State v. M.R.K., 2021AP141, District 1, 6/22/21 (one-judge decision; not recommended for publication); case activity

The Latin word grex means “flock,” “herd,” or “group,” and is the root of several English words. Gregarious originally meant “tending to live in a flock, herd, or community rather than alone” but has become a synonym for “sociable.” Egregious literally meant “out of the herd” in Latin — something that stands apart. Its first meaning in English was consequently “outstanding” or “remarkable for good quality,” but over time that changed to become “very bad and easily noticed” or “flagrant.”

Merriam-Webster’s Words at Play. See also Sentry Ins. v. Davis, 2001 WI App 203, ¶21 n.8, 247 Wis. 2d 501, 634 N.W.2d 553 (“Egregious” is “extraordinary in some bad way, glaring, flagrant[.]” (citation omitted)). In Wisconsin TPR cases, it means “missing a single court date.”

¶19     …. Based on the record, we conclude that the trial court did not err in making the determination that M.R.K.’s non-appearance was egregious: the court had explicitly ordered him to appear—including detailed instructions with regard to calling the court since it was a telephonic hearing—and told him that his failure to appear would result in a default judgment against him, explaining with particularity the consequences of such a judgment. Moreover, the court noted that M.R.K. also had not followed its instructions with regard to obtaining counsel, as there had been no SPD appointment made at the time of the May 2020 hearing.

True enough, the court ordered M.R.K. to appear at the next hearing, gave him a warning his failure to appear would lead to a default judgment, and told him to contact the SPD to get a lawyer. (¶7). But this was all done at the very first court appearance M.R.K. made. Is failing to appear at the second hearing really so obviously flagrant that default judgment is appropriate?

Now, to be scrupulously fair to the court of appeals, it has in other cases found a single failure to appear to be “egregious,” as we’ve noted, for example, here and here. But whatever happened to the standard articulated in Dane County v. Mable K., 2013 WI 28, ¶¶70, 346 Wis. 2d 396, 828 N.W.2d 198, that to be “egregious” the party’s conduct must be unintentional and “extreme, substantial, and persistent”—a standard that would explain why it seems most cases have found egregiousness only after a parent’s repeated failures to appear or after the court gave repeated warnings about appearing or cooperating as ordered, as described, for example, here, here, here, here, here, here, here, here, and here.

Moreover, at M.R.K.’s postdisposition motion to vacate the default judgment, he testified he’d contacted the SPD and was told they didn’t have any attorney’s available and therefore didn’t appear because he thought he couldn’t appear without a lawyer (though the case manager testified M.R.K. told him he called the SPD but never got through to them). (¶11). The circuit court was unmoved, saying that while it was “unclear” why M.R.K. believed that, he should’ve known he could appear without an attorney because he was familiar with the court system. (¶12). Yet if the basis for M.R.K.’s mistake was indeed unclear, shouldn’t it be clarified before the court defaults him out of a supposedly fundamental right to be a parent to his child?

It is also remarkable that it apparently takes more than just egregious conducty to find the parent has waived the right to counsel; it also requires the absence of a clear and justifiable excuse, § 48.23(2)(b)3. M.R.K. in fact challenged the default judgment on the ground the circuit court didn’t make the finding required under that statute, but the court of appeals says that statute doesn’t apply here because the issue isn’t whether he waived the right to counsel by his conduct. (¶¶15-16). (This is not to be confused with the excusable neglect exception to default judgment under § 806.07(1)(a), which M.R.K. didn’t meet, either. (¶¶21-22).) So it takes more to find the waiver of counsel by conduct than it does to just terminate the entire proceeding by entering a default judgment? Does that make any sense? Or is this another indication that allowing a single missed appearance to justify default really is, at the end of the day, egregious?