Walworth County v. M.R.M.

2023 WI 59SUPREME COURT OF WISCONSIN
CASE NO.: 2022AP140-FT
COMPLETE TITLE: In the matter of the mental commitment of
M.R.M.:
Walworth County,
Petitioner-Respondent,
v.
M.R.M.,
Respondent-Appellant.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: June 29, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 20, 2023
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Walworth
JUDGE: Kristine E. Drettwan
JUSTICES:
DALLET, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined.
REBECCA GRASSL BRADLEY, J., filed a concurring opinion. ZEIGLER,
C.J., filed a dissenting opinion. ROGGENSACK, J., filed a
dissenting opinion.
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant, there were briefs filed by
Megan Sanders-Drazen and the Wisconsin Defense Initiative,
Madison. There was an oral argument by Megan Sanders-Drazen.
For the petitioner-respondent, there was a brief filed by
Cortney J. Iverson, assistant corporation counsel. There was an
oral argument by Cortney J. Iverson, assistant corporation
counsel.
2
2023 WI 59NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2022AP140
(L.C. No. 2021ME9)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the mental commitment of
M.R.M.:
FILED
Walworth County,
JUN 29, 2023
Petitioner-Respondent,
Samuel A. Christensen
v. Clerk of Supreme Court
M.R.M.,
Respondent-Appellant.
DALLET, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, HAGEDORN, and KAROFSKY, JJ., joined.
REBECCA GRASSL BRADLEY, J., filed a concurring opinion. ZEIGLER,
C.J., filed a dissenting opinion. ROGGENSACK, J., filed a
dissenting opinion.
APPEAL from an order of the Circuit Court for Walworth
County, Kristine E. Drettwan, Judge. Reversed.
No. 2022AP140
¶1 REBECCA FRANK DALLET, J. M.R.M. was involuntarily
committed1 and forcibly medicated for six months following a
mental health crisis. When Walworth County sought to extend
M.R.M.'s commitment, he filed a jury demand at least 48 hours
prior to his rescheduled final hearing date. The circuit court
denied that jury demand as untimely, held a final hearing, and
extended his commitment for 12 additional months.
¶2 We subsequently decided Waukesha County v. E.J.W.,
2021 WI 85, 399 Wis. 2d 471, 966 N.W.2d 590, holding that a jury
demand is timely if it is filed at least 48 hours before a
rescheduled final hearing. M.R.M. contends that E.J.W. applies
retroactively to his case. He further argues that reversal of
the extension order,2 rather than reversal and remand, is the
proper remedy because the circuit court would lack competency on
remand.
1 Wisconsin law allows for the involuntary commitment of
individuals who are "(1) mentally ill; (2) a proper subject for
treatment; and (3) dangerous to themselves or others." Langlade
County v. D.J.W., 2020 WI 41, ¶29, 391 Wis. 2d 231, 942
N.W.2d 277; see also generally Wis. Stat. § 51.20 (2021-22).
All subsequent references to the Wisconsin Statutes are to the
2021-22 version.
2 Wis. Stat. § 51.20 and our case law use "extension order"
and "recommitment order" interchangeably. Compare Waukesha
County v. E.J.W., 2021 WI 85, ¶17, 399 Wis. 2d 471, 966 N.W.2d
590 ("extension orders"), with D.J.W., 391 Wis. 2d 231, ¶44
("recommitment orders"). We use "extension order" because it is
the language included in the statutory provision which governs
commitment beyond the initial commitment period. See Wis. Stat.
§ 51.20(13)(g)3. (referring to the filing of an "application for
extension of a commitment").
2
No. 2022AP140
¶3 We hold that E.J.W. applies retroactively and that the
circuit court's denial of M.R.M.'s jury demand was erroneous.
We further hold that remand is inappropriate because the circuit
court lacks competency on remand when, as in this case, an
extension order is reversed on appeal and the preceding
commitment order has expired.
I
¶4 M.R.M. was involuntarily committed in Walworth County in
January 2021 for a period of six months. In July 2021, the
County petitioned the circuit court to extend M.R.M.'s
commitment for 12 months. The circuit court adjourned the date
originally set for the final hearing so M.R.M. could retain
counsel. At least 48 hours before the August 12 rescheduled
final hearing, M.R.M. filed a jury demand.
¶5 The circuit court concluded that M.R.M.'s jury demand
was untimely based on Marathon County v. R.J.O., 2020 WI App 20,
392 Wis. 2d 157, 943 N.W.2d 898, which held that Wis. Stat. §
51.20(11)(a) "requires a subject individual to request a jury
trial at least forty-eight hours before 'the time set for final
hearing,' not at least forty-eight hours before the final
hearing actually occurs." R.J.O., 392 Wis. 2d 157, ¶41. The
circuit court then held a bench trial and extended his
commitment for 12 months.
¶6 After the final hearing but before M.R.M. filed this
appeal we decided E.J.W., which overruled R.J.O. in part and
held that a jury demand is timely if it is filed at least 48
3
No. 2022AP140
hours before a rescheduled final hearing takes place. See
E.J.W., 399 Wis. 2d 471, ¶¶38-39, ¶38 n.9. M.R.M.'s jury demand
would have been timely if E.J.W. had been decided before his
rescheduled final hearing.
¶7 M.R.M. filed an appeal which the court of appeals
certified to this court. He raised two issues: (1) whether
E.J.W. applies retroactively, and (2) if it does, whether the
appropriate remedy for the denial of M.R.M.'s jury demand is
reversal or reversal and remand.3
II
¶8 The retroactivity of a prior decision and the
appropriate remedy on appeal are both questions of law we review
de novo. See Sheboygan County v. M.W., 2022 WI 40, ¶15, 402
Wis. 2d 1, 974 N.W.2d 733; State ex rel. Krieger v. Borgen, 2004
WI App 163, ¶7, 276 Wis. 2d 96, 687 N.W.2d 79.
3 In briefing before both the court of appeals and this
court M.R.M. also asserted that the circuit court failed to
comply with the requirement in D.J.W. that "circuit courts in
[extension] proceedings . . . make specific factual findings
with reference to the subdivision paragraph of Wis. Stat.
§ 51.20(1)(a)2. on which the [extension] is based." 391 Wis. 2d
231, ¶3. When we accept a certification, we "acquire[]
jurisdiction over all issues, not merely the issues certified."
See Fed. Nat'l Mortg. Ass'n v. Thompson, 2018 WI 57, ¶9 n.4, 381
Wis. 2d 609, 912 N.W.2d 364. We need not address this issue,
however, because we reverse the circuit court's extension order
on the grounds that it erroneously denied M.R.M.'s jury demand.
4
No. 2022AP140
III
A
¶9 We first address whether our holding in E.J.W. applies
retroactively to M.R.M.'s case.4 If it does, then the circuit
court's denial of M.R.M.'s jury demand was erroneous.
¶10 There is a general presumption that civil decisions
apply retroactively. See Wenke v. Gehl Co., 2004 WI 103, ¶69,
274 Wis. 2d 220, 682 N.W.2d 405. The County argues, however,
that E.J.W. should not be applied retroactively. We have
previously recognized three factors that guide us in deciding
whether a civil decision should apply only prospectively. These
factors are set forth in Kurtz v. City of Waukesha, 91
Wis. 2d 103, 109, 280 N.W.2d 757 (1979), and adopted from
Chevron Oil Co. v. Huson, 404 U.S. 97 (1971).5 See Trinity
Petroleum, Inc. v. Scott Oil Co., 2007 WI 88, ¶76, 302 Wis. 2d
299, 735 N.W.2d 1. They are:
(1) Does the rule establish a new principle of law,
either by overruling clear past precedent on which
litigants may have relied, or by deciding an issue of
first impression whose resolution was not clearly
foreshadowed?
4 Neither party asked us to overrule E.J.W.
The United States Supreme Court abandoned the Chevron
5
factors in Harper v. Virginia Department of Taxation, 509 U.S.
86 (1993), which mandated retroactivity in all civil cases. See
id. at 90. We have nevertheless continued to apply the
Chevron/Kurtz factors. See, e.g., State v. Schulpius, 2006 WI
1, ¶27 n.6, 287 Wis. 2d 44, 707 N.W.2d 495 (declining to
overrule Kurtz). Neither party asks us to reconsider Kurtz.
5
No. 2022AP140
(2) Will retroactive operation further or retard the
operation of the new rule?
(3) Will retroactive application produce substantial
inequitable results?
Id., ¶77.6
¶11 The first factor——whether the decision clearly
overruled past precedent——weighs against retroactively applying
E.J.W. In R.J.O., the court of appeals held that a jury demand
must be made 48 hours before the first time set for a final
hearing. See 392 Wis. 2d 157, ¶41. This rule governed ch. 51
cases for 18 months before this court concluded in E.J.W. that a
jury demand is timely if it is made at least 48 hours before a
rescheduled final hearing. See 399 Wis. 2d 471, ¶3. This
represents a clear break with the past precedent governing jury
demands.
6 We have not been entirely consistent in how we treat these
factors. Some decisions treat them as factors to "weigh" or
"consider" while others treat them as a "test" or "threshold,"
each element of which the party seeking only prospective
application of a decision must satisfy. Compare Kurtz v. City of
Waukesha, 91 Wis. 2d 103, 109, 280 N.W.2d 757 (1979)
("consideration of the factors"); State ex rel. Brown v.
Bradley, 2003 WI 14, ¶15, 259 Wis. 2d 630, 658 N.W.2d 427(same); Wenke v. Gehl Co., 2004 WI 103, ¶70, 274 Wis. 2d 220,
682 N.W.2d 405 (describing Chevron factors as "bear[ing] on the
issue"); with Browne v. WERC, 169 Wis. 2d 79, 112, 485 N.W.2d
376 (1992) ("[A]ll three Chevron factors must be satisfied in
order for a decision to apply prospectively."); Trinity
Petroleum, Inc. v. Scott Oil Co., 2007 WI 88, ¶77, 302 Wis. 2d
299, 735 N.W.2d 1 ("If these factors are met, the judicial
holding in question should not be applied retroactively.").
