Sheboygan County v. M.W.
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M.W. has been under Wis. Stats. ch. 51 mental health commitment orders since 2006. In August 2020, Sheboygan County again filed a petition to extend her commitment and sought an order for involuntary medication and treatment. The circuit court held a hearing at which three witnesses testified: a doctor, who examined M.W., a case worker assigned to M.W., and M.W. The circuit court granted the County's petition. The court of appeals reversed and remanded.
The Wisconsin Supreme Court reversed. The court has previously announced that "going forward circuit courts in recommitment proceedings are to make specific factual findings with reference to the subdivision paragraph of Wis. Stat. 51.20(1)(a)2. on which the recommitment is based." The court of appeals here determined that the circuit court failed to make such findings. M.W. argued that outright reversal is the proper remedy for the violation. The Wisconsin Supreme Court concluded that the recommitment order at issue has expired, so the circuit court lacks the competency to conduct any proceedings on remand. Therefore, reversal is the appropriate remedy.
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2022 WI 40 SUPREME COURT OF WISCONSIN CASE NO.: 2021AP6 COMPLETE TITLE: In the matter of the mental commitment of M.W.: Sheboygan County, Petitioner-Respondent, v. M.W., Respondent-Appellant-Petitioner. REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 398 Wis. 2d 632, 962 N.W.2d 275 (2021 – unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: June 10, 2022 December 8, 2021 Circuit Sheboygan Kent R. Hoffmann JUSTICES: ANN WALSH BRADLEY, J., delivered the majority opinion of the court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring opinion. ZIEGLER, C.J., filed a dissenting opinion, in which ROGGENSACK and REBECCA GRASSL BRADLEY, JJ., joined. NOT PARTICIPATING: ATTORNEYS: For the respondent-appellant-petitioner there were briefs filed by Christopher B. Logel and Pinix Law, LLC, Milwaukee. There was an oral argument by Christopher B. Logel. For the petitioner-respondent there was a brief filed by Kyle C. Lepak, assistant corporation counsel. There was an oral argument by Kyle C. Lepak, assistant corporation counsel. An amicus curiae brief was filed by Colleen D. Ball, assistant state public defender and Kelli S. Thompson, state public defender for the Office of the Wisconsin State Public Defender. 2 2022 WI 40 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2021AP6 (L.C. No. 2006ME163) STATE OF WISCONSIN : IN SUPREME COURT In the matter of the mental commitment of M.W.: Sheboygan County, FILED Petitioner-Respondent, JUN 10, 2022 v. Sheila T. Reiff Clerk of Supreme Court M.W., Respondent-Appellant-Petitioner. ANN WALSH BRADLEY, J., delivered the majority opinion of the Court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring opinion. ZIEGLER, C.J., filed a dissenting opinion, in which ROGGENSACK and REBECCA GRASSL BRADLEY, JJ., joined. REVIEW of a decision of the Court of Appeals. ¶1 ANN WALSH BRADLEY, J. Reversed. The petitioner, M.W., seeks review of an unpublished, authored decision of the court appeals reversing the circuit court's order extending of her involuntary commitment and remanding to the circuit court for No. further proceedings.1 2021AP6 She argues that the court of appeals erred by remanding to the circuit court, and that outright reversal is the proper remedy. ¶2 We are circumscribed in our review by the narrow issue presented. In Langlade County v. D.J.W., 2020 WI 41, ¶3, 391 Wis. 2d 231, directive 942 that N.W.2d 277, "going this forward court circuit announced courts in a new recommitment proceedings are to make specific factual findings with reference to the subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. on which the recommitment is based." The court of appeals here determined that the circuit court failed to make such findings and Sheboygan County (the County) has not requested review of that determination. remedy. In What remains for our review is an issue of D.J.W., we did not specify the remedy implemented when the circuit court runs afoul of the to be D.J.W. directive. ¶3 M.W. contends that outright remedy for a D.J.W. violation. reversal is the proper In contrast, the County asserts that it is more appropriate to remand the case to the circuit court for it to make the missing findings. Sheboygan County v. M.W., No. 2021AP6, unpublished slip op. (Wis. Ct. App. May 12, 2021) (reversing and remanding the order of the circuit court for Sheboygan County, Kent R. Hoffman, Judge). The appeal was decided by one judge, Judge Mark Gundrum, pursuant to Wis. Stat. § 752.31(2)(d) (2019-20). 1 All subsequent references to the Wisconsin Statutes are to the 2019-20 version unless otherwise indicated. 2 No. ¶4 has 2021AP6 We conclude that the recommitment order at issue here expired and as a consequence the circuit competency to conduct any proceedings on remand. court lacks Therefore, reversal is the appropriate remedy in this case. ¶5 Accordingly, we reverse the decision of the court of appeals.2 I ¶6 M.W. has been under ch. 51 mental health commitment orders since 2006. In August of 2020, the County again filed a petition to extend her commitment.3 Additionally, it sought an order for involuntary medication and treatment. ¶7 The circuit court held a hearing petition, at which three witnesses testified. on the County's Those witnesses called by the County were Dr. Marshall Bales, who examined M.W., and Emilee Sesing, a case worker assigned to M.W. Additionally, M.W. testified on her own behalf. ¶8 Ultimately, the circuit court granted the County's petition to extend M.W.'s commitment and entered an order for The County did not file a petition for cross-review of the court of appeals' conclusion that the circuit court violated Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, and we thus leave that conclusion of the court of appeals undisturbed. See Betchkal v. Willis, 127 Wis. 2d 177, 183 n.4, 378 N.W.2d 684 (1985) (explaining that where an issue "was not raised in the . . . petition for review and no crosspetition was filed . . . the issue is not before us"). We reverse the court of appeals on the issue of remedy only. 2 Throughout this opinion, we use the terms "extension of a commitment" and "recommitment" interchangeably, as does Wis. Stat. § 51.20. See Portage County v. J.W.K., 2019 WI 54, ¶1 n.1, 386 Wis. 2d 672, 927 N.W.2d 509. 3 3 No. 2021AP6 involuntary medication and treatment. It determined that M.W. suffers is a proper subject for be a proper subject for from treatment, a and mental that illness, M.W. would commitment if treatment were withdrawn. ¶9 The circuit court further dangerous to herself or others. concluded that M.W. is It supported this determination by referring to M.W.'s statement to Dr. Bales that she would not pursue treatment absent recommitment and to a recent incident where M.W. left a group home and traveled to New Mexico without her belongings or medications. ¶10 M.W. appealed the circuit court's recommitment order. She argued, among other things, that the circuit court failed to adhere to D.J.W.'s directive that it make specific factual findings with reference to the subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. on which the recommitment is based.4 ¶11 The court of appeals agreed with M.W. on this point and reversed the recommitment order. Sheboygan County v. M.W., No. 2021AP6, unpublished slip op. (Wis. Ct. App. May 12, 2021). It observed that "the record shows, and the County acknowledges that the circuit court failed to state the subdivision paragraph of Wis. Stat. recommitment." § 51.20(1)(a)2. Id., ¶10. on which it based M.W.'s Additionally, "in its ruling, the [circuit] court failed to clearly track the necessary elements M.W. additionally contended that the County did not present sufficient evidence that she is dangerous and that the County failed to provide notice of the standard of dangerousness under Wis. Stat. § 51.20(1)(a)2. on which it was proceeding. M.W., No. 2021AP6, at ¶5. 4 4 No. of any particular subdivision paragraph evidence satisfied those elements." ¶12 and state 2021AP6 how the Id. Finding "clarity and specificity . . . lacking in the [circuit] court's ruling in this case," the court of appeals refused to "engage in guesswork to determine whether the County provided sufficient evidence to satisfy requirement of [Wis. Stat. § 51.20(1)(a)2.]" reasoned: the dangerousness Id. It further "D.J.W. made it clear that it is not the job of an appellate court to try to piece together court comments like pieces of a jigsaw puzzle in an effort to figure out what the picture is." ¶13 Id., ¶11. After determining that a D.J.W. violation occurred, the court of appeals moved to briefly address the remedy for that violation. opinion dealing Citing a prior unpublished court of appeals with a similar issue, the court of appeals reversed and remanded to the circuit court with directions to follow the directive of D.J.W. Id., ¶14 (citing Rock Cnty. Dep't of Human Servs. v. J.E.B., No. 2020AP1954-FT, unpublished slip op., ¶27 (Wis. Ct. App. Apr. 7, 2021)). Further following the lead of the J.E.B. court, the court of appeals added: If, on remand, and after further review of the evidence, D.J.W., and the five dangerousness standards in Wis. Stat. § 51.20(1)(a)2.a.