SCOW holds that no colloquy is required when a person “stipulates” to an involuntary mental commitment order; flags numerous other unresolved issues
Sheboygan County v. N.A.L., 2026 WI 16, 5/19/26, affirming an unpublished decision of the court of appeals; case activity
In a relatively concise majority opinion, SCOW addresses a narrow issue and holds that no colloquy is required when a person stipulates to an involuntary mental commitment order. However, the separate writings flag many other interesting and highly relevant issues for our readers.
(See our prior posts here and here).
This is an appeal from an initial commitment order that was resolved via an alleged “stipulation.” Nathan appeared at the final hearing by phone and, following his lawyer’s representation that Nathan would be stipulating to the County’s proposed orders, made a series of equivocal statements including, most concerningly, “What’s a stipulation?” (¶4). As a result of Nathan’s statements expressing some level of confusion or uncertainty, the court at one point stated that “it’s unclear to me whether this is an actual stipulation to commitment or not.” (¶6). Although Nathan asked to be able to video chat with his attorney before making a decision, he was not given an opportunity to have a confidential line of communication. (¶6). Dr. Bales, the examiner and proposed expert witness for the County, then assured Nathan he would not remain at the Winnebago Mental Health Institute for very much longer. (¶7). Given that representation, Nathan told the court he was willing to “agree.” (Id.). The court entered orders for commitment and involuntary medication and Nathan’s attorney hung up. (Id.). Immediately thereafter, Nathan asked the court to explain what had just happened. (Id.). The court told him to speak with his attorney and terminated the phone conference. (Id.).
On appeal to SCOW, Nathan “pursues what is essentially a structural error challenge” and “argues that his right to procedural due process under the Fourteenth Amendment of the United States Constitution requires the court to conduct a colloquy to ensure he is waiving his fundamental rights knowingly, intelligently, and voluntarily.” (¶9). A majority opinion, authored by Chief Justice Karofsky and joined by Justices Ziegler, Dallet, Hagedorn, Protasiewicz and Crawford makes short work of those arguments.
SCOW begins by acknowledging “that a ch. 51 civil commitment ‘constitutes a significant deprivation of liberty that requires due process protection.'” (¶12). Given the obvious due process concerns in such an action, Nathan argues:
that when an individual is waiving fundamental rights, the court must conduct a colloquy on the record to inform the individual of the fundamental rights being waived and the potential consequences of waiving those rights. With respect to his stipulation to the commitment, Nathan’s argument centers on two purported fundamental rights: (1) the right to be free from physical restraint, and (2) the right to a fair hearing in which the petitioner must prove by clear and convincing evidence that the individual is mentally ill and dangerous.
(¶13). However, SCOW holds that “[e]ven if we assume without deciding that these rights are fundamental, due process does not require a colloquy prior to their waiver.” (¶14). Due process simply does not require a colloquy every time a fundamental right is waived; for example, there is no colloquy required when a person waives their right to testify. (Id.). Instead, due process requires that the waiver be knowing, intelligent and voluntary; it is the absence of those characteristics, not the lack of a formal colloquy, that creates a problem of constitutional dimension. (¶16). In other words, while a colloquy may be useful “prophylactic measure,” its absence does not independently create a constitutional violation in this context. (Id.).
While colloquies are frequently used in other contexts, such as in criminal cases or TPRs, those colloquy requirements are statutory in nature. (Id.). And, while the Court in S.Y. required a colloquy before a person in a mental commitment action could waive their right to an attorney, SCOW distinguishes that case on its facts, as a colloquy was the only means of ascertaining whether a pro se person is making a knowing and intelligent decision. (¶19). Here, Nathan was represented by counsel who was able to make the representations necessary “to determine if Nathan was appropriately informed about his rights and the consequences of a stipulation.” (Id.). Finally, because civil commitments are pursued “for the benefit of the individual” and that person already receives robust statutory protections throughout Chapter 51, no colloquy is required in this context. (¶20).
As to the fundamental holding, reasonable minds may differ. But we wanted to flag at least three things about the majority opinion before delving into the separate writings.
First, and most concerningly, SCOW appears to back off from decades of precedent appearing to establish that the rights at stake in an involuntary civil commitment, most crucially the right to be free from physical restraint, are fundamental. Instead, it claims the right to be free from physical restraint is only a “purported” fundamental right and then “assumes without deciding” that this right is, in fact, fundamental. We hope this is merely an oversight. But if not, it signals a problematic change in how the substantial liberty interests in such cases are treated by our highest court.
Second, we also can’t help but notice the inclusion of language discussing a paternalistic motivation in such cases, which are pursued “for the benefit of the individual.” SCOW cites this underlying aim of the statutory scheme as somehow justifying less, as opposed to more, process being due. (¶20). Notably, this line has long been advanced by Justice Ziegler in her writings in mental commitment cases and it is interesting to see her views validated by the “liberal” majority she joins with in this case. The majority is likewise disinclined to insert a new procedural requirement into this statutory scheme, given what it views as ample due process protections set forth by the legislature throughout Chapter 51. As we have seen in the last several years at SCOW, advocates for those subject to involuntary mental commitments have pushed for an expansionist view to protect the rights and liberties of their clients. Most notably, this resulted in the creation of the D.J.W. mandate (a judge-made rule that appears nowhere in the text of Chapter 51). Is the Court signaling the end of this apparent project and its receptiveness to such arguments? With at least two more mental commitment cases on the block, only time will tell.
