2019 WI 66
SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP1468
COMPLETE TITLE: In the matter of the mental commitment of
S.L.L.:
Waukesha County,
Petitioner-Respondent,
v.
S.L.L.,
Respondent-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 382 Wis. 2d 832,917 N.W.2d 234
(2018 – unpublished)
OPINION FILED: June 12, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 11, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: William Domina
JUSTICES:
CONCURRED:
DISSENTED: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,
J. and DALLET, J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
filed by Colleen D. Ball, assistant state public defender. There
was an oral argument by Colleen D. Ball.
For the petitioner-respondent, there was a brief filed by
Robert J. Mueller, corporation counsel. There was an oral
argument by Robert J. Mueller.
2019 WI 66
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1468
(L.C. No. 2016ME478)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the mental commitment of
S.L.L.:
Waukesha County,
FILED
Petitioner-Respondent, JUN 12, 2019
v. Sheila T. Reiff
Clerk of Supreme Court
S.L.L.,
Respondent-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DANIEL KELLY, J. Ms. L. challenges an order
extending her commitment to the care and custody of Waukesha
County pursuant to Chapter 51 of our Wisconsin statutes. She
raises three issues for our review. First, she says the circuit
court lacked jurisdiction over her when it entered an order
extending her commitment. Second, she says the circuit court
had no statutory authority to enter a default judgment against
her for failing to appear at a scheduled hearing. And third,
she asserts there was insufficient evidence of record to support
No. 2017AP1468
the circuit court's order extending her commitment. All three
issues are moot, but we choose to address the first two. For
the reasons below, we affirm the court of appeals.
I. BACKGROUND
¶2 On August 10, 2016, the Waukesha County Sheriff's
Department detained Ms. L. on an emergency basis pursuant to
Wis. Stat. § 51.15(1) (2017-18).1 That statute allows emergency
detention when an individual: (1) is mentally ill, drug
dependent, or developmentally disabled; (2) demonstrates one or
more of the behaviors listed in the statute; and (3) gives
reason to believe the individual is unable or unwilling to
cooperate with voluntary treatment.2
1
All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
2 Wisconsin Stat. § 51.15(1) provides, in relevant part:
(ag) The purpose of this section is to provide, on an
emergency basis, treatment by the least restrictive
means appropriate to the individual's needs, to
individuals who meet all of the following criteria:
1. Are mentally ill, drug dependent, or
developmentally disabled.
2. Evidence one of the standards set forth in
par. (ar) 1. to 4.
3. Are reasonably believed to be unable or unwilling
to cooperate with voluntary treatment.
(continued)
2
No. 2017AP1468
¶3 An emergency detention under Wis. Stat. § 51.15 is
initiated by completing the form entitled "Statement of
Emergency Detention by Law Enforcement Officer" (the
"Statement"). The completed Statement must detail the subject's
condition and the reasons that make detention necessary. In
this case, the Statement says Ms. L. suffered from anxiety and
depression (for which she was taking no medication), was
homeless and without money or food, exhibited very poor hygiene,
and experienced at least six encounters with law enforcement
over the preceding 48 hours for "disorderly issues," which
included having taken "a swing at a courthouse employee." The
Deputy who completed the Statement concluded that Ms. L. was
"mentally ill, drug dependent, or developmentally disabled,"
"evidence[d] behavior which constitutes a substantial
(ar) A law enforcement officer . . . may take an
individual into custody if the officer or person has
cause to believe that the individual is mentally ill,
is drug dependent, or is developmentally disabled,
that taking the person into custody is the least
restrictive alternative appropriate to the person's
needs, and that the individual evidences any of the
following:
. . . .
4. Behavior manifested by a recent act or omission
that, due to mental illness, he or she is unable to
satisfy basic needs for nourishment, medical care,
shelter, or safety without prompt and adequate
treatment so that a substantial probability exists
that death, serious physical injury, serious physical
debilitation, or serious physical disease will
imminently ensue unless the individual receives prompt
and adequate treatment for this mental illness.
3
No. 2017AP1468
probability of physical harm to self or to others," and that
taking Ms. L. into custody was "the least restrictive
alternative appropriate" to her needs. The Deputy also noted
that Ms. L. was dangerous, appeared to talk to others when no
one else was present, and "had no rational explanation for her
basic needs[.]" Ms. L. was taken into custody, transported to
Waukesha Memorial Hospital for medical clearance, and then
brought to the Waukesha County Mental Health Center ("MHC").
¶4 The Sheriff's Department filed the Statement with the
Waukesha County Circuit Court on August 11, 2016. This "has the
same effect as a petition for commitment under s. 51.20," and
requires a probable-cause hearing pursuant to Wis. Stat.
§ 51.20(7) within 72 hours. Wis. Stat. § 51.15(5). The hearing
occurred the next day, and the circuit court commissioner found
probable cause to believe Ms. L. was "dangerous to self or
others." The circuit court scheduled a final hearing for August
30, 2016.
¶5 Ms. L. appeared and testified at the final hearing as
scheduled. The circuit court found her mentally ill and ordered
her committed to the care and custody of Waukesha County for six
months with inpatient placement at the MHC (the "Initial
Commitment").3 The circuit court also found she was not
competent to refuse psychotropic medication or treatment, and so
authorized the involuntary administration of medication during
the period of commitment. Ms. L. responded well to the
3 The Honorable William J. Domina presided.
4
No. 2017AP1468
treatment, so the County executed a Conditional Transfer
allowing her to leave the MHC and reside elsewhere (the
"Transfer"). Ms. L. signed the Transfer, thereby evidencing her
agreement that she would abide by the Transfer's requirements,
which included taking all prescribed medications, complying with
all ongoing treatment and activities recommended by the Waukesha
County Health and Human Services Department, and notifying the
County if she changed her address from the one listed in the
Transfer. The Transfer also stated that if she failed to comply
with its conditions she would "be returned to an inpatient
facility for further disposition and treatment." Ms. L. left
the MHC on September 8, 2016. She attended an appointment to
receive medication on November 2, 2016, but thereafter absconded
from treatment.4 She also failed to keep the County updated on
her current address.
¶6 Prior to expiration of Ms. L.'s Initial Commitment,
the County applied to the circuit court for a 12-month extension
of her commitment (the "Extension Petition"). It alleged that
Ms. L. had fallen out of compliance with the Transfer's
conditions by missing scheduled treatments and failing to keep a
4
The dissent says our use of the word "abscond" is
misleading because Black's Law Dictionary defines that term to
mean "[t]o depart secretly or suddenly, esp. to avoid arrest,
prosecution, or service of process." Dissent, ¶50 n.3. She
departed from her treatment program "secretly" by failing to
periodically return for therapy, and by moving from her declared
address without letting the County know. That is to say,
according to Black's Law Dictionary, she absconded from
treatment.
5
No. 2017AP1468
current address on file.5 The circuit court scheduled a hearing
on the Extension Petition for February 28, 2017 (the "Extension
Hearing"). It also ordered a pre-hearing examination of Ms.
L.'s mental condition.6 Notice of the Extension Hearing was sent
to Ms. L.'s last known address and to her appointed counsel.
The notice included the time and place of the hearing, identity
of the witnesses who would appear, the topics of their
anticipated testimony, and the Extension Petition. The copy of
the notice sent to Ms. L. was returned as undeliverable.
¶7 The Extension Hearing commenced as scheduled, with Ms.
L. in absentia but represented by appointed counsel.7 Because of
Ms. L.'s absence, the County asked the circuit court to issue a
writ of capias and to reschedule the hearing for a week
following her return to the MHC. It also asked the circuit
court to toll the expiration of the Initial Commitment pending
5
The County notes that her last listed address (as of
October 3, 2016) was the Cathedral Center in Milwaukee. But
upon contacting the Cathedral Center, the County discovered that
the center banned her from staying there "due to her behavior."
6
Ms. L. failed to either schedule or appear for these
examinations. However, both physicians, without examining her,
opined that she was mentally ill, that she was dangerous, and
that she was a proper subject for treatment. They both relied
on the recommitment report prepared by Ms. L.'s caseworker a few
weeks before the Extension Hearing. The physician reports were
similar in most respects except that one physician recommended
out-patient treatment and the other recommended locked inpatient
treatment.
7
Her counsel said he had not communicated with Ms. L. prior
to the hearing and did not know her whereabouts. The County did
not know where she was either.
6
No. 2017AP1468
the rescheduled hearing date. The circuit court, however,
turned its attention to whether it had jurisdiction over Ms. L.
Her attorney affirmed she was "subject to the jurisdiction of
the Court through the pendency of the order." The circuit court
then concluded that Ms. L. had "submitted to the jurisdiction of
the Court," and that "[s]he has not appeared here today" so
"[s]he's in default of her right to object." Relying on the
physician reports and the County's extension petition, the
circuit court found that Ms. L. was still mentally ill, a
resident of Waukesha County, and a proper subject for inpatient
treatment and commitment. So it entered an order extending her
commitment for twelve months, and a separate order authorizing
the County to involuntarily medicate her during the pendency of
the commitment (we will refer to the two orders collectively as
the "Extension Order"). The circuit court also issued a writ of
capias.
