Waukesha County v. M.A.C.

2024 WI 30, 8 N.W.3d 365, 995 N.W.2d 503, 409 Wis. 2d 95

• Court: Wisconsin Supreme Court
• Decided: July 5, 2024
• Docket: 2023AP000533
• Status: Published

Opinion

2024 WI 30

SUPREME COURT OF WISCONSIN CASE NO.: 2023AP533

COMPLETE TITLE: In the matter of the mental commitment of M.A.C.:

Waukesha County, Petitioner-Respondent, v. M. A. C., Respondent-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 409 Wis. 2d 95 (2023 - unpublished)

OPINION FILED: July 5, 2024 SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 20, 2024

SOURCE OF APPEAL: COURT: Circuit COUNTY: Waukesha JUDGE: Laura F. Lau

JUSTICES: PROTASIWEICZ, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed an opinion concurring in part and dissenting in part. ZIEGLER, C.J., filed a dissenting opinion. NOT PARTICIPATING:

ATTORNEYS:

For the respondent-appellant-petitioner, there were briefs filed by Colleen Marion, assistant state public defender. There was an oral argument by Collen Marion, assistant state public defender. For the petitioner-respondent there was a brief filed by Zachary M. Bosch, assistant corporation counsel. There was an oral argument by Zachary M. Bosch, assistant corporation counsel.

An amicus curiae brief was filed by Andrew T. Phillips, Matthew J. Thome, and Attolles Law, S.C., Milwaukee, on behalf of Wisconsin Counties Association.

An amicus curiae brief was filed by Katie R. York, deputy state public defender, Faun M. Moses, appellate division director, on behalf of Office of the State Public Defender.

2 2024 WI 30 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2023AP533 (L.C. No. 2020ME243)

STATE OF WISCONSIN : IN SUPREME COURT

In the matter of the mental commitment of M.A.C.:

Waukesha County, FILED Petitioner-Respondent, JUL 5, 2024

v. Samuel A. Christensen Clerk of Supreme Court

M. A. C.,

Respondent-Appellant-Petitioner.

PROTASIWEICZ, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring opinion. REBECCA GRASSL BRADLEY, J., filed an opinion concurring in part and dissenting in part. ZIEGLER, C.J., filed a dissenting opinion.

REVIEW of a decision of the Court of Appeals. Reversed.

¶1 JANET C. PROTASIEWICZ, J. M.A.C. was involuntarily

committed in Waukesha County in 2020. Two years later, the

County sought to extend M.A.C.'s commitment, and the Waukesha County Circuit Court scheduled a recommitment hearing. But the No. 2023AP533

County was not able to contact M.A.C. in the weeks leading up to

the hearing, and we have no evidence that M.A.C. knew about the

hearing. On the day of the hearing, M.A.C. did not appear.

M.A.C.'s appointed counsel was present, but she had been unable

to contact M.A.C. The circuit court found M.A.C. in default and

ordered that she be recommitted and involuntarily medicated.

¶2 M.A.C. challenges the recommitment and involuntary

medication orders on three grounds. First, she argues that an

individual subject to commitment has a right to notice of

recommitment and involuntary medication hearings. Second, she

asserts that default judgment is unavailable in those hearings.

Third, she says that the County failed to provide sufficient

evidence that she should be involuntarily medicated.

¶3 We agree with M.A.C. on all three grounds. We hold

that (1) under our statutes a subject individual is entitled to

notice of recommitment and involuntary medication hearings——

notice to counsel only is not enough, (2) our statutes do not

allow default judgment at those hearings, and (3) the County provided insufficient evidence for M.A.C.'s involuntary

medication. We overrule the contrary holdings of Waukesha

County v. S.L.L., 2019 WI 66, 387 Wis. 2d 333, 929 N.W.2d 140.

Accordingly, we reverse the court of appeals.

I. BACKGROUND

¶4 Under chapter 51, a court may order involuntary

commitment for a person with a mental illness who is dangerous

and a proper subject for treatment. See Wis. Stat.

2 No. 2023AP533

§ 51.20(1)(a)1.-2. (2021-22).1 An initial commitment may last at

most six months, but a county may petition to extend the period

of commitment.2 See § 51.20(13)(g)1., 2r. If a county petitions

for an extension, the circuit court must hold a hearing where

the county bears the burden to prove that the commitment should

be extended. See § 51.20(13)(g)3. (requiring recommitment

courts to follow the hearing procedures in § 51.20(10) to (13)).

If the county meets its burden at that hearing, a court may

extend commitment for up to twelve months. § 51.20(13)(g)1.

¶5 In a separate but closely related procedure, a court

may order that a person be involuntarily medicated. See Wis.

Stat. § 51.61(1)(g)3. Under the procedure relevant to this

case, the court must hold a hearing before ordering involuntary

medication. See § 51.61(1)(g)3., 4. At that hearing, the

county bears the burden to prove that the person is incompetent

to refuse medication by clear and convincing evidence.

Outagamie County v. Melanie L., 2013 WI 67, ¶37, 349

Wis. 2d 148, 833 N.W.2d 607. ¶6 M.A.C. has mental health disorders and was committed

in Waukesha County in 2020. At that time, the court ordered

outpatient commitment and involuntary medication. The court

extended her commitment twice, and during the period relevant to

1 All subsequent references to the Wisconsin Statutes are to the 2021-22 version. 2 In chapter 51, the legislature uses the terms "recommitment" and "extension of commitment" interchangeably. See Portage County v. J.W.K., 2019 WI 54, ¶1 n.1, 386 Wis. 2d 672, 927 N.W.2d 509. We do the same here.

3 No. 2023AP533

this appeal, M.A.C. was subject to her second extension of

commitment. That one-year extension began on August 31, 2021,

and was scheduled to expire on August 31, 2022.

¶7 Throughout that year, M.A.C. was homeless. She was

taking three medications, one of which required injection. She

had appointments to receive medication with the county health

department. She missed some of her scheduled appointments, and

on multiple occasions, the department sought orders for M.A.C.

to be taken into custody for injection.3 The department also

reports that M.A.C. refused temporary housing during this time.

¶8 On July 19, 2022——43 days before the commitment would

expire——the County filed a Petition for Recommitment,

recommending an extension of commitment. The petition listed

M.A.C.'s address as: "Homeless, please send documents to her

Case Manager." The County attached an Extension of Commitment

Report signed by M.A.C.'s case worker.

¶9 That same day, the circuit court issued a Notice of

Hearing for M.A.C.'s recommitment hearing.4 According to the distribution list, the notice was to be sent to the County's

corporation counsel, M.A.C.'s case worker, and M.A.C. But

M.A.C.'s address was listed as "Homeless."

See Wis. Stat. § 51.20(13)(dm) (allowing a treatment 3

facility director to request that the individual be taken into custody for medication).

The Honorable Laura F. Lau of the Waukesha County Circuit 4

Court presided over M.A.C.'s recommitment hearing.

4 No. 2023AP533

¶10 The court's hearing notice also addressed appointment

of counsel. M.A.C. did not have counsel appointed for the

recommitment hearing at the time the notice was issued. The

notice instructed M.A.C. that "[an] attorney will be appointed

to represent you." Two days later, on July 21, 2022, the State

Public Defender (SPD) appointed counsel to represent M.A.C. for

her recommitment hearing.5

¶11 Additionally, the court's hearing notice discussed

court-appointed examination. The court appointed two doctors to

examine M.A.C.——Dr. Cary Kohlenberg and Dr. Peder Piering. The

notice instructed M.A.C. to contact those doctors to set up an

examination. In its order appointing the examiners, the court

notified the doctors that M.A.C. was currently located at

"Homeless, please send documents to her Case Manager."

¶12 Three weeks later, on August 9, another notice was

filed. This notice——a Notice of Extension of Commitment Hearing

and Witnesses——was filed by the County. The County addressed

the notice to the "State Public Defender Office" and M.A.C. M.A.C.'s address was listed as "Homeless C/O Danielle Weber,

Case Manager." The notice listed three potential witnesses for

5In this opinion, we refer to M.A.C.'s "appointed counsel." Though SPD did appoint counsel to represent M.A.C., we have no evidence that M.A.C. ever spoke with this attorney. See In re Disciplinary Proceedings Against Kostich, 2010 WI 136, ¶16, 330 Wis. 2d 378, 793 N.W.2d 494 ("[T]he existence of a lawyer/client relationship is determined principally by the reasonable expectations of the person seeking the lawyer's advice.").

5 No. 2023AP533

the recommitment hearing: M.A.C.'s case manager and the two

court-appointed doctors.

¶13 In the days leading up to the hearing, both court-

appointed doctors filed examination reports. Neither spoke with

M.A.C. while preparing the examination report.

¶14 Dr. Kohlenberg completed his evaluation "solely per

review of collateral information." That collateral information

included the Extension of Commitment Report authored by M.A.C.'s

case worker, past commitment and recommitment reports, medical

records from 2020, and a conversation with M.A.C.'s case worker.

¶15 Despite never speaking to M.A.C., Dr. Kohlenberg

opined on M.A.C.'s fitness for commitment and involuntary

medication. When asked which particular medications Dr.

Kohlenberg discussed with M.A.C. and which advantages,

disadvantages, and alternatives they discussed, Dr. Kohlenberg

answered "N/A."6 Still, he opined that due to her mental

illness, M.A.C. was "incapable of applying an understanding of

the advantages, disadvantages and alternatives in order to make an informed choice as to whether to accept or refuse

psychotropic medication."7

6 To prove incompetence to refuse medication, a county must show that "the advantages and disadvantages of and alternatives to accepting the particular medication or treatment have been explained to the individual." Wis. Stat. § 51.61(1)(g)4.; Outagamie County v. Melanie L., 2013 WI 67, ¶67, 349 Wis. 2d 148, 833 N.W.2d 607. 7 This language is substantially the same as the incompetence standard found in Wis. Stat. § 51.61(1)(g)4.b.

6 No. 2023AP533

¶16 The second examiner, Dr. Piering, also filed a report.

He indicated that M.A.C. "could not be contacted in order to

complete the evaluation." Dr. Piering did not indicate where he

got the information he included in his report, but he included

information on M.A.C.'s treatment and well-being from 2020 to

2022. When asked which particular medications Dr. Piering

discussed with M.A.C. and which advantages, disadvantages, and

alternatives they discussed, Dr. Piering answered "NA." Dr.

Piering indicated that due to her mental illness, M.A.C. was

incapable of applying an understanding of the advantages,

disadvantages, and alternatives.

¶17 On August 16, 2022, the Court held a recommitment

hearing. M.A.C. did not appear. M.A.C.'s appointed counsel was

present, but she had not spoken with M.A.C. The appointed

counsel explained that both she and M.A.C.'s case worker had

been trying to reach M.A.C. In particular, counsel said that

M.A.C.'s case worker had "been trying . . . hard to find" M.A.C.

In explaining M.A.C.'s non-appearance, counsel offered that M.A.C. had recently witnessed a traumatic event involving her

partner.

¶18 In M.A.C.'s absence, the court asked how to resolve

the hearing. Counsel for both sides proposed dispositions. The

County asked for a default judgment and suggested that a

7 No. 2023AP533

detention order would not be appropriate.8 The County asked for

the court to "rely upon the doctor reports" to make factual

findings and order recommitment. M.A.C.'s appointed counsel

said she had "no direction" from M.A.C. and "didn't know

[M.A.C.'s] position." Counsel did suggest that M.A.C. would

likely not want to be detained. Counsel said she was "not in a

position to object" to the County's proposed factual findings.

