State v. Jesse J. Madison, 2004 WI App 46, PFR filed 3/12/04For Madison: Charles B. Vetzner, SPD, Madison Appellate
¶3. Madison first claims that he has a statutory right to a special verdict under Wis. Stat.§ 805.12(1). See State v. Rachel, 224 Wis. 2d 571, 575, 591 N.W.2d 920 (Ct. App. 1999) (Wis. Stat. ch. 980 proceedings are civil in nature and, therefore, the rules of civil procedure apply). Section 805.12(1) states, “Unless it orders otherwise, the court shall direct the jury to return a special verdict.” Because special verdicts are “the rule and not the exception” in civil cases, Madison argues the trial court erred by giving a general verdict. See Milwaukee & Suburban Transp. Corp. v. Milwaukee County, 82 Wis. 2d 420, 450, 263 N.W.2d 503 (1978). We disagree.
¶4. In A.E. v. State, 163 Wis. 2d 270, 275, 471 N.W.2d 519 (Ct. App. 1991), we held that the opening phrase of Wis. Stat. § 805.12(1), “Unless it orders otherwise,” gives the trial court broad discretion to determine the form of the verdict and that it is not per se improper to submit a general verdict. Thus, although the statutes suggest the trial court submit a special verdict to the jury, it remains within the trial court’s discretion whether to submit a special or general verdict.2Therefore, we reject Madison’s argument that, under § 805.12(1), the trial court must submit a special verdict.
2 In his reply brief, Madison argues the trial court failed to exercise its discretion in determining the form of the verdict. We will not address arguments raised for the first time in reply briefs. State v. Chu, 2002 WI App 98, ¶42 n.5, 253 Wis. 2d 666, 643 N.W.2d 878.
Ch. 51 instructions are in Wis JI—Civil No. 7050. The Judicial Council Committee’s Note says that § 805.12(1) “is based on a recognition that in Wisconsin practice, the special verdict is the rule and not the exception.” A party desiring the use of a general verdict should be required to make an appropriate motion.” This decision turns that clear directive on its head. 980s either are, or aren’t civil. Courts want to say that 980s are civil for purposes of diminished constitutional protections, but not quite civil when civil rules stand between the State and commitment. This case exemplifies that trend pretty well. The court’s statement that a trial judge has “broad discretion” with respect to special verdicts quite ignores the Judicial Council’s Note and, therefore, the very thrust of the statute.