We need not resolve these inconsistencies because either
approach leads to the same conclusion in this case: E.J.W.
applies retroactively. Accordingly, we assume for purposes of
this discussion that Kurtz sets forth factors to weigh.
6
No. 2022AP140
¶12 Although the first factor weighs against retroactively
applying E.J.W., the second and third factors weigh heavily in
favor of retroactivity. The second factor asks if retroactively
applying the new rule would further or impede its operation.
See Kurtz, 91 Wis. 2d at 109. To answer this question, our
cases have looked to, for example, whether retroactive
application of the new rule would further "the specific
objective embodied in" a statute, and whether meaningful relief
could be granted through retroactively applying the new rule.
Wenke, 274 Wis. 2d 220, ¶73; see also State ex rel. Buswell v.
Tomah Area Sch. Dist., 2007 WI 71, ¶48, 301 Wis. 2d 178, 732
N.W.2d 804.
¶13 Here, there are two reasons why applying E.J.W.
retroactively would further——not impede——its operation. First,
doing so would give effect to the legislature's policy choices,
reflected in ch. 51, "to afford due process protections
including jury trials" to all persons subject to commitment.
E.J.W., 399 Wis. 2d 471, ¶32. To that end, the legislature
adopted Wis. Stat. § 51.20(11)(a), which states that a jury
demand is timely so long as it is filed at least 48 hours prior
to the time set for the final hearing. See E.J.W., 399 Wis. 2d
471, ¶28. This statute reflects the legislature's
"determin[ation] that a minimum of 48 hours' notice is
sufficient for the circuit court to secure the presence of
jurors and the County to prepare for a jury trial in a mental
health commitment case." Id., ¶29. Second, applying E.J.W.
retroactively would provide meaningful relief to M.R.M. The
7
No. 2022AP140
circuit court "cannot go back" in time and grant M.R.M. a jury
trial after the extension order has expired. See Buswell, 301
Wis. 2d 178, ¶48. Nevertheless, reversing that unlawful
extension order will further E.J.W.'s operation by relieving
M.R.M. from the order's collateral consequences, such as
restrictions on his constitutional right to bear arms and
liability for the cost of his care. See Sauk County v. S.A.M.,
2022 WI 46, ¶¶19-27, 402 Wis. 2d 379, 975 N.W.2d 162.
¶14 The third factor——whether retroactive application
would produce substantial inequities——also weighs in favor of
retroactivity. "The equity factor requires us to take into
account the desirability of treating similarly situated parties
alike." State v. Thiel, 2001 WI App 52, ¶16, 241 Wis. 2d 439,
625 N.W.2d 321. E.J.W. and M.R.M. are similarly situated. Both
were denied a jury trial even though their jury demands came at
least 48 hours before their rescheduled final hearings. The
availability of a jury trial upon timely demand is one of ch.
51's "many provisions designed to offer procedural and
substantive protections to the person subject to commitment."
E.J.W., 399 Wis. 2d 471, ¶31. And for that reason, it would be
inequitable to deprive M.R.M. of his right to a jury trial under
the same circumstances that were present in E.J.W. by applying
that holding only to future cases.
¶15 In sum, the Chevron/Kurtz analysis does not provide a
reason for departing from our presumption of retroactivity in
civil cases. Accordingly, we hold that the rule announced in
8
No. 2022AP140
E.J.W. applies retroactively and that M.R.M.'s jury demand was
therefore timely.
B
¶16 Having concluded that E.J.W. applies retroactively, we
next consider the proper remedy for the circuit court's denial
of M.R.M.'s jury demand. M.R.M. argues that reversal is the
appropriate remedy because when the circuit court failed to
enter a lawful extension order before the preceding commitment
order expired, it lost competency to conduct further proceedings
on remand. Before addressing that argument, we begin with some
background on competency.
1
¶17 Article VII, § 8 of the Wisconsin Constitution provides
circuit courts with subject-matter jurisdiction in "all matters
civil and criminal." Subject-matter jurisdiction is distinct
from a circuit court's competency, which "refers to the court's
power to exercise its subject matter jurisdiction in a
particular case." M.W., 402 Wis. 2d 1, ¶35. Thus, although a
circuit court is almost never without subject-matter
jurisdiction,7 it may nonetheless lack competency to exercise
7 There are exceptions to Mikrut's broad statement that
circuit courts always have subject-matter jurisdiction. See,
e.g., State ex rel. CityDeck Landing LLC v. Cir. Ct. for Brown
Cnty., 2019 WI 15, ¶32, 385 Wis. 2d 516, 922 N.W.2d 832 (noting
the Wisconsin Arbitration Act "comprises one constitutionally-
permissible exception to a circuit court's original
jurisdiction").
9
No. 2022AP140
that jurisdiction on account of "noncompliance with statutory
requirements pertaining to the invocation of that jurisdiction."
Village of Trempealeau v. Mikrut, 2004 WI 79, ¶2, 273 Wis. 2d
76, 681 N.W.2d 190.
¶18 Chapter 51 contains numerous such statutory
requirements. For example, a circuit court loses competency if
it fails to comply with Wis. Stat. § 51.20(7)(a)'s requirement
to hold a probable cause hearing "within 72 hours after the
individual arrives at the facility." Dodge County v. Ryan E.M.,
2002 WI App 71, ¶5, 252 Wis. 2d 490, 642 N.W.2d 592. Similarly,
failing to hold a final commitment hearing within 14 days of
detention as required by § 51.20(7)(c) results in a loss of
competency over an initial commitment proceeding. See State ex
rel. Lockman v. Gerhardstein, 107 Wis. 2d 325, 328-29, 320
N.W.2d 27 (Ct. App. 1982).
¶19 The circuit court can also lose competency over
extension proceedings. In G.O.T. v. Rock County, 151 Wis. 2d
629, 445 N.W.2d 697 (Ct. App. 1989), the circuit court twice
extended an initial commitment order beyond the six-month limit
imposed by § 51.20(13)(g). Although G.O.T.'s jury demand
"authorized the trial court to temporarily extend the commitment
to accommodate that demand," the circuit court lost competency
to extend the commitment a second time after the statutory
deadline passed. Id. at 633.
¶20 The upshot of these cases is that some of the time
limits imposed by ch. 51 are so "'central to the statutory
scheme'" that if the circuit court fails to comply with them, it
10
No. 2022AP140
loses competency to proceed in a particular case. Mikrut, 273
Wis. 2d 76, ¶10 (citing State v. Bollig, 222 Wis. 2d 558, 567-
68, 587 N.W.2d 908 (Ct. App. 1998)).
2
¶21 To understand M.R.M.'s argument that because the
circuit court lacks competency, reversal is the appropriate
remedy, it is necessary to distinguish between two important
dates. The first important date, August 12, 2021, is the date
on which M.R.M.'s initial six-month commitment order expired.8
The circuit court had competency to extend M.R.M.'s initial
commitment only before that date. See G.O.T., 151 Wis. 2d at
633 (explaining that "the trial court must hold the extension
hearing before the [prior] commitment expires" because Wis.
Stat. § 51.20(13)(g)1. limits initial commitment order to a
period "not to exceed 6 months" and extension orders to "a
period not to exceed one year."). And the circuit court
attempted to do just that. Before M.R.M.'s initial commitment
order expired, the circuit court held a final hearing in which
it granted a 12-month extension order. The second important
date, August 12, 2022, is when that extension order expired.
8The initial six-month commitment order was set to expire
on July 29, 2021. However, the circuit court briefly extended
that commitment due to M.R.M.'s request to postpone so he could
secure counsel. Accordingly, the circuit court retained
competency over the proceedings until August 12, 2021. See
G.O.T. v. Rock County, 151 Wis. 2d 629, 633, 445 N.W.2d 697 (Ct.
App. 1989).
11
No. 2022AP140
¶22 In appeals challenging an extension order, it is all
but certain that the first date——the expiration of the initial
six-month commitment order——will have passed by the time the
appeal is resolved. And it is also likely, though less certain,
that the second date——the expiration of the challenged extension
order——will also have passed. Here, both dates are behind us.
For that reason, reversal is the appropriate remedy in this case
based on a straightforward application of M.W. That case held
that when "the specific [order] at issue"——here, the challenged
12-month extension order——expires while on appeal, reversal is
the appropriate remedy because the circuit court lacks
competency to conduct further proceedings on remand. M.W., 402
Wis. 2d 1, ¶37.
¶23 M.R.M., however, makes a different argument. Rather
than focus on the expiration of the unlawful extension order, he
contends that a circuit court loses competency to conduct
proceedings on remand when the preceding commitment order
expires. In other words, he asks us to conclude that competency
on remand is determined from the expiration of the preceding
commitment order (the first date in 2021), not the expiration of
the unlawful extension order (the second date in 2022). We
agree and hold that it is the expiration of the preceding
commitment order that determines whether the circuit court has
competency on remand.
¶24 As we have explained previously, "[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
12
No. 2022AP140
commitment." M.W., 402 Wis. 2d 1, ¶36; see also G.O.T., 151
Wis. 2d at 635. And in order to extend someone's commitment at
that hearing, the circuit court must "determine[] that the
individual is a proper subject for commitment . . . [and] order
judgment to that effect." Wis. Stat. § 51.20(13)(g)3. A
circuit court that enters an unlawful extension order——by
wrongfully denying a timely jury demand, for example——has not
complied with these statutory obligations. See G.O.T., 151 Wis.
