COA applies J.J., again holds failure to file petition and report doesn’t deprive circuit court of competency
Milwaukee County DHHS Aging and Disability Services v. B.C., 2024AP2521, 4/7/26, District I; case activity
Applying its recent decision published decision in Department on Aging v. J.J., COA again holds that the county’s failure to timely file the required petition and report to initiate the annual review does not deprive the circuit court of competency.
After “Barb” was adjudicated incompetent and found to be in need of a protective placement in 2019, annual reports were filed in 2020 and 2021, but not in 2022. (¶¶3-6). The county next filed a report on June 5, 2023. Barb objected to continuing the protective placement, argued that the statutory language was mandatory and that the circuit court lost competency over the case because the county did not timely file the first or most recent annual report. (¶7). The circuit court found that the first annual report was filed late, but concluded that though WIS. STAT. § 55.18(1)(a) was ambiguous, its time limits were directory, not mandatory.
Barb argues that the circuit court lost competency to conduct an annual review and any further proceedings in this case when the county filed its first, second and third annual reports after the deadlines. Specifically, she contends that the statute’s use of the word “shall” is mandatory and, therefore, the county’s failure to comply with the mandatory statutory time limit caused the circuit court to lose competency to conduct the initial and subsequent annual reviews. Therefore, she argues the case should have been dismissed, and the circuit court was without authority to enter any subsequent orders continuing her protective placement.
COA agrees with the county’s assertion that the statutory deadline is directory and not mandatory, and therefore the circuit court did not lose competency.
presented in Waupaca County’s petition for review:
This court recently issued a decision in J.J., wherein we considered whether the word “shall” in WIS. STAT. § 55.18(1)(a) is mandatory or directory. J.J., 2026 WI App 13, ¶¶1-2. We began our review by acknowledging that § 55.18 was codified in response to our supreme court’s holding in State ex rel. Watts v. Combined Community Services Board of Milwaukee County, 122 Wis. 2d 65, 83, 362 N.W.2d 104 (1985), that “protectively placed individuals are entitled to the right of periodic, automatic judicial review that all other civilly committed persons in Wisconsin have” because, among other reasons, protective placement orders infringe on a person’s liberties and do not expire on their own terms. J.J., 2026 WI App 13, ¶¶16-17. Although we noted that the word “shall” is generally presumed mandatory when it appears in a statute, based on this statute’s history and purpose, among other reasons, we concluded that the language requiring the County to file the petition and report by a certain date is directory. Id., ¶¶2, 13-14, 19-20.
Accordingly, consistent with J.J., we conclude that the circuit court did not lose competency to continue Barb’s WIS. STAT. ch. 55 protective placement.
(¶¶14-15).