Walworth County v. M.R.M., 2022AP140-FT, certification filed 7/14/22, certification granted, 9/14/22, reversed, 2023 WI 59; District 2; case activity
1. Does the Wisconsin Supreme Court’s decision in Waukesha County v. E.J.W., 2021 WI 85, ¶38, 399 Wis. 2d 471, 966 N.W.2d 590, have retroactive application or only prospective application?
2. In a ch. 51 case involving a petition to extend a commitment order, is circuit court competency determined from the expiration of the earlier commitment order or from the expiration of the extension order, even where the extension order is determined on appeal to be invalid?
The second issue appears to be driving this certification, and the court of appeals’ framing of it is confusing. So let’s start there.
SCOW holds that when a circuit court fails to conduct an extension hearing before a commitment expires the circuit court loses competency to extend the commitment. Portage County v. J.W.K., 2019 WI 54, ¶20, 386 Wis. 2d 672, 927 N.W.2d 509 (citing G.O.T. v. Rock Cty., 151 Wis. 2d 629, 633, 445 N.W.2d 697 (Ct. App. 1989)). Suppose that the circuit court holds a timely hearing and enters an extension order for a commitment that expires on January 1st. Seven months later, an appellate court reverses the extension order and remands the case. Under J.W.K. and G.O.T., the circuit courts lacks competency to conduct a new extension hearing on remand because January 1st is long gone.
SCOW also holds that when a commitment order expires during the course of an appeal, the appellate court cannot remand the case for further proceedings because the circuit court lacks competency to act after a commitment expires. See E.J.W., 399 Wis. 2d 471, ¶40 n.10 and Sheboygan County v. M.W., 2022 WI 40, ¶38, 5 n.2, ___ Wis. 2d ___, 974 N.W.2d 733.
These two rationales regarding circuit court competency to conduct remand proceedings are not mutually exclusive. One applies when the appellate court reverses an expired commitment order. The other applies whenever the appellate court reverses any commitment order–even an order that has not expired. Either way, the circuit court lacks competency to conduct remand proceedings.
M.R.M.’s extension order has not yet expired. So the court of appeals says it needs clear guidance on circuit court competency to conduct remand proceedings. It’s also worried about the scenario where an appellate court reverses an unexpired commitment order, and the circuit court retains competency to conduct remand proceedings. Is the individual subject to commitment and involuntary meds during the remand period? Certification at 11.
Unless the court of appeals is asking SCOW to overrule J.W.K. and G.O.T., there is no cause for alarm. Under these cases, the court of appeals may reverse M.R.M.’s order, but it may not remand the case for a do-over extension hearing because the circuit lack competency to conduct it. This result doesn’t leave the county helpless. If it believes M.R.M. should still be under commitment and medication orders it knows what to do.
Now, back to the first issue. In Marathon County v. R.J.O., 2020 WI App 20, 392 Wis. 2d 157, 943 N.W.2d 898, the court of appeals held that under §51.20(11)(a), an individual waives the right to a jury trial by failing to demand one at least forty-eight hours before the originally scheduled final hearing date, even if that hearing is adjourned and such a jury demand is made at least forty-eight hours before the final hearing actually takes place. A year and a half later E.J.W. overruled R.J.O. on this point.
M.R.M. asserts that the circuit court erroneously denied him a jury trial when he demanded one 48 hours before his adjourned recommitment hearing. The problem is that R.J.O. was in effect at the time of M.R.M’s recommitment hearing. If R.J.O. applies, M.R.M. loses. The county therefore urges the court of appeals to hold that E.J.W. applied prospectively only. The court of appeals says: “We could of course do that; however . . . it would seem more appropriate for the supreme court” to do it. Certification, at 6.
