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SCOW issues defense win on Chapter 51 jury demands

Waukesha County v. E.J.W., 2021 WI 85, 11/23/21, reversing an unpublished court of appeals’ opinion; case activity

This 4-3 “defense win” delivers a 1-2-3 punch! The decision:  (1) holds that a person undergoing commitment has the right to demand a jury 48 hours before the time set for his final hearing–even if the hearing is rescheduled; (2) reverses a recent, published court of appeals opinion to the contrary; and (3) resolves a split over the proper remedy for cases where the appellate court holds that the circuit court erred, but the underlying commitment order has expired.  (Answer: Simply reverse because the circuit court lacks competency to conduct remand proceedings on an expired commitment order.)

§ 51.20(11)(a) provides that: “A jury trial is deemed waived unless demanded at least 48 hours in advance of the time set for the final hearing.” E.J.W. did not request a jury 48 hours before his recommitment hearing. But at the outset of the hearing, he requested a new lawyer because his existing one had not been communicating with him and had not demanded a jury trial.

The court adjourned E.J.W.’s hearing 7 days to accommodate the appointment of new counsel. Two days later (so 5 days in advance of the rescheduled, final hearing) new counsel demanded a jury. The trial court rejected the demand because E.J.W. had not made it 48 hours before his originally-scheduled hearing.

The court of appeals affirmed the circuit court because it was bound by its own recently-published opinion, which interpreted §51.20(11)(a) the same way the circuit court had.  See Marathon County v. R.J.O., 2020 WI App 20, ¶41, 392 Wis. 2d 157, 943 N.W.2d 898.

In a 4-3 decision, the majority (written by A.W. Bradley and joined by Dallet, Hagedorn, and Karofsky) reversed and held that the plain language of “§51.20(11)(a) does not limit the filing of a jury demand to only the first time that a final hearing is set. Rather, we determine that when a final hearing is rescheduled, §51.20(11)(a) allows a jury demand to be filed up until 48 hours prior to a rescheduled final hearing.” Majority, ¶3.

The majority also expressly overruled Paragraphs 38-41 of R.J.O. Majority, ¶38.

The dissent (written by Ziegler and joined by Roggensack and R.G. Bradley) argues that the plain language of §51.20(11)(a) dictates the opposite result and  predicts that the majority decision will cause the sky to fall. Now, whenever a circuit court grants an adjournment the individual may revive his right to a jury. Also, “administrative schedules could be turned upside down,” circuit courts will grant few adjournments, and people will be detained longer. Dissent, ¶61.

The majority explains why this parade of horribles is nonsense at ¶¶34-35 (especially footnote 8).

The majority also appears to resolve a hot issue in Chapter 51 appeals. The court of appeals has recently reversed numerous recommitment orders due to D.J.W. violations. The districts have split over whether to order reversal outright or to remand for further proceedings. This issue is pending in SCOW in Sheboygan County v. M.W. 2021AP6 and will be argued on December 13th. See our post on M.W. Footnote 10 to the majority opinion in this case suggests that when the underlying order has expired, the remedy is reversal:

10 We simply reverse the decision of the court of appeals rather than remanding for a jury trial because the specific recommitment at issue in this case has expired and accordingly the circuit court has lost competency to act. See G.O.T., 151 Wis. 2d at 631 (determining that person subject to commitment extension was entitled to jury trial but that the circuit court lost competency by failing to hear and decide the petition before the commitment had expired and that as a result the petition should be dismissed); J.W.K., 386 Wis. 2d 672, ¶20 (explaining that “[t]he circuit court must hold a hearing on the petition for extension before the previous order expires or it loses competency to extend the commitment”). This determination does not affect the validity of any subsequent extensions of commitment. J.W.K., 386 Wis. 2d 672, ¶21 (setting forth that the reversal of a commitment order “does not retroactively deprive the circuit court that issued a subsequent commitment
order of competency”). Opinion, ¶40.

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