State v. Kyle A. Schaefer

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.
November 18, 2025
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP1747-CR Cir. Ct. No. 2014CF385

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KYLE A. SCHAEFER,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Marathon County:
MICHAEL K. MORAN, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, JJ.

¶1 GILL, J. Kyle A. Schaefer appeals from an order granting the
Department of Health Services’ (DHS) petition to revoke his conditional release
No. 2023AP1747-CR

under WIS. STAT. § 971.17(3)(e) (2023-24).1 The DHS detained Schaefer, and it
filed with the circuit court both a statement showing probable cause for his
detention and a petition to revoke his conditional release. However, the DHS
failed to timely submit the probable cause statement and the petition to “the
regional office of the state public defender” (SPD) within 72 hours as required by
§ 971.17(3)(e) (hereinafter, “the 72-hour requirement”). Consistent with this
court’s decision in State v. Olson, 2019 WI App 61, ¶2, 389 Wis. 2d 257, 936
N.W.2d 178, the circuit court found that it lacked competency to consider the
DHS’s petition, and it dismissed the petition. Following the dismissal, the court
inquired whether the DHS would file a second petition to revoke Schaefer’s
conditional release, to which the DHS responded that it would likely do so.

¶2 Within one hour of the circuit court’s dismissal, and while Schaefer
remained in custody, the DHS filed a second petition to revoke Schaefer’s
conditional release, and Schaefer filed another motion to dismiss. Citing Olson,
Schaefer argued that the court again lacked competency to proceed on the DHS’s
petition because he had remained in custody for longer than 72 hours without the
DHS submitting a statement of probable cause or the petition to revoke his
conditional release to the SPD, in violation of WIS. STAT. § 971.17(3)(e).
Schaefer further argued that the DHS could not avoid the 72-hour requirement by
filing the second petition because that petition was based on the same allegations
made to revoke his conditional release under the first petition. The court denied
Schaefer’s second motion to dismiss, and, following a hearing, it revoked his
conditional release.

1
All references to the Wisconsin Statutes are to the 2023-24 version unless otherwise
noted.

2
No. 2023AP1747-CR

¶3 This court recognized in Olson that WIS. STAT. § 971.17(3)(e) does
not provide a remedy for the DHS’s failure to comply with the 72-hour
requirement. However, consistent with the text of the statute and case law
interpreting the purpose of § 971.17(3)(e) and similar statutes, we conclude that
the circuit court’s dismissal of the DHS’s first petition to revoke Schaefer’s
conditional release ended the proceeding resulting from the first petition and
functioned as a break in Schaefer’s detention for purposes of the statutory
requirements. Based upon that break in Schaefer’s detention, we conclude that the
DHS complied with the 72-hour requirement in all respects upon its filing of the
second petition to revoke Schaefer’s conditional release, and the circuit court
therefore had competency to proceed on the petition’s merits.

¶4 Furthermore, because a circuit court’s dismissal of a previously filed
petition for loss of competency is not a decision on the merits of a DHS petition to
revoke a committee’s conditional release, the court has competency to reach the
merits of a subsequent timely filed DHS petition alleging the same facts for
revocation as the earlier filed petition, so long as those facts remain relevant. For
these reasons, we affirm the circuit court’s order revoking Schaefer’s conditional
release.

BACKGROUND

¶5 In 2016, Schaefer was ordered committed for 45 years after he was
found not guilty by reason of mental disease or defect (NGI) of attempted
first-degree intentional homicide and first-degree recklessly endangering safety,
both with the use of a dangerous weapon and as incidents of domestic abuse, after

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No. 2023AP1747-CR

he shot two of his relatives without provocation or warning.2 State v. Schaefer,
No. 2017AP1759-CRNM, unpublished op. and order at 3-4 (WI App Jan. 3,
2019); see also WIS. STAT. RULE 809.23(3)(a). The circuit court ordered that
Schaefer be placed in institutional care and involuntarily committed. Schaefer,
No. 2017AP1759-CRNM at 3-4.

¶6 Schaefer was granted conditional release in August 2021 upon the
circuit court finding that conditional release would not pose a significant risk of
harm to Schaefer or others. The court granted Schaefer’s release with the
condition that Schaefer reside at the Bridge Street Mission in Wausau and that any
change in residence be approved by a “case manager and agent.” Moreover,
Schaefer was required to “participate and engage in various groups, activities, and
meetings offered through Bridge Street Mission” for a minimum of 20 hours per
week.

¶7 On September 1, 2022, Schaefer was detained in the Marathon
County Jail for failing to comply with the conditions of his release. That same
day, a DHS representative petitioned the circuit court to revoke Schaefer’s
conditional release, stating that Schaefer did not have a permanent residence “due
to a lack of engagement in programming required by the placement.” The DHS
representative further alleged that Schaefer’s lack of engagement in programming
“is a stability factor that is a part of his conditional release plan. His lack of a
residence will significantly impact his mental health and the safety of himself and
the community.” Included at the end of the one-page petition was a notation that a

2
Schaefer pled no contest to both counts, and the parties waived a trial on his mental
responsibility. State v. Schaefer, No. 2017AP1759-CRNM, unpublished op. and order at 3 (WI
App Jan. 3, 2019); see generally WIS. STAT. § 971.165.

4
No. 2023AP1747-CR

copy of the petition was to be released to, among other entities, the SPD and the
circuit court.

¶8 The circuit court received both the petition and a request for a
hearing on September 2, 2022, and a hearing was scheduled for September 26,
2022.3 It is undisputed that the petition was not released to the SPD within 72
hours of Schaefer’s September 1, 2022 detention and that the SPD did not learn of
Schaefer’s initial detention until September 21, 2022, when the circuit court’s
judicial assistant sent a notice via email regarding the hearing.

¶9 At the September 26, 2022 hearing, Schaefer’s defense counsel, who
was an attorney for the SPD, made an oral motion to dismiss the DHS’s petition
and requested that Schaefer be released from custody. The circuit court instructed
Schaefer to file authority on his motion, and it declined to release him from
custody at that time.

