Sheboygan County v. M.W.

2022 WI 40SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP6
COMPLETE TITLE: In the matter of the mental commitment of M.W.:
Sheboygan County,
Petitioner-Respondent,
v.
M.W.,
Respondent-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 398 Wis. 2d 632, 962 N.W.2d 275(2021 – unpublished)
OPINION FILED: June 10, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 8, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Sheboygan
JUDGE: Kent R. Hoffmann
JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion of the
court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined.
HAGEDORN, J., filed a concurring opinion. ZIEGLER, C.J., filed a
dissenting opinion, in which ROGGENSACK and REBECCA GRASSL
BRADLEY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner there were briefs
filed by Christopher B. Logel and Pinix Law, LLC, Milwaukee.
There was an oral argument by Christopher B. Logel.
For the petitioner-respondent there was a brief filed by
Kyle C. Lepak, assistant corporation counsel. There was an oral
argument by Kyle C. Lepak, assistant corporation counsel.
An amicus curiae brief was filed by Colleen D. Ball,
assistant state public defender and Kelli S. Thompson, state
public defender for the Office of the Wisconsin State Public
Defender.
2
2022 WI 40NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP6
(L.C. No. 2006ME163)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the mental commitment of M.W.:
Sheboygan County,
FILED
Petitioner-Respondent,
JUN 10, 2022
v.
Sheila T. Reiff
M.W., Clerk of Supreme Court
Respondent-Appellant-Petitioner.
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined.
HAGEDORN, J., filed a concurring opinion. ZIEGLER, C.J., filed a
dissenting opinion, in which ROGGENSACK and REBECCA GRASSL
BRADLEY, JJ., joined.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANN WALSH BRADLEY, J. The petitioner, M.W., seeks
review of an unpublished, authored decision of the court of
appeals reversing the circuit court's order extending her
involuntary commitment and remanding to the circuit court for
No. 2021AP6
further proceedings.1 She argues that the court of appeals erred
by remanding to the circuit court, and that outright reversal is
the proper remedy.
¶2 We are circumscribed in our review by the narrow issue
presented. In Langlade County v. D.J.W., 2020 WI 41, ¶3, 391
Wis. 2d 231, 942 N.W.2d 277, this court announced a new
directive that "going forward circuit courts in recommitment
proceedings are to make specific factual findings with reference
to the subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. on
which the recommitment is based." The court of appeals here
determined that the circuit court failed to make such findings
and Sheboygan County (the County) has not requested review of
that determination. What remains for our review is an issue of
remedy. In D.J.W., we did not specify the remedy to be
implemented when the circuit court runs afoul of the D.J.W.
directive.
¶3 M.W. contends that outright reversal is the proper
remedy for a D.J.W. violation. In contrast, the County asserts
that it is more appropriate to remand the case to the circuit
court for it to make the missing findings.
1 Sheboygan County v. M.W., No. 2021AP6, unpublished slip
op. (Wis. Ct. App. May 12, 2021) (reversing and remanding the
order of the circuit court for Sheboygan County, Kent R.
Hoffman, Judge). The appeal was decided by one judge, Judge
Mark Gundrum, pursuant to Wis. Stat. § 752.31(2)(d) (2019-20).
All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
2
No. 2021AP6
¶4 We conclude that the recommitment order at issue here
has expired and as a consequence the circuit court lacks
competency to conduct any proceedings on remand. Therefore,
reversal is the appropriate remedy in this case.
¶5 Accordingly, we reverse the decision of the court of
appeals.2
I
¶6 M.W. has been under ch. 51 mental health commitment
orders since 2006. In August of 2020, the County again filed a
petition to extend her commitment.3 Additionally, it sought an
order for involuntary medication and treatment.
¶7 The circuit court held a hearing on the County's
petition, at which three witnesses testified. Those witnesses
called by the County were Dr. Marshall Bales, who examined M.W.,
and Emilee Sesing, a case worker assigned to M.W. Additionally,
M.W. testified on her own behalf.
¶8 Ultimately, the circuit court granted the County's
petition to extend M.W.'s commitment and entered an order for
2 The County did not file a petition for cross-review of
the court of appeals' conclusion that the circuit court violated
Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942
N.W.2d 277, and we thus leave that conclusion of the court of
appeals undisturbed. See Betchkal v. Willis, 127 Wis. 2d 177,
183 n.4, 378 N.W.2d 684 (1985) (explaining that where an issue
"was not raised in the . . . petition for review and no cross-
petition was filed . . . the issue is not before us"). We
reverse the court of appeals on the issue of remedy only.
3Throughout this opinion, we use the terms "extension of a
commitment" and "recommitment" interchangeably, as does Wis.
Stat. § 51.20. See Portage County v. J.W.K., 2019 WI 54, ¶1
n.1, 386 Wis. 2d 672, 927 N.W.2d 509.
3
No. 2021AP6
involuntary medication and treatment. It determined that M.W.
suffers from a mental illness, is a proper subject for
treatment, and that M.W. would be a proper subject for
commitment if treatment were withdrawn.
¶9 The circuit court further concluded that M.W. is
dangerous to herself or others. It supported this determination
by referring to M.W.'s statement to Dr. Bales that she would not
pursue treatment absent recommitment and to a recent incident
where M.W. left a group home and traveled to New Mexico without
her belongings or medications.
¶10 M.W. appealed the circuit court's recommitment order.
She argued, among other things, that the circuit court failed to
adhere to D.J.W.'s directive that it make specific factual
findings with reference to the subdivision paragraph of Wis.
Stat. § 51.20(1)(a)2. on which the recommitment is based.4
¶11 The court of appeals agreed with M.W. on this point
and reversed the recommitment order. Sheboygan County v. M.W.,
No. 2021AP6, unpublished slip op. (Wis. Ct. App. May 12, 2021).
It observed that "the record shows, and the County acknowledges
that the circuit court failed to state the subdivision paragraph
of Wis. Stat. § 51.20(1)(a)2. on which it based M.W.'s
recommitment." Id., ¶10. Additionally, "in its ruling, the
[circuit] court failed to clearly track the necessary elements
4 M.W. additionally contended that the County did not
present sufficient evidence that she is dangerous and that the
County failed to provide notice of the standard of dangerousness
under Wis. Stat. § 51.20(1)(a)2. on which it was proceeding.
M.W., No. 2021AP6, at ¶5.
4
No. 2021AP6
of any particular subdivision paragraph and state how the
evidence satisfied those elements." Id.¶12 Finding "clarity and specificity . . . lacking in the
[circuit] court's ruling in this case," the court of appeals
refused to "engage in guesswork to determine whether the County
provided sufficient evidence to satisfy the dangerousness
requirement of [Wis. Stat. § 51.20(1)(a)2.]" Id. It further
reasoned: "D.J.W. made it clear that it is not the job of an
appellate court to try to piece together court comments like
pieces of a jigsaw puzzle in an effort to figure out what the
picture is." Id., ¶11.
¶13 After determining that a D.J.W. violation occurred,
the court of appeals moved to briefly address the remedy for
that violation. Citing a prior unpublished court of appeals
opinion dealing with a similar issue, the court of appeals
reversed and remanded to the circuit court with directions to
follow the directive of D.J.W. Id., ¶14 (citing Rock Cnty.
Dep't of Human Servs. v. J.E.B., No. 2020AP1954-FT, unpublished
slip op., ¶27 (Wis. Ct. App. Apr. 7, 2021)). Further following
the lead of the J.E.B. court, the court of appeals added:
If, on remand, and after further review of the
evidence, D.J.W., and the five dangerousness standards
in Wis. Stat. § 51.20(1)(a)2.a.-e., the circuit court
again determines that the County has met its burden of
showing current dangerousness under § 51.20(1)(a)2.,
then the court must "make specific factual findings
with reference to the subdivision paragraph of Wis.
Stat. § 51.20(1)(a)2. on which the recommitment is
based" as required by D.J.W.
5
No. 2021AP6
M.W., No. 2021AP6, at ¶14 (quoting J.E.B., No. 2020AP1954-FT, at
¶27).
¶14 M.W. petitioned for this court's review of the remedy
issue only. The County did not file a petition for cross-review
of the court of appeals' conclusion that the circuit court
violated D.J.W. and accordingly that issue was not presented to
this court.
II
¶15 We are called upon to resolve a question of appellate
remedy. The selection of the proper remedy on appeal is a
question of law that we review independently. See State v.
