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SCOW holds sufficiency appeal of ch. 51 extension moot

Portage County v. J.W.K., 2019 WI 54, 5/21/2019, affirming an unpublished order dismissing appeal as moot; case activity

Practitioners know that it’s rare to get from final judgment to court of appeals decision on the merits in less than a year. Just the ordinary statutory time frames for appointment of counsel, transcripts, motions or notices, transmitting the record, and briefing schedules can easily eat up well over half that time. So, an extension of a ch. 51 commitment–which is statutorily limited to one year in length–will often, if not invariably, be over by the time a decision can be reached. The supreme court now decides that, in some cases at least, this makes appeals of those extensions moot.

A word about the things that aren’t at issue here: the court notes that there can be collateral consequences to a commitment (or an extension) including bans on firearm possession and liability for the cost of care, and it’s not deciding the mootness question where such consequences are present. (¶28 n.11). There was also no argument here that even though the case might be moot, the court should still decide it for one of the established reasons courts sometimes do that:

(1) “issues [] of great public importance;” (2) “the constitutionality of a statute;” (3) issues that arise so often “a definitive decision is essential to guide the trial courts;” (4) “issue[s] . . . likely to arise again and [that] should be resolved by the court to avoid uncertainty;” or (5) an issue “capable and likely of repetition and yet evades review because the appellate process usually cannot be completed and frequently cannot even be undertaken within a time that would result in a practical effect upon the parties.”

(¶12, citing G.S. v. State, 118 Wis. 2d 803, 805, 348 N.W.2d 181 (1984)).

Instead, J.W.K.’s argument was that the extension wasn’t moot because, if it was invalid, the subsequent extension also wasn’t valid–that the lack of sufficient evidence in 2016 “broke the chain” of extensions such that the court lacked competency to extend again in 2017. The majority doesn’t agree (though the three concurring justices do); the bulk of its opinion consists of statutory construction that doesn’t so much prove this conclusion as assume it. (¶¶17-25).

Ultimately, then, this decision simply rejects J.W.K.’s chain-link theory; it doesn’t address other arguments that may overcome claims of mootness in another case.

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