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In re Mental Commitment of S.L.L.

Supreme Court of Wisconsin

June 12, 2019

In the matter of the mental commitment of S.L.L.
S.L.L., Respondent-Appellant-Petitioner. Waukesha County, Petitioner-Respondent,

          Submitted on Briefs: Oral Argument: February 11, 2 019

         REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 382 Wis.2d 832, 917 N.W.2d 234 (2018 - unpublished)

          Source of Appeal: Court: Circuit county: Waukesha L.C. No. 2016ME478 Judge: William Domina

          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.

          DANIEL KELLY, J.

         ¶1 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 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]

         ¶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 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 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 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 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 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.


         ¶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 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.


         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 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 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 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)l. ("[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 1 O 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 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 State ex rel. Serocki v. Circuit Court For Clark County, 163 Wis.2d 152, 471 N.W.2d 49');">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 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 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. 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, 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 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 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 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.

§ 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.

         ¶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 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 ...

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