2021 WI 85
SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP370
COMPLETE TITLE: In the matter of the mental commitment of
E.J.W.:
Waukesha County,
Petitioner-Respondent,
v.
E.J.W.,
Respondent-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 395 Wis. 2d 295,953 N.W.2d 122
(2020 – unpublished)
OPINION FILED: November 23, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 9, 2021
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: Paul Bugenhagen, Jr.
JUSTICES:
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined.
ZIEGLER, C.J., filed a dissenting opinion, in which ROGGENSACK
and REBECCA GRASSL BRADLEY, JJ., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
filed by Lauren J. Breckenfelder, assistant state public
defender. There was an oral argument by Lauren J. Breckenfelder.
For the petitioner-respondent, there was a brief filed by
Zachary M. Bosch, assistant corporation counsel. There was an
oral argument by Zachary M. Bosch.
2021 WI 85
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP370
(L.C. No. 2014ME227)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the mental commitment of
E.J.W.:
Waukesha County, FILED
Petitioner-Respondent,
NOV 23, 2021
v.
Sheila T. Reiff
Clerk of Supreme Court
E.J.W.,
Respondent-Appellant-Petitioner.
ANN WALSH BRADLEY, J., delivered the majority opinion of the
Court, in which DALLET, HAGEDORN, and KAROFSKY, JJ., joined.
ZIEGLER, C.J., filed a dissenting opinion, in which ROGGENSACK
and REBECCA GRASSL BRADLEY, JJ., joined.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANN WALSH BRADLEY, J. The petitioner, E.J.W., seeks
review of an unpublished, authored decision of the court of
appeals affirming the circuit court's order extending his
No. 2020AP370
involuntary commitment.1 He argues that the circuit court
incorrectly determined that his jury trial demand was untimely.
¶2 Pursuant to Wis. Stat. § 51.20(11)(a), "A jury trial
is deemed waived unless demanded at least 48 hours in advance of
the time set for final hearing." E.J.W. did not request a jury
trial before the first time set for his final hearing, but that
hearing was adjourned and rescheduled. He demanded a jury trial
more than 48 hours before the rescheduled date, and he argues
that this request was timely under § 51.20(11)(a) so as to
entitle him to a jury trial.
¶3 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,
§ 51.20(11)(a) allows a jury demand to be filed up until 48
hours prior to a rescheduled final hearing.
¶4 Accordingly, we reverse the decision of the court of
appeals.
I
¶5 E.J.W. was initially committed on April 15, 2014, for
a period of six months. The circuit court determined that he
Waukesha County v. E.J.W., No. 2020AP370, unpublished slip
1
op. (Wis. Ct. App. Nov. 4, 2020) (affirming the order of the
circuit court for Waukesha County, Paul R. Bugenhagen, Jr.,
Judge). The appeal was decided by one judge, then-Chief Judge
Lisa Neubauer, pursuant to Wis. Stat. § 752.31(2)(d) (2019-20).
All subsequent references to the Wisconsin Statutes are to
the 2019-20 version unless otherwise indicated.
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No. 2020AP370
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.
¶6 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.
¶7 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.
¶8 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. The
County noted that E.J.W. was aware of the jury demand procedure
because he had made a jury demand in one of his previous
commitments. It further argued that although E.J.W. was unable
to connect with his lawyer, E.J.W. did not comply with his
obligation to keep his contact information updated, which caused
his attorney to have the wrong phone number. In response to the
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No. 2020AP370
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.
¶9 The public defender's office appointed new counsel for
E.J.W. on March 7, 2019, and one day later, the newly appointed
counsel filed a written jury demand. On March 11, 2019, the
circuit court denied E.J.W.'s demand for a jury trial in a brief
order. It reasoned: "The demand for a Jury Trial is hereby
denied pursuant to § 51.20(11)(a) Wis. Stat. The matter was set
for a final hearing on March 5, 2019 and no jury demand was made
prior to the hearing."
¶10 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." The circuit court explained:
To find otherwise is going to cause an absurdity in
the statutes. It would allow someone to come in, ask
for new counsel, send a letter saying I'm sick, I
can't make it there today. I need to have some more
time to come and have the hearing and another hearing
would get set for the convenience of an individual and
it would reset the clock. The Court finds that that
would be an absurd way for us to handle it because
there would be no reason to have the time limit of 48
hours before the final hearing.
¶11 Ultimately, E.J.W. reached an agreement with the
County to waive the hearing and accept an eight-month extension
of his commitment. When questioned by the circuit court, E.J.W.
explained that he was entering this agreement "because I am
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No. 2020AP370
going to lose no matter what." The circuit court subsequently
extended E.J.W.'s commitment for the agreed-upon eight months.
¶12 E.J.W. appealed, and the court of appeals affirmed the
circuit court. Waukesha County v. E.J.W., No. 2020AP370,
unpublished slip op. (Wis. Ct. App. Nov. 4, 2020). The court of
appeals relied on Marathon County v. R.J.O., 2020 WI App 20,
¶41, 392 Wis. 2d 157, 943 N.W.2d 898, which had recently
addressed the issue before the court in this case. E.J.W., No.
