SCOW holds that failing to meet deadline to provide access to examiner’s report 48 hours before a final Ch. 51 commitment hearing does not deny the circuit court competence to proceed.
Outagamie County v. M.J.B., 2026 WI 23, 6/26/26, reversing a published decision of the court of appeals; case activity
In a unanimous decision, SCOW held that the deadline to provide access to examiners’ 48 hours in advance of the final hearing is not central to Chapter 51’s statutory scheme, violating the deadline does not divest the circuit court of competency to proceed, and the circuit court must therefore review whether failing to comply with the deadline was harmless error.
(See our prior posts here and here).
Outagamie County filed a petition to involuntarily commit “Mark” and the circuit court appointed two examiners to prepare written reports on his condition. The court set a final hearing date for September 6, 2023, which was the latest date permitted by Wis. Stat. § 51.20(7)(c). One report was filed on September 2, but the other report was not filed until September 5. Mark argued the circuit court did not have competency to consider the county’s petition because he did not have access to the report at least 48 hours in advance of the final hearing. The circuit court determined it had competency and, because neither party intended to call the examiner who prepared the late report as a witness or ask the court to rely on the report, Mark’s substantial rights were not affected. The circuit court ordered Mark’s involuntary commitment. (¶¶ 4-8).
The court of appeals vacated Mark’s commitment because making expert reports accessible within 48 hours of the final hearing is central to the Chapter’s 51’s statutory scheme and failing to comply with the deadline therefore denied the circuit court competency to proceed with a final hearing. (¶ 9).
SCOW granted review to determine whether a circuit court loses competency to proceed if an examiner’s report is not accessible to counsel at least 48 hours in advance of a final hearing, as required by Wis. Stat. § 51.20(10(b). The statute provides that “[c]ounsel for the person to be committed shall have access to all psychiatric and other reports 48 hours in advance of the final hearing.” Wis. Stat. § 51.20(10)(b).
SCOW acknowledged that a circuit court’s competency–its ability to exercise subject matter jurisdiction in a particular case–may be affected by failing to comply with statutory requirements “pertaining to the invocation of that jurisdiction in individual cases.” (¶13). Whether failing to comply with a statute causes a circuit court to lose competency depends on whether the statutory requirement was “central to the statutory scheme.” (¶ 14).
The Court concluded the 48-hour deadline was not central to the statutory scheme because it “does not establish a timeframe within which the circuit court must exercise its jurisdiction, establish conditions that must be met for the proper exercise of jurisdiction, or otherwise implicate the court’s power to proceed in the case.” (¶ 22). The Court did not consider failing to comply with the deadline to defeat Chapter 51’s purpose of ensuring that the full range of mental health treatment is available to state residents and that no person is institutionalized who can be adequately treated outside of an institutional setting. (¶ 22).
Because failing to comply with the 48-hour deadline did not affect the circuit court’s competency, the court was required to “disregard any error or defect in the pleadings that does not affect the substantial rights of either party.” Wis. Stat. § 51.20(10)(c). SCOW determined Mark’s substantial rights were not affected by his counsel’s inability to access one of the examiner’s reports at least 48 hours before his final hearing because neither party called the examiner as a witness and nothing in the examiner’s report suggested he was not mentally ill and a proper subject for treatment. (¶ 27).