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COA dismisses ch. 51 as moot with no real analysis of mootness exceptions

Portage County v. E.R.R., 2019AP2033, 5/21/20, District 4 (one-judge decision; ineligible for publication); case activity

E.R.R.’s original commitment term expired during the pendency of his appeal, but the commitment was extended. He concedes this makes the appeal moot but argues the court should nevertheless decide his issues because they are of great public importance and likely to arise again. We’ll never know if he had a point, because the briefs are confidential and the court’s rejection of his arguments consists of a single paragraph:

I am not persuaded that this case presents the sort of exceptional or compelling circumstances that would—despite mootness—warrant a decision on the merits. Deciding E.R.R.’s arguments would not bring any definitive clarity to the law because a decision by one judge under WIS. STAT. § 752.31 is not publishable and, therefore, not subject to citation as binding authority. See WIS. STAT. § 809.23(1)(b)4., (3). Further, E.R.R.’s argument that the issues in this appeal are likely to arise again is speculative. Although it is possible, E.R.R. has not given me any reason to believe that those issues are “likely” to arise again. See J.W.K., 386 Wis. 2d 672, ¶12.


To state the obvious: all ch. 51 appeals are one-judge decisions unless the court decides they raise issues meriting publication. So it’s pure question-begging to say that this case wouldn’t bring clarity because it wouldn’t be published. The court’s meager analysis here would apply to the vast majority of ch. 51 appeals, effectively denying the right to appeal in the vast majority of commitments which, as we all know, tend to expire before the court of appeals can reach a decision.

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