2020AP370, ¶¶9-10. It rejected E.J.W.'s challenge consistent
with the R.J.O. court's determination that Wis. Stat.
§ 51.20(11)(a) "requires a subject individual to request a jury
trial at least forty-eight hours before 'the time set for final
hearing,' not at least forty-eight hours before the final
hearing actually occurs." R.J.O., 392 Wis. 2d 157, ¶41. E.J.W.
petitioned for this court's review.
II
¶13 We must determine first whether E.J.W.'s challenge to
his recommitment is moot. Mootness presents a question of law
we review independently of the determinations of the circuit
court and court of appeals. Marathon County v. D.K., 2020 WI 8,
¶16, 390 Wis. 2d 50, 937 N.W.2d 901.
¶14 This case additionally requires us to interpret and
apply Wis. Stat. § 51.20(11)(a). Statutory interpretation and
application are likewise questions of law we review
independently of the determinations rendered by the circuit
court and court of appeals. Southport Commons, LLC v. DOT,
2021 WI 52, ¶19, 397 Wis. 2d 362, 960 N.W.2d 17.
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No. 2020AP370
III
¶15 We begin by briefly addressing the threshold question
of whether this appeal is moot. Subsequently, we address
whether E.J.W.'s jury demand was timely pursuant to Wis. Stat.
§ 51.20(11)(a).
A
¶16 Generally, appellate courts decline to reach moot
issues. Portage County v. J.W.K., 2019 WI 54, ¶12, 386
Wis. 2d 672, 927 N.W.2d 509. "An issue is moot when its
resolution will have no practical effect on the underlying
controversy." PRN Assocs. LLC v. DOA, 2009 WI 53, ¶25, 317
Wis. 2d 656, 766 N.W.2d 559. If all issues are moot, an appeal
should be dismissed. J.W.K., 386 Wis. 2d 672, ¶12.
¶17 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. See id., ¶14 ("An appeal of an
expired commitment order is moot.").
¶18 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.
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No. 2020AP370
¶19 This court may decide to address an otherwise moot
issue if the issue (1) is of great public importance; (2)
involves the constitutionality of a statute; (3) occurs so
frequently that a definitive decision is necessary to guide
circuit courts; (4) is likely to arise again and a decision of
the court would alleviate uncertainty; or (5) will likely be
repeated, but evades appellate review because the appellate
review process cannot be completed or even undertaken in time to
have a practical effect on the parties. Id., ¶12; Winnebago
County v. Christopher S., 2016 WI 1, ¶32, 366 Wis. 2d 1, 878
N.W.2d 109.
¶20 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.3 See Christopher S., 366 Wis. 2d 1, ¶32
2 Because mootness exceptions apply that allow us to reach
the merits of E.J.W.'s argument, we need not address his
contention that collateral consequences of his commitment render
the issue not moot.
3 In Portage County v. J.W.K., 2019 WI 54, 386 Wis. 2d 672,
927 N.W.2d 509, the court determined that no mootness exceptions
applied. J.W.K. raised a fact-specific sufficiency of the
evidence challenge unlikely to have any impact outside the
bounds of the factual circumstances of that case. Id., ¶30. In
contrast, here E.J.W. raises a legal question regarding the
interpretation of Wis. Stat. § 51.20(11)(a) that will affect
mental health commitment proceedings across the state.
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No. 2020AP370
(citing Outagamie County v. Melanie L., 2013 WI 67, ¶80, 349
Wis. 2d 148, 833 N.W.2d 607) (concluding that an otherwise moot
issue should be addressed due to its likelihood of evading
appellate review where "the order[s] appealed from will have
expired before an appeal is completed"). 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.
B
¶21 Having determined that at least one exception to
mootness applies, we turn next to address the merits of E.J.W.'s
argument.
¶22 Wisconsin Stat. § 51.20(11)(a) "confers upon
individuals facing civil commitment a right to a jury trial."
S.B. v. Racine County, 138 Wis. 2d 409, 413, 406 N.W.2d 408
(1987). It further sets the parameters and requirements for
jury trials in ch. 51 mental health commitment cases.
¶23 Section 51.20(11)(a) provides in relevant part:4
4 In full, Wis. Stat. § 51.20(11)(a) provides:
If before involuntary commitment a jury is demanded by
the individual against whom a petition has been filed
under sub. (1) or by the individual's counsel if the
individual does not object, the court shall direct
that a jury of 6 people be selected to determine if
the allegations specified in sub. (1)(a) or (ar) are
true. A jury trial is deemed waived unless demanded
at least 48 hours in advance of the time set for final
hearing, if notice of that time has been previously
provided to the subject individual or his or her
counsel. If a jury trial demand is filed within 5
days of detention, the final hearing shall be held
within 14 days of detention. If a jury trial demand
is filed later than 5 days after detention, the final
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No. 2020AP370
If before involuntary commitment a jury is demanded by
the individual against whom a petition has been filed
under sub. (1) or by the individual's counsel if the
individual does not object, the court shall direct
that a jury of 6 people be selected to determine if
the allegations specified in sub. (1)(a) or (ar) are
true. A jury trial is deemed waived unless demanded
at least 48 hours in advance of the time set for final
hearing, if notice of that time has been previously
provided to the subject individual or his or her
counsel.