Lentowski, 212 Wis. 2d 849, 853, 569 N.W.2d 758 (Ct. App. 1997).
III
¶16 We begin with the necessary background regarding
recommitment proceedings and the directive established by this
court in D.J.W. Subsequently, we address the question raised in
the petition for review, i.e. the proper appellate remedy for a
D.J.W. violation.
A
¶17 In order to involuntarily commit a person pursuant to
ch. 51, the petitioner must demonstrate that three elements are
fulfilled: the subject must be (1) mentally ill; (2) a proper
subject for treatment; and (3) dangerous to themselves or
others. Fond du Lac County v. Helen E.F., 2012 WI 50, ¶20, 340
Wis. 2d 500, 814 N.W.2d 179; Wis. Stat. § 51.20(1)(a)1.-2. In
an initial commitment proceeding, the "dangerousness" element
can be proven through any of five standards set forth by
6
No. 2021AP6
statute. State v. Dennis H., 2002 WI 104, ¶14, 255 Wis. 2d 359,
647 N.W.2d 851; Wis. Stat. § 51.20(1)(a)2.5
5 Pursuant to Wis. Stat. § 51.20(1)(a)2., an individual is
"dangerous" if any of the following is fulfilled:
(1) Evidences a substantial probability of physical
harm to himself or herself as manifested by evidence
of recent threats of or attempts at suicide or serious
bodily harm. § 51.20(1)(a)2.a.
(2) Evidences a substantial probability of physical
harm to other individuals as manifested by evidence of
recent homicidal or other violent behavior, or by
evidence that others are placed in reasonable fear of
violent behavior and serious physical harm to them, as
evidenced by a recent overt act, attempt or threat to
do serious physical harm. § 51.20(1)(a)2.b.
(3) Evidences such impaired judgment, manifested by
evidence of a pattern of recent acts or omissions,
that there is a substantial probability of physical
impairment or injury to himself or herself or other
individuals. § 51.20(1)(a)2.c.
(4) Evidences behavior manifested by recent acts or
omissions 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.
§ 51.20(1)(a)2.d.
(5) For an individual, other than an individual who is
alleged to be drug dependent or developmentally
disabled, after the advantages and disadvantages of
and alternatives to accepting a particular medication
or treatment have been explained to him or her and
because of mental illness, evidences either
incapability of expressing an understanding of the
advantages and disadvantages of accepting medication
or treatment and the alternatives, or substantial
incapability of applying an understanding of the
7
No. 2021AP6
¶18 Upon the impending expiration of an initial
commitment, a petitioner may seek to extend the commitment for a
period not to exceed one year. Wis. Stat. § 51.20(13)(g)1.,
(13)(g)3.; D.J.W., 391 Wis. 2d 231, ¶31. To prevail in a
recommitment proceeding, the petitioner must demonstrate the
same three elements necessary for the initial commitment.
Waukesha County v. J.W.J., 2017 WI 57, ¶20, 375 Wis. 2d 542, 895
N.W.2d 783.
¶19 However, in a recommitment Wis. Stat. § 51.20(1)(am)
provides an additional manner of proving dangerousness not
available in the initial commitment. "Because an individual's
behavior might change while receiving treatment, Wis. Stat.
§ 51.20(1)(am) provides a different avenue for proving
dangerousness if the individual has been the subject of
treatment for mental illness immediately prior to commencement
advantages, disadvantages, and alternatives to his or
her mental illness in order to make an informed choice
as to whether to accept or refuse medication or
treatment; and evidences a substantial probability, as
demonstrated by both the individual's treatment
history and his or her recent acts or omissions, that
the individual needs care or treatment to prevent
further disability or deterioration and a substantial
probability that he or she will, if left untreated,
lack services necessary for his or her health or
safety and suffer severe mental, emotional, or
physical harm that will result in the loss of the
individual's ability to function independently in the
community or the loss of cognitive or volitional
control over his or her thoughts or actions.
§ 51.20(1)(a)2.e.
D.J.W., 391 Wis. 2d 231, ¶30.
8
No. 2021AP6
of extension proceedings . . . ." Portage County v. J.W.K.,
2019 WI 54, ¶19, 386 Wis. 2d 672, 927 N.W.2d 509.
¶20 Pursuant to Wis. Stat. § 51.20(1)(am):
If the individual has been the subject of inpatient
treatment for mental illness . . . immediately prior
to commencement of the proceedings as a result
of . . . a commitment or protective placement ordered
by a court under this section . . . or if the
individual has been the subject of outpatient
treatment for mental illness . . . immediately prior
to commencement of the proceedings as a result of a
commitment ordered by a court under this section,
. . . the requirements of a recent overt act, attempt
or threat to act under par. (a)2.a. or b., pattern of
recent acts or omissions under par. (a)2.c. or e., or
recent behavior under par. (a)2.d. may be satisfied by
a showing that there is 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.
This pathway to a recommitment "recognizes that an individual
receiving treatment may not have exhibited any recent overt acts
or omissions demonstrating dangerousness because the treatment
ameliorated such behavior, but if treatment were withdrawn,
there may be a substantial likelihood such behavior would
recur." J.W.K., 386 Wis. 2d 672, ¶19.
¶21 D.J.W. arrived at this court for our review of a
recommitment order. D.J.W., 391 Wis. 2d 231, ¶23. In that
case, D.J.W. argued that the evidence was insufficient to
support a conclusion that he was "dangerous" within the meaning
of Wis. Stat. § 51.20.
¶22 The court approached the legal issues by first
observing that "[t]he statutory basis for D.J.W.'s commitment in
9
No. 2021AP6
this case has been somewhat of a moving target." Id., ¶36.
Indeed, "It was not clear at either the initial commitment
hearing or the extension hearing on which subdivision paragraph
of Wis. Stat. § 51.20(1)(a)2. the commitment was based." Id.¶23 With the parties and the record in the case providing
no guideposts for the court's review, the D.J.W. court announced
a new directive for circuit courts. Id., ¶40. Namely, the
court stated "that going forward circuit courts in recommitment
proceedings are to make specific factual findings with reference
to the subdivision paragraph of § 51.20(1)(a)2. on which the
recommitment is based." Id.
¶24 Such a directive is "manifest in the language of Wis.
Stat. § 51.20(1)(am)," and serves two distinct purposes. Id.,
¶¶41-42. "First, it provides clarity and extra protection to
patients regarding the underlying basis for a recommitment."
Id., ¶42. Concerns about a fair process are paramount when any
deprivation of liberty, such as a civil commitment, is at issue.
Id. (citing Addington v. Texas, 441 U.S. 418, 425 (1979)).
"With such an important liberty interest at stake, the
accompanying protections should mirror the serious nature of the
proceeding." Id., ¶43. Accordingly, the directive of specific
factual findings connected to a standard of dangerousness
"provides increased protection to patients to ensure that
recommitments are based on sufficient evidence." Id.; see also
Waukesha County v. E.J.W., 2021 WI 85, ¶31, 399 Wis. 2d 471, 966
N.W.2d 590 (detailing ch. 51's "many provisions designed to
10
No. 2021AP6
offer procedural and substantive protections to the person
subject to commitment").
¶25 Second, the D.J.W. directive was intended to "clarify
issues raised on appeal of recommitment orders and ensure the
soundness of judicial decision making, specifically with regard
to challenges based on the sufficiency of the evidence."
D.J.W., 391 Wis. 2d 231, ¶44. The court explained that "[a]
more substantial record will better equip appellate courts to do
their job, further ensuring meaningful appellate review of the
evidence presented in recommitment proceedings." Id.B
¶26 We turn now to the legal issue raised by the petition
for review, i.e. the proper remedy for a D.J.W. violation.6 In
the time since this court issued the D.J.W. opinion, the court
of appeals has been presented with a number of appeals raising
the issue of whether the circuit court violated D.J.W.'s
directive. When the court of appeals has determined that such a
violation occurred, the remedy ordered has not been consistent.
In some cases, the court of appeals has remanded to the circuit
court, while in others it has reversed outright with no remand.
¶27 The court of appeals in this case reversed and
remanded for the circuit court to, in essence, fill in the
6As the concurrence aptly explains, the dissent goes well
outside the bounds of the narrow remedy issue raised in this
case. Concurrence, ¶43. The merits of the commitment are not
before us because the County did not ask us to review them. See
supra, ¶5 n.2. We thus do not further address the dissent's
assertion of harmless error.