¶19 In the end, the court found M.A.C. in default. In

doing so, the circuit court made findings "[b]ased upon the

doctors' reports and [M.A.C.]'s failure to appear." It also

found that "[M.A.C.] appeared today by counsel." Ultimately,

the circuit court determined that M.A.C. met the conditions for

continued commitment because she was mentally ill, a proper

subject for treatment, and dangerous.9

¶20 As for involuntary medication, the court found that

"[t]he advantages, disadvantages, and alternatives to medication

[had] been explained" to M.A.C. The court also concluded that

M.A.C. was not capable of making an informed choice to refuse

A circuit court may issue a detention order when a subject 8

individual fails to appear for a hearing under Wis. Stat. § 51.20(10)(d). Under that statute, the court issues a warrant so the subject individual may be arrested, detained, and brought before the court for a hearing. § 51.20(10)(d).

Specifically, 9 the court found that there was "a substantial likelihood based on her treatment record that she would be a proper subject for commitment if treatment were withdrawn." See Wis. Stat. § 51.20(1)(am). The court said that without treatment there would be "[a] substantial probability of physical impairment or injury to herself due to impaired judgment." See § 51.20(1)(a)2.c.

8 No. 2023AP533

medication because "due to mental illness" she was

"substantially incapable of applying an understanding of the

advantages, disadvantages, and alternatives of her condition."

¶21 The court thus ordered involuntary medication and a

12-month extension of commitment. M.A.C. appealed. On appeal,

M.A.C. argued that: (1) the County should have provided notice

of the hearing to M.A.C. under Wis. Stat. § 51.20(10)(a) and as

a matter of due process, (2) the circuit court improperly

granted a default judgment, and (3) the County presented

insufficient evidence for the court to order recommitment and

involuntary medication.

¶22 The court of appeals affirmed, upholding the circuit

court's orders. See Waukesha County v. M.A.C., No. 2023AP533,

unpublished slip op. (Wis. Ct. App. July 28, 2023). In its

decision, the court of appeals relied heavily on S.L.L. See 387

Wis. 2d 333. For each of the first two issues M.A.C. raised——

notice and default judgment——the court of appeals emphasized

that it was "bound by S.L.L." See M.A.C., No. 2023AP533, at ¶¶13-15. As for the sufficiency-of-the-evidence argument, the

court found that M.A.C. forfeited her claim by failing to object

to the County's evidence in circuit court. See id., ¶¶20-23.

Here, we review the court of appeals' decision.

II. DISCUSSION

¶23 In this decision, we address three interrelated

issues. First, we examine the requirement of notice, addressing

both recommitment and involuntary medication hearings in turn. Then we consider default judgment, again examining its 9 No. 2023AP533

availability in both recommitment and involuntary medication

hearings in turn. Finally, we take up the sufficiency of the

evidence for the involuntary medication order.

A. Notice

¶24 The parties dispute whether providing notice to

counsel is sufficient to provide notice to a subject individual.

M.A.C. argues that notice to the subject individual is required

while the County argues that providing notice to counsel is

sufficient. We agree with M.A.C. that our statutes require

notice to the subject individual——notice to counsel only is not

sufficient.10

¶25 In coming to this conclusion, we must interpret

statutes. Statutory interpretation is a question of law that we

review de novo. Greenwald Fam. Ltd. P'ship v. Village of

Mukwonago, 2023 WI 53, ¶14, 408 Wis. 2d 143, 991 N.W.2d 356.

When we interpret statutes, we "begin[] with the language of the

statute." State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004

WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoted source omitted). And we are "not at liberty to disregard the plain,

clear words of the statute." Id., ¶46 (quoted source omitted).

We consider the language of the statute "in the context in which

The parties also dispute whether notice to the subject 10

individual is required by due process. We do not address that argument because we determine that notice is required by statute. See County of Milwaukee v. Williams, 2007 WI 69, ¶63, 301 Wis. 2d 134, 732 N.W.2d 770 (counseling that courts "should not reach a constitutional question unless it is essential to the determination of the case").

10 No. 2023AP533

it is used" and "in relation to the language of surrounding or

closely-related statutes." Id. "If the text of the statute is

plain and unambiguous, our inquiry may stop there." Greenwald,

408 Wis. 2d 143, ¶16.

¶26 In addition, we must consider stare decisis. This

court has said that "respect for prior decisions is fundamental

to the rule of law." Johnson Controls, Inc. v. Emps. Ins. of

Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257.

Therefore, we require a "special justification" to overrule a

prior decision. Id., ¶96. We have identified five special

justifications.11 State v. Johnson, 2023 WI 39, ¶20, 407

Wis. 2d 195, 990 N.W.2d 174.

1. Notice and Recommitment

¶27 We first address notice in the context of recommitment

hearings. In chapter 51, our legislature included a provision

about notice for recommitment hearings. See Wis. Stat.

11 Those justifications are:

(1) the law has changed in a way that undermines the prior decision's rationale; (2) there is a "need to make a decision correspond to newly ascertained facts;" (3) our precedent "has become detrimental to coherence and consistency in the law;" (4) the decision is "unsound in principle;" or (5) it is "unworkable in practice."

State v. Johnson, 2023 WI 39, ¶20, 407 Wis. 2d 195, 990 N.W.2d 174 (quoting State v. Young, 2006 WI 98, ¶51 n.16, 294 Wis. 2d 1, 717 N.W.2d 729).

11 No. 2023AP533

§ 51.20(10)(a).12 We begin with the provision's text. In

relevant part, the legislature states "the petitioner's counsel

shall notify the subject individual and his or her counsel of

the time and place of final hearing." Id.13 In setting out the

notice requirement, the legislature used the conjunctive word

"and," as opposed to the disjunctive word "or." See id.

(requiring notice for "the subject individual and his or her

counsel" (emphasis added)).

¶28 We take the legislature at its word——the statute says

the County must notify "the subject individual and his or her

counsel." Id. (emphasis added). Thus, the County must provide

notice to both the subject individual and her counsel. See

Saint John's Cmtys., Inc. v. City of Milwaukee, 2022 WI 69, ¶17

12Subsection 51.20(10) governs hearings for both initial commitments and recommitments. In Wis. Stat. § 51.20(13)(g)3., the legislature mandates that "[u]pon application for extension of a commitment . . . the court shall proceed under subs. (10) to (13)." 13 In full, Wis. Stat. § 51.20(10)(a) says:

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. The court may designate additional persons to receive notice of the time and place of the final hearing. Within 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. The provision of notice of potential witnesses shall not bar either party from presenting a witness at the final hearing whose name was not in the notice unless the presentation of the witness without notice is prejudicial to the opposing party.

12 No. 2023AP533

& n.8, 404 Wis. 2d 605, 982 N.W.2d 78 (employing the

"conjunctive/disjunctive canon" to read "and" as requiring

"both").

¶29 We find further support for the conclusion that the

subject individual is entitled to notice by looking at the rest

of § 51.20. Kalal, 271 Wis. 2d 633, ¶46 ("[S]tatutory language

is interpreted in the context in which it is used [and] in

relation to the language of surrounding or closely-related

statutes."). In § 51.20, the legislature says that subject

individuals "and" their attorneys must receive notice four

times.14 Specifically, both subject individuals and their

attorneys must be provided notice for probable cause hearings,

final hearings, reexamination hearings, and "all proceedings

under this section."15 This repetition suggests that the

legislature meant for notice to be provided to both subject

individuals and their attorneys under § 51.20.

14See Wis. Stat. § 51.20(2)(b) ("The individual who is the subject of the petition, his or her counsel and, if the individual is a minor, his or her parent or guardian, if known, shall receive notice of all proceedings under this section." (emphasis added)); id. ("The notice of time and place of a hearing shall be served personally on the subject of the petition, and his or her attorney, within a reasonable time prior to the hearing to determine probable cause for commitment." (emphasis added)); 51.20(10)(a) (requiring notice of final hearings to "the subject individual and his or her counsel" (emphasis added)); 51.20(16)(g) (mandating that courts provide notice of reexamination hearings to the petitioner—— i.e., the subject individual under § 51.20(16)(a)——and legal counsel). 15 See the sources cited in the preceding footnote.

13 No. 2023AP533

¶30 Thus, under the plain text of Wis. Stat.

§ 51.20(10)(a), the petitioner must provide notice to the

subject individual.16 And "[i]f the text of the statute is plain

and unambiguous, our inquiry may stop there." Greenwald, 408

Wis. 2d 143, ¶16. However, the County would have us go a step

further. The County argues that even if § 51.20(10)(a) says who

must receive notice——both the individual and counsel——it does

not say how those people must receive notice.

¶31 Therefore, the County argues, we should look to the

rules of civil procedure to determine how the individual must be

given notice. See § 51.20(10)(c) ("Except as otherwise provided

in this chapter, the rules of . . . s. 801.01(2) apply to any

judicial proceeding or hearing under this chapter."). And the

rules of civil procedure allow serving counsel rather than

serving the party that counsel represents. See Wis. Stat.

§ 801.14(2) ("Whenever . . . 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."). Thus, the County argues it can meet its

M.A.C. also argues that a separate subsection——Wis. Stat. 16

§ 51.20(2)(b)——requires notice to the subject individual for recommitment hearings. Here, we focus on the notice requirement under § 51.20(10)(a), which indisputably applies to recommitment. See § 51.20(13)(g)3. Accordingly, we do not address whether subsections besides (10) to (13) apply to recommitment.

14 No. 2023AP533

requirement to notify both the subject individual and her

counsel by serving only counsel.

¶32 We disagree. We do not need to look to the general

rules of civil procedure where the legislature provided a

specific procedure in chapter 51. The legislature incorporated

the rules of civil procedure into chapter 51 with a condition:

The rules of civil procedure apply "[e]xcept as otherwise

provided in [chapter 51]." Wis. Stat. § 51.20(10)(c).

Similarly, the civil rules contain a self-limitation——they apply

"except where different procedure is prescribed by statute or

rule." Wis. Stat. § 801.01(2). And here, the legislature did

prescribe a procedure for notice in chapter 51. The legislature

said counties must notify "the subject individual and his or her

counsel." Wis. Stat. § 51.20(10)(a). We decline to reach

outside of chapter 51 where the legislature included a procedure

within chapter 51 that covers the subject.

¶33 This is not the first time we have addressed notice

requirements for recommitment hearings. In S.L.L., we held that "notice to . . . counsel was sufficient" under our statutes.

387 Wis. 2d 333, ¶¶27-28. That holding was unsound in

principle, and we overrule it. See Johnson, 407 Wis. 2d 195,

¶20 (precedent may be overruled when it is "unsound in

principle").

¶34 Our prior holding was unsound because the S.L.L. court

did not adequately address the plain text of Wis. Stat.

§ 51.20(10)(a). When we interpret statutes, we must "begin[] with the language of the statute." Kalal, 271 Wis. 2d 633, ¶45 15 No. 2023AP533

(quoted source omitted). And we are "not at liberty to

disregard the plain, clear words of the statute." Id., ¶46

(quoted source omitted). Accordingly, we have considered a

prior interpretation of a statute to be "unsound in principle"

when the precedential case "did not attempt to undertake a

comprehensive examination of" a statute and failed to consider a

relevant subsection. State v. Denny, 2017 WI 17, ¶70, 373

Wis. 2d 390, 891 N.W.2d 144.

¶35 Such was the case in S.L.L. Importantly, the parties

in S.L.L. did not argue that paragraph (10)(a) mandates notice

to the subject individual. See 387 Wis. 2d 333, ¶27 n.18

(stating that the argument was "not adopted by any party").