¶24 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.
hearing shall be held within 14 days of the date of
demand. If an inmate of a state prison, county jail
or house of correction demands a jury trial within 5
days after the probable cause hearing, the final
hearing shall be held within 28 days of the probable
cause hearing. If an inmate of a state prison, county
jail or house of correction demands a jury trial later
than 5 days after the probable cause hearing, the
final hearing shall be held within 28 days of the date
of demand.
5 Although we focus on the "time set for final hearing"
language, we observe also that Wis. Stat. § 51.20(11)(a)
contains conditional language as follows: "if notice of that
time has been previously provided to the subject individual or
his or her counsel." There was no argument presented that
improper notice was given for the rescheduled hearing in this
case.
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No. 2020AP370
¶25 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.6
¶26 In evaluating the parties' competing arguments, we
begin by examining the language of the statute. State ex rel.
Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110. If the meaning of the statute is
plain, we need not inquire further. Id.
¶27 "Statutory language is given its common, ordinary, and
accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." Id. We also interpret statutory
6 The dissent begins with a recitation of "what is not
disputed in this case." Dissent, ¶43. It observes that E.J.W.
is not challenging that he was mentally ill or a proper subject
for commitment. Id. True enough. But whatever the ultimate
result, the process by which a commitment is obtained matters.
See Langlade County v. D.J.W., 2020 WI 41, ¶43, 391 Wis. 2d 231,
942 N.W.2d 277 ("With such an important liberty interest at
stake, the accompanying protections should mirror the serious
nature of the proceeding.")
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No. 2020AP370
language "in the context in which it is used; not in isolation
but as part of a whole; in relation to the language of
surrounding or closely-related statutes; and reasonably, to
avoid absurd or unreasonable results." Id., ¶46.
¶28 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 Wis. Stat. § 51.20(11)(a), 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."
¶29 E.J.W.'s interpretation also fits in with the context
of Wis. Stat. § 51.20(11)(a) and ch. 51 as a whole. See State
v. Williams, 2014 WI 64, ¶17, 355 Wis. 2d 581, 852 N.W.2d 467
("In determining a statute's plain meaning, the scope, context,
structure, and purpose are important."). Wisconsin Stat.
§ 51.20(11)(a)'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
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No. 2020AP370
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.
¶30 Further, E.J.W.'s reading is more in line with the
larger context of ch. 51. Both the statutes and case law
recognize the significant liberty interests at stake in a ch. 51
proceeding. See Wis. Stat. § 51.001; Langlade County v. D.J.W.,
2020 WI 41, ¶¶42-43, 391 Wis. 2d 231, 942 N.W.2d 277.
¶31 As such, ch. 51 contains many provisions designed to
offer procedural and substantive protections to the person
subject to commitment. See State ex rel. Watts v. Combined
Cmty. Servs. Bd. of Milwaukee Cnty., 122 Wis. 2d 65, 91, 362
N.W.2d 104 (1985) (referring to the "procedural protections"
afforded by Wis. Stat. §§ 51.15 and 51.20). For example,
"manifest in the language of Wis. Stat. § 51.20(1)(am)" is the
requirement that the circuit court make specific factual
findings tied to a standard of dangerousness. D.J.W., 391
Wis. 2d 231, ¶¶40-41. This requirement "provides increased
protection to patients to ensure that recommitments are based on
sufficient evidence." Id., ¶43. Likewise, the purpose of the
time limit in Wis. Stat. § 51.20(7)(a) "is to prevent
individuals from being detained any longer than necessary before
holding a hearing to determine probable cause." Dodge County v.
Ryan E.M., 2002 WI App 71, ¶11, 252 Wis. 2d 490, 642 N.W.2d 592.
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No. 2020AP370
¶32 It is consistent with these provisions to read Wis.
Stat. § 51.20(11)(a) 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. See Wis. Indus. Energy Grp.,
Inc. v. Pub. Serv. Comm'n, 2012 WI 89, ¶15, 342 Wis. 2d 576, 819
N.W.2d 240 (setting forth the principle that "courts will favor
an interpretation of statutory language that fulfills the
statute's purpose").
¶33 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.
