than 48 hours before a commitment hearing, the circuit court offered a continuance so that the parties received the full 48 hours to consider the reports. Decision affirmed.

M.L. v. Wood County, 130 Wis. 2d 542, 393 N.W.2d 549 (Ct. App. 1986)(unpublished). When a doctor filed his report less than 48 hours before a commitment hearing in violation of §51.20(10)(b), the commitment had to be reversed.


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