Instead, the petitioner in S.L.L. "concentrated solely on" a

different provision——Wis. Stat. § 51.20(2)(b)——to argue that

notice is required. Id. Consequently, the S.L.L. court

addressed § 51.20(10)(a) only in response to the dissent and

only in a footnote. See id. In that footnote, the court

reasoned that it would be a "difficult task" to "read[] a personal-service mandate" into § 51.20(10)(a). We disagree, for

the reasons stated above. And the court's reasoning was unsound

because it failed to adequately consider the text of the

statute. See Kalal, 271 Wis. 2d 633, ¶46 ("In construing or

interpreting a statute the court is not at liberty to disregard

the plain, clear words of the statute."); Denny, 373

Wis. 2d 390, ¶70.

16 No. 2023AP533

¶36 We hold that under our statutes, a petitioner must

provide notice of a recommitment hearing to the subject

individual and providing notice to counsel only is not enough.

2. Notice and Involuntary Medication

¶37 M.A.C. argues next that notice to the subject

individual is required for involuntary medication hearings. We

agree.

¶38 In Wis. Stat. § 51.61(1)(g)3., our legislature

identified parties that must be notified of a motion for

involuntary medication. Specifically, it said a court may order

involuntary medication only "with notice of the motion to the

individual's counsel, if any, the individual and [corporation

counsel]." § 51.61(1)(g)3.17 Just as in Wis. Stat.

§ 51.20(10)(a), the legislature uses the word "and" in Wis.

17 In relevant part, Wis. Stat. § 51.61(1)(g)3. says:

Following a final commitment order, other than for a subject individual who is determined to meet the commitment standard under s. 51.20 (1) (a) 2. e., have the right to exercise informed consent with regard to all medication and treatment unless the committing court or the court in the county in which the individual is located, within 10 days after the filing of the motion of any interested person and with notice of the motion to the individual's counsel, if any, the individual and the applicable counsel under s. 51.20 (4), makes a determination, following a hearing, that the individual is not competent to refuse medication or treatment or unless a situation exists in which the medication or treatment is necessary to prevent serious physical harm to the individual or others. . . . The hearing under this subdivision shall meet the requirements of s. 51.20 (5), except for the right to a jury trial.

17 No. 2023AP533

Stat. § 51.61(1)(g)3. The word "and" indicates that both the

individual and counsel must be notified. See Saint John's, 404

Wis. 2d 605, ¶17 & n.8 (employing the "conjunctive/disjunctive

canon" to read "and" as requiring "both"). The statute is plain

and unambiguous——the subject individual must be notified upon a

motion for involuntary medication. So, we "stop there."

Greenwald, 408 Wis. 2d 143, ¶16.18

¶39 We hold that under our statutes, a subject individual

is entitled to notice of an involuntary medication hearing and

notice to counsel only is not sufficient.

* * *

¶40 Here, all parties agree that the County did not

contact M.A.C. between the time it filed the petition for

recommitment and the August 16, 2022 hearing. The County

contacted M.A.C.'s appointed counsel only, and we have no

evidence that M.A.C. knew of the hearing. Thus, M.A.C. did not

receive the requisite notice of her recommitment and involuntary

medication hearing. B. Default Judgment

¶41 The parties also dispute whether default judgment is

available at recommitment and involuntary medication hearings.

We conclude that default judgment is not available at

recommitment hearings or at involuntary medication hearings.

18We note that the S.L.L. court did not discuss involuntary medication and did not cite Wis. Stat. § 51.61 in its opinion. See 387 Wis.2d 333.

18 No. 2023AP533

¶42 Here again, we interpret statutes under a de novo

standard. Greenwald, 408 Wis. 2d 143, ¶14. We also consider

stare decisis. See Johnson, 407 Wis. 2d 195, ¶20 (identifying

special justifications for overruling precedent). In addition,

we must review the circuit court's entry of a default judgment.

In the context of a default judgment, we review for an erroneous

exercise of discretion. Shirk v. Bowling, Inc., 2001 WI 36, ¶9,

242 Wis. 2d 153, 624 N.W.2d 375. A circuit court erroneously

exercises its discretion if it makes "an error in law." State

v. Ford, 2007 WI 138, ¶28, 306 Wis. 2d 1, 742 N.W.2d 61.

1. Default Judgment and Recommitment

¶43 We begin by considering default judgment in the

context of recommitment hearings. Default judgment is "the

ultimate sanction" and "[t]he law prefers, whenever reasonably

possible, to afford litigants a day in court and a trial on the

issues." Split Rock Hardwoods, Inc. v. Lumber Liquidators,

Inc., 2002 WI 66, ¶64, 253 Wis. 2d 238, 646 N.W.2d 19.

¶44 The legislature did not include a default judgment provision in chapter 51. But it did provide a tool for circuit

courts to use when a subject individual fails to appear for a

recommitment hearing. In Wis. Stat. § 51.20(10)(d),19 the

legislature said: "In the event that the subject

individual . . . fails to appear for the final hearing the

court may issue an order for the subject individual's

19 Again, subsection (10) applies to recommitment under Wis. Stat. § 51.20(13)(g)3.

19 No. 2023AP533

detention . . . ." If the court orders detention, it "shall

hold the final commitment hearing within 7 days from the time of

detention." Id.

¶45 So a circuit court clearly has one option when a

subject individual fails to appear for a recommitment hearing——

issuing a detention order. The parties disagree about what

other tools are available. M.A.C. argues that the detention

order is the outer limit on the court's power, while the County

suggests that the circuit court can go further than detention

and enter a default judgment.

¶46 We agree with M.A.C. that the detention order is the

outer limit on the circuit court's power. If a subject

individual fails to appear for a hearing, a court may take

evidence about the cause of the nonappearance. Cf. Waukesha

County v. E.J.W., 2021 WI 85, ¶35, 399 Wis. 2d 471, 966

N.W.2d 590 (allowing a circuit court to "evaluate the

circumstances under which an adjournment is sought and make its

own determination as to whether a person subject to commitment is attempting to manipulate the system").

¶47 Based on that evidence, the court then has two

options: issue a detention order or adjourn the hearing. See

Wis. Stat. § 51.20(5)(a), (10)(d); E.J.W., 399 Wis. 2d 471, ¶34

("Whether to grant or deny an adjournment is a decision left to

the circuit court's discretion."). If it chooses to issue a

detention order, the recommitment hearing would be held within

20 No. 2023AP533

seven days of detention. § 51.20(10)(d).20 If the court chooses

to adjourn, it may end the proceedings or hold another hearing

up until the commitment order expires. See Walworth County v.

M.R.M., 2023 WI 59, ¶24, 408 Wis. 2d 316, 992 N.W.2d 809 ("[T]he

circuit court must hold a hearing on the petition for extension

before the previous order expires or it loses competency to

extend the commitment." (quoted source omitted)).

¶48 Elsewhere in § 51.20, the legislature provides

evidence that default judgment should not be available in

recommitment proceedings. In § 51.20(10)(c), the legislature

says that "[t]he court shall hold a final hearing" to determine

if recommitment is appropriate. With that mandate in mind, our

court of appeals reasoned that summary judgment would

shortchange subject individuals by depriving them of a

commitment hearing. Shirley J.C. v. Walworth County, 172

Wis. 2d 371, 378, 493 N.W.2d 382 (Ct. App. 1992) ("If we were to

allow summary judgment, the hearing requirement in

[§ 51.20(10)(c)] would be meaningless."). Similarly, if a court entered default judgment, it would undermine the legislature's

mandate that the court hold a hearing.

¶49 And we should heed the legislature's mandate

especially closely in this context, given that default judgment

is "the ultimate sanction." Split Rock, 253 Wis. 2d 238, ¶64.

20 The County asks this court for guidance as to whether a detention order tolls the deadline for recommitment hearings. We do not decide that issue because the circuit court here did not issue a detention order.

21 No. 2023AP533

Courts should "whenever reasonably possible . . . afford

litigants a day in court." Id. All the more true in the

context of a civil commitment, which "constitutes a significant

deprivation of liberty." Addington v. Texas, 441 U.S. 418, 425

(1979). "With such an important liberty interest at stake, the

accompanying protections should mirror the serious nature of the

proceeding." Langlade County v. D.J.W., 2020 WI 41, ¶43, 391

Wis. 2d 231, 942 N.W.2d 277. Given the severity of a default

judgment and the important interests at stake, we decline to

read default judgment into chapter 51's recommitment process.

¶50 In contrast to our conclusion here, the S.L.L. court

held that default judgment is available at recommitment

hearings. See 387 Wis. 2d 333, ¶38. The court said that the

legislature allowed default judgment when it incorporated the

rules of civil procedure into chapter 51. See id. (citing Wis.

Stat. §§ 51.20(10)(c), 806.02(5)). That holding was unsound in

principle and we overrule it.21 See Johnson, 407 Wis. 2d 195,

¶20 (precedent may be overruled when it is "unsound in principle").

To summarize the impact of this decision on S.L.L.: 21 We overrule S.L.L.'s holdings regarding (1) whether the subject individual must be provided notice of recommitment hearings under our statutes and (2) whether default judgment is available at recommitment hearings under our statutes. See 387 Wis. 2d 333, ¶¶27-28, 35-38. We do not disturb S.L.L.'s related holdings about: the content of a recommitment notice, the constitutional requirements for notice of recommitment, and the constitutional and statutory right to be present at the recommitment hearing. See id., ¶¶22-25, 29-30, 33-34.

22 No. 2023AP533

¶51 The S.L.L. court went awry by focusing on the

permissive nature of detention orders. The court highlighted

the word "may" in Wis. Stat. § 51.20(10)(d), which gives circuit

courts discretion over whether to issue detention orders. See

§ 51.20(10)(d) ("[T]he court may issue an order for the subject

individual's detention . . . ." (emphasis added)); S.L.L., 387

Wis. 2d 333, ¶36. In the end, the S.L.L. court hinged its

reasoning on this statutory discretion. It said that detention

orders are "not mandatory" and "[t]herefore, [do] not preclude

the use of non-conflicting general rules of civil procedure,"

like default judgment. See S.L.L., 387 Wis. 2d 333, ¶38; see

also id., ¶36 n.25 (asserting it is "inexplic[able]" that "a

discretionary decision" would "prohibit[] the circuit court from

employing any other remedy against an absent defendant"). In

fact, the court said there is "no textual suggestion" that

detention orders should preclude default judgment. Id., ¶36

n.25.

¶52 However, we see a textual suggestion that detention orders preclude default judgment in Wis. Stat. § 51.20(10)(c).

As we explained above, the legislature limited its incorporation

of the civil rules, saying the rules apply "[e]xcept as

otherwise provided" in chapter 51. Wis. Stat. § 51.20(10)(c);

see also Wis. Stat. § 801.01(2) (noting the civil rules apply

"except where different procedure is prescribed by statute or

rule"). By using the phrase "[e]xcept as otherwise provided,"

the legislature suggests that the general rules of civil procedure should not apply when the legislature provided 23 No. 2023AP533

specific procedures in chapter 51. Here, the legislature

provided a procedure for courts to follow when a defendant does

not appear for a recommitment hearing. The court may issue a

detention order under Wis. Stat. § 51.20(10)(d).

¶53 We need not get distracted——as the S.L.L. court did——

by the fact that issuing a detention order is discretionary. A

discretionary rule is still a rule that "otherwise provide[s]" a

procedure for courts to follow. See § 51.20(10)(c).

¶54 Moreover, courts should generally "afford litigants a

day in court" and "default judgments are regarded with

particular disfavor." See Split Rock, 253 Wis. 2d 238, ¶64.

The S.L.L. court never mentioned this directive. In the end,

the S.L.L. court's conclusion runs contrary to our case law

emphasizing the severity of default judgment and fails to heed

the text of Wis. Stat. § 51.20(10)(c).

¶55 We hold that under our statutes, a circuit court may

not enter default judgment for recommitment proceedings.