¶34 However, the County's argument ignores the fact that
any adjournment request must go through the circuit court. See
Wis. Stat. § 51.20(10)(e) (setting forth that "[a]t the request
of the subject individual or his or her counsel the final
hearing under par. (c) may be postponed" no more than seven
calendar days (emphasis added)). Whether to grant or deny an
adjournment is a decision left to the circuit court's
discretion. State v. Leighton, 2000 WI App 156, ¶27, 237
The importance of a jury trial in the mental health
7
commitment context is evidenced by the fact that a commitment
order can be temporarily extended up to 14 days to accommodate a
jury demand. See G.O.T. v. Rock County, 151 Wis. 2d 629, 633-
34, 445 N.W.2d 697 (Ct. App. 1989).
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No. 2020AP370
Wis. 2d 709, 616 N.W.2d 126; see also State ex rel. Collins v.
Am. Fam. Mut. Ins. Co., 153 Wis. 2d 477, 483, 451 N.W.2d 429
(1990) ("Circuit courts possess inherent discretionary authority
to control their dockets with economy of time and effort.").
¶35 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.8
8 The dissent raises the specter that this decision will
cause ch. 51 proceedings to 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." Dissent, ¶61. This argument ignores
the additional statutory deadline as set forth in the latter
half of Wis. Stat. § 51.20(11)(a), which counters the dissent's
speculative consequences.
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No. 2020AP370
¶36 Thus, 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, § 51.20(11)(a) allows a jury demand to be filed
up until 48 hours prior to a rescheduled final hearing.
Consequently, the recommitment at the center of this case must
be vacated.
¶37 We recognize that our conclusion is at odds with the
court of appeals' determination in R.J.O., 392 Wis. 2d 157. In
R.J.O., the court of appeals addressed a similar situation where
a scheduled final hearing was adjourned and rescheduled. No
jury demand was filed at least 48 hours prior to the first time
set for the final hearing, but counsel filed two jury demands at
least 48 hours before the time set for the rescheduled hearing.
Id., ¶¶39-40.
¶38 The court of appeals rejected R.J.O.'s argument that
her jury demands were timely. It concluded that Wis. Stat.
Specifically, "If a jury demand is filed later than 5 days
after detention, the final hearing shall be held within 14 days
of the date of demand." Wis. Stat. § 51.20(11)(a). This
subsection "necessarily implies that a commitment is extended to
accommodate a demand for a jury trial, as long as the final
hearing and jury trial are held within fourteen days of the
demand. Without the implied extension, the demand for a jury
frequently could not be accommodated." G.O.T., 151 Wis. 2d at
634. Due to this statutory constraint, even where a jury trial
is demanded in advance of a rescheduled final hearing, the
maximum "delay" is 14 days from the date of the demand. But see
Wis. Stat. § 51.20(11)(a) (setting forth a 28-day timeframe for
incarcerated individuals).
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No. 2020AP370
§ 51.20(11)(a) "requires a subject individual to request a jury
trial at least forty-eight hours before 'the time set for final
hearing,' not at least forty-eight hours before the final
hearing actually occurs." Id., ¶41. The court of appeals
reached this conclusion without engaging in the statutory
analysis we conduct above, and it accordingly arrived at an
erroneous conclusion. We therefore overrule the R.J.O. court's
conclusion as reflected in paragraphs 38 through 41 of that
opinion.9
¶39 In sum, 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, § 51.20(11)(a) allows a jury demand to be filed
up until 48 hours prior to a rescheduled final hearing.
9 Generally, "when the supreme court overrules a court of
appeals decision, the court of appeals decision no longer
possesses any precedential value, unless this court expressly
states otherwise." Blum v. 1st Auto & Cas. Ins. Co., 2010 WI
78, ¶42, 326 Wis. 2d 729, 786 N.W.2d 78. To be clear, we are
expressly stating otherwise, and overrule the R.J.O. court's
conclusion in paragraphs 38 through 41 only. See Marathon
County v. R.J.O., 2020 WI App 20, ¶¶38-41, 392 Wis. 2d 157, 943
N.W.2d 898. We do not disturb its determinations on any other
issues before the court in that case, including the central
holding that "R.J.O. received proper notice of the recommitment
hearing because the requisite notice was provided to her
attorney." Id., ¶3.
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No. 2020AP370
¶40 Accordingly, we reverse the decision of the court of
appeals.10
By the Court.—The decision of the court of appeals is
reversed.
10We simply reverse the decision of the court of appeals
rather than remanding for a jury trial because the specific
recommitment at issue in this case has expired and accordingly
the circuit court has lost competency to act. See G.O.T., 151
Wis. 2d at 631 (determining that person subject to commitment
extension was entitled to jury trial but that the circuit court
lost competency by failing to hear and decide the petition
before the commitment had expired and that as a result the
petition should be dismissed); J.W.K., 386 Wis. 2d 672, ¶20
(explaining that "[t]he circuit court must hold a hearing on the
petition for extension before the previous order expires or it
loses competency to extend the commitment"). This determination
does not affect the validity of any subsequent extensions of
commitment. J.W.K., 386 Wis. 2d 672, ¶21 (setting forth that
the reversal of a commitment order "does not retroactively
deprive the circuit court that issued a subsequent commitment
order of competency").
