On Point

COA holds that DHS may refile petition to revoke NGI committee’s conditional release after dismissal for violating 72-hour requirement

State v. Kyle A. Schaefer, 2023AP1747-CR, 11/18/25, District III (recommended for publication); case activity

Schaefer appeals from an order granting the Department of Health Services’ petition to revoke his conditional release under WIS. STAT. § 971.17(3)(e). When DHS originally detained Schaefer, it filed the required probable cause statement and petition to revoke his conditional release in the circuit court case but failed to timely submit the documents to “the regional office of the state public defender” within 72 hours as required by § 971.17(3)(e). After the circuit court dismissed the petition pursuant to State v. Olson, 2019 WI App 61, ¶2, 389 Wis. 2d 257, 936 N.W.2d 178, DHS refiled the same petition with a new date of detention. Schaefer’s conditional release was thereafter revoked on the second petition. COA affirms, holding that DHS may refile after a petition is dismissed for lack of compliance with § 971.17(3)(e).

In 2016, Schaefer was committed for 45 years and placed in institutional care after he was found not guilty by reason of mental disease or defect (NGI) of attempted first-degree intentional homicide and first-degree recklessly endangering safety, both with the use of a dangerous weapon and as incidents of domestic abuse. (¶5). He was granted conditional release in 2021 with various conditions relating to his housing. (¶6). DHS detained Schaefer one year later for failing to comply with conditions of release. DHS filed a petition to revoke Schaefer’s conditional release, stating that he did not have a permanent residence “due to a lack of engagement in programming required by the placement.” The petition further alleged that this was a safety concern. (¶7).

It is undisputed that DHS did not send the petition to SPD within 72 hours of Schaefer’s detention on September 1, 2022, and that SPD did not learn of his detention until September 21, when the circuit court’s judicial assistant sent a notice via email regarding the hearing. (¶8). At the hearing, defense counsel moved to dismiss the petition. (¶9). The court heard testimony from DHS and granted Schaefer’s motion, but asked DHS whether it was “going to refile” the petition. (¶11). Forty-four minutes later, DHS filed a new, “nearly identical” petition and gave SPD notice within an hour of filing. (¶12).

Schaefer again moved to dismiss, arguing that the circuit court had lost competency, that he should have been released following the court granting his first motion to dismiss for loss of competency, and that the DHS “cannot simply fix their previous error by filing a new petition.” (¶12). The court denied Schaefer’s second motion, and ultimately revoked Schaefer’s conditional release. (¶¶13-14).

DHS may take a released NGI committee into “custody” and petition the circuit court to revoke his or her conditional release. (¶16). If DHS takes a committee into custody, it:

shall submit a statement showing probable cause of the detention and a petition to revoke the order for conditional release to the committing court and the regional office of the state public defender responsible for handling cases in the county where the committing court is located within 72 hours after the detention, excluding Saturdays, Sundays, and legal holidays.

WIS. STAT. § 971.17(3)(e). The dispute in this case is whether DHS violated the 72-hour requirement when it filed its second petition to revoke Schaefer’s conditional release. (¶18). Such a violation results in the cirucit court losing competency to hear the petition because the 72-hour requirement is mandatory. Olson, 389 Wis. 2d 257, ¶2. (¶19).

COA states that it finds Olson “instructive” but proceeds to highlight various distinguishing facts.  (¶¶21-23). From its discussion, COA seems to have found the facts that here DHS filed the first petition in the circuit court within 72 hours and the court dismissed the first petition relevant. As such, COA rejects Schaefer’s argument that DHS violated the 72-hour requirement on the second petition because had been continuously confined since September 1, instead agreeing with DHS that the dismissal of the first petition served as a “break” in Schaefer’s detention. (¶¶24-30).

COA first considers the language of the statute and concludes that “released person” in the context of § 971.17(3)(e) means a person who was conditionally released–not someone who is currently out of custody.(¶¶30-32). Thus, an individual does not need to be released from custody for DHS to petition to revoke his or her conditional release, and can “re-detain” a person who has not actually been released from custody. Given that conclusion, COA agrees with DHS “that a circuit court’s dismissal of the DHS’s first petition to revoke an NGI committee’s conditional release based on the DHS’s failure to comply with the 72-hour requirement ends the first proceeding and functions as a break in the committee’s detention, thus restarting the 72-hour clock under WIS. STAT. § 971.17(3)(e).” (¶33).