2. Default Judgment and Involuntary Medication ¶56 Similarly, default judgment is not available in

involuntary medication hearings. We can see this in the plain

text of our statutes. In Wis. Stat. § 51.61(1)(g)3., the

legislature said——with exceptions not relevant to this case——

that a court orders involuntary medication "following a

hearing." And the legislature provided guidance on what that

hearing should look like. The statutory text says that the

involuntary medication hearing "shall meet" the same requirements as other hearings under chapter 51. 24 No. 2023AP533

§ 51.61(1)(g)3. ("The hearing under this subdivision shall meet

the requirements of [Wis. Stat. §] 51.20(5), except for the

right to a jury trial."). Under those requirements, a hearing

must "conform to the essentials of due process and fair

treatment," including "the right to counsel" and "the right to

present and cross-examine witnesses." Wis. Stat. § 51.20(5)(a)

(noting those requirements apply to all "hearings which are

required to be held under this chapter").

¶57 If a circuit court were allowed to enter a default

judgment, it would undermine the legislature's directive to hold

a fair hearing. For instance, if a court could enter default

judgment, subject individuals would not be able to "present and

cross-examine witnesses." See § 51.20(5)(a).

¶58 Further, our law in similar contexts suggests that

default judgments would undermine the statutory mandate to hold

a fair hearing. In the criminal context, default judgment is

not available. And in commitment proceedings, summary judgment

is not allowed. Shirley J.C., 172 Wis. 2d at 378. Our court of appeals said that summary judgment would render the commitment

hearing requirement "meaningless." Id.

¶59 Like criminal cases and commitment proceedings,

involuntary medication hearings implicate liberty interests.

"The forcible injection of medication into a nonconsenting

person's body represents a substantial interference with that

person's liberty." Melanie L., 349 Wis. 2d 148, ¶43 (quoting

Washington v. Harper, 494 U.S. 210, 221 (1990)).

25 No. 2023AP533

"Administration of psychotropic drugs is no small matter."

D.J.W., 391 Wis. 2d 231, ¶43 n.7.

¶60 And like summary judgment, default judgment undermines

the hearing mandate. Default judgment is the "ultimate

sanction" and deprives individuals of "a day in court and a

trial on the issues." Split Rock, 253 Wis. 2d 238, ¶64. Thus,

default judgment would violate the statutory requirement to hold

hearings with "fair treatment." See Wis. Stat. § 51.20(5)(a).

¶61 We hold that default judgment is not allowed in

involuntary medication hearings under Wis. Stat. § 51.61(1)(g)3.

¶62 Here, the court entered default judgment at M.A.C.'s

August 16, 2022 recommitment and involuntary medication hearing.

Since default judgment is not allowed in those proceedings, the

court's order violated our statutes and the court erroneously

exercised its discretion. Ford, 306 Wis. 2d 1, ¶28 ("An

erroneous exercise of discretion may arise from an error in

law . . . ."). C. Sufficiency of the Evidence

¶63 Finally, M.A.C. argues that the County did not provide

sufficient evidence for the circuit court to order involuntary

medication.22 We agree.

At times, M.A.C. seems to argue that the County also 22

provided insufficient evidence for the recommitment order. But in her briefs to this court, she focuses on the sufficiency of the evidence for the involuntary medication order. Accordingly, we address only that order in this section.

26 No. 2023AP533

¶64 When seeking an involuntary medication order, a county

must prove that an individual is incompetent to refuse

medication by clear and convincing evidence. Wis. Stat.

§ 51.20(13)(e); Melanie L., 349 Wis. 2d 148, ¶37. The county

proves incompetence under the standard set forth in Wis. Stat.

§ 51.61(1)(g)4.23

¶65 Under that provision, a county must make two showings.

First, a county must show that "the advantages and disadvantages

of and alternatives to accepting the particular medication or

treatment have been explained to the individual."

§ 51.61(1)(g)4.; Melanie L., 349 Wis. 2d 148, ¶67. Second, a

county must make a showing regarding the individual's ability to

appreciate that information under the standard in

§ 51.61(1)(g)4.a. or b. Here, the County focused on the latter,

23 Wis. Stat. § 51.61(1)(g)4. says:

[A]n individual is not competent to refuse medication or treatment if, because of mental illness, developmental disability, alcoholism or drug dependence, and after the advantages and disadvantages of and alternatives to accepting the particular medication or treatment have been explained to the individual, one of the following is true:

a. The individual is incapable of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives.

b. The individual is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her mental illness, developmental disability, alcoholism or drug dependence in order to make an informed choice as to whether to accept or refuse medication or treatment.

27 No. 2023AP533

which requires showing that "because of mental illness," the

subject individual is "substantially incapable of applying an

understanding of the advantages, disadvantages and alternatives

to his or her mental illness . . . in order to make an informed

choice as to whether to accept or refuse medication."

§ 51.61(1)(g)4.b.

¶66 In this case, we must apply the statutory standard to

the facts to determine whether the County met its burden. We do

that review de novo. Melanie L., 349 Wis. 2d 148, ¶39.

¶67 As a threshold matter, M.A.C. did not forfeit her

sufficiency challenge, as the court of appeals incorrectly

determined. See M.A.C., No. 2023AP533, at ¶22. The court of

appeals determined that M.A.C. forfeited this issue by failing

to raise the issue in the circuit court. Id., ¶21. But even

setting aside the issue of whether M.A.C.'s appointed

recommitment counsel could have raised the issue in circuit

court given that she had "no direction" from M.A.C., M.A.C.'s

challenge is still proper by statute. Under Wis. Stat. § 805.17(4), in actions heard without a jury, "the question of

the sufficiency of the evidence to support the findings may be

raised on appeal whether or not the party raising the question

has objected in the trial court." Thus, forfeiture is not an

obstacle to our review.

¶68 We determine that the County failed to meet its clear

and convincing burden on the first showing——that the advantages,

disadvantages, and alternative to a particular medication had been explained to M.A.C. Notably, the County did not formally 28 No. 2023AP533

introduce anything into evidence and did not call any of its

three proposed witnesses.24 Instead, the County asked the

circuit court to "rely upon the doctor reports" to make factual

findings. The circuit court complied and made all its findings

"[b]ased upon the doctors' reports and [M.A.C.]'s failure to

appear."

¶69 But the doctors' reports weren't much to rely on.

Neither doctor spoke to M.A.C., and one failed to explain how he

obtained any information about M.A.C. Both doctors indicated

they did not discuss the advantages, disadvantages, and

alternatives to medication with M.A.C. Based on only those

doctors' reports,25 the court found that "[t]he advantages,

disadvantages, and alternatives to medication [had] been

explained" to M.A.C.

¶70 The County cannot prove that M.A.C. received

information about the medications by relying on reports which

We acknowledge that there is an open question about 24

whether a petitioner must move court-ordered examination reports into evidence in recommitment proceedings. See Outagamie County v. L.X.D.-O., 2023 WI App 17, ¶¶34-36, 407 Wis. 2d 441, 991 N.W.2d 518 (suggesting that the rule may be different for commitment versus recommitment proceedings).

The parties dispute whether the circuit court could rely 25

on the case worker report which was attached to the recommitment petition. In that report, M.A.C.'s case worker indicated that a prescriber had "discussed the risks, benefits and alternatives to medications, particularly her Abilify Maintena injection" with M.A.C. But even if the court could rely on that report——an issue we do not decide——it would not change our decision. The prescriber discussed the medication with M.A.C. in April 2022, nearly four months before the hearing, and the conversation was about only one of M.A.C.'s three medications.

29 No. 2023AP533

show that the opposite is true. The doctors' reports

affirmatively state the examiners did not speak with M.A.C.

about her medications. That cannot be enough to prove that "the

advantages and disadvantages of and alternatives to accepting

the particular medication or treatment have been explained to

the individual." Wis. Stat. § 51.61(1)(g)4.

¶71 "Administration of psychotropic drugs is no small

matter" and a circuit court's procedure "should mirror the

serious nature of the proceeding." D.J.W., 391 Wis. 2d 231, ¶43

& n.7. Involuntary medication hearings "cannot be perfunctory."

Melanie L., 349 Wis. 2d 148, ¶94. We hold that the County

failed to provide sufficient evidence for M.A.C.'s involuntary

medication.

III. CONCLUSION

¶72 We reverse the decision of the court of appeals for

three reasons. First, a subject individual is entitled to

notice of recommitment and involuntary medication hearings under

Wis. Stat. §§ 51.20(10)(a) and 51.61(1)(g)3. Second, under our statutes, default judgment is not available for recommitment or

involuntary medication hearings. Third, the County failed to

provide sufficient evidence for M.A.C.'s involuntary medication.

By the Court.—The decision of the court of appeals is

reversed.

30 No. 2023AP533.bh

¶73 BRIAN HAGEDORN, J. (concurring). I agree with the

majority that the notice provided to M.A.C. was insufficient.

Both the recommitment and involuntary medication statutes

require that notice be sent to the subject individual "and" his

or her counsel.1 The majority correctly explains why the

statutory text and context support the conclusion that notice

must go to both, not to counsel alone.2

¶74 On the recommitment issue, however, one might argue

that we should nonetheless affirm because Waukesha County v.

S.L.L. held that notice to the subject's attorney is sufficient.

2019 WI 66, ¶30, 387 Wis. 2d 333, 929 N.W.2d 140. But it is

questionable whether S.L.L. should be understood this way, or at

least, extended to a new statute. The provision at issue in

this case——Wis. Stat. § 51.20(10)(a)——was not argued or briefed

by the parties in S.L.L. Instead, the petitioner there argued

that § 51.20(2)(b) required the County to personally serve her

with the final hearing notice. Id., ¶11. The majority addressed § 51.20(10)(a) briefly, but only in a footnote

For final recommitment hearings, the County is required to 1

"notify the subject individual and his or her counsel of the time and place of final hearing." Wis. Stat. § 51.20(10)(a). And notice of the motion to involuntarily medicate a person must be sent to "the individual's counsel, if any, the individual and the [corporation] counsel." Wis. Stat. § 51.61(1)(g)3.

This case does not ask us to decide how notice must be 2

provided. The County argues that notice to the subject's attorney is sufficient; it does not argue that, if notice to the attorney is insufficient, mailing the notice to M.A.C.'s homeless shelter adequately apprised her of the proceedings. Therefore, like the majority, I would not address that question.

1 No. 2023AP533.bh

responding to the dissent. The majority explained that

§ 51.20(10)(a) does not require personal service because the

legislature wrote "notify," not "serve" or "present." Id., ¶27

n.18.

¶75 This short rejoinder did not interact with the plain

language of § 51.20(10)(a) which, again, was not raised or

briefed by the parties. However, I acknowledge that the logic

of S.L.L.——particularly its conclusion that notice to the

attorney constitutes notice to the subject individual——would

suggest § 51.20(10)(a) only requires notice to the attorney.

But to my mind, the statutory language could not be clearer:

the County "shall notify the subject individual and his or her

counsel." § 51.20(10)(a) (emphasis added). This unmistakably

mandates something different over and above the default rule of

civil procedure that notice to counsel alone is enough.3 The

subject individual must be notified as well. Therefore, given

that § 51.20(10)(a) was not at issue in S.L.L., I would not

extend its reasoning here given its contradiction with what the text so plainly says.

¶76 And that conclusion is sufficient to decide this case.4

Unlike the majority, I would stop there. For these reasons, I

respectfully concur in the judgment.

3 See Wis. Stat. § 801.14(2). 4 There are credible forfeiture arguments regarding M.A.C.'s failure to raise notice at the hearing or in a motion for postdisposition relief. However, the court of appeals substantively addressed notice and this court took the case to answer that question. Given this, even if forfeiture applies, I would reach the merits.

