S.P.B. v. S.P.B.

NETTESHEIM, P.J.

(dissenting). The majority opinion writes the harmless error doctrine and the provisions of sec. 805.18, Stats., out of the law when a supreme court directive is violated unless the supreme court has expressly permitted application of the doctrine. The majority reasons that the supreme court's administrative directive in In re D.S., 142 Wis. 2d 129, 416 N.W.2d 292 (1987), mandates this result. I respectfully disagree.

The law of harmless error is essentially codified in sec. 805.18, Stats., which provides:

Mistakes and omissions; harmless error. (1) The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.
(2) No judgment shall be reversed or set aside or new trial granted in any action or proceeding... for error as to any matter of pleading or procedure, unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure a new trial.

*398It is important to put this case in its proper context for purposes of the issues presented on this appeal. The trial court in this case originally entered an order for recommitment against S.P.B. on November 13, 1989. S.P.B. then applied for post-commitment relief, arguing pursuant to D.S. that the petition for recommitment was drafted by the wrong person. S.P.B. made no claim that this irregularity affected any of his substantial rights. Indeed, no such claim could have been made. A review of the record reveals a full and complete protection of S.P.B.'s rights. The court, however, granted S.P.B.'s request and set aside the recommitment order based upon its reading of D.S. The court, reluctant to order a new trial based on such a technical objection, nonetheless concluded, like the majority, that a harmless error analysis was not permitted under D.S.

Waukesha county appeals this latter ruling. The county argues that if the trial court had applied sec. 805.18, Stats., the question would have been whether the error in pleading affected a substantial right of S.P.B. such that the judgment should be set aside pursuant to subsec. (2) of the statute.

This appeal really presents two levels of "error": first, the conceded error that the wrong person drafted the recommitment petition; and, second, the alleged error by the trial court in refusing to apply a harmless error analysis. I would hold that a decision whether to set aside a judgment under sec. 805.18(2), Stats., is committed to the trial court's discretion. An abuse of discretion can occur where the trial court applied the wrong legal standard. Oostburg State Bank v. United Sav. & Loan Ass'n, 130 Wis. 2d 4, 11-12, 386 N.W.2d 53, 57 (1986).

Thus, the question narrows to whether the supreme court's language in D.S. directing circuit judges "hence*399forth to refuse to accept petitions drafted by persons not authorized to do so under sec. 51.20(4), Stats.," D.S., 142 Wis. 2d at 136-37, 416 N.W.2d at 295, precludes a harmless error analysis under sec. 805.18, Stats. I conclude that this reconciling of D.S. and sec. 805.18 presents a question of law.

The supreme court issued its directive in D.S. pursuant to its superintending and administrative capacity under art. VII, sec. 3, of the Wisconsin Constitution. The majority holds that when a directive issued under this authority is not followed, both trial and appellate review of the violation may not inquire into harmless error considerations. Understandably, no authority for this conclusion is cited because none exists.

The logic of the majority's conclusion escapes me. Even errors of constitutional dimension are subject to the harmless error doctrine. State v. Shadow, 106 Wis. 2d 440, 448, 317 N.W.2d 150, 154 (Ct. App. 1982). I hold the same respect for supreme court directives as does the majority, but I question whether violations of such directives are entitled to the elevated trial and appellate deference conferred by the majority opinion.

The majority fears that a failure to apply the D.S. directive literally would result in the directive being rendered meaningless. Majority op. at 397, 464 N.W.2d at 104. However, the same cán be said for any other trial court error when the mandate of a case, a statute, or a constitutional provision is not followed. In such a situation, that case, that statute, or that constitutional provision is also "rendered meaningless." Yet, we do not hesitate to apply harmless error principles in such cases if appropriate.

The majority also concludes that had the supreme court in D.S. wished its directive to allow for a harmless error analysis, it would have said so. I suggest that the *400opposite should pertain. We should not read supreme court decisions to cancel out other statutes or rules. In effect, the supreme court directive in D.S. is akin to a further supreme court rule. We strive to interpret statutes and rules so that all will be operative. See Schinner v. Schinner, 143 Wis. 2d 81, 91, 420 N.W.2d 381, 385 (Ct. App. 1988). There is nothing so antagonistic between a supreme court directive on the one hand and the harmless error doctrine on the other that the two cannot comfortably be applied in this or any other case. This fact is clearly driven home in D.S: itself where the supreme court applied the harmless error doctrine in the face of the violation. (See also State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), where the supreme court applied the harmless error doctrine in the face of a violation of its directive relating to the taking of guilty or no contest pleas. There, the court also anticipated future application of the doctrine in such cases by the trial and appellate courts. Id. at 276, 389 N.W.2d at 27.)

The majority opinion, giving D.S. a "prophylactic" reading, precludes any trial court or appellate inquiry under sec. 805.18(2), Stats., as to the effect of a drafting irregularity upon the integrity of the trial court proceedings. Instead, the drafting error in this case, conceded by the parties, the trial court and the majority to be nonju-risdictional and nonprejudicial, somehow becomes fatal to the judgment entered in the trial court. This is contrary to the law of harmless error and the provisions of sec. 805.18(2). Such an approach elevates form over substance. S.P.B. is guaranteed not only the "fair" trial, but the "perfect" trial — a laudable goal but one rarely attained and never required in the law.

I conclude that the trial court was correct in its initial reluctance to grant relief on such a technicality. I conclude that the court erred in its ultimate conclusion *401that D.S. precludes a harmless error analysis. This error of law renders the court's decision to set aside the judgment an abuse of discretion. As a result, the court must now conduct a new recommitment trial for no valid or compelling reason. This is precisely what sec. 805.18(2), Stats., was intended to prevent. I dissent.