2d at 632-33. And importantly for competency purposes, once the
preceding order expires, it has not complied with these
requirements within the statutory time limits for holding a
final hearing. See Wis. Stat. § 51.20(13)(g)1. (setting forth
the maximum time periods for initial commitments and extension
orders). Because those time limits are mandatory and ensure
that individuals are in fact "a proper subject for commitment"
at the time a commitment or extension order is imposed, they are
central to the statutory scheme of ch. 51. See
§ 51.20(13)(g)3.; see also G.O.T., 151 Wis. 2d at 633; Lockman,
107 Wis. 2d at 330 (explaining that the 14-day deadline for
holding a final hearing after an individual is detained is
"mandatory and cannot be varied at the discretion of the trial
court."). Accordingly, the failure to enter a lawful extension
order before the preceding order expires results in a loss of
competency. See Shawano County v. S.L.V., No. 2021AP223,
unpublished slip op., ¶20 (Wis. Ct. App. Aug. 17, 2021)
(reaching the same conclusion). As argued by M.R.M., the
expiration of the unlawful extension order——the second date——is
13
No. 2022AP140
therefore irrelevant because the circuit court lost competency
to hold an extension hearing when the preceding commitment order
expired. See Eau Claire County v. J.M.P., 2020AP2014-FT,
unpublished slip op., ¶21 (Wis. Ct. App. June 22, 2021) (holding
that a circuit court's competency is determined by the
commitment order preceding the unlawful extension order, not the
unlawful extension order itself).
3
¶25 Before closing, we briefly explain why these
conclusions are consistent with our decision in Portage County
v. J.W.K., 2019 WI 54, 386 Wis. 2d 672, 927 N.W.2d 509. In that
case, we rejected the defendant's "domino theory" that reversing
an extension order would "necessarily invalidate all later
extension[ orders]." J.W.K., 386 Wis. 2d 672, ¶¶15, 21. In
doing so, we held that the validity of a previous commitment
order has no bearing on the validity of an extension order. See
id., ¶21.
¶26 There is an important difference, however, between how
we evaluate the validity of a commitment order, as in J.W.K.,
and how we determine whether a circuit court has competency, as
in this case. To assess a commitment order's validity, a
reviewing court looks to the sufficiency of the evidence
supporting that order. See id. ("[T]he circuit court may order
the extension if the County proves its case under the statutory
criteria."); see also Wis. Stat. § 51.20(13)(e) ("The petitioner
has the burden of proving all required facts by clear and
14
No. 2022AP140
convincing evidence."). The validity of a prior commitment
order could never be relevant when determining whether
sufficient evidence supports an extension order. See J.W.K.,
386 Wis. 2d 672, ¶21. By contrast, the expiration of the
immediately preceding commitment order is always relevant when
we determine whether a circuit court had competency to grant an
extension order. See M.W., 402 Wis. 2d 1, ¶36. As we have
explained previously, because the time limit for entering an
extension order is central to ch. 51's statutory scheme, the
circuit court's competency to enter such an order is contingent
on the immediately preceding order not having expired. See id.And when an extension order is reversed on appeal, as is the
case here, the circuit court's competency on remand is still
tied to the expiration of that immediately preceding commitment
order. Because this case and J.W.K. analyze different issues,
our holdings are not in tension.9
¶27 In sum, the circuit court may issue an extension order
only before the preceding commitment order expires. See M.W.,
9Justice Roggensack's dissent misunderstands the
distinction between the validity of an extension order and the
circuit court's competency to conduct proceedings on remand.
Despite the dissent's claims to the contrary, nothing in this
decision affects the validity of any commitment order M.R.M. may
be subject to currently.
Moreover, our conclusion that the circuit court lost
competency to conduct further proceedings on remand when it
failed to enter a lawful extension order before the preceding
commitment order expired does not mean that the circuit court
would necessarily lack competency to extend any commitment order
that M.R.M. may be subject to currently or to consider a new
petition for commitment.
15
No. 2022AP140
402 Wis. 2d 1, ¶36. If that extension order is reversed on
appeal, the circuit court's competency to conduct proceedings on
remand depends on whether the preceding commitment order has
expired.10 See G.O.T., 151 Wis. 2d at 632-33. In this case,
because the circuit court denied M.R.M.'s timely jury demand,
its extension order is unlawful. And because the preceding
commitment order has expired, the circuit court lacks competency
to conduct proceedings on remand. Therefore, reversal is the
appropriate remedy.
By the Court.—The decision of the circuit court is
reversed.
10While this case involves an initial six-month commitment
order and a 12-month extension order, the same logic applies to
cases involving consecutive 12-month extension orders. When an
extension order is reversed on appeal, a circuit court's
competency on remand depends on whether the preceding commitment
order has expired.
16
No. 2020AP140-FT.rgb
¶28 REBECCA GRASSL BRADLEY, J. (concurring).
[T]he common law . . . stands or falls with the
admission of legal principles obtained not by command,
but by retrospective estimates of right and justice.
Paul Vinogradoff, Common-Sense in Law 207 (1913).
¶29 The majority reaches the correct outcome; however, its
analysis is incompatible with "[t]he true traditional view" that
"courts have no authority to engage" in "prospective
decisionmaking[.]" Harper v. Va. Dep't of Tax'n, 509 U.S. 86,
106 (1993) (Scalia, J., concurring). Among other errors, the
majority conflates this court's judicial power with legislative
power. Unlike the legislature, the judiciary generally has only
the power to "expound" on existing law——not the authority to
"pronounce . . . new law[.]" Intro., William Blackstone,
Commentaries *69. "[A] judicial . . . act" is "a determination
of what the existing law is in relation to some existing thing
already done," while "a legislative act" is "a predetermination
of what the law shall be for the regulation of all future
cases." Harper, 509 U.S. at 107 (quoting Thomas Cooley,
Constitutional Limitations *91). An overruled decision loses
not only its future application but any retroactive effect as
well; once the court corrects its error of interpretation, the
decision is for all purposes erased:
The theory is, not that . . . [an] overruled decision
made law, which is changed by . . . [a] later
decision, but that the earlier decision, being a
mistake, never was the law, but that the law is and
always has been as expounded in the later decision.
This . . . is not at all like changing the existing
body of law by the repeal of a statute; it is more
like "removing a cloud" from the law. It does not
regard the prior decision as law, though bad law,
1
No. 2020AP140-FT.rgb
which must be altered, but as mere color of law
without any substance. Hence the overruling of a
decision relates back to the date of the overruled
decision, operating retrospectively, upon all
transactions which can be reached by it, and the prior
decision stands as though it had never been made.
Henry Campbell Black, Handbook on the Law of Judicial Precedents
or the Science of Case Law 689–90 (1912).
¶30 In derogation of this longstanding principle, the
freewheeling test adopted in Kurtz v. City of Waukesha, which
the majority employs in this case, offends the separation of
powers by dislodging the legislature from its lawmaking function
whenever the court decides to craft a more "just" result than
the law would otherwise produce. 91 Wis. 2d 103, 280 N.W.2d 757(1979). This court has a duty to overrule Kurtz, which was
premised on a United States Supreme Court decision from which
the Court retreated 30 years ago. Id. at 109 (quoting Chevron
Oil v. Huson, 404 U.S. 97 (1971), limited by Harper, 509 U.S. at
89 (majority op.)). For decades, this court has employed
decision-avoidance mechanisms to preserve Kurtz, contravening
its duty to act within the limited scope of power the people
vested in the judiciary. Because the court continues to cling
to lawmaking power the people never gave it, I do not join the
majority opinion but respectfully concur.
¶31 Retroactive application of precedent is a deeply-
rooted traditional rule in common law jurisprudence.1 One United
States Supreme Court justice "was prepared to hazard the guess
1The traditional rule has "a few exceptions," "collateral
review and vested rights," which are not at issue in this case.
Bryan A. Garner et al., The Law of Judicial Precedent 308
(2016).
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that '[j]udicial decisions have had retrospective operation for
near a thousand years.'" Harper, 509 U.S. at 106 (Scalia, J.,
concurring) (quoting Kuhn v. Fairmont Coal Co., 215 U.S. 349,
372 (1910) (Holmes, J., dissenting)). "For most of our history,
the [United States] Supreme Court followed the common-law
tradition and the Founders' guidance, largely keeping to 'a
general rule of retrospective effect[.]'" Bryan A. Garner et
al., The Law of Judicial Precedent 310 (2016) (quoting Robinson
v. Neil, 409 U.S. 505, 507 (1973)). Currently, the Court
follows the traditional rule, as do "[m]ost states[.]" Id. at
313. Wisconsin is an exception.
¶32 In the twentieth century, the United States Supreme
Court briefly abandoned the traditional rule, only to return to
it near the end of that century. As relevant to this case, the
United States Supreme Court wrote the following in Chevron Oil
v. Huson, a 1971 decision:
In our cases dealing with the nonretroactivity
question, we have generally considered three separate
factors. First, the decision to be applied
nonretroactively must establish a new principle of
law, either by overruling clear past precedent on
which litigants may have relied or by deciding an
issue of first impression whose resolution was not
clearly foreshadowed. Second, it has been stressed
that 'we must * * * weigh the merits and demerits in
each case by looking to the prior history of the rule
in question, its purpose and effect, and whether
retrospective operation will further or retard its
operation.' Finally, we have weighed the inequity
imposed by retroactive application, for '(w)here a
decision of this Court could produce substantial
inequitable results if applied retroactively, there is
ample basis in our cases for avoiding the 'injustice
or hardship' by a holding of nonretroactivity.'
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404 U.S. at 106–07 (citations omitted) (modifications in the
original).
¶33 Two serious deficiencies plague this "new approach."
Garner et al., The Law of Judicial Precedent, at 311.
Fundamentally, it created "serious constitutional problems[.]"
Id. In the words of Justice Antonin Scalia, "'the province and
duty of the judicial department [is] to say what the law is,'
not what the law shall be." Harper, 509 U.S. at 107 (quoting
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). Judges
interpret law; they do not make it. To apply precedent only
prospectively suggests the court's decision changed the law,
which cannot be. See Griffith v. Kentucky, 479 U.S. 314, 323
(1987) ("In truth, the Court's assertion of power to disregard
current law in adjudicating cases before us that have not
already run the full course of appellate review, is quite simply
an assertion that our constitutional function is not one of
adjudication but in effect of legislation.") (quoting Mackey v.
