To appoint a guardian of the person or estate, the circuit court has to find 4 elements by clear and convincing evidence. This appeal focuses on §54.10(3)(a)2–the second element, which states:
[B]ecause of an impairment, the individual is unable effectively to receive and evaluate information or to make or communicate decisions to such an extent that the individual is unable to meet the essential requirements for his or her physical health and safety. WIS. STAT. § 54.10(3)(a)2.
Here’s what Wis-Civil 7060 offers as a pattern jury instruction:
That because of (impairment), (individual) is unable to effectively receive and evaluate information or to make or communicate decisions to such an extent that (he) (she) cannot (meet the essential requirements for (his) (her) physical health and safety) (perform those actions necessary to provide the healthcare, food, shelter, clothes, personal hygiene, and other care without which serious physical injury or illness will likely occur).
And here is the instruction that the circuit court actually gave to the jury:
[T]hat because of a major neurocognitive disorder due to alcohol use, [R.M.C.] is unable to effectively receive and evaluate information or to make or communicate decisions to such an extent that he cannot meet the essential requirements for his physical health and safety.
The part of the pattern instruction that the circuit court omitted is highlighted in bold above.
On appeal, R.M.C. argued that the circuit erred in providing inaccurate and incomplete jury instructions on incompetency, his trial provided ineffective assistance by failing to object, or the court of appeals should order a new trial in the interest if justice.The court of appeals refused to address the instruction error head on saying:
¶8 The failure to timely object to a jury instruction results in the forfeiture of any challenges to the instruction. See WIS. STAT. § 805.13(3); see also State v. Austin, 2013 WI App 96, ¶20, 349 Wis. 2d 744, 836 N.W.2d 833. However, an alleged error in a jury instruction that has been forfeited by trial counsel’s failure to object may be reviewed as a claim of ineffective assistance of counsel or by way of our discretionary reversal authority under WIS. STAT. § 752.35. See Austin, 349 Wis. 2d 744, ¶20 (addressing use of ineffective assistance of counsel claim to challenge jury instructions); State v. Beasley, 2004 WI App 42, ¶17 n.4, 271 Wis. 2d 469, 678 N.W.2d 600 (addressing request for discretionary reversal to challenge jury instructions).
This, of course, is inaccurate. The court of appeals can review a jury instruction for plain error. (By the way there’s a SCOTUS case pending on plain error). And we all know that forfeiture is simply a rule of judicial administration. Wisconsin appellate courts can review, and do review, forfeited issues. See McKee Family, LLC v. City of Fitchburg, 2017 WI 34, ¶34, 374 Wis. 2d 487, 893 N.W.2d 12.
The court of appeals chose instead to focus on the ineffective assistance claim, where the defendant’s burden of proof is nearly insurmountable. And so it was here on the issue of prejudice. We won’t bore you with the facts–all specific to R.M.C.’s situation. Suffice it to say that the court of appeals bullet pointed all of the evidence suggesting that R.M.C. would also be deemed incompetent under the correct jury instruction. Opinion ¶¶18-20.
The court of also rejected R.M.C.’s claim that the instruction error cause the real controversy not to be fully tried. It did so by distinguish’s his case from a long list of similar cases where Wisconsin appellate courts have ordered a new trial due to a juror instruction error. See Opinion ¶26 (and cases cited therein).
After refusing to address the pattern jury instruction head on, the court of appeals ends by issuing an alert to the Civil Jury Instruction Committee:
¶27 Above, we resolve this case by applying an ineffective assistance of counsel analysis and by explaining why this is not the sort of case warranting our discretionary reversal authority. Neither requires an assessment of whether the pattern jury instruction used in this case, WIS JI—CIVIL 7060, optimally defines the portion of the second incompetency element at issue. Here, we briefly comment on that instruction.
¶28 As noted, WIS JI—CIVIL 7060 sets forth the WIS. STAT. § 54.10(3)(a)2. language identifying the second element and, as an alternative, gives the WIS. STAT. § 54.01(19) definition of part of that language. At least one other related incompetency instruction uses this alternatives structure. See WIS JI—CIVIL 7054. As the circuit court recognized, these are not alternative ways of satisfying a statutory requirement. Rather, one “alternative” is the statutory definition of part of one element of incompetency, which defines that part of the element in a non-technical manner. Thus, the circuit court correctly rejected R.M.C.’s postdisposition argument that one “alternative” imposes a greater burden on the government than the other does.
¶29 We urge the Civil Jury Instruction Committee to assess the instruction in light of our observation that these are not alternative ways of satisfying a statutory requirement, but rather one parenthetical defines a portion of an incompetency element stated in the other parenthetical.