Twenty-one days prior to expiration of the period of commitment under subd. 1.
, the department, if the individual is committed to the department, or the county department to which an individual is committed shall file an evaluation of the individual and the recommendation of the department or county department regarding the individual's recommitment with the committing court and provide a copy of the evaluation and recommendation to the individual's counsel and the counsel designated under sub. (4)
. If the date for filing an evaluation and recommendation under this subdivision falls on a Saturday, Sunday or legal holiday, the date which is not a Saturday, Sunday or legal holiday and which most closely precedes the evaluation and recommendation filing date shall be the filing date. A failure of the department or the county department to which an individual is committed to file an evaluation and recommendation under this subdivision does not affect the jurisdiction of the court over a petition for recommitment.
The county department under s. 51.42
to whom the individual is committed under par. (a) 3.
may discharge the individual at any time, and shall place a committed individual in accordance with par. (f)
. Upon application for extension of a commitment by the department or the county department having custody of the subject, the court shall proceed under subs. (10)
. If the court determines that the individual is a proper subject for commitment as prescribed in sub. (1) (a) 1.
and evidences the conditions under sub. (1) (a) 2.
or is a proper subject for commitment as prescribed in sub. (1) (ar)
, it shall order judgment to that effect and continue the commitment. The burden of proof is upon the county department or other person seeking commitment to establish evidence that the subject individual is in need of continued commitment.
Any disposition of a minor under this subsection may extend beyond the age of majority of the individual, if the disposition is otherwise made in accordance with this section.
The sheriff or any law enforcement officer shall transport an individual who is the subject of a petition and execute the commitment, or any competent relative, friend or member of the staff of a treatment facility may assume responsibility for the individual and transport him or her to the inpatient facility. The director of the county department under s. 51.42
may request the sheriff to provide transportation for a subject individual or may arrange any other method of transportation which is feasible. The county department may provide reimbursement for the transportation costs from its budgeted operating funds.
An appeal may be taken to the court of appeals within the time period specified in s. 808.04 (3)
in accordance with s. 809.30
by the subject of the petition or the individual's guardian, by any petitioner, or by the representative of the public.
Except in the case of commitments under s. 51.45 (13)
, any patient who is involuntarily committed for treatment under this chapter may on the patient's own verified petition except in the case of a minor who is under 14 years of age or on the verified petition of the patient's guardian, relative, friend, or any person providing treatment under the order of commitment request a reexamination or request the court to modify or cancel an order of commitment.
A petition under this subsection may be filed with the court assigned to exercise jurisdiction over probate matters, either for the county from which the patient is committed or for the county in which the patient is detained.
If a hearing has been held with respect to the subject individual's commitment within 30 days of the filing of a petition under this subsection, no hearing shall be held. If such a hearing has not been held within 30 days of the filing of a petition, but has been held within 120 days of the filing, the court shall within 24 hours of the filing order an examination to be completed within 7 days by the appropriate county department under s. 51.42
. A hearing may then be held in the court's discretion. If such a hearing has not been held within 120 days of the filing, a hearing shall be held on the petition within 30 days of receipt.
Reexaminations under this subsection are subject to the standards prescribed in sub. (13) (g)
If the court determines or is required to hold a hearing, it shall thereupon proceed in accordance with sub. (9) (a)
. For the purposes of the examination and observation, the court may order the patient confined in any place designated in s. 51.15 (2) (d)
If a patient is involuntarily committed and placed in a hospital, a notice of the appointment of the examining physicians and copies of their reports shall be furnished to such hospital by the court.
Upon the filing of the examiners' reports the court shall fix a time and place of hearing and cause reasonable notice to be given to the petitioner, the treatment facility, the patient's legal counsel and the guardian of the patient, if any, and may notify any known relative of the patient. Subsections (10)
shall govern the procedure to be used in the conduct of the hearing, insofar as applicable. The privileges provided in ss. 905.03
shall apply to reexamination hearings.
All persons who render services in such proceedings shall receive compensation as provided in sub. (18)
and all expenses of such proceedings shall be paid and adjusted as provided in sub. (18)
Subsequent reexaminations may be had at any time in the discretion of the court but may be compelled after 120 days of the preceding examination in accordance with this subsection. All petitions for reexamination must be heard within 30 days of their receipt by the court.