United States, 410 U.S. 667, 679 (1971) (Harlan, J., concurring
in the judgment))). "Even when a 'former determination is most
evidently contrary to reason . . . [or] contrary to the divine
law,' a judge overruling that decision would 'not pretend to
make a new law, but to vindicate the old one from
misrepresentation.'" Harper, 404 U.S. at 107 (quoting Intro.,
Blackstone, Commentaries *70).
¶34 "Nonretroactivity also raised obvious equal-protection
concerns by treating similarly situated . . . [parties]
differently: often the Court would apply a new rule only to
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the . . . [party] lucky enough to have appealed his case to the
Court at just the right moment." Garner et al., The Law of
Judicial Precedent, at 311. As the United States Supreme Court
later explained, "it is the nature of judicial review that
precludes us from '[s]imply fishing one case from the stream of
appellate review, using it as a vehicle for pronouncing
new . . . standards, and then permitting a stream of similar
cases subsequently to flow by unaffected by that new rule.'"
Griffith, 479 U.S. at 323 (quoting Mackey, 401 U.S. at 679).
¶35 Relatedly, "Chevron Oil created confusion and
inconsistent results[.]" Garner et al., The Law of Judicial
Precedent, at 312. As an amorphous judicial invention, the
Chevron Oil test, unsurprisingly, can be applied to reach
whatever result the judge favors. Such inconsistent application
also amplifies equal-protection concerns.
¶36 In 1993, the United States Supreme Court all but
abandoned Chevron Oil. In Harper v. Virginia Department of
Taxation, the Court explained:
When this Court does not "reserve the question whether
its holding should be applied to the parties before
it," . . . an opinion announcing a rule of federal law
"is properly understood to have followed the normal
rule of retroactive application" and must be "read to
hold . . . that its rule should apply retroactively to
the litigants then before the Court."
509 U.S. at 97–98 (majority op.) (quoting James B. Beam Co. v.
Georgia, 501 U.S. 529, 539 (1991) (lead op.)) (second ellipsis
in the original). As interpreted and applied federally, "Harper
means that new rules of civil cases are now almost always
applied retroactively" absent an express reservation in the case
5
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announcing the rule. Garner et al., The Law of Judicial
Precedent, at 312; see also Green v. Humama at Home, Inc.,
unpublished slip. op, No. 16-cv-7586 (AJN), 2017 WL 9916832 *8–9
(S.D.N.Y. Sept. 29, 2017) ("[U]nless a court explicitly reserves
the question of retroactivity, its decision 'is properly
understood to have followed the normal rule of retroactive
application.' Humana has not presented a compelling reason why
this [c]ourt should consider the Chevron Oil factors. As
explained above, there is nothing in Weil II to suggest that the
D.C. Circuit expressly reserved on the question of
retroactivity. As a result, under Harper, the Chevron Oil
factors are inapplicable." (quoting Harper, 509 U.S. at 97–
98)).
¶37 Fourteen years before Harper, this court applied
Chevron Oil in Kurtz. Kurtz, 91 Wis. 2d at 108–09. In that
case, however, this court applied Chevron Oil to determine
whether a recent United States Supreme Court decision had
retroactive effect. Id. On questions of federal law, this
court follows federal precedent. Johnson v. Wis. Elections
Comm'n, 2021 WI 87, ¶21, 399 Wis. 2d 623, 967 N.W.2d 469. As
evidenced by the majority opinion in this case, Kurtz has been
carelessly extended to govern the retroactivity of Wisconsin
precedent as well. Despite Harper's course correction 30 years
ago, this court continues to apply Kurtz.
¶38 This court has avoided addressing the soundness of
Kurtz for decades, typically invoking the party presentation
principle. See State ex rel. Brown v. Bradley, 2003 WI 14, ¶41,
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No. 2020AP140-FT.rgb
259 Wis. 2d 630, 658 N.W.2d 427 (Sykes, J., dissenting) ("As the
majority notes, although the State mentioned Harper in its
brief, it declined to take a position on whether we ought to
enunciate a uniform standard of retroactivity . . . ; Brown did
not even cite Harper. While it is clear that Chevron Oil is no
longer good law and Kurtz should therefore be revisited, I agree
that the question is better left for another case[.]" (Citation
omitted)); State ex rel. Giffin v. Smith, 2004 WI 36, ¶65, 270
Wis. 2d 235, 677 N.W.2d 259 (Sykes, J., concurring) ("Here, as
in Brown, the parties did not brief the issue of Wisconsin's
continued reliance on Chevron Oil in light of Harper. For that
reason, . . . we need not address here whether to conform our
law to Harper.").
¶39 Even when the issue has been raised, however, this
court has avoided it. The majority in this case attempts to
justify applying the Kurtz test by relying on State v.
Schulpius, 2006 WI 1, ¶27 n.6, 287 Wis. 2d 44, 707 N.W.2d 495.
In that case, this court determined the retroactivity question
was irrelevant because the respondent had forfeited a key
objection. Id., ¶27. Nevertheless, this court commented on the
retroactivity issue in a footnote. In full, the footnote
states:
Schulpius urges this court to overrule its decision in
Kurtz v. City of Waukesha, 91 Wis. 2d 103, 280
N.W.2d 757 (1979), and adopt the rule of Harper v.
Virginia Department of Taxation, 509 U.S. 86, 113
S. Ct. 2510, 125 L.Ed.2d 74 (1993) on the retroactive
application of a new rule of law. We decline to do so
here. However, even if this court were to adopt the
rule of Harper on retroactivity, we do not believe it
7
No. 2020AP140-FT.rgb
would impact on this case. Harper held that when the
United States Supreme Court:
applies a rule of federal law to the parties
before it, that rule is the controlling
interpretation of federal law and must be
given full retroactive effect in all cases
still open on direct review and as to all
events, regardless of whether such events
predate or postdate our announcement of the
rule.
Id. at 97, 113 S. Ct. 2510. Because Schulpius failed
to appeal the November, 2000 order within 90 days of
entry of the order, as per Wis. Stat. § 808.04(1),
Schulpius's case was not open on direct review at the
time of this court's decision in Morford.
Id., ¶27 n.6. This conclusory footnote, which offers no
reasoning and largely reads like dicta ("even if this court were
to adopt the rule of Harper on retroactivity, we do not believe
it would impact on this case") is inconsistent with this court's
law-declaring function. See State ex rel. Wis. Senate v.
Thompson, 144 Wis. 2d 429, 436, 424 N.W.2d 385 (1988) ("[I]t is
this court's function to develop and clarify the law."). This
court is not supposed to ignore "major questions of substantive
law" by employing "superficial" reasoning. Citizens Study Comm.
on Jud. Org., Report to Governor Patrick J. Lucey 78 (1973) (on
file at the David T. Prosser Jr. State Law Library). Had this
court in Schulpius analyzed whether Kurtz should be overruled,
perhaps Schulpius would have present utility, but in the absence
of such an analysis, Schulpius has none. See also Wenke v. Gehl
Co., 2004 WI 103, ¶75 n.43, 274 Wis. 2d 220, 682 N.W.2d 405("Even if we followed the Harper approach, we would nonetheless
apply this ruling retroactively, as Harper disavows any
8
No. 2020AP140-FT.rgb
exceptions to the rule of retroactive application in the civil
context.").
¶40 Sometimes decision avoidance is appropriate; however,
when an issue concerns the parameters of judicial power, the
court should decide it. Because Kurtz is objectively wrong,
this court has a duty to overrule it. State v. Johnson, 2023 WI
39, ¶49, 407 Wis. 2d 195, 990 N.W.2d 174 (Rebecca Grassl
Bradley, J., concurring) (citing Friends of Frame Park, U.A. v.
City of Waukesha, 2022 WI 57, ¶42, 403 Wis. 2d 1, 976 N.W.2d 405(Rebecca Grassl Bradley, J., concurring)). Kurtz poses an
especially grave threat to the rule of law because this court
appropriated power in the absence of authority. Specifically,
it equated law with precedent interpreting law, blurring the
fundamental distinction between the legislative and judicial
domains. Cf. id., ¶76 ("The judiciary takes an oath to uphold
the United States Constitution, not precedent. . . . Our oath
obligates us to overturn 'judge-made constitutional law,' when
'divorced' from the United States Constitution." (Quoting Lino
A. Graglia, Constitutional Law Without the Constitution: The
Supreme Court's Remaking of America, in "A Country I Do Not
Recognize": The Legal Assault on American Values 1–2 (Robert H.
Bork ed., 2005))). It would be "crazy not to worry that if
judges consider themselves free to disregard the Constitution's
separation of powers they might soon find other bothersome parts
of the Constitution equally unworthy of their fidelity." Neil
M. Gorsuch, Of Lions and Bears, Judges and Legislators, and the
9
No. 2020AP140-FT.rgb
Legacy of Justice Scalia, 66 Case W. Res. L. Rev. 905, 911
(2016).
¶41 The United States Supreme Court's decision in Harper
illuminates another aspect of this court's error in Kurtz.
Precedent may be overturned when "[c]hanges or developments in
the law have undermined the rationale behind a decision." State
v. Roberson, 2019 WI 102, ¶50, 389 Wis. 2d 190, 935 N.W.2d 813(quoting Bartholomew v. Wis. Patients Comp. Fund & Compcare
Health Servs. Ins., 2006 WI 91, ¶33, 293 Wis. 2d 38, 717
N.W.2d 216). Chevron Oil spawned Kurtz, but Harper deflated
Chevron Oil, thereby undermining the foundation of this court's
reasoning in Kurtz. See Friends of Frame Park, 403 Wis. 2d 1,
¶89 (explaining a similar series of events undermined the
rationale behind several court of appeals decisions).