17
No. 2020AP370.akz
¶41 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). 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.
¶42 In February and March 2019, E.J.W. was subject to a
mental health recommitment proceeding under Wis. Stat. ch. 51.
After several notices, his final recommitment hearing was set
for March 5, 2019. E.J.W. did not file a jury demand by
March 3, 2019, 48 hours prior to the hearing, and under Wis.
Stat. § 51.20(11)(a), his right to a jury trial was "deemed
waived."
I
¶43 Before discussing the merits, it's worth noting what
is not disputed in this case. First, neither E.J.W. nor the
majority dispute that E.J.W. was mentally ill at the time of the
recommitment hearing in March 2019. Outside E.J.W.'s right to a
jury, no one disputes that he was a proper subject for
commitment under chapter 51. See Langlade Cnty. v. D.J.W., 2020
WI 41, ¶29, 391 Wis. 2d 231, 942 N.W.2d 277 (citing Wis. Stat.
§ 51.20(1)(a)1.-2.) ("For a person to be subject to a chapter 51
involuntary commitment, three elements must be fulfilled: the
subject individual must be (1) mentally ill; (2) a proper
subject for treatment; and (3) dangerous to themselves or
others."); Kriesel v. Kriesel, 35 Wis. 2d 134, 139, 150
N.W.2d 416 (1967) (citation omitted) ("A judgment rendered by a
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court having jurisdiction of the parties and the subject matter,
unless reversed or annulled in some proper proceeding, is not
open to contradiction or impeachment, in respect of its
validity, verity, or binding effect . . . ."). Qualification
for commitment under chapter 51 could have been challenged by
E.J.W. at the circuit and appellate court levels, but E.J.W.
chose not to pursue that claim. There is no indication under
law or fact that E.J.W. was improperly placed into compelled
mental health treatment.
¶44 Second, this case does not present claims of
ineffective assistance of counsel.1 The majority accurately
cites the allegations E.J.W. made at the final hearing scheduled
for March 5, 2019. E.J.W. alleged that he gave his attorney his
phone number and the attorney "never called [him] and [E.J.W.
and his attorney] never prepped." According to E.J.W., his
attorney was "unprepared for court."
¶45 Such allegations, and their potential implication for
fundamental fairness, due process, and E.J.W.'s right to
counsel, have no relevance to the issues in this case. E.J.W.
has not presented a legal claim that his counsel was incompetent
or constitutionally deficient. Further, E.J.W.'s counsel has
never been given the opportunity to respond and defend his
professional performance; there was never a need for the County
The court of appeals noted this fact but it is
1
conspicuously missing from the majority decision. See Waukesha
Cnty. v. E.J.W., No. 2020AP370, unpublished slip op., ¶11 (Wis.
Ct. App. Nov. 4, 2020).
2
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to investigate and produce evidence contradicting E.J.W.'s
allegations.
¶46 Third, this case does not involve a legal challenge to
the chapter 51 jury demand deadline established under Wis. Stat.
§ 51.20(11)(a). 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.
¶47 Thus, the only question under Wis. Stat.
§ 51.20(11)(a) 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?2 Section 51.20(11)(a) provides a
straightforward and rational answer: "[A]t least 48 hours in
advance of the time set for final hearing . . . ."
II
¶48 There is no dispute that the County and circuit court
provided E.J.W. and his attorney several notices of the
recommitment hearing date and time. On February 7, 2019, the
circuit court notified E.J.W. in a letter that his extension of
commitment hearing was scheduled for "Tuesday, March 5, 2019 at
1:15 p.m." The next day, on February 8, 2019, the circuit court
issued an order appointing E.J.W.'s counsel. The order again
stated that the hearing was set for March 5, 2019, at 1:15 p.m.
As the majority explains in a footnote, "the process by
2
which a commitment is obtained matters." Majority op., ¶25 n.6.
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Finally, on February 18, 2019, 15 days prior to the final
hearing, both E.J.W. and the Office of the State Public Defender
were provided a list of witnesses the County intended to call.
The notice also stated that the recommitment hearing would take
place "on Tuesday, March 5, 2019."
¶49 It is apparent that the defense was made well aware of
the date and time of final hearing. Predictably, the circuit
court opened E.J.W.'s recommitment proceedings at or around 1:15
p.m. on March 5, 2019.
¶50 Under Wis. Stat. § 51.20(11)(a), "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. § 51.20(11)(a).
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.
¶51 "[S]tatutory interpretation begins with the language
of the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry. Statutory language is given its
common, ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical or
special definitional meaning." State ex rel. Kalal v. Cir. Ct.
for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110
(citations and quotations omitted). In addition, "statutory
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language is interpreted in the context in which it is used; not
in isolation but as part of a whole; in relation to the language
of surrounding or closely-related statutes; and reasonably, to
avoid absurd or unreasonable results." Id., ¶46.
