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Court had competency to act despite failure to hold timely jury trial on Chapter 51 recommitment

Winnebago County v. A.A., 2018AP1505-FT, 12/12/18, District 2 (1-judge opinion, ineligible for publication); case activity

A.A.’s commitment was set to expire on March 28th. Two days before his March 22 recommitment hearing he demanded a jury trial. The court gave him one on  April 12th. A.A. argued that the trial court lost competency to act when it failed to hold the recommitment trial before the original commitment expired.

The court of appeal disagreed based on Wis. Stat. §51.20(11) and G.O.T. v. Rock County, 151 Wis. 2d 629, 445 N.W.2d 697 (Ct. App. 1989). Generally, a recommitment hearing must be held before the prior commitment expires. Otherwise the court loses competency to act. State ex rel Lockman v. Gerhardstein, 107 Wis. 2d 325, 328-329, 320 N.W.2d 27 (Ct. App. 1982). But under §51.20(11) and G.O.T., if the subject individual demands a jury trial later than 5 days after he is detained, then the court may hold the jury trial within 14 days of the demand–even if the that occurs after the prior commitment expires. The demand serves to temporarily extend the commitment to allow for a jury trial. G.O.T., 151 at 633. Opinion, ¶7.

G.O.T. was not a prisoner. A.A., on the other hand, is a prisoner, so the court of appeals’ decision necessarily relies upon the last 2 sentences of §51.20(11)–the part of the statute governing jury trials for prisoners in Chapter 51 cases. Those last 2 sentences read:

If an inmate of a state prison, county jail or house of correction demands a jury trial within 5 days after the probable cause hearing, the final hearing shall be held within 28 days of the probable cause hearing. If an inmate . . . demands a jury trial later than 5 days after the probable cause hearing, the final hearing shall be held within 28 days of the date of demand. Wis. Stat. §51.20(11). (Emphasis supplied).

The plain language of the statute throws a wrench into the court of appeals’ reasoning. Original commitments involve probable cause hearings. Recommitment proceedings do not. And that means the very language that the court of appeals relied upon to hold that A.A.’s recommitment trial was timely (past the expiration of the prior commitment but within 28 days of the jury demand) does not apply to A.A.’s case. As no other part of §51.20(11) appears to apply to commitments or recommitments of prisoners, Gerhardstein‘s default rule (failure to hold a recommitment hearing before the expiration of the prior commitment) would seem to govern here.

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