¶42 Kurtz also borders on "unworkable," providing yet
another reason to overrule it. See Roberson, 389 Wis. 2d 190,
¶50 (quoting Bartholomew, 293 Wis. 2d 38, ¶33). The erosion of
the traditional rule of retroactivity "generated . . . many
incompatible rules and inconsistent principles." Desist v.
United States, 394 U.S. 244, 258 (1969) (Harlan, J.,
dissenting). The majority cannot even explain what the actual
Kurtz test is——despite Kurtz being 44 years old. The majority
admits:
We have not been entirely consistent in how we treat
these factors. Some decisions treat them as factors
to "weigh" or "consider" while others treat them as a
"test" or "threshold," each element of which the party
seeking only prospective application of a decision
must satisfy. Compare Kurtz v. City of Waukesha, 91
Wis. 2d 103, 109, 280 N.W.2d 757 (1979)
10
No. 2020AP140-FT.rgb
("consideration of the factors"); State ex rel. Brown
v. Bradley, 2003 WI 14, ¶15, 259 Wis. 2d 630, 658
N.W.2d 427 (same); Wenke v. Gehl Co., 2004 WI 103,
¶70, 274 Wis. 2d 220, 682 N.W.2d 405 (describing
Chevron factors as "bear[ing] on the issue"); with
Browne v. WERC, 169 Wis. 2d 79, 112, 485 N.W.2d 376(1992) ("[A]ll three Chevron factors must be satisfied
in order for a decision to apply prospectively.");
Trinity Petroleum, Inc. v. Scott Oil Co., 2007 WI 88,
¶77, 302 Wis. 2d 299, 735 N.W.2d 1 ("If these factors
are met, the judicial holding in question should not
be applied retroactively.").
We need not resolve these inconsistencies because
either approach leads to the same conclusion in this
case: E.J.W. applies retroactively. Accordingly, we
assume for purposes of this discussion that Kurtz sets
forth factors to weigh.
Majority op., ¶10 n.6. If the rule of law is to be more than
the rule of judges, the vagueness and subjectivity inherent in
Kurtz cannot stand.
¶43 For all of these reasons, this court should overrule
Kurtz and restore the traditional rule of retroactivity that
previously prevailed for a millennium. Its application in this
case is straightforward. In Waukesha County v. E.J.W., this
court interpreted Wis. Stat. § 51.20(11)(a) (2019–20). 2021
WI 85, 399 Wis. 2d 471, 966 N.W.2d 590. In doing so, it
partially overruled a court of appeals decision, Marathon County
v. R.J.O., 2020 WI App 20, 392 Wis. 2d 157, 943 N.W.2d 898.
This court in E.J.W. did not——indeed, could not——alter the fixed
meaning of § 51.20(11)(a). R.J.O. was not "the law" but "the
opinion" of judges who (as the majority saw it) "mist[ook] the
law." Blackstone, Commentaries, *71. Because this court in
E.J.W. did not reserve the retroactivity issue, E.J.W. applies
retroactively——even though lower courts in this state were
11
No. 2020AP140-FT.rgb
required to follow the incorrect interpretation in R.J.O. until
this court overturned it.
¶44 The majority could have simply applied the traditional
rule of retroactivity in a few short paragraphs, but instead
preserves a faulty test the United States Supreme Court deserted
three decades ago. Although "liberty can have nothing to fear
from the judiciary alone" it has "every thing to fear from its
union with either of the other departments[.]" The Federalist
No. 78 (Alexander Hamilton). "The accumulation of all powers,
legislative, executive, and judiciary, in the same hands,
whether of one, a few, or many, and whether hereditary,
selfappointed, or elective, may justly be pronounced the very
definition of tyranny." The Federalist No. 47 (James Madison).
The majority perpetuates the augmentation of judicial power with
the legislative power through unquestioned, dogmatic adherence
to now-defunct precedent. In doing so, the majority disfigures
the structural separation of powers and treads a path to tyranny
the constitution does not abide. I do not join it.
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No. 2022AP140-FT.akz
¶45 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). I
dissent because M.R.M.'s recommitment contains no legal error.
Almost two years ago in Waukesha County v. E.J.W., 2021 WI 85,
399 Wis. 2d 471, 966 N.W.2d 590, a majority of this court
erroneously interpreted the unambiguous command under Wis. Stat.
§ 51.20(11)(a) that "[a] jury trial is deemed waived unless
demanded at least 48 hours in advance of the time set for final
hearing." The E.J.W. majority held "that when a final hearing
is rescheduled, § 51.20(11)(a) allows a jury demand to be filed
up until 48 hours prior to a rescheduled final hearing." Id.,
¶3. The majority's conclusions today only serve to highlight
E.J.W.'s error. E.J.W. was wrong when it was decided, it
remains wrong today, and the majority's failure to overrule
E.J.W. sends our interpretation of § 51.20(11)(a) further out to
sea. Instead of ruling E.J.W. applies retroactively, I would
overrule E.J.W. and conclude M.R.M. waived his right to a jury
trial at his recommitment hearing.
¶46 I also conclude that the circuit court did not run
afoul of our decision in Langlade County v. D.J.W., 2020 WI 41,
391 Wis. 2d 231, 942 N.W.2d 277, where we instructed circuit
courts in ch. 51 recommitment proceedings "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."
Id., ¶3. The circuit court thoroughly explained its factual
findings. It is clear the court concluded there was a
substantial likelihood that, if M.R.M. was not recommitted,
M.R.M.'s impaired judgment would again make him a danger to
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himself or others and a proper subject for commitment under Wis.
Stat. § 51.20(1)(a)2.c. The circuit court therefore complied
with our instruction in D.J.W. M.R.M.'s argument to the
contrary amounts to a complaint that the circuit court did not
use "magic words" by specifically citing or quoting
§ 51.20(1)(a)2.c. Even if the circuit court's explanation did
not comport with D.J.W., that error would be harmless because we
have no trouble discerning the basis for M.R.M.'s recommitment.
Accordingly, M.R.M.'s recommitment contained no error, and that
recommitment should be affirmed.
I
¶47 Our state constitution provides, "The right of trial
by jury shall remain inviolate, and shall extend to all cases at
law without regard to the amount in controversy; but a jury
trial may be waived by the parties in all cases in the manner
prescribed by law." Wis. Const. art. I, § 5 (emphasis added).
As is true in other civil cases, juries in ch. 51 commitment
proceedings are waived absent a jury demand. Sheboygan County
v. M.W., 2022 WI 40, ¶52, 402 Wis. 2d 1, 974 N.W.2d 733(Ziegler, C.J., dissenting) (explaining that ch. 51 proceedings
are civil cases and, "absent a jury demand," factual findings
are left to the circuit court). In accord with our
constitution, Wis. Stat. § 51.20(11)(a) prescribes the manner in
which a jury is waived in ch. 51 proceedings: "A jury trial is
deemed waived unless demanded at least 48 hours in advance of
the time set for final hearing, if notice of that time has been
2
No. 2022AP140-FT.akz
previously provided to the subject individual or his or her
counsel."
¶48 The statutory text is plain. Under Wis. Stat.
§ 51.20(11)(a), the circuit court sets the time for the final
hearing. The commitment subject must submit a jury demand "at
least 48 hours in advance" of that time. Id. If the subject
does not do so, then "[a] jury trial is deemed waived." Id.Here, the circuit court set the time of M.R.M.'s final hearing
for July 28, 2021. He was informed:
If you want a jury trial, it must be demanded or
requested at least 48 hours in advance of the trial
date. In the event the request is not made within 48
hours in advance of the trial date, you automatically,
under the statutes, waive your right to a jury trial.
M.R.M. failed to demand a jury trial at least 48 hours in
advance of his trial date. Therefore, at that time, M.R.M. was
deemed to have waived his right to a jury trial. Even though
the court rescheduled his final hearing, M.R.M. could not later
demand a jury trial because he already waived that right. The
waiver occurred 48 hours before the time set for final hearing,
"not . . . forty-eight hours before the final hearing actually
occurs." Marathon County v. R.J.O., 2020 WI App 20, ¶41, 392
Wis. 2d 157, 943 N.W.2d 898, overruled by E.J.W., 399
Wis. 2d 471. M.R.M. waived a jury trial in the manner
prescribed by law, and the law provides no mechanism for him to
claw back that waiver.
¶49 However, "[t]he majority in [E.J.W.] replaced [this]
clear jury waiver standard in chapter 51 commitment proceedings
with a shifting and unpredictable rule" which "depart[ed] from
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No. 2022AP140-FT.akz
sound judicial administration [and] is not supported by the
plain text." E.J.W., 399 Wis. 2d 471, ¶41 (Ziegler, C.J.,
dissenting). Since the day E.J.W. was decided, it has been
"detrimental to coherence and consistency in the law" and
"unsound in principle." Johnson Controls, Inc. v. Emps. Ins. of
Wausau, 2003 WI 108, ¶¶98-99, 264 Wis. 2d 60, 665 N.W.2d 257.
¶50 The majority in E.J.W. fundamentally misunderstood the
concept of waiver. Wisconsin Stat. § 51.20(11)(a) defines the
point in time at which waiver occurs.
Thus, the only question under []§ 51.20(11)(a)
. . . is procedural: at what time and date was [the]
deadline to submit a jury demand or have it deemed
waived? Section 51.20(11)(a) provides a
straightforward and rational answer: "[A]t least 48
hours in advance of the time set for final hearing."
E.J.W., 399 Wis. 2d 471, ¶47 (Ziegler, C.J., dissenting). Once
that waiver occurs, the "jury right [is] permanently waived."
Id., ¶54 (Ziegler, C.J., dissenting). "'[W]aiver,' under the
plain language of Wis. Stat. § 51.20(11)(a), is not conditional
or subject to revocation. It is a final extinguishment of a
right." Id., ¶59 (Ziegler, C.J., dissenting). "A waiver when
once made cannot be recalled, revived, expunged, or revoked, nor
can the right waived be reclaimed . . . ." 31 C.J.S. Estoppel
and Waiver § 93 (2023). Once a jury trial is deemed waived
under § 51.20(11)(a), that waiver is effective going forward.