¶10 On September 27, 2022, Schaefer, through his defense counsel, filed
a written motion to dismiss the petition. Citing Olson, Schaefer argued that the
circuit court lost competency to hear the petition based on the DHS’s failure to
comply with the 72-hour requirement. Schaefer also argued that the DHS had
violated his due process rights and his right to counsel.4

3
WISCONSIN STAT. § 971.17(3)(e) states that the “court shall hear” the DHS’s petition to
revoke “within 30 days, unless the hearing or time deadline is waived by the detained person.”

The DHS representative incorrectly addressed the request for a hearing to the Price
County Circuit Court. However, the Marathon County Clerk of Court electronically stamped the
request as having been received on September 2, 2022. It is undisputed that the request for a
hearing was not forwarded to the regional office of the SPD.
4
Schaefer does not argue on appeal that his due process rights or his right to counsel
were violated.

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No. 2023AP1747-CR

¶11 On September 29, 2022, the circuit court held a hearing to address
Schaefer’s motion to dismiss the DHS’s petition. At the hearing, the DHS’s
representative who filed the petition testified that he had released the petition to
“our CCAP uploads mailbox with our office associates to be distributed to the
Courts and to the [SPD]. To my knowledge it was not sent directly to the [SPD].
It was only sent to the CCAP upload mailbox.” Following this testimony, the
court granted Schaefer’s motion and dismissed the petition. The court concluded
that the DHS had failed to comply with the 72-hour requirement and that the court
was required to dismiss the petition. The court asked the DHS whether it was
“going to refile that,” to which the DHS’s representative stated, “I believe that
would likely be our position but I am not sure.” The court then stated, “All right.
That’s the next step and that’s one step beyond me.”5

¶12 Forty-four minutes after the circuit court dismissed the DHS’s
September 1, 2022 petition, the DHS filed a nearly identical petition to revoke
Schaefer’s conditional release.6 The SPD received notice of the petition within an
5
It does not appear from the hearing transcript that Schaefer was released from custody
following the circuit court’s dismissal of the DHS’s first petition, and Schaefer would later argue
in his second motion to dismiss that he “was not released on September 29, 2022[,] when the first
petition to revoke was dismissed.”

In its supplemental brief on appeal, the DHS asserted that there “is no evidence that
Schaefer was confined or detained” in the 44-minute period between the circuit court dismissing
the DHS’s first petition to revoke and the DHS’s filing of the second petition to revoke. At oral
argument, however, the DHS stated that it “presum[ed]” that Schaefer was in custody during the
44-minute period. Based on the DHS essentially conceding that Schaefer remained in custody
during the 44-minute period, we will not consider the DHS’s argument from its supplemental
brief that there is a factual issue as to whether Schaefer was out of custody during the that period.
6
More specifically, DHS’s second petition included the same probable cause statement
as its first petition. However, the second petition was signed on September 29, 2022, and listed
September 29, 2022, as the date that Schaefer was “placed into custody.” (Formatting altered.)
At oral argument, the DHS conceded that the second petition did not contain any new allegations
that occurred between September 1, 2022, and September 29, 2022.

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No. 2023AP1747-CR

hour after it was filed. Schaefer filed a motion to dismiss the DHS’s second
petition, arguing that the circuit court had lost competency, that Schaefer should
have been released following the court granting his first motion to dismiss for loss
of competency, and that the DHS “cannot simply fix their previous error by filing
a new petition.”

¶13 A hearing was held on October 21, 2022, to address the DHS’s
second petition and Schaefer’s motion to dismiss. Following arguments by the
parties, the circuit court concluded that nothing within WIS. STAT. § 971.17(3)(e)
prevented the DHS from refiling a petition to revoke an NGI committee’s
conditional release following a dismissal for loss of competency. The court
further found that that the DHS had not exhibited any malicious intent and that the
second petition was before the court “as soon as possible.” Moreover, the court
concluded that the DHS’s grounds for revoking Schaefer’s conditional release
were “ongoing grounds” concerning “no ongoing housing options, no form of
income, no residence …, and other issues of that nature.” Thus, the court denied
Schaefer’s motion to dismiss.

¶14 The circuit court then heard evidence on the DHS’s second petition,7
and it revoked Schaefer’s conditional release in an oral ruling after finding that he
presented a risk of danger to himself and others due to his failure to comply with

7
Schaefer’s case manager testified at the hearing that Schaefer had stopped complying
with his conditions of release in July 2022 by declining “to sign ongoing tier housing program
contracts to Bridge Street Mission,” meaning that Schaefer lacked any housing and income.

7
No. 2023AP1747-CR

his conditions of release. The court issued written orders granting the DHS’s
second petition and for Schaefer’s subsequent placement into institutional care.8

¶15 Schaefer now appeals, challenging the circuit court’s denial of his
motion to dismiss the DHS’s second petition to revoke his conditional release.9

DISCUSSION

¶16 The DHS may petition the circuit court to revoke a subject’s
conditional release under WIS. STAT. § 971.17(3)(e). The subject may be taken
into “custody” if the DHS “alleges … that the safety of the person or others
requires that conditional release be revoked.”10 Id. If the subject is placed in
custody, the DHS

