Waukesha Cnty. v. S.L.L. (In Re Mental Commitment of S.L.L.)
Waukesha Cnty. v. S.L.L. (In Re Mental Commitment of S.L.L.)
Opinion of the Court
*339¶1 Ms. L. challenges an order extending her commitment to the care and custody of Waukesha County pursuant to Chapter 51 of our Wisconsin statutes. She raises three issues for *340our review. First, she says the circuit court lacked jurisdiction over her when it entered an order extending her commitment. Second, she says the circuit court had no statutory authority to enter a default judgment against her for failing to appear at a scheduled hearing. And third, she asserts there was insufficient evidence of record to support the circuit court's order extending her commitment. All three issues are moot, but we choose to address the first two. For the reasons below, we affirm the court of appeals.
I. BACKGROUND
¶2 On August 10, 2016, the Waukesha County Sheriff's Department detained Ms. L. on an emergency basis pursuant to
¶4 The Sheriff's Department filed the Statement with the Waukesha County Circuit Court on August 11, 2016. This "has the same effect as a petition for commitment under s. 51.20," and requires a probable-cause hearing pursuant to
¶5 Ms. L. appeared and testified at the final hearing as scheduled. The circuit court found her mentally ill and ordered her committed to the care and custody of Waukesha County for six months with inpatient placement at the MHC (the "Initial Commitment").
¶6 Prior to expiration of Ms. L.'s Initial Commitment, the County applied to the circuit court for a 12-month extension of her commitment (the "Extension Petition"). It alleged that Ms. L. had fallen out of compliance with the Transfer's conditions by missing scheduled treatments and failing to keep a current address on file.
¶7 The Extension Hearing commenced as scheduled, with Ms. L. in absentia but represented by appointed counsel.
¶9 Ms. L.'s petition for review (which we granted) presents the following three substantive issues. First, whether the circuit court had personal jurisdiction over her for the purpose of issuing the Extension Order.
II. STANDARD OF REVIEW
¶10 We review the circuit court's jurisdiction over Ms. L. de novo.
*346Segregated Account of Ambac Assurance Corp. v. Countrywide Home Loans, Inc.,
*147III. DISCUSSION
A. Personal Jurisdiction
¶11 Ms. L. says the circuit court did not have jurisdiction over her when it entered the Extension Order. Her challenge is two-fold. First, she argues that the County was obliged to personally serve her with notice of the Extension Hearing. Second, she asserts *347that the Extension Petition and accompanying documents were deficient. An extension petition, she says, must satisfy the conditions of
¶12 Ms. L. is correct that a court does not have jurisdiction over a party unless the circumstances of the case satisfy both statutory and constitutional requirements. We have noted before that complying with the "statutory provisions regarding service of process is required before a [ ] court has personal jurisdiction." Aufderhaar,
¶13 So if Ms. L. is right about having not received proper notice, the Extension Order was void from the beginning. "Personal jurisdiction" embodies the court's power over a party, without which it can enter no valid judgment. State v. Smith,
1. Mootness
¶14 When a court purports to exercise authority with respect to a party over whom it has no jurisdiction, the remedy is normally vacatur of the offending order. As a practical matter, however, that has already occurred in this case. The Extension Order was valid for only one year, so by its own terms it could have no authority beyond the end of February 2018. And the circuit court dismissed the entirety of this matter and canceled the writ of capias, so there are no further orders that could even potentially issue from this case. Regardless of how we resolve the jurisdictional question, therefore, our answer will not affect Ms. L.'s rights. "Ordinarily, this court, like courts in general, will not consider a question the answer to which cannot have any practical effect upon an existing controversy." State v. Leitner,
*148¶15 But sometimes issues come to us that present, because of their characteristics or procedural posture, a need for an answer that outweighs our *349concern for judicial economy. We might decide a moot question, for example, if it is "capable and likely of repetition and yet evades review because the appellate process usually cannot be completed and frequently cannot even be undertaken within the time that would have a practical effect upon the parties." Id., ¶ 14 (footnote omitted). We also might decide such a question if it is one "of great public importance." Id.