2 No. 2023AP533.rgb

¶77 REBECCA GRASSL BRADLEY, J. (concurring in part,

dissenting in part). I agree with the majority that the record

lacked sufficient evidence for the circuit court to order

involuntary medication. See majority op., ¶¶63-70. Wisconsin

Stat. § 51.61(1)(g)4. required the County to show by clear and

convincing evidence1 "the advantages and disadvantages of and

alternatives to accepting the particular medication or treatment

have been explained to the individual." The County failed to

show M.A.C. received such information. As the County requested,

the circuit court relied on two reports that disclaimed any

discussion of the advantages and disadvantages of accepting the

particular medication or treatment ever took place. There was

nothing in the record——much less clear and convincing evidence——

to support a finding that the advantages and disadvantages of

accepting the particular medication or treatment were explained

to M.A.C.

¶78 The majority proceeds to make a mess of the remaining

issues. It erroneously overrules Waukesha County v. S.L.L.,

2019 WI 66, 387 Wis. 2d 333, 929 N.W.2d 140, on the questions of

notice and default judgment. Everyone agrees notice needed to

be provided to both M.A.C. and her attorney; the question is how

notice must be given. See 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."); Wis. Stat.

1 Wis. Stat. § 51.20(13)(e).

1 No. 2023AP533.rgb

§ 51.61(1)(g)3. (requiring notice be sent "to the individual's

counsel, if any, the individual and the applicable counsel under

s. 51.20 (4)"). S.L.L. held that under Wis. Stat. § 801.14(2),

providing notice to the subject individual's counsel satisfies

the statutory requirement of providing notice to the individual.

387 Wis. 2d 333, ¶¶26-27, 27 n.18. As Chief Justice Annette

Kingsland Ziegler well explains, S.L.L. reasonably interpreted

§ 51.20(10)(a) to specify who must be given notice, but not how;

the rules of civil procedure, fully applicable to the civil

proceedings under Chapter 51 in the absence of conflict, supply

that answer. Dissent, ¶¶108-11. There is no legitimate reason

to overrule S.L.L.

¶79 As for default, the majority seriously errs (again) by

holding default judgment is unavailable in recommitment and

involuntary medication hearings. As Chief Justice Ziegler

explains, the rules of civil procedure, which provide for

default judgment, are incorporated into Chapter 51, and nothing

in Chapter 51 even remotely suggests those provisions are displaced. Id., ¶¶116-19. Wisconsin stat. § 51.20(10)(d)

allows circuit courts to issue detention orders if the subject

individual is not detained and fails to appear for the final

hearing; nothing in the statute suggests this tool supplants the

default judgment provisions. S.L.L., 387 Wis. 2d 333, ¶¶35-36.

The Chief Justice rightly criticizes the majority for apparently

relying on a newly minted canon of statutory construction,

unmoored from the decisions the majority cites, which disfavors judicial use of default judgment. Dissent, ¶120. It is hard to

see the majority's analysis of whether default judgment is

allowed in recommitment and involuntary medication hearings as

anything but a shallow due process analysis masquerading as

statutory interpretation.2 While the majority may find its

default judgment analysis useful in this case, meddling with the

rules of civil procedure by exempting Chapter 51 cases from

their application may unsettle other areas of civil law.

¶80 Because the majority gets only one issue right while

botching the others, I concur in part and dissent in part.

2For example, the court suggests the hearing required under Wis. Stat. §§ 51.20(10)(c) and 51.61(1)(g)3. would be meaningless if default judgment is a tool available to circuit courts. But the majority's argument springs from the due process analysis of a court of appeals decision, not statutory interpretation. Shirley J.C. v. Walworth Cnty., 172 Wis. 2d 371, 378, 493 N.W.2d 382 (Ct. App. 1992). This argument also appeared in the due process analysis of the dissent in Waukesha County v. S.L.L., 2019 WI 66, ¶¶73-74, 387 Wis. 2d 333, 929 N.W.2d 140 (Ann Walsh Bradley, J., dissenting). The majority neglects to explain as a textual matter how default judgment in any way contradicts the requirement to hold a hearing.

3 No. 2023AP533.akz

¶81 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting).

M.A.C. filed a petition for review of a court of appeals

decision which affirmed her recommitment and involuntary

medication orders under chapter 51. The petition raises the

following three issues:

1. [Under what circumstances may a default judgment] be entered against an individual who appears by counsel at a commitment hearing?

2. [W]hether Wis. Stat. § 51.20(10)(a) entitles an individual to personal notice of a recommitment hearing. This statute provides: "[w]ithin 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 the final hearing."

3. [W]hether a person can forfeit their right to an examination of their competency to refuse medication. ¶82 The court of appeals concluded that this case was

governed by this court's decision in Waukesha County v. S.L.L.,

2019 WI 66, 387 Wis. 2d 333, 929 N.W.2d 140. Regarding the

issue of notice, the court of appeals stated:

This court is bound by S.L.L., where substantially similar arguments were made and rejected by our supreme court. In S.L.L., our supreme court determined that service of the recommitment hearing notice on the subject's lawyer complied with the statutes and that using indirect service methods did not violate due process when the subject was homeless and had failed to adhere to the required condition of keeping the County informed of her current address. S.L.L., 387 Wis. 2d 333, ¶¶26-30 & n.18. These same conclusions apply to M.A.C. First, service of the notice on her appointed attorney satisfies the statutes. Second, M.A.C., like S.L.L., failed to keep

1 No. 2023AP533.akz

the County informed of her current address, making it difficult if not impossible for the County to personally serve her the notice. Waukesha Cnty. v. M.A.C., No. 2023AP533, unpublished slip op.,

¶13 (Wis. Ct. App. July 28, 2023). The court of appeals also

concluded that S.L.L. controls regarding the default judgment

issue, as M.A.C. presented "the same factual scenario present in

S.L.L., where our supreme court approved a default judgment."

Id., ¶16.

¶83 The majority should exercise restraint instead of

wading into issues that go beyond the arguments and merits of

the case. Once the majority determined that notice must be

provided to M.A.C., no other issues remain. The majority

determines that M.A.C. is "entitled to notice" and that the

legislature "meant for notice to be provided to both subject

individuals and their attorneys." Majority op., at ¶¶3, 29. I

agree notice must be provided. The issue becomes how notice

must be provided. S.L.L. answered that notice can be provided

indirectly. Whether the majority prefers it or not, the

statutes allow notice to be provided in a variety of ways.

Here, the majority fails to explain how notice can be provided

to someone who does not apprise court or counsel of her

whereabouts, and is homeless.

¶84 Additionally, given the fact the majority has

concluded that notice was not properly provided to M.A.C., no

other issues remain to be decided. In other words, the default

judgment entered against M.A.C. is rendered moot by the majority's notice determination. Nonetheless, the majority

needlessly wades into a determination that default judgment is 2 No. 2023AP533.akz

unavailable. Any rationale for this conclusion appears rooted

in a particularized notion of "fairness," untethered to the law

or practice and procedure. Default judgment is an available

tool for relief that should not be disturbed.

¶85 Inexplicably, on its own volition, the court now

determines that:

(1) under our statutes a subject individual is entitled to notice of recommitment and involuntary medication hearings——notice to counsel only is not enough, (2) our statutes do not allow default judgment at those hearings, and (3) the County provided insufficient evidence for M.A.C.'s involuntary medication. Majority op., ¶3. Particularly where, as here, the individual

is homeless but is represented by a lawyer and fails to keep the

court apprised of her whereabouts, the issue of receiving notice

becomes more complicated. While this court's recent holding in

S.L.L., 387 Wis. 2d 333, already definitively answers questions

presented again in this case, the majority nonetheless overrules

the S.L.L. court and reverses the court of appeals. I dissent

because the court of appeals was correct. S.L.L., recently decided by this court, directly governs this case and should not

be overruled.

¶86 M.A.C. was first committed in June 2020 and has been

recommitted several times since. She is diagnosed with

schizoaffective disorder and is treated with a monthly

injectable dose of medication along with two oral medications.

During the initial commitment, M.A.C. was released to outpatient

status under a conditional order that provided if she missed scheduled medication appointments, the sheriff was authorized to 3 No. 2023AP533.akz

bring her to her monthly injection. M.A.C. believes that she

does not have a mental illness and does not need medication. At

some point she was evicted from her apartment and at the time of

the recommitment order at issue, she was homeless.

¶87 A social worker who manages M.A.C.'s case filed a

petition for an extension of her commitment. The petition

requested a recommitment hearing and alleged that M.A.C.'s

recommitment was needed to protect society, M.A.C., or both, and

that M.A.C. is "dangerous because there is a substantial

likelihood . . . that [M.A.C.] would be a proper subject for

commitment if [her current] treatment is withdrawn."

¶88 The circuit court scheduled a recommitment hearing.

The notice of hearing listed M.A.C. as homeless. The notice

directed M.A.C. to contact the court-appointed doctors for

examination before the recommitment hearing. The notice

indicated that an attorney would be appointed to represent

M.A.C. and the State Public Defender's office phone number was

provided. ¶89 A public defender was appointed to represent M.A.C.

for the recommitment hearing. Waukesha County sent a separate

notice of recommitment to the State Public Defender's office and

to the social worker managing M.A.C.'s case. It is undisputed

that M.A.C. was not personally served with the notice of

recommitment, but the State Public Defender's office did receive

the notice.

¶90 M.A.C. did not contact either of the court-appointed doctors. Both doctors, however, filed reports with the circuit

4 No. 2023AP533.akz

court opining that M.A.C. met the statutory criteria and should

be recommitted. One doctor based his opinion on prior

examinations of M.A.C., her treatment records, and his contact

with the social worker. That doctor recommended outpatient

treatment for M.A.C. The other doctor did not specifically

identify the basis for his opinion, although he referred to past

examinations of M.A.C. and her treatment record. He recommended

inpatient treatment.

¶91 The circuit court subsequently held a recommitment

hearing. M.A.C. failed to appear. Her attorney was present and

explained to the court:

I have no explanation for her nonappearance. I have been trying to reach her. I know [the social worker] has been trying as well. [M.A.C.] did have her most recent shot, but she also has had a fairly recent, I think, shocking experience . . . . Her significant other . . . lit himself on fire in front of her. Sadly, M.A.C. had apparently asked jail staff to kill her, and

had expressed a desire to kill her boyfriend and her son.

¶92 Waukesha County stated that the court could order

M.A.C. into custody, but the best option would be to find her in

default "because the [Wis. Stat. § ]51[.]42 Board knows that

[M.A.C.] is present in Waukesha County, and the [§ ]51[.]42

board has been able to provide services including her outpatient

injection." The County stated:

I don't think it would be in her best interests regarding her treatment to take her into custody [as] an inpatient. I don't think that's the least restrictive environment for her. I do understand that by finding her in default, this Court is giving up the rights that she has, but under Supreme Court precedent that comes out of this County, S.L.L., [387

5 No. 2023AP533.akz

Wis. 2d 333], the County has properly noticed [her], and, therefore, I ask the Court find her in default and rely upon the doctor reports to find the requisite requirements to continue commitment. M.A.C.'s counsel said:

I have no direction from my client as to how she's wishing to proceed on this. I would agree with [the County] that I don't believe my client would want to be taken into custody. She has cooperated with getting her shot, and I don't know her position at this time. ¶93 Thereafter, the circuit court entered default judgment

against M.A.C. As an evidentiary basis, the court relied on the

doctors' reports that had been filed. The court concluded that

the requirements for recommitment had been met. When M.A.C.'s

counsel was asked her position, she responded that she was not

in a position to object. The court found, based on the doctors'

reports and M.A.C.'s failure to appear for the hearing, that

grounds exist to extend the commitment, and that M.A.C. met the

statutory criteria for an outpatient recommitment based on Wis.