8
We note that the circuit court stated in its oral ruling that it granted the DHS’s petition
because the DHS had proved by clear and convincing evidence that Schaefer’s violation of his
conditions—namely, his failure to remain at Bridge Street Mission—and his lack of income
created a substantial risk of dangerousness to himself or others. However, in its written order
granting the DHS’s petition to revoke, the court stated that the DHS had proved by clear and
convincing evidence that Schaefer had violated a condition of release. We further note that in
reaching its decision at the hearing, the court relied on WIS. STAT. § 971.17(5) (the standard for
petitions to terminate NGI commitments), not the standard for petitions to revoke an order for
conditional release set forth in § 971.17(3)(e). Regardless, Schaefer does not raise a challenge to
either of these potential issues, and we will not address them further.
9
Following initial briefing by the parties, we asked the parties to file supplemental
briefs, and we subsequently held oral argument in Wausau, Wisconsin, on September 16, 2025.
10
After we held oral argument in this case, this court issued its decision in an unrelated
case, State v. Wilhite, 2025 WI App 64, ¶3, ___ Wis. 2d ___, ___ N.W.2d ___, holding that
“WIS. STAT. § 971.17(3)(e) is unconstitutional to the extent that it permits a circuit court to
revoke an NGI acquittee’s conditional release and commit the NGI acquittee to institutional care
without a finding of dangerousness.” We concluded that the unconstitutional provisions in
§ 971.17(3)(e) were severable, and, therefore, we left in place and deemed operative the
remainder of the statute. Wilhite, ___ Wis. 2d ___, ¶¶3, 61 & n.9. The provisions of
§ 971.17(3)(e) deemed unconstitutional in Wilhite are not at issue in this appeal, but we
nonetheless reference and quote the statute as it stands following the Wilhite decision.
See Wilhite, ___ Wis. 2d ___, ¶61 & n.9.

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No. 2023AP1747-CR

shall submit a statement showing probable cause of the
detention and a petition to revoke the order for conditional
release to the committing court and the regional office of
the state public defender responsible for handling cases in
the county where the committing court is located within 72
hours after the detention, excluding Saturdays, Sundays,
and legal holidays.

Id.11

¶17 The circuit court “shall hear the petition within 30 days, unless the
hearing or time deadline is waived by the detained person.” Id. “Pending the
revocation hearing, the [DHS] may detain the person in a jail or in a hospital,
center or facility specified by [WIS. STAT. §] 51.15(2)(d).” At the revocation
hearing,

[t]he state has the burden of proving by clear and
convincing evidence … that the safety of the person or
others requires that conditional release be revoked. If the
court determines after hearing … that the safety of the
person or others requires that conditional release be
revoked, it may revoke the order for conditional release and
order that the released person be placed in an appropriate
institution under [WIS. STAT. §] 51.37(3) until the
expiration of the commitment or until again conditionally
released under this section.

Sec. 971.17(3)(e).

¶18 The parties dispute whether the DHS violated the 72-hour
requirement when it filed its second petition to revoke Schaefer’s conditional
release, thereby depriving the circuit court of competency to consider the DHS’s
second petition.

11
Both parties agree, as does this court, that the phrase “taken into custody” means some
form of “detention” in a jail or other like facility. See WIS. STAT. § 971.17(3)(e). Accordingly,
we use the terms “custody” and “detention” synonymously to refer to placement in a jail or other
like facility.

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No. 2023AP1747-CR

¶19 “Competency to proceed in this context—i.e., when a party fails to
comply with a statutory time limit—refers to a circuit court’s power to adjudicate
the specific controversy before it.” Olson, 389 Wis. 2d 257, ¶11. “A party’s
failure to comply with a statutory time limit deprives a court of competency to
proceed only when the time limit is mandatory.” Id. The 72-hour requirement in
WIS. STAT. § 971.17(3)(e) is mandatory, and, therefore, the DHS’s failure to
comply with the requirement deprives a circuit court of competency to consider
the petition to revoke an individual’s conditional release. Olson, 389 Wis. 2d 257,
¶2.

¶20 “Whether a circuit court has lost competency to proceed is a
question of law,” which we review de novo. Id., ¶10. This appeal also requires us
to interpret WIS. STAT. § 971.17(3)(e), which likewise presents a question of law.
See Service Emps. Int’l Union Healthcare v. WERC, 2025 WI 29, ¶5, 416
Wis. 2d 688, 22 N.W.3d 876.

¶21 We consider our discussion in Olson to be instructive. In Olson, an
NGI committee, Olson, was taken into custody after the DHS alleged that he had
violated conditions of his release by using methamphetamine. See Olson, 389
Wis. 2d 257, ¶¶5-6. The DHS waited eight days after Olson’s detention to submit
a statement of probable cause and a petition to revoke Olson’s conditional release
to both the circuit court and the SPD. Id., ¶¶6-7. Olson filed a motion to dismiss
the DHS’s petition for loss of competency because the DHS had failed to comply
with the 72-hour requirement. Id., ¶7. The circuit court held that the 72-hour
requirement is directory, as opposed to mandatory, and it denied Olson’s motion to
dismiss. Id., ¶8.

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No. 2023AP1747-CR

¶22 On appeal, we held that the 72-hour requirement is mandatory, not
directory, and therefore the DHS’s failure to comply with the 72-hour requirement
deprived the circuit court of competency to proceed with the DHS’s petition. Id.,
¶11. In concluding that the 72-hour requirement is mandatory, we held that WIS.
STAT. § 971.17(3)(e) has two purposes: to “protect the public while—at the same
time—preventing delay by the court or the State.” Olson, 389 Wis. 2d 257, ¶20.
We noted that unlike the 30-day hearing requirement in the statute, the 72-hour
requirement affects the “initiation of the proceedings”—as opposed to the “timely
resolution of the proceedings”—and thus ensures timely judicial oversight and
access to counsel. See id., ¶¶20-21 (citation omitted).

¶23 We stated that when the DHS “delays initiating revocation
proceedings, it need not make any argument or expose itself to an adverse decision
from a passive decision-maker because it is depriving both the court and opposing
counsel of even knowing of the delay.” Id., ¶22. Further, we stated that the injury
occasioned by the DHS’s failure to comply with the 72-hour requirement
“counsels strongly in favor of construing the time limit as mandatory” because it is
“absurd” to place the burden on a pro se NGI committee to obtain counsel or
judicial review via the “‘extraordinary writ of habeas corpus,’ which itself is
‘available to a petitioner only under limited circumstances.’” Id., ¶32. Thus, we
characterized the injury sustained by the detained person due to the DHS’s failure
to comply with the 72-hour requirement as “grave.” Id., ¶34. We reversed the
circuit court’s order denying Olson’s motion to dismiss, and we remanded with
directions for the court to dismiss the DHS’s petition. Id.