¶52 Wisconsin Stat. § 51.20(11)(a) states: "A jury trial
is deemed waived unless demanded at least 48 hours in advance of
the time set for final hearing, if notice of that time has been
previously provided to the subject individual or his or her
counsel." The statute required E.J.W. to file a jury demand 48
hours prior to "the time set for final hearing." "The" is
defined as "denoting one of a class of persons, things, events,"
while "set" is defined as "[t]o put . . . in a definite place"
and "fix." The, Oxford English Dictionary (2021); Set, Oxford
English Dictionary (2021). Thus, 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.
¶53 Simply because, in its 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. See State
v. Robinson, 145 Wis. 2d 273, 278, 426 N.W.2d 606 (1988) ("The
question of whether an appointed counsel should be relieved and
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another appointed in his place is a matter of trial court
discretion."); Wis. Stat. § 51.20(10)(e) (emphasis added) ("At
the request of [the individual potentially subject to
commitment] or his or her counsel the final hearing . . . may be
postponed."). By the time the court proceedings began on
March 5, 2019, the jury demand deadline had already passed, and
E.J.W.'s right to demand a jury was under statute "deemed
waived." § 51.20(11)(a).
¶54 The majority asserts that requiring E.J.W. to submit a
jury demand 48 hours prior to the time set for final hearing
imputes the additional statutory language: "48 hours in advance
of the first time set for final hearing." See majority op., ¶2.
In this case, the addition of "first" would be entirely
unnecessary. It is undisputed that the circuit court set
March 5, 2019, at 1:15 p.m. as the time of the final hearing,
E.J.W. did not file a jury demand ahead of that deadline, and
court was called on March 5, 2019, only to have E.J.W. request
an adjournment. The deadline passed, and E.J.W.'s jury right
was permanently waived. Further, Wis. Stat. § 51.20(11)(a) also
does not state "48 hours in advance of the first and rescheduled
time set for final hearing." See majority op., ¶3.
¶55 More significantly, the legislature intentionally
chose "the time set" for hearing as the statutory deadline, not
the hearing itself. In numerous other statutory contexts, the
legislature has chosen to set jury demand deadlines based on the
occurrence of an event or hearing. See Wis. Stat. § 805.01(2)
(stating that, in civil cases, a jury demand must be made "at or
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before the scheduling conference or pretrial conference,
whichever is held first"); Wis. Stat. §§ 48.422(4), 48.31(2)
(establishing that a party to a termination of parental rights
proceeding must file a jury demand "before the end of the
initial hearing"); Wis. Stat. § 980.05(2) (stating that a jury
demand in a sexually violent person commitment proceeding must
be submitted "within 10 days after the probable cause hearing").
The legislature deliberately drafted § 51.20(11)(a), and we must
give effect to the statute's plain meaning. See Augsburger v.
Homestead Mut. Ins. Co., 2014 WI 133, ¶17, 359 Wis. 2d 385, 856
N.W.2d 874 (citation omitted) ("When the legislature chooses to
use two different words, we generally consider each separately
and presume that different words have different meanings.");
Kalal, 271 Wis. 2d 633, ¶44 ("We assume that the legislature's
intent is expressed in the statutory language.").
¶56 The plain reading of Wis. Stat. § 51.20 has been
consistently applied by the court of appeals. See Marathon
Cnty. v. R.J.O., 2020 WI App 20, ¶41, 392 Wis. 2d 157, 943
N.W.2d 898 ("Wisconsin Stat. § 51.20(11)(a) requires a subject
individual to request a jury trial at least forty-eight hours
before 'the time set for final hearing,' not at least forty-
eight hours before the final hearing actually occurs.");
Waukesha Cnty. v. E.J.W., No. 2020AP370, unpublished slip op.,
¶11 (Wis. Ct. App. Nov. 4, 2020) ("[W]e see no basis in [§
51.20] for concluding that an extension excuses the failure to
timely file a jury demand before the 'time set for the final
hearing.'"); Waukesha Cnty. v. M.J.S., No. 2021AP105-FT,
7
No. 2020AP370.akz
unpublished slip op., ¶¶9, 11 (Wis. Ct. App. Jul. 28, 2021)
(holding that the "time set" under § 51.20(11)(a) means the time
at which the hearing is "set," not the time at which the hearing
is "held," and reasoning that, because chapter 51 proceedings
have "strict procedural guideline[s]," allowing an adjournment
to delay a jury trial demand "would neuter the strict statutory
time limits our legislature has imposed").
¶57 The requirement that individuals file a jury demand 48
hours prior to the scheduled time of final hearing, not merely
by requesting an adjournment, M.J.S., No. 2021AP105, ¶2, by
lodging an oral motion at the hearing to replace appointed
counsel, or by flagrant absenteeism, R.J.O., 392 Wis. 2d 157,
¶7, 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. Marathon Cnty. v. D.K., 2020
WI 8, ¶28, 390 Wis. 2d 50, 937 N.W.2d 901; see Jefferson Cnty.
v. S.M.S., No. 2020AP814, unpublished slip op., ¶11 (Wis. Ct.
