PUBLISHED OPINION
Case Nos.: 95-0291-FT &
95-0292-FT
† Petition for Review filed
Complete Title
of Case:
IN RE THE COMMITMENT
OF LOUISE M.:
MILWAUKEE COUNTY,
Petitioner-Respondent,
†
v.
LOUISE M.,
Respondent-Appellant.
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IN RE THE COMMITMENT
OF THEODORE S.:
MILWAUKEE COUNTY,
Petitioner-Respondent,
†
v.
THEODORE S.,
Respondent-Appellant.
Submitted on Briefs: July 5, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: August 1, 1995
Opinion Filed: August 1, 1995
Source of APPEAL Appeal
from orders
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If “Special”, RESERVE
so indicate) JUDGE: DAVID L. DANCEY
JUDGES: Wedemeyer,
P.J., Sullivan and Fine, JJ.
Concurred:
Dissented: Sullivan, J.
Appellant
ATTORNEYSOn
behalf of the respondents-appellants, the cause was submitted on the briefs of Karen
Kotecki of the Legal Aid Society of Milwaukee, of Milwaukee.
Respondent
ATTORNEYSOn
behalf of the petitioner-respondent, the cause was submitted on the briefs of Mark
A. Grady of the Office of Corporation Counsel of Milwaukee.
|
COURT OF APPEALS DECISION DATED AND RELEASED August 1, 1995 |
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. |
Nos. 95-0291-FT
95-0292-FT
STATE OF WISCONSIN IN COURT OF APPEALS
IN RE THE COMMITMENT
OF LOUISE M.:
MILWAUKEE COUNTY,
Petitioner-Respondent,
v.
LOUISE M.,
Respondent-Appellant.
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IN RE THE COMMITMENT
OF THEODORE S.:
MILWAUKEE COUNTY,
Petitioner-Respondent,
v.
THEODORE S.,
Respondent-Appellant.
APPEAL from orders of
the circuit court for Milwaukee County:
DAVID L. DANCEY, Reserve Judge. Reversed.
Before Wedemeyer, P.J.,
Sullivan and Fine, JJ.
FINE, J. This is a consolidated appeal from non-final
orders by the trial court declining to undertake de novo review of a
determination by a court commissioner that there was probable cause to detain
involuntarily Louise M. and Theodore S. under the civil-commitment criteria
set out in § 51.15(1), Stats.[1] We reverse.
Probable-cause hearings
for both Louise M. and Theodore S. were held under § 51.20(7), Stats., which provides, inter alia,
that if a person “is detained under s. 51.15 ... the court shall hold a hearing
to determine whether there is probable cause to believe the allegations” in
support of detention. Court
commissioners are empowered by statute to hold this type of probable-cause
hearing in lieu of the circuit court.
See § 757.69(1)(h), Stats.[2] After the trial court denied de novo
review, both Louise M. and Theodore S. sought jury trials, as is permitted by §
51.20(11), Stats. The petitions for involuntary commitment of
both Louise M. and Theodore S. were subsequently dismissed. Louise M. was held under her
involuntary-detention order for seventeen days; Theodore S. was held under his
involuntary-detention order for nineteen days.
The question of whether
there must be de novo review in the circuit court of a court
commissioner's finding of probable cause under § 51.20(7), Stats., is a question of law that we
review de novo. See Trustees
of Ind. Univ. v. Town of Rhine, 170 Wis.2d 293, 298-299, 488 N.W.2d
128, 130 (Ct. App. 1992). Neither
Louise M. nor Theodore S. are now in custody.
Thus, whether there was probable cause to hold them in involuntary
detention is moot. Nevertheless, we
consider their appeal because this case presents an important issue that is
likely to recur. See State
ex rel. La Crosse Tribune v. Circuit Ct., 115 Wis.2d 220, 229, 340
N.W.2d 460, 464 (1983).
We do not write on a
clean slate. Dane County v.
C.M.B., 165 Wis.2d 703, 478 N.W.2d 385 (1992), held that review of a
court commissioner's determination under § 51.20(7), Stats., that there was no probable cause to detain a person
involuntarily was reviewable in the first instance by the circuit court and
that the review must be de novo.
