COURT OF APPEALS DECISION DATED AND FILED December 27, 2007 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from an order of the circuit court for
Before Higginbotham, P.J., Dykman and Bridge, JJ.
¶1 PER CURIAM. Tod Bergemann appeals an order denying his motion for postcommitment relief. He argues that Wis. Stat. ch. 980 violates due process because it does not require that the person sought to be committed be given a document that would provide adequate notice to the person of the allegations against them. We affirm.
¶2 At a hearing
on November 18, 1996, Bergemann moved to dismiss the Wis. Stat.
ch. 980
petition, challenging the court’s jurisdiction on the grounds that he had not
been served with the petition. After
Bergemann testified, the court continued the hearing to allow the State to call
a rebuttal witness. When the hearing was
continued on December 13, 1996, Bergemann withdrew his motion challenging
service. Because Bergemann withdrew the
motion, the circuit court did not hear rebuttal testimony on the issue of
whether Bergemann had been served and did not rule on the service issue.
¶3 We conclude
that Bergemann is estopped from challenging the statute based on the statute’s
service requirements.[1] Judicial estoppel precludes a party from asserting inconsistent positions in
legal proceedings. Mrozek v. Intra Fin. Corp,
2005 WI 73, ¶22, 281
¶4 Bergemann
contends that the statute is unconstitutional because it does not require adequate
service on the person against whom the petition is brought. Bergemann’s position is inconsistent with the
position he took during the 1996 proceedings when he decided to withdraw his
challenge to service. The facts present
here are the same as the facts that existed in 1996, when Bergemann
affirmatively requested that the circuit court not consider his motion
challenging service. Under Mrozek,
Bergemann is judicially estopped from challenging the constitutionality of the
service requirements in the statute.
By the Court.—Order
affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] Were we to address this issue, Bergemann’s argument on the topic has arguable merit. It is not apparent to us why a person who is a subject of a Wis. Stat. ch. 980 commitment would not be accorded the same rights as a criminal defendant to receive notice of the charges against him. However, because we conclude Bergemann is estopped from challenging the statute on this basis, we do not discuss the issue.