Outagamie County v. M.J.B., 2024AP250, 1/7/25, District III (recommended for publication); case activity
In a case clarifying a legal question that has persisted for years in 51 litigation, COA holds that when the examiners do not satisfy the statutorily-imposed deadline for filing their reports in connection with a final hearing in an original commitment proceeding, the circuit court can lose competency.
In connection with the County’s request to involuntarily commit M.J.B., the circuit court followed the language of the statute and appointed two experts to examine him. (¶3). While one of the experts filed their report on time, the other did not. (¶4). M.J.B. objected, and the County suggested the error was irrelevant because it did not plan to call the other examiner as a witness. (¶6). The court overruled M.J.B.’s objection and ultimately entered a commitment order. (¶8).
On appeal, M.J.B. renews his argument that the court lost competency to proceed, as the examiner did not file his report within 48 hours of the final hearing as required by § 51.20(10)(b), which states that “Counsel for the person to be committed shall have access to all psychiatric and other reports 48 hours in advance of the final hearing.” (¶9).
COA begins its analysis by considering its prior unpublished decision on this very question, Fond du Lac County v. S.N.W., which held that such a violation did not result in a loss of competency. (¶11). There, COA rejected the appellant’s arguments and concluded that a 48-hour violation of this nature did not impact the circuit court’s competency. Applying § 51.20(10)(c) (court to disregard errors which do not affect the substantial rights of either party), COA looked to § 51.20(13)(g)2r, a statute which makes clear that a failure to file a report in conjunction with an extension proceeding does not impact the circuit court’s competency to hold the extension hearing. (¶14).
However, COA now holds that S.N.W. was fatally flawed and accepts M.J.B.’s appellate arguments. First, it holds that a comparison of § 51.20(10)(b) against § 51.20(13)(g)2r actually supports M.J.B.’s statutory construction argument. (¶16). The latter statute, which “explicitly contains a provision stating that a violation of its deadline does not affect the circuit court’s jurisdiction[,]” is markedly different from the statute at issue here, applying to original commitment proceedings, which contains no such language. (Id.). This important difference between the two texts is a notable signal of a different legislative intent–that failure to comply with the 48-hour rule in an original commitment hearing will result in a loss of competency. (¶17).
Second, COA focuses on the overall functioning of the statutory mechanism governing original commitments, which is intended to provide important due process protections for such individuals. (¶18). In addition to providing for a number of substantive rights–such as the right to counsel–the statutes also embody “strict” procedural guidelines, including intentionally tight deadlines which, if not complied with, result in a loss of competency. (¶21). The rule requiring timely provision of the examiner reports is therefore “central” to this statutory scheme. (¶22). Agreeing with M.J.B., COA holds that this deadline is “inextricably tied” to the deadlines governing the timing of the final hearing. (Id.).
Timely service of the examiner reports is also “inextricably” tied to other statutory protections, such as the requirement that a person subject to a commitment proceeding be examined by two examiners. (¶23). And, as COA points out, it is well-settled that a failure to be examined by two examiners is another statutory violation which results in a loss of competency. (Id.). When a person does not receive the reports of both examiners as contemplated by statute, the “subject is essentially denied his or her right to be examined by two experts and the above-mentioned due process protections are significantly weakened.” (¶24). A failure to timely provide such reports also impacts the right to counsel, as recognized by statute, as it affects the subject’s attorney ability to effectively prepare for and represent the person’s interests at the final hearing. (¶26).
Importantly, COA also holds that a failure to timely provide a report cannot be cured, as was attempted here, by simply electing not to call the examiner whose report was tardy. (¶25). The person has a right to all information which may help their defense and has a right to call both examiners as witnesses. (Id.). Allowing the violation to be cured in this fashion, moreover, would only incentivize future violations. (Id.).
Notably, in a footnote, COA clarifies that this holding as to loss of competency is only entailed when the final deadline cannot be otherwise lawfully postponed:
To be clear, the circuit court’s loss of competency here is predicated upon the fact that Mark’s final hearing could not be delayed to a later date due to the statutory deadline provided in WIS. STAT. § 51.20(7)(c). Where a court can cure a violation of § 51.20(10)(b) by delaying the final hearing while simultaneously complying with § 51.20(7)(c), it retains competency to proceed with the final hearing. However, the court loses competency where: (1) an expert’s report is not timely filed, (2) the final hearing cannot be delayed to cure the untimely filed report, and (3) the subject elects to not waive his or her right to a final hearing within the § 51.20(7)(c) deadline.
(¶22, n.7).
As some readers might recall, SCOW previously accepted review of S.N.W. in order to resolve this issue way back in 2020. For reasons that are unclear, but hinted at in Justice Ann Walsh Bradley’s dissent, the case was inexplicably dismissed as improvidently granted. We will have to wait and see whether the changes in membership over the intervening half-decade still make this an interesting candidate for SCOW review.
Would whoever writes these much appreciated excerpts, please review the differences between “competency” and “jurisdiction”.
Attorney Christian,
Your comment is apt. Although SCOW tried to educate all of us as to the technical difference between “jurisdiction” and “competency” in its Mikrut decision, the two concepts persist in slushing together. With the exception of our direct quote from the Court of Appeals in this case, which uses the J word, we’ve tried to avoid falling into the same trap. We did not include the following excerpt from SCOW in our post, but it contains the oft-quoted distinguishing between these two terms that you might find helpful to resolve your question:
Mikrut, 2004 WI 79, paren. 8-9.