Fond du Lac County v. S.N.W.

COURT OF APPEALS

DECISION NOTICE DATED AND FILED This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

June 17, 2020

A party may file with the Supreme Court a Sheila T. Reiff petition to review an adverse decision by the

Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

Appeal No. 2019AP2073 Cir. Ct. No. 2019ME20 STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II IN THE MATTER OF THE MENTAL COMMITMENT OF S.N.W.:

FOND DU LAC COUNTY,

PETITIONER-RESPONDENT, V. S.N.W.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Fond du Lac County: DALE L. ENGLISH, Judge. Affirmed.

¶1 REILLY, P.J.1 S.N.W. appeals from an order of the circuit court for involuntary commitment and an order for involuntary medication and treatment. S.N.W. argues that the circuit court lacked competency to proceed with the final hearing as one of the medical experts failed to submit his report forty-eight hours before the hearing pursuant to WIS. STAT. § 51.20(10)(b).2 As we conclude that § 51.20(10)(b) does not affect the competency of the circuit court, we affirm.

¶2 S.N.W. was an inmate in Dodge County Jail in January 2019 when he began exhibiting concerning behavior, including believing that jail personnel were poisoning him, yelling, punching doors, throwing food trays, talking to himself, and threatening violence. After a social worker, a deputy sheriff, and a representative from Dodge County Human Services all concluded that S.N.W. was “a harm to himself and needs behavioral health treatment,” the deputy sheriff filed a WIS. STAT. ch. 51 statement of emergency detention pursuant to WIS. STAT. § 51.15(4) and (5),3 and S.N.W. was transferred to Winnebago Mental Health Institute.

¶3 A probable cause hearing was properly conducted in Dodge County Circuit Court, and the court found probable cause to support S.N.W.’s continued detention and the administration of medication and treatment subject to a final hearing. The next day, Dodge County moved for a change of venue, arguing that S.N.W. last resided in either Fond du Lac or Columbia Counties prior to his incarceration and his case should be transferred to one of those counties. The court held a hearing, and venue was transferred to Fond du Lac County (the County) on February 4, 2019. That same day, Fond du Lac County Circuit Court set the final hearing for February 7, 2019, and ordered that Dr. Tracy Luchetti, Ph.D., and Dr. Marshall Bales, M.D., examine S.N.W. and submit a report on his condition. While Dr. Bales’ report came in after the forty-eight hour deadline provided by WIS. STAT. § 51.20(10)(b), it was received by the parties before the final hearing.

¶4 The final hearing was held on February 7, 2019, and the County called Dr. Bales.4 The circuit court received Dr. Bales’ testimony and receipt of his report into evidence over the objection of S.N.W. S.N.W. objected to Dr. Bales’ report as it was submitted less than forty-eight hours prior to the final hearing in violation of WIS. STAT. § 51.20(10)(b). The circuit court denied S.N.W.’s objection and concluded that the County had met its burden to prove that S.N.W. was mentally ill, a proper subject for treatment, and dangerous. The court entered a commitment order and an order for involuntary medication and treatment.5 S.N.W. appeals.

¶5 The County in a WIS. STAT. ch. 51 involuntary commitment has the burden to prove by clear and convincing evidence at a final hearing6 that the person is (1) mentally ill, (2) a proper subject for treatment, and (3) dangerous. See WIS. STAT. § 51.20(1)(a)1.-2., (13)(e); Fond du Lac County v. Helen E.F., 2012 WI 50, ¶20, 340 Wis. 2d 500, 814 N.W.2d 179. Prior to the final hearing, § 51.20(9)(a)1. provides that the court “shall appoint 2 licensed [medical experts in the fields of medicine, psychology, or psychiatry] to personally examine the subject individual.” “A written report shall be made of all such examinations and filed with the court.” Sec. 51.20(9)(a)5. At issue in this case is the provision in § 51.20(10)(b), providing 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.” Dr. Bales failed to submit his report prior to the forty-eight hour deadline.

¶6 S.N.W. argues that as a result of Dr. Bales submitting his report less than forty-eight hours prior to the hearing, the circuit court lacked competency to proceed with the final hearing and the case should have been dismissed. In the alternative, S.N.W. argues that if the circuit court retained competency, then the court should have excluded Dr. Bales’ report and testimony. S.N.W. asserts that the strict time limits found in WIS. STAT. ch. 51 are “central to its due process guarantee” and the violation of those time limits “can deprive the circuit court of competency.” The County fails to address the competency issue head-on and argues the circuit court had the discretion to receive Dr. Bales’ report and testimony under the facts and circumstances of this case given the change in venue, which left only three days available to obtain the two independent examining reports and hold the final hearing.

¶7 Our resolution of whether WIS. STAT. § 51.20(10)(b) implicates competency turns on the interpretation of the statute, which is a question of law that we review de novo. See McNeil v. Hansen, 2007 WI 56, ¶7, 300 Wis. 2d 358, 731 N.W.2d 273; see also Village of Trempealeau v. Mikrut, 2004 WI 79, ¶7, 273 Wis. 2d 76, 681 N.W.2d 190. We conclude that § 51.20(10)(b) does not affect the court’s competency to exercise jurisdiction. We also conclude, under the facts presented, that Dr. Bales’ failure to submit the examination report more than forty-eight hours prior to the final hearing did not affect S.N.W.’s substantial rights, and the circuit court did not err in admitting Dr. Bales’ report or testimony.