App. Mar. 11, 2021) (citing Dodge Cnty. v. Ryan E.M., 2002 WI
App 71, 252 Wis. 2d 490, 642 N.W.2d 592) ("The reason for strict
8
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time limits is to protect the significant liberty interests at
stake when an individual is detained for mental health
treatment.").
¶58 The majority's decision now leaves chapter 51
proceedings in uncharted waters. It holds that, despite
E.J.W.'s right to a jury trial having been "deemed waived" on
March 3, his jury trial rights were revived through an
adjournment on March 5. Neither E.J.W. nor the majority dispute
that if the recommitment hearing had been completed on March 5,
2019, as intended, E.J.W. would have had no right to a jury.
Just as Schrödinger's cat was both alive and dead, when court
was called on March 5, 2019, E.J.W.'s right to jury trial was at
the same time viable and waived. It was waived under the plain
text of Wis. Stat. § 51.20(11)(a) but according to the majority
opinion, it remained potentially alive, if the individual at
issue obtains an adjournment before the final hearing occurs.
¶59 Yet "waiver," under the plain language of Wis. Stat.
§ 51.20(11)(a), is not conditional or subject to revocation. It
is a final extinguishment of a right. See Brunton v. Credit
Corp., 2010 WI 50, ¶35, 325 Wis. 2d 135, 785 N.W.2d 302
(defining waiver in terms of a "relinquishment or abandonment");
State v. Ndina, 2009 WI 21, ¶31, 315 Wis. 2d 653, 761 N.W.2d 612
(describing a waived right as "lost"); Waiver, Black's Law
Dictionary (11th ed. 2019) (stating that waiver is a
"relinquishment or abandonment — express or implied — of a legal
right or advantage"); 31 C.J.S., Estoppel and Waiver § 93 (2021)
(footnotes omitted) ("A waiver when once made cannot be
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recalled, revived, expunged, or revoked, nor can the right
waived be reclaimed, at least not without the consent of the
adversary."); 28 Am. Jur. 2d Estoppel and Waiver § 186 (2021)
(footnote omitted) ("It is well settled that a waiver once made
is irrevocable even in the absence of consideration or of any
change in position of the party in whose favor the waiver
operates."); United State v. Sumner, 265 F.3d 532, 537 (7th Cir.
2001) ("Waiver extinguishes [an] error and precludes appellate
review."). 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.3
¶60 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
3It is noteworthy that the majority neither analyzes nor
discusses the significance of the term "deemed waived" in Wis.
Stat. § 51.20(11)(a), even though waiver is central to this
dispute.
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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." Wis. Stat. § 51.20(11)(a). 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.
¶61 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. See Wis. Stat.
§ 51.20(10)(e) (permitting postponement of a final hearing for
at most seven calendar days). 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
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unnecessarily kept in detention for a longer period of time.4
Circuit courts rationally may not be as willing to entertain
motions to adjourn or motions for withdrawal of counsel.5
Circuit courts have substantial discretion over the
administration of their proceedings. See Hefty v. Strickhouser,
2008 WI 96, ¶¶29, 31, 312 Wis. 2d 530, 752 N.W.2d 820 (noting
that a circuit court's "discretion to manage the court's
calendar" is of "critical importance" and is "inherent to [the
circuit court's] function"). It is certainly possible that
chapter 51 litigants will now face courts less flexible and
tolerant in their scheduling.
¶62 When drafting Wis. Stat. § 51.20(11)(a), the
legislature was wise not to create perverse incentives that may
The majority implies in a footnote that the monetary costs
4
and administrative challenges of a jury trial are "speculative."
Majority op., ¶35 n.8. Circuit court judges, balancing at times
extraordinary caseloads, and chapter 51 practitioners may
disagree with that contention. To the extent the majority
implies that keeping individuals detained without formal
adjudication for multiple weeks is inconsequential,
respectfully, the majority should consider its own statements on
the liberty interests implicated in chapter 51 proceedings. See
id., ¶25 n.6, ¶30 (noting the "important liberty interests at
stake" (quoting Langlade Cnty. v. D.J.W., 2020 WI 41, ¶43, 391
Wis. 2d 231, 942 N.W.2d 277)).
If the subject individual simply refuses to attend the
5
hearing, as occurred in Marathon Cnty. v. R.J.O., 2020 WI App
20, 392 Wis. 2d 157, 943 N.W.2d 898, the circuit court has the
option of rescheduling the hearing under Wis. Stat.
§ 51.20(10)(d) or entering a default judgment without further
proceedings. See Waukesha Cnty. v. S.L.L., 2019 WI 66, ¶43, 387
Wis. 2d 333, 929 N.W.2d 140. Presumably, individuals
participating in chapter 51 proceedings would prefer not having
their case decided in abstentia. However, after the decision in
this case, circuit courts may think differently.
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increase the number of unnecessary motions and decrease court
approval of meritorious motions. Now that the court has moved
away from the plain meaning of § 51.20(11)(a), only time will
tell how these perverse incentives will play out in future
chapter 51 litigation.