Id., 165 Wis.2d at 705, 478 N.W.2d at 385. C.M.B.'s rationale was
clear: First, § 51.20(15), Stats., provides that appeals in
civil-commitment matters “may be taken to the court of appeals.” See id., 165 Wis.2d at
707, 478 N.W.2d at 386. Second, §
808.03(1), Stats., provides that
a “final judgment or a final order of a circuit court may be appealed as a
matter of right to the court of appeals unless otherwise provided by law.” See id., 165 Wis.2d at
708, 478 N.W.2d at 386. Third, §
808.03(1) does not authorize appeals to the court of appeals from an order of a
court commissioner because “an order of a court commissioner is not the
equivalent of a final order or judgment of a circuit court.” Ibid. Fourth, § 51.20(15), Stats., does not modify the necessity
that the order appealed from be that of a circuit court because the word
“appeal” “is expressly defined under sec. 809.01(1) to mean `a review in an
appellate court by appeal or writ of error authorized by law of a judgment
or order of a circuit court.'” Id.,
165 Wis.2d at 708–709, 478 N.W.2d at 386–387.
(Emphasis by C.M.B.)
Thus,
an appeal by definition can only be from a judgment or order of a circuit
court. Since a court commissioner's
order is not the equivalent of an order or judgment of the circuit court, and
since the order appealed from must come from the circuit court, we conclude
that the court commissioner's order cannot be appealed directly to the court of
appeals but must first go to the circuit court.
Id., 165
Wis.2d at 709, 478 N.W.2d at 387. C.M.B.
also held that the circuit court was empowered to review determinations made
under § 51.20(7) by the court commissioner and that such review was to be de
novo. Id., 165 Wis.2d
at 709–713, 478 N.W.2d at 387–389.
The trial court here
declined to review the probable-cause determinations by the court commissioner
because, in the trial court's view, C.M.B. was limited to those
instances where the court commissioner found that there was no probable
cause. We disagree and see no
principled distinction between the two situations.
Section 51.20(15), Stats., authorizes appeals to the court
of appeals. There is nothing in the
provision limiting this right of appeal to those situations where the court
commissioner has found no probable cause; indeed, given the liberty interest of
those who are potential subjects of civil-commitment, Zinermon v. Burch,
494 U.S. 113, 131 (1990) (“there is a substantial liberty interest in avoiding
confinement in a mental hospital”), we are constrained not to construe the
applicable statutes to foreclose appellate review of orders continuing
confinement. Under C.M.B.,
the court of appeals may not review directly an order of a court
commissioner. Thus, intermediate review
by the circuit court is required.
Section 808.03(2), Stats.,
specifically permits appeals from non-final orders when that is appropriate.[3] Thus, it is a distinction without a
difference that C.M.B. concerned an appeal from a final order and
this case concerns an appeal from a non-final order. Accordingly, the orders of the trial court declining to exercise de
novo review of the probable-cause determinations by the court commissioner
are reversed.
Under our supervisory
authority over the circuit courts, see Wis.
Const. art. VII, § 5(3); § 752.02, Stats.;
United Pac. Ins. Co. v. Metropolitan Sewerage Comm'n, 114 Wis.2d
258, 263–264, 338 N.W.2d 298, 300–301 (Ct. App. 1983), we adopt for de novo
review by the circuit court the time limits established in § 51.20(7)(a), Stats.: absent extraordinary circumstances, the de novo-review
hearing must, if requested by either party, be held within seventy-two hours
after the order of the court commissioner from which such review is sought.[4]
By the Court.—Orders
reversed.
Nos.
95-0291-FT(D) and 95-0292-FT(D)
SULLIVAN, J. (dissenting). Is a court commissioner's probable cause
finding for an emergency detention hearing,[5]
based upon the criteria set forth in § 51.15(1), Stats., reviewable by the circuit court when the underlying
petitions for involuntary commitment were dismissed with prejudice?
The majority concludes
that such review exists. It is
axiomatic, however, that a right of review is the creature of statute. I conclude that Article VII, Section 8, of
the Wisconsin Constitution does not authorize, nor do the Wisconsin statutes
provide for, such a review. Further,
such review may not be reasonably implied from § 51.20, Stats.
The majority relies in
part upon Dane County v. C.M.B., 165 Wis.2d 703, 478 N.W.2d 385
(1992), in reaching its conclusion. See
majority slip op. at 5‑8. C.M.B.
is distinguishable, and inapplicable, because in C.M.B., the
court commissioner entered a final order dismissing the action for want of
probable cause. C.M.B.,
165 Wis.2d at 706, 478 N.W.2d at 385‑86.
With judicial resources
in this state stretched nearly to the breaking point, I am dismayed by the
majority's creation of such a review out of the miasma of “our supervisory
authority over the circuit courts.” See majority slip op. at 8.
