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COURT OF APPEALS DECISION DATED AND FILED September 27, 2011 A. John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
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����������� APPEAL from orders of the circuit court for Outagamie County:� MITCHELL J. METROPULOS, Judge.� Reversed.�
�1������� HOOVER, P.J.[1] Paul S. appeals an order placing him on a Wis. Stat. ch. 51 mental health commitment and an order for involuntary medication.� Paul asserts the court lost competency to proceed because his probable cause hearing was not held within seventy-two hours of his detention.� We agree and reverse.
BACKGROUND
�2������� On Saturday, October 16, 2010, police responded to a report of an individual standing in an intersection attempting to stop traffic.� When officers made contact with Paul, he was rambling, irrational, and delirious.� Officer Christopher Dearth transported Paul to St. Elizabeth Hospital �for a possible 72-hour mental hold.�� Dearth was met at the hospital by Outagamie County crisis worker, Mike Kochanek.� At the hospital, Paul became agitated and tried to get away from hospital staff.� He was handcuffed to the hospital bed and his legs were strapped down with soft restraints.� The emergency room doctor determined Paul�s behavior was a medical, rather than psychiatric, issue.� Kochanek agreed. �A statement of emergency detention was not filed.� Paul was medicated and admitted into the intensive care unit at St. Elizabeth Hospital.� ��
�3������� On Sunday, October 17, at approximately 9:00 a.m., staff at St. Elizabeth Hospital advised police that Paul wanted to check himself out of the hospital and, without an emergency detention, he would be able to leave.� Officer Michael Bartlein �located Officer Dearth�s original notice of detainer� and responded to St. Elizabeth Hospital.� There, he met Outagamie County crisis worker, Merrie Hasknif.� Bartlein�s report, which was attached to the subsequently filed statement of emergency detention, indicates �it was determined that a 72-hour hold would be appropriate.�� However, Bartlein did not complete the statement of emergency detention because he was advised Paul was �not medically cleared.�� Bartlein left the statement of emergency detention and Dearth�s original police report at the hospital pending Paul�s medical clearance.
�4������� The probable cause hearing was held on Thursday, October 20, at 11:24 a.m.� Paul moved to dismiss on the ground that the court lacked jurisdiction because he had been detained for more than seventy-two hours without a probable cause hearing. ����
�5������� The County argued Paul�s detention did not begin until October 19, which was the date entered on the statement of emergency detention.� According to the County, October 19 was the date Paul received medical clearance to move to the fifth floor psychiatric unit. �The County contended that, although St. Elizabeth Hospital is a treatment facility as defined by Wis. Stat. ch. 51, �the treatment facility really is the psychiatric unit of St. Elizabeth Hospital, the fifth floor� and, therefore, �the detention actually occurred when [Paul] was moved to the psychiatric part of the hospital on October 19.�� ��
�6������� Paul asserted that �once [he] requested to check himself out of the hospital [on Sunday, October 17] and was told that he could not leave and that a 72 hour hold was determined appropriate � he was being held against his will.�� Acknowledging weekends are excluded from the seventy-two-hour time calculation, see Wis. Stat. � 51.20(7)(a), Paul argued the time period to hold the probable cause hearing expired at 12:00 a.m. on Thursday morning.� Paul also argued St. Elizabeth Hospital in its entirety constituted the treatment facility.�
�7������� The court commissioner, following the date written on the statement of emergency detention, determined the seventy-two-hour time limitation did not begin to run until October 19, and, consequently, retained jurisdiction.� Paul renewed his objection to the court�s competency before the circuit court.� Paul was subsequently committed.
DISCUSSION
�8������� Paul argues the court lost jurisdiction because it failed to hold a probable cause hearing within seventy-two hours of the time he �arrive[d] at the facility.�� See Wis. Stat. � 50.20(7)(a).� Paul contends that because he arrived at St. Elizabeth Hospital on October 16, the seventy-two-hour time limitation started running at 12:00 a.m. on Monday, October 18, and expired before his Thursday hearing.
