July 7, 2026 – The lack of an examiner’s required written report no later than 48 hours before the final involuntary civil commitment hearing “did not deprive the circuit court of competency to proceed,” a unanimous Wisconsin Supreme Court held in
Outagamie County v. M.J.B., 2026 WI 23.
“Although this time limit protects important interests,” wrote Justice Susan M. Crawford, “nothing in the statutory scheme suggests that the legislature intended that failing to make the examiners’ reports accessible to counsel at least 48 hours before the final hearing would terminate the court’s exercise of jurisdiction over the case.”
The late arrival of one report didn’t affect the defendant’s substantial rights because nothing showed the irregularity undermined the circuit court’s decision, the supreme court held.
Holiday Delay
Mark (a pseudonym) faced criminal charges because he allegedly damaged property at his mother’s home. An inpatient evaluation to determine competency to stand trial resulted in an Aug. 23, 2023, emergency detention. Involuntary civil commitment proceedings began.
Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
Outagamie County Circuit Court set a final hearing on Sept. 6, 2023 – the last day in the 14-day period after initial detention established by Wis. Stat.
section 51.20(7)(c).
Two examiners are required under Wis. Stat. section 51.20(9)(a) to examine the defendant and prepare written reports submitted to the circuit court “no later than 48 hours before the final hearing.”
The second of the two reports arrived by fax at the circuit court at 7:48 a.m. on Saturday, Sept. 2. Monday was Labor Day. The court filed the report electronically on Tuesday, Sept. 5, only a day before the hearing.
Mark’s counsel noted the delinquent report, arguing that the violation of Wis. Stat. section 51.20(10)(b) deprived the circuit court of competency over the hearing. Mark didn’t ask for a postponement.
The county’s counsel, however, received the report at the same time as Mark’s counsel and didn’t intend to call as a witness the author of the late report.
The circuit court determined that it had competency and the late report didn’t affect Mark’s substantial rights. The court ordered involuntary commitment for six months and involuntary administration of medication and treatment.
On appeal, the court of appeals reversed, holding that the late report deprived the circuit court of competency.
‘Central to the Statutory Scheme’
Wisconsin Constitution
article VII, section 8 empowers Wisconsin’s circuit courts with general subject matter jurisdiction.
Although statutes cannot take away that jurisdiction, a circuit court’s failure to comply with some statutory requirements may prevent the court from exercising subject matter jurisdiction in a specific case. The court loses competency to hear the case.
The parties argued that competency rests on “whether the statutory deadline is mandatory or directory.” The supreme court clarified that this wasn’t the test.
The circuit court loses competency, the supreme court explained, only if the circuit court fails to comply with a statutory requirement “central to the statutory scheme.”
A reviewing court determines whether the violation results in losing competency by “ask[ing] ‘whether the legislative purpose of the statutory scheme could be fulfilled[] without strictly following the statutory directive.’”
The legislature enacted Chapter 51 “to assure the provision of a full range of treatment and rehabilitation services” while “‘protect[ing] personal liberties’ by ensuring that ‘no person who can be treated adequately outside of a hospital, institution or other inpatient facility may be involuntarily treated in such a facility.’”
Access to the reports at least 48 hours before the final hearing serves both “the statutory rights to representation by counsel” and the statutorily required “examination by two qualified professionals who must file written reports of their findings,” the supreme court said.
Parts of Wis. Stat. section 51.20 require strict compliance, the supreme court explained.
Circuit courts lose competency by failing to hold a probable cause hearing within 72 hours of custody, by failing to have a final hearing within 14 days of detention, or statutory time limits for commitment orders and their extension.
The 48-hour requirement isn’t like those limitations, the supreme court distinguished.
The statute doesn’t “establish a timeframe within which the circuit court must exercise its jurisdiction,” and the failure “does not defeat Chapter 51’s broader purposes.”
“Instead, the 48-hour time limit … sets an interim deadline intended” to allow counsel time to review the examination reports before the final hearing, the supreme court concluded in determining that the violation “does not deprive a circuit court of competency to proceed.”
Substantial Rights
A circuit court may “disregard any error or defect in the … proceedings that does not affect the substantial rights of either party,” Wis. Stat. section 51.20(10)(c) establishes.
“For an error to affect the substantial rights of a party, there must be a reasonable possibility that the error contributed to the outcome,” the supreme court has held.
“If the error at issue is not sufficient to undermine the reviewing court’s confidence in the outcome of the proceeding, the error is harmless.”
Mark argued that the lack of timely access “undermined his right to the effective assistance of counsel and eliminated the due process safeguard of having two examiners for involuntary commitment,” and limited his ability “to present a defense.”
“[H]e does not demonstrate these harms,” the supreme court said.
“No evidence suggests the violation of the 48-hour deadline affected the outcome of Mark’s involuntary commitment proceedings,” the supreme court said.
No evidence in the record, the decision explained, shows that the reduced time affected his ability to present a defense, and the doctor who submitted the late report wasn’t called as a witness.
“Nothing in [the late] report called into question Mark’s mental illness or that he was a proper subject for treatment, or otherwise undermined the circuit court’s decision.”
Mark doesn’t dispute the testimony of the other examiner or argue that the evidence was insufficient. Other due process requirements remained available to Mark, the supreme court explained.
“The circuit court correctly determined that counsel’s lack of timely access to the report … did not affect Mark’s substantial rights,” the supreme court concluded in affirming the circuit court’s orders.
This article was originally published on the State Bar of Wisconsin’s
Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact
Joe Forward.