¶8 Ms. L. appealed. During the pendency of the appeal,
the County moved the circuit court to dismiss the matter because
the Extension Order would accomplish nothing unless Ms. L. could
be located and returned to treatment. The circuit court granted
the motion and cancelled both the writ of capias and the
Extension Order. The County then moved to dismiss the appeal as
moot. The court of appeals initially denied the County's
request, but subsequently issued a one-judge opinion granting
the motion.
¶9 Ms. L.'s petition for review (which we granted)
presents the following three substantive issues. First, whether
7
No. 2017AP1468
the circuit court had personal jurisdiction over her for the
purpose of issuing the Extension Order.8 Second, whether she is
subject to a default ruling for failing to appear at the
Extension Hearing. And third, whether a Chapter 51 extension
order based on reports of physicians who never examined her nor
testified at the Extension Hearing is defective for lack of
sufficient evidence or because it violates the respondent's due
process rights. Ms. L. recognizes that her case's procedural
posture potentially implicates our mootness doctrine, but argues
her issues are either not moot or are of the type we address
even when they are.
II. STANDARD OF REVIEW
¶10 We review the circuit court's jurisdiction over Ms. L.
de novo. Segregated Account of Ambac Assurance Corp. v.
Countrywide Home Loans, Inc., 2017 WI 71, ¶7, 376 Wis. 2d 528,
898 N.W.2d 70 ("Whether Wisconsin courts have personal
jurisdiction . . . is a question of law we review de novo,
although we benefit from the analyses of the circuit court and
court of appeals."); State v. Aufderhaar, 2005 WI 108, ¶10, 283
Wis. 2d 336, 700 N.W.2d 4 ("Due process determinations are
questions of law we decide de novo."). Whether Chapter 51
allows for entry of default against a respondent for failing to
appear at a final recommitment hearing is also a question of law
we review de novo. State v. Alger, 2015 WI 3, ¶21, 360
8Chapter 51 indifferently uses "recommitment" and
"extension of a commitment," so we will as well. Portage Cty.
v. J.W.K., 2019 WI 54, ¶1 n.1, __ Wis. 2d __, __ N.W.2d __.
8
No. 2017AP1468
Wis. 2d 193, 858 N.W.2d 346 ("The interpretation and application
of a statute present questions of law that this court reviews de
novo while benefitting from the analyses of the court of appeals
and circuit court."). We review a circuit court's decision on
whether default judgment is warranted for an erroneous exercise
of discretion because "the decision to grant a motion for
default judgment is within the sound discretion of the circuit
court." Shirk v. Bowling, Inc., 2001 WI 36, ¶15, 242
Wis. 2d 153, 624 N.W.2d 375. We review the threshold issue
(mootness) de novo: "Mootness is a question of law that we
review independently of the determinations rendered by the
circuit court and the court of appeals." PRN Assocs. LLC v.
DOA, 2009 WI 53, ¶25, 317 Wis. 2d 656, 766 N.W.2d 559.
III. DISCUSSION
A. Personal Jurisdiction
¶11 Ms. L. says the circuit court did not have
jurisdiction over her when it entered the Extension Order. Her
challenge is two-fold. First, she argues that the County was
obliged to personally serve her with notice of the Extension
Hearing. Second, she asserts that the Extension Petition and
accompanying documents were deficient. An extension petition,
she says, must satisfy the conditions of Wis. Stat. § 51.20(1),
which requires the petition to allege she is mentally ill, a
proper subject for treatment, and dangerous. She says the
petition must also contain a clear and concise statement of
facts in support of those allegations. If the County fails with
9
No. 2017AP1468
respect to either prong of her challenge, she argues, the
circuit court can exercise no jurisdiction over her.
¶12 Ms. L. is correct that a court does not have
jurisdiction over a party unless the circumstances of the case
satisfy both statutory and constitutional requirements. We have
noted before that complying with the "statutory provisions
regarding service of process is required before a [] court has
personal jurisdiction." Aufderhaar, 283 Wis. 2d 336, ¶27.
Naturally, the assertion of personal jurisdiction must also
comport with the due process clause of the Fourteenth Amendment.
Bristol-Myers Squibb Co. v. Superior Court of California, 137
S. Ct. 1773, 1779 (2017) ("It has long been established that the
Fourteenth Amendment limits the personal jurisdiction of state
courts.").
¶13 So if Ms. L. is right about having not received proper
notice, the Extension Order was void from the beginning.
"Personal jurisdiction" embodies the court's power over a party,
without which it can enter no valid judgment. State v. Smith,
2005 WI 104, ¶18, 283 Wis. 2d 57, 699 N.W.2d 508 ("Personal
jurisdiction . . . refers to a court's power 'to enter a
judgment in personam against an individual party.'") (quoted
source omitted); West v. West, 82 Wis. 2d 158, 167–68, 262
N.W.2d 87 (1978) ("Because personal jurisdiction was not
acquired over the defendant . . . the trial judge correctly
concluded that the judgment . . . was void."); see also 21
C.J.S. Courts § 44 ("Jurisdiction of the person is the power of
a court to bring before it the person to be affected by the
10
No. 2017AP1468
judgment and to render a judgment binding on that person.").
Before reaching the merits of the jurisdictional issue, however,
we must first decide whether it is prudent to do so.
1. Mootness
¶14 When a court purports to exercise authority with
respect to a party over whom it has no jurisdiction, the remedy
is normally vacatur of the offending order. As a practical
matter, however, that has already occurred in this case. The
Extension Order was valid for only one year, so by its own terms
it could have no authority beyond the end of February 2018. And
the circuit court dismissed the entirety of this matter and
canceled the writ of capias, so there are no further orders that
could even potentially issue from this case. Regardless of how
we resolve the jurisdictional question, therefore, our answer
will not affect Ms. L.'s rights. "Ordinarily, this court, like
courts in general, will not consider a question the answer to
which cannot have any practical effect upon an existing
controversy." State v. Leitner, 2002 WI 77, ¶13, 253
Wis. 2d 449, 646 N.W.2d 341 (footnote omitted). Such questions
are moot, and we generally do not review them. Id.
¶15 But sometimes issues come to us that present, because
of their characteristics or procedural posture, a need for an
answer that outweighs our concern for judicial economy. We
might decide a moot question, for example, if it is "capable and
likely of repetition and yet evades review because the appellate
process usually cannot be completed and frequently cannot even
be undertaken within the time that would have a practical effect
11
No. 2017AP1468
upon the parties." Id., ¶14 (footnote omitted). We also might
decide such a question if it is one "of great public
importance." Id.
¶16 Both of these considerations bear on Ms. L.'s
jurisdictional challenge. In the normal course of appellate
proceedings, Chapter 51 commitment orders will expire before we
have a chance to review them because their maximum statutory
duration is only one year. Wis. Stat. § 51.20(13)(g)1. ("[A]ll
subsequent consecutive orders of commitment of the individual
may be for a period not to exceed one year."). And because
commitment orders affect a profound liberty interest, it is a
matter of great public importance that issuing courts properly
evaluate their jurisdiction over respondents. Addington v.
Texas, 441 U.S. 418, 425 (1979) ("This Court repeatedly has
recognized that civil commitment for any purpose constitutes a
significant deprivation of liberty that requires due process
protection."). These two considerations convince us that we
must address the merits of Ms. L.'s jurisdictional issue, even
though it is moot.
2. Persistency of Personal Jurisdiction
¶17 The success of Ms. L.'s argument depends, in large
part, on her position that the Extension Petition represents the
initiation of a new proceeding that cannot commence without all
of the statutory and constitutional requirements attendant upon
the commencement of an initial commitment proceeding. That is
to say, Ms. L. assumes the circuit court lost jurisdiction over
her sometime before the Extension Hearing, and that service of a
12
No. 2017AP1468
new petition (containing all of the material required by Wis.
Stat. § 51.20(1)) was necessary before it could regain that
jurisdiction. Neither the relevant statutory provisions nor our
cases support that proposition.
¶18 Our analysis begins with Wis. Stat. § 51.20(13)(g)3.,
which contains the statutory basis for extending an individual's
commitment.9 In relevant part, it says:
Upon application for extension of a commitment by the
department or the county department having custody of
the subject, the court shall proceed under subs. (10)
to (13). If the court determines that the individual
is a proper subject for commitment as prescribed in
sub. (1) (a) 1. and evidences the conditions under
sub. (1) (a) 2. or (am) or is a proper subject for
commitment as prescribed in sub. (1) (ar), it shall
order judgment to that effect and continue the
commitment. The burden of proof is upon the county
department or other person seeking commitment to
establish evidence that the subject individual is in
need of continued commitment.
§ 51.20(13)(g)3.
¶19 This paragraph provides textual indications that
extension of a commitment does not comprise a new and separate
proceeding. The first indication lies in the fact that the
County files an "application for extension of a commitment."
This necessarily establishes that there is a pre-existing
commitment because one cannot extend what does not already
9
See State ex rel. Kalal v. Circuit Court for Dane Cty.,
2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 ("[S]tatutory
interpretation 'begins with the language of the statute. If the
meaning of the statute is plain, we ordinarily stop the
inquiry.'") (quoted source omitted).