This subsection applies to petitions for reexamination that are filed under ch. 971
, but not s. 971.17
, and ch. 975
, except that the petitions shall be filed with the committing court.
Any order of a county department under s. 51.42
is subject to review by the court assigned to exercise probate jurisdiction upon petition under this subsection.
The pendency of an appeal in either the court of appeals or the supreme court does not deprive the circuit court of jurisdiction to conduct reexamination proceedings under this section with respect to the individual who is the subject of the appeal.
Right to reevaluation.
With the exception of commitments under s. 51.45 (13)
, every patient committed involuntarily to a board under this chapter shall be reevaluated by the treatment staff or visiting physician within 30 days after the commitment, and within 3 months after the initial reevaluation, and again thereafter at least once each 6 months for the purpose of determining whether such patient has made sufficient progress to be entitled to transfer to a less restrictive facility or discharge. The findings of such reevaluation shall be written and placed with the patient's treatment record, and a copy shall be sent to the board that has responsibility for the patient and to the committing court.
Fees of examiners, witnesses; expenses of proceedings. 51.20(18)(a)(a)
Unless previously fixed by the county board of supervisors or the Milwaukee County mental health board in the county in which the examination is held, the examiners shall receive a fee as fixed by the court for participation in commitment proceedings, and reasonable reimbursement for travel expenses.
Witnesses subpoenaed before the court shall be entitled to the same fees as witnesses subpoenaed before the court in other cases.
Expenses of the proceedings from the presentation of the statement of emergency detention or petition for commitment to the conclusion of the proceeding shall be allowed by the court and paid by the county from which the subject individual is detained, committed, or released, in the manner that the expenses of a criminal prosecution are paid, as provided in s. 59.64 (1)
If the subject individual has a legal residence in a county other than the county from which he or she is detained, committed or discharged, that county shall reimburse the county from which the individual was detained, committed or discharged for all expenses under pars. (a)
. The county clerk on each July 1 shall submit evidences of payments of all such proceedings on nonresident payments to the department, which shall certify such expenses for reimbursement in the form of giving credits to the detaining, committing or discharging county and assessing such costs against the county of legal residence or against the state at the time of the next apportionment of charges and credits under s. 70.60
Prior to filing a petition for commitment of an inmate under sub. (1) (ar)
the department shall:
Attempt to use less restrictive forms of treatment with the individual. Less restrictive forms of treatment shall include, but are not limited to, voluntary treatment within the prison or voluntary transfer to a state treatment facility, including an admission which meets the requirements of s. 51.10 (4m)
Ensure that the individual has been fully informed about his or her treatment needs, the mental health services available to him or her and his or her rights under this chapter and that the individual has had an opportunity to discuss his or her needs, the services available to him or her and his or her rights with a licensed physician or a licensed psychologist.
Establishing standards for the use of psychotropic drugs on prisoners in a state prison and inmates committed under sub. (1) (ar)
Establishing standards and procedures for use of and periodic review of the use of psychotropic drugs on inmates in a county jail or house of correction who are being treated in the jail or house of correction under a commitment based on a petition under sub. (1) (a)
Providing for the periodic review and evaluation of the appropriateness of and the need for the use of psychotropic drugs on, and the need for the continuation of treatment for, each inmate committed under sub. (1) (ar)
History: 1975 c. 430
; 1977 c. 26
; 1977 c. 187
; 1977 c. 428
; 1977 c. 447
; Sup. Ct. Order, 83 Wis. 2d xiii (1978); 1979 c. 32
; Sup. Ct. Order, eff. 1-1-80; 1979 c. 110
s. 60 (1)
; 1979 c. 175
; 1979 c. 300
; 1981 c. 20
; 1981 c. 390
; 1983 a. 27
; 1983 a. 474
; 1985 a. 29
, 3200 (56)
, 3202 (56)
; 1985 a. 139
; 1987 a. 27
; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1987 a. 366
; 1989 a. 31
; 1993 a. 98
; 1995 a. 77
; Sup. Ct. Order No. 96-08
, 207 Wis. 2d xv (1997); 1997 a. 35
; 1999 a. 83
; 2001 a. 16
; 2001 a. 38
; 2003 a. 33
; 2005 a. 22
; 2007 a. 20
; 2009 a. 137
; 2013 a. 20
; 2015 a. 195
; 2017 a. 34
See also s. DOC 314.01
, Wis. adm. code.