-e., the circuit court again determines that the County has met its burden of showing current dangerousness under § 51.20(1)(a)2., then the court must "make specific factual findings with reference to the subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. on which the recommitment is based" as required by D.J.W. 5 No. 2021AP6 M.W., No. 2021AP6, at ¶14 (quoting J.E.B., No. 2020AP1954-FT, at ¶27). ¶14 M.W. petitioned for this court's review of the remedy issue only. of the The County did not file a petition for cross-review court of appeals' conclusion that the circuit court violated D.J.W. and accordingly that issue was not presented to this court. II ¶15 We are called upon to resolve a question of appellate remedy. The selection of the proper remedy on appeal is a question of law that we review independently. See State v. Lentowski, 212 Wis. 2d 849, 853, 569 N.W.2d 758 (Ct. App. 1997). III ¶16 We begin with the necessary background regarding recommitment proceedings and the directive established by this court in D.J.W. Subsequently, we address the question raised in the petition for review, i.e. the proper appellate remedy for a D.J.W. violation. A ¶17 In order to involuntarily commit a person pursuant to ch. 51, the petitioner must demonstrate that three elements are fulfilled: the subject must be (1) mentally ill; (2) a proper subject for treatment; and (3) dangerous to themselves others. Fond du Lac County v. Helen E.F., 2012 WI 50, ¶20, 340 Wis. 2d 500, 814 N.W.2d 179; Wis. Stat. § 51.20(1)(a)1.-2. or In an initial commitment proceeding, the "dangerousness" element can be proven through any of 6 five standards set forth by No. statute. 2021AP6 State v. Dennis H., 2002 WI 104, ¶14, 255 Wis. 2d 359, 647 N.W.2d 851; Wis. Stat. § 51.20(1)(a)2.5 Pursuant to Wis. Stat. § 51.20(1)(a)2., an individual is "dangerous" if any of the following is fulfilled: 5 (1) Evidences a substantial probability of physical harm to himself or herself as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm. § 51.20(1)(a)2.a. (2) Evidences a substantial probability of physical harm to other individuals as manifested by evidence of recent homicidal or other violent behavior, or by evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them, as evidenced by a recent overt act, attempt or threat to do serious physical harm. § 51.20(1)(a)2.b. (3) Evidences such impaired judgment, manifested by evidence of a pattern of recent acts or omissions, that there is a substantial probability of physical impairment or injury to himself or herself or other individuals. § 51.20(1)(a)2.c. (4) Evidences behavior manifested by recent acts or omissions that, due to mental illness, he or she is unable to satisfy basic needs for nourishment, medical care, shelter or safety without prompt and adequate treatment so that a substantial probability exists that death, serious physical injury, serious physical debilitation, or serious physical disease will imminently ensue unless the individual receives prompt and adequate treatment for this mental illness. § 51.20(1)(a)2.d. (5) For an individual, other than an individual who is alleged to be drug dependent or developmentally disabled, after the advantages and disadvantages of and alternatives to accepting a particular medication or treatment have been explained to him or her and because of mental illness, evidences either incapability of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives, or substantial incapability of applying an understanding of the 7 No. ¶18 Upon the impending expiration of an 2021AP6 initial commitment, a petitioner may seek to extend the commitment for a period not to exceed one year. (13)(g)3.; D.J.W., recommitment same three 391 Wis. 2d 231, proceeding, elements Wis. Stat. § 51.20(13)(g)1., the ¶31. petitioner necessary for To must the prevail in demonstrate initial a the commitment. Waukesha County v. J.W.J., 2017 WI 57, ¶20, 375 Wis. 2d 542, 895 N.W.2d 783. ¶19 provides However, in a recommitment Wis. Stat. § 51.20(1)(am) an additional manner of proving available in the initial commitment. behavior might § 51.20(1)(am) dangerousness change while provides if the a different has not "Because an individual's receiving individual dangerousness treatment, avenue been the Wis. for Stat. proving subject of treatment for mental illness immediately prior to commencement advantages, disadvantages, and alternatives to his or her mental illness in order to make an informed choice as to whether to accept or refuse medication or treatment; and evidences a substantial probability, as demonstrated by both the individual's treatment history and his or her recent acts or omissions, that the individual needs care or treatment to prevent further disability or deterioration and a substantial probability that he or she will, if left untreated, lack services necessary for his or her health or safety and suffer severe mental, emotional, or physical harm that will result in the loss of the individual's ability to function independently in the community or the loss of cognitive or volitional control over his or her thoughts or actions. § 51.20(1)(a)2.e. D.J.W., 391 Wis. 2d 231, ¶30. 8 of extension proceedings . . . ." Portage County No. 2021AP6 v. J.W.K., 2019 WI 54, ¶19, 386 Wis. 2d 672, 927 N.W.2d 509. ¶20 Pursuant to Wis. Stat. § 51.20(1)(am): If the individual has been the subject of inpatient treatment for mental illness . . . immediately prior to commencement of the proceedings as a result of . . . a commitment or protective placement ordered by a court under this section . . . or if the individual has been the subject of outpatient treatment for mental illness . . . immediately prior to commencement of the proceedings as a result of a commitment ordered by a court under this section, . . . the requirements of a recent overt act, attempt or threat to act under par. (a)2.a. or b., pattern of recent acts or omissions under par. (a)2.c. or e., or recent behavior under par. (a)2.d. may be satisfied by a showing that there is a substantial likelihood, based on the subject individual's treatment record, that the individual would be a proper subject for commitment if treatment were withdrawn. This pathway to a recommitment "recognizes that an individual receiving treatment may not have exhibited any recent overt acts or omissions demonstrating dangerousness because the treatment ameliorated there may recur." ¶21 such be a behavior, but substantial if treatment likelihood were such withdrawn, behavior would J.W.K., 386 Wis. 2d 672, ¶19. D.J.W. arrived at this court for our review recommitment order. D.J.W., 391 Wis. 2d 231, ¶23. case, that D.J.W. argued the evidence was of a In that insufficient to support a conclusion that he was "dangerous" within the meaning of Wis. Stat. § 51.20. ¶22 The court approached the legal issues by first observing that "[t]he statutory basis for D.J.W.'s commitment in 9 No. 2021AP6 this case has been somewhat of a moving target." Id., ¶36. Indeed, commitment "It was not clear at either the initial hearing or the extension hearing on which subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. the commitment was based." ¶23 Id. With the parties and the record in the case providing no guideposts for the court's review, the D.J.W. court announced a new directive for circuit courts. Id., ¶40. Namely, the court stated "that going forward circuit courts in recommitment proceedings are to make specific factual findings with reference to the subdivision paragraph of § 51.20(1)(a)2. on which the recommitment is based." ¶24 Id. Such a directive is "manifest in the language of Wis. Stat. § 51.20(1)(am)," and serves two distinct purposes. ¶¶41-42. Id., "First, it provides clarity and extra protection to patients regarding Id., ¶42. the underlying basis for a recommitment." Concerns about a fair process are paramount when any deprivation of liberty, such as a civil commitment, is at issue. Id. (citing "With Addington such an v. Texas, important 441 liberty U.S. 418, interest at 425 (1979)). stake, the accompanying protections should mirror the serious nature of the proceeding." factual Id., ¶43. findings "provides Accordingly, the directive of specific connected increased to protection a to standard patients of to recommitments are based on sufficient evidence." dangerousness ensure that Id.; see also Waukesha County v. E.J.W., 2021 WI 85, ¶31, 399 Wis. 2d 471, 966 N.W.2d 590 (detailing ch. 51's 10 "many provisions designed to offer procedural and substantive protections to No. 2021AP6 the person subject to commitment"). ¶25 Second, the D.J.W. directive was intended to "clarify issues raised on appeal of recommitment orders and ensure the soundness of judicial decision making, specifically with regard to challenges based on the sufficiency D.J.W., 391 Wis. 2d 231, ¶44. of the evidence." The court explained that "[a] more substantial record will better equip appellate courts to do their job, further ensuring meaningful appellate review of the evidence presented in recommitment proceedings." Id. B ¶26 We turn now to the legal issue raised by the petition for review, i.e. the proper remedy for a D.J.W. violation.6 In the time since this court issued the D.J.W. opinion, the court of appeals has been presented with a number of appeals raising the issue directive. of whether the circuit court violated D.J.W.'s When the court of appeals has determined that such a violation occurred, the remedy ordered has not been consistent. In some cases, the court of appeals has remanded to the circuit court, while in others it has reversed outright with no remand. ¶27 The remanded for court the of circuit appeals in court to, this in case essence, reversed fill in and the As the concurrence aptly explains, the dissent goes well outside the bounds of the narrow remedy issue raised in this case. Concurrence, ¶43. The merits of the commitment are not before us because the County did not ask us to review them. See supra, ¶5 n.2. We thus do not further address the dissent's assertion of harmless error. 