Manitowoc County v. Samuel J. H. , 349 Wis. 2d 202 ( 2013 )

2013 WI 68SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP665
COMPLETE TITLE: In the matter of the mental commitment
of Samuel J. H.:
Manitowoc County,
Petitioner-Respondent,
v.
Samuel J. H.,
Respondent-Appellant.
ON CERTIFICATION FROM THE COURT OF APPEALS
OPINION FILED: July 11, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 26, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Manitowoc
JUDGE: Jerome L. Fox
JUSTICES:
CONCURRED: ABRAHAMSON, C.J., concurs. (Opinion filed.)
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant, there were briefs by Donald
T. Lang, assistant state public defender, and oral argument by
Donald T. Lang.
For the petitioner-respondent, there was a brief by Ryan
O’Rourke, assistant corporation counsel, and Manitowoc County,
and oral argument by Ryan O’Rourke.
2013 WI 68NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP665
(L.C. No. 2003ME63)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the mental commitment of
Samuel J.H.:
Manitowoc County,
FILED
Petitioner-Respondent, JUL 11, 2013
v. Diane M. Fremgen
Clerk of Supreme Court
Samuel J.H.,
Respondent-Appellant.
APPEAL from an order of the Manitowoc County Circuit Court,
Jerome L. Fox, Judge. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This appeal is before
the court on certification by the court of appeals, pursuant to
Wis. Stat. § 809.61 (2011-12).1 On May 31, 2011, Samuel J.H.
(Samuel) was committed to the care and custody of the Manitowoc
County Human Services Department (the Department). Samuel was
1
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
No. 2012AP665
initially placed in outpatient care. On September 22, 2011, the
Department transferred Samuel to an inpatient facility because
of erratic and delusional behavior.
¶2 Samuel petitioned the Manitowoc County Circuit Court
for a review of his transfer, arguing that he was entitled to a
hearing within ten days of his transfer to the inpatient
facility under Wis. Stat. § 51.35(1)(e) and under Fond du Lac
Cnty. v. Elizabeth M.P., 2003 WI App 232, 267 Wis. 2d 739, 672
N.W.2d 88. He also petitioned for a transfer back to outpatient
status, arguing that was the proper remedy for failure to hold
the review hearing within ten days of his transfer. The circuit
court held a hearing on Samuel's petitions, and it denied
Samuel's petition to transfer back to outpatient status. The
circuit court concluded that a patient is entitled to a hearing
within ten days of his transfer to a more restrictive placement
under § 51.35(1)(e)3. only when the transfer is based on a
violation of treatment conditions. The court denied Samuel's
petition to transfer, finding that his transfer to the inpatient
facility was not based on a violation of his treatment
conditions, but rather was based on reasonable medical and
clinical judgment.
¶3 Samuel appealed, and the court of appeals certified
the case to this court to clarify whether Wis. Stat.
§ 51.35(1)(e) requires a hearing within ten days for all
transfers to a more restrictive placement. The court of appeals
stated that language in Elizabeth M.P.——that "[t]ransfers
pursuant to § 51.35(1)(e) require a hearing within ten days"——is
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No. 2012AP665
arguably contrary to a plain interpretation of the statute,
which differentiates between transfers made for reasonable
medical and clinical judgment under § 51.35(1)(e)1., and
transfers made for "an alleged violation of a condition of a
transfer to less restrictive treatment" under § 51.35(1)(e)2.-3.
Elizabeth M.P., 267 Wis. 2d 739, ¶26. However, the court of
appeals was without power to overrule, modify, or withdraw
language from Elizabeth M.P.
¶4 We granted the court of appeals' certification and now
affirm the order of the circuit court.
¶5 We hold that Wis. Stat. § 51.35(1)(e) does not require
a hearing to be conducted within ten days of a transfer when the
transfer is based on reasonable medical and clinical judgment
under § 51.35(1)(e)1. We withdraw any language from Elizabeth
M.P. to the contrary.2 We further hold that a hearing must be
2
Because two statements in the Elizabeth M.P. decision are
contrary to the plain language of Wis. Stat. § 51.35(1)(e),
stare decisis does not require that we adhere to that precedent.
Thus, we withdraw the following language from Elizabeth M.P.:
"Transfers pursuant to § 51.35(1)(e) require a hearing within
ten days," 267 Wis. 2d 739, ¶26, and "Wisconsin Stat.
