S.P.B. v. S.P.B.

464 N.W.2d 102, 159 Wis. 2d 393, 1990 Wisc. App. LEXIS 1111

• Court: Court of Appeals of Wisconsin
• Decided: November 28, 1990
• Docket: No. 90-1005
• Status: Published

Opinions

BROWN, J.

Waukesha County appeals from a dismissal of a recommitment proceeding under ch. 51, Stats. The appeal has one issue and concerns the following statement made by the supreme court in In re D.S., 142 Wis. 2d 129, 136-37, 416 N.W.2d 292, 295 (1987):

Under the exercise of this court's superintending and administrative authority pursuant to sec. 3, art. VII, Wis. Const., we direct circuit judges henceforth to refuse to accept petitions drafted by persons not authorized to do so under sec. 51.20(4), Stats.

The trial court held that a letter filed with the trial court by a person connected with the county mental health department was not filed by a person authorized to do so under sec. 51.20(4), Stats.¹ Even though the trial court opined that the error was not prejudicial to the person alleged to be mentally ill, the court felt bound by the supreme court's directive and dismissed the proceeding. The county asks us to hold that, despite the supreme court's directive, petitions or requests drafted by persons not authorized are acceptable unless there is a finding of prejudice. We decline to do so because it would undermine the vitality of the supreme court's pronouncement.² We affirm.

The facts are undisputed. S.P.B. was committed to the care and custody of the Waukesha County sec. 51.42, Stats., department for inpatient treatment for a term of one year, to expire November 15, 1989. The county intended to pursue recommitment. On October 25,1989, a mental health counselor and representative of the sec. 51.42 department wrote a letter to the trial court requesting initiation of recommitment proceedings. Subsequently, the proceeding was tried to the court. At that time, S.P.B. moved to dismiss because there was no valid request or petition drafted by a statutorily authorized person.

The trial court initially denied the motion, ruling that a technical violation, if any, of the statutory requirements was not prejudicial to S.P.B. The court then took evidence, made its findings and ordered recommitment. Eventually, the trial court reversed itself, citing the admonition in D.S. It vacated the order of recommitment, dismissed the proceeding, and ordered S.P.B. released from custody at the Winnebago Mental Health Institute. The county appealed.

The crux of the appeal is whether the directive of the supreme court in D.S. is such that dismissal is warranted even if a showing of prejudice is absent from the record. The county seems to argue that dismissal is not mandated, but rather, petitions for commitment which are not drafted in accordance with sec. 51.20(4), Stats., are subject to dismissal.

The county observes that the facts in D.S. were that an unauthorized person requested the court to commence commitment proceedings. Yet, the D.S. court required not only proof that the drafting statute was not followed, but also that "this defect misled or caused prejudice . . .." D.S., 142 Wis. 2d at 135, 416 N.W.2d at 295. Absent this showing, technical nonconformity in pleading or procedure was found to be nonjurisdictional error. Id. The county asserts that if the supreme court reached the question of prejudicial error in D.S., it likewise should be a component in this case.

Alternatively, the county suggests that the D.S. directive is limited to the facts of that D.S. case. There, court personnel were involved in drafting the petition — a circumstance that the supreme court may have found offensive. The county reasons that the directive was designed to inform circuit courts that they should not allow court personnel to take part in the drafting of any requests or petitions. The county claims that since the request in the S.P.B. case was not made by a court-related person, the D.S. admonition does not apply.

We cannot agree with either argument. The question of prejudice concerned whether a technical error cap rise to become a jurisdictional error. The directive, however, does not concern itself with jurisdiction. Rather, it is an administrative rule designed to impose upon trial judges the task of enforcing the statute literally. Therefore, prejudice or the lack of it is an irrelevant consideration.

We read the statement of the supreme court to be a prophylactic action designed to pronounce a bright line that cannot be crossed. We further read the statement to mean that since the supervisory directive was newly announced, it was not to be applied to the D.S. case; therefore, the issue was limited to whether the error was jurisdictional. However, as for the future, circuit judges were henceforth directed to refuse to accept petitions drafted by "persons not authorized to do so under sec. 51.20(4), Stats." D.S., 142 Wis. 2d at 136-37, 416 N.W.2d at 295 (emphasis added).

The clear, unambiguous intent is to create a rule that must be followed after D.S. If we were to allow the courts to reach the prejudice component even if the directive were not followed, then the supreme court's statement would be rendered meaningless.

We feel bound to give full force and effect to the supreme court's statement and to read its directive literally. Should the supreme court mean for its directive to be subject to a prejudice component, then that is for the supreme court to say.

By the Court. — Order affirmed.

1 Section 51.20(4), Stats., reads:

PUBLIC REPRESENTATION. Except as provided in ss. 51.42(3)(ar)l and 51.437(4m)(f), the corporation counsel shall represent the interests of the public in the conduct of all proceedings under this chapter, including the drafting of all necessary papers related to the action.

This section was amended by sec. 1575, 1989 Wis. Act 31, effective August 9, 1989.

2 The Wisconsin Supreme Court, Justice Shirley Abraham-son dissenting, refused certification of this case.