6 11 No. missing findings. M.W., No. 2021AP6, at ¶14. 2021AP6 In doing so, the court of appeals referenced J.E.B., No. 2020AP1954-FT, at ¶27. In J.E.B., despite an uncontested argument for outright reversal, the court of appeals ordered a remand to the circuit court. Its reasoning included precious little in the way of analysis of the remedy other than to say that "the more appropriate course of action is to remand this matter to the circuit court with directions to follow the dictates of D.J.W. discussed above." ¶28 Id. In contrast, other opinions by the court of appeals have indicated that outright reversal with no remand is the appropriate remedy. See, e.g., Outagamie County v. L.C.E., No. 2021AP324, unpublished slip op., ¶10 (Wis. Ct. App. Sept. 8, 2021); Shawano County v. S.L.V., No. 2021AP223, unpublished slip op., ¶20 (Wis. Ct. App. Aug. 17, 2021); Eau Claire County v. J.M.P., No. 2020AP2014-FT, unpublished slip op., ¶21 (Wis. Ct. App. June 22, 2021). In these cases, the court of appeals' rationale on has focused the circuit court's competency to conduct proceedings on remand and the lack of meaningful relief that would be afforded to a committed person in the event of a remand. ¶29 For example, the court in J.M.P. observed that "[a]lthough the circuit court held a hearing on the County's petition to extend [J.M.P.'s] commitment before [the expiration of the previous commitment], the court failed to enter a valid order extending [J.M.P.'s] commitment order expired." commitment before his prior J.M.P., No. 2020AP2014-FT, at ¶21. 12 No. 2021AP6 Accordingly, "when the prior commitment order expired, the court lost competency to conduct further proceedings on the County's petition further to extend [J.M.P.'s] referenced determining that the commitment." purposes remanding to the of the circuit Id. D.J.W. court The court directive, for factual findings would cause the "clarity" and "extra protection" D.J.W. sought to engender to come "far too late to be meaningful." Id., ¶22. ¶30 Similarly, in S.L.V., the court of appeals wrote that a remand would serve no purpose because the circuit court lacked competency: Here, the circuit court held a final hearing on the County's petition to involuntarily commit [S.L.V.] within the statutory time limits, but it failed to comply with its obligations under D.J.W. during that hearing, and it therefore failed to enter a valid commitment order. At this point, the statutory time limits for holding a final commitment hearing have long since passed, and, as a result, the court now lacks competency to conduct further proceedings on the County's petition. A remand for the court to comply with its obligations under D.J.W. would therefore serve no purpose, as the court now lacks competency to do so. S.L.V., No. 2021AP223, at ¶20. ¶31 The court of appeals in L.C.E. additionally highlighted in its analysis a remand's effect on the right to a meaningful appeal: "Because the recommitment order was entered almost a year ago, [L.C.E.] has not been afforded the clarity and additional protections guaranteed by D.J.W. for that entire period, and remedying the violation now would be far too late to be meaningful." L.C.E., No. 13 2021AP324, at ¶10 (quotation No. omitted). ensures It further explained: that [L.C.E.] is 2021AP6 "The remedy of reversal also not deprived of her right to a meaningful appeal, as it would be almost impossible for [L.C.E.] to appeal from the results of a new hearing, if necessary, before her current recommitment order likely becomes moot." ¶32 The County urges us to follow the former set of cases, including J.E.B. Id. the court of appeals' decisions in this case and In the County's view, a D.J.W. violation is a "minor procedural violation" akin to a failure to adhere to "magic words" or to provide a simple statutory citation. Such a procedural failing is not, according to the County, a reason to disregard the evidence that was presented at the hearing and risk releasing to the community a person who should properly be committed. ¶33 On the other hand, M.W. argues that the latter court of appeals cases arrived at the correct result, contending that outright reversal is the only way to ensure a meaningful appeal of a recommitment order where a D.J.W. violation is alleged. M.W. asserts that the result of remanding would consistently be that the circuit court merely rearticulates its previous conclusion in different terms, thereby delaying resolution of the appeal and rendering completely illusory. the D.J.W. served directive, by an Alternatively, inappropriate because protections offered by D.J.W. Further, M.W. argues that the purposes of as outright M.W. the set reversal asserts the out in circuit 14 in that opinion, are rather than a passing that remand court lacks best remand. competency is to No. proceed on remand. 2021AP6 This argument is much more fully fleshed out by the State Public Defender as amicus. Having been raised, we cannot ignore such a fundamental concern as competency. ¶34 We agree with appropriate remedy. M.W. that outright reversal is the Our reasoning in reaching this conclusion focuses on the circuit court's lack of competency to conduct proceedings on remand. ¶35 A court's competency refers to the court's power to exercise its subject matter jurisdiction in a particular case. City of Eau Claire v. Booth, 2016 WI 65, ¶7, 370 Wis. 2d 595, 882 N.W.2d 738. Unlike a court's subject matter jurisdiction, which is established by the Wisconsin Constitution,7 competency may be affected by noncompliance with statutory requirements pertaining to the invocation of that jurisdiction in individual cases. Id. ¶36 In the specific area of ch. 51 commitments, our precedent establishes the premise that "[t]he circuit court must hold a hearing on the petition for extension before the previous order expires or it loses competency to extend the commitment." J.W.K., 386 Wis. 2d 672, ¶20. An example of this principle in practice is provided by Rock County v. G.O.T., 151 Wis. 2d 629, 631, 445 N.W.2d 697 (Ct. App. 1989). There, the circuit court erroneously concluded that G.O.T. was not entitled to a jury trial. The court of appeals accordingly reversed and determined that "G.O.T. was entitled to a jury trial, but that the court 7 See Wis. Const. art. VII, § 8. 15 No. lost competency by failing to hear and decide the 2021AP6 petition before the commitment had expired." Id.; see also id. at 633 (explaining must hearing that before "the the trial initial court commitment hold expires the extension to determine whether the defendant is, in the words of sec. 51.20(13)(g)3., 'a proper subject for commitment'"). simply vacated the recommitment directions to dismiss the petition. ¶37 Consequently, the court order and remanded with Id. at 631. This court recently applied the same principle when addressing the remedy for a violation of a ch. 51 patient's right to a jury trial. See E.J.W., 399 Wis. 2d 471, ¶40 n.10. In E.J.W., we explained: We simply reverse the decision of the court of appeals rather than remanding for a jury trial because the specific recommitment at issue in this case has expired and accordingly the circuit court has lost competency to act. See G.O.T., 151 Wis. 2d at 631 (determining that person subject to commitment extension was entitled to jury trial but that the circuit court lost competency by failing to hear and decide the petition before the commitment had expired and that as a result the petition should be dismissed); J.W.K., 386 Wis. 2d 672, ¶20 (explaining that "[t]he circuit court must hold a hearing on the petition for extension before the previous order expires or it loses competency to extend the commitment"). This determination does not affect the validity of any subsequent extensions of commitment. J.W.K., 386 Wis. 2d 672, ¶21 (setting forth that the reversal of a commitment order "does not retroactively deprive the circuit court that issued a subsequent commitment order of competency"). E.J.W., 399 Wis. 2d 471, ¶40 n.10. ¶38 Likewise here, the recommitment order from which M.W. appealed has expired, as will often be the case. 16 See J.W.K., No. 2021AP6 386 Wis. 2d 672, ¶29 (acknowledging that "a recommitment order will likely expire before appellate proceedings conclude"). Indeed, the recommitment order from which M.W. appealed expired in October of 2021. We therefore conclude that the recommitment order at issue here has expired and as a consequence the circuit court lacks competency to conduct any proceedings on remand. This conclusion flows directly from the decisions in G.O.T., J.W.K., and situation at E.J.W., hand. which contain Therefore, language reversal on is point the to the appropriate remedy in this case. ¶39 Accordingly, we reverse the decision of the court of appeals. By the Court.