Issues (from the COA certification):
1. Does the Wisconsin Supreme Court’s decision in Waukesha County v. E.J.W., 2021 WI 85, ¶38, 399 Wis. 2d 471, 966 N.W.2d 590, apply retroactively or only prospectively?
2. In a ch. 51 case involving a petition to extend a commitment order, is circuit court competency determined from the expiration of the earlier commitment order or from the expiration of the extension order, even where the extension order is determined on appeal to be invalid?
E.J.W. held that as long as an individual makes a jury demand at least 48 hours before his recommitment hearing actually takes place, the individual is entitled to a jury for his final hearing. E.J.W. overruled Marathon County v. R.J.O., 2020 WI App 20, 392 Wis. 2d 157, 943 N.W.2d 898, which had reached the opposite conclusion. M.R.M.’s recommitment hearing occurred before SCOW decided E.J.W. However, generally, new rules of law apply retrospectively, so M.R.M. should be able to take advantage of E.J.W. The county opposes the application of the general rule in this situation.
SCOW decided E.J.W. almost one year ago. As a practical matter, there can’t be many, if any, pending commitment appeals where an appellant is arguing that E.J.W. applies retroactively. So SCOW’s holding on this point should have limited impact.
The certification frames the second issue in a confusing way, suggesting that there are two ways to determine circuit court competency, and they conflict. In fact, the two ways evolved to apply to different scenarios.
As noted in our post on the court of appeals certification, SCOW holds that when a circuit court fails to conduct an extension hearing before a commitment expires the circuit court loses competency to extend the commitment. Portage County v. J.W.K., 2019 WI 54, ¶20, 386 Wis. 2d 672, 927 N.W.2d 509 (citing G.O.T. v. Rock Cty., 151 Wis. 2d 629, 633, 445 N.W.2d 697 (Ct. App. 1989)). Suppose that the circuit court holds a timely hearing and enters an extension order for a commitment that expires on January 1st. Seven months later, an appellate court reverses the extension order and remands the case. Under J.W.K. and G.O.T.’s reasoning, the circuit courts lacks competency to conduct a new extension hearing on remand because that January 1st deadline is long gone.
SCOW also holds that when a commitment order expires during the course of an appeal, the appellate court cannot remand the case for further proceedings because the circuit court lacks competency to act after a commitment expires. See E.J.W., 399 Wis. 2d 471, ¶40 n.10 and Sheboygan County v. M.W., 2022 WI 40, ¶38, 5 n.2, ___ Wis. 2d ___, 974 N.W.2d 733.
These two rationales regarding circuit court competency to conduct remand proceedings are not mutually exclusive. One applies when the appellate court reverses an expired commitment order. The other applies whenever the appellate court reverses any commitment order–even an order that has not expired. Either way, the circuit court lacks competency to conduct remand proceedings.