≡ Menu

COA holds challenge to late ch. 51 extension hearing judicially estopped; says hearsay statements not plain error

Outagamie County v. C. J. A., 2022AP230, 2/17/23, District 3 (one-judge decision; ineligible for publication); case activity

“Catherine” appeals the extension of her ch. 51 commitment. The recommitment hearing was originally set for a few days before her previous extension would expire. But three days before that scheduled hearing, Catherine requested an independent examination. She, the court, and the county agreed to a “stipulation for temporary extension to commitment” for 60 days. The final hearing was held near the end of this 60 days, 57 days after her commitment had been set to expire before the stipulation.

On appeal, Catherine argues that the circuit court lost competency because the statutes authorize delays of a final commitment hearing in only four scenarios, none of which is present here:

First, and relevant here, WIS. STAT. § 51.20(10)(e) allows the final hearing to be postponed “[a]t the request of the subject individual or his or her counsel,” but the postponement may not “exceed 7 calendar days from the date established by the court under this subsection for the final hearing.” Second, the subject individual can “waive the time period[]” for the final hearing “for a period not to exceed 90 days from the date of the waiver, if the individual and the [petitioner’s] counsel … agree … that the individual shall obtain treatment under a settlement agreement.” Sec. 51.20(8)(bg). Third, if an individual is not detained and “fails to appear for the final hearing[,] the court may issue an order for the subject individual’s detention and shall hold the final commitment hearing within 7 days from the time of detention.” Sec. 51.20(10)(d). Lastly, delay is permitted when an individual demands a jury trial, but the final hearing must be within fourteen days of filing the jury demand. See § 51.20(11)(a).


The court of appeals agrees with Catherine that the circuit court lost competency due to the 57-day delay. But it also says she has no right to complain, because she asked for the delay, and is thus judicially estopped from relying on it to challenge her commitment:

Judicial estoppel applies if: (1) a litigant’s later position is clearly inconsistent with the litigant’s earlier position; (2) the facts at issue are the same in both cases; and (3) the party to be estopped convinced the first court to adopt its position. State v. Petty, 201 Wis. 2d 337, 348, 548 N.W.2d 817 (1996). “[It] is the prerogative of the … court to invoke judicial estoppel at its discretion.” Id. at 346-47 (citation omitted).

For obvious reasons, all three elements are met in this case. Quite simply, Catherine persuaded the circuit court to extend her commitment to permit her to possibly improve her defense—namely, by obtaining an independent evaluation, which is similar to the committed individual’s request for new counsel in Edward S. Now, on appeal, Catherine is taking an inconsistent position, arguing that the court lost competency by agreeing to her request for an extension, which requires us to vacate the court’s recommitment order. Catherine’s assertions that her request for an extension was neither “needed,” manipulative per se, nor unilateral (insomuch as the County stipulated to the requested extension) do not convince us that principles of judicial estoppel should not apply.


The court takes pains to note that had another actor requested the stay, the analysis would be different. Though a loss, this case may be a valuable resource/persuasive citation for future cases involving temporary stipulated “extensions” of ch. 51 commitments.

Catherine also argues that many statements introduced against her were inadmissible hearsay–that the county’s experts merely recited allegations from her treatment records of which they had no personal knowledge. The court assumes this to be the case, but refuses to hold that the admission of these statements–which drew no objection at trial–was plain error:

Catherine has not established that application of the plain error doctrine is warranted here. First, we are mindful of WIS. STAT. § 51.20(1)(am), which expressly provides that when, as here, the petitioner is arguing that the individual would be a proper subject for commitment if treatment were withdrawn, dangerousness can be analyzed “based on the subject individual’s treatment record.” See § 51.20(1)(am). This approach by the legislature is consistent with our judicial understanding that while each commitment extension order must stand on its own merits, “a recommitment hearing is not ‘an entirely new proceeding,’” and “‘the circuit court continues to receive evidence in the same case’ and may rely on ‘the individual’s present condition and past response to treatment.’” Portage County v. J.W.K., 2019 WI 54, ¶26, 386 Wis. 2d 672, 927 N.W.2d 509 (citation omitted). Accordingly, in the context of the hearing at issue, all parties and the circuit court were operating with the understanding that, generally speaking, the court would be considering information in Catherine’s prior treatment records and prior history. We mention this context not to conclude that any of the unobjected-to, alleged hearsay statements should have been admissible had an objection been lodged, but only to note that any purported error was neither obvious nor substantial.


This reasoning is specious. That a particular kind of fact is necessary to a party’s case doesn’t change whether a statement going to that fact is hearsay. Or “obvious” hearsay. Of course the County was permitted to introduce facts about Catherine’s past treatment: the question is whether it did so in a way that complied with the rules of evidence. Here, it seemingly didn’t; the Court’s discussion above just shows the County’s evidence was relevant, and says nothing at all about whether its mode of admission plainly contradicted the rules of evidence.

{ 0 comments… add one }

Leave a Comment