State v. Harry S. Bernstein, 231 Wis.2d 392, 605 N.W.2d 555 (Ct. App. 1999)
For Bernstein: Mary E. Waitrovich, SPD, Madison Appellate
Issue: After the state requests then withdraws a request for jury in a Ch. 980 proceeding, must trial to the court be premised on the respondent’s personal consent to this withdrawal?
Holding: Under § 980.05(2) the respondent’s consent to the state’s withdrawn assertion of jury trial need not be personal, but may be made through counsel.
The state requested, then withdrew, a request for SVP jury trial. Bernstein didn’t personally, on the record, consent to this withdrawal (i.e., waive his right to jury). § 980.05(2) allows a request for jury to be withdrawn “if the 2 persons who did not make the request consent to the withdrawal.” Bernstein argues that the adequacy of his consent to withdrawal of the jury must be judged under the standards set by § 972.02(1), namely personal waiver on the record. ¶7. He relies on § 980.05(1m)’s absorption of all constitutional rights available to a defendant in a criminal proceeding. The court rejects this claim, holding that as the more specific provision, § 980.05(2) governs the procedure for effectuating an attempt to withdraw a request for jury trial under Ch. 980. ¶8. This leaves the question of whether Bernstein did, under the facts, consent as required by this statute. The court says yes: § 980.05(2), unlike § 972.02(1), doesn’t require the litigant’s “statement in open court”; and, “it is generally accepted that an attorney acts on behalf of his or her client.” ¶9. “We therefore conclude that Bernstein’s consent to the withdrawal of the State’s request for a jury trial need not be in the form of a statement made personally by him to the court.” Id. Bernstein was present when his counsel consented to the withdrawal on the record, and was given the opportunity to address the court on the subject. This satisfied the consent requirement, ¶10. (The court seems to hold open the possibility that a more rigorous inquiry is necessary where the respondent him or herself is the one withdrawing the request, ¶11.)