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Good cause is no excuse for failure to file timely jury demand for Chapter 51 final hearing

Waukesha County v. E.J.W., 2020AP370, 11/4/20, District 2 (1-judge opinion; ineligible for publication), petition for review granted 2/26/21; case activity

Section 51.20(11)(a) provides that an individual or his counsel must demand a jury trial at least 48 hours before the time set for his final commitment hearing. At the start of his hearing, E.J.W requested a substitution of trial counsel and a jury trial. The court granted the substitution of counsel and postponed the trial 7 days, but it would not reset the clock for demanding a jury. The court of appeal affirmed.

The court of appeals held that it was bound by Marathon County v. R.J.O., 2020 WI App 20, ¶41, 392 Wis. 2d 157,943 N.W.2d 898, where the individual failed to appear for a final commitment hearing, and the county detained her 10 months later.  Upon R.J.O’s detention, her lawyer requested a jury for the trial scheduled 7 days later. The court of appeals held that the jury demand was too late.  It had to be made  48 hours “in advance of the time set for the final hearing”–in other words, 48 hours in advance of the hearing that R.J.O. missed 10 months earlier. She could not make the demand 48 hours before the rescheduled final hearing. R.J.O., ¶39.

E.J.W. tried to distinguish R.J.O. by arguing that an extension for good cause should reset the time in which to demand a jury for a final commitment hearing. Successor counsel should not be bound by a prior lawyer’s strategy. The court of appeals was unmoved:

¶11 E.J.W.’s jury trial demand was untimely as he failed to make the demand at least forty-eight hours before March 5, 2019. E.J.W. contends that R.J.O. is factually distinguishable because he changed lawyers, suggesting that the first lawyer’s failure to request a jury prompted his request. However, E.J.W. has not asserted a claim for ineffective assistance of counsel. E.J.W. further asserts that a good-cause extension should reset the clock, but we see no basis either in the R.J.O. decision or the statute for concluding that an extension excuses the failure to timely file a jury demand before the “time set for the final hearing.” Thus, the circuit court properly concluded that E.J.W. waived his right to a jury trial. We affirm the order of the circuit court

Assuming that the court of appeals’ interpretation of §51.20(11)(a) is correct, it makes no mention of §51.20(10)(c), which provides: “The court shall at every stage of an action, disregard any error or defect in the pleadings or proceedings that does not affect the substantial right of either party.” It is difficult to see how giving the County 7 days rather than 48 hours to prepare for a jury trial affects its “substantial rights.”

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