¶16 Both of these considerations bear on Ms. L.'s jurisdictional challenge. In the normal course of appellate proceedings, Chapter 51 commitment orders will expire before we have a chance to review them because their maximum statutory duration is only one year.
2. Persistency of Personal Jurisdiction
¶17 The success of Ms. L.'s argument depends, in large part, on her position that the Extension Petition represents the initiation of a new proceeding that cannot commence without all of the statutory and constitutional requirements attendant upon the commencement *350of an initial commitment proceeding. That is to say, Ms. L. assumes the circuit court lost jurisdiction over her sometime before the Extension Hearing, and that service of a new petition (containing all of the material required by
¶18 Our analysis begins with
Upon application for extension of a commitment by the department or the county department having custody of the subject, the court shall proceed under subs. (10) to (13). If the court determines that the individual is a proper subject for commitment as prescribed in sub. (1) (a) 1. and evidences the conditions under sub. (1) (a) 2. or (am) or is a proper subject for commitment as prescribed in sub. (1) (ar), it shall order judgment to that effect and continue the commitment. The burden of proof is upon the county department or other person seeking commitment to establish evidence that the subject individual is in need of continued commitment.
§ 51.20(13)(g)3.
¶19 This paragraph provides textual indications that extension of a commitment does not comprise a new and separate proceeding. The first indication lies in the fact that the County files an "application for extension of a commitment." This *351necessarily establishes that there is a pre-existing *149commitment because one cannot extend what does not already exist. It also demonstrates the essential connection between the commitment and the extension proceeding inasmuch as a successful application will affect-"extend"-the original commitment. Second, the circuit court may only extend the commitment of an individual already in the County's custody.
¶20 The continuity of original and extended commitment proceedings is not a new subject for us. We addressed this issue in the context of a request for substitution of judge in *352State ex rel. Serocki v. Circuit Court For Clark County,
¶21 Although Serocki's specific holding was limited to the context of a substitution of judge request, its logic inescapably applies here as well. In fact, Serocki and Ms. L.'s argument are entirely incompatible. Ms. L. says the extension petition institutes a new proceeding, separate and apart from the initial commitment. But Serocki says the extension hearing is part of the same case from whence the initial commitment arose: "[A]t the recommitment hearing the circuit court continues to receive evidence in the same *353case."
3. Required Notice Content
¶22 With that backdrop, we now consider the nature of notice the County must provide to Ms. L. before conducting the Extension Hearing. The procedural rules governing extension hearings appear in
¶23 The combination of these procedural rules require the County to serve on Ms. L. three items prior to the Extension Hearing. First, by virtue of the incorporation of
*355¶24 Ms. L. says that is not enough. She contends that the County must serve on her, prior to the Extension *151Hearing, a "clear and concise statement of the facts that constitute probable cause to believe the allegations of the petition." According to Ms. L., the Extension Petition was deficient because it did not establish probable cause to believe she is mentally ill, a proper subject for treatment, and dangerous within the meaning of
¶25 Nor did the content of the County's notice fail any due process requirements. "[D]ue process is *356flexible and calls for such procedural protections as the particular situation demands." Mathews v. Eldridge,
4. Service of Notice
¶26 In addition to challenging the notice's content, Ms. L. also faults the County for not serving the notice on her personally. She turns to
If the subject individual is to be detained, a law enforcement officer shall present the subject individual with a notice of hearing, a copy of the petition and detention order and a written *357statement of the individual's right to an attorney, a jury trial if requested more *152than 48 hours prior to the final hearing, the standard upon which he or she may be committed under this section and the right to a hearing to determine probable cause for commitment within 72 hours after the individual is taken into custody under s. 51.15 .... The officer shall orally inform the individual that he or she is being detained as the result of a petition and detention order issued under this chapter. If the individual is not to be detained, the law enforcement officer shall serve these documents on the subject individual and shall also orally inform the individual of these rights.
§ 51.20(2)(b) (emphasis added).
¶27 But those service provisions are not applicable to a petition to extend a commitment. As we have already established, the procedures governing commitment extensions are located in
Whenever under these statutes, service of pleadings and other papers is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party in person is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy or by mailing it to the last-known address, or, if no address is known, by leaving it with the clerk of the court.
