2021 WI 41
SUPREME COURT OF WISCONSIN CASE NO.: 2019AP2073
COMPLETE TITLE: In the matter of the mental commitment of S.N.W.:
Fond du Lac County, Petitioner-Respondent, v. S.N.W., Respondent-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 393 Wis. 2d 596,947 N.W.2d 655 (2020 – unpublished)
OPINION FILED: May 7, 2021 SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 23, 2021
SOURCE OF APPEAL: COURT: Circuit COUNTY: Fond du Lac JUDGE: Dale L. English
JUSTICES: Per Curiam. ANN WALSH BRADLEY, J., dissent. NOT PARTICIPATING:
ATTORNEYS: For the respondent-appellant-petitioner, there were briefs filed by Megan Sanders-Drazen, assistant state public defender. There was an oral argument by Megan Sanders-Drazen.
For the petitioner-respondent, there was a brief filed by Chelsea Belinda Brocker, corporation counsel. There was an oral argument by Chelsea Belinda Brocker. 2021 WI 41
NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2019AP2073 (L.C. No. 2019ME20)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the mental commitment of S.N.W.:
Fond du Lac County, FILED Petitioner-Respondent, MAY 7, 2021 v. Sheila T. Reiff Clerk of Supreme Court S.N.W.,
Respondent-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Dismissed as
improvidently granted.
¶1 PER CURIAM. S.N.W. petitioned for review of the
decision of the court of appeals, Fond du Lac Cnty. v. S.N.W.,
No. 2019AP2073, unpublished slip op. (Wis. Ct. App. June 17,
2020), affirming the circuit court's orders for involuntary
commitment and involuntary medication and treatment. 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. No. 2019AP2073
By the Court.—The review of the decision of the court of
appeals is dismissed as improvidently granted.
2 No. 2019AP2073.awb
¶2 ANN WALSH BRADLEY, J. (dissenting). Dismissing a
case as improvidently granted is thankfully an uncommon
occurrence in this court. An examination of such dismissals
issued in recent years reveals a largely inconsistent practice
with regard to whether this court provides any explanation for
its decision.
¶3 I write separately because I believe that this court
should explain to the litigants and public the reason for its
dismissal. The litigants, after all, have expended substantial
effort and resources arguing the case before us.
¶4 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. ¶5 Because the per curiam decision dismissing the case is
infirm in both form and substance, I respectfully dissent.
I
¶6 The per curiam decision provides: "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." This text should ring familiar. In
the 2019-20 term, this court issued two per curiam decisions dismissing cases as improvidently granted, and each provided
1 No. 2019AP2073.awb
only identical boilerplate language. State v. Kloss, 2020 WI
26, 390 Wis. 2d 685, 939 N.W.2d 564; Waukesha Cnty. v. J.J.H.,
2020 WI 22, 390 Wis. 2d 531, 939 N.W.2d 49.
¶7 However, this 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 appropriate 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." 2012 WI 28, ¶8, 339
Wis. 2d 248, 810 N.W.2d 811.
¶8 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." 2017 WI
43, ¶9, 374 Wis. 2d 715, 893 N.W.2d 790. Indeed, in Smith, two separate writings provided further nuanced discussion. See id.,
¶¶11-13 (Roggensack, C.J., concurring), ¶¶14-124 (Abrahamson,
J., dissenting).1
¶9 In some instances in the past where the majority has
failed to provide an explanation regarding the reasons for its
1For additional instances of explanations provided by the court for a dismissal as improvidently granted, see Nedvidek v. Kuipers, 2009 WI 44, 317 Wis. 2d 340, 766 N.W.2d 205; State v. Welda, 2009 WI 35, 317 Wis. 2d 87, 765 N.W.2d 555; State v. Gajewski, 2009 WI 22, 316 Wis. 2d 1, 762 N.W.2d 104; State v. Townsend, 2007 WI 31, 299 Wis. 2d 672, 728 N.W.2d 342.
dismissal as improvidently granted or any analysis, a separate
writing has stepped in to fill the void. See Halbman v.
Barrock, 2017 WI 91, ¶12, 378 Wis. 2d 17, 902 N.W.2d 248
(Abrahamson, J., concurring); Hoskins v. U.S. Fire Ins. Co., 180
Wis. 2d 534, 535-36, 509 N.W.2d 432 (1994) (Abrahamson, J.,
dissenting); id. at 536-39 (Steinmetz, J., dissenting).
¶10 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.
II ¶11 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.
¶12 Wisconsin Stat. § 51.20(10)(b) provides that
"[c]ounsel for the person to be committed shall have access to
all psychiatric and other reports 48 hours in advance of the
final hearing." In this case, it is undisputed that such a report was filed late.
3 No. 2019AP2073.awb
¶13 The issues presented by S.N.W.'s petition for review
are as follows: (1) whether the circuit court lacked competency
to proceed with the final hearing due to the 48-hour rule
violation; (2) if the circuit court retained competency, whether
it erred in admitting the tardy report and its author's
testimony; (3) whether the evidence presented at S.N.W.'s final
hearing was sufficient to prove him dangerous; and (4) whether
this appeal is moot.
¶14 Mootness provides no obstacle to our review. Although
S.N.W.
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2021 WI 41
SUPREME COURT OF WISCONSIN CASE NO.: 2019AP2073
COMPLETE TITLE: In the matter of the mental commitment of S.N.W.:
Fond du Lac County, Petitioner-Respondent, v. S.N.W., Respondent-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 393 Wis. 2d 596,947 N.W.2d 655 (2020 – unpublished)
OPINION FILED: May 7, 2021 SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 23, 2021
SOURCE OF APPEAL: COURT: Circuit COUNTY: Fond du Lac JUDGE: Dale L. English
JUSTICES: Per Curiam. ANN WALSH BRADLEY, J., dissent. NOT PARTICIPATING:
ATTORNEYS: For the respondent-appellant-petitioner, there were briefs filed by Megan Sanders-Drazen, assistant state public defender. There was an oral argument by Megan Sanders-Drazen.