Stat. § 51.20(1)(am), linked to the third dangerousness

standard, § 51.20(1)(a)2.c. The court ordered M.A.C. recommitted for 12 months. It then made the requisite findings

that "[t]he advantages, disadvantages, and alternatives to

medication [had] been explained" to M.A.C. The court also

concluded that medication would have therapeutic value and "the

advantages, disadvantages, and alternatives to medication had

been explained" but that she was not capable of making an

informed choice to refuse the medication because "due to mental

illness" she is "substantially incapable of applying an understanding of the advantages, disadvantages, and alternatives

6 No. 2023AP533.akz

of her condition." The circuit court then entered the

involuntary medication order as well.

¶94 In the court of appeals, M.A.C. argued that she was

entitled to personal service of the notice of recommitment

hearing. She stated that the circuit court erroneously

exercised its discretion by entering default against her with

her attorney present at the recommitment hearing. Finally,

M.A.C. stated the evidence presented was insufficient to support

the orders entered by the circuit court. The court of appeals

rejected these arguments and affirmed the circuit court's orders

for recommitment and involuntary medication.

¶95 The court of appeals was correct. I respectfully

dissent.

I. STATUTORY REQUIREMENTS

¶96 The seminal issue is whether notice was provided under

the statute. Wisconsin Stat. § 51.20(10)(a) states, "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." When a party

does not appear, that alone does not dictate whether the case

may proceed. Before the case moves forward, however, the court

often inquires whether notice was provided. The provision of

notice may occur in a variety of ways. Sometimes statutory

notice is properly provided indirectly.

¶97 The language of the statute directs the County to

notify M.A.C. and her lawyer, but the statute does not provide how that notice must occur. We know that when personal service

7 No. 2023AP533.akz

is required——which is not required in this statute——the

legislature uses different language. See Wis. Stat.

§ 51.20(2)(b) ("The notice of time and place of a hearing shall

be served personally on the subject of the petition, and his or

her attorney, within a reasonable time prior to the hearing to

determine probable cause for commitment."); Wis. Stat.

§ 801.10(4)(b) ("Service by publication shall be proved by the

affidavit of the publisher or printer, or the foreman or

principal clerk, stating that the summons was published and

specifying the date of each insertion, and by an affidavit of

mailing of an authenticated copy of the summons . . . made by

the person who mailed the same."); Wis. Stat. § 801.10(1) ("An

authenticated copy of the summons may be served by any adult

resident of the state where service is made who is not a party

to the action. Service shall be made with reasonable

diligence."); Wis. Stat. § 801.10(3) ("The person making service

shall make and deliver proof of service to the person on whose

behalf service was made who shall promptly file such proof of service. Failure to make, deliver, or file proof of service

shall not affect the validity of the service."); Wis. Stat.

§ 801.10(4)(a) ("Personal or substituted personal service shall

be proved by the affidavit of the server . . . . If the

defendant is not personally served, the server shall state in

the affidavit when, where and with whom the copy was left, and

shall state such facts as show reasonable diligence in

attempting to effect personal service on the defendant."); § 801.10(4)(c) ("The written admission of the defendant, whose

8 No. 2023AP533.akz

signature or the subscription of whose name to such admission

shall be presumptive evidence of genuineness."); Wis. Stat.

§ 801.13 ("A summons is deemed served as follows: (1) A summons

served personally upon the defendant or by substituted personal

service upon another authorized to accept service of the summons

for the defendant is deemed served on the day of service. (2) A

summons served by publication is deemed served on the first day

of required publication."); Wis. Stat. § 801.14(1), (2)

(requiring service and filing of pleadings and other papers

"upon each of the parties" and "[w]henever . . . 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.").

¶98 Parties providing notice must comply with the

statutory provisions, but here, the statute does not dictate how

notice must be provided. S.L.L. answered that notice can be

provided indirectly. Here, the majority fails to explain how notice can be provided to someone who does not apprise court or

counsel of her whereabouts, and is homeless.

II. STARE DECISIS

¶99 The majority overrules S.L.L., 387 Wis. 2d 333, and

concludes that "our statutes require notice to the subject

individual——notice to counsel only is not sufficient. Majority

op., ¶24. The majority also overrules S.L.L. on the issue of

default, holding that "default judgment is not available at recommitment hearings or at involuntary medication hearings."

9 No. 2023AP533.akz

Majority op., ¶¶41, 56. S.L.L. correctly settled both the issue

of notice and default judgment in an extension of commitment.

Stare decisis should apply.

¶100 "Any time this court is asked to overturn a prior

case, we must thoroughly consider the doctrine of stare

decisis." Progressive N. Ins. Co. v. Romanshek, 2005 WI 67,

¶41, 281 Wis. 2d 300, 697 N.W.2d 417. "This court follows the

doctrine of stare decisis scrupulously because of our abiding

respect for the rule of law." State v. Luedtke, 2015 WI 42,

¶40, 362 Wis. 2d 1, 863 N.W.2d 592 (quoting Johnson Controls,

Inc. v. Emp. Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60,

665 N.W.2d 257); see also State v. Johnson, 2023 WI 39, ¶19, 407

Wis. 2d 195, 990 N.W.2d 174 ("We have repeatedly recognized the

importance of stare decisis to the rule of law."). "Failing to

abide by stare decisis raises serious concerns as to whether the

court is 'implementing principles . . . founded in the law

rather than in the proclivities of individuals.'" Progressive

N. Ins., 281 Wis. 2d 300, ¶42 (quoting Payne v. Tennessee, 501 U.S. 808, 853 (1991) (Marshall, J., dissenting) (quoting another

source)).

¶101 Fidelity to the principle of stare decisis is

important because "frequent and careless departure from prior

case precedent undermines confidence in the reliability of court

decisions." Johnson Controls, Inc., 264 Wis. 2d 60, ¶95.

"Stare decisis is the preferred course of judicial action

because it promotes evenhanded, predictable, and consistent development of legal principles . . . and contributes to the

10 No. 2023AP533.akz

actual and perceived integrity of the judicial process." Id.

"Stare decisis 'ensures the integrity of the judicial system by

developing consistency in legal principles and establishing that

cases are grounded in the law, not in the will of the individual

members of the court.'" Clarke v. Wis. Elections Comm'n, 2023

WI 79, ¶128, 410 Wis. 2d 1, 998 N.W.2d 370 (Ziegler, C.J.,

dissenting) (quoting State v. Roberson, 2019 WI 102, ¶97, 389

Wis. 2d 190, 935 N.W.2d 813 (Dallet, J., dissenting)). "When

existing law is open to revision in every case, deciding cases

becomes a mere exercise of judicial will, with arbitrary and

unpredictable results." Schultz v. Natwick, 2002 WI 125, ¶37,

257 Wis. 2d 19, 653 N.W.2d 266 (citation omitted).

¶102 S.L.L. definitively decided the issue, and notice to

M.A.C. was proper. "[S]tare decisis concerns are paramount

where a court has authoritatively interpreted a statute because

the legislature remains free to alter its construction." State

v. Braunschweig, 2018 WI 113, ¶11, 384 Wis. 2d 742, 921

N.W.2d 199 (quoting Progressive N. Ins. Co., 281 Wis. 2d 300, ¶45); Hilton v. South Carolina Public Rys. Comm'n, 502 U.S. 197,

202 (1991); see also Bryan A. Garner et al., The Law of Judicial

Precedent 333 (2016) (Some Practicalities of Stare Decisis)

("Stare decisis applies with special force to questions of

statutory construction. Although courts have power to overrule

their decisions and change their interpretations, they do so

only for the most compelling reasons . . . ."). "When a party

asks this court to overturn a prior interpretation of a statute, it is [the party's] 'burden . . . to show not only that [the

11 No. 2023AP533.akz

decision] was mistaken but also that it was objectively wrong,

so that the court has a compelling reason to overrule it.'"

Progressive N. Ins. Co., 281 Wis. 2d 300, ¶45 (citing Wenke v.

Gehl Co., 2004 WI 103, ¶21, 274 Wis. 2d 220, 682 N.W.2d 405).

¶103 In recognition of our "abiding respect for the rule of

law," we require a "special justification" in order to overturn

our precedent. See, e.g., Johnson Controls, Inc., 264

Wis. 2d 60, ¶94; State v. Johnson, 407 Wis. 2d 195, ¶19; State

v. Young, 2006 WI 98, ¶51 n.16, 294 Wis. 2d 1, 717 N.W.2d 729;

Schultz, 257 Wis. 2d 19, ¶37. This court recognizes five such

special justifications for overruling precedent. State v.

Johnson, 407 Wis. 2d 195, ¶20. These five justifications for

overruling precedent exist in cases or situations in which:

(1) the law has changed in a way that undermines the prior decision's rationale; (2) there is a "need to make a decision correspond to newly ascertained facts"; (3) our precedent "has become detrimental to coherence and consistency in the law"; (4) the decision is "unsound in principle"; or (5) it is "unworkable in practice." Id. (quoting Young, 294 Wis. 2d 1, ¶51 n.16 (citing Johnson Controls, Inc., 264 Wis. 2d 60, ¶¶98-99)). Regarding the issue

of notice, of these five special justifications, the majority

determines that this court's holding in S.L.L. was unsound in

principle because the S.L.L. court "did not adequately address

the plain text of Wis. Stat. § 51.20(10)(a)." Majority op.,

¶¶33-34.

¶104 Like this case, S.L.L. involved a challenge to an

extension of a commitment proceeding. Following Waukesha

12 No. 2023AP533.akz

County's emergency detention of Ms. L.,1 the circuit court found

Ms. L. mentally ill and ordered her committed to the care and

custody of Waukesha County for six months. The circuit court

also found that Ms. L. was not competent to refuse psychotropic

medication or treatment and authorized the involuntary

administration of medication during the period of her initial

commitment. Ms. L. reportedly responded well enough to

treatment that the County executed a conditional transfer

permitting Ms. L. to reside elsewhere so long as she agreed to

abide by the transfer's requirements. These requirements

"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." S.L.L., 387 Wis. 2d 333, ¶5. Ms. L. signed the

transfer. While she attended one additional medication

appointment after leaving, Ms. L. subsequently "absconded from

treatment" and "failed to keep the County updated on her current address." Id.

¶105 The County cited to Ms. L.'s failure to comply with

medical treatment and to apprise the court of her current

address in their request for a 12-month commitment extension.

The circuit court scheduled a hearing on the commitment

extension. The court also ordered Ms. L. to undergo a pre-

1Waukesha County detained Ms. L. on an emergency basis pursuant to Wis. Stat. § 51.15(1) (2017-18).

13 No. 2023AP533.akz

hearing examination for her mental health condition, which

Ms. L. failed to do.

¶106 In compliance with statutory requirements, the court

sent notice of the extension hearing both to Ms. L.'s last known

address and to her counsel.2 The counsel received the notice,

while "[t]he copy of the notice sent to Ms. L. was returned as

undeliverable." S.L.L., 387 Wis. 2d 333, ¶6. Ms. L. failed to

appear at the extension hearing. Ms. L. was nonetheless

represented by counsel at the hearing, but counsel acknowledged

that she had no communication with Ms. L. prior to the hearing

and did not know her whereabouts.

¶107 The circuit court conducted the extension hearing in

Ms. L.'s absence. The circuit court determined that Ms. L. was

"subject to the jurisdiction of the Court through the pendency

of the order." Id., ¶7. The circuit court then found Ms. L.