11
No. 2021AP6
missing findings. M.W., No. 2021AP6, at ¶14. In doing so, the
court of appeals referenced J.E.B., No. 2020AP1954-FT, at ¶27.
In J.E.B., despite an uncontested argument for outright
reversal, the court of appeals ordered a remand to the circuit
court. Its reasoning included 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." Id.
¶28 In contrast, other opinions by the court of appeals
have indicated that outright reversal with no remand is the
appropriate remedy. See, e.g., Outagamie County v. L.C.E., No.
2021AP324, unpublished slip op., ¶10 (Wis. Ct. App. Sept. 8,
2021); Shawano County v. S.L.V., No. 2021AP223, unpublished slip
op., ¶20 (Wis. Ct. App. Aug. 17, 2021); Eau Claire County v.
J.M.P., No. 2020AP2014-FT, unpublished slip op., ¶21 (Wis. Ct.
App. June 22, 2021). In these cases, the court of appeals'
rationale has focused on the circuit court's competency to
conduct proceedings on remand and the lack of meaningful relief
that would be afforded to a committed person in the event of a
remand.
¶29 For example, the court in J.M.P. observed that
"[a]lthough the circuit court held a hearing on the County's
petition to extend [J.M.P.'s] commitment before [the expiration
of the previous commitment], the court failed to enter a valid
order extending [J.M.P.'s] commitment before his prior
commitment order expired." J.M.P., No. 2020AP2014-FT, at ¶21.
12
No. 2021AP6
Accordingly, "when the prior commitment order expired, the court
lost competency to conduct further proceedings on the County's
petition to extend [J.M.P.'s] commitment." Id. The court
further referenced the purposes of the D.J.W. directive,
determining that remanding to the circuit court for factual
findings would cause the "clarity" and "extra protection" D.J.W.
sought to engender to come "far too late to be meaningful."
Id., ¶22.
¶30 Similarly, in S.L.V., the court of appeals wrote that
a remand would serve no purpose because the circuit court lacked
competency:
Here, the circuit court held a final hearing on the
County's petition to involuntarily commit [S.L.V.]
within the statutory time limits, but it failed to
comply with its obligations under D.J.W. during that
hearing, and it therefore failed to enter a valid
commitment order. At this point, the statutory time
limits for holding a final commitment hearing have
long since passed, and, as a result, the court now
lacks competency to conduct further proceedings on the
County's petition. A remand for the court to comply
with its obligations under D.J.W. would therefore
serve no purpose, as the court now lacks competency to
do so.
S.L.V., No. 2021AP223, at ¶20.
¶31 The court of appeals in L.C.E. additionally
highlighted in its analysis a remand's effect on the right to a
meaningful appeal: "Because the recommitment order was entered
almost a year ago, [L.C.E.] has not been afforded the clarity
and additional protections guaranteed by D.J.W. for that entire
period, and remedying the violation now would be far too late to
be meaningful." L.C.E., No. 2021AP324, at ¶10 (quotation
13
No. 2021AP6
omitted). It further explained: "The remedy of reversal also
ensures that [L.C.E.] is not deprived of her right to a
meaningful appeal, as it would be almost impossible for [L.C.E.]
to appeal from the results of a new hearing, if necessary,
before her current recommitment order likely becomes moot." Id.
¶32 The County urges us to follow the former set of cases,
including the court of appeals' decisions in this case and
J.E.B. In the County's view, a D.J.W. violation is a "minor
procedural violation" akin to a failure to adhere to "magic
words" or to provide a simple statutory citation. Such a
procedural failing is not, according to the County, a reason to
disregard the evidence that was presented at the hearing and
risk releasing to the community a person who should properly be
committed.
¶33 On the other hand, M.W. argues that the latter court
of appeals cases arrived at the correct result, contending that
outright reversal is the only way to ensure a meaningful appeal
of a recommitment order where a D.J.W. violation is alleged.
M.W. asserts that the result of remanding would consistently be
that the circuit court merely rearticulates its previous
conclusion in different terms, thereby delaying resolution of
the appeal and rendering the protections offered by D.J.W.
completely illusory. Further, M.W. argues that the purposes of
the D.J.W. directive, as set out in that opinion, are best
served by an outright reversal rather than a remand.
Alternatively, M.W. asserts in passing that remand is
inappropriate because the circuit court lacks competency to
14
No. 2021AP6
proceed on remand. This argument is much more fully fleshed out
by the State Public Defender as amicus. Having been raised, we
cannot ignore such a fundamental concern as competency.
¶34 We agree with M.W. that outright reversal is the
appropriate remedy. Our reasoning in reaching this conclusion
focuses on the circuit court's lack of competency to conduct
proceedings on remand.
¶35 A court's competency refers to the court's power to
exercise its subject matter jurisdiction in a particular case.
City of Eau Claire v. Booth, 2016 WI 65, ¶7, 370 Wis. 2d 595,
882 N.W.2d 738. Unlike a court's subject matter jurisdiction,
which is established by the Wisconsin Constitution,7 competency
may be affected by noncompliance with statutory requirements
pertaining to the invocation of that jurisdiction in individual
cases. Id.¶36 In the specific area of ch. 51 commitments, our
precedent establishes the premise that "[t]he circuit court must
hold a hearing on the petition for extension before the previous
order expires or it loses competency to extend the commitment."
J.W.K., 386 Wis. 2d 672, ¶20. An example of this principle in
practice is provided by Rock County v. G.O.T., 151 Wis. 2d 629,
631, 445 N.W.2d 697 (Ct. App. 1989). There, the circuit court
erroneously concluded that G.O.T. was not entitled to a jury
trial. The court of appeals accordingly reversed and determined
that "G.O.T. was entitled to a jury trial, but that the court
7 See Wis. Const. art. VII, § 8.
15
No. 2021AP6
lost competency by failing to hear and decide the petition
before the commitment had expired." Id.; see also id. at 633
(explaining that "the trial court must hold the extension
hearing before the initial commitment expires to determine
whether the defendant is, in the words of sec. 51.20(13)(g)3.,
'a proper subject for commitment'"). Consequently, the court
simply vacated the recommitment order and remanded with
directions to dismiss the petition. Id. at 631.
¶37 This court recently applied the same principle when
addressing the remedy for a violation of a ch. 51 patient's
right to a jury trial. See E.J.W., 399 Wis. 2d 471, ¶40 n.10.
In E.J.W., we explained:
We simply reverse the decision of the court of appeals
rather than remanding for a jury trial because the
specific recommitment at issue in this case has
expired and accordingly the circuit court has lost
competency to act. See G.O.T., 151 Wis. 2d at 631
(determining that person subject to commitment
extension was entitled to jury trial but that the
circuit court lost competency by failing to hear and
decide the petition before the commitment had expired
and that as a result the petition should be
dismissed); J.W.K., 386 Wis. 2d 672, ¶20 (explaining
that "[t]he circuit court must hold a hearing on the
petition for extension before the previous order
expires or it loses competency to extend the
commitment"). This determination does not affect the
validity of any subsequent extensions of commitment.
J.W.K., 386 Wis. 2d 672, ¶21 (setting forth that the
reversal of a commitment order "does not retroactively
deprive the circuit court that issued a subsequent
commitment order of competency").
E.J.W., 399 Wis. 2d 471, ¶40 n.10.
¶38 Likewise here, the recommitment order from which M.W.
appealed has expired, as will often be the case. See J.W.K.,
16
No. 2021AP6
386 Wis. 2d 672, ¶29 (acknowledging that "a recommitment order
will likely expire before appellate proceedings conclude").
Indeed, the recommitment order from which M.W. appealed expired
in October of 2021. We therefore conclude that the recommitment
order at issue here has expired and as a consequence the circuit
court lacks competency to conduct any proceedings on remand.
This conclusion flows directly from the decisions in G.O.T.,
J.W.K., and E.J.W., which contain language on point to the
situation at hand. Therefore, reversal is the appropriate
remedy in this case.
¶39 Accordingly, we reverse the decision of the court of
appeals.
By the Court.—The decision of the court of appeals is
reversed.
17
No. 2021AP6.bh
¶40 BRIAN HAGEDORN, J. (concurring). The court today
answers a narrow question: Is remand appropriate when (1) the
court of appeals concludes the circuit court committed
reversible error by failing to comply with the requirements we
articulated in D.J.W., and (2) the commitment order that is the
subject of the appeal has already expired? I join the majority
because it correctly answers this question, holding that remand
is not warranted because the circuit court lacks competency to
rule on an expired commitment order. I write separately to
address the dissent's contention that we should decide more than
the narrow question presented.
