SCOW docket: When to request a jury trial in a chapter 51 case

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized.

The Case: Waukesha County v. E.J.W.

Majority/Lead Opinion: Justice Ann Walsh Bradley (17 pages), joined by Justices Rebecca F. Dallet, Brian Hagedorn, and Jill J. Karofsky

Dissent: Justice Annette K. Ziegler (16 pages),  joined by Justices Patience D. Rogensack and Rebecca Grassl Bradley

Walsh Bradley

The upshot

The petitioner, E.J.W., appeals an appeals court decision extending his involuntary mental health commitment and finding that his request for a jury trial was not timely.

We conclude that E.J.W.'s jury demand was timely. Wisconsin Stat. §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, the statute allows a jury demand to be filed up until 48 hours prior to a rescheduled final hearing.

Accordingly, we reverse the decision of the court of appeals.

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Background

E.J.W. was initially committed on April 15, 2014, for a period of six months. The circuit court determined that he was mentally ill, dangerous, and a proper subject for treatment. Shortly before the expiration of the initial commitment, the circuit court extended E.J.W.'s commitment for a period of 12 months, and his commitment was subsequently extended four additional times. 

On February 7, 2019, Waukesha County (the County) filed a petition to again extend E.J.W.'s commitment, which was set to expire on March 12, 2019. A notice sent to E.J.W. and to the Office of the State Public Defender indicated that the final extension hearing was scheduled for March 5, 2019, at 1:15 p.m.

The March 5 hearing did not proceed as scheduled. Instead, at the hearing E.J.W. stated that his appointed attorney was unprepared and had never called him. E.J.W. requested that his counsel withdraw from representation and that the court appoint him new counsel. The circuit court granted E.J.W.'s request for new counsel and adjourned the hearing until March 12, 2019, at 1:15 p.m. 

Additionally at the March 5 hearing, the County raised the fact that E.J.W. had not filed a jury demand and asked the circuit court to make a finding that E.J.W., by the failure to file such a demand, had waived his right to a jury trial....In response to the County's argument, E.J.W. orally demanded a jury trial. After hearing argument on March 5, the circuit court declined to rule on E.J.W.'s oral demand.

The State Public Defender's Office appointed a new lawyer for E.J.W., and the lawyer filed a jury demand. The judge turned it down on March 11, 2019, stating that the final extension hearing had been set for March 5, and E.J.W. did not meet the deadline to request a jury trial. The law requires a jury trial request be made at least 48 hours before the scheduled final hearing.

At the March 12, 2019 final hearing, the circuit court reiterated its ruling from the prior day. It stated, "Regarding the time set for hearing, the Court does find that the date was set as a week ago and that is the time that triggers that 48- hour notice...." 

E.J.W. and the county eventually reached an agreement for an eight-month extension of E.J.W.'s commitment.

When questioned by the circuit court, E.J.W. explained that he was entering this agreement "because I am going to lose no matter what."

E.J.W. appealed, and the appellate court affirmed Waukesha County Circuit Judge Paul R. Bugenhagen Jr.

The guts

The County argues that this case is moot. It contends that the subject commitment order is long expired, and two subsequent extension orders have been entered by the circuit court since its expiration. 

E.J.W. responds that the case is not moot because of the collateral consequences that outlast the commitment order itself. He specifically cites the restriction on his right to possess a firearm, potential liability for the costs of his care, the loss of legal rights, and the restriction of his employment options. If the case is moot, E.J.W. further argues that several recognized exceptions to mootness apply and that the court should nevertheless address the merits of his contentions....

Assuming without deciding that this case is moot, applicable mootness exceptions indicate that we should address the merits.2 First, this case presents an issue that is of great public importance, particularly to members of the public subject to commitments. Second, the issue is capable of repetition yet evades review due to the short timelines that attend ch. 51 commitment proceedings....Accordingly, mootness does not serve as an obstacle to our review of the merits of the issue raised in E.J.W.'s petition for review. 

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Our analysis in this case centers on the meaning of the statutory phrase, "time set for final hearing."5 E.J.W. argues that the adjournment of a final hearing resets the 48- hour deadline for filing a jury demand. In other words, he contends that the phrase "time set for final hearing" does not mean "first time set for the final hearing" and that the March 12 date was a "time set for final hearing" just as much as the March 5 date was.

On the other hand, the County asserts that 1:15 p.m. on March 5 was the only "time set for final hearing" to which the statute refers. It contends that once 48 hours before that time passed without a jury demand, no rescheduled hearing date could "revive" E.J.W.'s waived right to a jury trial. In the County's view, E.J.W. is asking the court to rewrite "time set for final hearing" as "time the final hearing is held." The County further argues that E.J.W.'s interpretation creates an opportunity for manipulation and delay of final hearings, which would cause the County to have to reschedule witnesses on short notice....

At first blush, both parties' interpretations may appear reasonable, but guided by the above principles, we agree with E.J.W.'s reading of the statute. Beginning with an examination of the language of the statute, there is no restriction in the phrase "time set for final hearing" that limits its meaning to the first time set for the final hearing. Here, there were two final hearings set and both had a "time set for final hearing." The first scheduled final hearing was adjourned and rescheduled, which simply means there was a new "time set for final hearing."  

E.J.W.'s interpretation also fits in with the context of Wis. Stat. § 51.20(11)(a) and ch. 51 as a whole.
The law's context in the statutory scheme indicates that the legislature has determined that a minimum of 48 hours' notice is sufficient for the circuit court to secure the presence of jurors and the County to prepare for a jury trial in a mental health commitment case. Had a timely jury demand been filed prior to the March 5 time set for hearing, the circuit court and County would have had at least 48 hours' notice to secure a jury and prepare. With the jury demand timely filed before the March 12 time set for hearing, the circuit court and County likewise received at least 48 hours' notice. There is no additional hardship placed on the circuit court and no prejudice to the County in accepting the jury demand for the rescheduled hearing because in both cases the minimum advance notice they would receive is exactly the same.

