Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions.
The case: Fond du Lac County v. S.N.W.
Majority: Per curiam (1 paragraph)
Dissent: Justice Ann Walsh Bradley (5 pages)
The Wisconsin Supreme Court dismissed the case, but not until after the time, effort and expense of briefing and oral argument. The court determined, without explanation, that it should not have granted permission for review in the first place.
Fond du Lac County Circuit Court Judge Dale English ordered S.N.W. involuntarily committed and subject to involuntary medication and treatment, even though S.N.W. and his counsel had not received all psychiatric or medical reports at least 48 hours before S.N.W.’s final hearing, in violation of a state statutory requirement. A doctor’s report was submitted to S.N.W.’s attorney after the 48-hour deadline had passed yet before the final hearing took place. Over S.N.W.’s objection, Judge English admitted the report into evidence and allowed the doctor to testify at the final hearing. He then concluded that the County proved that S.N.W. was mentally ill, a proper subject for treatment, and dangerous.
S.N.W. appealed, arguing that because the doctor’s report was late, the circuit court lacked competency to proceed with the final hearing and the case had to be dismissed. S.N.W. argued in the alternative that if the court retained jurisdiction over the case, the report and doctor’s testimony should have been excluded from evidence.
The Wisconsin Court of Appeals, District II, affirmed. Presiding Judge Paul F. Reilly held that the 48-hour requirement did not affect the court’s competency to hold the final hearing. Further, he said, the doctor’s failure to submit the report in time “did not affect S.N.W.’s substantial rights” and the circuit court did not err in admitting the doctor’s report or testimony. S.N.W., said Reilly, “has not identified any prejudice that S.N.W. suffered as a result of having twenty-four hours as opposed to forty-eight hours” to review the doctor’s report.
S.N.W. petitioned the Wisconsin Supreme Court for review, and the court granted permission to proceed and scheduled briefing. The issues raised on review included (1) whether the appeal was moot, (2) whether the circuit court lacked competency to proceed with the final hearing due to violation of the 48-hour rule, (3) if the court retained competency to hear the matter, whether the circuit erred in admitting the report and testimony, and (4) whether the evidence presented at the final hearing was sufficient to prove S.N.W. dangerous.
After reviewing the record and the briefs of both parties, and after hearing oral arguments, we conclude that this matter should be dismissed as improvidently granted.
I write separately because I believe that this court should explain to the litigants and public the reason for the dismissal. The litigants, after all, have expended substantial effort and resources arguing the case before us.
Additionally, I write because this case implicates substantial rights and presents important questions of mental health commitment law. We granted review in order to address these novel issues of statewide public concern. And now, without explanation, we dispose of the case in a two-sentence per curiam decision, dismissing the case as improvidently granted.
[T]his dearth of explanation has not always been the norm. For example, in Michael J. Waldvogel Trucking, LLC v. LIRC, the court explained that dismissal as improvidently granted was inappropriate because a change in the law rendered the issue in question unlikely to recur and a decision in the case “would not develop or clarify the law.”
Similarly, in Smith v. Anderson, the court examined the issues in the case and ultimately explained that the dismissal as improvidently granted was based on the presence of outstanding coverage questions “for which no argument or briefing was provided” and on the premise that deciding the issues before the court only would “cause confusion and provide no answer to the parties on how they are to proceed.” Indeed, in Smith, two separate writings provided further nuanced discussion.
In a footnote, Walsh Bradley cited additional cases in which the court explained why it dismissed review as improvidently granted.
The result of the court’s inconsistent practice is a lack of guidance for potential litigants and the public, as well as an effective negation of the numerous hours of work and sums of money spent seeking a decision on the merits. Acknowledging the strong public policy rationale behind providing reasons for a dismissal as improvidently granted, the court’s general practice should be to provide an explanation for such a dismissal, and as such it should have provided an explanation in this case. It is the least we can do for parties who have expended time, energy, and money seeking a resolution from this court.
"The result of the court’s inconsistent practice is a lack of guidance for potential litigants and the public, as well as an effective negation of the numerous hours of work and sums of money spent seeking a decision on the merits." – Justice Ann Walsh Bradley
I not only take issue with the majority’s lack of explanation of its decision, but I also disagree with the decision itself. In my view, we should decide this case on the merits and not dismiss it as improvidently granted.
Mootness provides no obstacle to our review. Although S.N.W. has passed away, we knew that when we granted the petition for review in this case. In any event, our decision in Langlade County v. D.J.W. controls. There, citing State v. McDonald, which determined in the criminal context that the right to bring an appeal survives the defendant’s death, we concluded that the same rule applied to a ch. 51 involuntary commitment proceeding “[g]iven the significant liberty interests at stake.” We should simply apply this rule here.
Further, even if the case is moot, exceptions to mootness apply that allow for an otherwise moot case to be decided. Because the issues here are of great public importance and are capable of repetition, yet evade review, mootness exceptions are met. This case should proceed to a full written opinion.
Issues of great public importance substantially affecting the rights of those subject to mental health commitments should not be curtly discarded by the court with no explanation, Rather, these important issues in mental health commitment law, if decided, will serve to develop the law in a meaningful way.
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