July 13, 2023 – A 2022 decision that held a request for a jury trial in a commitment proceeding is timely if made at least 48 hours before the date of the actual, rather than the scheduled proceeding, applies retroactively, the Wisconsin Supreme Court has ruled.
In Walworth County v. M.R.M., 2023 WI 59 (June 29, 2023), the supreme court also held (5-2) that reversal, rather than remand, was appropriate because the circuit court lost competency over the case by improperly extending the commitment.
Justice Rebecca Dallet wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Brian Hagedorn, and Justice Jill Karofsky.
Justice Rebecca Bradley filed a concurrence. Chief Justice Anette Ziegler and Justice Patience Roggensack filed dissenting opinions.
Request for Jury Trial
In January 2021, a Walworth County Circuit Court ordered a six-month involuntary commitment for M.R.M.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
In July 2021, Walworth County (County) petitioned the circuit court to extend M.R.M.’s commitment. The circuit court set a hearing date, but then set a later date of Aug. 12, 2021 for the hearing, to give M.R.M. time to retain an attorney.
Aug. 12, 2021 was the date that M.R.M.’s initial commitment order was set to expire.
M.R.M. filed a demand for a jury trial on the petition at a point that was at least 48 hours before the Aug. 12 hearing but was not at least 48 hours before the original hearing date.
The circuit court concluded that under Marathon County v. R.J.O., 2020 WI App 20, 392 Wis. 2d 157, 943 N.W.2d 898, M.R.M. had waived his right to a jury trial because he failed to request a jury trial at least 48 hours before the time the original hearing was scheduled.
The circuit court extended M.R.M.’s commitment by 12 months.
After the circuit court extended M.R.M.’s commitment, the supreme court handed down Waukesha County v. E.J.W., 2021 WI 85, 399 Wis. 2d 471, 966 N.W.2d 590.
In that case, the supreme court partially overruled R.J.O,. and held that a person seeking a jury trial on a recommitment petition makes a timely request for a jury trial if he or she makes the request at least 48 hours before the time of the actual hearing, not the original hearing.
After the supreme court decided E.J.W., M.R.M. appealed the extension of his commitment. The Wisconsin Court of Appeals certified M.R.M.’s appeal to the supreme court.
M.R.M. argued that E.J.W. should apply retroactively to his case.
Justice Dallet began her opinion for the majority by explaining that the law generally presumes that civil decisions apply retroactively.
She reasoned that in M.R.M.’s case, two of the three factors traditionally used to determine whether a civil decision should apply retroactively weighed heavily in favor of applying E.J.W. retroactively: (1) applying E.J.W. retroactively would not impede the operation of the new rule; and (2) applying E.J.W. retroactively would not produce substantial inequities.
Regarding the first of those two factors, Dallet reasoned that applying E.J.W. retroactively would serve to implement the legislature’s policy choice, embodied in Wis. Rev. Stat. ch. 51, that a person subject to commitment are afforded due process protections.
Regarding the second, Justice Dallet reasoned that applying E.J.W. retroactively to M.R.M.’s case would prevent an inequity.
“The availability of a jury trial upon timely demand is one of ch. 51’s ‘many provisions designed to offer procedural and substantive protections to the person subject to commitment,’” Dallet wrote, quoting from E.J.W.
Reverse or Remand?
M.R.M. argued that reversal of the circuit court’s order extending his commitment was proper, because E.J.W. rendered the circuit court’s extension order unlawful, and therefore the circuit court lost competency to conduct any proceedings on remand because it failed to enter a lawful extension order before the original commitment order expired on Aug. 12, 2021.
Justice Dallet concluded that M.R.M. was correct. The circuit court possessed the authority to extend M.R.M.’s original six-month commitment only by doing so before Aug. 12, 2021.
Dallet pointed out that the supreme court has held that a circuit court must hold a hearing on a petition to extend an involuntary commitment before the previous order expires, or it loses competency to extend the commitment.
She also pointed out that section 51.20(13)(g)3 requires that before it extend an involuntary commitment, a circuit court must determine that the subject of commitment is a proper subject for commitment.
“A circuit court that enters an unlawful extension order – by wrongfully denying a timely jury demand, for example – has not complied with these statutory obligations,” Justice Dallet wrote.
Justice R. Bradley Concurrence: Retroactivity Test is Flawed
Justice R. Bradley wrote in her concurrence that she agreed with the majority’s decision to retroactively apply E.J.W. to M.R.M.’s case.
But, she wrote, the test the majority employed to determine whether E.J.W. should retroactively apply to M.R.M.’s case “offends the separation of powers by dislodging the legislature from its lawmaking function whenever the court decides to craft a more ‘just’ result than the law would otherwise produce.”
The U.S. Supreme Court had moved away from the decision that the retroactivity test employed by the majority was based on, R. Bradley argued.
Ziegler Dissent: E.J.W. Is Legally Inconsistent
Chief Justice Ziegler argued in her dissent that E.J.W. had been wrongly decided.
She argued that when M.R.M. failed to request a jury trial 48 hours before the original date for the hearing on the petition to extend his commitment, he waived the right to request a jury trial, and waivers are irrevocable.
Ziegler also argued that E.R.W. was inconsistent and was contrary to statutory text and general principles of law.
“E.J.W. … created a special rule for jury trial waivers in ch. 51 proceedings as opposed to waivers that take place in any other context,” Chief Justice Ziegler wrote.
Roggensack Dissent: Majority Ignores Precedent
Justice Roggensack argued in her dissent that the majority decision conflicted with Portage County v. J.W.K., 2019 WI 54, 386 Wis 2d. 672, 927 N.W.2d 509, which addressed whether a circuit court retains competency for an order issued after the issuance of a legally defective order.
“What is unstated, but held nonetheless by the majority opinion, is that once an order is determined to be unlawful any orders that are connected to that order are also invalid because the circuit court had no competency to issue valid subsequent orders,” Roggensack wrote.
“This creates the same ‘domino theory’ that we held in J.W.K. ‘[was] not supported by the text of the statute.’”