—The decision reversed. 17 of the court of appeals is No. ¶40 BRIAN HAGEDORN, J. answers a narrow question: court of appeals (concurring). 2021AP6.bh The court today Is remand appropriate when (1) the concludes the circuit court committed reversible error by failing to comply with the requirements we articulated in D.J.W., and (2) the commitment order that is the subject of the appeal has already expired? I join the majority because it correctly answers this question, holding that remand is not warranted because the circuit court lacks competency to rule on an expired commitment order. I write separately to address the dissent's contention that we should decide more than the narrow question presented. ¶41 requires. To begin, In it Langlade is helpful County v. to reiterate D.J.W., we what D.J.W. directed that "circuit courts in recommitment proceedings are to make specific factual findings with reference to the subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. on which the recommitment is based." 2020 WI 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277. We explained that this requirement would "clarify issues raised on appeal" and "better equip appellate courts to do their job." Id., ¶44. Thus, a circuit court can fall short of our D.J.W. directive by failing to make specific factual findings or by failing to state which dangerousness standard the recommitment is based on. ¶42 Although the parties frame this case as addressing the appropriate "remedy for a D.J.W. error," we do not purport to answer that question in the broad strokes this framing suggests.1 In briefing, M.W. described the issue before the court as follows: "Whether the remedy for a D.J.W. error is outright reversal of the underlying orders, rather than a reverse and 1 1 No. 2021AP6.bh This is in part because not all failures to follow our D.J.W. directive are example, created neglect to equal. A explicitly circuit court reference the might, for standard of dangerousness on which the recommitment is based, even as the transcript makes abundantly clear which standard was relied on. Other times, the transcript might fail to shed any light on which standard D.J.W.'s the circuit instructions could court be employed. violated by Alternatively, failing specific factual findings on a small or large scale. to make All of these "D.J.W. errors" technically violate our directive. Yet today's decision does not answer whether these warrant reversal, nor does it prescribe a universal remedy for even a reversible D.J.W. defect. ¶43 What we have before us is a remedy question regarding an already reversed commitment order. the determination that reversal The County did not appeal was necessary. Thus, the dissent inappropriately reviews the decision to reverse; this is not before us. And the dissent's further worry that the court is disregarding other judicial tools that may be applicable, such as harmless error, is grounded in a misunderstanding of the procedural posture arguments, which postured case. of have this some case. The force, should dissent's await a broader properly For now, the majority determines——rightly in my remand?" The County agreed with this characterization, framing the issue this way: "What is the proper remedy when, in a Chapter 51 recommitment proceeding, the circuit court fails to make specific factual findings with reference to the statutory basis for its determination of dangerousness as required by Langlade County v. D.J.W.?" (Citation omitted.) 2 No. 2021AP6.bh view——that when a case is reversed for a D.J.W. error, and the commitment order is expired, the circuit court loses competency to rule on the expired order. For these reasons, I respectfully concur. 3 No. ¶44 ANNETTE KINGSLAND ZIEGLER, C.J. 2021AP6.akz (dissenting). The court of appeals in this case reversed a mental recommitment which was supported in the record by substantial medical evidence and expert testimony, and it did so because the circuit court failed to use "magic words." use magic words. recommitment, the In court discussion of the facts. the of We do not require courts to process appeals of overturning avoided any this material Instead, it relied heavily on the lack of citation or quotation to specific statutory language in the circuit court transcript. specificity. Our case law does not require such It instead recognizes the reality of how these proceedings are factually individualized and our need to review the record. The court of appeals did not, and now our court does not, afford the deference due to the record and the circuit court's determinations. regard but analysis. ¶45 also in The majority errs in not only this failing to engage in a harmless error As a result, I dissent. Stated differently, our court misapplies the law. Just two years ago, we decided Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277. D.J.W. provided guidance to lower courts to ensure clear and effective judicial decision-making in recommitment hearings. D.J.W. was consistent not only with recommitments, but also with historical practice and court proceedings in criminal and other civil contexts. The court in D.J.W. did not hold that a circuit court's failure to cite a statutory reference is enough to overturn a valid mental health commitment. D.J.W. did not hold that appellate courts 1 No. can evade their own responsibilities. 2021AP6.akz When reviewing recommitment orders on appeal, more than a swift and uncritical review is required. This is a textbook example of this court now requiring magic words. I would not depart from the court's duty to conduct a thorough review of the record, and I disagree with this court's adoption and adaptation of form over substance in now requiring magic words. At most, this record demonstrates harmless court error. Again, the errs in not conducting a harmless error analysis. ¶46 In line with precedents, statutes, and traditional judicial practice, appellate courts must examine the record as a whole and apply a harmless error analysis even when a D.J.W. error is found. The majority avoids discussion of these issues, but in doing so, it invites confusion and further litigation. Processes for valid Chapter 51 recommitments may be thrown into uncertainty, and committees interrupted or cut mistakes. Effective short may due judicial have to their circuit needed treatments courts' procedural administration casualty, along with common respect for the law. will also be a Ultimately, it is the individuals, families, and victims directly affected by severe mental illness who will bear the burden of the uncertainty created by this decision. ¶47 As the majority indicates, the issue we are asked to decide in this case is what "the proper appellate remedy for a 2 No. D.J.W. violation" is.1 concurrence asserts Majority op., ¶16. that, given procedural court cannot fully decide that issue. 2021AP6.akz Justice Hagedorn's limitations, the The concurrence explains that the majority opinion stands only for the proposition that "when a case is reversed for a D.J.W. error, and the commitment order is expired, the circuit court loses competency to rule on the expired order." Concurrence, ¶43. The concurrence does not foreclose review in future cases on "whether [D.J.W. errors] warrant reversal," whether there is a "universal remedy for even a reversible D.J.W. defect," or whether "other judicial tools . . . such as harmless error" may be applicable. Id., ¶¶42-43. In the petition for review to this court, M.W. stated on the first page of her analysis: "Issue Presented: Proper Remedy for a D.J.W. error." In the petition, M.W. asserted "[o]nly one aspect of her appeal is the subject of this petition: the proper remedy for a D.J.W. error." In briefing, M.W. reiterated that "[t]he issue presented concerns the proper remedy for an error arising under the rule that this Court announced in [D.J.W.]." Sheboygan County described the issue presented in a similar manner: "What is the proper remedy when, in a Chapter 51 recommitment proceeding, the circuit court fails to make specific factual findings with reference to the statutory basis for its determination of dangerousness as required by [D.J.W.]?" 