13
No. 2017AP1468
exist. It also demonstrates the essential connection between
the commitment and the extension proceeding inasmuch as a
successful application will affect——"extend"——the original
commitment. Second, the circuit court may only extend the
commitment of an individual already in the County's custody.
Wis. Stat. § 51.20(13)(g)3. ("Upon application for extension of
a commitment by the department or the county department having
custody of the subject . . . .") (emphasis added). The
"custody" to which this refers, of course, is "care and
commitment" pursuant to an existing order. Third, the County
bears the burden of proving the need for "continued" commitment.
Id. ("The burden of proof is upon the county department or other
person seeking commitment to establish evidence that the subject
individual is in need of continued commitment."). And finally,
if the County's request is successful, then the circuit court
orders the subject's commitment to continue, not commence: "If
the court determines that the individual is a proper subject for
commitment . . . it shall order judgment to that effect and
continue the commitment." Id. Nothing in this paragraph so
much as hints that a commitment extension is a proceeding that
is either new, or separate from, the initial commitment. To the
contrary, the statute's language demonstrates a logical and
textual continuity that cannot be interrupted without loss of
meaning.
¶20 The continuity of original and extended commitment
proceedings is not a new subject for us. We addressed this
issue in the context of a request for substitution of judge in
14
No. 2017AP1468
State ex rel. Serocki v. Circuit Court For Clark County, 163
Wis. 2d 152, 471 N.W.2d 49 (1991). There, we concentrated on
the purpose of the extension proceeding, which was to evaluate
the continuing needs of the committed individual. Id. at 159-60
(quoting M.J. v. Milwaukee Cty. Combined Cmty. Serv. Bd., 122
Wis. 2d 525, 530-31, 362 N.W.2d 190 (Ct. App. 1984)). We
reasoned that "[t]his description of the purpose of the
recommitment hearing and the evidence to be presented support
the respondent's argument that at the recommitment hearing the
circuit court continues to receive evidence in the same case."
Serocki, 163 Wis. 2d at 160 (emphasis added). We concluded,
therefore, "that the legislature intended an individual's
recommitment hearing to be, in the context of a request for
substitution, a continuation of the original commitment
proceeding and previous recommitment hearings." Id.10
¶21 Although Serocki's specific holding was limited to the
context of a substitution of judge request, its logic
inescapably applies here as well. In fact, Serocki and Ms. L.'s
argument are entirely incompatible. Ms. L. says the extension
petition institutes a new proceeding, separate and apart from
10We said the same thing inversely, too. If the person is
not already subject to a commitment order, then a proceeding
that results in commitment is an original proceeding: "The
petitioner apparently was not under any commitment order or in
custody from September 9, 1988, until September 18, 1989. Thus
the September 1989 commitment proceeding is an original
commitment proceeding." State ex rel. Serocki v. Circuit Court
For Clark Cty., 163 Wis. 2d 152, 155 n.2, 471 N.W.2d 49 (1991).
15
No. 2017AP1468
the initial commitment. But Serocki says the extension hearing
is part of the same case from whence the initial commitment
arose: "[A]t the recommitment hearing the circuit court
continues to receive evidence in the same case." Id. (emphasis
added). During the pendency of a case, personal jurisdiction is
not perishable; there is no need to periodically refresh it.
The court either does, or it does not, have jurisdiction over
the person. If it does, it persists to the end of the case.
Ms. L. has presented no authority, or argument, to the contrary.
We conclude that, for purposes of personal jurisdiction, an
extension hearing is "a continuation of the original commitment
proceeding and previous recommitment hearings." Id. Therefore,
the circuit court still had jurisdiction over Ms. L. when it
conducted the Extension Hearing and entered the Extension
Order.11
3. Required Notice Content
¶22 With that backdrop, we now consider the nature of
notice the County must provide to Ms. L. before conducting the
11Although the dissent does not say so explicitly, the
author appears to disagree with our conclusion that, for
jurisdictional purposes, an extension hearing is a continuation
of the original commitment proceedings. So the dissent says
"because the service provisions of Wis. Stat. § 51.20(10) were
not followed [with respect to notice of the Extension Hearing],
the circuit court lacked personal jurisdiction over S.L.L."
Dissent, ¶57 n.9. However, based on our conclusion above,
service of the notice can have no jurisdictional impact because
at no point prior to the Extension Hearing did the circuit
court's jurisdiction over Ms. L. lapse.
16
No. 2017AP1468
Extension Hearing. The procedural rules governing extension
hearings appear in Wis. Stat. § 51.20(13)(g)3: "Upon
application for extension of a commitment by the department or
the county department having custody of the subject, the court
shall proceed under subs. (10) to (13)." This, in turn,
incorporates our rules of civil procedure (except to the extent
they conflict with Chapter 51): "Except as otherwise provided
in this chapter, the rules of evidence in civil actions and s.
801.01(2)[12] apply to any judicial proceeding or hearing under
this chapter." § 51.20(10)(c).
¶23 The combination of these procedural rules require the
County to serve on Ms. L. three items prior to the Extension
Hearing. First, by virtue of the incorporation of Wis. Stat.
§ 801.14,13 the County must serve the Extension Petition itself.
12 Wisconsin Stat. § 801.01(2) provides:
Chapters 801 to 847 govern procedure and practice in
circuit courts of this state in all civil actions and
special proceedings whether cognizable as cases at
law, in equity or of statutory origin except where
different procedure is prescribed by statute or rule.
Chapters 801 to 847 shall be construed, administered,
and employed by the court and the parties to secure
the just, speedy and inexpensive determination of
every action and proceeding.
13 Wisconsin Stat. § 801.14(1), in pertinent part,
provides:
Every order required by its terms to be served, every
pleading unless the court otherwise orders because of
numerous defendants, every paper relating to discovery
required to be served upon a party unless the court
otherwise orders, every written motion other than one
which may be heard ex parte, and every written notice,
(continued)
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No. 2017AP1468
Second, notice of the Extension Hearing must be served pursuant
to Wis. Stat. § 51.20(10)(a) ("Within a reasonable time prior to
the final hearing, the petitioner's counsel shall notify the
subject individual and his or her counsel of the time and place
of final hearing."). And third, "[w]ithin a reasonable time
prior to the final hearing, each party shall notify all other
parties of all witnesses he or she intends to call at the
hearing and of the substance of their proposed testimony." Id.
And although they need not be served, Ms. L.'s counsel must have
"access to all psychiatric and other reports 48 hours in advance
of the final hearing." § 51.20(10)(b).
¶24 Ms. L. says that is not enough. She contends that the
County must serve on her, prior to the Extension Hearing, a
"clear and concise statement of the facts that constitute
probable cause to believe the allegations of the petition."
According to Ms. L., the Extension Petition was deficient
because it did not establish probable cause to believe she is
mentally ill, a proper subject for treatment, and dangerous
within the meaning of Wis. Stat. §§ 51.20(1)(a)2. or
51.20(1)(am). But Ms. L. takes those specifics from § 51.20(1),
which governs an initial petition for examination, not a
petition for extension of a commitment. Although the County
must establish all of those elements at the Extension Hearing,
appearance, demand, offer of judgment, undertaking,
and similar paper shall be served upon each of the
parties. . . .
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No. 2017AP1468
there is no statutory mandate that it must serve a document with
such a factual recitation in advance.14 As discussed above, the
procedure for extending a person's commitment is governed by
Wis. Stat. § 51.20(10) through (13), not § 51.20(1). Ms. L.
identifies nothing in the procedures governing extension
hearings that requires service of a document containing the
information she demands. Therefore, there is no statutory
support for Ms. L.'s position.
¶25 Nor did the content of the County's notice fail any
due process requirements. "[D]ue process is flexible and calls
for such procedural protections as the particular situation
demands." Mathews v. Eldridge, 424 U.S. 319, 334 (1976)
(quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)
(alteration in original)). That broad principle applies to the
contents of the Extension Hearing notice. "The notice must be
of such nature as reasonably to convey the required information
and it must afford a reasonable time for those interested to
14In Waukesha Cty. v. J.W.J., 2017 WI 57, ¶20, 375
Wis. 2d 542, 895 N.W.2d 783, we held:
Upon each petition to extend a term of commitment, a
county must establish the same elements with the same
quantum of proof. Fond du lac Cty. v. Helen E.F.,
2012 WI 50, ¶20, 340 Wis. 2d 500, 814 N.W.2d 179.
However, it may satisfy the "dangerousness" prong by
showing "a substantial likelihood, based on the
subject individual's treatment record, that the
individual would be a proper subject for commitment if
treatment were withdrawn."
(quoting Wis. Stat. § 51.20(1)(am)).
19
No. 2017AP1468
make their appearance." Mullane v. Cent. Hanover Bank & Tr.
Co., 339 U.S. 306, 314 (1950) (citations omitted). It is true
that, to assert personal jurisdiction over a respondent, the
initiating documents must contain all of the information Ms. L.
has identified. See Wis. Stat. § 51.20(1). But the court
already had jurisdiction over Ms. L. because an extension
hearing is not the commencement of a new proceeding, it is the
continuation of an existing case. Ms. L. has identified no
constitutional principle requiring a respondent to receive a
jurisdiction-conferring quantum of information every time the
circuit court conducts a hearing. The notice sent to Ms. L. and
her attorney provided the date, time, location, and subject
matter of the Extension Hearing. Because the circuit court
already had jurisdiction over Ms. L., nothing more was
necessary.