NOTE: 1987 Wis. Act 366
, which amended this section, contains notes by the Legislative Council following many of the statutes affected.
NOTE: 1987 Wis. Act 394
, which affected this section, contains a prefatory note and notes following the sections.
Judicial Council Committee's Note, 1981: The final sentence of sub. (1) (am) allows the court to consider the subject individual's conduct during or subsequent to the crime as “recent" for purposes of involuntary civil commitment under this section, if the individual is proceeded against during, or immediately upon discharge from, a commitment for examination or treatment for incompetency to proceed as a criminal defendant. The relevancy of evidence of the individual's conduct prior to the crime is to be determined by the court. The revised statute requires the subject individual's dangerousness to be evidenced by acts, attempts, threats, omissions or behavior referred to in sub. (1) (a) 2. Prior law allowed commitment of such an individual upon a showing that there was a substantial likelihood, based on the treatment record, that he or she would be a proper subject for commitment if treatment were withdrawn. [Bill 765-A]
Judicial Council Note, 1988: The amendment to sub. (2) allows notice of hearings to be given by telephone. The time at which such notice is given and the person to whom it is given must be noted in the case file. [Re Order effective Jan. 1, 1988]
Appointed counsel has the same function, duties, and responsibilities as an attorney retained by the person involved as that person's attorney. The duties include preserving the confidences and secrets of a client, exercising independent professional judgment on behalf of the client, representing the client competently, and representing the client zealously within the bounds of the law. State ex rel. Memmel v. Mundy, 75 Wis. 2d 276
, 249 N.W.2d 573
The due process standard for hearings under this section is more flexible than the standard for criminal proceedings. Milwaukee County v. Parham, 95 Wis. 2d 21
, 289 N.W.2d 326
(Ct. App. 1979).
The 14-day time limit in sub. (7) (c) is mandatory and refers to calendar days, not business days. State ex rel. Lockman v. Gerhardstein, 107 Wis. 2d 325
, 320 N.W.2d 27
(Ct. App. 1982).
A person may be a proper subject for treatment even though a cure is unlikely. C.J. v. State, 120 Wis. 2d 355
, 354 N.W.2d 219
(Ct. App. 1984).
The 45-day limit in sub. (13) (g) 2. applies only to an original commitment order and does not bar subsequent extensions of the order. M.J. v. Milwaukee County Combined Community Services Board, 122 Wis. 2d 525
, 362 N.W.2d 190
(Ct. App. 1984).
The use of telephone testimony by physicians did not a violate the petitioner's due process rights. W.J.C. v. County of Vilas, 124 Wis. 2d 238
, 369 N.W.2d 162
(Ct. App. 1985).
Hearings under sub. (12) are open unless the court grants the subject individual's motion for closure. State ex rel. Wisconsin State Journal v. Circuit Court, 131 Wis. 2d 515
, 389 N.W.2d 73
(Ct. App. 1986).
An individual's counsel may not withdraw a jury demand without the individual's consent. S.B. v. Racine County, 138 Wis. 2d 409
, 406 N.W.2d 408
Sub. (13) (c) 2. does not permit the committing court to specify a treatment method in addition to the facility. J.R.R. v. State, 145 Wis. 2d 431
, 427 N.W.2d 137
(Ct. App. 1988).
“Others" is a general pronoun used in sub. (1) (a) 2. b.; the word identifies that great mass of humankind exclusive of the subject individual to be examined. The prepositional phrase “to them" refers back to and exactly echoes its antecedent, “others." Hence, the clauses are concerned with danger to everyone but the subject “
himself or herself." A showing can be made that others are placed in a fearsome position by a disturbed person's actions even if the person placed in that position has no subjective awareness of it. R.J. v. Winnebago County, 146 Wis. 2d 516
, 431 N.W.2d 708
(Ct. App. 1988).
Under sub. (13) (g) 3., an individual has a right to a jury trial in proceedings to extend a commitment. G.O.T. v. Rock County, 151 Wis. 2d 629
, 445 N.W.2d 697
(Ct. App. 1989).