1 3 No. ¶48 2021AP6.akz The majority affirms the court of appeals' decision to reverse M.W.'s recommitment order.2 In addition, the majority reverses the court of appeals' decision to remand M.W.'s case to the circuit court for further proceedings. cannot reverse a Chapter 51 recommitment An appellate court on the D.J.W. error without first examining the record. undertakes no such analysis here. basis of a The majority In addition, the harmless error doctrine applies to D.J.W. errors. Because the court of appeals did not examine the record or apply a harmless error analysis, I would reverse the court of appeals' decision in full. M.W.'s recommitment should stand. The majority fails to adequately defer to the well-supported decision of the circuit court. I. ¶49 MENTAL HEALTH COMMITMENTS, APPELLATE REVIEW, AND HARMLESS ERROR It has been the law in Wisconsin for over a century that, when a circuit court enters a final judgment or order in a civil case, it must state its findings of facts and conclusions of law. See Wallis v. First Nat'l Bank, 155 Wis. 533, 535, 145 The majority unambiguously agrees with the court of appeals' decision to reverse the recommitment order. The majority repeatedly asserts in its opinion that "reversal is the appropriate remedy in this case." Majority op., ¶¶4, 34, 38. Undoubtedly, the court of appeals' decision to reverse the recommitment order is not reversed by the majority opinion. Therefore, the majority mislabels its mandate as a reversal of the court of appeals' decision in full. In reality, the majority affirms the court of appeals' decision to reverse the recommitment order, and the majority reverses the decision to remand the case for rehearing. I disagree with the majority's reasoning, the lack of deference it provides to circuit court decision making, and the mischaracterized mandate. To be clear, the circuit court order should stand. 2 4 No. 2021AP6.akz N.W. 195 (1914) (explaining that a trial court must issue a decision "embodying its findings of fact and conclusions of law before judgment is entered"). This is embodied in Wis. Stat. § 805.17(2), which states that for all civil actions "tried upon the facts without a jury or with an advisory jury, the court shall find the ultimate conclusions of law thereon." facts and state separately its We have long required lower courts to articulate their reasoning in decisions in order to "protect the rights of the litigants and to facilitate review of the record by an appellate court." Hochgurtel v. San Felippo, 78 Wis. 2d 70, 85, 253 N.W.2d 526 (1977). ¶50 courts However, for just as long as we have required circuit to reverse explain valid provided. their judgments reasoning, outright we when have such also refused reasoning is to not Wallis, 155 Wis. at 536 ("The failure to make either findings of fact or conclusions of law is not reversible error, where the judgment shows that the necessary facts and conclusions must have been found in favor of the prevailing party and the evidence supports the judgment."). We have understood that outright reversal of a decision well supported by the record on the lack of circuit court findings would be draconian and would effect a miscarriage of justice. also undermine the respect due to circuit court It would judgments. Therefore, we have established three possible alternatives when reviewing a circuit Appellate courts supported by court may "(1) decision affirm the . . . evidence, 5 with the (2) incomplete judgment reverse if if findings. clearly not so No. supported, or conclusions." (3) remand Kraemer v. for the Kraemer, making 67 of 2021AP6.akz findings Wis. 2d 319, and 320, 227 N.W.2d 61 (1975) (collecting cases); accord State v. Margaret H., 2000 WI 42, ¶37, 234 Wis. 2d 606, 610 N.W.2d 475; Wallis, 155 Wis. at 535-36. ¶51 civil This is in line with an equally storied principle in jurisprudence: harmless error. See Wis. Stat. § 805.18(1) (explaining that civil judgments cannot be reversed absent a finding of an error that "affect[s] the substantial rights of the adverse party"); Harran v. Klaus, 79 Wis. 383, 387, 48 N.W. 479 (1891) ("[T]he court [shall], in every stage of an action, [] disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect."); Martindale v. Ripp, 2001 WI 113, ¶30, 246 Wis. 2d 67, 629 N.W.2d 698 ("The appellate court must conduct a harmless error analysis to determine whether the error affected the substantial rights of the party." (quotations omitted)); 5 C.J.S. Appeal and Error § 982 (2022) ("[I]t is a fundamental principle of appellate procedure that a party cannot assign as error that which is not prejudicial to him or her."). The harmless error doctrine ensures finality, respect judicial decisions, and fairness for all litigants. for Rose v. Clark, 478 U.S. 570, 577 (1986) ("Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process (quotations and omitted)); bestirs the 5 C.J.S. 6 public Appeal to and ridicule Error, it." supra No. (explaining orderly that the harmless administration of error justice useless expense to litigants"). doctrine 2021AP6.akz ensures and . . . the "the avoidance of In all, appellate courts do not reverse civil judgments in favor of one party simply because the circuit court failed to follow proper procedure. ¶52 These basic principles of appellate review in civil cases are applicable to Chapter 51 recommitments. County See Milwaukee v. Mary F.-R., 2013 WI 92, ¶¶11-13, 351 Wis. 2d 273, 839 N.W.2d 581 (explaining that Chapter 51 commitments are "civil proceedings"); Wis. Stat. § 51.20(10)(c) (stating that Chapter 51 proceedings are governed procedure in civil cases). by the rules of evidence and Under § 51.20(13), absent a jury demand, the circuit court overseeing a Chapter 51 commitment proceeding must make factual findings and determine whether as a matter of law an individual is "mentally ill," "a proper subject for treatment," and dangerous. § 51.20(1)(a). This is in kind with all civil cases tried and decided by a judge. Accordingly, we it recognized in Marathon County v. D.K. that is best practice for circuit courts to state and explain their factual and legal conclusions. N.W.2d 901. 2020 WI 8, 390 Wis. 2d 50, 937 Every member of the court in D.K. agreed that the circuit court in the first instance must provide explicit and cogent analysis (Ziegler, J., to joined facilitate by appellate Roggensack, C.J., review. and Id., ¶55 Hagedorn, J.) ("[T]he circuit court could have made more detailed and thorough factual findings and clarified its legal conclusions."); id., ¶68 n.4 (Rebecca Grassl Bradley, 7 J., concurring, joined by No. 2021AP6.akz Kelly, J.) ("[C]ircuit courts must expressly make independent factual findings on the record, separate from any legal conclusions."); id., ¶86 (Dallet, J., dissenting, joined by Ann Walsh Bradley, J.) ("[Chapter 51 proceedings] cannot be perfunctory under the law."). ¶53 It was in this legal environment that the court in D.J.W. held that circuit courts must state their recommitment findings on the record. Under Wis. Stat. § 51.20(1)(am), an individual already subject to commitment can be recommitted if there is a finding that "the individual would be subject for commitment if treatment were withdrawn." a proper Prior to D.J.W., there was confusion as to whether this was a standalone basis for recommitment, or if a circuit court was required to cite back to one of the initial bases for committing mentally ill individuals along with § 51.20(1)(am). See § 51.20(1)(a)2. This confusion was in no small part due to the language used in our prior opinions to describe recommitment and subsection (am). See Portage County v. J.W.K., 2019 WI 54, ¶19, 386 Wis. 2d 672, 927 N.W.2d 509 ("[T]he County may, as an alternative to the options under outlined the in § 51.20(1)(a)2.a-e, recommitment pathway of prove dangerousness" § 51.20(1)(am)). D.J.W. clarified that, when an individual is recommitted, the circuit court must state its factual findings with reference to one of the initial commitment pathways, in addition to § 51.20(1)(am). D.J.W., 391 Wis. 2d 231, ¶40 ("[W]e determine that going forward circuit courts in recommitment proceedings are to make specific 8 No. 2021AP6.akz factual findings with reference to the subdivision paragraph of § 51.20(1)(a)2. on which the recommitment is based."). ¶54 In D.J.W., the circuit court did not cite one of the five pathways for initial commitment when it recommitted the individual at issue. Id., ¶45. Further, in oral arguments before the court, the county cited a different dangerousness pathway for recommitment than what was used to committee's initial commitment six months prior. obtain the Id., ¶¶38-39. Nonetheless, we examined the record to determine if recommitment was appropriate, and it was apparent that the county had failed to present the requisite proof. of commitment was The strongest evidence in favor testimony that without treatment the individual would be "unable to maintain a job, hav[e] to rely on disability for income, and liv[e] with family." Id., ¶51. We noted that this was a far cry from a "'substantial probability' that 'death, debilitation, serious or physical serious injury, physical serious disease' would physical ensue if treatment were withdrawn" under the fourth pathway, Wis. Stat. § 51.20(1)(a)2.d. Id., ¶53. Under the third pathway, § 51.20(1)(a)2.c., we explained that "schizophrenia, by itself, does not demonstrate the requisite 'substantial probability of physical impairment.'" ¶55 Id., ¶57. Thus, D.J.W. stands for the well-accepted proposition that circuit courts, as in all civil proceedings, must explain their factual effective findings appellate and legal review. conclusions D.J.W. to clarified facilitate that, in recommitment proceedings, these circuit court statements must be 9 No. 2021AP6.akz made in reference to both an initial commitment pathway and Wis. Stat. § 51.20(1)(am). Nowhere in D.J.W. did we state that appellate courts would reverse any and all recommitment orders that, on a commitment indicate cursory review, pathway. that And lack nowhere traditional citation in appellate to D.J.W. did review decisions would be amended or abrogated. an of initial the court lower court In fact, D.J.W. stands for the proposition that any error is not reversible error if the record supports the recommitment or if the error is findings in harmless. ¶56 When there are inadequate lower court civil proceedings, we must "(1) affirm the judgment if clearly supported by supported, or conclusions." the . . . evidence, (3) remand for (2) the reverse making of Kraemer, 67 Wis. 2d at 320; Wis. 2d 606, ¶37. if not findings so and Margaret H., 234 D.J.W. did not change this law when the civil proceeding happens to be under Chapter 51. Here, the majority concludes that the court of appeals cannot remand the case for further findings and conclusions, citing the lack of competence. Majority op., ¶4. the available That leaves either affirming the judgment on evidence available or apparent. discuss this issue; appropriate remedy." reasoning on the or Id. it Id. topic, reversing if the evidence is not The majority conspicuously does not simply concludes "reversal is the Although the majority provides no the apparent result is reversal without any discussion of the record. 