Wis. Stat. section 51.20(11)(a) requires that a person facing involuntary commitment invoke their right to a jury trial 48 hours before the time set for final hearing or waive the right.

In Waukesha County v. E.J.W., 2020AP370 (Nov. 23, 2021) the court held that a person who failed to demand a jury 48 hours before the initial time set for a final hearing but demanded a jury 48 hours before the time set for a rescheduled hearing complied with the statute.

The decision came on a 4-3 vote. Justice Ann Walsh Bradley wrote the majority opinion. Joining her in the opinion were Justices Rebecca Dallet, Brian Hagedorn, and Jill Karofsky. Chief Justice Annette Ziegler dissented, joined by Justices Patience Roggensack and Rebecca Grassl Bradley. 

Final Hearing Re-scheduled

In April 2014, a Waukesha County Circuit Court committed E.J.W. after finding that he was mentally ill, dangerous, and a proper subject for treatment. The court extended E.J.W.’s commitment five times.

On Feb. 7, 2019, Waukesha County filed a petition to extend E.J.W.’s commitment for a sixth time. The court sent a notice to E.J.W. and his public defender stating that the final hearing on the county’s petition had been scheduled for March 5, 2019, at 1:15 p.m.  

At the March 5 hearing, E.J.W. told the court that his lawyer hadn’t called him. E.J.W. asked the court to appoint him a new lawyer.

The county’s lawyer then told the court that E.J.W. had not made a jury demand. E.J.W. had waived his right to a jury trial by failing to make the demand, the lawyer argued.

The lawyer pointed out that E.J.W. knew how to make a jury demand because he had done so before the final hearing in one of his prior commitments. The lawyer also said that E.J.W. had failed to update his contact information, which led to E.J.W.’s lawyer calling the wrong number.

After hearing the county’s argument, E.J.W. made an oral demand for a jury trial. The court declined to rule on that demand but it did grant E.J.W.’s request for a new lawyer, then adjourned the hearing until March 12, 2019, at 1:15 p.m.

The public defender’s office appointed E.J.W. a new lawyer on March 7. On March 8, the lawyer made a jury demand on E.J.W.’s behalf.

On March 11, the court denied the demand. The court ruled that section 51. 20(11)(a) required E.J.W. to make a jury demand 48 hours before the March 5 hearing.

E.J.W. appealed. In an unpublished opinion, the court of appeals affirmed the circuit court’s ruling.

‘Two final hearings’

Before the supreme court, the county argued that there can be only one time set for a final hearing, and in E.J.W.’s case that time was 1:15 p.m. on March 5, 2019. Because E.J.W. did not make a jury demand by 1:15 p.m. on March 3, he’d waived his right to a jury trial.

E.J.W. argued that the adjournment of the March 5, 2019, hearing to a hearing held at 1:15 p.m. on March 12 reset the time set for the final hearing. Therefore, the jury demand made by his lawyer on March 8, 2019, complied with the statute and he was entitled to a jury trial.

The majority agreed with E.J.W.

“Here, there were two final hearings set and both had a ‘time set for final hearing,’” Justice A.W. Bradley wrote. “The first scheduled final hearing was adjourned and rescheduled, which simply means there was a new ‘time set for final hearing.’”

Purpose Behind The Statute

The context of section 51.20(11)(a) indicates that the legislature chose a 48-hour deadline for making a jury demand to give the court enough time to find six jurors and the county enough time to prepare its case, Justice A.W. Bradley reasoned. Allowing a rescheduled hearing to reset that timeline would not contravene the purpose behind the statute, A.W. Bradley wrote.

“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,” she wrote.

The county raised the specter of manipulation by persons facing involuntary commitments; they could delay final hearings to the point where witnesses might be unavailable, the county argued.

But circuit courts could determine for themselves whether the involuntary commitment process was being manipulated, Justice A.W. Bradley noted.

“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.”

Bradley acknowledged that the majority’s holding contravened the holding in Marathon County v. R.J.O., a court of appeals case. The holding announced in paragraphs 38-41 of that case were therefore overruled, Justice A.W. Bradley wrote. 

‘Shifting and Unpredictable Rule’

In her dissent, Chief Justice Ziegler wrote that the “majority in this case has replaced a clear jury waiver standard in chapter 51 commitment proceedings with a shifting and unpredictable rule.”

The plain meaning of the statute did not support such a “departure from sound judicial administration,” she wrote.

Chief Justice Ziegler fixed on the dictionary meaning of the word “the” to conclude that there can only be one such time, regardless of whether a final hearing is rescheduled.  According to the Oxford English Dictionary, “the” denotes “one of a class of persons, things, events.”

“Simply because, in is discretion, the circuit court allowed E.J.W.’s counsel to withdraw and provided E.J.W. with additional time to consult with his new attorney, does not mean that E.J.W.’s waiver did not take place on March 3,” Chief Justice Ziegler wrote. 

The majority’s holding in effect added words to the statute, Chief Justice Ziegler reasoned. Section 51.20(11)(a) “does not state “‘48 hours in advance of the first and rescheduled time set for final hearing,’” she wrote, quoting from the majority opinion.

Furthermore, the chief justice wrote, the majority’s interpretation of section 51.20(11)(a) would interfere with the swift resolution of chapter 51 proceedings – something that would harm the liberty interests of persons facing involuntary commitment.

Chief Justice Ziegler, a former circuit court judge, had less faith in the ability of circuit courts to manage attempts by persons seeking rescheduled final hearings to game the system.

“It strains credulity that manipulative intent can be, in the real world, detected easily and resolved quickly without risking reversal on appeal,” Chief Justice Ziegler wrote.