Chapter 51, which governs involuntary mental health commitments, provides procedural and substantive protections to the person subject to a possible commitment.

It is consistent with these provisions to read the statute as providing another such protection to a person subject to commitment——the protection of a jury trial.7 The County's reading would restrict jury trials, contrary to ch. 51's contextually manifest purpose to afford due process protections including jury trials....

The County's concerns about potential manipulation do not alter our conclusion. Specifically, the County argues that E.J.W.'s position would allow individuals to manipulate timelines and delay final hearings, risking the unavailability of witnesses at hearings that are rescheduled on short notice. 

However, when faced with a motion for adjournment, the circuit court may evaluate the circumstances under which an adjournment is sought and make its own determination as to whether a person subject to commitment is attempting to manipulate the system and, if so, it may deny the motion. If witnesses are scheduled to come in on a certain day and a jury demand has not been filed, the circuit court has discretion to deny the adjournment and proceed in the name of convenience to the County and its witnesses. In other words, if the County is prejudiced by an adjournment, it is free to argue that on a case by case basis.

The decision specifically states that it is overruling appeals court precedent on the deadline issue that was established in Marathon County v. R.J.O.

Ziegler

The dissent

The majority in this case has replaced a clear jury waiver standard in chapter 51 commitment proceedings with a shifting and unpredictable rule. Because this departure from sound judicial administration is not supported by the plain text of Wis. Stat. §51.20(11)(a), I respectfully dissent....

This case does not involve a legal challenge to the chapter 51 jury demand deadline established under the statute. E.J.W. does not argue, nor does the majority contend, that requiring potential committees to file a jury demand by a given time violates any right established under Wisconsin or federal law. All parties agree that some deadline for chapter 51 is appropriate and that E.J.W. had an obligation to file a jury demand or have it deemed waived. 

Thus, the only question under the statute presented to the court is procedural: at what time and date was E.J.W.'s deadline to submit a jury demand or have it deemed waived?

Under the statute, "the time set for final hearing" was March 5, 2019, at 1:15 p.m. E.J.W., as represented by counsel, had the obligation to file a jury demand "48 hours in advance" of that time. Indisputably, E.J.W. did not do so. Instead, he arrived at the hearing and directed his attorney to make an oral motion to withdraw. With minimal inquiry and no dispute from the County, the circuit court granted the request for withdrawal. After the withdrawal was granted, the instant dispute over E.J.W.'s jury demand deadline began....

Under a plain reading of the statute, chapter 51 jury demands must be made 48 hours prior to the individual time fixed by the circuit court. The facts in this case indisputably show that the circuit court set March 5, 2019, at 1:15 p.m. as the time of E.J.W.'s final recommitment hearing. E.J.W. knew the time of his final hearing, he did not file a jury demand, and, therefore, he waived his right to a jury....

The requirement that individuals file a jury demand 48 hours prior to the scheduled time of final hearing, not merely by requesting an adjournment, by lodging an oral motion at the hearing to replace appointed counsel, or by flagrant absenteeism, provided consistency and predictability to all those involved. It allowed circuit courts to adequately schedule and manage resources, confident that a final jury demand deadline meant a final demand deadline. And the standard provided both the government and individuals potentially subject to commitment with a clear and final deadline. Furthermore, the standard ensured that chapter 51 proceedings were handled quickly and efficiently. Given the "significant liberty interest" at play in chapter 51 proceedings, the swift disposition of chapter 51 proceedings ultimately inured to the benefit of the individuals potentially subject to commitment....

The majority does not cite a single case where a statutorily mandated waiver has occurred, and a party "revived" its rights through actions completely distinct from the original waiver.

This legal reality only emphasizes the error of the majority's decision. If an individual subject to chapter 51 commitment hearings lets the 48-hour deadline expire, but he for some reason wishes to re-exercise his right to a jury, he can do so by obtaining an adjournment. The majority suggests that abuse will be easy to police because the circuit court can deny adjournment requests that are made to "manipulate the system." But this theory implicitly assumes that most requests for adjournment or for attorney substitution will be facially inadequate. What is a circuit court to do if the individual subject to the chapter 51 proceedings asserts that he cannot attend the hearing due to mental health concerns and requests a short adjournment? What if there is a breakdown of the attorney-client relationship, potentially begun by an individual not calling his attorney for weeks at a time? What if the individual's attorney states that he needs to be more fully prepared and discuss significant legal issues with his client? All these events can realistically occur and, if need be, can be utilized to revive a jury trial right that already has been "deemed waived."  In many cases, the circuit court would be hard pressed to deny the motions to adjourn. It strains credulity that manipulative intent can be, in the real world, detected easily and resolved quickly without risking reversal on appeal. 

In the past, while there were limits to adjournments in chapter 51 proceedings, the consequences for giving the parties a little more time was minimal....Now circuit courts are faced with the prospect that, if more time is given, the potential committee could revive his jury trial right. Proceedings could be delayed for weeks at a time, administrative schedules could be turned upside down, a not insignificant amount of judicial resources could be expended, and an individual may be unnecessarily kept in detention for a longer period of time. Circuit courts rationally may not be as willing to entertain motions to adjourn or motions for withdrawal of counsel.... It is certainly possible that chapter 51 litigants will now face courts less flexible and tolerant in their scheduling.... ​

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