¶24 Schaefer argues that pursuant to WIS. STAT. § 971.17(3)(e) and
Olson, the circuit court lost competency to consider the DHS’s second petition to
revoke his conditional release. He contends that the DHS failed to comply with

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No. 2023AP1747-CR

the 72-hour requirement because he remained “confined” since September 1,
2022, and the DHS’s second petition did not restore the court’s competency. He
asserts that this conclusion is dictated by the text of the statute, which requires the
DHS to notify the SPD of a petition to revoke “a released person” “within 72
hours after the detention,” not within 72 hours after the petition is filed.
(Emphasis added.) Schaefer argues that the DHS “cannot ‘re-detain’ a person who
has not been released. If the person remains in physical custody, they have
remained detained throughout.”

¶25 A holding to the contrary, argues Schaefer, would permit the DHS to
“cure” any time limit violation “simply by starting over” and filing subsequent
petitions, rendering the 72-hour requirement a “nullity” and “meaningless,”
contrary to Olson. As he did in the circuit court, Schaefer compares the DHS’s
filing of a second, nearly identical petition in this case to cases where appellate
courts of this state have barred successive petitions involving the emergency
detention of individuals under WIS. STAT. chs. 51 and 55.

¶26 Schaefer proposes that when the DHS fails to comply with the
72-hour requirement, the circuit court would have competency to consider a
second petition only if: (1) the individual is “physically released” from detention;
(2) the DHS re-detains the individual; and (3) the DHS files another petition
alleging “new grounds” for revocation of the individual’s conditional release and
complies with the 72-hour requirement. In addition, Schaefer contends that the
amount of time necessary between the individual’s release and his or her second
detention is “fact-specific,” but he asserts that this particular issue need not be
addressed in this case because Schaefer was never released following the circuit
court’s dismissal of the DHS’s first petition.

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No. 2023AP1747-CR

¶27 For its part, the DHS argues that the issue surrounding the amount of
time necessary between the individual’s release and his or her second detention
illustrates the difficulty in applying Schaefer’s proposed interpretation of WIS.
STAT. § 971.17(3)(e). The DHS asserts that “[n]either Olson nor § 971.17(3)(e)
identifies release as a remedy for procedural violations” of the 72-hour
requirement. (Emphasis added.) The DHS contends that the statute permits it to
detain an NGI committee even if he or she has not been released from custody
because a “released person” is not necessarily out of “detention.” The DHS
further argues that a “released person” is an NGI committee on conditional release
pursuant to a previous court order and that a circuit court’s dismissal of a petition
to revoke that conditional release essentially “ends those proceedings and
functions as a break in the released person’s detention tied to those proceedings.”

¶28 In other words, the DHS contends that “at the moment that the court
dismissed” the first petition, Schaefer was “effectively back on conditional
release” and a new “72-hour clock” began because he remained in custody. The
DHS further asserts that neither WIS. STAT. § 971.17(3)(e) nor Olson prevented it
from re-detaining Schaefer following the court’s dismissal of the first petition and
filing a second petition, “even if based on the same unlitigated facts and probable
cause as the first petition.”

¶29 Additionally, according to the DHS, cases in the WIS. STAT. chs. 51
and 55 commitment contexts do not compel a particular holding in this case
because, among other things, those chapters involve “strict time limits” and
implicate “significant liberty interest[s].”

¶30 We agree with the DHS that the Olson court did not hold or
otherwise indicate that an NGI committee must be released from custody when a

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No. 2023AP1747-CR

DHS petition to revoke is dismissed because the DHS failed to comply with the
72-hour requirement. Nor did Olson hold or otherwise indicate that the DHS
would need to allege new facts, separate from those alleged in the first petition, in
order for the circuit court to have competency to hear a second petition.

¶31 Indeed, the text of WIS. STAT. § 971.17(3)(e) does not support a
conclusion that those remedies are required when a circuit court dismisses a DHS
petition for failure to comply with the 72-hour requirement. To reiterate,
§ 971.17(3)(e) states that if the DHS alleges that the safety of the “released
person” or others requires that conditional release be revoked, “he or she may be
taken into custody” and the DHS “shall submit a statement showing probable
cause of the detention and a petition to revoke the order for conditional release to
the committing court and” the SPD “within 72 hours after the detention.”

¶32 Based on the text of the statute, we agree with the DHS that the term
“released person” refers to an NGI committee who is on conditional release, not an
NGI committee who is necessarily released from custody. The legislature’s use of
the term “released person” in WIS. STAT. § 971.17(3)(e) has a special definitional
meaning in the context of conditional release. See State ex rel. Kalal v. Circuit
Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110
(“Statutory language is given its common, ordinary, and accepted meaning, except
that technical or specially-defined words or phrases are given their technical or
special definitional meaning.”); WIS. STAT. § 990.01(1). This conclusion is
evident from the text of the statute, which refers multiple times to “conditional
release,” “[a] conditionally released person,” and “a person … conditionally
released.” See § 971.17(3)(e). Therefore, a “released person” need not be
released from custody for the DHS to petition to revoke his or her conditional

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No. 2023AP1747-CR

release, and we reject Schaefer’s argument that § 971.17(3)(e) prevents the DHS
from re-detaining a person who has not been released from custody.

¶33 Given this conclusion, we further agree with the DHS that a circuit
court’s dismissal of the DHS’s first petition to revoke an NGI committee’s
conditional release based on the DHS’s failure to comply with the 72-hour
requirement ends the first proceeding and functions as a break in the committee’s
detention, thus restarting the 72-hour clock under WIS. STAT. § 971.17(3)(e). At
that point, the NGI committee is no longer under a detainer related to the first
petition, and a circuit court’s dismissal of the first petition returns the NGI
committee back to conditional release, even if the committee is not released from
custody. In other words, under the plain meaning of the statute, the NGI
committee who has been conditionally released is a “released person” whether he
or she is in custody or not.

