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
OF DECISION OF THE COURT OF APPEALS Reported at 382 Wis.2d
832, 917 N.W.2d 234 (2018 - unpublished)
of Appeal: Court: Circuit county: Waukesha L.C. No. 2016ME478
Judge: William Domina
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.
the petitioner-respondent, there was a brief filed by Robert
J. Mueller, corporation counsel. There was an oral argument
by Robert J. Mueller.
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.
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). 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.
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
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,
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") . 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. She also failed to keep the County updated
on her current address.
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. 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. 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
The Extension Hearing commenced as scheduled, with Ms. L. in
absentia but represented by appointed counsel. 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.
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.
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. 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
STANDARD OF REVIEW
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
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
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
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.
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.
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
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.
Persistency of Personal Jurisdiction
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.
Our analysis begins with Wis.Stat. § 51.20(13) (g)3.,
which contains the statutory basis for extending an
individual's commitment. 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.
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.
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."
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
Required Notice Content
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)  apply to any judicial
proceeding or hearing under this chapter." §
51.20(10) (c) .
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,  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).
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. 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.
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.
Service of Notice
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).
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) .") . While the
governing subsections specify the content of the notice, and
who must be notified,  they provide no specific directions
with respect to the notification method.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.
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.
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. 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 ...