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SCOW to address timing of jury demands for Chapter 51 final hearings

Waukesha County v. E.J.W., 2020AP370, petition for review granted 2/26/21, reversed, 2021 WI 85; case activity

Issue for review:

Section 51.20(11) provides that the subject of a commitment proceeding must demand a jury trial 48 hours in advance of the time set for the final hearing. When the court adjourns the hearing for good cause to appoint new counsel, does that reset the 48 hours for demanding a jury trial?

At the outset of his recommitment hearing, E.J.W. indicated that he was not pleased with his trial lawyer. He said that the lawyer had not called him, was unprepared for the final hearing, and had not demanded a jury trial. In fact, E.J.W. said he left a voicemail about wanting a jury with his lawyer.

E.J.W. requested and received new counsel, who filed a jury demand. The County balked. If E.J.W. (a person diagnosed with schizophrenia) wanted a jury trial that badly he should have been more insistent about making that wish known to the first lawyer (who had not communicated with him).  The circuit court sided with the county. The lawyer who had failed to communicate with E.J.W. had waived E.J.W.’s right to a jury trial.  The court of appeals affirmed.

While this case involves an appeal from a recommitment order, §51.20(11) governs both inial commitment and recommitment hearings. SCOW’s interpretation of the statute will thus affect jury demands for both types of commitment hearings. Also very important, E.J.W. argues that the court of appeals’ published decision in Marathon County v. R.J.O., 2020 WI App 20, ¶41, 392 Wis. 2d 157, 943 N.W.2d 898 was wrongly decided. R.J.O. held that a jury demand for a final hearing must be made 48 hours before the time set for the final hearing, not 48 hours before the final hearing actually occurs.

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