COA makes various other supporting points. First, it states that the dismissal for loss of competency due to DHS’s failure to comply with the 72-hour requirement is not a decision on the merits of the first petition. Therefore, DHS can file a second petition using the same facts as the first. (¶34). Second, COA explains that prior case law demonstrates its conclusion is consistent with the purpose of the statute. (¶35). Discussing State v. R.R.E., 162 Wis. 2d 698, 470 N.W.2d 283 (1991), COA highlights the court’s statement that the “legislature did not intend the release” of NGI committees “without a court determination that the individual may be safely released.” (¶¶36-40). Next, COA considers State v. Schertz, 2002 WI App 289, ¶1, 258 Wis. 2d 351, 655 N.W.2d 175, in which it held that the policy objectives of § 971.17(3)(e) are “to protect the public from the release of an NGI committee without a court determination that a committee may be safely released; and to permit an NGI committee the ability to gain release once he or she is no longer dangerous.” (¶41).

COA also considers whether procedural violations in NGI conditional release revocations are analogous to ch. 980 conditional release revocations or chs. 51 and 55 petitions. (¶¶42-53). Unsurprisingly, the court holds that the case law interpreting ch. 980, in which release is not an appropriate remedy for procedural violations, is more applicable here. (¶43). COA again looks to the legislative purpose, explaining:

one key legislative purpose of WIS. STAT. § 971.17 is to protect the public. See Olson, 389 Wis. 2d 257, ¶20; Schertz, 258 Wis. 2d 351, ¶9; R.R.E., 162 Wis. 2d at 708-09. Conversely, the legislature has expressly provided in WIS. STAT. chs. 51 and 55 that the purpose of those chapters is to provide treatment to individuals in need while also protecting the personal liberty of those individuals. See WIS. STAT. §§ 51.001(2), 55.001. Section 971.17 lacks any express policy statement like the policy statements provided in chs. 51 and 55.

(¶51).

Next, COA cites several ch. 51 cases in outlining an NGI committee’s recourse if he or she is held indefenitely without DHS’s compliance with the 72-hour requirement:

First, an NGI committee can seek recourse through WIS. STAT § 805.03 if the DHS is abusing the revocation process by, for example, filing a new petition to revoke every 72 hours without notifying the circuit court or the SPD. See State ex rel. Sandra D. v. Getto, 175 Wis. 2d 490, 500-01, 498 N.W.2d 892 (Ct. App. 1993) (reversing a WIS. STAT. ch. 51 commitment based, in part, on the circuit court’s finding that subjecting the committee to a third unlawful detention was “an abuse of process”); State ex rel. B.S.L. v. Lee, 115 Wis. 2d 615, 622, 340 N.W.2d 568 (Ct. App. 1983) (holding, in the ch. 51 commitment context, that “[a]ny initial proceeding may be dismissed with prejudice if the trial court believes the process is being abused”). . . .

Second, an NGI committee may file a writ of mandamus, “backed up by contempt,” to compel the DHS to comply with WIS. STAT. § 971.17(3)(e). See Marberry, 262 Wis. 2d 720, ¶27; R.R.E., 162 Wis. 2d at 715; Beyer, 287 Wis. 2d 1, ¶7. “Mandamus may issue to compel a public officer to perform a duty of his [or her] office presently due to be performed where there is a clear legal right, a positive and plain duty, substantial damage in the absence of performance, and no other adequate remedy.” Marberry, 262 Wis. 2d 720, ¶27. “Because [§ 971.17(3)(e)] imposes a mandatory duty upon the department, mandamus to compel performance of that duty is an appropriate and available remedy.” See id., ¶27.

(¶¶54-55).

Finally, despite stating that it is relying on Olson, COA notes that DHS provided the required 72-hour notice to the circuit court when it filed its first petition, whereas in Olson, neither the court nor SPD had notice of Olson’s detention. As a hearing was scheduled within 30 days, “Schaefer was . . . provided with immediate judicial oversight[.]” It distinguishes Olson from the present case, as  DHS was “expos[ing] itself to an adverse
decision from a passive decision-maker[.]” (¶56).

In conclusion, COA holds that following a circuit court’s dismissal of a
petition to revoke an NGI committee’s conditional release for lack of competency, § 971.17(3)(e) does not require DHS to release a committee in order for the circuit court to have competency to consider a second petition to revoke that individual’s conditional release. DHS complies with the 72-hour requirement when it, effectively, “re-detains” an NGI committee following the court’s dismissal and promptly notifies the SPD and the circuit court of the committee’s detention thereafter. That is what occurred here. (¶56).