Jan. 9, 2025 – A required psychological report filed less than 48 hours before a final hearing for involuntary commitment stripped the circuit court of competency because it deprived the person to be committed of due process, the Wisconsin Court of Appeals recently decided in Outagamie County v. M.J.B., 2024 AP 250.

Circuit courts have subject matter jurisdiction under the Wisconsin Constitution, but a circuit court may not be competent to hear a case if it fails to comply with statutory requirements attached to that jurisdiction that are “central to the statutory scheme.”

Although one court of appeals judge usually decides appeals under the Mental Health Act in Wis. Stat. chapter 51, the court of appeals, under section 752.31(2), chose to use a three-judge panel. In a unanimous decision, written by Presiding Judge Lisa K. Stark, the court reversed the circuit court.

The published decision from District III comes to the opposite conclusion of an unpublished court of appeals decision from District II.

Emergently Detained

The person to be committed, whose name is confidential and to whom the court gave the pseudonym “Mark,” was emergently detained after he destroyed property at his mother’s home. She feared for her safety.

The circuit court found probable cause and scheduled a final hearing for Sept. 6, 2023.

Before the final hearing, under Wis. Stat. section 51.20(10)(b), two psychological experts are required to examine the person to be committed and provide a report at least 48 hours before the hearing.

A psychologist and a psychiatrist each examined Mark. One report was filed Sept. 5 – one day before the final hearing.

Mark objected to the circuit court’s competency to proceed at the final hearing because the second report arrived late. The circuit court could not delay the hearing because section 51.20(7)(c) requires a final hearing no more than 14 days after initial commitment. Mark didn’t waive that right.

Outagamie County conceded the report failed to arrive on time. It argued at the final hearing that the circuit court may disregard the failure because it did not affect the parties’ substantial rights.

Because everyone received the report at the same time and the county didn’t intend to call that examiner as a witness, Mark would not be “impacted” by the error, the county argued before the circuit court.

The circuit court agreed with the county, held the hearing, and found that Mark was mentally ill, a proper subject for treatment, dangerous, and not competent to refuse medication.

The court then entered orders for Mark’s involuntary commitment and involuntary administration of medication and treatment.

Earlier Case

On appeal, the county relied on an earlier unpublished court of appeals case, Fond du Lac County v. S.N.W., 2019 AP 2073, that concluded the court retained competency under these circumstances.

As described in S.N.W., the individual was emergently detained under the same statute as Mark. Unlike Mark, S.N.W. was an inmate in jail.

One of the examiners filed the treatment report less than 48 hours before the final hearing. Over S.N.W.’s objection, the county entered that late report into evidence and called the examiner who submitted the late report as a witness.

On appeal, S.N.W. argued the late report deprived the circuit court of competency. Alternatively, S.N.W. claimed that the court may have retained competency by disregarding the late report and testimony from the expert who wrote it.

The court of appeals in that case affirmed the circuit court, saying the late report did not harm S.N.W.’s substantial rights.

S.N.W. appealed the court of appeals decision. The supreme court granted review – only to dismiss it as improvidently granted (2021 WI 41) after receiving briefs and hearing oral arguments.

Justice Ann Walsh Bradley dissented from the dismissal, in part, because “this case implicates substantial rights and presents important questions of mental health commitment law.”

S.N.W. had died before the supreme court granted review, but Justice A.W. Bradley said the “significant liberty interests” in chapter 51 commitments survived S.N.W.’s death.

M.J.B. Court Disagrees with S.N.W.

As the M.J.B. court noted, however, in S.N.W. the reviewing court erroneously likened the violation of Wis. Stat. section 51.20(10)(b) to another section of the Mental Health Act. Section 51.20(13)(g)2r specifically allows a circuit court to retain competency – but that section covers recommitment proceedings.

Those two statutes are substantially different, the M.J.B. court explained, because the recommitment statute explicitly states that the violation does not affect jurisdiction. “In contrast, § 51.20(10)(b) applies to initial commitment proceedings, contains a forty-eight hour deadline, and does not address jurisdiction.”

Those differences caused the court to conclude that “the legislature intended that a court would lose competency due to the late filing of an examiner’s report in an initial commitment proceeding.”

The disparity between the two statutes, the court explained, “supports our conclusion that a court loses competency based upon the County’s failure to timely file an examiner’s report in an initial commitment proceeding.”

Due Process Protections

Due process protections in Wis. Stat. chapter 51 provide additional support for Mark, the court said.

Precedent specifies that involuntary commitment “implicates a liberty interest protected by due process.” The subject’s right to examination by two experts and a final hearing, among other “safeguards,” the court explained, further due process.

Section 51.20(10)(b) is clear that “[c]ounsel for the person to be committed shall have access to all psychiatric and other reports 48 hours in advance of the final hearing,” the court emphasized.

Based on supreme court guidance, the court of appeals concluded the 48-hour deadline “is central to the statutory scheme” in chapter 51. These “strict” time limits “protect the significant liberty interests at stake when an individual is detained for mental health treatment.”

“[F]ailing to comply with these deadlines substantially affects a subject’s due process rights,” the court warned.

The 48-hour rule “is also inextricably linked to the strict requirement” that two examiners are necessary, the court advised. “Violation of the right of two examiners is jurisdictional and implicates a circuit court’s competency to proceed, despite the fact that it is not a hearing time limit.”

Without those two reports, “a subject is essentially denied his or her right to be examined by two experts,” weakening the mandatory due process protections significantly.

The circuit court couldn’t cure this problem by disregarding the report, the court of appeals explained. “One or both of the expert’s reports may contain information that is favorable to the subject, and the subject may wish to call one or both experts as a witness, even if the County does not.”

The circuit court lacked the time to cure the defect by delaying the final hearing, the court of appeals noted.

Without both reports received at least 48 hours before the final hearing, Mark was unable to fully prepare for the hearing and lost potentially helpful evidence.

Likewise, the absence of both reports in time “negatively affects the subject’s right to effective counsel” who loses the ability to show inconsistencies between the examiners, the court said.

Because the error was not merely technical, but “central to the statutory scheme,” the court of appeals concluded that the circuit court lost competency, requiring reversal of the orders for involuntary commitment and involuntary medication and treatment.

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.