This is true regardless of whether the circuit court reschedules
the final hearing. The right to a jury trial has been waived,
and nothing has restored it.
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No. 2022AP140-FT.akz
¶51 By concluding "that when a final hearing is
rescheduled, [Wis. Stat.] § 51.20(11)(a) allows a jury demand to
be filed up until 48 hours prior to a rescheduled final
hearing," the majority in E.J.W. altered the statutory text.
399 Wis. 2d 471, ¶3. It effectively inserted a provision
permitting a right once waived to be restored. E.J.W. thus
amended the "the manner prescribed by law" for waiving a jury
trial in ch. 51 proceedings. Wis. Const. art. I, § 5. E.J.W.
also undermined consistency in the law, creating a special rule
for jury trial waivers in ch. 51 proceedings as opposed to
waivers that take place in any other context. The majority's
interpretation in E.J.W. contravened both the statutory text and
the law generally.
¶52 The majority's opinion in this case only serves to
highlight E.J.W.'s errors and the consequences of those errors.
In concluding E.J.W. should be afforded retroactive application,
the majority in part relies on "the legislature's policy
choices," among those the apparent choice "to afford due process
protections" in ch. 51 civil commitment proceedings. Majority
op., ¶13 (quoting E.J.W., 399 Wis. 2d 471, ¶28). The majority's
invocation of due process principles, both here and in E.J.W.,
further inches judicial interpretation of Wis. Stat.
§ 51.20(11)(a) away from the statutory text. It puts a due
process gloss on a statutory provision, which "ha[s] no
relevance to the issues in this case." E.J.W., 399 Wis. 2d 471,
¶45 (Ziegler, C.J., dissenting). Section 51.20(11)(a) is not a
bulwark protecting the right to a jury trial in ch. 51 civil
5
No. 2022AP140-FT.akz
commitment proceedings. It is simply "the manner prescribed by
law" by which "a jury trial may be waived." Wis. Const. art. I,
§ 5. The majority's analysis infers a far greater purpose than
the text fairly implies, building upon the errors that began
with E.J.W.
¶53 Giving E.J.W. retroactive effect rather than
overruling it will also throw circuit court dockets into chaos.
In an equally flawed decision, a majority of this court created
a bright-line rule that recommitment orders are never moot.
Sauk County v. S.A.M., 2022 WI 46, ¶3, 402 Wis. 2d 379, 975
N.W.2d 162. It did so based on "[a] theoretical and unproven
collateral consequence" of recommitment, which "has never been a
standalone reason to conclude that a case is not moot." Id.,
¶40 (Ziegler, C.J., concurring in part, dissenting in part). By
giving E.J.W. retroactive effect, the majority opens the
floodgates, inviting innumerable challenges to recommitment
orders that have long since expired.
¶54 "Precedents should be respected, but sometimes the
[c]ourt errs, and occasionally the [c]ourt issues an important
decision that is egregiously wrong. When that happens, stare
decisis is not a straitjacket." Dobbs v. Jackson Women's Health
Org., 597 U.S. ___, 142 S. Ct. 2228, 2280 (2022). Here, the
majority "do[es] more damage to the rule of law by obstinately
refusing to admit [its] errors, thereby perpetuating injustice,
than by overturning [this] erroneous decision." Johnson
Controls, Inc., 264 Wis. 2d 60, ¶100. I would correct this
6
No. 2022AP140-FT.akz
mistake by overruling E.J.W., and therefore conclude that
M.R.M.'s recommitment did not violate Wis. Stat. § 51.20(11)(a).
II
¶55 M.R.M. also argues his recommitment was unlawful
because the circuit court's explanation of its decision did not
follow D.J.W., 391 Wis. 2d 231. In D.J.W., we instructed "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." Id., ¶3. M.R.M. argues "the circuit
court ran afoul of D.J.W. by failing to set forth either the
requisite findings of fact or the dangerousness standard it
deemed proven."
¶56 "For a person to be subject to a chapter 51
involuntary commitment, three elements must be fulfilled: the
subject individual must be (1) mentally ill; (2) a proper
subject for treatment; and (3) dangerous to themselves or
others." Id., ¶29 (citing Wis. Stat. § 51.20(1)(a)1.-2.). In
an initial commitment, the county must provide evidence of the
potential commitment subject's current dangerousness under one
of five subdivision paragraphs in ch. 51:
a. 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.
b. 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
7
No. 2022AP140-FT.akz
act, attempt or threat to do serious physical
harm. . . .
c. 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. . . .
d. 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. . . .
e. 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
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.
¶57 In a recommitment hearing, current dangerousness may
be proved by demonstrating the treatment following the initial
8
No. 2022AP140-FT.akz
commitment "ameliorated [the dangerous] behavior, but if
treatment were withdrawn, there may be a substantial likelihood
such behavior would recur." Portage County v. J.W.K., 2019 WI
54, ¶19, 386 Wis. 2d 672, 927 N.W.2d 509.
If the individual has been the subject of inpatient
treatment for mental illness, developmental
disability, or drug dependency immediately prior to
commencement of the proceedings as a result of a
voluntary admission, a commitment or protective
placement 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. . . .
Wis. Stat. § 51.20(1)(am).
¶58 The issue in D.J.W. was whether "the evidence
introduced at the recommitment hearing was insufficient to
support a conclusion that D.J.W. is 'dangerous' pursuant to
either §§ 51.20(1)(a)2.c. or 2.d. and 51.20(1)(am)." 391
Wis. 2d 231, ¶3. Resolving this issue proved difficult because
"[i]t 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., ¶36. To
avoid future difficulties of this sort, "we determine[d] 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., ¶40. The purpose of this requirement is to
9
No. 2022AP140-FT.akz
provide notice of the statutory basis for recommitment to both
the subject and reviewing courts. Id., ¶¶42-44 ("[I]t provides
clarity and extra protection to patients regarding the
underlying basis for a recommitment" and "will clarify issues
raised on appeal of recommitment orders and ensure the soundness
of judicial decision making.").
¶59 However, our decision in D.J.W. did not create a
"magic words" requirement. "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." M.W., 402
Wis. 2d 1, ¶45 (Ziegler, C.J., dissenting).1 It merely
"reiterated the long-established principle that circuit courts
must explain their reasoning and legal conclusions when they
decide civil cases." Id., ¶64 (Ziegler, C.J., dissenting).
"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." Id.,
¶55 (Ziegler, C.J., dissenting). Furthermore, ch. 51 compels
that a reviewing court undertake a harmless error review even if
it finds the circuit court failed to adequately explain the
facts and law. Under Wis. Stat. § 51.20(10)(c), "The court
shall, in every stage of an action, disregard any error or
defect in the pleadings or proceedings that does not affect the
substantial rights of either party." D.J.W.'s instruction to
1 The majority in M.W. did not disagree with my analysis of
D.J.W. It failed to reach the D.J.W. issue in that case, just
as the majority does here.
10
No. 2022AP140-FT.akz
circuit courts in no way absolves us of our statutory obligation
to apply harmless error review in ch. 51 proceedings.
¶60 The circuit court in this case did not run afoul of
D.J.W. The record sufficiently demonstrates that the circuit
court made factual findings supporting a determination of
dangerousness under Wis. Stat. § 51.20(1)(a)2.c. using the
alternative evidentiary method in § 51.20(1)(am). In other
words, the record demonstrates that the circuit court found "a
substantial likelihood, based on [M.R.M.'s] treatment record,
that" "there [would be] a substantial probability of physical
impairment or injury to himself . . . or others" "if treatment
were withdrawn" due to M.R.M.'s "impaired judgment."
¶61 The circuit court relied heavily on the testimony of a
psychiatrist who examined M.R.M. The psychiatrist also
submitted to the circuit court a 14-page written report
detailing M.R.M.'s treatment history, the psychiatrist's account
of interviewing M.R.M., an examination of M.R.M.'s mental
status, psychiatric diagnosis, and opinions regarding civil
commitment. His report discussed the January 2021 incident
prompting M.R.M.'s initial commitment: M.R.M. "walking around
his property with a loaded gun making suicidal and homicidal
remarks" and, "[u]pon arrival at the ER, . . . yell[ing] that he
was going to take everybody out." The psychiatrist's report
concluded M.R.M. "suffers from Schizoaffective Disorder" and
that M.R.M.'s condition "only improved as a result of subsequent
involuntary psychotropic treatment." The psychiatrist also
stated in his report that he was "concerned about the current
11
No. 2022AP140-FT.akz
plan to reduce medication dosages until symptoms of psychosis
re-emerge" and opined that "commitment extension is warranted in
order to allow staff to intervene when [M.R.M.] becomes
symptomatic again, given that he already has no insight into his
mental illness, treatment needs and concerns about prior
dangerousness while less actively symptomatic." His report
further concluded,
[T]here is a substantial likelihood that he would
become a proper subject for commitment if treatment
were withdrawn. At the current time, his risk of harm
to himself and others through judgment impaired by
paranoid psychosis, leading him recklessly brandishing
a weapon in public amid suicidal and homicidal threats
has been mitigated by the oversight of medication
compliance under the conditions of civil commitment.
¶62 At the recommitment hearing, the psychiatrist
testified in a manner consistent with his report. He stated
M.R.M. "suffers from schizoaffective disorder[, which] is a
treatable mental illness." He also testified M.R.M. "has told
every one along the way that he does not believe that he suffers
from a mental illness or need[s] treatment when all evidence
suggests otherwise." Based on his review of clinical records
and independent examiner reports discussing M.R.M.'s treatment
history, the psychiatrist testified, "I believe it is a
substantial likelihood that [M.R.M.] would exhibit or experience
the same type of symptoms he exhibited back in January with the
associated dangerousness if treatment were withdrawn," which he
described as "judgment impaired by paranoid psychosis."