¶41 To begin, it is helpful to reiterate what D.J.W.
requires. In Langlade County v. D.J.W., we directed that
"circuit courts in recommitment proceedings are to make specific
factual findings with reference to the subdivision paragraph of
Wis. Stat. § 51.20(1)(a)2. on which the recommitment is based."
2020 WI 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277. We explained
that this requirement would "clarify issues raised on appeal"
and "better equip appellate courts to do their job." Id., ¶44.
Thus, a circuit court can fall short of our D.J.W. directive by
failing to make specific factual findings or by failing to state
which dangerousness standard the recommitment is based on.
¶42 Although the parties frame this case as addressing the
appropriate "remedy for a D.J.W. error," we do not purport to
answer that question in the broad strokes this framing suggests.1
1 In briefing, M.W. described the issue before the court as
follows: "Whether the remedy for a D.J.W. error is outright
reversal of the underlying orders, rather than a reverse and
1
No. 2021AP6.bh
This is in part because not all failures to follow our D.J.W.
directive are created equal. A circuit court might, for
example, neglect to explicitly reference the standard of
dangerousness on which the recommitment is based, even as the
transcript makes abundantly clear which standard was relied on.
Other times, the transcript might fail to shed any light on
which standard the circuit court employed. Alternatively,
D.J.W.'s instructions could be violated by failing to make
specific factual findings on a small or large scale. All of
these "D.J.W. errors" technically violate our directive. Yet
today's decision does not answer whether these warrant reversal,
nor does it prescribe a universal remedy for even a reversible
D.J.W. defect.
¶43 What we have before us is a remedy question regarding
an already reversed commitment order. The County did not appeal
the determination that reversal was necessary. Thus, the
dissent inappropriately reviews the decision to reverse; this is
not before us. And the dissent's further worry that the court
is disregarding other judicial tools that may be applicable,
such as harmless error, is grounded in a misunderstanding of the
procedural posture of this case. The dissent's broader
arguments, which have some force, should await a properly
postured case. For now, the majority determines——rightly in my
remand?" The County agreed with this characterization, framing
the issue this way: "What is the proper remedy when, in a
Chapter 51 recommitment proceeding, the circuit court fails to
make specific factual findings with reference to the statutory
basis for its determination of dangerousness as required by
Langlade County v. D.J.W.?" (Citation omitted.)
2
No. 2021AP6.bh
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. For these reasons, I respectfully
concur.
3
No. 2021AP6.akz
¶44 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). The
court of appeals in this case reversed a mental recommitment
which was supported in the record by substantial medical
evidence and expert testimony, and it did so because the circuit
court failed to use "magic words." We do not require courts to
use magic words. In the process of overturning this
recommitment, the court of appeals avoided any material
discussion of the facts. Instead, it relied heavily on the lack
of citation or quotation to specific statutory language in the
circuit court transcript. Our case law does not require such
specificity. It instead recognizes the reality of how these
proceedings are factually individualized and our need to review
the record. The court of appeals did not, and now our court
does not, afford the deference due to the record and the circuit
court's determinations. The majority errs in not only this
regard but also in failing to engage in a harmless error
analysis. As a result, I dissent.
¶45 Stated differently, our court misapplies the law.
Just two years ago, we decided Langlade County v. D.J.W., 2020
WI 41, 391 Wis. 2d 231, 942 N.W.2d 277. D.J.W. provided
guidance to lower courts to ensure clear and effective judicial
decision-making in recommitment hearings. D.J.W. was consistent
not only with recommitments, but also with historical practice
and court proceedings in criminal and other civil contexts. The
court in D.J.W. did not hold that a circuit court's failure to
cite a statutory reference is enough to overturn a valid mental
health commitment. D.J.W. did not hold that appellate courts
1
No. 2021AP6.akz
can evade their own responsibilities. When reviewing
recommitment orders on appeal, more than a swift and uncritical
review is required. This is a textbook example of this court
now requiring magic words. 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. At most, this record demonstrates
harmless error. Again, the court errs in not conducting a
harmless error analysis.
¶46 In line with precedents, statutes, and traditional
judicial practice, appellate courts must examine the record as a
whole and apply a harmless error analysis even when a D.J.W.
error is found. The majority avoids discussion of these issues,
but in doing so, it invites confusion and further litigation.
Processes for valid Chapter 51 recommitments may be thrown into
uncertainty, and committees may have their needed treatments
interrupted or cut short due to circuit courts' procedural
mistakes. Effective judicial administration will also be a
casualty, along with common respect for the law. 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.
¶47 As the majority indicates, the issue we are asked to
decide in this case is what "the proper appellate remedy for a
2
No. 2021AP6.akz
D.J.W. violation" is.1 Majority op., ¶16. Justice Hagedorn's
concurrence asserts that, given procedural limitations, the
court cannot fully decide that issue. The concurrence explains
that the majority opinion stands only for the proposition 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." Concurrence, ¶43. The concurrence does not
foreclose review in future cases on "whether [D.J.W. errors]
warrant reversal," whether there is a "universal remedy for even
a reversible D.J.W. defect," or whether "other judicial
tools . . . such as harmless error" may be applicable. Id.,
¶¶42-43.
1 In the petition for review to this court, M.W. stated on
the first page of her analysis: "Issue Presented: Proper
Remedy for a D.J.W. error." In the petition, M.W. asserted
"[o]nly one aspect of her appeal is the subject of this
petition: the proper remedy for a D.J.W. error." In briefing,
M.W. reiterated that "[t]he issue presented concerns the proper
remedy for an error arising under the rule that this Court
announced in [D.J.W.]." Sheboygan County described the issue
presented in a similar manner: "What is the proper remedy when,
in a Chapter 51 recommitment proceeding, the circuit court fails
to make specific factual findings with reference to the
statutory basis for its determination of dangerousness as
required by [D.J.W.]?"
3
No. 2021AP6.akz
¶48 The majority affirms the court of appeals' decision to
reverse M.W.'s recommitment order.2 In addition, the majority
reverses the court of appeals' decision to remand M.W.'s case to
the circuit court for further proceedings. An appellate court
cannot reverse a Chapter 51 recommitment on the basis of a
D.J.W. error without first examining the record. The majority
undertakes no such analysis here. In addition, the harmless
error doctrine applies to D.J.W. errors. Because the court of
appeals did not examine the record or apply a harmless error
analysis, I would reverse the court of appeals' decision in
full. M.W.'s recommitment should stand. The majority fails to
adequately defer to the well-supported decision of the circuit
court.
I. MENTAL HEALTH COMMITMENTS, APPELLATE REVIEW,
AND HARMLESS ERROR
¶49 It has been the law in Wisconsin for over a century
that, when a circuit court enters a final judgment or order in a
civil case, it must state its findings of facts and conclusions
of law. See Wallis v. First Nat'l Bank, 155 Wis. 533, 535, 145
2 The majority unambiguously agrees with the court of
appeals' decision to reverse the recommitment order. The
majority repeatedly asserts in its opinion that "reversal is the
appropriate remedy in this case." Majority op., ¶¶4, 34, 38.
Undoubtedly, the court of appeals' decision to reverse the
recommitment order is not reversed by the majority opinion.
Therefore, the majority mislabels its mandate as a reversal of
the court of appeals' decision in full. In reality, the
majority affirms the court of appeals' decision to reverse the
recommitment order, and the majority reverses the decision to
remand the case for rehearing. I disagree with the majority's
reasoning, the lack of deference it provides to circuit court
decision making, and the mischaracterized mandate. To be clear,
the circuit court order should stand.
4
No. 2021AP6.akz
N.W. 195 (1914) (explaining that a trial court must issue a
decision "embodying its findings of fact and conclusions of law
before judgment is entered"). This is embodied in Wis. Stat.
§ 805.17(2), which states that for all civil actions "tried upon
the facts without a jury or with an advisory jury, the court
shall find the ultimate facts and state separately its
conclusions of law thereon." We have long required lower courts
to articulate their reasoning in decisions in order to "protect
the rights of the litigants and to facilitate review of the
record by an appellate court." Hochgurtel v. San Felippo, 78
Wis. 2d 70, 85, 253 N.W.2d 526 (1977).