4. Service of Notice
¶26 In addition to challenging the notice's content, Ms.
L. also faults the County for not serving the notice on her
personally. She turns to Wis. Stat. § 51.20(2)(b) for the
service requirements she believes are applicable to extension
hearings. This provision instructs that:
If the subject individual is to be detained, a law
enforcement officer shall present the subject
individual with a notice of hearing, a copy of the
petition and detention order and a written statement
of the individual's right to an attorney, a jury trial
if requested more than 48 hours prior to the final
hearing, the standard upon which he or she may be
committed under this section and the right to a
hearing to determine probable cause for commitment
within 72 hours after the individual is taken into
20
No. 2017AP1468
custody under s. 51.15 . . . . The officer shall
orally inform the individual that he or she is being
detained as the result of a petition and detention
order issued under this chapter. If the individual is
not to be detained, the law enforcement officer shall
serve these documents on the subject individual and
shall also orally inform the individual of these
rights.
§ 51.20(2)(b) (emphasis added).
¶27 But those service provisions are not applicable to a
petition to extend a commitment. As we have already
established, the procedures governing commitment extensions are
located in Wis. Stat. § 51.20(10)-(13), not § 51.20(2). Wis.
Stat. § 51.20(13)(g)3. ("Upon application for extension of a
commitment by the department or the county department having
custody of the subject, the court shall proceed under subs. (10)
to (13).").15 While the governing subsections specify the
15
The dissent is worried that our statement that "the
procedures governing commitment extensions are located in Wis.
Stat. § 51.20(10)-(13), not § 51.20(2)," supra, ¶27, will
displace every other provision in § 51.20. But this statement
does not negate the generally-applicable provisions of § 51.20
any more than it negates the application of the Wisconsin
Constitution to extension proceedings. The question at hand, of
course, involves identifying which procedures are specific to a
petition to extend a defendant's commitment. And even more
specifically, the question bears on how the County must serve
notice of an extension hearing. While it is true that
§ 51.20(2) directs how service must be made, by its own terms it
applies only to the commencement of a commitment proceeding.
Id. (Section 51.20(2) applies "[u]pon the filing of a petition
for examination.") (emphasis added). Because a petition to
extend a commitment is a continuation of an existing commitment
proceeding, § 51.20(2) cannot control how notice of an extension
hearing must be accomplished.
21
No. 2017AP1468
content of the notice, and who must be notified,16 they provide
no specific directions with respect to the notification method.17
They do, however, point us to the answer. Because
§ 51.20(10)(c) incorporates the rules of civil procedure to the
extent they do not conflict with Chapter 51, we need go no
further than Wis. Stat. § 801.14(2). There, we see that service
on a party represented by an attorney may be accomplished by
serving the attorney:
Whenever under these statutes, service of pleadings
and other papers is required or permitted to be made
upon a party represented by an attorney, the service
shall be made upon the attorney unless service upon
the party in person is ordered by the court. Service
upon the attorney or upon a party shall be made by
delivering a copy or by mailing it to the last-known
address, or, if no address is known, by leaving it
with the clerk of the court.
16
"Within a reasonable time prior to the final hearing, the
petitioner's counsel shall notify the subject individual and his
or her counsel of the time and place of final hearing." Wis.
Stat. § 51.20(10)(a).
17The dissent, to the contrary, says "the notice
requirements set forth in § 51.20(2) apply to all petitions
under Ch. 51, including petitions to extend an individual's
commitment." Dissent, ¶56. But if that were true, it would
make the notice requirement of Wis. Stat. § 51.20(10)(a)
entirely superfluous. We try not to read statutory provisions
as surplusage. Kalal, 271 Wis. 2d 633, ¶45 ("Statutory language
is read where possible to give reasonable effect to every word,
in order to avoid surplusage.").
22
No. 2017AP1468
§ 801.14(2) (emphasis added). No part of this conflicts with
§ 51.20(10)-(13), and so it controls service of the Extension
Hearing notice.18
¶28 The County mailed a copy of the Extension Petition and
the Extension Hearing notice to both Ms. L. at her last known
address and her counsel. Because notice to her counsel was
sufficient pursuant to Wis. Stat. § 801.14(2), it is irrelevant
that the copy mailed to Ms. L. was returned as undeliverable.
There was no statutory violation in the method of service chosen
by the County.
18The dissent says we are mistaken, and that there really
is a conflict between the "notification" provisions of Wis.
Stat. § 51.20(10)(a) and the "service" provisions of Wis. Stat.
§ 801.14(2). Dissent, ¶57 n.7. The dissent's argument, while
not adopted by any party to these proceedings, merits some
attention.
Ms. L. concentrated solely on the personal service
requirement of § 51.20(2)(b). She maintained her focus on that
provision even after the County argued in its response brief
that § 51.20(10)(c) incorporated the service provisions of
§ 801.14(2). Perhaps she did not make the dissent's argument
because reading a personal-service mandate into the phrase
"petitioner's counsel shall notify the subject individual and
his or her counsel of the time and place of final hearing" would
be a difficult task. § 51.20(10)(a). The legislature is
familiar with language that requires personal service of a
document, as demonstrated by the mandate in § 51.20(2)(b), which
requires that "a law enforcement officer shall present the
subject individual with a notice of hearing . . . ." There are
many ways one may provide "notice." But to "present" something
to an individual, one must be (as the word implies) in the
person's presence. The dissent would have us read the two
provisions as requiring the same thing. Apparently, not even
Ms. L. was willing to attempt that equation.
23
No. 2017AP1468
¶29 Ms. L. also contends that the County's chosen method
of service was constitutionally defective. It is not enough,
she says, to go through the motions of sending notice to an
affected party. One must use such methods as have a reasonable
chance of actually reaching the one to be notified. She directs
our attention to Mullane, 339 U.S. at 314, which observed that
"[a]n elementary and fundamental requirement of due
process . . . is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their
objections." Most of Ms. L.'s concerns regarding the
constitutional dimension of this method of service, however,
were bound up with her belief that the Extension Hearing is a
new proceeding for which the County must serve a jurisdiction-
conferring document.19 Because we have rejected that
19
The dissent's insistence that Jones v. Flowers, 547
U.S. 220 (2006), supports Ms. L.'s position is apparently also
bound up in that belief. Jones addressed the manner in which
the State must provide notice to a homeowner before his house
becomes subject to a tax sale. After observing that Ms. L.'s
interest in her own well-being is more compelling than Mr.
Jones' interest in his property, the dissent asks: "Why, then,
is Jones afforded more due process protections than S.L.L.?"
Dissent, ¶71.
The answer is that Mr. Jones was not already subject to a
court's personal jurisdiction. It is unsurprising that, under
that circumstance, the Supreme Court should conclude that
something more than a certified letter was necessary before the
State took steps to deprive him of his property interest.
Because Ms. L. was already subject to the circuit court's
jurisdiction, there was no need to use a jurisdiction-conferring
method of service for the notice of hearing.
(continued)
24
No. 2017AP1468
proposition, she must demonstrate that service pursuant to Wis.
Stat. § 801.14(2) suffers some constitutional defect when the
court has already established jurisdiction over her. She has
advanced no such argument, and this method of service long ago
passed into the realm of settled law:
[I]t is well-accepted, black-letter law that an
attorney is not authorized by general principles of
agency to accept on behalf of a client service of
process commencing an action. . . . In contrast, the
black-letter law is that once an action has begun and
the attorney has appeared in the action on behalf of a
party, service of papers may be upon the attorney.
Gangler v. Wisconsin Elec. Power Co., 110 Wis. 2d 649, 657, 329
N.W.2d 186 (1983) (citing § 801.14(2) (1979-80)).
¶30 Further, the very case on which Ms. L. founds her
argument adequately answers her constitutional challenge to the
method of service employed by the County: "Thus it has been
In any event, even if we granted the dissent's premises,
there are two reasons Jones does not create a path to Justice
Ann Walsh Bradley's conclusion. First, the Court did not change
the long standing rule that "[d]ue process does not require that
a property owner receive actual notice before the government may
take his property." Jones, 547 U.S. at 226 (citation omitted).
And second, the Court also said "that when mailed notice of a
tax sale is returned unclaimed, the State must take additional
reasonable steps to attempt to provide notice to the property
owner before selling his property, if it is practicable to do
so." Id. at 225 (emphasis added).
Even today, Ms. L. does not say what the County should have
done to reach her. Neither does the dissent. That point cannot
be emphasized enough. They both fault the County for the method
of service, but offer nothing but a shrug as an alternative.
That is not an argument, and there is no need to consider it
further.
25
No. 2017AP1468
recognized that, in the case of persons missing or unknown,
employment of an indirect and even a probably futile means of
notification is all that the situation permits and creates no
constitutional bar to a final decree foreclosing their rights."
