COA holds that Ch. 51 respondent forfeited his right to counsel by successfully requesting change of appointed counsel
Winnebago County v. C.B., 2026AP1754-FT, 11/4/26, District II (ineligible for publication); case activity
In a case that signals an alarming watering down of the forfeiture standard, COA finds nothing improper about forcing a mentally ill Chapter 51 respondent to represent themselves at a final hearing simply because they requested a single change in counsel.
C.B was facing extension of his commitment order. (¶2). There was a delay in the appointment of counsel, however, and a lawyer was not appointed until December 23rd, or one week prior to the final hearing. (Id.). That lawyer did not contact her client until the day of the final hearing. (Id.). C.B. was frustrated with this situation and asked for new counsel as well as an extension of the final hearing date to accommodate his request. (Id.). The circuit court granted the requests for new counsel and for adjournment. (Id.). It warned C.B. that the tight timeline may make it difficult for a new lawyer to meet with him “multiple days in advance” of the rescheduled hearing. (Id.).
When C.B. showed up to the rescheduled hearing, however, no one had been appointed to represent him. (¶3). As the order expired that day, the circuit court gave C.B. two options: stipulate to an extension of his commitment to accommodate the appointment of counsel or waive his right to an attorney. (Id.).
C.B. did not want to extend his involuntary commitment order. (Id.). As a result, the court told him it was going to move forward with the trial and C.B. would be forced to represent himself. (Id.). C.B.’s dialogue with the court shows that he was taken aback by the court’s decision, insisted on his right to be represented by counsel, appeared confused, and told the court the situation was not, as the court insisted, his fault. (Id.). COA frames this as “arguing” with the court. (Id.).
C.B. ultimately chose to move forward with the “timely” hearing, after which the court entered an order extending his commitment and authorizing involuntary medication. (¶4). C.B. filed a postdisposition motion, pointing out that C.B. neither waived nor forfeited his right to counsel. (¶5). In response, the court asserted for the first time that C.B. had been “playing games.” (Id.). While it didn’t determine whether this was a waiver or a forfeiture, the court was confident that C.B. had made a “decision” to proceed without counsel and therefore denied the motion. (Id.).
On appeal, COA finds that C.B. forfeited his right to counsel under State v. Suriano. (¶8).While it finds that C.B’s conduct was “not as egregious as some criminal defendant forfeitures” COA is satisfied that the forfeiture bar has been met in this case. (¶12). It accuses C.B. of “manipulative and disruptive behavior,” “a defiant attitude,” making “choices that repeatedly resulted in delay” and “verbal abuse.” (Id.) It concludes that C.B., by asking for a change of counsel and persuading the court to grant that request “intentionally sought to frustrate the ‘orderly and efficient progression of the case’ and therefore forfeited his right to counsel.” (¶12). COA also finds further support in Edward S., which holds that when the respondent’s conduct is responsible for an untimely final hearing (an event normally triggering a loss of competency), then public policy concerns allow an untimely hearing. (¶13). COA says this was not an easy case and indicates that it might highlight a problem requiring attention from the legislature. (¶15 n. 6). But the court’s claim that C.B. was playing games is a finding that it must defer to and so it affirms. (¶14 n. 5).
Hm.
C.B. asked for a new lawyer based on his understandable frustration with his lawyer’s failure to meet with him in advance of a final hearing with significant liberty stakes. The court said yes. For reasons that are wholly unclear from this record, no one was appointed to represent him. When told he no longer had a right to a lawyer under these circumstances, C.B. insisted on his rights. Where is the manipulation, the verbal abuse, the gamesmanship and the deliberate attempts to interfere with justice? COA doesn’t say; it merely uses these labels to deny this litigant his constitutionally-mandated right to counsel. It would therefore appear so long as the court uses the words “playing games” then, under COA’s reading of Suriano, the all-important right to counsel can be magicked into the ether. This case therefore represents a lowering of the “floor” for forfeiture of counsel, all while displaying a concerning attitude toward this litigant. (See, for example, COA’s hasty labeling of his superficially reasonable conduct as “arguing,” its claim that pointing out an error to the court is verbal abuse, or its decision to use scare quotes when discussing his desire to prepare a “defense.”) C.B. was not only involuntarily committed but also involuntarily medicated without ever having the assistance of a lawyer. Given the nature of Chapter 51 hearings, the broad reading of forfeiture in this case appears to green light future deprivation of counsel in such important hearings. We eagerly await the PFR and can only hope SCOW is willing to reverse.