¶8 S.N.W. draws parallels between the forty-eight hour time period in WIS. STAT. § 51.20(10)(b) and the seventy-two hour requirement for a probable cause hearing in § 51.20(7)(a) and the fourteen day requirement for a final hearing found in § 51.20(7)(c). Case law is clear that failure to hold either the probable cause hearing or the final hearing within statutory time limits deprives the circuit court of competency. Dodge County v. Ryan E.M., 2002 WI App 71, ¶5, 252 Wis. 2d 490, 642 N.W.2d 592; G.O.T. v. Rock County, 151 Wis. 2d 629, 633, 445 N.W.2d 697 (Ct. App. 1989); State ex rel. Lockman v. Gerhardstein, 107 Wis. 2d 325, 328-29, 320 N.W.2d 27 (Ct. App. 1982). No statutory or case law supports the concept that a late-filed evaluation report operates in the same manner, and our review of the statute indicates the opposite.

¶9 In reviewing the operation of WIS. STAT. § 51.20(10)(b), we look to other provisions of § 51.20. For example, § 51.20(10)(c) provides:

The court shall hold a final hearing to determine if the allegations specified in sub. (1) are true. Except as otherwise provided in this chapter, the rules of evidence in civil actions and [WIS. STAT. §] 801.01(2) apply to any judicial proceeding or hearing under this chapter. The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings that does not affect the substantial rights of either party.

(emphasis added); see also WIS. STAT. § 805.18(1) (“The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.”); Waukesha County v. S.L.L., 2019 WI 66, ¶27, 387 Wis. 2d 333, 929 N.W.2d 140 (“[Section] 51.20(10)(c) incorporates the rules of civil procedure to the extent they do not conflict with [ch.] 51.”).7 We also note that under § 51.20(13)(g)2r., addressing recommitment procedures, the department “shall” file an evaluation and recommendation within twenty-one days prior to the expiration of the prior commitment, but the statute expressly provides that “[a] failure of the department or the county department to which an individual is committed to file an evaluation and recommendation under this subdivision does not affect the jurisdiction[8] of the court over a petition for recommitment.” Sec. 51.20(13)(g)2r.

¶10 We conclude that WIS. STAT. § 51.20(10)(b) does not affect the competency of the court. Under similar circumstances where an evaluation must be conducted and provided to the court within a certain time period, § 51.20(13)(g)2r. is clear that a failure to comply with the deadline does not deprive the circuit court of competency. Further, we disagree with S.N.W. that a late-filed evaluation report is comparable to a hearing delay. Unlike a violation of the deadline for the probable cause hearing or the final commitment hearing, where the delay extends an individual’s involuntary detention, the subject individual’s liberty is not being directly impacted as a result of a late-filed report. See Ryan E.M., 252 Wis. 2d 490, ¶11; Gerhardstein, 107 Wis. 2d at 330.

¶11 WISCONSIN STAT. § 51.20(10)(c) is clear that “in every stage of the action,” the circuit court must (“shall”) “disregard any error or defect in the pleadings or proceedings that does not affect the substantial rights of either party.” See also In re D.S., 142 Wis. 2d 129, 135-36, 416 N.W.2d 292 (1987) (“There must be a further showing that [the] defect misled or caused prejudice before noncompliance with procedural statutory requirements may result in reversal of the circuit court’s holding. Absent this showing, technical nonconformity in pleading or procedure is a nonjurisdictional error.”). The failure of Dr. Bales to submit his report forty-eight hours before the hearing was a “defect in the pleadings or proceedings”; therefore, the circuit court was within its right to disregard the error provided the error did not affect the substantial rights of S.N.W.

¶12 We now consider whether the failure to comply with the procedural provision affected S.N.W.’s substantial rights. For an error to “affect the substantial rights” of a party, there must be a reasonable possibility that the error contributed to the outcome of the action or proceeding at issue. State v. Dyess, 124 Wis. 2d 525, 543, 547, 370 N.W.2d 222 (1985). A reasonable possibility of a different outcome is a possibility sufficient to “undermine confidence in the outcome.” Id. at 544-45 (citation omitted). “If the error at issue is not sufficient to undermine the reviewing court’s confidence in the outcome of the proceeding, the error is harmless.” Evelyn C.R. v. Tykila S., 2001 WI 110, ¶28, 246 Wis. 2d 1, 629 N.W.2d 768.

¶13 S.N.W. has not identified how the failure to have Dr. Bales’ report more than forty-eight hours prior to the final hearing undermines our confidence in the outcome of the proceeding. S.N.W. argues that the forty-eight hour deadline protects the due process rights of the individual in the commitment proceeding, including the right to effective assistance of counsel and the right to present and cross-examine witnesses.9 See WIS. STAT. § 51.20(3), (5)(a); Winnebago County v. J.M., 2018 WI 37, ¶7, 381 Wis. 2d 28, 911 N.W.2d 41. Even if we were to conclude that Dr. Bales’ failure to submit his report more than forty-eight hours in advance of the final hearing violated S.N.W.’s due process rights, which we do not, S.N.W. has not identified any prejudice that S.N.W. suffered as a result of having twenty-four hours as opposed to forty-eight hours to review Dr. Bales’ report. See State v. Sharlow, 106 Wis. 2d 440, 448, 317 N.W.2d 150 (Ct. App. 1982) (“Even errors of constitutional dimension are subject to the harmless error doctrine.”).

¶14 As S.N.W. has not offered any evidence that receipt of Dr. Bales’ report twenty-four hours before the final hearing affected his substantial rights, we conclude that the circuit court did not err in receiving Dr. Bales’ report and testimony into evidence.

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.