July 16, 2024 – Recommitment and involuntary medication hearing notices must be served on the subject of the hearings, not only his or her attorney, the Wisconsin Supreme Court has ruled (5-2) in Waukesha County v. M.A.C., 2024 WI 30 (July 5, 2024).

In M.A.C., the court also held that default judgments are not available in recommitment and involuntary medication hearings.

Justice Janet Protasiewicz wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Rebecca Dallet, and Justice Jill Karofsky. Justice Rebecca Grassl Bradley concurred in part and dissented in part. Justice Brian Hagedorn wrote a concurring opinion. Chief Justice Annette Ziegler dissented.

In 2020, the Waukesha County Circuit Court involuntarily committed M.A.C., who suffers from schizoaffective disorder. At that time, the county also entered an involuntary medication order against M.A.C.

In 2022, Waukesha County (County) sought to extend M.A.C.’s commitment and her involuntary medication order.

The circuit court scheduled a recommitment hearing but was unable to provide notice to M.A.C. because she was homeless. The circuit court did provide notice to M.A.C.’s attorney.

M.A.C.’s attorney appeared at the recommitment hearing without M.A.C. The circuit court found M.A.C. in default and ordered the extension of the commitment and the involuntary medication order.

In issuing the involuntary medication order, the court relied upon examination reports from two doctors; neither had personally examined M.A.C.

M.A.C. appealed, and the Wisconsin Court of Appeals affirmed. M.A.C. appealed to the Supreme Court.

Notice to Whom?

On appeal, M.A.C. argued that:

• she was entitled to personal notice of the recommitment and involuntary medication hearings;

• default judgment is unavailable in recommitment and involuntary medication orders; and

• the involuntary medication order wasn’t supported by the evidence.

Writing for the majority, Justice Protasiewicz pointed out that the notice statute for recommitment, section 51.20(10)(a) mandates that a county “notify the subject individual and his or her counsel of the time and place of final hearing.”

Similarly, Protasiewicz noted that section 51.61(1)(g)3. mandates that a court may order involuntary medication only “with notice of the motion to the individual’s counsel, if any, the individual, and [corporation counsel].”

Justice Protasiewicz reasoned that because the legislature used the word “and” in the relevant portion of each statute, notice upon a person’s attorney only was not sufficient.

The County argued that: 1) under the rules of civil procedure, notifying a person’s attorney counts as notifying the person; and 2) section 51.20(10)(c) the rules of civil procedure applied to ch. 51 “except as otherwise provided in this chapter.”

But Protasiewicz turned that argument aside, reasoning that there was no need to look the general rules of civil procedure when the legislature had created specific notice provisions in ch. 51.

Additionally, Justice Protasiewicz wrote, “The legislature incorporated the rules of civil procedure into chapter 51 with a condition: The rules of civil procedure apply ‘[e]xcept as otherwise provided in [chapter 51}.”

Protasiewicz acknowledged that in Waukesha County, v. S.L.L., 2019 WI 66, 929 N.W.2d 140, the Supreme Court held that notice of a recommitment hearing to a person’s attorney counted as notice to the person.

But Justice Protasiewicz concluded that S.L.L. decision was unsound because it didn’t fully address the plain text of section 51.20(10)(a), and therefore should be overruled.

Default Judgment Not Available

Protasiewicz concluded that default judgments are not available in recommitment or involuntary medication hearings.

Justice Protasiewicz noted that ch. 51 contains no default judgment provision.

Instead, Protasiewicz pointed out, the legislature decided to allow a court to order a person’s detention if he or she fails to appear for a recommitment hearing, and that option, she concluded, marks the limit of a circuit court’s authority where a person fails to appear for a recommitment hearing.

For involuntary commitment hearings, Protasiewicz explained that under section 51.20(5)(a), a recommitment hearing “must conform to the essentials of due process and fair treatment.”

“If a circuit court were allowed to enter a default judgment, it would undermine the legislature’s directive to hold a fair hearing,” Justice Protasiewicz wrote.

Insufficient Evidence

Justice Protasiewicz also concluded that the circuit court’s involuntary medication order was not supported by the evidence.

Protasiewicz noted that the county called no witnesses on the question of involuntary medication and relied solely on the doctors’ reports.

However, she wrote, “Neither doctor spoke to M.A.C., and one failed to explain how he obtained any information about M.A.C.”

R. Bradley Concurrence, Dissent

In a brief opinion, Justice R. Bradley wrote that she agreed with the majority that a circuit court’s order of involuntary medicine was backed by insufficient evidence. However, she argued, the majority was wrong to overrule S.L.L.

Bradley argued that the question was not whether M.A.C. was entitled to notice under section 51.20(10)(a), but what method of notice was sufficient to satisfy the statute.

Justice R. Bradley also argued that the majority erred by holding that default judgment was not available in recommitment and involuntary medication hearings.

“It is hard to see the majority’s analysis of whether default judgment is allowed in recommitment and involuntary medication hearings as anything but a shallow due process analysis masquerading as statutory interpretation,” R. Bradley wrote.

Ziegler Dissent

Chief Justice Ziegler argued in her dissent that the majority was wrong to consider any issue beyond whether the law required that notice be provided to M.A.C.

Ziegler, after noting that she disagreed with the majority’s holding on that point (“the majority fails to explain how notice can be provided to someone who does not apprise court or counsel of her whereabouts”), argued that holding mooted the defaulted judgment entered against M.A.C.

“Nonetheless,” Chief Justice Ziegler wrote, “the majority needlessly wades into a determination that default judgment is unavailable.”

“Any rationale for this conclusion appears rooted in a particular notion of ‘fairness,’ untethered to the law of practice and procedure,” Ziegler wrote. “Default judgment is an available tool for relief that should not be disturbed.”