¶34 Furthermore, a circuit court’s dismissal for loss of competency due
to the DHS’s failure to comply with the 72-hour requirement is not a decision on
the merits of the DHS’s first petition to revoke. Rather, the court’s dismissal is a
recognition that the DHS engaged in a procedural violation, not a substantive
violation that would result in dismissal with prejudice. Thus, the DHS is not
prohibited from “showing probable cause of the detention” in the second petition
using the same allegations and facts as the first petition. See WIS. STAT.
§ 971.17(3)(e). If, however, the DHS does not file a second petition and the NGI
committee is not released from custody, or if subsequent petitions continue to
violate the 72-hour requirement without the committee’s release, the committee
has several avenues of recourse, which we outline below.

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No. 2023AP1747-CR

¶35 Here, immediately after the circuit court dismissed the first petition,
the court asked the DHS if it would be filing a second petition, to which the DHS
stated that it would be “likely,” and it did so 44 minutes later.12 The DHS then
complied with the 72-hour requirement by notifying the SPD of Schaefer’s
detention and its petition within 72 hours of the dismissal of the first petition (i.e.,
when Schaefer, a released person, was re-detained and not released from custody),
and the court therefore had competency to consider the merits of the second
petition at the October 21, 2022 hearing. As demonstrated by prior case law, our
conclusion is not only supported by the text of WIS. STAT. § 971.17(3)(e), but it is
also consistent with the purpose of the statute, and to hold otherwise would be to
conclude that the DHS’s failure to timely notify the SPD of the grounds for an
NGI committee’s detention results in a prejudicial dismissal of the revocation
petition.

¶36 In State v. R.R.E., 162 Wis. 2d 698, 470 N.W.2d 283 (1991), an
NGI committee petitioned the circuit court for reexamination and conditional
release, but, due to “various events related to court administration, the petition was
lost for three months.” Id. at 703, 711. Under the statutes in effect at the time, a
hearing on the petition was required to be held within 30 days of its filing, but a
hearing was not held for approximately two months. See id. At the hearing, the
NGI committee moved to be released from custody for the circuit court’s “failure
to give him a hearing in conformity with the” 30-day time limit. Id. The court
dismissed the NGI committee’s petition. Id. at 704.

12
In raising this question, it appears that the circuit court implicitly recognized that
Schaefer’s initial detention for purposes of the statute had ended and that, based on the DHS’s
answer that it would likely file a second petition, the DHS was re-detaining Schaefer.

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No. 2023AP1747-CR

¶37 On appeal, the parties disputed whether the 30-day requirement was
mandatory, and they also “disput[ed] the appropriate remedy” for a violation of
the requirement. Id. at 707. The NGI committee argued that he was entitled to
release from custody because the circuit court failed to abide by the statutory time
limits for holding a hearing on his petition for reexamination,” which the
committee argued were mandatory, not directory. Id. at 704. He also argued that,
under precedent, “the only remedy available to the committed individual is
dismissal of his or her petition” and that this remedy “offers no recourse to the
petitioner whatsoever as he or she is compelled to once again file a new petition
that again may not be acted upon within the” 30-day time limit. Id. at 705.

¶38 Our state supreme court concluded that the NGI committee was not
entitled to release from custody despite the violation of the 30-day requirement for
holding a hearing on his petition for reexamination. Id. at 704. The court stated
that the “legislature did not intend the release” of NGI committees “without a
court determination that the individual may be safely released.” Id. Instead, the
legislature intended to protect the public from the release of dangerous individuals
who have already been found to have committed a crime:

Because the defendant has committed a crime, the public is
entitled to the assurance that the defendant’s mental
condition and dangerousness will be thoroughly evaluated
under circumstances that will best accomplish this
objective, while ensuring that the defendant’s right to be
released if he or she has recovered or is no longer
dangerous is protected.

Id. at 708-09 (formatting altered; citation omitted).

¶39 The R.R.E. court stated that to adopt the NGI committee’s position
that “committed individuals must be released from their commitment for the
violation of their statutory right to a reexamination hearing within thirty days”

17
No. 2023AP1747-CR

“would place a heavy burden on society for even nominal procedural delays of the
court.” Id. The court further noted that the statute provided that if a hearing was
not held within 30 days of the filing of the petition, but was held within 120 days,
“the court shall within 24 hours of the filing order an examination to be completed
within 7 days by the appropriate county department.” Id. at 710 n.4. According to
the court, if a violation of the 30-day requirement “were regarded as mandatory
and requiring release, then violation of these time limits would also require
release.” Id. The court stated that “[r]elease for a violation of” the 7-day
“provision, and especially for a violation of” the 24-hour “provision, would be an
excessive remedy in proportion to the degree that strict observance of these time
limits is necessary to ensure a prompt hearing.” Id. The R.R.E. court further
noted that the legislature did not provide a remedy for a violation of the 30-day
requirement. Id. at 710. The court stated that “it seems likely [the legislature]
would have expressly stated its intention in order to alert the circuit courts of the
extreme consequences for failing to comply with the time limitations.” Id.

¶40 The supreme court agreed with the NGI committee, however, that
“to conclude that the only remedy available to him in this case is dismissal of his
petition would” “only serve[] to punish the already aggrieved petitioner” and
produce “an absurd and unreasonable result that was not intended by the
legislature.” Id. at 714. Therefore, the court held that “[i]f the circuit court has
violated the statute’s time limitation, then the court’s duty when it becomes aware
of the error is to hold the reexamination hearing as quickly as possible. This duty
is, of course, enforceable by mandamus.” Id. at 715.

