Douglas County v. M.L, 2022AP141, 12/28/23, District III (one-judge decision; ineligible for publication); case activity
Faced with a challenge to the circuit court’s competency in this protective placement appeal, COA holds that the appellant has forfeited his challenge and therefore affirms.
“Mason” appeals an order continuing his protective placement following a due process review hearing conducted in 2021. (¶6). Mason raises two challenges: (1) the circuit court lost competency to hear the County’s petition for a continued protective placement due to a time limits violation and (2) the County presented insufficient evidence to extend his protective placement. (¶8).
As to the competency challenge, Mason points to § 55.18(1)(a) which governs when the County must initiate the annual review process. The statute instructs the County to file its petition “[n]ot later than the first day of the 11th month after the initial order is made for protective placement for an individual and, except as provided in par. (b), annually thereafter[…]..” Because the prior order was entered on June 30, 2020, COA observes that the annual petition for review presumably needed to be filed “no later than May 1, 2021.” (¶10). Here, the County’s petition was filed June 17, 2021. (Id.). However, even if COA were to “assume, without deciding” that the County blew its deadline, COA holds that Mason forfeited any challenge by not objecting below. (Id.).
Following SCOW’s decisions in City of Eau Claire v. Booth and Village of Trempealeau v. Mikrut, COA holds that competency challenges are “generally” forfeited if not raised in the circuit court. (¶11). COA is reluctant to “blindside” the circuit court with a reversal under these circumstances and observes that Mason’s decision to not raise the issue below–resulting in the circuit court completing the annual review process–would result in a waste of judicial resources if it were to reverse now. (¶13).
While Mason cites Green County Department of Human Services v. H.N. for the proposition that a competency challenge based on a time limits violation cannot be forfeited, COA is unpersuaded for two reasons: (1) H.N. concerned the circuit court’s ability to act after an underlying order had already expired (which is not the case here); and (2) more recent decisions of the Wisconsin Supreme Court have called this absolutism–that time limits violations are never forfeited–into question. (¶¶14-15).
Interestingly, this is the second recent case involving this particular competency challenge; COA also did not engage with the issue on the merits in R.B.L. The challenge is an interesting one, as it involves a knotty underlying issue of statutory construction. As COA suggests in a footnote, there’s at least one plausible counter argument advanced by the County to rebut the claim that a time limits violation occurred at all. Given the recurrence of this issue in at least two different counties (Milwaukee and Douglas, so far) this is an issue that attorneys appearing at annual review hearings may well need to educate themselves on and, in appropriate circumstances, raise via a motion to dismiss.
Mason’s sufficiency challenges fares no better, especially because COA holds that the record before it is not limited to what was adduced at the most recent hearing; rather, the circuit court could consider “all reports and documents previously admitted into evidence, as well as all facts that had been adjudicated in prior proceedings.” (¶20). Reviewing the totality of the evidence in the overall record, COA is satisfied there was a sufficient basis for the four elements which needed to be proven to continue Mason’s protective placement as outlined in § 55.08(1)(a)-(d). (¶¶23-26).
While we’ve avoided getting into the weeds of this sufficiency challenge to keep this post moving along, footnote 5 of the court’s opinion is worth a brief comment, as Mason also apparently argued that the County needed to call an expert to establish at least some of the elements to continue a protective placement. COA rejects this argument by citing prior unpublished decisions; accordingly, the issue may well remain “live” for trial and appellate practitioners within this legal subspeciality.