There is a bright-line rule prohibiting a circuit court from accepting petitions drafted by persons not authorized to do so under sub. (4). State v. S.P.B., 159 Wis. 2d 393
, 464 N.W.2d 102
(Ct. App. 1990).
The services of appointed counsel for non-indigent individuals in civil commitment hearing should be paid for by the county. State ex rel. Chiarkas v. Skow, 160 Wis. 2d 123
, 465 N.W.2d 625
The assurance of representation by adversary counsel under sub. (3) does not preclude self-representation when a waiver of counsel is knowingly and competently made. S.Y. v. Eau Claire County, 162 Wis. 2d 320
, 469 N.W.2d 836
The sub. (16) (c) provision for a hearing on a petition within 30 days of filing is directory and violation is not grounds for release. State v. R.R.E., 162 Wis. 2d 698
, 470 N.W.2d 283
When a recommitment hearing under sub. (13) (g) 3. is before the same judge who conducted the original commitment proceeding, a request for substitution under s. 801.58 is not allowed. State ex rel. Serocki v. Circuit Court, 163 Wis. 2d 152
, 471 N.W.2d 49
Sub. (15) does not authorize the appeal of a court commissioner's order to the court of appeals; proper review is a new hearing by the circuit court. Dane County v. C.M.B., 165 Wis. 2d 703
, 478 N.W.2d 385
An involuntary commitment may not be ordered on summary judgment. Shirley J.C. v. Walworth County, 172 Wis. 2d 371
, 493 N.W.2d 382
(Ct. App. 1992).
A probable cause determination made by a court commissioner under sub. (7) may be reviewed by the circuit court, but nothing gives the subject a right to review. Discussing factors to consider in deciding whether to grant review. Milwaukee County v. Louise M., 205 Wis. 2d 162
, 555 N.W.2d 807
The 14-day deadline under sub. (7) (c) is subject to reasonable extension when the need for the extension is caused solely by the conduct and manipulation of the detained subject. County of Milwaukee v. Edward S., 2001 WI App 169
, 247 Wis. 2d 87
, 633 N.W.2d 241
By expressing the time requirement in sub. (7) (a) in terms of hours rather than days, the legislature manifested its intent that the clock start running immediately “after the individual arrives at the facility," rather than the next day. The “exclude-the-first-day" rule of s. 990.001 (4) (a) and (d) does not apply in the context of this section under which 72 hours means 72 hours. Dodge County v. Ryan E.M., 2002 WI App 71
, 252 Wis. 2d 490
, 642 N.W.2d 592
Sub. (1) (a) 2. e. is constitutional. It does not: 1) allow involuntary commitment upon a finding of mental illness alone and contains an ascertainable standard of commitment, and thus is not vague or overbroad; 2) create a class of persons who can be involuntarily committed upon a finding of mere mental or emotional harm, and thus does not violate equal protection; and 3) violate substantive due process because the constitution does not require proof of imminent physical harm prior to commitment for treatment. State v. Dennis H., 2002 WI 104
, 255 Wis. 2d 359
, 647 N.W.2d 851
Sub. (1) (a) 2. e. may be used to involuntarily commit persons with dual diagnoses of mental illness and either drug dependency or developmental disability. The plain meaning of “these services" in sub. (1) (a) 2. e. includes medication. The ch. 55 exclusion in sub. (1) (a) 2. e. includes an individual who is already subject to an order for protective placement or services, if there is another placement or additional services available under ch. 55 that would be effective in reducing the probability of the requisite harm to less than a substantial probability. This exclusion may apply to an individual who is not yet subject to a ch. 55 order but who is eligible for one. Involuntary administration of medication under s. 55.14 may be one of the additional services that would satisfy this exclusion, if the guardian consents and depending on the individual's circumstances. Dane County v. Kelly M., 2011 WI App 69
, 333 Wis. 2d 719
, 798 N.W.2d 697
Rehabilitation is a necessary element of treatment under this chapter. Because there are no techniques that can be employed to bring about rehabilitation from Alzheimer's disease, an individual with the disease cannot be rehabilitated. Accordingly, an Alzheimer's patient is not a proper subject for treatment under this chapter. Fond du Lac County v. Helen E.F., 2012 WI 50
, 340 Wis. 2d 500
, 814 N.W.2d 179