§ 801.14(2) (emphasis added). No part of this conflicts with § 51.20(10) - (13), and so it controls service of the Extension Hearing *153notice.
¶29 Ms. L. also contends that the County's chosen method of service was constitutionally defective. It is not enough, she says, to go through the motions of sending notice to an affected party. One must use such methods as have a reasonable chance of actually reaching the one to be notified. She directs our attention to Mullane,
[I]t is well-accepted, black-letter law that an attorney is not authorized by general principles of agency to accept on behalf of a client service of process commencing an action.... In contrast, the black-letter law is that once an action has begun and the attorney has appeared in the action on behalf of a party, service of papers may be upon the attorney.
Gangler v. Wisconsin Elec. Power Co.,
¶30 Further, the very case on which Ms. L. founds her argument adequately answers her constitutional challenge to the method of service employed by the County: "Thus it has been recognized that, in the case of persons missing or unknown, employment of an indirect and even a probably futile means of notification is all that the situation permits and creates no constitutional bar to a final decree foreclosing their rights." Mullane,
B. Default at a Recommitment Hearing
¶31 The Extension Order was the product, at least in part, of the circuit court's determination that Ms. L. was in default of her obligation to appear at the Extension Hearing. The County says default judgment was appropriate pursuant to the terms of
¶32 Ms. L. disagrees, and asserts there are two reasons circuit courts may not enter default judgments in Chapter 51 proceedings. First, she says she has a statutory and constitutionally-protected right to be present at the hearing. And second, she says that because
*155*363¶33 Ms. L. unquestionably had a right to appear at the Extension Hearing: "Except as may otherwise be provided by law, ... a respondent in a matter listed in sub. (1) is entitled to be physically present in the courtroom at all trials and sentencing or dispositional hearings."
¶34 To the extent Ms. L. asserts default judgment was inappropriate because she had the right to appear at the Extension Hearing, her argument does not go far enough. Rights may be waived or forfeited-even constitutionally-protected rights.
¶36 Ms. L. identifies
*157Heritage Farms, Inc. v. Markel Ins. Co.,
¶37 Nonetheless, Ms. L. says we should be guided by our decision in Walworth County v. Spalding, in which we concluded the circuit court lacked authority to enter default judgment against a defendant who failed to appear at his trial on a charge of operating a motor vehicle while under the influence of an intoxicant.
¶38 The lesson to take from Spalding, therefore, is that a context-specific and mandatory procedure will displace a contrary general rule of civil procedure. Here, issuance of a detention order under
C. Sufficiency of Evidence/Due Process
¶39 Ms. L. says there was insufficient evidence of record to support the circuit court's entry of the Extension Order, and so she asks us to vacate it. But as we discussed above, the passage of time has acted as a functional (if not de jure) vacatur because the Extension Order no longer has any force or effect. And that would seem to make this issue moot just like the first two. Ms. L., however, insists this issue is not like the others. She believes she is still subject to legal injury because the simple expiration of the Extension Order does not "expunge the court records, or invalidate the examining physician reports." She is also concerned that
¶40 For the purpose of determining whether this issue is moot, we will assume that Ms. L. correctly recites what may be done with her records. But even accepting all of that, we do not agree that resolving this issue can "have any practical effect upon an existing controversy." Leitner,
¶41 As we demonstrated above, we sometimes review issues even though they are moot. There are five recognized circumstances in which we will do so, two of which we have already discussed. The other three involve situations in which "the constitutionality of a statute is involved" (which is obviously not the case here), or "where the precise situation under consideration arises so frequently that a definitive *371decision is essential to guide the trial courts," or "where the issue is likely to arise again and should be resolved by the court to avoid uncertainty." Id., ¶ 14. Challenges to the sufficiency of *159evidence are necessarily fact-bound inquiries that will vary from case to case. Therefore, a definitive decision in this case would provide no guidance to circuit courts, nor would it preclude uncertainty in evaluation of evidentiary sufficiency in other cases. There is no reason to deviate from our mootness doctrine with respect to this issue.
