COURT OF
APPEALS DECISION DATED AND
RELEASED JULY
10, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-0281
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT II
In the
Matter of John J.V.,
Alleged
to be Mentally Ill:
SHEBOYGAN
COUNTY,
Petitioner-Respondent,
v.
JOHN
J.V.,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Sheboygan County: GARY LANGHOFF, Judge. Affirmed.
ANDERSON,
P.J. John J.V. appeals from an order extending his
involuntary mental commitment order under ch. 51, Stats. We conclude that the trial court's offer of a
continuance to allow for review of the medical report, pursuant to §
51.20(10)(b), Stats., cured any
potential prejudice. We therefore
affirm the trial court's order for extension.
On
August 18, 1994, an original hearing was held at which time the court ordered
the involuntary commitment of John through August 19, 1995. On August 2, 1995, a commitment extension
petition was filed by Sheboygan County in accordance with ch. 51, Stats.
The court then ordered Dr. Charles Cahill, a staff psychiatrist with
Sheboygan County Human Services, to conduct an evaluation of John and to file a
report forty-eight hours in advance of the August 17, 1995, hearing, pursuant
to § 51.20(10)(b), Stats. Cahill's report was filed on August 16,
1995, at 3:30 p.m., 16 and 1/2 hours before the August 17 hearing.
At
the August 17, 1995, hearing, John moved for dismissal of the petition due to
the untimely filing of Cahill's report.
John contended that 16 and 1/2 hours was insufficient time to review the
report. The court offered John a
continuance to either August 18 or 19, 1995.
John
declined the court's offer of a continuance and instead insisted that the
matter be dismissed. The court
proceeded with the hearing and ultimately extended John's commitment
order. John appeals.
John
asserts that the trial court erred in holding an extension hearing before
expiration of the 48-hour period to examine Cahill's report. See § 51.20(10)(b), Stats.
He argues that the error violated his substantial rights. The construction of § 51.20(10)(b) is a
question of law. See Tahtinen v. MSI Ins. Co., 122 Wis.2d
158, 166, 361 N.W.2d 673, 677 (1985).
Although this court looks upon the findings of the circuit court with
due respect, the standard of review in this case is de novo.
Section
51.20(10)(b), Stats., provides
that “Counsel for the person to be committed shall have access to all psychiatric
and other reports 48 hours in advance of the final hearing.” The psychiatric reports were available to
the parties 16 and 1/2 hours prior to the August 17, 1995, extension hearing—23
and 1/2 hours short of the 48-hour requirement. However, the trial court prudently offered John additional time
to review the report by means of a continuance to either August 18 or 19, 1995.[1] The continuance would have provided the
parties with the requisite 48 hours to review the report.[2] Only after John refused the additional time
to review the report did the trial court proceed with the hearing.
Section
51.20(5), Stats., requires all
proceedings to conform with the essentials of due process and fair treatment.[3] The court offered John a continuance until
August 18 or 19, 1995. This additional
time allowed John the opportunity to further inspect the medical report or gain
access to another opinion regarding his mental condition. We conclude that the court's offer to
continue the hearing provided John with due process and fairness, as is
required.
Under
ch. 51, Stats., the court is not
barred from sua sponte postponing a hearing to insure that a patient is
provided fairness and due process under the law. The court's offer to postpone the hearing was a reasonable and
fair solution.
In
contrast, John's refusal of that offer was not reasonable considering that the
hearing could have been conducted before the original commitment order had
expired on August 19, 1995. The
continuance would have allowed John the opportunity to seek advice, alternative
opinions or other legal strategies regarding the medical report. John's approach of declining the extra time
offered to him by the trial court and then insisting that the matter be
dismissed frustrates the purpose of discovery and we decline to adopt his
stance.
Additional
support may be found under § 805.03, Stats.,[4]
which provides courts with wide discretion in fashioning remedies when parties
fail to comply with procedural statutes.
The trial court did continue with the hearing on August 17, 1995, prior
to the expiration of the 48-hour time period, but only after John refused the
court's offer of a continuance. We conclude fairness was achieved through the
trial court's offer.
John
further contends that a one- or two-day continuance of the proceeding, to meet
the 48-hour requirement, was in violation of his substantial rights. Section 51.20(10)(c), Stats., provides that “[t]he court
shall, in every stage of an action, disregard any error or defect in the
pleadings or proceedings that does not affect the substantial rights of either
party.” The one- or two-day continuance
proposed by the court did not affect any substantial rights of John.
The
case law which John relies on is clearly distinguishable. In Green County
Dep't of Human Servs. v. H.N., 162 Wis.2d 635, 654, 469 N.W.2d 845, 852
(1991), the supreme court concluded that the circuit court lost its competency
to consider the extension petition by failing to hold a hearing within the
30-day time limit as outlined in ch. 48, Stats. The court noted that ch. 48 is a carefully
drawn legislative enactment circumscribing judicial and administrative action
in juvenile matters, while guarding the constitutional rights of children. See Green County, 162
Wis.2d at 645-46, 469 N.W.2d at 849.
Here,
John is not a juvenile, thus he does not fall under the protections of ch. 48, Stats.
In addition, the legislative intent and the carefully drawn provisions
within ch. 48 do not pertain to, and thus do not control, the mental health act
under ch. 51, Stats. See § 51.001, Stats.; but see § 48.01, Stats.
It follows that the rationale of Green County does not
control here as well.
G.O.T.
v. Rock County, 151 Wis.2d 629, 445
N.W.2d 697 (Ct. App. 1989), is also distinguishable. In G.O.T., the court of appeals held that the trial
court had lost its competency to proceed by failing to hear and decide the
petition before the commitment had expired.
Id. at 635-36, 445 N.W.2d at 699. Here, even with the proposed continuance,
the initial commitment would not have expired.
Moreover,
dismissing the hearing, after a reasonable amount of time to review the medical
reports was offered to John, would deprive John of the treatment that this
state seeks to provide to all persons that are in need of this program. Because of the willingness of the court to
allow a reasonable amount of time for John to review the psychiatric report,
the court did not lose competency to proceed.
We therefore affirm the trial court.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23 (1)(b)4, Stats.
[1] Subsections
51.20(13)(g)1 and 3, Stats., must
be read together, since both relate to the period of commitment. See G.O.T. v. Rock County, 151
Wis.2d 629, 633, 445 N.W.2d 697, 698 (Ct. App. 1989). The trial court must hold the extension hearing before the
initial commitment expires to determine whether the defendant is, in the words
of § 51.20(13)(g)3, “a proper subject for commitment.” G.O.T., 151 Wis.2d at 633, 445
N.W.2d at 698; cf. Schoenwald v. M.C., 146 Wis.2d 377,
386, 432 N.W.2d 588, 592 (Ct. App. 1988).
[2] In this case,
the extension hearing had to be held on or before August 19, 1995, the day the
original commitment was scheduled to expire.
Otherwise, the trial court would have lost competency to proceed. See § 51.20(13)(g), Stats.