Mullane, 339 U.S. at 317. One of the responsibilities Ms. L.
agreed to undertake as a condition of leaving the MHC was
keeping the County apprised of her current address. She failed
to do that. We are not unmindful of the difficulties that
mental health issues and homelessness present in these
circumstances. But they do not relieve Ms. L. of her
obligations, and they do not defeat otherwise constitutional
methods of service. Sending notice to her at the homeless
shelter was probably a foreseeably futile attempt when made, and
we know as a historical matter that she did not receive it. But
Ms. L. has not suggested, even now, how the County was supposed
to reach her (short of a multi-county manhunt). Ms. L. may not
excuse herself from these proceedings through neglect of her
duties. Because the County employed a proper method of service,
and Ms. L.'s counsel actually did receive notice of the
Extension Hearing, we conclude there was no statutory or
constitutional infirmity in service of the notice.
B. Default at a Recommitment Hearing
¶31 The Extension Order was the product, at least in part,
of the circuit court's determination that Ms. L. was in default
of her obligation to appear at the Extension Hearing. The
County says default judgment was appropriate pursuant to the
terms of Wis. Stat. § 806.02(5), which provides that "[a]
26
No. 2017AP1468
default judgment may be rendered against any party who has
appeared in the action but who fails to appear at trial. If
proof of any fact is necessary for the court to render judgment,
the court shall receive the proof."
¶32 Ms. L. disagrees, and asserts there are two reasons
circuit courts may not enter default judgments in Chapter 51
proceedings. First, she says she has a statutory and
constitutionally-protected right to be present at the hearing.
And second, she says that because Wis. Stat. § 51.20(10)(d)
identifies what a circuit court may do when someone fails to
appear for a hearing, it may not import the default judgment
protocols of Wis. Stat. § 806.02.20
¶33 Ms. L. unquestionably had a right to appear at the
Extension Hearing: "Except as may otherwise be provided by
law, . . . a respondent in a matter listed in sub. (1) is
entitled to be physically present in the courtroom at all trials
and sentencing or dispositional hearings." Wis. Stat.
§ 885.60(2)(a). Matters listed in subsection 1 include Chapter
51 proceedings. § 885.60(1). Ms. L. also says her right to
appear at the Extension Hearing is constitutionally protected.
For that proposition, she cites Addington v. Texas, 441 U.S. 418
(1979); Humphrey v. Cady, 405 U.S. 504 (1972); In re Gault, 387
20This issue is moot for the same reasons Ms. L.'s
jurisdictional challenge is moot. However, we will nonetheless
address it for the same reasons we chose to resolve the first
issue.
27
No. 2017AP1468
U.S. 1, (1967); and Specht v. Patterson, 386 U.S. 605 (1967).21
We have no doubt that "civil commitment for any purpose
constitutes a significant deprivation of liberty that requires
due process protection." Addington, 441 U.S. at 425. And we
also do not doubt that Chapter 51 proceedings are subject to the
full complement of due process guarantees. Having said that,
none of the cases Ms. L. cited support the proposition that
these due process considerations guarantee the right to appear
at a Chapter 51 trial in the same way they guarantee the right
to appear in a criminal trial. Although we have never directly
considered this proposition, we will treat it as established for
present purposes.
¶34 To the extent Ms. L. asserts default judgment was
inappropriate because she had the right to appear at the
Extension Hearing, her argument does not go far enough. Rights
may be waived or forfeited——even constitutionally-protected
21Addington v. Texas, 441 U.S. 418, 419 (1979) (a civil
commitment case that answered the question of what "standard of
proof is required by the Fourteenth Amendment to the
Constitution in a civil proceeding brought under state law[.]");
Humphrey v. Cady, 405 U.S. 504, 505 (1972) (a writ of federal
habeas corpus is not barred by every state procedural default,
and an evidentiary hearing is required to determine whether
petitioner knowingly and intelligently made a deliberate
strategic waiver of his claims in state court); In re Gault, 387
U.S. 1 (1967) (a review of a writ of habeas corpus where the
Court held that a juvenile has right to notice of charges, to
counsel, to confrontation and cross-examination of witnesses,
and to privilege against self-incrimination); Specht v.
Patterson, 386 U.S. 605 (1967)(a review of a writ of habeas
corpus where the Court held that applying a new act to bring new
charges against defendant requires compliance with due process).
28
No. 2017AP1468
rights.22 If Ms. L. is to prevail on this argument, she must do
more than just posit the existence of her right. She must also
explain why her failure to appear should not be counted as a
forfeiture of that right. The fact that she did not personally
know about the hearing is, in this case, an inadequate response
because her own actions made it impossible for her to learn of
it. A respondent may not insulate her rights against forfeiture
by failing to comply with the obligations to which she agreed.23
Because Ms. L. did not explain why the right to appear at an
22
See, e.g., State v. Anthony, 2015 WI 20, ¶56, 361
Wis. 2d 116, 860 N.W.2d 10 ("We now conclude that the right to
testify may, in appropriate cases, be subject to forfeiture
where conduct incompatible with the assertion of the right is at
issue."); State v. Cummings, 199 Wis. 2d 721, 756, 546
N.W.2d 406 (1996) ("Therefore, this court holds that there may
be situations . . . where a circuit court must have the ability
to find that a defendant has forfeited his right to counsel.");
Salinas v. Texas, 570 U.S. 178, 190 (2013) ("[F]orfeiture of the
privilege against self-incrimination need not be knowing.");
State v. Huebner, 2000 WI 59, ¶26, 235 Wis. 2d 486, 611
N.W.2d 727 ("By failing to raise his objection to the use of a
six-person jury, [defendant] forfeited his right to a twelve-
person jury."); Ness v. Digital Dial Commc'ns, Inc., 227
Wis. 2d 592, 602, 596 N.W.2d 365 (1999) ("A party in default for
failing to answer forfeits its due process right to notice of
further pleadings."); State v. Jensen, 2007 WI 26, ¶51, 299
Wis. 2d 267, 727 N.W.2d 518 (holding that a defendant can
forfeit his right to confront the witnesses against him if he
wrongfully causes them to be unavailable to testify against
him).
23The Transfer, to which Ms. L. agreed, required her to
keep a current address on file with the County. This was no
mere technicality. This was a condition precedent to release
from the MHC. If she had not agreed to it, presumably her
inpatient status would have continued, and she would have
received actual notice of the Extension Hearing in due course.
29
No. 2017AP1468
extension hearing cannot be forfeited, or at least should not be
forfeited under these circumstances, this aspect of her argument
against default judgment is insufficiently developed for us to
consider further. Clean Wisconsin, Inc. v. Pub. Serv. Comm'n of
Wisconsin, 2005 WI 93, ¶180 n.40, 282 Wis. 2d 250, 700
N.W.2d 768 ("We will not address undeveloped arguments.").24
¶35 Ms. L.'s second argument against default judgment is
that Chapter 51 contains a procedure for dealing with
respondents who do not appear at hearings that is inconsistent
with the default protocols of Wis. Stat. § 806.02(5). If that
24
The dissent apparently does not believe a defendant in a
Chapter 51 proceeding can forfeit her rights. Dissent, ¶¶73-74.
The author says we should be governed by Shirley J.C. v.
Walworth Cty., 172 Wis. 2d 371, 379, 493 N.W.2d 382 (Ct. App.
1992), in which the court of appeals held that summary judgment
is not available in Chapter 51 proceedings in which the
defendant "contests the commitment request." Id. at 373. But
Shirley J.C. said nothing about situations in which a defendant
does not contest the commitment request. As discussed above,
defendants can forfeit even constitutionally-protected rights
through their choices and actions. So Shirley J.C. can teach us
nothing here unless we were to first hold that Chapter 51
defendants, uniquely amongst all defendants in Wisconsin's
courts, are incapable of forfeiting their rights, regardless of
what they do or fail to do. There is no "binding caselaw," as
the dissent claims, that requires such an unusual conclusion.
Dissent, ¶75.
The dissent also says there is no evidence "to support the
proposition that S.L.L. forfeited her right to a hearing
'through [her] choices and actions.'" Id., ¶74 n.12 (citation
omitted and bracketing in original). But this mischaracterizes
the posture of the question. We are not considering whether Ms.
L. did forfeit the right to appear at the Extension Hearing. We
are merely considering whether it is possible to forfeit the
right.
30
No. 2017AP1468
is true, then Ms. L.'s position would be well founded inasmuch
as Chapter 51 incorporates the rules of civil procedure
"[e]xcept as otherwise provided in this chapter[.]" Wis. Stat.
§ 51.20(10)(c). Therefore, a circuit court may not grant
default judgment if doing so conflicts with a procedure
prescribed by Chapter 51.
¶36 Ms. L. identifies Wis. Stat. § 51.20(10)(d) as the
provision offended by incorporation of a default judgment
option. That provision says that "[i]n the event that the
subject individual is not detained and fails to appear for the
final hearing the court may issue an order for the subject
individual's detention and shall hold the final commitment
hearing within 7 days from the time of detention."