Finally, we have only one gripe. SCOW’s distinguishment of S.Y. may make some degree of sense. But we are concerned by SCOW’s claim that Nathan’s attorney did an adequate job of helping to ensure that Nathan’s stipulation was, in fact, knowing, intelligent and voluntary. Given that most of the sparse record is included in the opinion itself, we urge our readers to read the exchange and draw their own conclusions.
Justice Bradley’s Concurrence
Justice Bradley writes to make three points. First, she calls out the majority for its refusal to acknowledge there is a “fundamental” right to be free from physical restraint. (¶24). As she points out, decades of case law already establish that proposition conclusively. (¶26). “By carelessly calling into question the nature of a fundamental right, the majority imperils the liberty of not only those with mental illnesses, but the liberty of all.”
Justice Bradley also addresses the issue that Nathan petitioned on but which SCOW refused to take: Whether there is even any such thing as a “stipulation” to an “involuntary” mental commitment. (¶28). Canvassing the appropriate statutes, Justice Bradley reaches the conclusion the answer must be “no” as “Chapter 51 does not contemplate sidestepping the procedural protections of ch. 51 hearing by entering a ‘no contest stipulation ‘ to a ‘County’s request’ for commitment, as Nathan’s attorney did in this case.” (¶29). Although our statutes recognize other means of voluntarily agreeing to treatment or resolving a case with a “settlement agreement,” these “are the only avenues available to someone facing involuntary commitment who wishes to pursue treatment voluntarily.” (¶34). Accordingly, “The procedures followed for Nathan’s commitment hearing fell outside the law” and Justice Bradley informs the reader that “nothing in the majority opinion should be read to condone the process by which Nathan was committed.” (¶38).
Finally, Justice Bradley zeroes in on the record in this case to explain the egregious evidence that Nathan appeared not to understand what he was agreeing to and may have been induced to agree only by virtue of the doctor’s unenforceable promise that Nathan would be released soon. (¶45).
Justice Dallet’s Concurrence
Justice Dallet, joined by Justices Protasiewicz and Crawford, issues a concurrence once again flagging what she views as ample evidence that Nathan did not understand what he was agreeing to by virtue of his stipulation. (¶49). She also notes that in addition to stipulating to an involuntary commitment, Nathan was also stipulating to an involuntary medication order. (¶51). This appears to create a logical inconsistency, as, “You don’t need to involuntarily treat someone who is agreeing to be treated.” (Id.). Moreover, in order to issue an “involuntary” medication order, the court was required to find that Nathan was “not capable of understanding the benefits and drawbacks of medication, or applying such an understanding to their own situation.” (¶52). This creates another problem: “But how can someone incapable of understanding the benefits or drawbacks of medication agree that they lack that capacity?” (Id.).
Because Nathan did not explicitly argue that his stipulation was not knowing, intelligent and voluntary (and did not attack the med order at all), instead pursuing his structural challenge, those issues were not presented for resolution in this case. However, Justice Dallet cautions lower court actors that “no one should take what happened here as a guide for how to conduct chapter 51 proceedings.” (¶53). Although she isn’t willing to rule out the possibility of some form of stipulated agreement with respect to the commitment (as opposed to medication) order, she urges commonsense measures to ensure that such agreements are clear and understood by all parties. (Id.). She also points out that a circuit court is under no requirement to accept a stipulation and therefore makes the astute observation that this entire appeal could have been avoided if the circuit court merely held the contested final hearing as scheduled. (¶54).
Justice Protasiewicz’s Concurrence
Justice Protasiewicz files her own concurrence, joined by Justices Dallet and Crawford. She is careful to note the limited reach of the majority opinion, which merely holds that a formal colloquy is not legally required. (¶58). The following question is therefore unresolved: “. . . [W]hat form of affirmative showing does due process require before a circuit court may approve a stipulation to an involuntary commitment as intelligent and voluntary?” (¶59). Finally, she also notes the unsettled nature of whether a person can stipulate to an “involuntary medication or treatment order.” (¶60).
Accordingly, we have a relatively narrow ruling: The federal constitution does not require a formal colloquy before a person stipulates to an order for involuntary commitment. However, it appears that most of the justices are troubled by what occurred here and it seems like Nathan may have had a majority of justices willing to conclude his stipulation was not otherwise knowing, intelligent or voluntary if that issue was straightforwardly presented for their review. The issues unresolved are as follows:
- If a person’s stipulation needs to be knowing, intelligent, and voluntary, what evidence is required (other than a formal colloquy) to permit a person to agree to this deprivation of their liberty?
- Are stipulations to involuntary commitments permitted by statute?
- If yes, what about stipulations to involuntary medication?
As we’ve noted in our other posts, these issues have continued to recur and its doubtful we’ve seen the last of them. We would hope that trial courts will heed Justice Dallet’s admonition to avoid such circumstances in the future but, without stronger guidance, we aren’t all that optimistic. We know, at the same time, that lawyers representing such persons may be in a sticky situation when their (mentally ill) client demands to enter an agreement like the one at issue here even if, as some justices believe, that agreement is unlawful. While we had hoped this decision might bring greater clarity, it appears we will be waiting another few years to get answers to these questions. Short of a rule petition or other formal change to procedure throughout the State, we’d bet money we might be drafting another yellow box 5 or 10 years from now on this very same topic. In the meantime, all we can do is to continue urging dedicated trial court actors to continue doing their best in the uncertain world that is Chapter 51 land.