10 an outright But no such No. remedy has ever been recognized in Wisconsin 2021AP6.akz for civil proceedings. ¶57 the In addition to this conflict with law and precedent, majority analysis. applies fails to even mention harmless error in its In line with standard civil procedure, harmless error to Chapter 51 proceedings. Wisconsin Stat. § 51.20(10)(c) unambiguously states that "in every stage of an action, [the court shall] disregard any error or defect in the pleadings or proceedings that does not affect the substantial rights of either party." as requiring harmless This language is regularly interpreted error review. See Martindale, 246 Wis. 2d 67, ¶30; 5 C.J.S. Appeal and Error, supra ¶51, ("The reviewing court must disregard error, in every stage of the action, which does not affect the substantial rights of the party complaining."). Both this court and the court of appeals have harmless recognized proceedings. 338-39, 469 that error applies to Chapter 51 See S.Y. v. Eau Claire County, 162 Wis. 2d 320, N.W.2d 836 (1991) (noting that an admission of evidence on dangerousness was harmless); D.S. v. Racine County, 142 Wis. 2d 129, Chapter comply 135-36, 416 N.W.2d 292 51 commitment, holding that with procedural drafting the (1987) (reviewing petition requirements, and failed a to explaining that "[t]here must be a further showing that this defect misled or caused statutory Stat. prejudice requirements § 51.20(10)(c) before may noncompliance result (1987-88)); in see, with reversal" e.g., procedural (citing Rock Wis. County v. J.J.K., No. 2020AP2105, unpublished slip op., 2021 WL 1803745, 11 No. 2021AP6.akz at *8-9 (Wis. Ct. App. May 6, 2021) (reviewing a circuit court transcript that dangerousness failed pathway, to identify concluding or that cite any the D.J.W. correct error was "harmless" because the record and the circuit court's analysis fit well within the fourth pathway, and reasoning that D.J.W. was not intended "to put form over substance in a manner that would require reversal on this record"). ¶58 D.J.W. in no way implied that harmless error review was inapplicable to circuit courts' explanations of fact and law. To do so would mark a stark departure from established civil procedure (Wis. Stat. § 805.18; Harran, 79 Wis. at 387, Martindale, 246 supra from ¶51) Wis. 2d 67, statutes ¶30; 5 C.J.S. Appeal and Error, governing mental health commitments (Wis. Stat. § 51.20(10)(c)), and from our Chapter 51 precedents (S.Y., 162 Wis. 2d at 338-39, D.S., 142 Wis. 2d at 135-36). Moreover, it would place transcript clarity above some of our most cherished constitutional rights. ¶59 greater Criminal proceedings constitutional experience scrutiny than the civil same, if not commitments. Addington v. Texas, 441 U.S. 418, 427-31 (1979) (comparing the due process implications of criminal prosecutions and civil commitments; stating that civil commitments are not "punitive,"; they rely laypeople; on the medical costs expert opinion imposed on not the committees judgments if they of are wrongfully released can be substantial; and civil commitments by their nature involve less certainty). Nonetheless, in criminal cases, we have routinely applied harmless error to uphold valid 12 No. 2021AP6.akz circuit court judgments, even where the defendant's fundamental rights were abridged. As we stated in State v. Nelson, even in the most flagrant cases of error, Wisconsin "accords a 'strong presumption' that an error review." 2014 WI 70, (quoting Neder v. United is ¶29, 355 subject to a Wis. 2d 722, States, 527 U.S. harmless-error 849 1, N.W.2d 317 8 (1999)). "Accordingly, most constitutional errors can be harmless, and only a very limited class of cases require automatic reversal." Id. (quotations omitted). ¶60 We have applied harmless error to jury instructions that violated a criminal defendant's due process rights, State v. Harvey, 2002 WI 93, ¶47, 254 Wis. 2d 442, 647 N.W.2d 189; violations of criminal defendant's right to testify to her own behalf, State v. Anthony, 2015 WI 20, ¶101, 361 Wis. 2d 116, 860 N.W.2d 10; Miranda violations, State v. Martin, 2012 WI 96, ¶44, 343 Wis. 2d 278, 816 N.W.2d 270; and breaches of a criminal defendant's right to confrontation, State v. Hale, 2005 WI 7, ¶59, 277 Wis. 2d 593, 691 N.W.2d 637; to name a few.3 Only a limited number of circuit court errors are subject to automatic Any argument that applying harmless error to D.J.W. would make nonexistent D.J.W.'s holding is completely at odds with harmless error jurisprudence. No reasonable jurist actually contends that the Fourth, Fifth, and Sixth Amendments cease to exist simply because judgments are affirmed despite violations of those amendments. A circuit court or litigant who intentionally and knowingly violates the law, relying on the fact that harmless error applies on appeal, would be engaging in the unethical practice of law. See SCR 20:3.1(a)(1) (an attorney cannot "knowingly advance a claim or defense that is unwarranted under existing law"); SCR 60.04(1)(hm) ("A judge shall uphold and apply the law and shall perform all duties of judicial office fairly and impartially."). 3 13 No. reversal. These "structural errors" are 2021AP6.akz constitutional in nature, affect the "entire conduct of the trial from beginning to end," and on appeal, the impact of the error on the trial cannot be readily determined. State v. Pinno, 2014 WI 74, ¶49, 356 Wis. 2d 106, 850 N.W.2d 207. Certainly, the failure of a circuit court to state factual conclusions upon review of an established record and the failure to cite a statutory subsection are not structural errors in line with the "complete denial of the right to counsel." Id., ¶50. Appellate courts are more than capable of reviewing a record, party arguments, and circuit court reasoning pathway has been met. to determine if a dangerousness In addition, the failure of a circuit court to be precise in its reasoning does not infect the entire recommitment proceeding with a constitutional violation.4 ¶61 support Our precedents in the criminal sentencing context also the violations conclusion would be that automatic improper. When reversal for sentencing D.J.W. criminal The fact that Wisconsin appellate courts have, for over a century, examined the record when the circuit court's findings are inadequate and have applied harmless error analyses is proof positive that review of the record when there is a D.J.W. violation is both practical and administrable. Kraemer v. Kraemer, 67 Wis. 2d 319, 320, 227 N.W.2d 61 (1975); State v. Margaret H., 2000 WI 42, ¶37, 234 Wis. 2d 606, 610 N.W.2d 475; Harran v. Klaus, 79 Wis. 383, 387, 48 N.W. 479 (1891); Martindale v. Ripp, 2001 WI 113, ¶30, 246 Wis. 2d 67, 629 N.W.2d 698. If the record and the circuit court findings do not allow the appellate court to reasonably determine what pathway of dangerousness is supported by the record, the appellate court can reverse the recommitment order. This result would align with D.J.W.'s purpose in ensuring clarity and factual support in recommitment orders while also protecting the finality of valid circuit court judgments. 4 14 No. 2021AP6.akz defendants, we have held that circuit courts must, "by reference to the relevant facts and factors, explain how the sentence's component parts promote the [statutorily required] sentencing objectives." State v. Gallion, Wis. 2d 535, 678 N.W.2d 197. D.J.W.'s requirement that 2004 WI 42, ¶46, 270 This standard is very similar to circuit courts link their factual findings to Wis. Stat. § 51.20(1)(a)2.'s dangerousness pathways. However, unlike determinations of dangerousness for Chapter 51 proceedings, sentencing determinations are largely left to the discretion of circuit courts. Compare D.K., 390 Wis. 2d 50, ¶18 ("[O]ur review of statutory dangerousness requires us to apply the facts to the statutory standard and presents a question of law that we review independently."), with Gallion, 270 Wis. 2d 535, ¶18 ("[Appellate courts] follow[] a consistent and strong policy against interference with the discretion of the trial court in passing sentence." (quotations omitted)). It is therefore of special import that sentencing courts explain their reasoning so litigants, the public, and appellate courts can have confidence that the circuit court properly exercised its wide discretion. ¶62 Nonetheless, even in the sentencing context, we have made clear that circuit courts are not required to use "magic words." Gallion, 270 Wis. 2d 535, ¶49. We do not reverse convictions simply because a circuit court failed to explicitly quote or reference sentencing factors, even if that method would facilitate appellate review. McCleary v. State, 49 Wis. 2d 263, 280-81, 182 N.W.2d 512 (1971). 