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SCOW punts on the right to interpreters and mootness

SCOW issued an important Chapter 51 decision today. In Waukesha County v. J.J.H, Appeal No.  2018AP168 a young, deaf woman argued that the circuit court denied her due process right to sign language interpreters for her Chapter 51 probable cause hearing. The court of appeals held the matter moot and said it was unlikely to recur even though it knew that this was the 2nd time in 3 days she had been denied interpreters for a court hearing.  According to the court of appeals, if J.J.H. wanted interpreters, then she should have waived her due process right to a hearing within 72 hours. J.J.H. petitioned for review, and SCOW took the case.

J.J.H. argued that without interpreters she could not hear the judge or the witness who testified against her. She could not communicate with her lawyer. And she could not testify.  She said that if the court was unable to provide her with interpreters for her hearing, it should have dismissed the case.

J.J.H. and numerous amici also pointed out that most states hold that appeals from mental commitments are never moot due, in part, to the stigma resulting from a mental commitment. See e.g. Sibron v. New York, 392 U.S. 40 (1968), which SCOW just held applies to Chapter 51 mental commitments. Marathon County v. D.K., 2020 WI 8.  J.J.H. and the amici asked SCOW to join the 30+ states that require their appellate courts to decide appeals from mental commitments even if the commitments have expired.

After briefing and oral argument, 4 of 5 justices dismissed J.J.H.’s appeal saying that review had been improvidently granted. (Justice Dallet dissented. Justices A.W. Bradley and Hagedorn did not participate). Many cases were stayed pending SCOW’s decision on whether the mootness doctrine ever applies to Chapter 51 appeals. This dismissal leaves the matter in limbo. Worse, because there is an interpreter shortage in Wisconsin, this dismissal means that deaf litigants will continue to be denied interpreters for court hearings. SCOW’s decision has drawn sharp criticism from at least one Wisconsin legislator, Rep.  John Brostoff. You may read it here

Special thanks to the National Association for the Deaf, the National Disability Rights Network, Disability Rights Wisconsin, the Association for the Rights of Citizens with Handicaps, and their lawyer, Attorney Susan Tyndall at Habush Habush & Rottier. They filed an excellent amicus brief supporting the rights of Deaf people to have interpreters for court hearings and the rights of people declared mentally ill to have an appeal.

Also thank you to Sandy Peplinski and Debra Gorra Barash (Professional Interpreting Enterprise), Michael Maffucci (Versatile Interpreting Services), and Karen Disho (independent) for volunteering to interpret the Wisconsin Supreme argument for the many Deaf people interested in this case. You can watch their impressive skills in action on Wisconsin Eye.

Have courts held hearings without providing your client a foreign-language or sign-language interpreter? Let us know in the comment section below.


{ 1 comment… add one }
  • Elizabeth Gamsky Rich February 28, 2020, 8:44 am

    I find this confusing. It’s an important issue that our Supreme Court needs to address. I did have a Spanish-speaking client who requested an interpreter. She spoke English, but was confused about some of the terms in the chapter 51 forms and was scared about the probable cause hearing. The probate clerk was having trouble locating an interpreter. I, too, was having trouble (finding an interpreter to help with negotiation of the settlement agreement)–and I note that the public defender’s office needs to provide better support to appointed counsel trying to hire interpreters. Private attorneys can’t use the service available to the public defender’s office–apparently because we can’t be “monitered.” Really? Because we might steal the service? In any event, in my case I threatened to move for dismissal if an interpreter was not provided, and the County did obtain one.

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