§ 51.35(1)(e) mandates that a patient transferred to a more
restrictive environment receive a hearing within ten days of
said transfer," id., ¶28.
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No. 2012AP665
conducted within ten days of a transfer when (1) the transfer
"results in a greater restriction of personal freedom for the
patient for a period of more than 5 days" or is "from outpatient
to inpatient status for a period of more than 5 days" and (2)
the transfer is based on "an alleged violation of a condition of
a transfer to less restrictive treatment" under § 51.35(1)(e)2.-
3.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶6 On May 31, 2011, Samuel was committed to the care and
custody of the Department.3 Samuel was initially placed at an
outpatient facility, Newport Group Home in Manitowoc, Wisconsin.
On September 22, 2011, the Department transferred Samuel from an
outpatient to an inpatient facility. The transfer form stated
the reason for the transfer:
Specifically, the doctrine of stare decisis applies to
published court of appeals opinions and requires this court "to
follow court of appeals precedent unless a compelling reason
exists to overrule it." Wenke v. Gehl Co., 2004 WI 103, ¶21,
274 Wis. 2d 220, 682 N.W.2d 405 (citing State v. Douangmala,
2002 WI 62, ¶42, 253 Wis. 2d 173, 646 N.W.2d 1). See also Wis.
Stat. § 752.41(2) (published court of appeals opinions "have
statewide precedential effect"). Here, a compelling reason
exists to withdraw the language in Elizabeth M.P. that directly
conflicts with the plain language of the statute. In so doing,
we are not acting contrary to the principle of stare decisis
because stare decisis does not require us "to adhere to
interpretations of statutes that are objectively wrong." Wenke,
274 Wis. 2d 220, ¶21 (citing Douangmala, 253 Wis. 2d 173, ¶42).
The portions of Elizabeth M.P. that do not comport with the
plain language of Wis. Stat. § 51.35(1)(e) are withdrawn because
they are objectively wrong.
3
The record in this appeal does not contain documents
relating to Samuel's underlying mental health commitment.
4
No. 2012AP665
Samuel has been presenting as increasingly
delusional. Today he was 'chanting' and then punched
his wall and door, putting a hole in the door. Samuel
is the subject of a Mental Health Commitment and is
being transferred inpatient. Samuel is presenting as
delusional. His thoughts are confused and he is
agitated. He repeatedly stated he put a hole in the
door because 'someone was shot down and should be
taken care of.' Sam states he is at [Holy Family
Medical Center] because he is a 'person of interest.'
On September 22, 2011, Samuel was transferred to Nicolet
Psychiatric Center, and he was subsequently transferred to
Trempealeau County Health Care Center, both of which are
inpatient facilities.
¶7 On September 22, 2011, the same day he was
transferred, Samuel was provided with a form entitled "Written
Notice of Wis. Stat. § 51.35(1)(e)1. Rights." The form
reflected that Samuel was being transferred from outpatient to
inpatient status. The form stated that the Department must
inform Samuel orally and in writing of his rights under
§ 51.35(1)(e)1. The form listed those rights: "[t]he right to
contact an attorney and a member of Subject's immediate family,"
"[t]he right to have counsel provided at public expense . . . if
Subject is a child or is indigent," and "the right to petition a
court in the county in which the patient is located or the
committing court for a review of the transfer." A Department
employee signed the form and thus certified that she read Samuel
his rights and provided him a written copy of the form at the
time of transfer. The form contained contact information for
the Manitowoc County Public Defender's office.
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¶8 On November 7, 2011, Samuel wrote Judge Jerome L. Fox
of the Manitowoc County Circuit Court a letter that stated "I am
disturbed that my outpatient status was changed to inpatient
without due procedure." On November 14, 2011, the judge sent a
copy of Samuel's letter to the Manitowoc County Corporation
Counsel office. The judge's cover letter to the County stated
that "I assume this triggers a hearing under § 51.35(1)(e)."
¶9 On November 15, 2011, Assistant Corporation Counsel
Ryan O'Rourke responded to the judge in a letter. Manitowoc
County took the position that Samuel was entitled to a review
hearing by the circuit court because Samuel's transfer was for
reasonable medical and clinical judgment under Wis. Stat.
§ 51.35(1)(e)1., but that he was not entitled to an
administrative hearing within ten days of the transfer because
he was not transferred for a violation of treatment conditions
under § 51.35(1)(e)2.-3.
