Sheboygan County v. N.A.L., 2024AP1195, 2/5/25, District II (1-judge decision, ineligible for publication); case activity
In yet another appeal asking COA to clarify the procedure for accepting a stipulation to a mental commitment, COA refuses N.A.L.’s invitation to issue a precedential opinion and affirms based largely on a prior unpublished decision.
“Nathan” appeals orders for an initial six-month commitment and for involuntary medication. (¶1). His appeal focuses on what transpired at the final hearing, the transcript of which is reproduced at length in COA’s decision. (¶4). At that hearing, both the assistant corporation counsel and Nathan’s attorney informed the Court that Nathan was stipulating to the proposed orders for commitment and medication. (Id.). Nathan, who does not appear to have been in-person for that hearing, proceeded to make statements like “What’s a stipulation?”, expressed confusion as to the nature of the court proceeding, and was equivocal as to whether he was, in fact, stipulating. (Id.). At one point, the circuit court actually stated it was “unclear to me whether this is an actual stipulation to a commitment or not.” (Id.). Nathan eventually agreed. (Id.). However, after his attorney left the hearing (before it was concluded), Nathan again expressed confusion as to what he had agreed to, leaving the County’s witness, Dr. Marshall Bales, to try and explain things to him. (¶6).
On appeal, Nathan therefore argues that due process required the court to conduct a meaningful colloquy to ensure that the stipulation to a civil commitment (and medication order) as well as the attendant waiver of important rights, like the right to a jury trial, were knowing, intelligent and voluntary. (¶8).
COA is unpersuaded. First, it concludes that the record in this case was not “silent;” rather, the record shows that Nathan stated his willingness to “agree” during his “direct discussion” with the court. (¶10). Second, it faults Nathan for not developing an argument that the stipulation was not knowing, intelligent and voluntary. (¶11).
Although it recognizes that Nathan is asking for an affirmative requirement that a stipulation entered without a sufficient colloquy is per se invalid, COA holds that this issue has already been “squarely addressed” in a prior unpublished decision where it rejected identical arguments. (¶12). COA therefore holds that the flexible demands of due process do not require a colloquy, as civil commitments are less serious than other matters (like criminal cases or TPRs) where colloquies are legally required. (¶16).
Next, COA makes an interesting observation regarding an inherent tension in Nathan’s argument: How can a person knowingly, intelligently and voluntarily stipulate to being mentally incompetent for the purposes of a Chapter 51 commitment? (¶17). COA therefore observes that Nathan maybe would have better luck “arguing for the elimination of stipulations in all ch. 51 proceedings, because importing criminal-level requirements to ensure a knowing, intelligent and voluntary stipulation would make stipulations more susceptible to challenge than in criminal or TPR cases so that counties may simply choose to forego agreeing to them altogether.” (Id.).
Finally, COA notes that if it were to find that a colloquy was required or that stipulations must be knowingly, intelligently, and voluntarily entered, this would be unfair to the County. Unlike in criminal cases, and under its reading of Sheboygan County v. M.W., a remand in light of such a defect would cause the circuit court to lose competency–a result it seeks to avoid. (¶18).
In a footnote, COA recognizes Nathan’s request that this appeal be decided by a three-judge panel. However, it finds that Nathan’s arguments are too “modest,” “conclusory” and “insufficiently developed” to merit the attentions of more than one member of D2. (¶19, fn.3). It claims that Nathan must meet a higher burden to obtain a three-judge panel here, because he is advocating for a position “contrary to multiple prior unpublished decisions” of COA. (Id.).
As usual, we don’t have access to the briefs in order to analyze whether COA’s harsh criticism of defense counsel’s written advocacy is warranted. However, it is worth pointing out there is nothing in § 809.41 supporting COA’s claim that the existence of prior unpublished decisions means Nathan needed to do “something more” in order to warrant the issuance of a precedential opinion. In fact, the existence of those prior decisions–which are not precedent and which counsel for Nathan had no obligation to even “research or cite” in litigating this appeal, see § 809.23(3)(b)–actually support, rather than contradict, his request for a precedential decision issued by a three-judge panel.
After all, as we have discussed in previous posts, this specific issue has continued to recur since at least 2005 when SCOW dismissed a petition presenting the issue as improvidently granted. Since then, at least two appeals in two different districts have presented an identical legal challenge. As we noted in our post on the more recent L.A.T. decision, there’s ample room to argue that COA has continued to overemphasize and overstate the “precedential” force of its earlier (and also unpublished) N.W. decision, issued in 2019.
We therefore stated in 2023 that a “binding decision on this important issue would be really helpful.” We stand by that statement and can only hope that Nathan has better luck than his predecessors in this area when petitioning SCOW for review.
One final note: We also find ¶ 17 of this decision fascinating. As these appeals show, there is a fundamental tension in cases where mentally ill persons “stipulate” away the due process protections so strongly emphasized in a long line of 51 appeals. Is there not a contradiction at the heart of this procedure? COA suggests there might be. Perhaps this is one further hook for Nathan’s inevitable PFR. We’ll be watching with interest.
