Waukesha Cnty. v. E.J.W. (In re Mental Commitment of E.J.W.)

• Decision Date: 23 November 2021
• Docket Number: No. 2020AP370,2020AP370
• Citation: 2021 WI 85,966 N.W.2d 590,399 Wis.2d 471
• Parties: In the MATTER OF the Mental COMMITMENT OF E.J.W.: Waukesha County, Petitioner-Respondent, v. E.J.W., Respondent-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

399 Wis.2d 471

966 N.W.2d 590

2021 WI 85

In the MATTER OF the Mental COMMITMENT OF E.J.W.:Waukesha County, Petitioner-Respondent,

v.E.J.W., Respondent-Appellant-Petitioner.

No. 2020AP370

Supreme Court of Wisconsin.

Oral Argument: September 9, 2021

Opinion Filed: November 23, 2021

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.

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.

ANN WALSH BRADLEY, J.

¶1 The petitioner, E.J.W., seeks review of an unpublished, authored decision of the court of appeals affirming the circuit court's order extending his involuntary commitment.¹ He argues that the circuit court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 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 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 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., 2020 WL 6479204 (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, 943 N.W.2d 898. 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.

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, 927 N.W.2d 509.

¶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.

¶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, 878 N.W.2d 109 (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....