�9������� Wisconsin Stat. � 51.15(5) provides an individual may �not be detained by the law enforcement officer or other person and the facility for more than a total of 72 hours, exclusive of Saturdays, Sundays, and legal holidays� without a hearing.� Wisconsin Stat. � 51.20(7)(a) requires a probable cause hearing to be held �within 72 hours after the individual arrives at the facility, excluding Saturdays, Sundays and legal holidays.� (Emphasis added.)� Compliance with the seventy-two-hour rule is mandatory, and a court loses competency to proceed when there is noncompliance.� Dodge Cnty. v. Ryan E.M., 2002 WI App 71, �5, 252 Wis. 2d 490, 642 N.W.2d 592.
�10����� Here, regardless of the date listed on the emergency detention, it is undisputed Paul arrived at St. Elizabeth Hospital[2] on Saturday, October 16, and he remained at St. Elizabeth Hospital until his probable cause hearing on Thursday, October 21.� Because the seventy-two-hour time limitation begins running �after the individual arrives at the facility� and not when the statement of emergency detention is dated, see Wis. Stat. � 51.20(7)(a), we conclude Paul�s probable cause hearing fell outside the seventy-two-hour time limitation and the court lost competency to proceed.[3]
�11����� The County, nevertheless, maintains it complied with the seventy-two-hour time limitation.� First, relying on language from Wis. Stat. � 51.15(2), which requires a law enforcement officer to seek approval from the County prior to transporting an individual to a facility for an emergency detention, the County asserts, for the first time on appeal, it did not approve of Paul�s detention until he was medically cleared on October 19.� We need not address arguments raised for the first time on appeal.� See State v. Huebner, 2000 WI 59, ��10-12, 235 Wis. 2d 486, 611 N.W.2d 727.
�12����� However, even on the merits, the record tends to undercut the County�s argument that it did not approve Paul�s detention until his October 19 transfer to the psychiatric unit.� Bartlein�s report from Sunday, October 17, which was attached to the statement of emergency detention, provides that when he and Outagamie County crisis worker, Hasknif, responded to St. Elizabeth Hospital, �it was determined that a seventy-two hour hold would be appropriate.�� Additionally, at the probable cause hearing, the County represented to the court that the statement of emergency detention had been completed earlier and had just been lacking a date, which was finally added after Paul was medically cleared on October 19.[4]�
�13����� Moreover, the County�s focus on the Wis. Stat. � 51.15(2) county approval requirement ignores the other statutory mandates that describe the seventy-two-hour time limitation and when it begins running.� See Wis. Stat. �� 51.15(5), 51.20(7)(a).� The making of or correction of an error in filing a Wis. Stat. chapter 51 case cannot restart the seventy-two-hour clock.� See Dane Cnty. v. Stevenson L.J., 2009 WI App 84, �15, 320 Wis. 2d 194, 768 N.W.2d 223.�
�14����� Finally, the County contends, also for the first time on appeal, that, pursuant to Wis. Stat. � 51.15(1)(a) �before someone can be held under an emergency detention, he or she must be taken �into custody� by a law enforcement officer� and Paul was not �in custody� as required by Wis. Stat. � 51.15 until October 19.� Specifically, the County asserts Paul was not in custody �because a reasonable person in his position would have believed he was free to leave the hospital.�� Again, we need not address arguments raised for the first time on appeal.� Huebner, 235 Wis. 2d 486, ��10-12.� In any event, the County�s argument ignores the Wis. Stat. � 51.15(3) definition of �custody,� which provides, �Upon arrival at the facility, the individual is deemed to be in custody of the facility.�� It is undisputed Paul arrived at and was admitted to St. Elizabeth Hospital on October 16.� He was in custody.
����������� By the Court.�Orders reversed.
����������� This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2).� All references to the Wisconsin Statutes are
to the 2009-10 version unless otherwise noted.
[2] On appeal, the County has abandoned its argument that only the fifth floor psychiatric unit of St. Elizabeth Hospital constitutes a �treatment facility� as defined by Wis. Stat. � 51.15(2).
[3] In his brief, Paul asserts the statement of emergency detention was altered.� We observe white correction fluid was used on the document, most notably in the space reserved for the date of detention.�� However, this was not raised before the trial court, and, consequently, it is unclear whether the white correction fluid was used to improperly alter the document or merely correct innocuous errors.� In any event, resolution of this issue is irrelevant to our determination.
[4] Wisconsin Stat. � 51.15(5) provides: �The statement of emergency detention shall be filed by the officer � at the time of admission, and with the court immediately thereafter.� (Emphasis added.)