"in default of her right to object" due to her "not appear[ing]

here today." Id. Due to Ms. L.'s failure to schedule or attend

the court-ordered physical examination, the court relied on earlier physician reports from the initial commitment and the

County's extension petition. The circuit court granted the

County's commitment extension petition, issuing an order

2See 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.").

14 No. 2023AP533.akz

extending Ms. L.'s commitment for 12 months.3 The circuit court

also issued a separate order authorizing the County to

involuntarily medicate Ms. L. during the commitment.

¶108 As applicable to M.A.C., the S.L.L. court examined

Wis. Stat. § 51.20(10)(a) and agreed that the plain text

required the County to provide Ms. L. notice of her extension

hearing. But, the S.L.L. court determined, the statute

"provide[d] no specific directions with respect to the

notification method." S.L.L., 387 Wis. 2d 333, ¶27. In other

words, the court determined that while notice is statutorily

required to be given, the statutes do not specify how that

notice must be given. According to the court, since this was a

civil proceeding, governed by the rules of evidence and civil

procedure "except where it conflicts with chapter 51,"

§ 51.20(10)(c), then compliance with the notice requirements of

Wis. Stat. § 801.14(2) was sufficient.4 As the S.L.L. court

In support of its order, the circuit court made the 3

following findings: Ms. L. was still mentally ill; she was a resident of Waukesha County; and she was a proper subject for inpatient treatment and commitment. Waukesha County v. S.L.L., 2019 WI 66, ¶7, 387 Wis. 2d 333, 929 N.W.2d 140. 4 Wisconsin Stat. § 801.14 states, in relevant part:

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).

15 No. 2023AP533.akz

determined, "[n]o part of [§ 801.14(2)] conflicts with

§ 51.20(10)-(13)." S.L.L., 387 Wis. 2d 333, ¶27. Thus, the

court determined that "service on a party represented by an

attorney may be accomplished by serving the attorney." Id. The

S.L.L. court determined that the fact that Ms. L.'s copy of the

notice was returned as undeliverable, due to her failure to keep

the court informed of her most recent address, was "irrelevant."

It was "irrelevant" because "notice to her counsel was

sufficient" and "there was no statutory violation in the method

of service chosen by the County." Id., ¶28.

¶109 The majority's argument then that the S.L.L. court

"did not adequately address the plain text of Wis. Stat.

§ 51.20(10)(a)," majority op., ¶¶33-34, is baseless. The S.L.L.

court did in fact "adequately address the plain text of

[]§ 51.20(10)(a)." The S.L.L. court established that the

procedures governing commitment extensions are found in Wis.

Stat. § 51.20(10)-(13). S.L.L., 387 Wis. 2d 333, ¶27. The

S.L.L. court determined that the governing subsections "specify the content of the notice, and who must be notified," under

§ 51.20(10)(a). Id. The S.L.L. court stated that the governing

subsections "point us to the answer" of which "notification

method" is required, since § 51.20(10)(a) did not provide one.

Id. As the court of appeals pointed out, the incorporated rules

of civil procedure provided that "service on a party represented

by an attorney may be accomplished by serving the attorney."

Id. Since "no part of this [understanding] conflicts with § 51.20(10)-(13)," the S.L.L. court ultimately held that notice

16 No. 2023AP533.akz

to an individual's attorney complied with the statutory

requirement. Id.

¶110 The majority opinion's reasoning is contradictory and

fails to answer how notice must be provided. The majority

opines that "the S.L.L. court did not adequately address the

plain text of Wis. Stat. § 51.20(10)(a)." Majority op., ¶34.

In the very next paragraph the majority then acknowledges that

the S.L.L. court did in fact address and consider the plain text

of § 51.20(10)(a) in addressing the issue of notice. Id., ¶35.

While the S.L.L. court's discussion of § 51.20(10)(a) may have

been "brief," it was a necessary component of the court's

analysis of notice in recommitment hearings and stood as

precedent——until today.

¶111 The fact that the majority apparently disagrees with

the conclusion the S.L.L. court reached, does not render

S.L.L.'s holding on notice "unsound in principle." The S.L.L.

court adequately addressed the plain text of the statute and

came to a reasonable conclusion, supported by the text, that notice to one's attorney was sufficient to satisfy the statutory

requirements of notice. The S.L.L. court and the majority agree

on the "who" question——that statutorily the "and" mandates that

both the attorney and the subject individual need to be noticed.

The point of disagreement is the "how" question. While the

S.L.L. court answered the "how" question (and the dissent agrees

with the S.L.L. court's conclusion), the majority fails to

answer the "how" question, completely failing to explain how notice can be provided to someone who does not apprise court

17 No. 2023AP533.akz

or counsel of her whereabouts, and is homeless . Yet, the

majority overrules S.L.L. anyway.

¶112 Returning to the present case, the record reflects

that M.A.C. was properly noticed with the request for extension

of commitment, she failed to appear, and she did not give her

counsel any direction as to how to proceed. The court's hands

should not be tied under these circumstances, any more than

Ms. L.'s homelessness did not exempt her from complying with

court orders to keep the court apprised of her address. Our

court should be upholding its prior decision in S.L.L. The

majority does not apply the requisite criteria necessary to

overrule precedent. There is nothing unsound in principle about

S.L.L.

¶113 The entry of an initial commitment order pursuant to

Wis. Stat. § 51.20(13) triggers a number of things. Here, the

circuit court maintained personal jurisdiction over M.A.C.

M.A.C. raised no issues regarding notice with the circuit court.

Counsel appeared on her behalf. Counsel did not object that notice was improper. M.A.C. even filed a motion for post-

disposition relief but the motion did not mention defective

notice. For those of my colleagues who also declare process to

18 No. 2023AP533.akz

be particularly important,5 the issue of notice is not even

properly before this court for review6 as it was not previously

raised.

5See Doe 1 v. Madison Metro. Sch. Dist., 2022 WI 65, ¶¶42- 99, 403 Wis. 2d 369, 976 N.W.2d 584 (Roggensack, J., dissenting) (dissenting to the majority's decision to twice deny the parents' requested relief because "[l]itigation rules and processes matter," id., ¶39); see also Hawkins v. Wis. Elections Comm'n, 2020 WI 75, ¶¶29-83, 393 Wis. 2d 629, 948 N.W.2d 877 (Ziegler, J., dissenting) (dissenting from court's decision to deny requested relief because there was no time for the court to grant any feasible relief); Trump v. Biden, 2020 WI 91, ¶¶107- 139, 394 Wis. 2d 629, 951 N.W.2d 568 (Ziegler, J., dissenting); Gymfinity, Ltd. v. Dane Cnty., No. 2020AP1927-OA, unpublished order (Wis. Dec. 21, 2020) (Hagedorn, J., concurring) (concurred in order denying both petition for original action and emergency motion for temporary injunction as moot because the case "presents complicated legal issues across a number of claims involving disputed questions of fact" so "[i]t would be imprudent and potentially counter-productive to weigh in at this time"); Trump v. Evers, No. 2020AP1971-OA, unpublished order (Wis. Dec. 3, 2020) (Hagedorn, J., concurring) (concurred in denying petition for original action and motion to intervene "so that the petitioners may promptly exercise their right to pursue these claims in the manner prescribed by the legislature"); Wis. Voters Alliance v. Wis. Elections Comm'n, No. 2020AP1930-OA, unpublished order (Wis. Dec. 4, 2020) (Hagedorn, J., concurring) (Justice Hagedorn, joined by Justices Ann Walsh Bradley, Dallet, and Karofsky concurred in order denying petition for original action and motion to intervene due to the "sought after remedy" and "glaring flaws that render the petition woefully deficient"); Mueller v. Jacobs, No. 2020AP1958-OA, unpublished order (Wis. Dec. 3, 2020) (denying petition for leave to commence original action) (Roggensack, C.J., Ziegler and Rebecca Grassl Bradley, JJ., dissenting); Zignego v. Wis. Elections Comm'n, No. 2019AP2397, unpublished order (Wis. Jan. 13, 2020) (denying petition to bypass) (Rebecca Grassl Bradley, J., dissenting); Stempski v. Heinrich, No. 2021AP1434-OA, unpublished order (Wis. Aug. 27, 2021) (denying petition for leave to commence original action) (Ziegler, C.J., dissenting; Rebecca Grassl Bradley, J., dissenting); Gahl v. Aurora Health Care, Inc., No. 2021AP1787, unpublished order (Wis. Oct. 25, 2021) (denying petition for bypass because it "fails to establish that this case presents a sufficiently well-developed legal issue that meets our criteria for review"); State ex rel. 19 No. 2023AP533.akz

¶114 Although Wis. Stat. § 51.20(10)(a) states that notice

is to be provided to the individual and his or her counsel, it

does not mandate a particular method of notice. The legislature

knows how to designate a particular method of notice and it did

not do so here. In fact, the legislature states that when

notice is required to be made to a party represented by counsel,

it shall be made upon the attorney. Wis. Stat. § 801.14(2)

("Whenever . . . 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.").

There is no question that M.A.C.'s lawyer was provided notice.

This notice to counsel is sufficient under Wis. Stat. § 801.14

and Wis. Stat. § 51.20(10)(a), as well as under this court's

precedent in S.L.L.7

Vos v. Circ. Ct. for Dane Cnty., No. 2022AP50-W, unpublished order (Wis. Jan. 11, 2022) (Hagedorn, J., concurring) (concurred in order denying petition for supervisory writ and motion for emergency temporary relief because petition "comes nowhere close to meeting these legal standards" and the supervisory writ "is an extraordinary petition we grant only in the rarest of cases"). 6 See Terpstra v. Soiltest, Inc., 63 Wis. 2d 585, 593, 218 N.W.2d 129 (1974) ("The practice of this court is not to consider an issue raised for the first time on appeal."); Tatera v. FMC Corp., 2010 WI 90, ¶19 n.16, 328 Wis. 2d 320, 786 N.W.2d 810 ("Arguments raised for the first time on appeal are generally deemed forfeited."). 7 Providing notice to M.A.C.'s counsel maintains M.A.C.'s due process rights. However, we note that M.A.C. did not raise any due process claims before the circuit court. Thus, that issue is not properly before this court.

20 No. 2023AP533.akz

¶115 However, not content to overturn S.L.L.'s holding on

provision of notice, the majority also seeks to overturn

S.L.L.'s holding that default judgment is a tool available for

courts to use at recommitment hearings.8 Given that the majority

has concluded that notice was not properly provided to M.A.C.,

no other issues remain to be decided. In other words, the

default judgment entered against M.A.C. is rendered moot by the

majority’s notice determination. Nonetheless, the majority

needlessly wades into a determination that default judgment is

unavailable. Any rationale for this conclusion appears rooted

in a particularized notion of "fairness," untethered to the law

¶116 The legislature provided that the rules of civil

procedure are incorporated into extension of commitment

hearings. Wis. Stat. § 51.20(10)(c) (incorporating rules of

civil procedure except to the extent they conflict with ch. 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."). Wisconsin Stat.

§ 801.01(2) provides that, "Chapters 801 to 847 govern procedure

and practice in circuit courts of this state in all civil

actions and special proceedings whether cognizable as cases at

law, in equity or of statutory origin except where different

procedure is prescribed by statute or rule." The default

8See majority op., ¶41 ("We conclude that default judgment is not available at recommitment hearings or at involuntary medication hearings.").

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procedures that are found in Wis. Stat. § 806.02(5) are not

displaced by any procedure in Chapter 51. To the contrary,

default procedures are applicable.