Equally perplexing to me are Louise M. and Theodore S.'s suggestions in
their reply brief that the circuit court should conduct another probable cause
hearing, and that we should direct the circuit court to adopt a new rule to
that effect in all cases of this type.
We should affirm the order of the trial court granting the County's
motion to dismiss the requests of Louise M. and Theodore S. for a de novo
hearing on the commissioner's probable cause finding and order.
For these reasons, I
must respectfully dissent.
[1] Section 51.15(1), Stats., provides:
Emergency detention. (1) Basis for
detention. (a) A law enforcement
officer or other person authorized to take a child into custody under ch. 48
may take an individual into custody if the officer or person has cause to
believe that such individual is mentally ill, drug dependent or developmentally
disabled, and that the individual evidences any of the following:
1. A
substantial probability of physical harm to himself or herself as manifested by
evidence of recent threats of or attempts at suicide or serious bodily harm.
2. A
substantial probability of physical harm to other persons as manifested by
evidence of recent homicidal or other violent behavior on his or her part, or
by evidence that others are placed in reasonable fear of violent behavior and
serious physical harm to them, as evidenced by a recent overt act, attempt or
threat to do serious physical harm on his or her part.
3. A
substantial probability of physical impairment or injury to himself or herself
due to impaired judgment, as manifested by evidence of a recent act or omission. The probability of physical impairment or
injury is not substantial under this subdivision if reasonable provision for
the individual's protection is available in the community and there is a
reasonable probability that the individual will avail himself or herself of
these services or, in the case of a minor, if the individual is appropriate for
services or placement under s. 48.13 (4) or (11). Food, shelter or other care provided to an individual who is
substantially incapable of obtaining the care for himself or herself, by any
person other than a treatment facility, does not constitute reasonable
provision for the individual's protection available in the community under this
subdivision.
4. Behavior
manifested by a recent act or omission that, due to mental illness or drug
dependency, 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
or drug dependency. No substantial
probability of harm under this subdivision exists if reasonable provision for
the individual's treatment and protection is available in the community and
there is a reasonable probability that the individual will avail himself or
herself of these services, if the individual can receive protective placement
under s. 55.06 or, in the case of a minor, if the individual is appropriate for
services or placement under s. 48.13 (4) or (11). The individual's status as a minor does not automatically
establish a substantial probability of death, serious physical injury, serious
physical debilitation or serious disease under this subdivision. Food, shelter or other care provided to an
individual who is substantially incapable of providing the care for himself or
herself, by any person other than a treatment facility, does not constitute
reasonable provision for the individual's treatment or protection available in
the community under this subdivision.
(b)
The officer's or person's belief shall be based on any of the following:
1. A
specific recent overt act or attempt or threat to act or omission by the
individual which is observed by the officer or person.
2. A specific recent overt act or attempt or threat to act or omission by the individual which is reliably reported to the officer or person by any other person, including any probation and parole agent authorized by the department to exercise control and supervision over a probationer or parolee.
[2] Section 757.69(1)(h),
Stats., provides:
Powers and duties of court
commissioners. (1) On authority delegated by a
judge, which may be by a standard order, and with the approval of the chief
judge of the judicial administrative district, a court commissioner appointed
under s. 48.065, 757.68, 757.72 or 767.13 may:
....
(h) Hear petitions for commitment and conduct probable cause hearings under ss. 51.20 ....
[3] Section 808.03(2), Stats., provides:
Appeals
by Permission. A judgment or order not appealable as a
matter of right under sub. (1) may be appealed to the court of appeals in
advance of a final judgment or order upon leave granted by the court if it
determines that an appeal will:
(a) Materially
advance the termination of the litigation or clarify further proceedings in the
litigation;
(b) Protect
the petitioner from substantial or irreparable injury; or
(c) Clarify an issue of general importance in the administration of justice.
[4] We understand that this will place a burden on the circuit courts, and that this is a burden that § 757.69(1)(h), Stats., was designed to eliminate. Nevertheless, for the reasons expressed in this opinion, we believe that the result here is compelled by C.M.B. We trust that attorneys for both the county and those subjected to emergency detention will seek de novo review only when the attorney believes in good faith that the court commissioner's determination was in error.