The filing of an Emergency Protective Placement petition under §55.135(1) triggers a probable cause hearing within 72 hours. Once the court finds probable cause it may order a temporary protective placement for up to 30 days pending a hearing on a permanent protective placement. Wis. Stat. §55.135(5). Sometimes the client wants to exercise her right to an independent comprehensive evaluation under §55.10(4)(e) and §55.11(2), yet has trouble finding a doctor who can complete it within 30 days. May the client stipulate to extend the temporary protective placement so that she can obtain the evaluation?

For now, the answer is “no,” unfortunately. See N.N. v. County of Dane, 140 Wis. 2d 64, 509 N.W.2d 288 (Ct. App. 1987). In N.N. the court entered a temporary protective placement pursuant to §55.06(11)(c), which is now §55.135(5). A few days before the final hearing, adversary counsel was appointed. Counsel requested and received a 2-week extension of the 30-day deadline to confer with N.N.

The court of appeals held that, due to the extension, the case had to be dismissed. N.N., 140 Wis. 2d at 65-66. It explained that a temporary protective placement involuntarily restrains a person’s freedom. Allowing the temporary placement to continue indefinitely would be “both cruel and injurious.” Id. at 69. The court held the final hearing must be within 30 days following the probable cause hearing. Id. The circuit court “whether in the exercise of its own discretion or on stipulation of the parties, [it] lacks authority to enlarge that time limit or extend the temporary placement beyond it.” Id. (Emphasis supplied).

While the court of appeals was trying to be protective of people under temporary protective placements, its decision is unsound. A strict construction of the 30-day deadline makes sense only when the circuit court or the county wants to extend the restraint of liberty. When the person is willing to stipulate to the restraint in order to gain time to retain a doctor and build a defense, it does not make sense at all.

What to do if your client is in this predicament? Even though the circuit court is bound by N.N. you may argue that the case is wrongly decided in order to preserve the issue for review by SCOW.  Point out that preventing your client from stipulating to an extension of the 30-day period violates her statutory and constitutional rights.

First, your client is being denied her statutory right to an independent comprehensive evaluation under §55.10(4)(e) and §55.11(2) through no fault of her own.

Second, your client is being denied due process. The 14th Amendment bars the government from infringing on your client’s liberty in an unfair manner. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Determining whether a procedural due process violation has occurred requires the court to balance (a) the private interest affected by the government action; (b) the risk of an erroneous deprivation due to the procedures used and the probable value of substitute procedures; and (c) the government’s interest. Id., see also  Walworth County v. Therese B., 2003 WI App 223, ¶11, 267 Wis. 2d 310, 671 N.W.2d 377 (applying Mathews).

To satisfy this three-factor test, you could argue: (a)  A significant private interest is at stake. A protective placement is indefinite in duration and “tantamount to a life sentence to a nursing home or custodial setting.” State ex rel. Watts v. Combined Cmty. Servs. Bd., 122 Wis. 2d 65, 76-77 (1985). (b) Denying your client an independent medical evaluation increases the likelihood of an erroneous deprivation of liberty, whereas a short extension to obtain the evaluation reduces the risk of error. (c) The government has no interest in opposing a short extension. Section 55.135(5)—the provision imposing the 30-day deadline—allows the court to extend the temporary protective placement 90 days for the government’s benefit. That is fundamentally unfair.

Third, your client is also being denied her 14th Amendment right to equal protection. Persons committed under Chapter 51 and persons protectively placed under Chapter 55 are similarly situated for equal protection purposes. Watts, 122 Wis. 2d at 73-74.  Chapter 51, which imposes short-term commitments, allows for a 7-day postponement of a final hearing at the request of the client under §51.20(10)(e). While Chapter 55, which imposes a life sentence to an institution, currently precludes the postponement of a temporary protective placement final hearing for the individual’s benefit. That is an irrational distinction.

N.N. needs to be modified or overturned. We welcome your ideas in the Comment section below.