¶42 Additionally, the County argued that Ms. L. did not preserve this issue for appellate review. The Extension Hearing transcript reveals that Ms. L.'s counsel raised no objection with respect to the sufficiency of the evidence. To avoid waiver, litigants must lodge their trial objections contemporaneously with the error. See
IV. CONCLUSION
¶43 We hold that, for purposes of personal jurisdiction in a Chapter 51 proceeding, an extension hearing is a continuation of the original commitment *372proceeding and previous extension hearings. Therefore, the circuit court had jurisdiction over Ms. L. both at the Extension Hearing and when it entered the Extension Order because both occurred prior to expiration of the Initial Commitment. Consequently, the method of service and content of the notice of the Extension Hearing were neither statutorily nor constitutionally infirm. We also hold that, with respect to extension hearings conducted pursuant to
By the Court. -The decision of the court of appeals is affirmed.
A.W. BRADLEY, J. dissents, joined by ABRAHAMSON, J. and DALLET, J. (opinion filed).
All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless otherwise indicated.
Wisconsin Stat. § 51.15(1) provides, in relevant part:
(ag) The purpose of this section is to provide, on an emergency basis, treatment by the least restrictive means appropriate to the individual's needs, to individuals who meet all of the following criteria:
1. Are mentally ill, drug dependent, or developmentally disabled.
2. Evidence one of the standards set forth in par. (ar) 1. to 4.
3. Are reasonably believed to be unable or unwilling to cooperate with voluntary treatment.
(ar) A law enforcement officer ... may take an individual into custody if the officer or person has cause to believe that the individual is mentally ill, is drug dependent, or is developmentally disabled, that taking the person into custody is the least restrictive alternative appropriate to the person's needs, and that the individual evidences any of the following:
....
4. Behavior manifested by a recent act or omission that, due to mental illness, he or she is unable to satisfy basic needs for nourishment, medical care, shelter, or safety without prompt and adequate treatment so that a substantial probability exists that death, serious physical injury, serious physical debilitation, or serious physical disease will imminently ensue unless the individual receives prompt and adequate treatment for this mental illness.
The Honorable William J. Domina presided.
The dissent says our use of the word "abscond" is misleading because Black's Law Dictionary defines that term to mean "[t]o depart secretly or suddenly, esp. to avoid arrest, prosecution, or service of process." Dissent, ¶50 n.3. She departed from her treatment program "secretly" by failing to periodically return for therapy, and by moving from her declared address without letting the County know. That is to say, according to Black's Law Dictionary, she absconded from treatment.
The County notes that her last listed address (as of October 3, 2016) was the Cathedral Center in Milwaukee. But upon contacting the Cathedral Center, the County discovered that the center banned her from staying there "due to her behavior."
Ms. L. failed to either schedule or appear for these examinations. However, both physicians, without examining her, opined that she was mentally ill, that she was dangerous, and that she was a proper subject for treatment. They both relied on the recommitment report prepared by Ms. L.'s caseworker a few weeks before the Extension Hearing. The physician reports were similar in most respects except that one physician recommended out-patient treatment and the other recommended locked inpatient treatment.
Her counsel said he had not communicated with Ms. L. prior to the hearing and did not know her whereabouts. The County did not know where she was either.
Chapter 51 indifferently uses "recommitment" and "extension of a commitment," so we will as well. Portage Cty. v. J.W.K.,
See State ex rel. Kalal v. Circuit Court for Dane Cty.,
We said the same thing inversely, too. If the person is not already subject to a commitment order, then a proceeding that results in commitment is an original proceeding: "The petitioner apparently was not under any commitment order or in custody from September 9, 1988, until September 18, 1989. Thus the September 1989 commitment proceeding is an original commitment proceeding." State ex rel. Serocki v. Circuit Court For Clark Cty.,
Although the dissent does not say so explicitly, the author appears to disagree with our conclusion that, for jurisdictional purposes, an extension hearing is a continuation of the original commitment proceedings. So the dissent says "because the service provisions of
Wisconsin Stat. § 801.01(2) provides:
Chapters 801 to 847 govern procedure and practice in circuit courts of this state in all civil actions and special proceedings whether cognizable as cases at law, in equity or of statutory origin except where different procedure is prescribed by statute or rule. Chapters 801 to 847 shall be construed, administered, and employed by the court and the parties to secure the just, speedy and inexpensive determination of every action and proceeding.
