2005AP871 Jay M.H., M.D. v. Winnebago County Department of Health and Human Services

By: dmc-admin//April 3, 2006//

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“We conclude that a remand to the circuit court is required for the court to conduct a hearing to determine if the recantation evidence meets the [State v.] McCallum test. If so, the exclusion of that evidence from the Wis. Stat. § 68.12 proceeding, especially considering the expressed legislative purpose of Wis. Stat. ch. 68, would be fundamentally unfair to Jay M.H. A full determination of the effect of the recantation issue on the underlying agency determination has never been rendered, and fundamental fairness would dictate that Jay M.H. be provided an opportunity to present this evidence as meeting the criteria for consideration in the § 68.12 final determination proceeding.”

Reversed and remanded.

Recommended for publication in the official reports.

Dist II, Winnebago County, Key, J, Snyder, P.J.

Attorneys:

For Appellant: Hyland, John D., Madison

For Respondent: Becker, Donald W., Madison

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