Washburn County v. L.R.Y., 2025AP272-FT, District 3, 7/22/25 (one-judge decision; ineligible for publication); case activity
“Lily” appeals an original commitment and involuntary med order, arguing that the circuit court violated her right to have the County’s fact witnesses testify in person. COA agrees that, under Wis. Stat. § 885.60(2)(d), the circuit court erred by failing to sustain Lily’s objection to the county’s fact witnesses appearing by video at the final hearing.
Lily demanded a six-person jury trial and filed motions in limine that included an argument that her “procedural due process right to confront the witnesses against [her] shall not be infringed by allowing out-of-court ‘expert opinions’ or ‘testimonial statements’ into evidence.” The county filed requests that all of its witnesses appear remotely. (¶3). Lily’s counsel conceded that the expert witnesses could appear remotely, but maintained that Lily had a right to have the fact witnesses appear in person at trial. (¶4). The circuit court noted some drawbacks, but entered orders permitting all of the county’s witnesses to appear by video. (¶6). The fact witnesses “provid[ed] the evidence required to prove that a recent act or omission established [Lily’s] dangerousness as required to reach the special verdict.” (¶7). The jury found that Lily is mentally ill, a proper subject for treatment, and dangerous under Wis. Stat. § 51.20(1)(a)2., and the court entered an order of commitment and an order for involuntary medication and treatment. (¶8).
Lily argues that the circuit court erred by permitting the county’s fact witnesses to appear by videoconferencing at her final hearing over her objection, in violation of Wis. Stat. § 885.60(2)(d), and that her due process right to confront witnesses was violated. COA addresses only the statutory violation, as it resolves the appeal. (¶9). COA interprets the statute, which provides that the circuit court may permit the use of videoconferencing in a ch. 51 proceeding, but that, “If an objection is made by the . . . respondent in a [ch. 51 matter], regarding any proceeding where he or she is entitled to be physically present in the courtroom, the court shall sustain the objection.” Wis. Stat. § 885.60(1) & (2)(d). (¶11).
“It is undisputed that Lily is the respondent in this WIS. STAT. ch. 51 proceeding and that she was entitled to be physically present in the courtroom during the final hearing.” The county does not address the statutory violatin, but argues that Lily waived her objection to the fact witnesses testifying by videoconferencing. (¶¶12, 14). COA disagrees, pointing out that Lily’s concession was to the expert witnesses’ remote testimony, and that Lily renewed her objection at the beginning of the trial, citing § 885.60 as requiring the county’s fact witnesses to appear in person. Lily did not relinquish her right to have the fact witnesses testify in person. (¶13). As a result, COA concludes that pursuant to § 885.60(2)(d), the circuit court was required to sustain Lily’s objection. (¶14).
COA then conducts a harmless error analysis, despite neither party having addressed harmless error. See State v. Harvey, 2002 WI 93, ¶47 n.12, 254 Wis. 2d 442, 647 N.W.2d 189 (“[t]he harmless error rule … is an injunction on the courts, which, if applicable, the courts are required to address regardless of whether the parties do.”). (¶15).
¶17 On this record, we cannot conclude that the circuit court’s failure to sustain Lily’s objection to the County’s fact witnesses testifying via videoconferencing was harmless error. As noted above, the County does not address this issue. The only basis for the County’s request for its fact witnesses to appear by videoconferencing was that they would have to travel several hours to attend the final hearing in person. The court expressed concern about whether Lily’s ability to defend the claims in this matter would be impacted by not having the witnesses personally present in the courtroom. It nevertheless made no findings regarding Lily’s ability to fully and effectively cross-examine the fact witnesses, nor did the court discuss the jurors’ ability to see and understand the witnesses and to assess their credibility.
¶18 We therefore cannot be satisfied that the jury would have arrived at the same verdict had the error not occurred. Because the burden lies with the County to prove that the error was harmless, and because the legislature clearly thought it important for the subject of a WIS. STAT. ch. 51 hearing to confront the witnesses face-to-face, we cannot conclude that this error was harmless.
Accordingly, COA reverses the commitment and involuntary medication and treatment orders.