Wisconsin Stat. § 801.14(1), in pertinent part, provides:
Every order required by its terms to be served, every pleading unless the court otherwise orders because of numerous defendants, every paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment, undertaking, and similar paper shall be served upon each of the parties....
In Waukesha Cty. v. J.W.J.,
Upon each petition to extend a term of commitment, a county must establish the same elements with the same quantum of proof. Fond du lac Cty. v. Helen E.F.,2012 WI 50 , ¶ 20,340 Wis. 2d 500 ,814 N.W.2d 179 . However, it may satisfy the "dangerousness" prong by showing "a substantial likelihood, based on the subject individual's treatment record, that the individual would be a proper subject for commitment if treatment were withdrawn."
(quoting
The dissent is worried that our statement that "the procedures governing commitment extensions are located in
"Within a reasonable time prior to the final hearing, the petitioner's counsel shall notify the subject individual and his or her counsel of the time and place of final hearing."
The dissent, to the contrary, says "the notice requirements set forth in § 51.20(2) apply to all petitions under Ch. 51, including petitions to extend an individual's commitment." Dissent, ¶56. But if that were true, it would make the notice requirement of
The dissent says we are mistaken, and that there really is a conflict between the "notification" provisions of
Ms. L. concentrated solely on the personal service requirement of § 51.20(2)(b). She maintained her focus on that provision even after the County argued in its response brief that § 51.20(10)(c) incorporated the service provisions of § 801.14(2). Perhaps she did not make the dissent's argument because reading a personal-service mandate into the phrase "petitioner's counsel shall notify the subject individual and his or her counsel of the time and place of final hearing" would be a difficult task. § 51.20(10)(a). The legislature is familiar with language that requires personal service of a document, as demonstrated by the mandate in § 51.20(2)(b), which requires that "a law enforcement officer shall present the subject individual with a notice of hearing ...." There are many ways one may provide "notice." But to "present" something to an individual, one must be (as the word implies) in the person's presence. The dissent would have us read the two provisions as requiring the same thing. Apparently, not even Ms. L. was willing to attempt that equation.
The dissent's insistence that Jones v. Flowers,
The answer is that Mr. Jones was not already subject to a court's personal jurisdiction. It is unsurprising that, under that circumstance, the Supreme Court should conclude that something more than a certified letter was necessary before the State took steps to deprive him of his property interest. Because Ms. L. was already subject to the circuit court's jurisdiction, there was no need to use a jurisdiction-conferring method of service for the notice of hearing.
In any event, even if we granted the dissent's premises, there are two reasons Jones does not create a path to Justice Ann Walsh Bradley's conclusion. First, the Court did not change the long standing rule that "[d]ue process does not require that a property owner receive actual notice before the government may take his property." Jones,
Even today, Ms. L. does not say what the County should have done to reach her. Neither does the dissent. That point cannot be emphasized enough. They both fault the County for the method of service, but offer nothing but a shrug as an alternative. That is not an argument, and there is no need to consider it further.
This issue is moot for the same reasons Ms. L.'s jurisdictional challenge is moot. However, we will nonetheless address it for the same reasons we chose to resolve the first issue.
Addington v. Texas,
See, e.g., State v. Anthony,
The Transfer, to which Ms. L. agreed, required her to keep a current address on file with the County. This was no mere technicality. This was a condition precedent to release from the MHC. If she had not agreed to it, presumably her inpatient status would have continued, and she would have received actual notice of the Extension Hearing in due course.
The dissent apparently does not believe a defendant in a Chapter 51 proceeding can forfeit her rights. Dissent, ¶¶73-74. The author says we should be governed by Shirley J.C. v. Walworth Cty.,
The dissent also says there is no evidence "to support the proposition that S.L.L. forfeited her right to a hearing 'through [her] choices and actions.' "
The dissent acknowledges that
This statute provides: "When defendant fails to appear. If the defendant fails to appear on the return date or on the date set for trial, the court may enter a judgment upon due proof of facts which show the plaintiff entitled thereto."
