CoA denies disabled person appellate review of protective placement

Portage County v. K.K., 2021AP1315, 2/10/22, District 4, (1-judge opinion, ineligible for publication); case activity

This opinion has alarming implications for disabled people. The circuit court issued a summary judgment order continuing K.K.’s protective placement. She appealed and argued that summary judgment is not allowed in Chapter 55 cases. The court of appeals refused to reverse. It predicted that this due process violation would never recur, dismissed the appeal as moot, and thus ensured that the due process error can recur.

The seminal decision on Chapter 55 annual reviews is State ex rel. Watts v. Combined Community Services Board of Milwaukee County, 122 Wis. 2d 65, 362 N.W.2d 104 (1985). Watts held that as a matter of equal protection, a person who is protectively placed has the right to “an annual automatic court review under ch. 55.” Id., 122 Wis. 2d at 82. (Emphasis supplied).

SCOW later clarified that the “annual” review may be either a “summary hearing” or a “due process hearing.” Either way, the circuit court must hold the hearing on the record. County of Dunn v. Goldie H., 2001 WI 102, ¶28, 245 Wis. 2d 538, 629 N.W.2d 189. In fact, SCOW stressed:

Taking a few moments to protect the rights of our most vulnerable citizens is not an unacceptable cost to society. It is an expression of our humanity. It is a commitment that no person will be warehoused and forgotten by the legal system. Id., ¶35.

K.K. has been under a protective placement since 2018. In October 2020, the county petitioned for annual review. While the parties were preparing for a jury trial, the county moved for summary judgment arguing that there were no issues of fact for the jury to decide. The circuit court granted summary judgment anyway.

Note: The court of appeals has held that using summary judgment procedure in Chapter 51 cases violates due process. Shirley J.C. v. Walworth County, 172 Wis. 2d 371, 493 N.W.2d 382 (1992).

K.K. appealed the summary judgment order, which is the subject of this post. About 7 months later the circuit court continued her protective placement again. K.K. did not contest that annual review. (Why bother if the court’s gonna rubber the county’s paperwork in order to avoid a summary hearing or jury trial?) As a result, the court of appeals dismissed her appeal from the summary judgment order as moot.

¶10 . . . Based on recognized due process requirements, and the explicit procedural requirements set forth in ch. 55 by the legislature, it is quite unlikely that, in any future ch. 55 proceeding: (1) a party will request summary judgment; or (2) a circuit court will use summary judgment procedures or grant a summary judgment motion. Accordingly, I decline to decide the merits of K.K.’s moot appeal. See J.W.K., ¶38

Unlike a Chapter 51 commitment, which lapses if not renewed after 6 or 12 months, a Chapter 55 protective placement generally lasts for life because the individual has been found to have a disability that is permanent or likely to be permanent.  Due to that disability, the individual lacks the capacity to petition for review of a placement that is unnecessarily restrictive or perhaps even abusive.

That is why Watts mandated automatic, annual court reviews. The annual review ensures that protectively placed people are being appropriately cared for. When the court of appeals shrugs off a major due process violation, as it did here, it means that the individual can be “warehoused and forgotten by the legal system” for two years–i.e. until the next annual review.

Of course, this assumes that the next annual review follows the statute and the constitution. Because the court of appeals refused to reverse, nothing precludes the county and the circuit court from using summary judgment procedures in K.K.’s case or other Chapter 55 cases again. That’s one reason this decision is so troubling.