¶63 Based on the psychiatrist's testimony and report, the
circuit court "found his opinions and his insight to be
12
No. 2022AP140-FT.akz
credible, to be thoughtful." The court "f[ou]nd by clear and
convincing evidence, here, [M.R.M.] does have a mental illness
whether he wishes to admit it or not. At least five
psychiatrists believe that he does . . . ." It "agree[d] that
[M.R.M.] is a proper subject for treatment. He has been
responding to the medication or medications that he's been
receiving . . . since the incident in January." The court
remarked that "[w]hat happened in January was incredibly
serious, incredibly frightening, incredibly dangerous not only
to [M.R.M.], but to other people, too." The court further
explained, "[I]f you choose not to believe you have the mental
illness or don't want to take the medications, the person you're
potentially hurting[,] and there's clear and convicting evidence
of that, is not only yourself, but it's others, too." The court
told M.R.M.,
I think that if you are not under the commitment that
you will not take your medication; you will not avail
yourself of the other treatments in addition to
medication and we will be right back where we were in
January and maybe this time somebody really will be
hurt.
The court found, "because of [M.R.M.'s] poor insight into his
having this illness and needing treatment . . . and attempts to
manipulate care providers . . . I'm concerned at the
forcefulness of which he wants to have a weapon back in his
hands." It therefore concluded there was "a substantial
likelihood that [M.R.M.] would again become a proper subject for
treatment relatively quickly and would again be dangerous."
13
No. 2022AP140-FT.akz
¶64 M.R.M. complains that, based on the circuit court's
findings, he "is left to guess what specific threat the circuit
court believed he posed" under Wis. Stat. § 51.20(1)(a)2. This
is simply not true. The circuit court repeatedly voiced its
concern that something similar to the January 2021 incident
where M.R.M. brandished a gun could occur if he was not
recommitted. This was based on both the January 2021 incident
and M.R.M.'s conduct during treatment denying the existence of
his condition. Additionally, the psychiatrist's report and
testimony both referenced M.R.M.'s "impaired judgment." Based
on the circuit court's findings, it takes little effort to
understand the circuit court found M.R.M. would pose "a
substantial probability of physical impairment or injury to
himself . . . or other individuals" due to his "impaired
judgment" under § 51.20(1)(a)2.c. The circuit court relied on
M.R.M.'s treatment record and the psychiatrist's conclusions
from that record, which showed that M.R.M. had "judgment
impaired by paranoid psychosis." The court believed this
affliction could recur, and M.R.M. "would be a proper subject
for commitment if treatment were withdrawn." § 51.20(1)(am).
M.R.M.'s quarrel therefore appears to be with the circuit
court's failure to use "magic words" by either quoting or citing
the applicable subdivision paragraph. D.J.W. does not require
this. Even if it did, we must disregard such an error as
harmless under Wis. Stat. § 51.20(10)(c) because the statutory
basis for M.R.M.'s recommitment is easily discerned from the
record.
14
No. 2022AP140-FT.akz
III
¶65 M.R.M.'s recommitment is devoid of legal error.
Instead of ruling E.J.W. applies retroactively, I would overrule
E.J.W. and conclude M.R.M. waived his right to a jury trial at
his recommitment hearing. E.J.W. was wrong when it was decided,
it remains wrong today, and the majority's failure to overrule
E.J.W. sends our interpretation of Wis. Stat. § 51.20(11)(a)
further out to sea. The majority's conclusions today only serve
to highlight E.J.W.'s error, and we should take this opportunity
to overrule it.
¶66 I also conclude that the circuit court did not run
afoul of our decision in D.J.W. The circuit court thoroughly
explained its factual findings. It is clear the court concluded
there was a substantial likelihood that, if M.R.M. was not
recommitted, M.R.M.'s impaired judgment would again make him a
danger to himself or others and a proper subject for commitment
under Wis. Stat. § 51.20(1)(a)2.c. The circuit court therefore
complied with our instruction in D.J.W. M.R.M.'s argument to
the contrary amounts to a complaint that the circuit court did
not use "magic words" by specifically citing or quoting
§ 51.20(1)(a)2.c. Even if the circuit court's explanation did
not comport with D.J.W., that error would be harmless because we
have no trouble discerning the basis for M.R.M.'s recommitment.
Accordingly, M.R.M.'s recommitment contained no error, and that
recommitment should be affirmed.
¶67 For the foregoing reasons, I respectfully dissent.
15
No. 2022AP140-FT.pdr
¶68 PATIENCE DRAKE ROGGENSACK, J. (dissenting). The
majority opinion concludes that because a commitment extension
order was entered in error due to denial of a jury request that
was deemed untimely, the circuit court lost competency to
proceed further in regard to the effect of M.R.M.'s mental
illness on the State's ability to bring him to trial.1 In so
concluding, the majority opinion directly conflicts with our
decision in Portage Cnty. v. J.W.K., 2019 WI 54, ¶21, 386
Wis. 2d 672, 927 N.W.2d 509, with regard to circuit court
competency for orders issued subsequent to a defective order.
The majority opinion's holding on competency is totally
unnecessary to resolving the jury request issue for which we
granted review and it also has the potential to terminate the
treatment that M.R.M. likely is receiving today based on an
order that would have had to be entered before expiration of the
extension order that we review today.2
1Majority op., ¶3. The majority opinion concludes that a
commitment extension order for M.R.M. entered August 13, 2021 is
invalid because M.R.M.'s request for a jury trial was not
honored based on a decision from this court that occurred after
the circuit court addressed M.R.M.'s jury trial request. To
clarify, the circuit court correctly applied Marathon Cnty v.
R.J.O., 2020 WI App 20, 392 Wis. 2d 157, 943 N.W.2d 898, to
M.R.M.'s jury trial request, which was the controlling law at
the time of the circuit court's decision. I choose not to
address that portion of the majority opinion that deals with
retroactivity.
2The majority opinion ignores that this dissent is grounded
in the findings of four psychiatrists who have personally
examined M.R.M. and have found that he is dangerous due to a
substantial probability of physical harm to himself. While most
people with mental illness are not a danger to themselves or
others, the record before us conclusively shows that M.R.M.
needs medical care because of the substantial probability that
1
No. 2022AP140-FT.pdr
¶69 As I explain below with my review of the record before
us, the majority opinion is wrong under our precedent and it
puts M.R.M. at significant risk of inflicting self-harm and/or
harm to others because the majority opinion makes necessary
medical care more difficult to receive. Accordingly, I
respectfully dissent.
I. BACKGROUND
¶70 In January of 2021, M.R.M. came to the attention of
law enforcement because he was carrying a loaded gun and making
suicidal and homicidal statements. He is reported to have been
"screaming" and "stated several times he was going to kill
people and then himself and at one point said he is Jesus
Christ."3 The gun M.R.M. was waving while he screamed was a
"loaded glock 27 (.40 cal[iber]) pistol, [that had] a round in
the chamber" and seven rounds in the magazine.4
¶71 M.R.M. is reported to have told the admitting nurse at
Aurora Lakeland Emergency Room that "the numbers told him
everyone had to die, and he had to kill himself as well. [He]
stated he has been diagnosed with schizophrenia and bipolar
disorder and would then laugh and say, 'No, I am not.'"5
he will inflict physical harm on himself.
R. 1:
3 Statement of Emergency Detention by Law Enforcement
Officer.
4 Id.R. 1: Village of Genoa City Police Department Incident
5
Report (emphasis added).
2
No. 2022AP140-FT.pdr
¶72 He was transported to Winnebago Mental Health
Institute (WMHI) and was examined initially by three
psychiatrists.6 At the Probable Cause Hearing, Dr. Pjerla
testified:
A [M.R.M.] was admitted to Winnebago on an
emergency detention. So I was to evaluate and assess
whether he required further hospitalization.
Q And what day did the examination occur on?
A The 20th.
. . . .
Q Doctor, can you estimate how much total time
you spent with [M.R.M.]?
A In person over the last two days, maybe 45
minutes. And then reviewing records, talking and
obtaining collateral information, discussing things
with the team, another 45 minutes to an hour.
Q And, Doctor, what records or collateral
information have you been able to review?
A I was able to review the information from the
crisis report, the emergency detention, the emergency
room documentation, some collateral information from
[the] patient's mother as well.
. . . .
Q After your examination of [M.R.M.], do you
have an opinion as to whether he has a mental illness?
A Yes.
Q And what is your opinion?
A I believe he does.
. . . .
6 Dr. Srananthi Pjerla, Dr. Marshall Bales and Dr. Leslie
Taylor are licensed psychiatrists.
3
No. 2022AP140-FT.pdr
Q
Do you have an opinion as to whether [M.R.M.]
is a proper subject for treatment of his mental
illness?
A I believe he is.
. . . .
Q And, Doctor, do you have an opinion as to
whether [M.R.M.] is a danger to himself or to others?
A Yes, I believe he is.
Q And what is the nature of risk that you
believe?
A So I believe that he was dangerous to himself
when he pointed a gun at his head and was threatening
to kill himself. Now, [M.R.M.] has said that he was
not intending to do this, but that he was just
pretending in order to scare his mother. [M.R.M.] has
said that he did not believe that the gun was loaded.
But on review of some of the information, it does
appear that the gun was loaded. So I believe that
[M.R.M.'s] thought process and confusion about reality
contributed to those behaviors and the suicide gesture
or attempt. He also made threats to kill other
people.[ ]
7
¶73 During Dr. Bales's exam, [M.R.M.] repeated he was
Jesus Christ and that "everyone had to die."8 Since admission to
WMHI, M.R.M. admitted "he was intent on killing himself but that
his mother talked him out of it. He was distinctly manic,
hyperverbal, labile, dysphoric, agitated, and defensive, stating
he did not have a mental health problem."9 Dr. Bales found that
7 R. 79 at 6-10: Dr. Pjerla's testimony at probable cause
hearing.