¶50 However, for just as long as we have required circuit
courts to explain their reasoning, we have also refused to
reverse valid judgments outright when such reasoning is not
provided. Wallis, 155 Wis. at 536 ("The failure to make either
findings of fact or conclusions of law is not reversible error,
where the judgment shows that the necessary facts and
conclusions must have been found in favor of the prevailing
party and the evidence supports the judgment."). We have
understood that outright reversal of a decision well supported
by the record on the lack of circuit court findings would be
draconian and would effect a miscarriage of justice. It would
also undermine the respect due to circuit court judgments.
Therefore, we have established three possible alternatives when
reviewing a circuit court decision with incomplete findings.
Appellate courts may "(1) affirm the judgment if clearly
supported by the . . . evidence, (2) reverse if not so
5
No. 2021AP6.akz
supported, or (3) remand for the making of findings and
conclusions." Kraemer v. Kraemer, 67 Wis. 2d 319, 320, 227
N.W.2d 61 (1975) (collecting cases); accord State v. Margaret
H., 2000 WI 42, ¶37, 234 Wis. 2d 606, 610 N.W.2d 475; Wallis,
155 Wis. at 535-36.
¶51 This is in line with an equally storied principle in
civil jurisprudence: harmless error. See Wis. Stat.
§ 805.18(1) (explaining that civil judgments cannot be reversed
absent a finding of an error that "affect[s] the substantial
rights of the adverse party"); Harran v. Klaus, 79 Wis. 383,
387, 48 N.W. 479 (1891) ("[T]he 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, and no judgment shall be reversed or affected by
reason of such error or defect."); Martindale v. Ripp, 2001 WI
113, ¶30, 246 Wis. 2d 67, 629 N.W.2d 698 ("The appellate court
must conduct a harmless error analysis to determine whether the
error affected the substantial rights of the party." (quotations
omitted)); 5 C.J.S. Appeal and Error § 982 (2022) ("[I]t is a
fundamental principle of appellate procedure that a party cannot
assign as error that which is not prejudicial to him or her.").
The harmless error doctrine ensures finality, respect for
judicial decisions, and fairness for all litigants. Rose v.
Clark, 478 U.S. 570, 577 (1986) ("Reversal for error, regardless
of its effect on the judgment, encourages litigants to abuse the
judicial process and bestirs the public to ridicule it."
(quotations omitted)); 5 C.J.S. Appeal and Error, supra
6
No. 2021AP6.akz
(explaining that the harmless error doctrine ensures "the
orderly administration of justice and . . . the avoidance of
useless expense to litigants"). In all, appellate courts do not
reverse civil judgments in favor of one party simply because the
circuit court failed to follow proper procedure.
¶52 These basic principles of appellate review in civil
cases are applicable to Chapter 51 recommitments. See Milwaukee
County v. Mary F.-R., 2013 WI 92, ¶¶11-13, 351 Wis. 2d 273, 839
N.W.2d 581 (explaining that Chapter 51 commitments are "civil
proceedings"); Wis. Stat. § 51.20(10)(c) (stating that Chapter
51 proceedings are governed by the rules of evidence and
procedure in civil cases). Under § 51.20(13), absent a jury
demand, the circuit court overseeing a Chapter 51 commitment
proceeding must make factual findings and determine whether as a
matter of law an individual is "mentally ill," "a proper subject
for treatment," and dangerous. § 51.20(1)(a). This is in kind
with all civil cases tried and decided by a judge. Accordingly,
we recognized in Marathon County v. D.K. that it is best
practice for circuit courts to state and explain their factual
and legal conclusions. 2020 WI 8, 390 Wis. 2d 50, 937
N.W.2d 901. Every member of the court in D.K. agreed that the
circuit court in the first instance must provide explicit and
cogent analysis to facilitate appellate review. Id., ¶55
(Ziegler, J., joined by Roggensack, C.J., and Hagedorn, J.)
("[T]he circuit court could have made more detailed and thorough
factual findings and clarified its legal conclusions."); id.,
¶68 n.4 (Rebecca Grassl Bradley, J., concurring, joined by
7
No. 2021AP6.akz
Kelly, J.) ("[C]ircuit courts must expressly make independent
factual findings on the record, separate from any legal
conclusions."); id., ¶86 (Dallet, J., dissenting, joined by Ann
Walsh Bradley, J.) ("[Chapter 51 proceedings] cannot be
perfunctory under the law.").
¶53 It was in this legal environment that the court in
D.J.W. held that circuit courts must state their recommitment
findings on the record. Under Wis. Stat. § 51.20(1)(am), an
individual already subject to commitment can be recommitted if
there is a finding that "the individual would be a proper
subject for commitment if treatment were withdrawn." Prior to
D.J.W., there was confusion as to whether this was a standalone
basis for recommitment, or if a circuit court was required to
cite back to one of the initial bases for committing mentally
ill individuals along with § 51.20(1)(am). See § 51.20(1)(a)2.
This confusion was in no small part due to the language used in
our prior opinions to describe recommitment and subsection (am).
See Portage County v. J.W.K., 2019 WI 54, ¶19, 386 Wis. 2d 672,
927 N.W.2d 509 ("[T]he County may, as an alternative to the
options outlined in § 51.20(1)(a)2.a-e, prove dangerousness"
under the recommitment pathway of § 51.20(1)(am)). D.J.W.
clarified that, when an individual is recommitted, the circuit
court must state its factual findings with reference to one of
the initial commitment pathways, in addition to § 51.20(1)(am).
D.J.W., 391 Wis. 2d 231, ¶40 ("[W]e determine that going forward
circuit courts in recommitment proceedings are to make specific
8
No. 2021AP6.akz
factual findings with reference to the subdivision paragraph of
§ 51.20(1)(a)2. on which the recommitment is based.").
¶54 In D.J.W., the circuit court did not cite one of the
five pathways for initial commitment when it recommitted the
individual at issue. Id., ¶45. Further, in oral arguments
before the court, the county cited a different dangerousness
pathway for recommitment than what was used to obtain the
committee's initial commitment six months prior. Id., ¶¶38-39.
Nonetheless, we examined the record to determine if recommitment
was appropriate, and it was apparent that the county had failed
to present the requisite proof. The strongest evidence in favor
of commitment was testimony that without treatment the
individual would be "unable to maintain a job, hav[e] to rely on
disability for income, and liv[e] with family." Id., ¶51. We
noted that this was a far cry from a "'substantial probability'
that 'death, serious physical injury, serious physical
debilitation, or serious physical disease' would ensue if
treatment were withdrawn" under the fourth pathway, Wis. Stat.
§ 51.20(1)(a)2.d. Id., ¶53. Under the third pathway,
§ 51.20(1)(a)2.c., we explained that "schizophrenia, by itself,
does not demonstrate the requisite 'substantial probability of
physical impairment.'" Id., ¶57.
¶55 Thus, D.J.W. stands for the well-accepted proposition
that circuit courts, as in all civil proceedings, must explain
their factual findings and legal conclusions to facilitate
effective appellate review. D.J.W. clarified that, in
recommitment proceedings, these circuit court statements must be
9
No. 2021AP6.akz
made in reference to both an initial commitment pathway and Wis.
Stat. § 51.20(1)(am). 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. And nowhere in D.J.W. did the court
indicate that traditional appellate review of lower court
decisions would be amended or abrogated. In fact, D.J.W. stands
for the proposition that any error is not reversible error if
the record supports the recommitment or if the error is
harmless.
¶56 When there are inadequate lower court findings in
civil proceedings, we must "(1) affirm the judgment if clearly
supported by the . . . evidence, (2) reverse if not so
supported, or (3) remand for the making of findings and
conclusions." Kraemer, 67 Wis. 2d at 320; Margaret H., 234
Wis. 2d 606, ¶37. D.J.W. did not change this law when the civil
proceeding happens to be under Chapter 51. Here, the majority
concludes that the court of appeals cannot remand the case for
further findings and conclusions, citing the lack of competence.
Majority op., ¶4. That leaves either affirming the judgment on
the available evidence or reversing if the evidence is not
available or apparent. Id. The majority conspicuously does not
discuss this issue; it simply concludes "reversal is the
appropriate remedy." Id. Although the majority provides no
reasoning on the topic, the apparent result is an outright
reversal without any discussion of the record. But no such
10
No. 2021AP6.akz
remedy has ever been recognized in Wisconsin for civil
proceedings.