¶41 Similarly, in State v. Schertz, 2002 WI App 289, ¶1, 258 Wis. 2d
351, 655 N.W.2d 175, this court held that the 30-day requirement for a revocation
hearing under WIS. STAT. § 971.17(3)(e) is directory, not mandatory, and

18
No. 2023AP1747-CR

concluded that a failure to hold a hearing within 30 days does not deprive a circuit
court of competency to consider the DHS’s petition to revoke an individual’s
conditional release. We applied the analysis in R.R.E. to reach this conclusion.
Schertz, 258 Wis. 2d 351, ¶8. Notably, we held that § 971.17(3)(e) has the same
policy objectives as outlined by the R.R.E. court in the context of petitions for
conditional release: to protect the public from the release of an NGI committee
without a court determination that a committee may be safely released; and to
permit an NGI committee the ability to gain release once he or she is no longer
dangerous. Schertz, 258 Wis. 2d 351, ¶9. We also expressed our concern that if
the 30-day deadline were mandatory, it would allow an NGI committee to be
released regardless of the potential danger a committee posed to themselves or the
public.13 Id., ¶11.

¶42 Decisions in other commitment contexts that are more akin to NGI
commitments than WIS. STAT. chs. 51 and 55 commitments further support our
conclusions that the DHS’s failure to comply with the 72-hour requirement does
not require an NGI committee to be released from custody, and that failure does
not bar a subsequent petition from using the same facts that were alleged in a
petition that was dismissed for a procedural defect.

13
The Olson court distinguished State v. R.R.E., 162 Wis. 2d 698, 470 N.W.2d 283
(1991), and State v. Schertz, 2002 WI App 289, 258 Wis. 2d 351, 655 N.W.2d 175, by stating
that the violations in those cases were “nominal procedural delays.” State v. Olson, 2019 WI
App 61, ¶21, 389 Wis. 2d 257, 936 N.W.2d 178 (citation omitted). Olson is distinguishable in
this respect because it concerned whether the 72-hour requirement is mandatory or directory, not
whether a violation of the 72-hour requirement requires the release of an NGI committee from
custody before a subsequent petition can be filed, which is essentially the issue now before this
court.

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No. 2023AP1747-CR

¶43 In particular, our state supreme court has held that the violation of a
mandatory time limit in WIS. STAT. ch. 980 does not immediately equate to the
remedy of release. In State ex rel. Marberry v. Macht, 2003 WI 79, 262 Wis. 2d
720, 665 N.W.2d 155, the court14 concluded that a ch. 980 committee was not
entitled to release from custody as a result of the department’s failure to conduct
an initial evaluation within the six-month timeframe required by WIS. STAT.
§ 980.07(1), despite that time requirement being mandatory.15 Marberry, 262
Wis. 2d 720, ¶¶1-2. The lead opinion stated,

“Release of a ch. 980 patient whose dangerousness or
mental disorder has not abated serves neither to protect the
public nor provide care and treatment for the patient.”
Accordingly, “release is not only inappropriate, it is not
justifiable under the dual purposes of the statute: protection
of the public from sexually violent persons likely to
reoffend and care and treatment of the patient.”

Id., ¶30 (citation omitted).

¶44 The lead opinion further concluded that “[i]f the purpose is to
provide a sanction that will force state officials to follow the law, contempt is the
better sanction than release [of the committed person]” because release is an
“excessive sanction,” and the “costs are way too high.” Id. (alteration in original;

14
While one justice did not participate in Marberry and the remaining justices were
divided on certain issues, the justices were nevertheless unanimous in the conclusion that release
was not an appropriate remedy for a violation of the relevant time limit in that case. See State ex
rel. Marberry v. Macht, 2003 WI 79, ¶4, 262 Wis. 2d 720, 665 N.W.2d 155; Marberry, 262
Wis. 2d 720, ¶36 (A.W. Bradley, J., concurring).
15
WISCONSIN STAT. § 980.07(1) (2001-02) required the department to reexamine a WIS.
STAT. ch. 980 committee’s mental condition within six months of the initial commitment.
Marberry, 262 Wis. 2d 720, ¶¶1, 3.

Procedurally, the WIS. STAT. ch. 980 committee in Marberry had sought his release by
means of a habeas corpus petition. Marberry, 262 Wis. 2d 720, ¶4.

20
No. 2023AP1747-CR

citation omitted). The lead opinion distinguished WIS. STAT. ch. 980 committees
from individuals subject to WIS. STAT. chs. 51 and 55 commitments, comparing its
decision to R.R.E. and NGI committees. Marberry, 262 Wis. 2d 720, ¶¶31-32 &
n.10.

¶45 In addition, the lead opinion stated that, as in the NGI context,
“release” for WIS. STAT. ch. 980 committees “is not the only adequate remedy for
noncompliance with the statutory time limits for reexamination, because the
committed person retains the ability to compel a reexamination under the statutory
procedure for supervised release, or, if the statutory remedy is unavailable, by a
writ of mandamus” “backed up by contempt, with a fine or jail as a sanction.”
Marberry, 262 Wis. 2d 720, ¶¶27, 33.

¶46 In State v. Beyer, 2006 WI 2, ¶7, 287 Wis. 2d 1, 707 N.W.2d 509,
the supreme court similarly held that the appropriate remedy for a WIS. STAT.
ch. 980 committee “when a circuit court fails to take prompt action to appoint
counsel or an independent examiner and hold a probable cause hearing under WIS.
STAT. § 980.09(2)” is not the committee’s release from custody. 16 Instead, the
appropriate remedy is for the committee to “move for a writ of mandamus or a
supervisory writ to compel the circuit court to take immediate action.” Beyer, 287
Wis. 2d 1, ¶7.

If counsel or an independent examiner delays the
proceedings, a ch. 980 committee could move the circuit

16
The precise issue before the court was whether the WIS. STAT. ch. 980 committee’s
due process rights were violated by a delay of over 22 months between the first annual periodic
examination report and the circuit court’s probable cause hearing to determine whether facts
existed that warranted a hearing on whether the committee was still a sexually violent person.
State v. Beyer, 2006 WI 2, ¶18, 287 Wis. 2d 1, 707 N.W.2d 509. The Beyer court concluded that
the committee’s due process rights were violated by the delay. Id.