Dissenting Opinion
¶44 In seeking to extend the involuntary commitment of S.L.L., Waukesha County encountered a problem: S.L.L., a homeless individual, was nowhere to be found. As a result, she did not receive notice of the County's intent to extend her commitment.
¶45 Regardless, the County forged ahead with commitment proceedings. In S.L.L.'s absence, it obtained from the circuit court a default order extending S.L.L.'s commitment. Additionally, it sought and received an order authorizing the involuntary administration of psychotropic medication.
¶46 Despite the injustice apparent on the face of such an in absentia procedure, the majority declares that individuals may be defaulted into civil commitment without notice of the commitment hearing. It *373creates a procedural end-run around a merits hearing in which an individual's physical liberty hangs in the balance.
¶47 Worse yet, it permits subjecting an individual to involuntary-including forced-administration of psychotropic *160medication immediately upon the individual's detention, without assessing dangerousness and without providing notice or an opportunity to be heard.
¶48 Psychotropic medication is not aspirin. Such powerful medications are mind-altering and can have severe and irreversible side effects-immobilizing mind and body.
¶49 Because neither Wisconsin statutes nor due process countenance such in absentia orders, I respectfully dissent.
I
¶50 S.L.L. had been previously subject to a Chapter 51 mental commitment. Before that commitment expired, the County applied to the circuit court for a 12-month extension of her commitment. Majority op., ¶6. The circuit court scheduled a hearing on the petition and sent a notice of the hearing to S.L.L.'s attorney and to her last known address-a homeless *374shelter from which she had been banned.
¶51 On the appointed day for the extension hearing, S.L.L., having received no notice, was not present.
¶52 After determining that S.L.L. remained subject to its jurisdiction, the circuit court found: "She has not appeared here today. She's in default of her right to object." See
¶53 Accordingly, the circuit court extended S.L.L.'s commitment for twelve months.
*375¶54 The majority determines that the circuit court's procedure as delineated above complied with both statutory and constitutional requirements. In the majority's view, service of the notice of hearing on S.L.L.'s attorney was sufficient and it is "irrelevant that the copy mailed to Ms. L. was returned as undeliverable."
II
¶55 The majority errs in its interpretation of
¶56 In an initial misstep, the majority erroneously claims that
*376Additionally, even a cursory review of § 51.20 as a whole reveals that other subsections are applicable as well.
¶57 Even if one were to wear textual blinders as the majority wishes,
¶59 Although I acknowledge, as the majority does, that the first clause of
¶60 Chapter 51 contains no default judgment provision. Nevertheless, the majority ignores the statutorily mandated procedure and reaches out to utilize a default judgment procedure found nowhere in the text of the chapter.
III
¶61 The majority further errs by approving an egregious violation of due process.
¶62 "The essence of due process is the requirement that 'a person in jeopardy of serious loss (be given) notice of the case against him and opportunity to meet it.' " Mathews v. Eldridge,
¶63 Jones v. Flowers,
¶64 Jones was delinquent on his property taxes, and the State of Arkansas sought to sell his property to satisfy the delinquency.
¶65 Two years later, and just a few weeks before the public sale, the Commissioner published a notice of public sale in a local newspaper.
¶66 The Supreme Court concluded "that when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property."
¶67 By way of analogy, the Court likened the Commissioner's inaction in the face of the unclaimed letters as akin to the Commissioner watching the postman accidentally drop the notice down a storm drain without bothering to prepare and send a new notice.
¶68 Here, the facts and consequences are even more egregious than those in Jones. In Jones, the Commissioner did not know that notice would be ineffective at the time he sent the certified letters to the delinquent property. On the other hand, in this case, the County sent notice to the one location in Wisconsin that it knew S.L.L. would not be-the homeless shelter from which she had been banned. No one desirous of actually informing S.L.L. of the commitment *381extension hearing would have mailed notice to a place known to have banned S.L.L. and then called it quits. The Constitution requires that additional reasonable steps be taken to attempt to provide notice to the affected party.
¶69 Yet, the majority today accepts the very argument that was rejected by the Supreme Court in Jones. The Commissioner in Jones argued that reasonable follow-up measures were not required because "notice was sent to an address that Jones provided and had a legal obligation to keep updated."