§ 51.20(10)(d). From this, she concludes that "[w]hen a person
fails to appear for a final commitment hearing, the statute only
gives the circuit court the option of issuing a detention order
or not issuing a detention order." "It does not," she says,
"give the circuit court the option of dispensing with Chapter
51." Ms. L. correctly notes that issuance of a detention order
is optional——the statute says "the court may issue," and we
traditionally interpret "may" as permissive. Heritage Farms,
Inc. v. Markel Ins. Co., 2012 WI 26, ¶32, 339 Wis. 2d 125, 810
N.W.2d 465 ("Accordingly, when interpreting a statute, we
generally construe the word 'may' as permissive."); see also
Zellner v. Cedarburg Sch. Dist., 2007 WI 53, ¶54, 300
Wis. 2d 290, 731 N.W.2d 240 (citing City of Wauwatosa v.
Milwaukee Cty., 22 Wis. 2d 184, 191, 125 N.W.2d 386 (1963))
31
No. 2017AP1468
("Generally, in construing statutes, the word 'may' is construed
as permissive."). But she incorrectly concludes that, having
opted not to issue an order for her detention, the circuit
court's hands were tied and it could do nothing else. The
statute does not say the circuit court's only options are to
issue or not issue a detention order. It simply made a
detention order an available tool in Chapter 51 proceedings; it
did not displace all of the other tools already in the toolbox.25
¶37 Nonetheless, Ms. L. says we should be guided by our
decision in Walworth County v. Spalding, in which we concluded
the circuit court lacked authority to enter default judgment
against a defendant who failed to appear at his trial on a
charge of operating a motor vehicle while under the influence of
an intoxicant. 111 Wis. 2d 19, 22, 329 N.W.2d 925 (1983). The
Spalding circuit court borrowed from Wis. Stat. § 799.22(2)
25The dissent acknowledges that Wis. Stat. § 51.20(10)(d)
makes issuance of a detention order a discretionary decision,
but then inexplicably agrees with Ms. L. that the statute's
permission to issue such an order simultaneously prohibited the
circuit court from employing any other remedy against an absent
defendant. That's an awful lot of responsibility to place on
the word "may," especially when there is no textual suggestion
that the legislature offered courts the option of a detention
order in exchange for forfeiting all of the other compliance
tools in the toolbox. So the circuit court may enter a default
judgment, it may issue a writ of capias, or it may do both. The
statute does not foreclose any of these options.
32
No. 2017AP1468
(1981-82) for authority to enter default judgment.26 We held
this was error because the traffic code, specifically Wis. Stat.
§ 345.36 (1981-82), provided the procedure for dealing with
defendants who do not appear for trial. That provision says:
"If a defendant fails to appear at the date set under this
section, the court shall issue a warrant under ch. 968 and, if
the alleged violator has posted bond for his appearance at that
date, the court may order the bond forfeited." Id. (emphasis
added). Because the "shall issue" language was mandatory, we
held that "[t]he plain meaning of the statute clearly requires
the court to issue a warrant upon the defendant's failure to
appear . . . ." Spalding, 111 Wis. 2d at 24. Consequently,
"[t]he trial court's entry of the default judgment was contrary
to this specific procedure contained in ch. 345 and therefore
inappropriate." Id. That is to say, the mandatory warrant
procedure in § 345.36 (1981-82) emptied the circuit court's
toolbox of all other tools for addressing a failure to appear at
trial.
¶38 The lesson to take from Spalding, therefore, is that a
context-specific and mandatory procedure will displace a
contrary general rule of civil procedure. Here, issuance of a
detention order under Wis. Stat. § 51.20(10)(d) is context
26This statute provides: "When defendant fails to appear.
If the defendant fails to appear on the return date or on the
date set for trial, the court may enter a judgment upon due
proof of facts which show the plaintiff entitled thereto." Wis.
Stat. § 799.22(2) (1981-82) (emphasis in original).
33
No. 2017AP1468
specific, but it is not mandatory. Therefore, it does not
preclude the use of non-conflicting general rules of civil
procedure. Circuit courts have the authority, pursuant to Wis.
Stat. § 806.02(5), as incorporated by § 51.20(10)(c), to enter
default judgment for failing to appear at properly-noticed
hearings in which the court has jurisdiction over the person.
In this case, the circuit court had jurisdiction over Ms. L.,
the Extension Hearing had been properly noticed, Ms. L. had
previously appeared in the action (specifically, at the initial
commitment hearing), and she failed to appear for trial. That
satisfies the prerequisites for entry of default under
§ 806.02(5). Whether the circuit court had adequate evidence
available upon which to make the findings necessary to support
the Extension Order is the subject of Ms. L.'s third issue.
C. Sufficiency of Evidence/Due Process
¶39 Ms. L. says there was insufficient evidence of record
to support the circuit court's entry of the Extension Order, and
so she asks us to vacate it. But as we discussed above, the
passage of time has acted as a functional (if not de jure)
vacatur because the Extension Order no longer has any force or
effect. And that would seem to make this issue moot just like
the first two. Ms. L., however, insists this issue is not like
the others. She believes she is still subject to legal injury
because the simple expiration of the Extension Order does not
"expunge the court records, or invalidate the examining
physician reports." She is also concerned that Wis. Stat.
§ 51.30(3)(b) allows any corporation counsel to access her files
34
No. 2017AP1468
and court records for the purpose of preparing for "commitment
and recommitment proceedings, reexaminations, appeals,
detentions, and commitments under Chapters 55, 971, 975 or 980."
Not only that, she says, § 51.30(4)(b)(5) "gives DHS [Department
of Health Services] staff access to all of S.L.L.'s treatment
records to determine her progress and the least restrictive or
more appropriate treatment modalities and facilities," and
§ 51.30(4)(b)(11) "gives corporation counsel full access to
treatment records 'without modification, at any time' to prepare
for commitments, recommitments, patient's rights claims, or
actions under Chapters 48, 971, 975, or 980."
¶40 For the purpose of determining whether this issue is
moot, we will assume that Ms. L. correctly recites what may be
done with her records. But even accepting all of that, we do
not agree that resolving this issue can "have any practical
effect upon an existing controversy." Leitner, 253 Wis. 2d 449,
¶13. If we reviewed the evidentiary basis for the Extension
Order and found it lacking, the proper response would be to
reverse the court of appeals and direct vacatur of the order.
But vacatur is not the same thing as expungement. The Extension
Order would still be a matter of record; it would simply have no
operative effect. And vacating the Extension Order would have
absolutely no effect at all on Ms. L.'s examining physician
reports, treatment records, court files, or records relating to
previous proceedings in this case. So corporation counsel and
DHS staff would still be able to access them for the purposes
Ms. L. described. Therefore, successfully challenging the
35
No. 2017AP1468
evidentiary basis of the Extension Order would not protect Ms.
L. against any of the consequences that give her concern. This
issue is moot.
¶41 As we demonstrated above, we sometimes review issues
even though they are moot. There are five recognized
circumstances in which we will do so, two of which we have
already discussed. The other three involve situations in which
"the constitutionality of a statute is involved" (which is
obviously not the case here), or "where the precise situation
under consideration arises so frequently that a definitive
decision is essential to guide the trial courts," or "where the
issue is likely to arise again and should be resolved by the
court to avoid uncertainty." Id., ¶14. Challenges to the
sufficiency of evidence are necessarily fact-bound inquiries
that will vary from case to case. Therefore, a definitive
decision in this case would provide no guidance to circuit
courts, nor would it preclude uncertainty in evaluation of
evidentiary sufficiency in other cases. There is no reason to
deviate from our mootness doctrine with respect to this issue.
¶42 Additionally, the County argued that Ms. L. did not
preserve this issue for appellate review. The Extension Hearing
transcript reveals that Ms. L.'s counsel raised no objection
with respect to the sufficiency of the evidence. To avoid
waiver, litigants must lodge their trial objections
contemporaneously with the error. See Wis. Stat. § 805.11(1)
("Any party who has fair opportunity to object before a ruling
or order is made must do so in order to avoid waiving error.").
36
No. 2017AP1468
And when a party raises an objection, it "must specify the
grounds on which the party predicates the objection or claim of
error." § 805.11(2). There are no exceptions to these
requirements. § 805.11(3) ("Exceptions shall never be made.").
Ms. L. did not respond to the County's argument on this point,
and so we take it as conceded. Hoffman v. Econ. Preferred Ins.
Co., 2000 WI App 22, ¶9, 232 Wis. 2d 53, 606 N.W.2d 590 (Ct.
App. 1999) ("An argument to which no response is made may be
deemed conceded for purposes of appeal.").
IV. CONCLUSION
¶43 We hold that, for purposes of personal jurisdiction in
a Chapter 51 proceeding, an extension hearing is a continuation
of the original commitment proceeding and previous extension
hearings. Therefore, the circuit court had jurisdiction over
Ms. L. both at the Extension Hearing and when it entered the
Extension Order because both occurred prior to expiration of the
Initial Commitment. Consequently, the method of service and
content of the notice of the Extension Hearing were neither
statutorily nor constitutionally infirm. We also hold that,
with respect to extension hearings conducted pursuant to Wis.
Stat. § 51.20(13)(g)3., circuit courts have the authority to
enter default judgments in compliance with Wis. Stat.
§ 806.02(5). We choose not to review the evidentiary foundation
for the Extension Order because the issue is moot and was not
preserved for appellate review.