¶63 The majority mentions statutory context. It cites a
perceived purpose in chapter 51 proceedings to "offer procedural
and substantive protections to the person subject to
commitment." Majority op., ¶31. However, laws often exhibit
more than one purpose. See, e.g., Shands v. Castrovinci, 115
Wis. 2d 352, 357-59, 340 N.W.2d 506 (1983) (describing five
purposes of a tenant-landlord law); Force ex rel. Welcenbach v.
Am. Family Mut. Ins. Co., 2014 WI 82, ¶57, 356 Wis. 2d 582, 850
N.W.2d 866 (stating that Wisconsin's wrongful death statute has
two purposes). Like legislative history, considerations of
purpose, even if it is in some ways tied to statutory text, may
have "a tendency to become . . . an exercise in looking over a
crowd and picking out your friends." Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) (quotations
omitted); see also Rodriguez v. United States, 480 U.S. 522,
525-26 (1987) ("But no legislation pursues its purposes at all
costs. Deciding what competing values will or will not be
sacrificed to the achievement of a particular objective is the
very essence of legislative choice . . . .").
¶64 Of course, the driving purpose of commitment is to
provide needed medical help to the "mentally ill . . . drug
dependent [and] developmentally disabled." Wis. Stat.
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§ 51.20(1)(a)1. At its core, chapter 51 is also designed to
protect individuals from "physical harm to [themselves]" and to
prevent "physical harm to other individuals."
§ 51.20(1)(a)2.a.-b. While protecting the liberty interest of
the wrongly accused is of great importance, chapter 51
commitment proceedings undoubtedly protect the safety and health
of thousands throughout Wisconsin. The quick and efficient
adjudication of mental health commitments ensures dangerous
individuals, in need of treatment, are not left to face the
world on their own devices.
¶65 Further, Wis. Stat. § 51.20 is littered with deadlines
and tight timelines. For example, if an individual is detained
pending resolution of a chapter 51 case, an initial probable
cause hearing must take place "within 72 hours after the
individual is taken into custody." § 51.20(7)(a). Although the
individual can request an extension, presumably only for his
best interest, "the postponement [cannot] exceed 7 days from the
date of detention." Id. After a probable cause hearing, the
circuit court must schedule the final hearing "within 14 days
from the time of detention of the subject individual."
§ 51.20(7)(c). The final hearing may be postponed "[a]t the
request of the subject individual," but for no more than "7
calendar days." § 51.20(10)(e). Furthermore, in cases of
recommitment, "[t]he circuit court must hold a hearing on the
petition for extension before the previous order expires or it
loses competency to extend the commitment." Portage Cnty. v.
J.W.K., 2019 WI 54, ¶20, 386 Wis. 2d 672, 927 N.W.2d 509.
14
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¶66 These "strict procedural guidelines" vindicate the
personal liberties of individuals by ensuring an expedited
adjudication process; individuals are confined pending
adjudication for as little time as possible. Milwaukee Cnty. v.
Louise M., 205 Wis. 2d 162, 171, 555 N.W.2d 807 (1996). The
sound and efficient administration of justice is a clear purpose
of chapter 51. The majority, by rejecting a clear jury demand
deadline, and thereby inviting delays and potential abuse, has
undermined this purpose.
¶67 Ultimately, while "[a] plain meaning, text-based
approach to statutory interpretation certainly does not prohibit
the interpretation of a statute in light of its textually
manifest scope, context, or purpose," devised purpose cannot
"subordinate[] the statutory text." Kalal, 271 Wis. 2d 633, ¶49
n.8. "If [the] process of analysis yields a plain, clear
statutory meaning, . . . the statute is applied according to
this ascertainment of its meaning." Id., ¶46. Wisconsin Stat.
§ 51.20(11)(a) sets the deadline for jury demands as "48 hours
in advance of the time set for final hearing." E.J.W. did not
submit a jury demand 48 hours ahead of the time set for his
recommitment hearing, and his right to a jury trial was
statutorily waived.
III
¶68 E.J.W. was provided a deadline to file a jury demand.
Under Wis. Stat. § 51.20(11)(a), that deadline passed March 3,
2019, at 1:15 p.m., 48 hours prior to the time set for the final
hearing. Instead of enforcing a straightforward application of
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§ 51.20(11)(a), the majority has concluded that individuals
subject to chapter 51 commitment proceedings can revive their
waived rights to a jury trial.
¶69 In this decision, the majority has replaced a rational
and clear deadline with a loose and ever shifting rule. This
will reduce predictability for all those involved, and, likely,
it will reduce the quality of judicial administration in our
circuit courts. Because the majority's decision is not
supported by the plain text of Wis. Stat. § 51.20(11)(a), I
respectfully dissent.
¶70 I am authorized to state that Justices PATIENCE DRAKE
ROGGENSACK and REBECCA GRASSL BRADLEY join this dissent.
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1