*164¶70 The County makes the same argument in this case. Rather than follow Jones, however, the majority instead places the blame for not receiving notice at the feet of S.L.L. This is particularly troubling because S.L.L., who previously was determined to be mentally ill, has experienced homelessness and may still be homeless. The government is required "to consider unique information about an intended recipient regardless of whether a statutory scheme is reasonably calculated to provide notice in the ordinary case."
¶71 Jones dealt with the process due before extinguishing an individual's property rights.
¶72 In addition to disregarding binding federal case law, the majority also contradicts binding Wisconsin case law. Specifically, in Shirley J.C. v. Walworth Cty.,
¶73 It observed that
¶74 If summary judgment is disallowed in a Chapter 51 commitment case, how can it be that default judgments are allowed?
¶75 Unlike the majority, I would follow binding case law and conclude that the County failed to take constitutionally-sufficient steps to provide notice of the commitment extension hearing to S.L.L., resulting in a default judgment of commitment that violates due process.
¶76 For the foregoing reasons, I respectfully dissent.
*165¶77 I am authorized to state that Justices SHIRLEY S. ABRAHAMSON and REBECCA FRANK DALLET join this dissent.
The administration of psychotropic drugs is no trifling matter. See K.N.K v. Buhler,
A report from the Waukesha County Community Human Services Department in the record notes that S.L.L. was "not permitted to be [at the homeless shelter] due to her behavior."
The majority's characterization of the facts is misleading. It accuses S.L.L. of "absconding" from treatment. Majority op., ¶5. To "abscond" means "[t]o depart secretly or suddenly, esp. to avoid arrest, prosecution, or service of process." Black's Law Dictionary 8 (10th ed. 2014).
There is not a single shred of evidence in the record to support the assertion that S.L.L. "absconded" from treatment. Indeed, there is no evidence in the record to support any conclusions as to why S.L.L. stopped showing up for her scheduled treatments.
S.L.L.'s attorney had not heard from S.L.L. and had no information as to her whereabouts. Majority op., ¶7 n.7.
We know that compliance with
For example,
Similarly, § 51.20(5)(a) states that all hearings required to be held under Chapter 51 "shall conform to the essentials of due process and fair treatment including the right to an open hearing, the right to request a closed hearing, the right to counsel, the right to present and cross-examine witnesses, the right to remain silent and the right to a jury trial if requested under sub. (11)." Is it the majority's position that this subsection does not apply to commitment extension proceedings?
The majority relies on
However, the majority acknowledges that Chapter 801 is incorporated into Chapter 51 only to the extent it does not conflict with Chapter 51.
See, e.g.,
As the majority acknowledges, compliance with "statutory provisions regarding service of process is required before a [ ] court has personal jurisdiction." Majority op., ¶12 (citing State v. Aufderhaar,
The majority says that "there is no textual suggestion that the legislature offered courts the option of a detention order in exchange for forfeiting all of the other compliance tools in the toolbox." Majority op., ¶36 n.25.
The issuance of a default judgment is not a "compliance tool." The statutorily-prescribed "compliance tool" is the issuance of a detention order. The subject individual's "compliance" is compelled by being detained and brought before the court within a short period of time for the purpose of conducting a hearing on the merits of the government's commitment petition.
Here, the circuit court issued both a default judgment and a detention order. One wonders whether the detention order was a pointless "compliance tool" when issued in conjunction with a default judgment. That is, why would a court issue a detention order for the purpose of detaining the individual and holding a final hearing on the merits if a default order for commitment extension has already been issued, and the individual must first obtain relief from the default judgment before proceeding to the final ch. 51 merits hearing?
If the Supreme Court in Jones had based its analysis on the court's lack of personal jurisdiction over Jones, as the majority claims, one would expect a discussion of personal jurisdiction in the opinion. See majority op., ¶29 n.19. Not only did the Supreme Court not discuss personal jurisdiction in Jones, it did not even mention the term.
The majority claims that its analysis can live in harmony with Shirley J.C. v. Walworth Cty.,
Reference
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