15 Instead, "[i]f the facts are No. 2021AP6.akz fairly inferable from the record, and the reasons indicate the consideration of legally relevant factors, the sentence should ordinarily be affirmed." State v. Grady, 2007 WI 81, ¶33, 302 Wis. 2d 80, 734 N.W.2d 364. ¶63 If D.J.W. errors result in automatic reversal, without any consideration of the record as a whole or harmless error, we will transform words. Chapter 51 appeals into contests over magic Appellate courts would put aside any consideration of the merits. Instead, the driving focus would become whether the circuit court cited or quoted a subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. litigants. and This would create horrible incentives for If a commitment can be overturned on mere citations labels, substantially the opportunities increase. for Specifically, gamesmanship committees would and their representatives will have no incentive to assist circuit courts in complying overwhelmingly with D.J.W. supports Even in cases commitment and where the the record individual desperately needs treatment, if a circuit court mistakenly fails to cite a subdivision paragraph 16 of § 51.20(1)(a)2., the No. 2021AP6.akz committee can remain silent and overturn his or her commitment on appeal.5 ¶64 circuit D.J.W. reiterated the long-established principle that courts must explain their conclusions when they decide civil cases. reasoning and legal 391 Wis. 2d 231, ¶40; D.K., 390 Wis. 2d 50, ¶¶55, 68 n.4, 86; Wallis, 155 Wis. at 53536. When circuit courts fail to do so, we must examine the record and determine whether their decision should be affirmed or reversed. Kraemer, Wis. 2d 606, ¶37. 67 Wis. 2d at 320; Margaret H., 234 In all legal proceedings, civil and criminal, Even if we create a new rule mandating automatic reversal of Chapter 51 commitments, for sake of basic judicial integrity, we must apply the forfeiture doctrine to D.J.W. violations. See Waukesha County v. S.L.L., 2019 WI 66, ¶42, 387 Wis. 2d 333, 929 N.W.2d 140 (reasoning that a Chapter 51 committee did not object to the sufficiency of the evidence and had thus forfeited the issue on appeal); Wis. Stat. § 805.11(1), (3) (stating that "[a]ny party who has fair opportunity to object before a ruling or order is made must do so in order to avoid waiving error" and reiterating that "[e]xceptions shall never be made"). Committees and their counsel must have some incentive to encourage D.J.W. compliance. See State v. Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653, 761 N.W.2d 612 ("The purpose of the 'forfeiture' rule is to enable the circuit court to avoid or correct any error with minimal disruption of the judicial process, eliminating the need for appeal."). Otherwise, D.J.W. will become nothing more than a tripwire to easily overturn commitments, not a means to ensure effective court administration. Notably, there is no record here that M.W. objected to any lack of clarity on which statutory basis the recommitment was supported, nor at the time of the recommitment was she left unaware of possible dangerousness pathways under which she could be recommitted. At the hearing, M.W.'s counsel objected to an alleged lack of pre-hearing notice on the part of the County, but then directly addressed and opposed application of the fifth dangerousness pathway before the circuit court. After the circuit court provided its reasoning in favor of recommitment, the circuit court gave M.W.'s counsel an opportunity to comment or object. 5 17 No. appellate courts apply harmless error. Harran, 79 Wis. at 387; Martindale, 2021AP6.akz Wis. Stat. § 805.18; 246 Wis. 2d 67, ¶30; 5 C.J.S. Appeal and Error, supra ¶51; Nelson, 355 Wis. 2d 722, ¶29; Pinno, 356 Wis. 2d 106, ¶49. And the doctrine extends to Chapter 51 commitments. harmless See error Wis. Stat. § 51.20(10)(c); S.Y., 162 Wis. 2d at 338-39; D.S., 142 Wis. 2d at 135-36. ¶65 D.J.W. correctly reversed a Chapter 51 commitment that was woefully lacking in factual support or a clear connection to a dangerousness pathway under Wis. Stat. § 51.20(1)(a)2. Wis. 2d 231, ¶¶38-39, 51, 53, 57. The case did appellate practice and procedure in this state. create a judge-made structural error mandate the use of magic words. standard, not 391 remake It did not nor did it In line with our historical practice, precedents, and statutes, we cannot reverse wholesale any and all Chapter 51 commitments when there is a D.J.W. error. If the commitment is supported by the evidence and the law, it must be affirmed. In addition, the County must be given the opportunity to argue for harmless error. ¶66 The stakes are high in Chapter 51 commitments. Although we hold the County to rigorous standards and safeguard committees' commitment receive the rights to ultimately fair ensures treatment they and honest that mentally need before treatment, ill someone civil individuals gets hurt. Automatic reversal of commitment orders solely due to the lack of precise wording on the part of a judge ignores substance and makes form paramount. And 18 the potential costs would No. significantly outweigh any intended benefits. suicidal or homicidal individuals may have 2021AP6.akz Even the most their commitments overturned on the basis of a circuit court's procedural error. This would be administration a grave of disservice justice. to More the fair and significantly, proper it would symbolize a failure of the judiciary to the many victims of severe mental illness, who rely on Chapter 51 for safety and protection. In cruel irony, civil committees the most. unjustified reversal will harm Addington, 441 U.S. at 430 ("Such 'freedom' for a mentally ill person would be purchased at a high price."). II. THE COURT OF APPEALS' DECISION AND THE MAJORITY OPINION ¶67 Here, the court of appeals examined the circuit court transcript and determined that the circuit court did not quote or cite a dangerousness pathway under Wis. Stat. § 51.20(1)(a)2. Shebogyan County v. M.W., No. 2021AP6, unpublished slip op., ¶¶10, 12 (Wis. Ct. App. May 12, 2021). reversed M.W.'s commitment, but The court of appeals remanded circuit court to clarify its findings. line with established findings in civil cases. practice for the case Id., ¶14. reviewing for the This is in circuit court Kraemer, 67 Wis. 2d at 320 (explaining that appellate courts may "remand for the making of findings and conclusions"); However, the accord court of Margaret appeals H., did 234 not Wis. 2d 606, consider ¶37. whether the record supported M.W.'s recommitment notwithstanding any D.J.W. error. The recommitment court under of the appeals also harmless error 19 did not review doctrine, M.W.'s despite the No. 2021AP6.akz County arguing explicitly in its court of appeals brief that harmless error applied: "Since the Court's ruling can easily be determined upon review, M.W. is not substantially prejudiced by the lack of specific statute number" (citing Wis. Stat. § 51.20(10)(c)). ¶68 If the court of appeals examined the record or applied harmless error, it would order in this case. not have reversed the recommitment There was substantial evidence to support the fifth pathway on dangerousness, and both medical experts and the County argued for application of that pathway before the circuit court. ¶69 The record strongly favored recommitment. M.W. was initially committed in 2006 after attempting suicide at least 20 times. She was diagnosed with bipolar disorder, with acute psychotic symptoms, and has since received treatment in a stable environment. experience A registered psychiatrist with over 25 years of attempted to interview determine the need for recommitment. M.W. telephonically to M.W. hung up on the doctor during the examination, but the doctor observed in that time that M.W. was "manic, paranoid, angry, dysphoric, not rational, [and] making delusional comments." The doctor noted that M.W. eloped from her outpatient facility during the height of the COVID-19 pandemic (March 2020) without medication, money, or any sort of plan. Reviewing M.W.'s complete treatment record and applying his professional judgment, the doctor explained that M.W. has shown get . . . help." a "complete disregard for the need to The doctor stated "standard five" for mental 20 No. 2021AP6.akz health commitment was "exactly how [M.W.] would be dangerous" if she were not recommitted. A trained behavior health manager who had worked directly with M.W. for months, provided testimony supporting the doctor's account. The manager described M.W. as erratic, unable to receive care outside commitment, and hostile to medication and non-pharmaceutical treatment. The only evidence presented against recommitment was testimony from M.W. herself, who medication agitated described compliant. and herself During interrupted unsolicited outbursts. as the witnesses independent, stable, hearing, M.W. and circuit the also and became court in In closing