By the Court.—The decision of the court of appeals is
affirmed.
37
No. 2017AP1468.awb
¶44 ANN WALSH BRADLEY, J. (dissenting). In seeking to
extend the involuntary commitment of S.L.L., Waukesha County
encountered a problem: S.L.L., a homeless individual, was
nowhere to be found. As a result, she did not receive notice of
the County's intent to extend her commitment.
¶45 Regardless, the County forged ahead with commitment
proceedings. In S.L.L.'s absence, it obtained from the circuit
court a default order extending S.L.L.'s commitment.
Additionally, it sought and received an order authorizing the
involuntary administration of psychotropic medication.
¶46 Despite the injustice apparent on the face of such an
in absentia procedure, the majority declares that individuals
may be defaulted into civil commitment without notice of the
commitment hearing. It creates a procedural end-run around a
merits hearing in which an individual's physical liberty hangs
in the balance.
¶47 Worse yet, it permits subjecting an individual to
involuntary——including forced——administration of psychotropic
medication immediately upon the individual's detention, without
assessing dangerousness and without providing notice or an
opportunity to be heard.
1
No. 2017AP1468.awb
¶48 Psychotropic medication is not aspirin. Such powerful
medications are mind-altering and can have severe and
irreversible side effects——immobilizing mind and body.1
¶49 Because neither Wisconsin statutes nor due process
countenance such in absentia orders, I respectfully dissent.
I
¶50 S.L.L. had been previously subject to a Chapter 51
mental commitment. Before that commitment expired, the County
applied to the circuit court for a 12-month extension of her
commitment. Majority op., ¶6. The circuit court scheduled a
hearing on the petition and sent a notice of the hearing to
S.L.L.'s attorney and to her last known address——a homeless
shelter from which she had been banned.2 Id. Not surprisingly,
the notice directed to S.L.L. was returned as undeliverable.3
Id.
1The administration of psychotropic drugs is no trifling
matter. See K.N.K v. Buhler, 139 Wis. 2d 190, 207 n.3, 407
N.W.2d 281 (Ct. App. 1987); In re Guardianship of Roe, 421
N.E.2d 40, 436-37 (Mass. 1981) (explaining that antipsychotic
medication "[is] powerful enough to immobilize mind and body[,]"
has a "profound effect . . . on the thought processes of an
individual[,]" and has a "well-established likelihood of severe
and irreversible adverse side effects . . . .").
2A report from the Waukesha County Community Human Services
Department in the record notes that S.L.L. was "not permitted to
be [at the homeless shelter] due to her behavior."
3The majority's characterization of the facts is
misleading. It accuses S.L.L. of "absconding" from treatment.
Majority op., ¶5. To "abscond" means "[t]o depart secretly or
suddenly, esp. to avoid arrest, prosecution, or service of
process." Black's Law Dictionary 8 (10th ed. 2014).
(continued)
2
No. 2017AP1468.awb
¶51 On the appointed day for the extension hearing,
S.L.L., having received no notice, was not present. Id., ¶7.
Nevertheless, the circuit court proceeded in her absence. Id.
Her attorney attended and made arguments on her behalf.4 Id.
¶52 After determining that S.L.L. remained subject to its
jurisdiction, the circuit court found: "She has not appeared
here today. She's in default of her right to object." See id.
Based on S.L.L.'s alleged default, the circuit court extended
her commitment: "I'm [going to find] the elements, based upon
that default, to extend. . . . I'll find that she continues to
be mentally ill. I'll find that she is a proper subject for
treatment . . . ."
¶53 Accordingly, the circuit court extended S.L.L.'s
commitment for twelve months. Id. It further ordered that the
County be authorized to involuntarily medicate S.L.L. for the
duration of her commitment. Id.
¶54 The majority determines that the circuit court's
procedure as delineated above complied with both statutory and
constitutional requirements. In the majority's view, service of
the notice of hearing on S.L.L.'s attorney was sufficient and it
is "irrelevant that the copy mailed to Ms. L. was returned as
There is not a single shred of evidence in the record to
support the assertion that S.L.L. "absconded" from treatment.
Indeed, there is no evidence in the record to support any
conclusions as to why S.L.L. stopped showing up for her
scheduled treatments.
4 S.L.L.'s attorney had not heard from S.L.L. and had no
information as to her whereabouts. Majority op., ¶7 n.7.
3
No. 2017AP1468.awb
undeliverable." Id., ¶28. It further posits that although
"[s]ending notice to her at the homeless shelter was probably a
foreseeably futile attempt when made," it was nevertheless
constitutionally sufficient due to S.L.L.'s "failure" to "keep[]
the County apprised of her current address." Id., ¶30.
II
¶55 The majority errs in its interpretation of Wis. Stat.
§ 51.20.
¶56 In an initial misstep, the majority erroneously claims
that Wis. Stat. §§ 51.20(10)-(13) are the only provisions that
govern the procedure for commitment extension hearings. See
majority op., ¶27. It is true that § 51.20(13)(g)3. directs the
court to subsections (10)-(13) "[u]pon application for extension
of a commitment[,]" but in order to "apply" for a commitment
extension, the government is required to file a petition under
§ 51.20(1).5 The notice requirements set forth in § 51.20(2)
apply to all petitions under ch. 51, including petitions to
extend an individual's commitment. Additionally, even a cursory
5 We know that compliance with Wis. Stat. § 51.20(1) is
required for commitment extension proceedings because
§ 51.20(1)(am) provides an alternate path to prove an
individual's dangerousness that can only be taken "[i]f the
individual has been the subject of inpatient
treatment . . . immediately prior to commencement of the
proceedings . . . ."
4
No. 2017AP1468.awb
review of § 51.20 as a whole reveals that other subsections are
applicable as well.6
¶57 Even if one were to wear textual blinders as the
majority wishes, Wis. Stat. § 51.20(10)(a) explicitly requires
the government to notify "the subject individual and his or her
counsel of the time and place of final hearing."7 This stands in
contrast to other provisions in § 51.20, under which
statutorily-sufficient service can be accomplished by serving
6 For example, Wis. Stat. § 51.20(3) provides that at the
time a petition for commitment is filed, the court is required
to ensure that the subject individual is represented by
adversary counsel by referring the individual to the state
public defender. Is it the majority's position that this
subsection does not apply to commitment extension proceedings?
Similarly, § 51.20(5)(a) states that all hearings required
to be held under Chapter 51 "shall conform to the essentials of
due process and fair treatment including the right to an open
hearing, the right to request a closed hearing, the right to
counsel, the right to present and cross-examine witnesses, the
right to remain silent and the right to a jury trial if
requested under sub. (11)." Is it the majority's position that
this subsection does not apply to commitment extension
proceedings?
7 The majority relies on Wis. Stat. § 801.14(2), asserting
that service upon S.L.L.'s attorney is sufficient. Majority
op., ¶27. It contends that "[n]o part of this [statute]
conflicts with § 51.20(10)-(13), and so it controls service of
the Extension Hearing notice." Id.
However, the majority acknowledges that Chapter 801 is
incorporated into Chapter 51 only to the extent it does not
conflict with Chapter 51. Id., ¶22. Wis. Stat. § 51.20(10)(a)
requires the government to notify "the subject individual and
his or her counsel of the time and place of final hearing"
(emphasis added). Section 801.14(2) does not require service on
the subject individual and therefore conflicts with
§ 51.20(10)(a). There is no need to go to Chapter 801 for an
answer that Chapter 51 already provides.
5
No. 2017AP1468.awb
only the subject individual's counsel.8 "And" does not mean
"or." Pursuant to § 51.20(10), service of notice upon S.L.L.'s
attorney, but not S.L.L., was statutorily insufficient.9
¶58 The majority compounds its error in statutory
interpretation by misreading Wis. Stat. § 51.20(10)(d). This
subsection provides a procedure to follow in just the situation
that arose here: "In the event that the subject individual is
not detained and fails to appear for the final hearing the court
may issue an order for the subject individual's detention and
shall hold the final commitment hearing within 7 days from the
time of detention." § 51.20(10)(d).
¶59 Although I acknowledge, as the majority does, that the
first clause of Wis. Stat. § 51.20(10)(d) contains permissive
"may" language, the second clause of the statute contains
mandatory "shall" language. See majority op., ¶36. The statute
8 See, e.g., Wis. Stat. § 51.20(8)(bg) (notice of subject
individual's noncompliance with treatment agreement sent only to
subject individual's counsel, not the subject individual);
§ 51.20(11) (right to jury trial deemed waived unless demanded
at least 48 hours in advance of final hearing provided that
either the subject individual or her counsel received notice of
the final hearing).
9 As the majority acknowledges, compliance with "statutory
provisions regarding service of process is required before a []
court has personal jurisdiction." Majority op., ¶12 (citing
State v. Aufderhaar, 2005 WI 108, ¶27, 283 Wis. 2d 336, 700
N.W.2d 4). The majority further acknowledges that "if Ms. L. is
right about having not received proper notice, the Extension
Order was void from the beginning" for want of personal
jurisdiction. Majority op., ¶13. This is a correct statement.