21
No. 2023AP1747-CR

court for just and equitable relief such as an order to show
cause why counsel or the independent examiner should not
be discharged or why the independent examiner should not
be ordered to conduct the examination promptly or provide
the examination report to the circuit court immediately.

Beyer, 287 Wis. 2d 1, ¶7. The Beyer court reached these conclusions while
relying on similar reasoning as that provided in the court’s lead opinion in
Marberry. See Beyer, 287 Wis. 2d 1, ¶¶50-54.

¶47 To be sure, cases in the WIS. STAT. chs. 51 and 55 commitment
context have held that violations of mandatory time limits require the dismissal of
a commitment petition and the release of the subject committee. See, e.g., State ex
rel. Lockman v. Gerhardstein, 107 Wis. 2d 325, 328-30, 320 N.W.2d 27 (Ct.
App. 1982) (concluding that the failure to conduct a final commitment hearing
within 14 days of detention pursuant to WIS. STAT. § 51.20(7)(c) requires release
from temporary detention and dismissal of the commitment petition); N.N. v.
County of Dane, 140 Wis. 2d 64, 69-70, 409 N.W.2d 388 (Ct. App. 1987)
(reaching the same result under WIS. STAT. ch. 55); Dane County v. Stevenson
L.J., 2009 WI App 84, ¶¶13-15, 320 Wis. 2d 194, 768 N.W.2d 223; Kindcare,
Inc. v. Judith G., 2002 WI App 36, ¶¶18-19, 250 Wis. 2d 817, 640 N.W.2d 839.

¶48 As other courts have explained, however, there are significant
differences between WIS. STAT. chs. 51 and 55 commitments and NGI
commitments. Individuals subject to chs. 51 or 55 commitments are not within the
“custody and control” of any state agency or department unless the subject is
before a circuit court on a petition for recommitment or an extension of a
guardianship. See WIS. STAT. § 971.17(3)(e). The R.R.E. court recognized the
distinction between chs. 51 and 55 commitments and NGI commitments, stating:

[W]hen a defendant is committed pursuant to [§ 971.17(1)],
he or she has already been found beyond a reasonable

22
No. 2023AP1747-CR

doubt to have committed a criminal act, which is
unquestionably conduct outside the range of acceptable
behavior. Thus, commitment under those circumstances
does not involve the concern associated with civil
commitment that the person is being committed for conduct
within the range of socially acceptable behavior. In
addition, the fact that a person who has been found not
guilty by reason of mental disease has committed a
criminal act demonstrates a degree of dangerousness to
society that may be lacking in the actions of one who is
civilly committed.

R.R.E., 162 Wis. 2d at 713-14 (alteration in original; citation omitted); Marberry,
262 Wis. 2d 720, ¶31 n.10 (“Persons committed under [WIS. STAT. ch.] 980 … are
considered more dangerous as a class than those committed under Chapter 51.”).

¶49 This court has previously likened the compelling interest of the State
in the revocation of a parole or probation offender to that of a “conditionally
released insanity acquittee,” stating that “the conditional liberty interest of a
probationer or parolee” is “identical to those of a conditionally released insanity
acquittee.” State v. Mahone, 127 Wis. 2d 364, 369-70, 379 N.W.2d 878 (Ct. App.
1985); State v. Jefferson, 163 Wis. 2d 332, 337-38, 471 N.W.2d 274 (Ct. App.
1991) (“To meet minimum due process at mental recommitment proceedings
pursuant to [WIS. STAT. § 971.17(3)], a person is entitled to the same procedural
rules or steps that are required or fashioned in probation or parole revocation
proceedings.”). Probationers and parolees in criminal cases “have a more limited
due process right than those who have not yet been convicted of a crime.” State
ex rel. Griffin v. Smith, 2004 WI 36, ¶22, 270 Wis. 2d 235, 677 N.W.2d 259
(citing Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973)).

¶50 The Mahone court stated that “[a]lthough obvious distinctions exist
between a conditionally released insanity acquittee and a defendant on probation
or parole, these do not go to the competing governmental and individual interests

23
No. 2023AP1747-CR

at stake when considering the extent of due process protections required.”
Mahone, 127 Wis. 2d at 369. Instead, in both the NGI context and the probation
and parole context, the State has a compelling interest in protecting the public
from “one who has already committed a crime when such a person has
demonstrated that he [or she] cannot be safely retained in the community.” Id. at
369-70. “Just as the release of a parolee before the end of his [or her] prison
sentence is made with recognition of the risk that the offender might not be able to
live in society without committing additional anti-social acts, so also with a
conditionally released insanity acquittee.” Id. at 370 (citing Morrissey v. Brewer,
408 U.S. 471, 483 (1972)). The Mahone court stated that “[s]uch a person has
been found to have committed all the requisite elements of a criminal offense” and
that a conditionally released insanity acquittee’s mental instability raises a
legitimate concern for societal safety and signals a risk of the commission of
additional anti-social acts. Id.

¶51 Indeed, one key legislative purpose of WIS. STAT. § 971.17 is to
protect the public. See Olson, 389 Wis. 2d 257, ¶20; Schertz, 258 Wis. 2d 351,
¶9; R.R.E., 162 Wis. 2d at 708-09. Conversely, the legislature has expressly
provided in WIS. STAT. chs. 51 and 55 that the purpose of those chapters is to
provide treatment to individuals in need while also protecting the personal liberty
of those individuals. See WIS. STAT. §§ 51.001(2), 55.001. Section 971.17 lacks
any express policy statement like the policy statements provided in chs. 51 and 55.

