Mental Commitment De Novo Hearings

By John DiMotto

In addition to handling contested Estate and Guardianship cases, a Probate Judge is also responsible for contested Involuntary Mental Commitment cases.

In Milwaukee County, in the initial stages of these cases, our Probate Court Commissioner, Patrice Baker, is responsible for addressing all issues. If they do not go into contest mode, she has the authority to resolve the Estate and Guardianship cases. When it comes to Involuntary Mental Commitment cases, she has the authority to do the probable cause hearings - a hearing to determine if there is sufficient evidence to justify a trial - but the final hearings, whether contested or uncontested are handled by a Circuit Court Judge.

At the present time, because of the location of the Mental Health Complex - 10 miles from our downtown Courthouse in Milwaukee - the final hearings are conducted on friday mornings at the MHC by a reserve judge. This is done so that the two probate judges, whose case load is actually 25% probate and 75% civil, will not develop a backlog which would result from the loss of a half day of court time for the civil cases. Due to the economic downturn and the lack of funds for reserve judges, this will change next March when the probate judges will travel to MHC on friday mornings to do the final hearings. The two probate judges will receive some civil calendar relief in order to prevent huge backlogs from arising.

In terms of a judge's involvement in Involuntary Mental Commitment cases, we do final hearings and de novo hearings. A de novo hearing will occur if a party takes issue with the decision of the probate court commissioner at a probable cause hearing. When this challenge arises the case is transferred to the courthouse downtown so it can be addressed by the probate judge. If the challenge involves the facts, the judge does not review the propriety of the commissioner's decision, it is a new hearing. If the challenge involves the law, the judge makes an independent legal determination. No deference is given to the commissioner's findings and decision.

The final hearing is usually a court trial although we do preside over a few jury trials each year. These hearings differ from probable cause hearings in terms of the burden of proof. At the final hearing the Petitioner must prove its case by clear and convincing evidence - the middle burden.

Involuntary Mental Commitment cases are among the most sensitive cases we handle. The legal protections afforded the subject individuals are expansive - as they should be - given the "intrusion" that occurs in the lives of the subject individual. The law also looks to the future with multiple reviews if an involuntary commitment is ordered. This is to prevent people from being hospitalized forever.

The goal in an involuntary commitment case is to treat and release as soon as appropriate taking into account the individual and society.