¶10 The Department referred the matter to the Manitowoc
County Public Defender's office. On November 22, 2011, the
Manitowoc County Public Defender's office appointed attorney
Jewel Scharenbroch to represent Samuel. On November 30, 2011,
Samuel, by his attorney, filed a petition for review of his
transfer and a petition to transfer from inpatient to outpatient
treatment for failure to hold a timely review hearing. Samuel
argued that under Wis. Stat. § 51.35(1)(e) and Elizabeth M.P., a
patient is entitled to a review hearing within ten days of the
transfer when the transfer results in more restrictive placement
and lasts for more than five days, regardless of the reason for
6
No. 2012AP665
transfer. Samuel argued that according to Elizabeth M.P.,
because he did not receive a hearing within ten days of his
transfer under § 51.35(1)(e)3., he must be returned to
outpatient status. 267 Wis. 2d 739, ¶28.
¶11 On December 19, 2011, the Manitowoc County Circuit
Court, Judge Jerome L. Fox, held a hearing on Samuel's
petitions. At the hearing, the court heard testimony from
Samuel and from Lori Fure, Samuel's social worker. Fure
testified that Samuel was transferred because he had become
"increasingly psychotic and his behavior had become out of
control." She testified that "[h]is medication had been
increased and yet he continued to become more psychotic and more
out of control to the point where he was totally delusional and
punching holes in the wall." She further stated that the group
home could no longer handle Samuel. Based on her experience as
a social worker and her understanding of Samuel's case, Fure
testified that inpatient care was the least restrictive level of
treatment appropriate for Samuel at that time.
¶12 Fure denied that Samuel was transferred because of
violations of his treatment conditions. Fure testified that
Samuel was subject to treatment conditions while he was placed
in outpatient care, including, inter alia, "[r]efrain from
consuming alcoholic beverages" and "[r]efrain from any acts,
attempts, or threats to harm myself or others." Fure testified
that Samuel had consumed alcohol a couple of days prior to his
transfer, but "that's not a reason to transfer somebody."
Further, though Samuel had made vaguely threatening statements,
7
No. 2012AP665
Fure testified that Samuel had not been transferred because of
an act or a threat to harm himself or others.
¶13 Samuel also testified. His attorney asked him why he
punched the door, and Samuel responded that "[o]ne plane of
reality was shot down in my——my real world, and when the two
worlds met up, I could tell that I wanted to make it concrete
and meet up with my mental state of affairs."
¶14 The court found that the reason for Samuel's transfer
was his delusional behavior, not for a violation of his
treatment conditions. The court interpreted Wis. Stat.
§ 51.35(1)(e) as requiring a hearing within ten days only when a
transfer is made for a violation of treatment conditions, not
when a transfer is made for reasonable medical and clinical
judgment. However, the circuit court concluded that language in
Elizabeth M.P. could be interpreted as requiring a hearing
within ten days regardless of whether the subject is being
transferred for reasonable medical and judgment or for a
violation of treatment conditions. 267 Wis. 2d 739, ¶26
("Transfers pursuant to § 51.35(1)(e) require a hearing within
ten days."). The circuit court noted, however, that other
language in Elizabeth M.P. in fact differentiated the two types
of transfers. The circuit court suggested that Elizabeth M.P.'s
statement——requiring a hearing within ten days for all transfers
under § 51.35(1)(e)——related to its discussion of whether
hearings under § 51.35(1)(e)3. were mandatory or permissive.
See id., ¶¶20-25. In other words, the statement in Elizabeth
8
No. 2012AP665
M.P. could be read as "a hearing under (1)(e)3. is mandatory,
not permissive."
¶15 The circuit court concluded that it was not necessary
to hold a hearing within ten days for Samuel, since his transfer
was based on reasonable medical and clinical judgment rather
than a violation of a treatment condition. As Samuel was not
entitled to a hearing within ten days, the circuit court denied
his petition for a transfer from inpatient to outpatient care.
The circuit court concluded that inpatient care was the least
restrictive placement appropriate for Samuel.
¶16 On March 27, 2012, Samuel filed a notice of appeal
from the circuit court's order. On September 5, 2012, the court
of appeals certified the question of whether Elizabeth M.P.'s
statement——requiring a hearing within ten days for transfers
made under Wis. Stat. § 51.35(1)(e)——is contrary to the plain
language of the statute. The court of appeals noted that the
inconsistency in Elizabeth M.P. was apparent, but that it was
powerless to address the inconsistency. See Cook v. Cook, 208
Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997) (holding that the
court of appeals may not overrule, modify, or withdraw language
from its prior published decisions).
