Milwaukee County v. T.L.T.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 18, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP426 Cir. Ct. No. 2013ME1668

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN THE MATTER OF THE MENTAL COMMITMENT OF T.L.T.:

MILWAUKEE COUNTY,

PETITIONER,

V.

T.L.T.,

RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
MARSHALL B. MURRAY, Judge. Dismissed.
No. 2020AP426

¶1 DUGAN, J.1 T.L.T. appeals a one-year recommitment order
entered on May 28, 2019, and argues that the circuit court lost its competency
when the expert reports bearing on the issue of T.L.T.’s recommitment were not
accessible to her counsel within the statutory timeframe. She further argues that
there was insufficient evidence to support the recommitment order. This court
concludes that T.L.T.’s appeal is moot. Consequently, T.L.T.’s appeal is
dismissed.

BACKGROUND

¶2 A petition pursuant to WIS. STAT. § 51.20 was filed on May 31,
2013, seeking an examination of T.L.T. for purposes of an involuntary
commitment. As described in the petition, T.L.T. suffered from several medical
conditions, refused to take her medications, had a string of recent hospitalizations,
and needed commitment and involuntary medication and treatment orders to
manage her medical conditions. The circuit court entered a six-month
commitment order and an order for involuntary medication and treatment on
June 14, 2013.2

¶3 T.L.T.’s commitment has been extended on several occasions. As
relevant here, Milwaukee County filed a motion on May 13, 2019, to extend
T.L.T.’s commitment for another year. The circuit court scheduled a hearing for
May 24, 2019, and two experts, Dr. Charles Rainey and Dr. Joan Nuttall, were

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
The Honorable Victor Manian entered the original orders in this case. The
recommitment order that is the subject of this appeal was entered by the Honorable Marshall B.
Murray.

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appointed to evaluate T.L.T. Dr. Nuttall e-filed her report on May 21, 2019;
Dr. Rainey’s report was received on May 22, 2019.3

¶4 T.L.T. filed a motion to dismiss arguing that counsel was not given
timely access to either report and, therefore, the circuit court lost competency over
the matter for a failure to comply with WIS. STAT. § 51.20(10)(b), which requires
that counsel have access to the doctors’ reports forty-eight hours in advance of the
hearing. T.L.T.’s counsel asserted that electronic access to Dr. Nuttall’s report
was blocked and neither report was ever provided to counsel at her office forty-
eight hours in advance of the hearing. In response, the County asserted that both
reports were available at the clerk’s office by the statutory deadline and T.L.T.’s
counsel failed to come to the office to review the reports. The County additionally
asserted that its request to extend T.L.T.’s commitment was unaffected by any
untimely receipt of these reports because it was able to support its case using only
the testimony of the treating physician. The circuit court denied the motion to
dismiss and, instead, adjourned the hearing to allow T.L.T.’s counsel time to
review the reports.

¶5 The adjourned extension hearing took place four days later on
May 28, 2019, and the County presented testimony from T.L.T.’s treating
physician in support of the extension. The circuit court ultimately granted the one-
year extension, and this appeal followed. Since the time of the appeal, the

3
There is some dispute regarding the receipt of Dr. Rainey’s report. The County asserts
that Dr. Rainey’s report was e-filed. T.L.T. asserts that Dr. Rainey’s report was e-mailed to the
clerk instead of e-filed. The actual manner in which Dr. Rainey’s report was received is
irrelevant to our decision, and this court expresses no opinion as to the receipt of Dr. Rainey’s
report.

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recommitment order expired on May 28, 2020, and an additional extension order
was entered, which itself expired on February 16, 2021.4

DISCUSSION

¶6 On appeal, T.L.T. argues that the circuit court lost competency to
proceed when counsel was not provided with timely access to the reports of
Dr. Nuttall and Dr. Rainey. She further argues that there was insufficient evidence
to extend her commitment. This court declines to address the merits of T.L.T.’s
arguments because her appeal is moot.

¶7 “An issue is moot when its resolution will have no practical effect on
the underlying controversy.” Portage Cnty. v. J.W.K., 2019 WI 54, ¶11, 386
Wis. 2d 672, 927 N.W.2d 509 (citation omitted). “Appellate courts generally
decline to reach moot issues[.]” Id., ¶12. If an appeal raises moot issues, it should
be dismissed. Id. However, in certain circumstances, moot issues may be
addressed:

(1) “the issues are of great public importance;” (2) “the
constitutionality of a statute is involved;” (3) the situation
arises so often “a definitive decision is essential to guide
the trial courts;” (4) “the issue is likely to arise again and