arguments, the County argued for application of the fifth dangerousness pathway. ¶70 The circuit recommitment. court findings further supported The circuit court quoted the recommitment pathway (D.J.W. had been decided only six months prior) and cited in detail the doctor's testimony. The court stated that M.W. "can become so psychotic . . . she doesn't take care of herself and that endangers her" and explained that, without treatment, "she is going safety." to lack the Finally, services the necessary circuit court for her health and that the reasoned advantages of medication had been explained to M.W., but she was not competent to understand those advantages to make informed decisions. credible. The court clearly did not find M.W.'s testimony See State v. Anson, 2005 WI 96, ¶32, 282 Wis. 2d 629, 698 N.W.2d 776 ("When . . . the trial court acts as the finder of fact it is the ultimate arbiter of both the credibility of the witnesses, and the weight to 21 be given to each witness' No. testimony." (quotations omitted)); Wis. Stat. 2021AP6.akz § 805.17(2) (stating that findings of fact from a trial court are reviewed with "due regard . . . to the opportunity of the trial court to judge the credibility of the witnesses"). of appeals examined the record as a In all, if the court whole and the circuit court's statements, M.W.'s recommitment would have been affirmed under the fifth dangerousness pathway. ¶71 After the court of appeals reversed the recommitment order and remanded for further proceedings, M.W. appealed to this court challenging the court of appeals' chosen remedy for a D.J.W. violation. determination In the process, the County did not appeal the that D.J.W. was not adequately followed. The majority states that remand is not possible in this case because the circuit court lost competency. Majority op., ¶4. That is not true of all cases, and the majority opinion does not state that it is applying a categorical rule. See id., ¶4 ("As a consequence, reversal is the appropriate remedy in this case" due to the lack of competency). well-trained judiciary, As members of a competent and appellate courts should prudently analyze each case and determine the proper remedy case-by-case, as is done in all civil cases with inadequate circuit court findings. competency In cases and can where the circuit court efficiently correct any still retains D.J.W. errors, appellate courts must be permitted to consider remand to correct any D.J.W.-specification errors. The concern in D.J.W. was the lack of clarity in circuit court decisions; if a circuit court 22 can effectively resolve the uncertainty on No. 2021AP6.akz remand, appellate courts should facilitate that result. ¶72 In holding that remand is not an available remedy in this case, the majority makes no effort to describe if, when, or how appellate commitment there is courts and a affirm D.J.W. can review whether the a circuit court's judgment violation. record supports even The majority simply concludes "reversal is the appropriate remedy in this case." op., ¶4. where Majority Harmless error is not mentioned once in the analysis. This is all despite the fact that the County thoroughly examined the evidence in support of M.W.'s commitment, asserted that M.W. should be recommitted under the fifth dangerousness pathway, and claimed that the only error in this case was a "procedural violation" whereby "the circuit court did not make its findings clear enough as to what standard it was basing its decision on." It was abundantly clear in its arguments that the County believed reversal in this case solely on the basis of a D.J.W. violation strongly would be supported inappropriate recommitment. given that the Furthermore, merits M.W. so argued "action in the court of appeals," in which the court of appeals would affirm the recommitment notwithstanding a violation, could be a possible remedy in this case. D.J.W. We have been asked to determine what the appropriate remedy is when a D.J.W. violation has been found; the issue is squarely before us. Affirming a recommitment on appeal upon record is a remedy that can and should be used. review of the And if that remedy were applied in this case, M.W.'s recommitment would be 23 No. affirmed. the 2021AP6.akz The failure of the majority to address the record and circuit court's reasoning deprives the circuit court decision of the deference it is due. ¶73 This is a profound and extraordinarily important legal issue for this state. If D.J.W. requires automatic reversal of civil commitments for the lack of correct wording on the part of the circuit court, without any showing of structural error or prejudice, the court will be creating a remedy never before recognized in this state. It would cast aside over a century of appellate practice and precedents, and it would ignore explicit and on-point statutory language in favor of novel, judicially devised law. Wis. Stat. § 51.20(10)(c) ("[I]n every stage of an action, [the court shall] disregard any error or defect in the pleadings or proceedings that does not affect the substantial rights of either party."); Kraemer, 67 Wis. 2d at 320; Margaret H., 234 Wis. 2d 606, ¶37; Wis. Stat. § 805.18; Harran, 79 Wis. at 387; Martindale, 246 Wis. 2d 67, ¶30; 5 C.J.S. Appeal and Error, supra ¶51; Nelson, 355 Wis. 2d 722, ¶29; Pinno, 356 Wis. 2d 106, ¶49; S.Y., 162 Wis. 2d at 338-39; D.S., 142 Wis. 2d at 135-36. ¶74 While bearing the appearance of a limited decision, the majority opinion in this case has potentially significant consequences. The majority refuses to provide guidance to future courts as to how they should actually deal with D.J.W. errors. Can appellate courts review the record to determine if commitment is supported, despite a circuit court's failure to cite or reference a subdivision 24 paragraph of Wis. Stat. No. § 51.20(1)(a)2.? 2021AP6.akz Can appellate courts apply harmless error, or must they reverse as a matter of course all mental commitments, even those circuit with court overwhelming findings? support The in majority the record opinion courts and Chapter 51 litigants in the dark. and leaves in lower In so doing, today's decision practically guarantees further litigation and confusion. It may very well be that in the process, valid and necessary commitments references to are reversed subdivision for the lack of § 51.20(1)(a)2. paragraphs of magic Appellate courts can cite the majority's rejection of remand procedures in this case, its conclusion that "reversal is the appropriate remedy," methods of review. and its conspicuous Majority op. ¶4. silence on other They can observe that M.W.'s recommitment was reversed without any examination of the record. Other appellate courts, by contrast, may look to how every other civil and criminal appeal operates, and how every other Chapter 51 error is reviewed, and affirm valid commitments supported by the record and the circuit court's findings. Inconsistent standards and legal uncertainty work only to the detriment of those subject to Chapter 51 commitment proceedings. ¶75 other By relying on a procedural error, and conducting no analysis, the majority's decision avoids significant determinations that are due the state of Wisconsin and M.W. There is a time and place for avoiding extraneous legal issues, and there is a time and place for this court to provide clarity for Wisconsin's legal system. See Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997) ("The purpose of the 25 No. supreme court is to oversee and implement the development of the law." (quotations omitted)). 2021AP6.akz statewide By taking this case, but refusing to fully address the issues presented, the most consequential result increased legal uncertainty. of the majority's decision is If this court believes any and all Chapter 51 commitments should be reversed if the circuit court fails to reference a subdivision paragraph of Wis. § 51.20(1)(a)2., the court should make that clear. Stat. If the court does so, the legislature would at least have the opportunity to consider legislation to avoid the manifest injustice such a decision would engender. III. ¶27 CONCLUSION The majority affirms the court of appeals' decision to reverse M.W.'s recommitment order. In addition, the majority reverses the court of appeals' decision to remand M.W.'s case to the circuit court for further proceedings. cannot reverse a Chapter 51 recommitment An appellate court on the D.J.W. error without first examining the record. undertakes no such analysis here. basis of a The majority In addition, the harmless error doctrine applies to D.J.W. errors. Because the court of appeals did not examine the record or apply a harmless error analysis, I would reverse the court of appeals' decision in full. will M.W.'s recommitment should stand. have identified appropriate the in opportunity Justice appellate to properly Hagedorn's remedy for 26 Hopefully, this court address concurrence, D.J.W. the issues including errors, in the future No. appeals. See concurrence, ¶¶42-43. 2021AP6.akz The majority's conclusions in this case fall short of what is required. ¶76 For the foregoing reasons, I respectfully dissent. ¶77 I am authorized to state that Justices PATIENCE DRAKE ROGGENSACK and REBECCA GRASSL BRADLEY join this dissent. 27 No. 1 2021AP6.akz
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