¶57 In addition to this conflict with law and precedent,
the majority fails to even mention harmless error in its
analysis. In line with standard civil procedure, harmless error
applies to Chapter 51 proceedings. Wisconsin Stat.
§ 51.20(10)(c) unambiguously states that "in every stage of an
action, [the court shall] disregard any error or defect in the
pleadings or proceedings that does not affect the substantial
rights of either party." This language is regularly interpreted
as requiring harmless error review. See Martindale, 246
Wis. 2d 67, ¶30; 5 C.J.S. Appeal and Error, supra ¶51, ("The
reviewing court must disregard error, in every stage of the
action, which does not affect the substantial rights of the
party complaining."). Both this court and the court of appeals
have recognized that harmless error applies to Chapter 51
proceedings. See S.Y. v. Eau Claire County, 162 Wis. 2d 320,
338-39, 469 N.W.2d 836 (1991) (noting that an admission of
evidence on dangerousness was harmless); D.S. v. Racine County,
142 Wis. 2d 129, 135-36, 416 N.W.2d 292 (1987) (reviewing a
Chapter 51 commitment, holding that the petition failed to
comply with procedural drafting requirements, and explaining
that "[t]here must be a further showing that this defect misled
or caused prejudice before noncompliance with procedural
statutory requirements may result in reversal" (citing Wis.
Stat. § 51.20(10)(c) (1987-88)); see, e.g., Rock County v.
J.J.K., No. 2020AP2105, unpublished slip op., 2021 WL 1803745,
11
No. 2021AP6.akz
at *8-9 (Wis. Ct. App. May 6, 2021) (reviewing a circuit court
transcript that failed to identify or cite the correct
dangerousness pathway, concluding that any D.J.W. error was
"harmless" because the record and the circuit court's analysis
fit well within the fourth pathway, and reasoning that D.J.W.
was not intended "to put form over substance in a manner that
would require reversal on this record").
¶58 D.J.W. in no way implied that harmless error review
was inapplicable to circuit courts' explanations of fact and
law. To do so would mark a stark departure from established
civil procedure (Wis. Stat. § 805.18; Harran, 79 Wis. at 387,
Martindale, 246 Wis. 2d 67, ¶30; 5 C.J.S. Appeal and Error,
supra ¶51) from statutes governing mental health commitments
(Wis. Stat. § 51.20(10)(c)), and from our Chapter 51 precedents
(S.Y., 162 Wis. 2d at 338-39, D.S., 142 Wis. 2d at 135-36).
Moreover, it would place transcript clarity above some of our
most cherished constitutional rights.
¶59 Criminal proceedings experience the same, if not
greater constitutional scrutiny than civil commitments.
Addington v. Texas, 441 U.S. 418, 427-31 (1979) (comparing the
due process implications of criminal prosecutions and civil
commitments; stating that civil commitments are not "punitive,";
they rely on medical expert opinion not the judgments of
laypeople; the costs imposed on committees if they are
wrongfully released can be substantial; and civil commitments by
their nature involve less certainty). Nonetheless, in criminal
cases, we have routinely applied harmless error to uphold valid
12
No. 2021AP6.akz
circuit court judgments, even where the defendant's fundamental
rights were abridged. As we stated in State v. Nelson, even in
the most flagrant cases of error, Wisconsin "accords a 'strong
presumption' that an error is subject to a harmless-error
review." 2014 WI 70, ¶29, 355 Wis. 2d 722, 849 N.W.2d 317(quoting Neder v. United States, 527 U.S. 1, 8 (1999)).
"Accordingly, most constitutional errors can be harmless, and
only a very limited class of cases require automatic reversal."
Id. (quotations omitted).
¶60 We have applied harmless error to jury instructions
that violated a criminal defendant's due process rights, State
v. Harvey, 2002 WI 93, ¶47, 254 Wis. 2d 442, 647 N.W.2d 189;
violations of criminal defendant's right to testify to her own
behalf, State v. Anthony, 2015 WI 20, ¶101, 361 Wis. 2d 116, 860
N.W.2d 10; Miranda violations, State v. Martin, 2012 WI 96, ¶44,
343 Wis. 2d 278, 816 N.W.2d 270; and breaches of a criminal
defendant's right to confrontation, State v. Hale, 2005 WI 7,
¶59, 277 Wis. 2d 593, 691 N.W.2d 637; to name a few.3 Only a
limited number of circuit court errors are subject to automatic
3Any argument that applying harmless error to D.J.W. would
make nonexistent D.J.W.'s holding is completely at odds with
harmless error jurisprudence. No reasonable jurist actually
contends that the Fourth, Fifth, and Sixth Amendments cease to
exist simply because judgments are affirmed despite violations
of those amendments. A circuit court or litigant who
intentionally and knowingly violates the law, relying on the
fact that harmless error applies on appeal, would be engaging in
the unethical practice of law. See SCR 20:3.1(a)(1) (an
attorney cannot "knowingly advance a claim or defense that is
unwarranted under existing law"); SCR 60.04(1)(hm) ("A judge
shall uphold and apply the law and shall perform all duties of
judicial office fairly and impartially.").
13
No. 2021AP6.akz
reversal. These "structural errors" are constitutional in
nature, affect the "entire conduct of the trial from beginning
to end," and on appeal, the impact of the error on the trial
cannot be readily determined. State v. Pinno, 2014 WI 74, ¶49,
356 Wis. 2d 106, 850 N.W.2d 207. Certainly, the failure of a
circuit court to state factual conclusions upon review of an
established record and the failure to cite a statutory
subsection are not structural errors in line with the "complete
denial of the right to counsel." Id., ¶50. Appellate courts
are more than capable of reviewing a record, party arguments,
and circuit court reasoning to determine if a dangerousness
pathway has been met. In addition, the failure of a circuit
court to be precise in its reasoning does not infect the entire
recommitment proceeding with a constitutional violation.4
¶61 Our precedents in the criminal sentencing context also
support the conclusion that automatic reversal for D.J.W.
violations would be improper. When sentencing criminal
4The fact that Wisconsin appellate courts have, for over a
century, examined the record when the circuit court's findings
are inadequate and have applied harmless error analyses is proof
positive that review of the record when there is a D.J.W.
violation is both practical and administrable. Kraemer v.
Kraemer, 67 Wis. 2d 319, 320, 227 N.W.2d 61 (1975); State v.
Margaret H., 2000 WI 42, ¶37, 234 Wis. 2d 606, 610 N.W.2d 475;
Harran v. Klaus, 79 Wis. 383, 387, 48 N.W. 479 (1891);
Martindale v. Ripp, 2001 WI 113, ¶30, 246 Wis. 2d 67, 629
N.W.2d 698. If the record and the circuit court findings do not
allow the appellate court to reasonably determine what pathway
of dangerousness is supported by the record, the appellate court
can reverse the recommitment order. This result would align
with D.J.W.'s purpose in ensuring clarity and factual support in
recommitment orders while also protecting the finality of valid
circuit court judgments.
14
No. 2021AP6.akz
defendants, we have held that circuit courts must, "by reference
to the relevant facts and factors, explain how the sentence's
component parts promote the [statutorily required] sentencing
objectives." State v. Gallion, 2004 WI 42, ¶46, 270
Wis. 2d 535, 678 N.W.2d 197. This standard is very similar to
D.J.W.'s requirement that circuit courts link their factual
findings to Wis. Stat. § 51.20(1)(a)2.'s dangerousness pathways.
However, unlike determinations of dangerousness for Chapter 51
proceedings, sentencing determinations are largely left to the
discretion of circuit courts. Compare D.K., 390 Wis. 2d 50, ¶18
("[O]ur review of statutory dangerousness requires us to apply
the facts to the statutory standard and presents a question of
law that we review independently."), with Gallion, 270
Wis. 2d 535, ¶18 ("[Appellate courts] follow[] a consistent and
strong policy against interference with the discretion of the
trial court in passing sentence." (quotations omitted)). It is
therefore of special import that sentencing courts explain their
reasoning so litigants, the public, and appellate courts can
have confidence that the circuit court properly exercised its
wide discretion.
¶62 Nonetheless, even in the sentencing context, we have
made clear that circuit courts are not required to use "magic
words." Gallion, 270 Wis. 2d 535, ¶49. We do not reverse
convictions simply because a circuit court failed to explicitly
quote or reference sentencing factors, even if that method would
facilitate appellate review. McCleary v. State, 49 Wis. 2d 263,
280-81, 182 N.W.2d 512 (1971). Instead, "[i]f the facts are
15
No. 2021AP6.akz
fairly inferable from the record, and the reasons indicate the
consideration of legally relevant factors, the sentence should
ordinarily be affirmed." State v. Grady, 2007 WI 81, ¶33, 302
Wis. 2d 80, 734 N.W.2d 364.