¶52 This distinction is logical. To revoke an NGI committee’s
conditional release, the DHS must allege that the individual is dangerous to
himself or herself and/or others. See WIS. STAT. § 971.17(3)(e); see also State v.
Wilhite, 2025 WI App 64, ¶3, ___ Wis. 2d ___, ___ N.W.2d ___. Moreover, NGI
committees have been found guilty, beyond a reasonable doubt, of committing the

24
No. 2023AP1747-CR

elements of the criminal offense that subjects them to the “custody and control” of
the DHS. See WIS. STAT. § 971.165; § 971.17(3)(e); Mahone, 127 Wis. 2d at
370; R.R.E., 162 Wis. 2d at 708-09. Thus, “the State has an overwhelming
interest in being able to return the individual to” custody without the burden of
needing to release that individual due to a procedural error. See Morrissey, 408
U.S. at 483 (discussing a defendant’s due process rights in parole revocation
proceedings and stating that “[g]iven the previous conviction and the proper
imposition of conditions, the State has an overwhelming interest in being able to
return the individual to imprisonment without the burden of a new adversary
criminal trial if in fact he [or she] has failed to abide by the conditions of” parole);
Mahone, 127 Wis. 2d at 370.

¶53 Similarly, an NGI committee’s right to counsel is not founded in
constitutional principles, unlike the right to counsel in WIS. STAT. chs. 51 and 55
commitments. While WIS. STAT. § 971.71(3)(e) clearly provides a statutory right
to counsel for proceedings involving conditional release revocation, the
constitutional right to counsel does not apply to revocation proceedings.
See Smith, 270 Wis. 2d 235, ¶22 (“The Supreme Court has not extended a per se
Sixth Amendment right to counsel at revocation hearings or certiorari review of
revocation decisions in part because probationers and parolees have a more limited
due process right than those who have not yet been convicted of a crime.”).

¶54 Our conclusion does not provide the DHS unfettered authority to
detain an NGI committee indefinitely without compliance with the 72-hour

25
No. 2023AP1747-CR

requirement.17 First, an NGI committee can seek recourse through WIS. STAT.
§ 805.03 if the DHS is abusing the revocation process by, for example, filing a
new petition to revoke every 72 hours without notifying the circuit court or the
SPD. See State ex rel. Sandra D. v. Getto, 175 Wis. 2d 490, 500-01, 498 N.W.2d
892 (Ct. App. 1993) (reversing a WIS. STAT. ch. 51 commitment based, in part, on
the circuit court’s finding that subjecting the committee to a third unlawful
detention was “an abuse of process”); State ex rel. B.S.L. v. Lee, 115 Wis. 2d 615,
622, 340 N.W.2d 568 (Ct. App. 1983) (holding, in the ch. 51 commitment context,
that “[a]ny initial proceeding may be dismissed with prejudice if the trial court
believes the process is being abused”). If a circuit court finds that the DHS is
abusing the revocation process, it may dismiss the DHS’s petition to revoke, and
“[a]ny dismissal under [§ 805.03] operates as an adjudication on the merits unless
the court in its order for dismissal otherwise specifies for good cause shown
recited in the order.” See § 805.03. Here, the circuit court found that the DHS had
not exhibited any malicious intent and that the second petition was before the
court “as soon as possible.”

¶55 Second, an NGI committee may file a writ of mandamus, “backed up
by contempt,” to compel the DHS to comply with WIS. STAT. § 971.17(3)(e).
See Marberry, 262 Wis. 2d 720, ¶27; R.R.E., 162 Wis. 2d at 715; Beyer, 287
Wis. 2d 1, ¶7. “Mandamus may issue to compel a public officer to perform a duty
of his [or her] office presently due to be performed where there is a clear legal
right, a positive and plain duty, substantial damage in the absence of performance,

17
By listing potential remedies, we do not mean to foreclose the possibility of other
remedies available to an NGI committee when the DHS fails to comply with the 72-hour
requirement.

26
No. 2023AP1747-CR

and no other adequate remedy.” Marberry, 262 Wis. 2d 720, ¶27 (quoting Pasko
v. City of Milwaukee, 2002 WI 33, ¶24, 252 Wis. 2d 1, 643 N.W.2d 72).
“Because [§ 971.17(3)(e)] imposes a mandatory duty upon the department,
mandamus to compel performance of that duty is an appropriate and available
remedy.” See id., ¶27.

¶56 Lastly, it must be noted that under the facts of this case, the DHS did
provide the required 72-hour notice to the circuit court when it filed its first
petition, whereas in Olson, neither the court nor the SPD had notice of Olson’s
detention. While Schaefer did not have access to counsel within 72 hours of his
detention, a hearing was scheduled within 30 days of his detention because the
circuit court was provided notice in compliance with WIS. STAT. § 971.71(3)(e),
which then led to the SPD’s notice. Schaefer was therefore provided with
immediate judicial oversight, and the SPD was given notice prior to the scheduled
September 26, 2022 hearing. Thus, the DHS was “expos[ing] itself to an adverse
decision from a passive decision-maker,” which was not the case in Olson.
See Olson, 389 Wis. 2d 257, ¶22.

CONCLUSION

¶57 In short, we conclude that following a circuit court’s dismissal of a
petition to revoke an NGI committee’s conditional release for lack of competency,
WIS. STAT. § 971.17(3)(e) does not require the DHS to release a committee in
order for the circuit court to have competency to consider a second petition to
revoke that individual’s conditional release. The DHS complies with the 72-hour
requirement when it, effectively, “re-detains” an NGI committee following the
court’s dismissal and promptly notifies the SPD and the circuit court of the
committee’s detention thereafter as required by § 971.17(3)(e). Here, the DHS’s

27
No. 2023AP1747-CR

second petition complied with the 72-hour requirement because the DHS notified
the SPD and the circuit court of Schaefer’s detention within 72 hours after the
dismissal of the first petition and Schaefer’s re-detainer. We therefore affirm the
court’s order granting the DHS’s second petition to revoke Schaefer’s conditional
release.

By the Court.—Order affirmed.

Recommended for publication in the official reports.

28