COA finds that county failing to timely file annual review of protective placement does not deprive the circuit court of competency.
Department on Aging v. J.J., 2024AP1850, 2/10/26, District I (recommended for publication); case activity
The COA held in a decision recommended for publication that the deadline for counties to file the annual review of a person subject to protective placement is directory and failing to file timely does not deprive the circuit court of competency, while reminding parties that timely annual review remains statutorily and constitutionally required.
Counties are required to annually review the status of each person subject to protective placement and, “not later than the first day of the 11th month after the initial order is made for protective placement for an individual and . . . annually thereafter” file a report stating whether the protective placement order should be continued or terminated. Wis. Stat. § 55.18(1)(a).
Protective placement was ordered for “Josie” in 2022. Milwaukee County filed Josie’s annual review four days past the deadline imposed by § 55.18(1)(a), which Josie argued divested the circuit court of competency to conduct an annual review.
The Court found that Josie did not preserve her objection to the circuit court’s competency because she did raise it in the circuit court. (¶ 8). However, the Court did not apply the forfeiture rule because the County acknowledged “it is not an anomaly” for it to file the annual review after the deadline: “in light of the County’s lackadaisical attitude toward the statutory deadline – challenges to competency in this context are likely to arise again.” (¶ 10).
The Court recognized that whether a statutory time limit is mandatory or directory determines whether the circuit court lost competency. (¶ 12, citing Olson). To assess whether a statue is mandatory or directory, the Court considers the statute’s history and purpose, whether the statute imposes a penalty for not complying with the time limit, and the consequences of interpreting the time limit as mandatory or directory. (¶ 13).
The Court observed that annual review of a protective placement is a product of the Wisconsin Supreme Court’s holding in Watts that due process requires “periodic, automatic judicial review” for all protectively placed persons. (¶ 17). The legislature codified the annual review process required by Watts in Wis. Stat. § 55.18. But the Court noted that the legislature did not impose any penalties on a county for untimely filing the annual review. (¶ 19). And § 55.18 contemplates untimely petitions by requiring the circuit court to order an evaluation if the annual review is not timely filed and compelling the register in probate for each county to file a statement indicating whether the annual review was filed and, if not, why: “That both sections contemplate a failure to file or a delayed filing and neither imposes a penalty supports the conclusion that the time period is directory.” (¶ 19).
The Court also found that “absurd consequences would result from depriving the circuit court of competency” when the annual review is not timely filed: “First, it prevents any annual review from still occurring during the year in which the late petition is filed, which thwarts the purpose of regularly reviewing protective placement orders. Second, there would be no way for a circuit court to regain competency and conduct an annual review on the still-active protective placement order in the future.” (¶ 20).
Josie argued the consequences of finding the deadline mandatory were minimal because the County could initiate a new protective placement action, but the Court considered requiring the County to “go through the full procedure for initial petitions for protective placement again due to a minor delay in filing an annual review would be needlessly burdensome . . . while providing no material benefit to protectively placed individuals.” (¶ 21).
The Court rejected Josie’s argument that the time period is mandatory because it triggers the initiation of proceedings: “annual review under ch. 55 does not address a change in liberty but instead concerns whether an ongoing protective placement order still appropriately addresses a protectively placed individual’s needs.” (¶ 23).
Although some Chapter 51 time periods are mandatory, the Court determined that construing § 55.18 as directory did not violate equal protection because chapters 51 and 55 are “distinct enough that ‘the same procedures in one may not be required nor appropriate in the other for equal protection to be satisfied.’” (¶ 25, quoting Watts).
The Court cautioned that, although the time limit for filing the annual review is directory, the statute does not imply that the provision is “merely discretionary or permissive” and “[t]imely annual review of protective placement orders remains – statutorily and constitutionally – required.” (¶ 28).