¶63 If D.J.W. errors result in automatic reversal, without
any consideration of the record as a whole or harmless error, we
will transform Chapter 51 appeals into contests over magic
words. Appellate courts would put aside any consideration of
the merits. Instead, the driving focus would become whether the
circuit court cited or quoted a subdivision paragraph of Wis.
Stat. § 51.20(1)(a)2. This would create horrible incentives for
litigants. If a commitment can be overturned on mere citations
and labels, the opportunities for gamesmanship would
substantially increase. Specifically, committees and their
representatives will have no incentive to assist circuit courts
in complying with D.J.W. Even in cases where the record
overwhelmingly supports commitment and the individual
desperately needs treatment, if a circuit court mistakenly fails
to cite a subdivision paragraph of § 51.20(1)(a)2., the
16
No. 2021AP6.akz
committee can remain silent and overturn his or her commitment
on appeal.5
¶64 D.J.W. reiterated the long-established principle that
circuit courts must explain their reasoning and legal
conclusions when they decide civil cases. 391 Wis. 2d 231, ¶40;
D.K., 390 Wis. 2d 50, ¶¶55, 68 n.4, 86; Wallis, 155 Wis. at 535-
36. When circuit courts fail to do so, we must examine the
record and determine whether their decision should be affirmed
or reversed. Kraemer, 67 Wis. 2d at 320; Margaret H., 234
Wis. 2d 606, ¶37. In all legal proceedings, civil and criminal,
Even if we create a new rule mandating automatic reversal
5
of Chapter 51 commitments, for sake of basic judicial integrity,
we must apply the forfeiture doctrine to D.J.W. violations. See
Waukesha County v. S.L.L., 2019 WI 66, ¶42, 387 Wis. 2d 333, 929
N.W.2d 140 (reasoning that a Chapter 51 committee did not object
to the sufficiency of the evidence and had thus forfeited the
issue on appeal); Wis. Stat. § 805.11(1), (3) (stating that
"[a]ny party who has fair opportunity to object before a ruling
or order is made must do so in order to avoid waiving error" and
reiterating that "[e]xceptions shall never be made").
Committees and their counsel must have some incentive to
encourage D.J.W. compliance. See State v. Ndina, 2009 WI 21,
¶30, 315 Wis. 2d 653, 761 N.W.2d 612 ("The purpose of the
'forfeiture' rule is to enable the circuit court to avoid or
correct any error with minimal disruption of the judicial
process, eliminating the need for appeal."). Otherwise, D.J.W.
will become nothing more than a tripwire to easily overturn
commitments, not a means to ensure effective court
administration. Notably, there is no record here that M.W.
objected to any lack of clarity on which statutory basis the
recommitment was supported, nor at the time of the recommitment
was she left unaware of possible dangerousness pathways under
which she could be recommitted. At the hearing, M.W.'s counsel
objected to an alleged lack of pre-hearing notice on the part of
the County, but then directly addressed and opposed application
of the fifth dangerousness pathway before the circuit court.
After the circuit court provided its reasoning in favor of
recommitment, the circuit court gave M.W.'s counsel an
opportunity to comment or object.
17
No. 2021AP6.akz
appellate courts apply harmless error. Wis. Stat. § 805.18;
Harran, 79 Wis. at 387; Martindale, 246 Wis. 2d 67, ¶30; 5
C.J.S. Appeal and Error, supra ¶51; Nelson, 355 Wis. 2d 722,
¶29; Pinno, 356 Wis. 2d 106, ¶49. And the harmless error
doctrine extends to Chapter 51 commitments. See Wis. Stat.
§ 51.20(10)(c); S.Y., 162 Wis. 2d at 338-39; D.S., 142 Wis. 2d
at 135-36.
¶65 D.J.W. correctly reversed a Chapter 51 commitment that
was woefully lacking in factual support or a clear connection to
a dangerousness pathway under Wis. Stat. § 51.20(1)(a)2. 391
Wis. 2d 231, ¶¶38-39, 51, 53, 57. The case did not remake
appellate practice and procedure in this state. It did not
create a judge-made structural error standard, nor did it
mandate the use of magic words. In line with our historical
practice, precedents, and statutes, we cannot reverse wholesale
any and all Chapter 51 commitments when there is a D.J.W. error.
If the commitment is supported by the evidence and the law, it
must be affirmed. In addition, the County must be given the
opportunity to argue for harmless error.
¶66 The stakes are high in Chapter 51 commitments.
Although we hold the County to rigorous standards and safeguard
committees' rights to fair and honest treatment, civil
commitment ultimately ensures that mentally ill individuals
receive the treatment they need before someone gets hurt.
Automatic reversal of commitment orders solely due to the lack
of precise wording on the part of a judge ignores substance and
makes form paramount. And the potential costs would
18
No. 2021AP6.akz
significantly outweigh any intended benefits. Even the most
suicidal or homicidal individuals may have their commitments
overturned on the basis of a circuit court's procedural error.
This would be a grave disservice to the fair and proper
administration of justice. More significantly, it would
symbolize a failure of the judiciary to the many victims of
severe mental illness, who rely on Chapter 51 for safety and
protection. In cruel irony, unjustified reversal will harm
civil committees the most. Addington, 441 U.S. at 430 ("Such
'freedom' for a mentally ill person would be purchased at a high
price.").
II. THE COURT OF APPEALS' DECISION AND THE MAJORITY OPINION
¶67 Here, the court of appeals examined the circuit court
transcript and determined that the circuit court did not quote
or cite a dangerousness pathway under Wis. Stat. § 51.20(1)(a)2.
Shebogyan County v. M.W., No. 2021AP6, unpublished slip op.,
¶¶10, 12 (Wis. Ct. App. May 12, 2021). The court of appeals
reversed M.W.'s commitment, but remanded the case for the
circuit court to clarify its findings. Id., ¶14. This is in
line with established practice for reviewing circuit court
findings in civil cases. Kraemer, 67 Wis. 2d at 320 (explaining
that appellate courts may "remand for the making of findings and
conclusions"); accord Margaret H., 234 Wis. 2d 606, ¶37.
However, the court of appeals did not consider whether the
record supported M.W.'s recommitment notwithstanding any D.J.W.
error. The court of appeals also did not review M.W.'s
recommitment under the harmless error doctrine, despite the
19
No. 2021AP6.akz
County arguing explicitly in its court of appeals brief that
harmless error applied: "Since the Court's ruling can easily be
determined upon review, M.W. is not substantially prejudiced by
the lack of specific statute number" (citing Wis. Stat.
§ 51.20(10)(c)).
¶68 If the court of appeals examined the record or applied
harmless error, it would not have reversed the recommitment
order in this case. There was substantial evidence to support
the fifth pathway on dangerousness, and both medical experts and
the County argued for application of that pathway before the
circuit court.
¶69 The record strongly favored recommitment. M.W. was
initially committed in 2006 after attempting suicide at least 20
times. She was diagnosed with bipolar disorder, with acute
psychotic symptoms, and has since received treatment in a stable
environment. A registered psychiatrist with over 25 years of
experience attempted to interview M.W. telephonically to
determine the need for recommitment. M.W. hung up on the doctor
during the examination, but the doctor observed in that time
that M.W. was "manic, paranoid, angry, dysphoric, not rational,
[and] making delusional comments." The doctor noted that M.W.
eloped from her outpatient facility during the height of the
COVID-19 pandemic (March 2020) without medication, money, or any
sort of plan. Reviewing M.W.'s complete treatment record and
applying his professional judgment, the doctor explained that
M.W. has shown a "complete disregard for the need to
get . . . help." The doctor stated "standard five" for mental
20
No. 2021AP6.akz
health commitment was "exactly how [M.W.] would be dangerous" if
she were not recommitted. A trained behavior health manager who
had worked directly with M.W. for months, provided testimony
supporting the doctor's account. The manager described M.W. as
erratic, unable to receive care outside commitment, and hostile
to medication and non-pharmaceutical treatment. The only
evidence presented against recommitment was testimony from M.W.
herself, who described herself as independent, stable, and
medication compliant. During the hearing, M.W. also became
agitated and interrupted witnesses and the circuit court in
unsolicited outbursts. In closing arguments, the County argued
for application of the fifth dangerousness pathway.