For the petitioner-respondent, there was a brief filed by Chelsea Belinda Brocker, corporation counsel. There was an oral argument by Chelsea Belinda Brocker. 2021 WI 41
NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2019AP2073 (L.C. No. 2019ME20)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the mental commitment of S.N.W.:
Fond du Lac County, FILED Petitioner-Respondent, MAY 7, 2021 v. Sheila T. Reiff Clerk of Supreme Court S.N.W.,
Respondent-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Dismissed as
improvidently granted.
¶1 PER CURIAM. S.N.W. petitioned for review of the
decision of the court of appeals, Fond du Lac Cnty. v. S.N.W.,
No. 2019AP2073, unpublished slip op. (Wis. Ct. App. June 17,
2020), affirming the circuit court's orders for involuntary
commitment and involuntary medication and treatment. 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. No. 2019AP2073
By the Court.—The review of the decision of the court of
appeals is dismissed as improvidently granted.
2 No. 2019AP2073.awb
¶2 ANN WALSH BRADLEY, J. (dissenting). Dismissing a
case as improvidently granted is thankfully an uncommon
occurrence in this court. An examination of such dismissals
issued in recent years reveals a largely inconsistent practice
with regard to whether this court provides any explanation for
its decision.
¶3 I write separately because I believe that this court
should explain to the litigants and public the reason for its
dismissal. The litigants, after all, have expended substantial
effort and resources arguing the case before us.
¶4 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. ¶5 Because the per curiam decision dismissing the case is
infirm in both form and substance, I respectfully dissent.
I
¶6 The per curiam decision provides: "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." This text should ring familiar. In
the 2019-20 term, this court issued two per curiam decisions dismissing cases as improvidently granted, and each provided
1 No. 2019AP2073.awb
only identical boilerplate language. State v. Kloss, 2020 WI
26, 390 Wis. 2d 685, 939 N.W.2d 564; Waukesha Cnty. v. J.J.H.,
2020 WI 22, 390 Wis. 2d 531, 939 N.W.2d 49.
¶7 However, this 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 appropriate 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." 2012 WI 28, ¶8, 339
Wis. 2d 248, 810 N.W.2d 811.
¶8 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." 2017 WI
43, ¶9, 374 Wis. 2d 715, 893 N.W.2d 790. Indeed, in Smith, two separate writings provided further nuanced discussion. See id.,
¶¶11-13 (Roggensack, C.J., concurring), ¶¶14-124 (Abrahamson,
J., dissenting).1
¶9 In some instances in the past where the majority has
failed to provide an explanation regarding the reasons for its
1For additional instances of explanations provided by the court for a dismissal as improvidently granted, see Nedvidek v. Kuipers, 2009 WI 44, 317 Wis. 2d 340, 766 N.W.2d 205; State v. Welda, 2009 WI 35, 317 Wis. 2d 87, 765 N.W.2d 555; State v. Gajewski, 2009 WI 22, 316 Wis. 2d 1, 762 N.W.2d 104; State v. Townsend, 2007 WI 31, 299 Wis. 2d 672, 728 N.W.2d 342.
dismissal as improvidently granted or any analysis, a separate
writing has stepped in to fill the void. See Halbman v.
Barrock, 2017 WI 91, ¶12, 378 Wis. 2d 17, 902 N.W.2d 248
(Abrahamson, J., concurring); Hoskins v. U.S. Fire Ins. Co., 180
Wis. 2d 534, 535-36, 509 N.W.2d 432 (1994) (Abrahamson, J.,
dissenting); id. at 536-39 (Steinmetz, J., dissenting).
¶10 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.
II ¶11 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.
¶12 Wisconsin Stat. § 51.20(10)(b) provides that
"[c]ounsel for the person to be committed shall have access to
all psychiatric and other reports 48 hours in advance of the
final hearing." In this case, it is undisputed that such a report was filed late.
3 No. 2019AP2073.awb
¶13 The issues presented by S.N.W.'s petition for review
are as follows: (1) whether the circuit court lacked competency
to proceed with the final hearing due to the 48-hour rule
violation; (2) if the circuit court retained competency, whether
it erred in admitting the tardy report and its author's
testimony; (3) whether the evidence presented at S.N.W.'s final
hearing was sufficient to prove him dangerous; and (4) whether
this appeal is moot.
¶14 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., 2020 WI 41, ¶26 n.5, 391 Wis. 2d 231,
942 N.W.2d 277, controls. There, citing State v. McDonald, 144
Wis. 2d 531, 532, 424 N.W.2d 411 (1988), which determined in the
criminal context that the right to bring an appeal survives the
defendant's death, we concluded that the same rule applies to a
ch. 51 involuntary commitment proceeding "[g]iven the
significant liberty interests at stake." D.J.W., 391 Wis. 2d 231, ¶26 n.5. We should simply apply this rule here.
¶15 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. See Portage Cnty. v. J.W.K., 2019 WI 54,
¶12, 386 Wis. 2d 672, 927 N.W.2d 509. This case should proceed
to a full written opinion.
4 No. 2019AP2073.awb
¶16 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. See Wis. Stat. § (Rule) 809.62(1r) (setting
forth criteria for granting review, including "[a] decision by
the supreme court will help develop, clarify or harmonize the
law").
¶17 For the foregoing reasons, I respectfully dissent.
5 No. 2019AP2073.awb