4
This court notes that since the circuit court issued its order granting the one-year
extension, the disposition of this appeal has been delayed as a result of multiple extensions and
stays. The time frames of those extensions and stays include: (1) September 23, 2019, the State
Public Defender’s Office moved for an extension of time to appoint postcommitment counsel and
to order transcripts; (2) November 20, 2019, postcommitment counsel moved for an extension to
file transcripts; (3) March 30, 2020, T.L.T. filed her notice of appeal; (4) July 28, 2020, T.L.T.
moved to stay the briefing in this appeal until the Wisconsin Supreme Court decided Waupaca
County v. K.E.K. (K.E.K. asked our supreme court to determine whether the recommitment
statute is constitutional.) and this court granted the stay until K.E.K. was decided; (5) February 9,
2021, K.E.K. was decided, see id., 2021 WI 9, 395 Wis. 2d 460, 954 N.W.2d 366;
(6) February 15, 2021, T.L.T. filed her appellate brief; (7) April 14, 2021, the County filed its
response brief; and (8) April 30, 2021, T.L.T. filed her reply brief.

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should be resolved by the court to avoid uncertainty;” or
(5) the issue is “capable and likely of repetition and yet
evades review.”

Id.

¶8 The recommitment order at issue in this appeal was issued almost
two years ago on May 28, 2019, and expired almost one year ago on May 28,
2020. Thus, T.L.T. is no longer subject to the recommitment order at issue in this
appeal and has, in fact, been the subject of an additional recommitment order,
which itself has since expired. “An appeal of an expired commitment order is
moot.” Id., ¶14. Thus, T.L.T. must demonstrate that her appeal fits one of the
exceptions listed above.

¶9 T.L.T.’s first argument on appeal deals with the interpretation of the
filing requirements contained in WIS. STAT. § 51.20(10)(b) and the circuit court’s
competency over the proceedings when counsel was not provided access to the
doctors’ reports forty-eighty hours in advance of the hearing. This court has
already addressed this issue in Fond du Lac County v. S.N.W., No. 2019AP2073,
unpublished slip op. (WI App June 17, 2020), review dismissed as improvidently
granted, 2021 WI 41, ___ N.W.2d ___. There, this court concluded that WIS.
STAT. § 51.20(10)(b) “does not affect the court’s competency to exercise
jurisdiction” and the “failure to submit the examination report more than forty-
eight hours prior to the final hearing did not affect S.N.W.’s substantial rights.”
S.N.W., No. 2019AP2073, at 3. Another decision by this court on this issue would
have no more impact than our existing decision in S.N.W., which was itself an

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No. 2020AP426

unpublished opinion decided by one judge.5 Thus, this court declines to address
T.L.T.’s first argument on the grounds that it is moot and fails to meet any of the
exceptions.

¶10 T.L.T. raises a second argument on appeal about the sufficiency of
the evidence to support the recommitment order and argues that a decision in her
case will clarify our supreme court’s recent decision in Langlade County v.
D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277. However, an argument
regarding the sufficiency of the evidence is necessarily a “fact-specific” inquiry
where “the sufficiency of the evidence will be different in each case.” J.W.K., 386
Wis. 2d 672, ¶30. Thus, a decision here on the sufficiency of the evidence to
support a three-year-old, expired recommitment order that itself has been replaced
by another expired order is not of great public importance, would not be essential
to guide future courts, and is unlikely to arise again.

¶11 Moreover, D.J.W. arguably does not even apply to T.L.T. given that
it was decided after the recommitment order at issue here and, therefore, D.J.W.
would not be clarified through a decision on T.L.T.’s order. See D.J.W., 391
Wis. 2d 231, ¶3 (describing the holding as “going forward”). Even assuming
D.J.W. did apply, a decision in this matter would not be mandatory authority in
future cases and, thus, can hardly be said to be a decision on a matter of great
public import, essential for guiding future courts, or any of the other mootness
exceptions. See WIS. STAT. RULE 809.23(3). As with T.L.T.’s first argument, a

5
As this court stated in its June 30, 2020 order, moving to have this appeal heard by a
three-judge panel would have been “a logical step because an appeal which presents issues that
warrant a decision despite mootness is usually a candidate for publication.” In fact, this court
ordered that the “first issue” in the appellate briefs “shall be whether the appellate issue(s) should
be considered despite mootness.”

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No. 2020AP426

decision on the sufficiency of the evidence to support T.L.T.’s own, expired
recommitment order does not meet any of the exceptions to mootness listed above.

¶12 For the reasons stated above, this court concludes that T.L.T.’s
appeal is moot and declines to reach the merits of T.L.T.’s appeal.

By the Court.—Appeal dismissed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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