Accordingly, because the service provisions of Wis. Stat.
§ 51.20(10) were not followed, the circuit court lacked personal
jurisdiction over S.L.L.
6
No. 2017AP1468.awb
provides that the final commitment hearing shall be held within
seven days from the time of detention. Pursuant to the statute,
if there is no detention, the final hearing cannot be held. As
S.L.L. argues in her reply brief, "When a person fails to appear
for a final commitment hearing, the statute only gives the
circuit court the option of issuing a detention order or not
issuing a detention order. It does not give the circuit court
the option of dispensing with Chapter 51."
¶60 Chapter 51 contains no default judgment provision.
Nevertheless, the majority ignores the statutorily mandated
procedure and reaches out to utilize a default judgment
procedure found nowhere in the text of the chapter.10 This
allows for the involuntary commitment and medication of an
10
The majority says that "there is no textual suggestion
that the legislature offered courts the option of a detention
order in exchange for forfeiting all of the other compliance
tools in the toolbox." Majority op., ¶36 n.25.
The issuance of a default judgment is not a "compliance
tool." The statutorily-prescribed "compliance tool" is the
issuance of a detention order. The subject individual's
"compliance" is compelled by being detained and brought before
the court within a short period of time for the purpose of
conducting a hearing on the merits of the government's
commitment petition. Wis. Stat. § 51.20(10)(d).
Here, the circuit court issued both a default judgment and
a detention order. One wonders whether the detention order was
a pointless "compliance tool" when issued in conjunction with a
default judgment. That is, why would a court issue a detention
order for the purpose of detaining the individual and holding a
final hearing on the merits if a default order for commitment
extension has already been issued, and the individual must first
obtain relief from the default judgment before proceeding to the
final ch. 51 merits hearing?
7
No. 2017AP1468.awb
individual without any in-person assessment regarding the
individual's dangerousness. See Wis. Stat. § 51.20(1)(a)2.
Additionally, it permits subjecting an individual to
involuntary——even forced——administration of psychotropic
medication immediately upon detention without any notice or the
opportunity to be heard.
III
¶61 The majority further errs by approving an egregious
violation of due process.
¶62 "The essence of due process is the requirement that 'a
person in jeopardy of serious loss (be given) notice of the case
against him and opportunity to meet it.'" Mathews v. Eldridge,
424 U.S. 319, 348 (1976). Although due process does not require
actual notice, due process does require the government to
provide "notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of
the action and afford them an opportunity to present their
objections." Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S.
306, 314 (1950).
¶63 Jones v. Flowers, 547 U.S. 220 (2006), provides an apt
comparison. In Jones, the Supreme Court discussed the notice
that is due before the government may extinguish an individual's
rights in real property to satisfy a tax delinquency. Id. at
223.
¶64 Jones was delinquent on his property taxes, and the
State of Arkansas sought to sell his property to satisfy the
delinquency. Id. at 223-24. The Commissioner of State Lands
8
No. 2017AP1468.awb
attempted to notify Jones of his delinquency and his right to
redeem the property by mailing a certified letter to Jones at
the delinquent property, but the letter was returned, unopened,
and marked "unclaimed". Id.
¶65 Two years later, and just a few weeks before the
public sale, the Commissioner published a notice of public sale
in a local newspaper. Id. at 224. The Commissioner mailed
another certified letter to Jones at the delinquent property
attempting to notify him that his house would be sold if he did
not pay his taxes. Id. This second letter was also returned,
unopened, and marked "unclaimed," and the property was sold.
Id.
¶66 The Supreme Court concluded "that when mailed notice
of a tax sale is returned unclaimed, the State must take
additional reasonable steps to attempt to provide notice to the
property owner before selling his property." Id. at 225. Its
determination rested on the principle that "when notice is a
person's due . . . [t]he means employed must be such as one
desirous of actually informing the absentee might reasonably
adopt to accomplish it, and that assessing the adequacy of a
particular form of notice requires balancing the interest of the
State against the individual interest sought to be protected by
the Fourteenth Amendment." Id. at 229 (internal quotations and
citations omitted).
¶67 By way of analogy, the Court likened the
Commissioner's inaction in the face of the unclaimed letters as
akin to the Commissioner watching the postman accidentally drop
9
No. 2017AP1468.awb
the notice down a storm drain without bothering to prepare and
send a new notice. Id. "No one 'desirous of actually
informing' the owners would simply shrug his shoulders as the
letters disappeared and say 'I tried.'" Id.
¶68 Here, the facts and consequences are even more
egregious than those in Jones. In Jones, the Commissioner did
not know that notice would be ineffective at the time he sent
the certified letters to the delinquent property. On the other
hand, in this case, the County sent notice to the one location
in Wisconsin that it knew S.L.L. would not be——the homeless
shelter from which she had been banned. No one desirous of
actually informing S.L.L. of the commitment extension hearing
would have mailed notice to a place known to have banned S.L.L.
and then called it quits. The Constitution requires that
additional reasonable steps be taken to attempt to provide
notice to the affected party.
¶69 Yet, the majority today accepts the very argument that
was rejected by the Supreme Court in Jones. The Commissioner in
Jones argued that reasonable follow-up measures were not
required because "notice was sent to an address that Jones
provided and had a legal obligation to keep updated." Id. at
231. Rejecting this argument, the Court determined that Jones'
failure to comply with a statutory obligation to keep his
address updated did not forfeit his right to constitutionally-
sufficient notice. Id. at 232 (citations omitted).
¶70 The County makes the same argument in this case.
Rather than follow Jones, however, the majority instead places
10
No. 2017AP1468.awb
the blame for not receiving notice at the feet of S.L.L. This
is particularly troubling because S.L.L., who previously was
determined to be mentally ill, has experienced homelessness and
may still be homeless. The government is required "to consider
unique information about an intended recipient regardless of
whether a statutory scheme is reasonably calculated to provide
notice in the ordinary case." Id. at 230. Yet, the majority
relieves the County of this requirement.
¶71 Jones dealt with the process due before extinguishing
an individual's property rights. Id. at 223. S.L.L.'s interest
in this case, i.e., her physical liberty and interest in
avoiding the involuntary administration of psychotropic
medication, must be at least as important as Jones' property
rights. Why, then, is Jones afforded more due process
protections than S.L.L.? The majority does not (and cannot)
explain.11
¶72 In addition to disregarding binding federal case law,
the majority also contradicts binding Wisconsin case law.
Specifically, in Shirley J.C. v. Walworth Cty., 172 Wis. 2d 371,
373, 493 N.W.2d 382 (Ct. App. 1992), the court of appeals
concluded that granting summary judgment to the county in the
context of a Chapter 51 commitment violated due process.
11
If the Supreme Court in Jones had based its analysis on
the court's lack of personal jurisdiction over Jones, as the
majority claims, one would expect a discussion of personal
jurisdiction in the opinion. See majority op., ¶29 n.19. Not
only did the Supreme Court not discuss personal jurisdiction in
Jones, it did not even mention the term.
11
No. 2017AP1468.awb
¶73 It observed that Wis. Stat. § 51.20 does not allow
commitment without a hearing, and if summary judgment were
allowed, "the hearing requirement in the statute would be
meaningless." Id. at 378. Paramount to the court of appeals'
analysis was that the final hearing in a Chapter 51 case
determines whether the subject individual will lose her liberty.
Id. at 379-80.
¶74 If summary judgment is disallowed in a Chapter 51
commitment case, how can it be that default judgments are
allowed?12 Chapter 51 is explicit that a final hearing on the
merits must be held before the subject individual is committed.
Id. at 378 (citing Wis. Stat. § 51.20(10)(c)). Yet, by allowing
an individual to be defaulted into commitment, the majority
creates a loophole by which that final hearing can be avoided
and involuntary psychotropic medication can be administered
immediately upon the individual's detention without an
assessment of dangerousness and with no hearing whatsoever.
¶75 Unlike the majority, I would follow binding case law
and conclude that the County failed to take constitutionally-
sufficient steps to provide notice of the commitment extension
12
The majority claims that its analysis can live in harmony
with Shirley J.C. v. Walworth Cty., 172 Wis. 2d 371, 493
N.W.2d 382 (Ct. App. 1992). It says that default judgments in
ch. 51 cases are justified because, in such instances,
individuals have "forfeited" their rights "through their choices
and actions." Majority op., ¶34 n.24. This statement ignores
the fact that S.L.L. received no notice of her final hearing,
and there is no evidence whatsoever to support the proposition
that S.L.L. forfeited her right to a hearing "through [her]
choices and actions." See supra, ¶7 n.3.
12
No. 2017AP1468.awb
hearing to S.L.L., resulting in a default judgment of commitment
that violates due process.
¶76 For the foregoing reasons, I respectfully dissent.
¶77 I am authorized to state that Justices SHIRLEY S.
ABRAHAMSON and REBECCA FRANK DALLET join this dissent.
13
No. 2017AP1468.awb
1
Waukesha Cnty. v. S.L.L. (In Re Mental Commitment of S.L.L.)
Court: Wisconsin Supreme Court
Date filed: 2019-06-12
Citations: 929 N.W.2d 140, 387 Wis. 2d 333, 2019 WI 66
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