The availability of a non-unanimous six-person jury in a commitment trial under this section does not violate equal protection. Ch. 980 committees are subject to increased liberty restraints when compared to ch. 51 committees. The legislative decision to allow the added protection of a 12-person unanimous jury in ch. 980 commitment trials, but not in commitment trials under this chapter, is rationally related to different treatment needs and differing levels of dangerousness that this section and ch. 980 seek to address, as well as stricter rules concerning confinement in ch. 980. Milwaukee County v. Mary F.-R., 2013 WI 92
, 351 Wis. 2d 273
, 839 N.W.2d 581
The state has a compelling interest in providing care and assistance to those who suffer from a mental disorder. The state's interest in caring for and assisting individuals who suffer from mental illness is particularly strong in the context of a prison because an inmate must rely on prison authorities to treat the inmate's medical needs; if the authorities fail to do so, those needs will not be met. Sub. (1) (ar) is facially constitutional because it is reasonably related to the state's legitimate interest in providing care and assistance to inmates suffering from mental illness. Winnebago County v. Christopher S., 2016 WI 1
, 366 Wis. 2d 1
, 878 N.W.2d 109
“Treatment" in the context of a “proper subject of treatment" within the meaning of sub. (1) carries a specialized meaning. As set forth in s. 51.01 (17), “treatment” comprises “those psychological, educational, social, chemical, medical or somatic techniques designed to bring about rehabilitation of a mentally ill, alcoholic, drug dependent or developmentally disabled person.” Waukesha County v. J.W.J., 2017 WI 57
, 375 Wis. 2d 542
, 895 N.W.2d 783
“Rehabilitation,” as used in s. 51.01 (17), addresses the control of symptoms. It comprises treatment going beyond custodial care to affect the disease and symptoms. But rehabilitation is not synonymous with cure. A symptom is an expression of the disorder at work within the patient. Rehabilitation refers to improving the patient's condition through ameliorating endogenous factors such as symptoms and behaviors. If a treatment controls symptoms to such a degree that withdrawing it would subject the patient to a more restrictive treatment alternative, then the treatment controls enough symptoms to establish the patient has rehabilitative potential. Waukesha County v. J.W.J., 2017 WI 57
, 375 Wis. 2d 542
, 895 N.W.2d 783
The grant of a statutory right to counsel under sub. (3) is a grant of a right to effective assistance of counsel. The applicable standard for evaluating a claim of ineffective assistance of counsel is the two-prong standard announced in
, 466 U.S. 668
(1984). A movant must demonstrate that: 1) counsel's performance was deficient; and 2) the movant was prejudiced by counsel's deficient performance. Winnebago County v. J.M., 2018 WI 37
, 381 Wis. 2d 28
, 911 N.W.2d 41
A county comports with due process when confining a mentally ill person if the county shows by clear and convincing evidence that the individual is mentally ill and dangerous. Each extension hearing requires the county to prove the same elements with the same quantum of proof required for the initial commitment, including proof of current dangerousness. The alternate avenue of showing dangerousness under sub. (1) (am) does not change the elements or quantum or proof required. It merely acknowledges that an individual may still be dangerous despite the absence of recent acts, omissions, or behaviors exhibiting dangerousness outlined in sub. (1) (a) 2. a. to e. Portage County v. J.W.K., 2019 WI 54
, 386 Wis. 2d 672
, 927 N.W.2d 509
. See also Waupaca County v. K.E.K., 2021 WI 9
, 395 Wis. 2d 460
, 954 N.W.2d 366
For the purposes of personal jurisdiction, an extension hearing is a continuation of the original commitment proceeding and previous recommitment hearings. Waukesha County v. S.L.L., 2019 WI 66
, 387 Wis. 2d 333
, 929 N.W.2d 140
The petition and notice requirements of subs. (1) and (2) do not apply to an extension petition. Procedures governing commitment extensions are located in subs. (10) to (13). Waukesha County v. S.L.L., 2019 WI 66
, 387 Wis. 2d 333
, 929 N.W.2d 140
Circuit courts have the authority, pursuant to s. 806.02 (5), as incorporated by sub. (10) (c), to enter default judgment for failing to appear at properly-noticed extension hearings in which the court has jurisdiction over the person. Waukesha County v. S.L.L., 2019 WI 66