8 R. 21: Report of Examination (by Dr. Bales, M.D.).
9 Id.4
No. 2022AP140-FT.pdr
M.R.M. is dangerous because there is a "substantial probability
of physical harm to himself."10
¶74 Dr. Bales also said:
[M.R.M.] is a 43-year-old Caucasian male who suffers
from a substantial disorder of thought, mood, or
perception. He has been dangerous in ways noted. His
condition is treatable, and he is a proper subject for
treatment. Based on the above, it is my opinion with
a reasonable degree of medical certainty that he does
meet the criteria for a six-month Chapter 51
commitment with an order to treat. The least
restrictive environment is inpatient on a locked
psychiatric unit. At the discretion of his inpatient
treating physician, he can transition to outpatient
care when stable. He will benefit from psychotherapy,
case management, psychiatric care, and other
services.[ ]
11
¶75 Another psychiatrist, Dr. Taylor, also examined
M.R.M., his intake records, talked with his mother and with his
brother-in-law. She confirmed that M.R.M. is dangerous due to a
"substantial probability of physical harm to himself . . . [and]
[a] substantial probability of physical harm to other subjects
as manifested by evidence of recent homicidal or other violent
behavior."12 Based on the above history, M.R.M. was committed
for six months in January 2021.
¶76 In July 2021, Walworth County petitioned to extend
M.R.M.'s commitment, with an adjourned recommitment hearing
scheduled for August 12, 2021. Dr. Robert Rawski testified
about his examination of M.R.M.13 He said that he spent about an
10 Id.11 Id.12 R. 23: Report of Examination (by Dr. Taylor).
13 R. 66: Dr. Rawski is a licensed psychiatrist.
5
No. 2022AP140-FT.pdr
hour and 45 minutes talking to M.R.M. and he spent about three
hours reviewing his records and constructing a report. His
testimony included the following:
Q. [W]hat is your opinion and what is his diagnosis?
A. I believe to a reasonable degree of medical
certainty that [M.R.M.] suffers from schizoaffective
disorder. That is a treatable mental illness. It
features a substantial disorder of thought, mood and
perception that grossly impairs his judgment,
behavior, capacity to recognize reality and the
ability to meet the ordinary demands of life.
. . . .
Q. Do you have an opinion whether based on [M.R.M.]'s
treatment record that he would be a proper subject for
commitment if treatment were withdrawn?
A. Yes. I believe it is a substantial likelihood
that he would exhibit or experience the same type of
symptoms he exhibited back in January with the
associated dangerousness if treatment were
withdrawn. . . . The likelihood of that is
significant given his poor insight into his mental
illness and need for treatment.[14]
¶77 After that hearing, M.R.M. again was found to have a
mental illness that was a proper subject for treatment, and that
he met the statutory standards for dangerousness. The circuit
court signed and entered a commitment extension on August 13,
2021 for 12 months "from the expiration date of the prior
commitment order."15 The "prior commitment order" to which
reference was made is the original commitment that expired
August 12, 2021. Therefore, the extension order that is subject
to these proceedings expired by its terms on August 11, 2022.
14 R. 66 at 11-14.
15 R. 53: Order of Extension of Commitment.
6
No. 2022AP140-FT.pdr
¶78 Given that M.R.M. has a mental illness that causes him
to be a danger to himself and to others, it is likely another
commitment extension was processed on or before August 11, 2022,
such that M.R.M. currently is receiving treatment for his
illness. Because health care records are confidential, we do
not know the current status of his treatment today, but the
record informs us that four licensed psychiatrists have
concluded that he is dangerous to himself and to others.
II. DISCUSSION
¶79 The majority opinion concludes that the circuit
court's denial of a jury trial in regard to the one year
extension order that began in August 2021 and expired in August
2022 was a "failure to enter a lawful extension order before the
preceding order expires," and results in the circuit court
losing competency to conduct further proceedings. It cites an
unpublished court of appeals decision to support its
conclusion.16
¶80 In briefing, M.R.M. addressed the relevance of
competency very differently from the position of the majority
opinion herein. In his briefing, M.R.M. explained "it's whether
a reviewing court that deems an unexpired commitment order
unlawful should reverse it outright or also remand the case for
a new trial. . . . [However, the] circuit court cannot hold a
new trial on an old commitment petition, as it will invariably
Majority op., ¶24, citing Shawano Cnty. v. S.L.V.,
16
No. 2021AP223, unpublished slip op., ¶20 (Wis. Ct. App. Aug. 17,
2021).
7
No. 2022AP140-FT.pdr
lose competency before remand [to hold a new trial]."17 The
majority opinion's conclusion that the circuit court loses
competency to conduct further proceedings presents an unlimited
loss of competency, far beyond M.R.M.'s position that competency
to hold a new trial within the time frame of the extension order
likely would be lacking.
¶81 The majority also concludes that the date the one year
extension order expired is "irrelevant because the circuit court
lost competency to hold an extension hearing when the preceding
commitment order expired." The majority opinion again cites an
unpublished court of appeals decision to support its assertion.18
¶82 What is unstated, but held nonetheless by the majority
opinion, is that once an order is determined to be unlawful any
orders that are connected to that order are also invalid because
the circuit court had no competency to issue valid subsequent
orders. This creates the same "domino theory" that we held in
J.W.K. "[was] not supported by the text of the statute."
J.W.K., 386 Wis. 2d 672, ¶21.
¶83 To explain further, in J.W.K. we held: "Reversing the
expired 2016 order for insufficient evidence would have no
effect on subsequent recommitment orders because later orders
stand on their own under the language of the statute." Id., ¶1
(emphasis added). J.W.K. had argued, similar to what the
17 M.R.M. brief, p. 13.
18Majority op., ¶24 (citing Eau Claire Cnty. v. J.M.P.,
2020AP2014-FT, unpublished slip op., ¶21 (Wis. Ct. App. June 22,
2021).
8
No. 2022AP140-FT.pdr
majority holds today, that "reversal of the 2016 order would
mean the circuit court lacked competency to issue the 2017
extension order." Id., ¶15.
¶84 The majority opinion says, "There is an important
difference, however, between how we evaluate the validity of a
commitment order, as in J.W.K., and how we determine whether a
circuit court has competency, as in this case."19 That may be
true, but prior to this matter, circuit courts did not lose
competency to issue orders prior to the preceding order's
expiration date even if an order was later declared unlawful.
¶85 Here, the extension order was held unlawful because a
jury trial was denied and a loss of competency followed.20 In
J.W.K., "An appellate court's later conclusion that the evidence
was insufficient to support the August 2016 extension order
would not retroactively change the fact that at the time the
circuit court entered the extension order in July 2017, the
prior order had not expired; therefore, the circuit court
retained competency to enter the unchallenged July 2017 order."
Id., ¶22.
¶86 We explained in J.W.K. Wis. Stat. § 51.20(13)(g)1.
contemplates "consecutive orders of commitment," and as long as
"the extension is made prior to the expiration of the previous
commitment order, the circuit court may order the extension if
19 Majority op., ¶26.
"Accordingly, the failure to enter a lawful extension
20
order before the preceding order expires results in a loss of
competency." Id., ¶24.
9
No. 2022AP140-FT.pdr
the County proves its case under the statutory criteria." Id.,
¶21.21 We also concluded that "reversing the [earlier]
commitment order does not retroactively deprive the circuit
court that issued a subsequent commitment order of competency."
Id. Our holding rejected the concurrence/dissent's position in
J.W.K..22
¶87 It is the same "loss of competency" contention that we
rejected from the dissent in J.W.K. that the majority opinion
articulates in the case now before us: "[B]ecause the circuit
court denied M.R.M.'s timely jury demand, its extension order is
unlawful. And because the preceding commitment order has
expired, the circuit court lacks competency to conduct
proceedings on remand."23
¶88 The majority opinion cites G.O.T. v. Rock Cnty., 151
Wis. 2d 629, 445 N.W.2d 697 (Ct. App. 1989) to support its
The concurrence/dissent in Portage Cnty. v. J.W.K., 2019
21
WI 54, ¶36, 386 Wis. 2d 672, 927 N.W.2d 509, (Dallet, J.,
concurring/dissenting), also argued that if an extension order
was invalid the "chain of commitment was broken" and the county
had to begin the commitment process as though there had been no
prior finding of incompetence.
In J.W.K. we rejected the same competency argument the
22
majority holds in favor of today:
If current dangerousness was not established at the
August 2016 extension hearing, the August 2016
extension was invalid. As such, the initial
commitment order would have expired prior to it being
extended and the circuit court would have lacked
competency to enter any subsequent extension orders.
Id., ¶34 (Dallet, J., concurring/dissenting) (emphasis
added).
23 Majority op., ¶27.
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global, prospective loss of competency.24 In G.O.T., the circuit
court repeatedly extended a commitment beyond the amount of time
that Wis. Stat. § 51.20(13)(g) permitted, and the court of
appeals concluded that the circuit court did not have competency
to ignore a statutory directive. Id. at 633. G.O.T. reviewed a
past court act. It did not establish a prospective loss of
competency for "any subsequent extension orders," as the
majority opinion has done.
¶89 There are real-life dangers in setting up a "domino
effect" whenever the circuit court makes an error that causes
the overturning of all subsequent orders. One is that a
majority opinion of this court takes away the only means the
State has to protect a repeatedly dangerous person from harm to
himself and/or to others.
¶90 The extension order under review here, by its terms,
expired in August of 2022. It is likely that an extension of
treatment was ordered then. If so, subsequent treatment would
be on-going now; however, the majority opinion has the potential
to terminate it with its conclusion that the circuit court
lacked competency to issue subsequent extension orders.
III. CONCLUSION
¶91 The record before us clearly shows that four
psychiatrists have concluded that M.R.M. is dangerous because he
is substantially likely to cause physical harm to himself and/or
others. Concluding that circuit courts lack competency to
provide needed care for an individual that is dangerous to
24 Id., ¶19.
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himself and others is unsupported in the law and irresponsible.
Accordingly, I respectfully dissent.
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No. 2022AP140-FT.pdr
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