The state Supreme Court has tossed out major rulings in its own five-year-old precedent and ruled that counties cannot involuntarily recommit and involuntarily medicate people because they failed to appear at a hearing on the issue.
The court, in an opinion by Justice Janet Protasiewicz, also said that a person subject to commitment and involuntary medication is entitled to notice of the hearing.
"Notice to counsel only is not enough," she said.
Finally, the majority said that Waukesha County had insufficient evidence to subject the petitioner in the case, identified as M.A.C. in the opinion, to involuntary medication.
The ruling reversed key portions of its 2019 opinion in Waukesha County v S.L.L., written by former Justice Daniel Kelly, that said notice to counsel of an commitment-extension hearing was indeed enough and that a default judgment was available if the individual did not show up for court. In that case, Justice Ann Walsh Bradley dissented, joined by Justice Rebecca Dallet and the late Justice Shirley Abahamson.
In the new decision, Waukesha County v M.A.C., Protasiewicz's opinion was joined by Walsh Bradley, Dallet, and Justice Jill Karofsky. Justice Brian Hagedorn issued a concurrence, Justice Rebecca Grassl Bradley wrote a concurrence / dissent, and Justice Annette Ziegler dissented. More on those soon.
State law allows an involuntary commitment for mental illness if the person is dangerous and a proper subject for treatment. If, at the end of the commitment, the county may seek an extension of up to one year, Protasiewicz wrote.
The court holds a hearing, and it is up to the county to show that the extension is warranted. A judge can grant an extension of up to one year.
Meanwhile, a court can also order involuntary medication for a person and must hold a hearing before ordering it. The county must show the person is incompetent to refuse medication.
In 2020, M.A.C. was ordered into an outpatient commitment with involuntary medication in Waukesha County in 2020. The court extended her commitment twice, Protasiewicz said, and the second was scheduled to expire Aug. 31, 2022.
During that final year, M.A.C. was homeless, Protasiewicz wrote. She missed appointments for required injections "and on multiple occasions, the department sought orders for M.A.C. to be taken into custody for injection."
The county filed a petition for recommitment in July, 2022.
"The petition listed M.A.C.'s address as: 'Homeless, please send documents to her case manager.' The county attached an Extension of Commitment Report signed by M.A.C.'s case worker," Protasiewicz said.
Waukesha County Circuit Judge Laura Lau appointed two doctors to examine M.A.C.
"Neither spoke with M.A.C. while preparing the examination report," Protasiewicz said.
Still, both doctors opined that M.A.C. was incapable of understanding the advantages and disadvantages of psychotropic medication or its alternatives.
The still-homeless M.A.C., by then represented by a lawyer appointed by the State Public Defender's Office, was a no-show at the Aug. 16, 2022, recommitment hearing.
"M.A.C.'s appointed counsel was present, but she had not spoken with M.A.C.," Protasiewicz said. "The appointed counsel explained that both she and M.A.C.'s case worker had been trying to reach M.A.C. In particular, counsel said that M.A.C.'s case worker had 'been trying . . . hard to find' M.A.C. In explaining M.A.C.'s non-appearance, counsel offered that M.A.C. had recently witnessed a traumatic event involving her partner."
The county asked for a default judgment and issuance of the recommitment order and M.A.C.'s lawyer said she had 'no direction' from M.A.C. and 'didn't know [M.A.C.'s] position'" Protasiewicz wrote. "Counsel did suggest that M.A.C. would likely not want to be detained. Counsel said she was 'not in a position to object' to the County's proposed factual findings."
Lau eventually sided with the county, finding M.A.C. in default based upon the doctors' findings and her failing to appear. Lau also found M.A.C. met the criteria for continued commitment and that M.A.C. was not capable of making an informed decision to refuse medication.
M.A.C. appealed and the appeals court affirmed, saying in part that it was bound by S.L.L.
The Supreme Court found, however, that S.L.L. was wrong on major points. State statute clearly states that "counties must notify 'the subject individual and his or her counsel'" Protasiewicz said.
The contrary ruling in S.L.L. that only counsel must be notified is "unsound in principle, and we overrule it," she wrote. The law also requires the county to provide notice of a motion for involuntary medication to the individual involved and not to just their lawyer, she said.
Lau overstepped when she entered the default judgment against M.A.C. State law allows a court to order that the individual be detained. If the person is detained, the court must hold the final commitment hearing within seven days, Protasiewicz said.
"Given the severity of a default judgment and the important interests at stake, we decline to read default judgment into chapter 51's recommitment process," she wrote.
The county also failed to provide enough evidence that M.A.C. should be involuntarily medicated.
The county introduced no evidence at the recommitment hearing and called no witnesses. Instead, it asked the court to consider only the doctors' reports and M.A.C.'s failure to appear, Protasiewicz wrote.
"But the doctors' reports weren't much to rely on" she said. "Neither doctor spoke to M.A.C., and one failed to explain how he obtained any information about M.A.C."
M.A.C. was represented in the case before the Supreme Court by Assistant State Public Defender Colleen Marion; Waukesha County was represented by Assistant Corporation Counsel Zachary Bosch.
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