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COA: Chapter 51 appellant’s initial brief must anticipate and refute mootness challenge

Rock County v. R.J., 2020AP93, 8/13/20, District 4 (1-judge opinion, ineligible for publication); case activity

Thank heavens this opinion is not published. R.J’s initial commitment expired before he filed his notice of appeal. According to the court of appeals, R.J. should have sua sponte addressed mootness in his initial brief–before the County ever argued the point. Because R.J. waited to see whether the County would even raise mootness and then addressed the matter in his reply, the court of appeals dismissed his appeal. The court of appeals also made an error of law regarding the “contemporaneous objection” requirement.  Hopefully, R.J. will move for reconsideration or petition for review.

The court of appeals did not order the parties to address mootness in their briefs. Nevertheless, R.J., being conscientious, dropped a footnote explaining that even though the initial commitment expired it still carried collateral consequences. The County responded that the appeal was moot under Portage Cty. v. J.W.K., 2019 WI 54, ¶29, 386 Wis. 2d 672, 927 N.W.2d 509 and that if R.J. prevailed he would still be subject to a firearm restriction because he had been recommitted. Opinion, ¶22.

In his reply bried, R.J. distinguished J.W.K., explained why the County’s analysis of the firearm ban was wrong, and argued that the appeal was not moot because he was also potentially liable to the County for the cost of his care during his commitment.

The court of appeals held that “it was inherently unfair” for R.J. “to withhold an argument” from his main brief and argue it in his reply because that prevented the County from responding. Opinion, ¶24 (citing A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998). It also said: “[T]here may be unanticipated mootness arguments raised in a response brief.” However,  “Wisconsin authority shows that the question of mootness is of obvious and central importance in an appeal from an expired commitment order. Under these circumstances, I see no reason to resolve the mootness arguments that R.J. makes for the first time in a reply brief.” Opinion, ¶25.

Let’s see what Appellate Practice and Procedure in Wisconsin §11.23 has to say on reply briefs: “The purpose of the reply brief is to respond to any arguments in the response brief that were not adequately addressed in the appellant’s brief-in-chief.”  It goes on: “[A] proposition asserted by the respondent and not disputed in an appellant’s reply brief is taken as admitted.” (citing Management Computer Servs. Ins., Inc. v. Hawkins, Ash, Baptie & Co, 196 Wis. 2d 578, 603, 539 N.W.2d. 1995 (Ct. App.  1995). In other words, R.J. followed standard appellate practice.

Furthermore, A.O. Smith involved a case where the appellant raised issues in the circuit court that it did not include in its appellate briefs. It then surprised the respondent and the court of appeals with the new issues at oral argument. In that context, the A.O. Smith court held that the appellant waived the issues.  [Editor’s note: The one judge who decided this appeal is the same judge who decided State v. Large above.]

Mootness, is a different animal. It’s similar to the defense of lack of jurisdiction, which by the way, appellants are not required to anticipate and refute in their opening briefs. Frankly, not all respondents even request dismissal of a moot Chapter 51 appeal. See e.g. Waupaca County v. K.E.K at 4 n.3, where the parties did not address mootness but a 3-judge panel (including the same judge here) noted that it would decide the appeal anyway. In District I, shortly after the appellant files a notice of appeal from an expired commitment order, the court of appeals issues an order directing both parties to brief mootness in their briefs. That is fair. Announcing that an appellant will be penalized for not addressing mootness in his initial brief after he files his initial brief is not fair.

SCOW recently held that the collateral consequences exception to the mootness doctrine applies to appeals from expired commitment orders, but only as to the firearm ban. See Marathon Cty. v. D.K., 2020 WI 8, ¶23-24, 390 Wis. 2d 50, 937 N.W.2d 901 (citing Sibron v. New York, 392 U.S. 40 (1968)(defendant’s appeal from his conviction does not become moot after he finishes serving his sentence due ti its collateral effects). See also United States v. Juvenile Male, 564 U.S. 932, 936 (2011) (defendant need not prove existence of collateral consequences; the court presumes they exist).

A pending petition for review raises the issue of whether appeals from expired commitment orders are ever moot. See Portage County v. E.R.R., Appeal No. 2019AP2033. Hopefully SCOW will grant the petition and join most states, which follow Sibron.

The court of appeals made another significant error in its decision, At trial, the County called two doctors, who testified to hearsay evidence of dangerous conduct by R.J.. They also described the hearsay conduct in their reports, which were admitted into evidence. Trial counsel did not make a contemporaneous objection. But during closing arguments counsel argued that the County failed to carry its burden of proof because its only evidence of dangerousness was inadmissible hearsay. The circuit court said this “hearsay objection” was “well taken” but still found the evidence sufficient. Opinion, ¶7.

The court of appeals refused to decide whether there was sufficient evidence to support the commitment. However, it paused to chastise appellate counsel for stating that trial counsel had made an objection. It said:

Although the circuit court described R.J.’s argument as a “hearsay objection” and at times suggested that it would ignore the doctors’ hearsay accounts of the traffic incident, it is not clear to me that the court took the unusual step of excluding evidence after it had already been admitted. Had it done so, the County would have been unfairly deprived of the opportunity to correct any error. See, e.g., Virgil v. State, 84 Wis. 2d 166, 193-94, 267 N.W.2d 852 (1978) (one reason why objections must be timely is to allow the opportunity to correct error).  Opinion, ¶12 n.4. (Emphasis supplied).

That’s not what Virgil holds. The “contemporaneous objection” rule does not exist for the County’s benefit. Here’s what Virgil really says at 193-194:

Had appropriate and timely objections been made, the trial judge would have been given an opportunity to correct the record and to avoid the infringement upon the defendant’s constitutional rights.

Virgil also ordered new trial because the admission of inadmissible evidence–even without an objection–was plain error. Id. at 194.

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