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Sec. 805.01(3) now governs requests to withdraw jury demands in TPR proceedings

Racine County HSD v . Latasia D.M., 2014AP1672/1673, 12/23/14, District 2 (1-judge opinion, ineligible for publication); case activity

The stand out in this multi-issue TPR case is whether the circuit court erred in denying Latasia’s permission to withdraw her jury demand. The court of appeals answered “no” because even though § 48.31(2) and §48.422(4) set forth the procedures for demanding a jury in a TPR case, the general civil procedure statute, § 805.01(3), governs the withdrawal of a jury demand. The latter statute requires the consent of all the parties, which Latasia did not have.

The court of appeals make no effort to explain the statutory interpretation issue in this case.The problem is that under §48.31(2) a TPR fact-finding hearing “shall be to the court” unless enumerated parties “demand a jury trial at any time before or during the plea hearing.” The statute then describes the size of the jury for various kinds of proceedings and adds only: “Chapters 756 and 805 shall govern the selection of jurors.”  Meanwhile §48.422 provides that any party who is necessary to a TPR proceeding “shall be granted a jury trial upon request if the request is made before the end of the initial hearing on the petition.”

Latasia initially and properly requested a jury. Racine County never requested one. Then Latasia tried to withdraw her jury demand, and the County objected. Because the TPR statutes do not mention the withdrawal of a jury demand, the County apparently argued that § 805.01(3) filled in the blank, per the §801.01(2) catchall, and refused to consent to the withdrawal.  But close readers of § 805.01(3) will see that the “consent of all parties” requirement applies only when the jury demand was made pursuant to § 805.01, which was certainly not the case here.  In fact, under a plain language application of  § 805.01 the County actually waived its right to demand a jury. With this back drop in view, it’s hard to understand the court of appeals’ tight-lipped holding: “The circuit court properly applied §805.01(3) to deny Latasia’s request to withdraw her jury demand when the [County] refused to consent to the   withdrawal.”

At least one Wisconsin decision notes that circuit courts may not graft §805.01’s “withdrawal of a jury  demand” provisions onto Chapter 48 because a specific statutory scheme (i.e. Chapter 48) takes precedent over a more general one (Chapter 805). See Ashland County DHS v. Lisa R., 1997AP2613, slip op. at 3 n.2 (Wis. Ct. App., Nov. 18, 1997). Perhaps SCOW can set the court of appeal straight on this issue.

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