, 387 Wis. 2d 333
, 929 N.W.2d 140
In a civil commitment case, due process requires the petitioner to prove by clear and convincing evidence that the individual is both mentally ill and dangerous. Marathon County v. D.K., 2020 WI 8
, 390 Wis. 2d 50
, 937 N.W.2d 901
Circuit courts in recommitment proceedings are to make specific factual findings with reference to the subdivision paragraph of sub. (1) (a) 2. on which the recommitment is based. Langlade County v. D.J.W., 2020 WI 41
, 391 Wis. 2d 231
, 942 N.W.2d 277
The issuance of a detention order under sub. (10) (d) extends the time to hold a recommitment hearing until seven days after the subject individual is detained. Marathon County v. R.J.O., 2020 WI App 20
, 392 Wis. 2d 157
, 943 N.W.2d 898
Reliance on assumptions concerning a recommitment at some unidentified point in the past, and conclusory opinions parroting the statutory language without actually discussing dangerousness, are insufficient to prove dangerousness under sub. (1) (am) in an extension hearing. Each extension hearing requires proof of current dangerousness. Winnebago County v. S.H., 2020 WI App 46
, 393 Wis. 2d 511
, 947 N.W.2d 761
Neither sub. (1) (am) nor the applicable case law requires an expert or circuit court to speculate on the precise course of an individual's impending decompensation by identifying specific future dangerous acts or omissions the individual might theoretically undertake without treatment. Dangerousness in an extension proceeding can and often must be based on the individual's precommitment behavior, coupled with an expert's informed opinions and predictions; provided, of course, that there is a proper foundation for the latter. Winnebago County v. S.H., 2020 WI App 46
, 393 Wis. 2d 511
, 947 N.W.2d 761
Sub. (1) (am) creates an alternative path to give counties a more realistic basis by which to prove current dangerousness when it is likely the committed individual would discontinue treatment if no longer committed. Thus, the state has a rational basis for treating those recommitted under sub. (1) (am) and those committed under sub. (1) (a) 2. e. differently. Waupaca County v. K.E.K., 2021 WI 9
, 395 Wis. 2d 460
, 954 N.W.2d 366
Sub. (11) (a) does not limit the filing of a jury demand to only the first time that a final hearing is set. Rather, when a final hearing is rescheduled, sub. (11) (a) allows a jury demand to be filed up until 48 hours prior to the rescheduled final hearing. Waukesha County v. E.J.W., 2021 WI 85
, 399 Wis. 2d 471
, 966 N.W.2d 590
Under sub. (2), a court can entertain proceedings for involuntary commitment of a person admitted as a voluntary inpatient. 68 Atty. Gen. 97.
Sub. (14) requires a sheriff to transport the subject of a petition under this section at all stages of the proceedings, regardless of reimbursement. 68 Atty. Gen. 225.
An individual in the custody of a sheriff for transport to, from, and during an involuntary commitment hearing has rights to the least restrictive restraint appropriate. 71 Atty. Gen. 183
Discussing the duties and obligations of a corporation counsel in involuntary civil commitment proceedings under this chapter. 79 Atty. Gen. 129
Under sub. (14), the director of the county department under s. 51.42 or 51.437 may request the sheriff of the county in which an individual was placed under emergency detention to transport that individual to another designated inpatient facility prior to the initial court hearing under this chapter, and the sheriff must do so within a reasonable time. 80 Atty. Gen. 299
A corporation counsel has discretion to refuse to file a petition for examination after receiving signed statements under oath that meet the requirements contained in sub. (1) if the corporation counsel determines that it is not in the interests of the public to file the petition. A good faith discretionary determination on the part of the corporation counsel that the filing of a petition for examination would not be in the interests of the public is not susceptible to challenge in a mandamus action. OAG 4-10
The state cannot confine, without more, nondangerous persons capable of surviving safely in freedom alone or with help from family or friends. O'Connor v. Donaldson, 422 U.S. 563
, 95 S. Ct. 2486
, 45 L. Ed. 2d 396