COA rejects medley of challenges to Chapter 51 and affirms
Kenosha County v. R.M.P., 2026AP336, 10/7/26, District II (ineligible for publication); case activity
COA rejects “Ronald’s” attempts to overturn his commitment order based on his claims that the court denied his right to self-representation, held the hearing outside of the statutory timeframe, and that the evidence was insufficient.
Request for Self-Representation
The Wisconsin Constitution gives litigants in a Chapter 51 proceeding the right to proceed pro se. (¶12). Here, the circuit court refused Ronald’s request to proceed without counsel and the court of appeals affirms that decision under a deferential standard of review. In its view, the record–which includes Ronald at one point stating “Yeah. I’m just very unfamiliar with what’s going on. I don’t understand.”–does not “adequately support” a finding that Ronald knowingly and voluntarily waived his right to counsel. (¶24).
Like most cases involving a request to proceed pro se, this one turns on the case-specific facts. As usual, we only have COA’s explanation of those facts and do not have access to the briefs. And, because COA’s resolution of the issue is governed by what it views as a super-deferential standard of review, an exhaustive recap of that analysis has been omitted here.
We will pause to point out, however, that the law of self-representation in this context is unique. A litigant’s request to proceed pro se in a Chapter 51 matter stems from Article I, § 21(2) of the Wisconsin Constitution. When SCOW interpreted this provision in 1991, it looked to the then-existing standard for assessing waiver of the right to counsel in criminal cases involving the Sixth Amendment as phrased in Pickens v. State. Although, as COA acknowledges here, State v. Klessig subsequently overruled Pickens in the criminal context and added a more labor-intensive colloquy requirement, that development has not been incorporated into the analysis at issue here. Thus, the older (now rejected) Pickens rule appears to apply.
Got it? Okay, here’s where it gets tricky. Although COA meshes them together, case law seemingly makes clear that, in the criminal context at least, there are two inquiries: (1) whether a valid waiver occurred; and (2) whether the person was competent to exercise the right of self-representation. As discussed in cases interpreting a waiver of the Sixth Amendment right to counsel, this seems to be reviewed de novo, per the Klessig court: “The first issue that we address is whether Klessig knowingly, intelligently and voluntarily waived his right to counsel. Whether a defendant has knowingly, intelligently and voluntarily waived his right to counsel requires the application of constitutional principles to the facts of the case, which we review independent of the circuit court.” But here, referencing Pickens, COA seems to think a deferential standard of review applies. (¶24). The case therefore highlights the uneasy state of the law, which in this context seems to rely on standards articulated almost 50 years ago and not revisited since 1991.
Of course, on the second question, competency, COA is correct that case law applies a very deferential standard of review; while we don’t know all the facts, it seems like Ronald’s claim of non-understanding would make any argument of competency difficult, to say the least.
Adjournment Request
At the original final hearing, there was some back-and-forth about whether the matter would be adjourned. While it appears that Ronald and his attorney successfully requested an adjournment outside the usual deadline, as permitted by statute, the record also suggests that those requests may have been withdrawn after the circuit court declined Ronald’s request for self-representation. (¶30). Because the circuit court had set aside only 45 minutes for this court trial involving multiple witnesses, including an expert, and dealing with Ronald’s request to fire his lawyer took 30 of those minutes, the circuit court determined there was a “frustration of purpose” and did not change its mind about rescheduling the hearing. (Id.). Since the hearing was held outside the statutory deadline, and Ronald apparently claims his adjournment request was no longer active, he alleges the court lost competency. COA does not bite on the “withdrawn” adjournment request argument, however, and views the issue as whether the court properly exercised its discretion in maintaining “the adjournment request it had already granted.” (¶34). Under the applicably deferential standard of review, the court finds the circuit court appropriately exercised its discretion here. (Id.). Moreover, any challenge to competency would be foreclosed by County of Milwaukee v. Edward S., which allows an extension if that extension is “caused solely by the conduct and manipulation of the detained subject.” (¶36).
Sufficiency of the Evidence
COA focuses on the third standard, which requires “impaired judgment, manifested by evidence of a pattern of recent acts or omissions, that there is a substantial probability of physical impairment or injury to himself or herself or other individuals.” (¶41). Here, there was evidence that Ronald’s home had rotting garbage inside it, that he left medication out at room temperature, and that he accidentally lit his hair on fire while trying to light a cigarette. (¶46). COA finds the evidence sufficient.