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Ch. 51 jury demand must be made before originally scheduled final hearing, not adjourned final hearing

Waukesha County v. M.J.S., 20221AP105-FT, District 2, 7/28/21 (one-judge decision; ineligible for publication); case activity

Under § 51.20(11)(a), a demand for a jury trial must be made “48 hours in advance of the time set for final hearing,” if notice of final hearing was provided to the subject individual or his or her lawyer. Applying Marathon County v. R.J.O., 2020 WI App 20, 392 Wis. 2d 157, 943 N.W.2d 898, the “time set for final hearing” is the original hearing date, not the date set after an adjournment.

M.J.S. received notice on March 3, 2020, that a final hearing on a petition to extend his commitment would be held March 31. On March 27 M.J.S.’s lawyer asked to adjourn the March 31 hearing because a new lawyer was going to be assigned and would need time to prepare. The court reset the final hearing date for April 7. M.J.S.’s new lawyer filed a jury demand on April 3, which the circuit court held was too late. (¶¶2, 4).

The court of appeals agrees, holding that R.J.O. applies even though that case involved jury demands made after the final hearing was postponed because the person failed to appear for the hearing:

¶9     M.J.S. attempts to distinguish R.J.O. on the basis that the case did not involve an adjournment that took place more than forty-eight hours before the final hearing; thus, M.J.S. is not “asking the trial court to revive a time limitation that” had already been violated. We agree with the circuit court that the meaning of the phrase “time set for final hearing” was addressed in both R.J.O. and Waukesha County v. E.J.W., No. 2020AP370, unpublished slip op. (WI App Nov. 4, 2020), with both courts reaching the conclusion that the “time set” means the date set, not the date held, and “[t]here is no reference to whether and how or why the final hearing date is adjourned.” M.J.S. received notice by letter dated March 3, 2020, that the final hearing was scheduled for March 31, 2020. Per Wis. Stat. § 51.20(11)(a), M.J.S. therefore had forty-eight hours prior to March 31, 2020, to make his jury demand. He failed to file a jury demand forty-eight hours “in advance of the time set for final hearing.” See § 51.20(11)(a). Absent a contrary pronouncement from our supreme court, we are bound by this interpretation. .

And contrary pronouncement there may well be. As the court notes (¶8 n.7), E.J.W. is being reviewed by the supreme court, and the petition for review in that case argued that R.J.O. was wrongly decided. Our post on the PFR grant is here. In the meantime, get those jury demands in pronto, as soon as you have a final hearing date. Six in the box, let’s rock and roll! What’ve you got to lose?

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