June 29, 2022 – The proper remedy for a circuit court’s failure to specify the grounds for extending a mental health commitment that has since expired is reversal, the Wisconsin Supreme Court has ruled.
In Sheboygan County v. M.W., 2022 WI 40 (June 10, 2022), the supreme court held (4-3) that reversal, rather than remand, was the property remedy because the circuit court lacked competency to conduct any further proceedings since the order extending the commitment had expired.
Series of Recommitments
M.W. was committed in 2006, after she had attempted suicide 20 times. She was diagnosed with bipolar disorder with acute psychotic symptoms. Since being committed, M.W. has been subject to multiple orders extending her commitment and has received treatment in a stable setting.
In August 2020, Sheboygan County filed for another extension of M.W.’s commitment. The court granted the county’s petition to extend the commitment and entered an order for involuntary medication and treatment.
In making its decision, the circuit court concluded that M.W.: 1) suffers from a mental illness; 2) is a proper subject for treatment; and 3) would be properly subject to commitment if her treatment were withdrawn.
The court also determined that M.W. is dangerous to herself or others.
Court of Appeals Reverses
M.W. appealed the circuit court’s decision. She argued that the circuit court failed to make specific factual findings that referenced a subdivision paragraph of Wis. Stat. section 51.20(1)(a)(2), as required by the supreme court’s decision in Langlade County v. D.J.W., 2020 WI 42, 391 Wis. 2d. 231, 942 N.W.2d 277.
The court of appeals agreed with M.W. and reversed the order extending M.W.’s commitment. The court of appeals remanded the case and instructed the circuit court to follow the directive established in D.J.W.
M.W. appealed to the supreme court on the sole issue of the appropriate remedy.
Writing for the majority, Justice Ann Walsh Bradley pointed out that the court of appeals has not been consistent in ordering remedies for violations of D.J.W.’s directive.
For instance, in M.W.’s case, A.W. Bradley wrote, the court of appeals ordered a remand to the circuit court with “precious little in the way of analysis of the remedy other than to say that ‘the more appropriate course of action is to remand this matter to the circuit court with directions to follow the dictates of D.J.W. discussed above.’”
In other cases, Justice A.W. Bradley pointed out, the court of appeals has ruled that reversal with no remand is the proper remedy where the circuit court hasn’t followed D.J.W.’s directive, on the grounds that the circuit court lacked competency and the ability to provide any meaningful relief.
What Effect D.J.W Violation?
Sheboygan County argued that the circuit court’s failure to follow D.J.W’s directive was a “minor procedural violation” and should not provide the basis for ignoring the evidence presented at a hearing at which M.W.’s commitment order was extended.
M.W. argued that reversal was the proper remedy. Upon remand, M.W. argued, the circuit court would merely restate its conclusion in different words, which would delay resolution of the case and render illusory the protections provided by D.J.W.’s directive. She also argued that the circuit court lacked competency to proceed on remand.
Expiration of Order is Key
Justice A.W. Bradley explained that under Wisconsin law, a circuit court may lose competency to decide a case – the authority to exercise its subject matter jurisdiction – by its failure to comply with a statutory requirement that relates to its invocation of its subject matter jurisdiction.
A.W. Bradley noted that the supreme court had recently held that a circuit court’s violation of a chapter 51 patient’s right to a jury trial warranted reversal instead of a remand.
The same result was warranted in M.W.’s case, Justice A.W. Bradley wrote, because “the recommitment order from which M.W. appeals has expired, as will often be the case.”
A Narrowing Concurrence
In a concurrence, Justice Brian Hagedorn pointed out that “not all failures to follow our D.J.W. directive are created equal.”
The majority opinion, Justice Hagedorn wrote, “does not … prescribe a universal remedy for even a reversible D.J.W. defect.”
The only question before the supreme court, Hagedorn wrote, “is a remedy question regarding an already reversed commitment order.”
“For now, the majority determines—rightly in my view—that when a case is reversed for a D.J.W. error, and the commitment order is expired, the circuit court loses competency to rule on the expired order.”
In her dissent, Chief Justice Annette Ziegler argued that the court of appeals and the majority failed to give due deference to the record and failed to undertake a harmless error analysis.
Zielger also argued that the majority had misapplied the holding in D.J.W.
“I would not depart from the court’s duty to conduct a thorough review of the record, and I disagree with this court’s adoption and adaptation of form over substance in now requiring magic words,” Chief Justice Ziegler wrote. “At most, this record demonstrates harmless error. Again, the court errs in not conducting a harmless error analysis.”
‘Miscarriage of Justice’
The majority’s failure to examine the record, Chief Justice Ziegler wrote, “invites confusion and further litigation.”
“Ultimately, it is the individuals, families, and victims directly affected by severe mental illness who will bear the burden of the uncertainty created by this decision,” Ziegler wrote.
In previous decisions, Chief Justice Ziegler wrote, “[w]e have understood that outright reversal of a decision well-supported by the record on the lack of a circuit court findings would be draconian and would affect a miscarriage of justice.”
Ziegler argued that the majority had misread D.J.W.
“Nowhere in D.J.W. did we state that appellate courts would reverse any and all recommitment orders that, on a cursory review, lack citation to an initial commitment pathway,” Chief Justice Ziegler wrote.