¶117 In the case at issue, no request for an adjournment

was ever made.9 The circuit court could have also enlisted any

number of ways to actually bring M.A.C. into court, but counsel

did not request that the court utilize those means. Had an

objection to notice been made, the court could have considered

alternative methods to ensure her appearance. The court, for

example, could have issued a detention order for M.A.C., in

accordance with Wis. Stat. § 51.20(10)(d).10 The court was not

9 See Wis. Stat. § 51.20(10)(e) ("At the request of the subject individual or his or her counsel the final hearing under par. (c) may be postponed, but in no case may the postponement exceed 7 calendar days from the date established by the court under this subsection for the final hearing."). 10 Pursuant to Wis. Stat. § 51.20(10)(d), "[i]n the event that the subject individual is not detained and fails to appear for the final hearing the court may issue an order for the subject individual's detention and shall hold the final commitment hearing within 7 days from the time of detention."

22 No. 2023AP533.akz

required to do so.11 The majority thus incorrectly agrees with

M.A.C. "that the detention order is the outer limit on the

circuit court's power." Majority op., ¶¶45-46. The majority's

interpretation of the statute now actually incentivizes courts

to use more aggressive means to bring individuals to court, a

process that may not be particularly helpful to the individual.

The S.L.L. court properly referenced the use of a detention

order as being a tool in the court's toolbox. S.L.L., 387

Wis. 2d 333, ¶36. It seems after the majority decision today,

the use of such orders will almost be required. As the S.L.L.

court properly determined, pursuant to Wis. Stat. § 806.02(5),

"issuance of a detention order under Wis. Stat.

§ 51.20(10)(d) . . . does not preclude the use of non-

conflicting general rules of civil procedure" including an entry

of default. Id., ¶38. "Circuit courts have the

authority . . . to enter default judgment for failing to appear

11 Wisconsin Stat. § 51.20(10)(d) states that the court "may issue an order for the subject individual's detention." Principles of statutory interpretation and canons of construction require that "when interpreting a statute, we generally construe the word 'may' as permissive," not mandatory. Heritage Farms Inc. v. Markel Ins. Co., 2012 WI 26, ¶32, 339 Wis. 2d 125, 810 N.W.2d 465; City of Wauwatosa v. Milwaukee Cnty., 22 Wis. 2d 184, 191, 125 N.W.2d 386 (1963) ("Generally in construing statutes, 'may' is construed as permissive . . . ."); Barber Asphalt Co. v. City of Oshkosh, 140 Wis. 58, 121 N.W. 603 (1909) ("The ordinary and natural meaning of the word 'may,' when used in a statute, is permissive and discretionary, not mandatory . . . ."); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 112 ("Mandatory/Permissive Canon) ("Mandatory words impose a duty; permissive words grant discretion. The traditional, commonly repeated rule is that shall is mandatory and may is permissive.").

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at properly-noticed hearings in which the court has jurisdiction

over the person." Id. The majority needlessly errs in

declaring that default judgment is unavailable.

¶118 The majority also declares that "[s]imilarly" to their

argument against default judgment entries for recommitment

proceedings, "default judgment is not available in involuntary

medication hearings." Majority op., ¶56. According to the

majority, "[i]f a circuit court were allowed to enter a default

judgment, it would undermine the legislature's directive to hold

a fair hearing." Id., ¶57. Since "[d]efault judgment is the

'ultimate sanction' and deprives individuals of 'a day in court

and a trial on the issues,'" the majority concludes that the

plain text of Wis. Stat. § 51.61(1)(g)3. does not allow for

default judgment in involuntary medication hearings. Id., ¶¶60-

61.

¶119 Allowing courts to enter default judgment at

involuntary medication hearings does not equate to the court

foregoing holding a hearing. A hearing is held whether default is entered or not. As the court did here, it received evidence

and proof from the County pursuant to the involuntary medication

order, even though it entered default judgment against M.A.C.

See Wis. Stat. § 806.02(5) ("If proof of any fact is necessary

for the court to render judgment, the court shall receive the

proof."). The majority overreaches to conclude that default

judgment "undermine[s] the statutory mandate to hold a fair

hearing" which "conform[s] to the essentials of due process and fair treatment." Majority op., ¶¶56-58. Because the majority

24 No. 2023AP533.akz

concludes that notice was not sufficient, the questions about

default judgment are moot. Nonetheless, the majority concludes

that an entry of default judgment "deprives individuals of 'a

day in court and a trial on the issues.'" Id., ¶60. This does

not comport with standard practice regarding non-appearance of

an individual in civil matters. See Wis. Stat. § 806.02; Wis.

Stat. § 51.20(10)(c).

¶120 In so doing, the majority appears to fashion its own

canon of construction around this hearing issue, which resembles

a due process analysis rather than a statutory interpretation

analysis. Majority op., ¶¶48-49. It is a bit unclear whether

the majority is making a statutory interpretation argument about

hearings or a due process argument, even though at the outset

the majority indicated it would not be addressing the due

process argument. Majority op., ¶24 n.10. While the majority

is correct that we have recognized default is a harsh sanction,

it is unclear how the majority connects that understanding to

whether finding someone in default is nonetheless statutorily permissible.

¶121 We know that other statutes require hearings in

matters where liberty interests are implicated, yet still allow

for default judgment. For example, default judgment is

permitted under chapter 48, which addresses termination of

parental rights, a significant liberty interest. See Wis. Stat.

§ 48.23(2)(c). Despite the majority's conclusion that here a

"fair hearing" cannot occur if default is entered, there seems

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to be no such tension, when liberty interests are implicated in

Chapter 48.

¶122 Under the majority's framing, little recourse is left

to counties when an individual who was previously deemed

mentally ill, dangerous, and a proper subject for treatment,

cannot be located because they do not provide contact

information and they are homeless. The court does not explain

how to provide notice to such an individual. Under such a

scenario, when the commitment order terminates, the State of

Wisconsin's clearly stated policy to help, support, and treat

those with mental illness is undermined. Our court system does

not typically reward individuals who absent themselves from

court proceedings and fail to comply with standing court orders.

Allowing the individual to dictate whether the court can proceed

is allowing the tail to wag the dog. Rather, the court must be

allowed to proceed. The process has built-in procedural

safeguards if and when the absenting individual later appears.

¶123 The S.L.L. court's holdings that notice to counsel is statutorily sufficient and that default is an available tool at

extension of commitment hearings, are grounded in an analysis of

the applicable statutory texts. The conclusions reached are

consistent with the application of our rules of civil procedure.

The S.L.L. court reached well-reasoned, workable conclusions.

Yet, because the S.L.L. court reaches an outcome with which this

majority disagrees, the majority labels it "unsound in

principle" and overturns it. Mere disagreement with an opinion is not a "special justification" necessary to justify

26 No. 2023AP533.akz

overturning precedent. Fidelity to the principle of stare

decisis demands more.12

III. SUFFICIENCY OF THE EVIDENCE

¶124 With respect to the sufficiency of the evidence for

the involuntary medication order, the circuit court relied upon

the doctors' prior reports to make the appropriate findings

under Wis. Stat. § 51.61(1)(g)4.13 The County requested the

court:

See, e.g., Schultz v. Natwick, 2002 WI 125, ¶37, 257 12

Wis. 2d 19, 653 N.W.2d 266; State v. Johnson, 2023 WI 39, ¶¶19- 20, 407 Wis. 2d 195, 990 N.W.2d 174; Johnson Controls, Inc., v. Employers Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257; State v. Young, 2006 WI 98, ¶51 n.16, 294 Wis. 2d 1, 717 N.W.2d 729; see also Payne v. Tennessee, 501 U.S. 808, 852 (1991) (Marshall, J., dissenting) ("[S]tare decisis is important not merely because individuals rely on precedent to structure their commercial activity but because fidelity to precedent is part and parcel of a conception of the 'judiciary as a source of impersonal and reasoned judgments.'"). 13 Wisconsin Stat. § 51.61(1)(g)4. states:

[A]n individual is not competent to refuse medication or treatment if, because of mental illness, developmental disability, alcoholism or drug dependence, and after the advantages and disadvantages of and alternatives to accepting the particular medication or treatment have been explained to the individual, one of the following is true:

a. The individual is incapable of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives.

b. The individual is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her mental illness, developmental disability, alcoholism or drug dependence in order to make an informed choice as to whether to accept or refuse medication or treatment.

27 No. 2023AP533.akz

rely upon the doctors' reports in file to conclude that [M.A.C.] is mentally ill, that she is dangerous based on a substantial probability of physical impairment or physical injury to self [or] others as manifested or shown by a substantial likelihood based on treatment record that she would be a proper subject for commitment if treatment were withdrawn. ¶125 The court found that "[b]ased upon the doctors'

reports and [M.A.C.]'s failure to appear today" that "there are

grounds for extension of the commitment," and that "medication

or treatment will have therapeutic value" for M.A.C., as "[s]he

does need medication or treatment." The court also found:

The advantages, disadvantages, and alternatives to medication have been explained to [M.A.C.], however, due to mental illness, she is not competent to refuse psychotropic medication or treatment because she is substantially incapable of applying an understanding of the advantages, disadvantages, and alternatives of her condition in order to make an informed choice as to whether to accept or refuse psychotropic medication. ¶126 Notably, counsel for M.A.C. did not object.14 Had

counsel objected, perhaps the court would have made additional,

detailed findings. The court based its decision on reports that

were previously filed with the court and are clearly part of the

record. They were referenced by the court. In making their

14 See Wis. Stat. § 805.11(1) ("Any party who has fair opportunity to object before a ruling or order is made must do so in order to avoid waiving error."); Wis. Stat. § 805.11(2) ("A party raising an objection must specify the grounds on which the party predicates the objection or claim of error."); State v. Counihan, 2020 WI 12, ¶26, 390 Wis. 2d 172, 938 N.W.2d 530 ("The purpose of the forfeiture rule is to enable the circuit court to avoid or correct any error as it comes up, with minimal disruption of the judicial process and maximum efficiency." (citing another source)); see also State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612.

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recommendation to the court, the court-appointed examiners

reviewed these treatment records and their earlier examinations

of M.A.C. The doctors' reports support the proof required for

the extension of commitment.15 There was no need, nor was there

a request, that testimony be taken.

¶127 The involuntary medication order is also sufficient.

M.A.C. denied the need for medication. This denial was

consistent in her treatment records. However, the court ordered

her to appear to be examined by the doctors. While her

nonappearance before the doctors was the reason that they had no

opportunity to explain the advantages, disadvantages, and

alternatives, the record reflects that she did recently have

those cautionary statements provided to her from her prescriber.

The doctors' reports support the conclusion that she was

disadvantages, and alternatives. As a result, the order for

extension of commitment and order for involuntary treatment and

medication should be upheld. ¶128 M.A.C.'s decision to absent herself from court

proceedings, and her decision to forgo court-ordered medical

examination pursuant to an involuntary medication order, should

not then foreclose a court from conducting its business. If it

For an initial civil commitment, counties bear the burden 15

to prove, by clear and convincing evidence, that the subject is (1) mentally ill, (2) a proper subject for treatment, and (3) dangerous. Wis. Stat. § 51.20(1)(a). The recommitment standard is governed by § 51.20(1)(am), which is often supported by the individual's pre-commitment behavior and a finding of "dangerousness." See § 51.20(1)(a)2.e.

29 No. 2023AP533.akz

did, this would allow the tail to wag the dog; someone who does

not want a court order to be entered, can decide to not come to

court. That makes no logical sense. If an individual fails to

comply with a court-ordered medical examination, as M.A.C. did,

the doctors are not proscribed from basing their recommendation

on the information available to them——what they previously knew

and what was in the record. The court can certainly benefit

from the most recent data, but the court is not handcuffed from

proceeding forward and rely on the most up-to-date information

it has at its disposal, especially given the individual's

failure to participate as ordered.

¶129 For all of the foregoing reasons, I respectfully

30 No. 2023AP533.akz