¶70 The circuit court findings further supported
recommitment. The circuit court quoted the recommitment pathway
(D.J.W. had been decided only six months prior) and cited in
detail the doctor's testimony. The court stated that M.W. "can
become so psychotic . . . she doesn't take care of herself and
that endangers her" and explained that, without treatment, "she
is going to lack the services necessary for her health and
safety." Finally, the circuit court reasoned that the
advantages of medication had been explained to M.W., but she was
not competent to understand those advantages to make informed
decisions. The court clearly did not find M.W.'s testimony
credible. See State v. Anson, 2005 WI 96, ¶32, 282 Wis. 2d 629,
698 N.W.2d 776 ("When . . . the trial court acts as the finder
of fact it is the ultimate arbiter of both the credibility of
the witnesses, and the weight to be given to each witness'
21
No. 2021AP6.akz
testimony." (quotations omitted)); Wis. Stat. § 805.17(2)
(stating that findings of fact from a trial court are reviewed
with "due regard . . . to the opportunity of the trial court to
judge the credibility of the witnesses"). In all, if the court
of appeals examined the record as a whole and the circuit
court's statements, M.W.'s recommitment would have been affirmed
under the fifth dangerousness pathway.
¶71 After the court of appeals reversed the recommitment
order and remanded for further proceedings, M.W. appealed to
this court challenging the court of appeals' chosen remedy for a
D.J.W. violation. In the process, the County did not appeal the
determination that D.J.W. was not adequately followed. The
majority states that remand is not possible in this case because
the circuit court lost competency. Majority op., ¶4. That is
not true of all cases, and the majority opinion does not state
that it is applying a categorical rule. See id., ¶4 ("As a
consequence, reversal is the appropriate remedy in this case"
due to the lack of competency). As members of a competent and
well-trained judiciary, appellate courts should prudently
analyze each case and determine the proper remedy case-by-case,
as is done in all civil cases with inadequate circuit court
findings. In cases where the circuit court still retains
competency and can efficiently correct any D.J.W. errors,
appellate courts must be permitted to consider remand to correct
any D.J.W.-specification errors. The concern in D.J.W. was the
lack of clarity in circuit court decisions; if a circuit court
22
No. 2021AP6.akz
can effectively resolve the uncertainty on remand, appellate
courts should facilitate that result.
¶72 In holding that remand is not an available remedy in
this case, the majority makes no effort to describe if, when, or
how appellate courts can review whether the record supports
commitment and affirm a circuit court's judgment even where
there is a D.J.W. violation. The majority simply concludes
"reversal is the appropriate remedy in this case." Majority
op., ¶4. Harmless error is not mentioned once in the analysis.
This is all despite the fact that the County thoroughly examined
the evidence in support of M.W.'s commitment, asserted that M.W.
should be recommitted under the fifth dangerousness pathway, and
claimed that the only error in this case was a "procedural
violation" whereby "the circuit court did not make its findings
clear enough as to what standard it was basing its decision on."
It was abundantly clear in its arguments that the County
believed reversal in this case solely on the basis of a D.J.W.
violation would be inappropriate given that the merits so
strongly supported recommitment. Furthermore, M.W. argued
"action in the court of appeals," in which the court of appeals
would affirm the recommitment notwithstanding a D.J.W.
violation, could be a possible remedy in this case. We have
been asked to determine what the appropriate remedy is when a
D.J.W. violation has been found; the issue is squarely before
us. Affirming a recommitment on appeal upon review of the
record is a remedy that can and should be used. And if that
remedy were applied in this case, M.W.'s recommitment would be
23
No. 2021AP6.akz
affirmed. The failure of the majority to address the record and
the circuit court's reasoning deprives the circuit court
decision of the deference it is due.
¶73 This is a profound and extraordinarily important legal
issue for this state. If D.J.W. requires automatic reversal of
civil commitments for the lack of correct wording on the part of
the circuit court, without any showing of structural error or
prejudice, the court will be creating a remedy never before
recognized in this state. It would cast aside over a century of
appellate practice and precedents, and it would ignore explicit
and on-point statutory language in favor of novel, judicially
devised law. Wis. Stat. § 51.20(10)(c) ("[I]n every stage of an
action, [the court shall] disregard any error or defect in the
pleadings or proceedings that does not affect the substantial
rights of either party."); Kraemer, 67 Wis. 2d at 320; Margaret
H., 234 Wis. 2d 606, ¶37; Wis. Stat. § 805.18; Harran, 79 Wis.
at 387; Martindale, 246 Wis. 2d 67, ¶30; 5 C.J.S. Appeal and
Error, supra ¶51; Nelson, 355 Wis. 2d 722, ¶29; Pinno, 356
Wis. 2d 106, ¶49; S.Y., 162 Wis. 2d at 338-39; D.S., 142 Wis. 2d
at 135-36.
¶74 While bearing the appearance of a limited decision,
the majority opinion in this case has potentially significant
consequences. The majority refuses to provide guidance to
future courts as to how they should actually deal with D.J.W.
errors. Can appellate courts review the record to determine if
commitment is supported, despite a circuit court's failure to
cite or reference a subdivision paragraph of Wis. Stat.
24
No. 2021AP6.akz
§ 51.20(1)(a)2.? Can appellate courts apply harmless error, or
must they reverse as a matter of course all mental commitments,
even those with overwhelming support in the record and in
circuit court findings? The majority opinion leaves lower
courts and Chapter 51 litigants in the dark. In so doing,
today's decision practically guarantees further litigation and
confusion. It may very well be that in the process, valid and
necessary commitments are reversed for the lack of magic
references to subdivision paragraphs of § 51.20(1)(a)2.
Appellate courts can cite the majority's rejection of remand
procedures in this case, its conclusion that "reversal is the
appropriate remedy," and its conspicuous silence on other
methods of review. Majority op. ¶4. They can observe that
M.W.'s recommitment was reversed without any examination of the
record. Other appellate courts, by contrast, may look to how
every other civil and criminal appeal operates, and how every
other Chapter 51 error is reviewed, and affirm valid commitments
supported by the record and the circuit court's findings.
Inconsistent standards and legal uncertainty work only to the
detriment of those subject to Chapter 51 commitment proceedings.
¶75 By relying on a procedural error, and conducting no
other analysis, the majority's decision avoids significant
determinations that are due the state of Wisconsin and M.W.
There is a time and place for avoiding extraneous legal issues,
and there is a time and place for this court to provide clarity
for Wisconsin's legal system. See Cook v. Cook, 208
Wis. 2d 166, 189, 560 N.W.2d 246 (1997) ("The purpose of the
25
No. 2021AP6.akz
supreme court is to oversee and implement the statewide
development of the law." (quotations omitted)). By taking this
case, but refusing to fully address the issues presented, the
most consequential result of the majority's decision is
increased legal uncertainty. If this court believes any and all
Chapter 51 commitments should be reversed if the circuit court
fails to reference a subdivision paragraph of Wis. Stat.
§ 51.20(1)(a)2., the court should make that clear. If the court
does so, the legislature would at least have the opportunity to
consider legislation to avoid the manifest injustice such a
decision would engender.
III. CONCLUSION
¶27 The majority affirms the court of appeals' decision to
reverse M.W.'s recommitment order. In addition, the majority
reverses the court of appeals' decision to remand M.W.'s case to
the circuit court for further proceedings. An appellate court
cannot reverse a Chapter 51 recommitment on the basis of a
D.J.W. error without first examining the record. The majority
undertakes no such analysis here. In addition, the harmless
error doctrine applies to D.J.W. errors. Because the court of
appeals did not examine the record or apply a harmless error
analysis, I would reverse the court of appeals' decision in
full. M.W.'s recommitment should stand. Hopefully, this court
will have the opportunity to properly address the issues
identified in Justice Hagedorn's concurrence, including the
appropriate appellate remedy for D.J.W. errors, in future
26
No. 2021AP6.akz
appeals. See concurrence, ¶¶42-43. The majority's conclusions
in this case fall short of what is required.
¶76 For the foregoing reasons, I respectfully dissent.
¶77 I am authorized to state that Justices PATIENCE DRAKE
ROGGENSACK and REBECCA GRASSL BRADLEY join this dissent.
27
No. 2021AP6.akz
1