¶17 On November 14, 2012, we accepted the court of
appeals' certification.
II. STANDARD OF REVIEW
¶18 The question presented in this case is whether Wis.
Stat. § 51.35(1)(e) mandates a hearing within ten days for all
transferred patients, including those transferred for reasonable
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No. 2012AP665
medical and clinical judgment under § 51.35(1)(e)1., or whether
the mandate applies only to those transferred due to a violation
of treatment conditions under § 51.35(1)(e)2.-5. The
interpretation and application of § 51.35 present questions of
law that we review de novo while benefitting from the analyses
of the court of appeals and circuit court. See State v.
Ziegler, 2012 WI 73, ¶37, 342 Wis. 2d 256, 816 N.W.2d 238;
Heritage Farms, Inc. v. Markel Ins. Co., 2012 WI 26, ¶24, 339
Wis. 2d 125, 810 N.W.2d 465. The circuit court made factual
findings about the reason for Samuel's transfer, and "[w]e
uphold a circuit court's findings of fact unless they are
clearly erroneous." Phelps v. Physicians Ins. Co. of Wis.,
Inc., 2009 WI 74, ¶34, 319 Wis. 2d 1, 768 N.W.2d 615.
III. ANALYSIS
¶19 We hold that Wis. Stat. § 51.35(1)(e) does not require
a hearing to be conducted within ten days of a transfer when the
transfer is based on reasonable medical and clinical judgment
under § 51.35(1)(e)1. We withdraw any language from Elizabeth
M.P. to the contrary. We further hold that a hearing must be
conducted within ten days of a transfer when (1) the transfer
"results in a greater restriction of personal freedom for the
patient for a period of more than 5 days" or is "from outpatient
to inpatient status for a period of more than 5 days" and (2)
the transfer is based on "an alleged violation of a condition of
a transfer to less restrictive treatment" under § 51.35(1)(e)2.-
3.
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No. 2012AP665
¶20 "'[T]he purpose of statutory interpretation is to
determine what the statute means so that it may be given its
full, proper, and intended effect.'" Heritage Farms, 339
Wis. 2d 125, ¶26 (quoting State ex rel. Kalal v. Circuit Court
for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681
N.W.2d 110). Statutory interpretation "'begins with the
language of the statute. If the meaning of the statute is
plain, we ordinarily stop the inquiry.'" Kalal, 271
Wis. 2d 633, ¶45 (quoting Seider v. O'Connell, 2000 WI 76, ¶43,
236 Wis. 2d 211, 612 N.W.2d 659). "Statutory language is given
its common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their
technical or special definitional meaning." Kalal, 271
Wis. 2d 633, ¶45. Statutory language is interpreted in context,
and it must be understood in relation to surrounding language
and surrounding statutes. Id., ¶46. Courts interpret statutes
"to avoid absurd or unreasonable results." Id. When statutory
interpretation yields a plain meaning, extrinsic sources need
not be consulted, "although legislative history is sometimes
consulted to confirm or verify a plain-meaning interpretation."
Id., ¶¶46, 51.
¶21 Wisconsin Stat. § 51.35(1), which governs the transfer
of patients and residents, states in relevant part:
(a) Subject to pars. (b), (d), and (dm), the
department or the county department under s. 51.42 or
51.437 may transfer any patient or resident who is
committed to it, or who is admitted to a treatment
facility under its supervision or operating under an
agreement with it, between treatment facilities or
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No. 2012AP665
from a treatment facility into the community if the
transfer is consistent with reasonable medical and
clinical judgment, consistent with s. 51.22(5), and,
if the transfer results in a greater restriction of
personal freedom for the patient or resident, in
accordance with par. (e).
. . . .
(e)1. Whenever any transfer between different
treatment facilities results in a greater restriction
of personal freedom for the patient and whenever the
patient is transferred from outpatient to inpatient
status, the department or the county department
specified under par. (a) shall inform the patient both
orally and in writing of his or her right to contact
an attorney and a member of his or her immediate
family, the right to have counsel provided at public
expense, as provided under s. 51.60, and the right to
petition a court in the county in which the patient is
located or the committing court for a review of the
transfer.
2. In addition to the rights and requirements
specified in subd. 1., within 24 hours after any
transfer which results in a greater restriction of
personal freedom for the patient for a period of more
than 5 days or any transfer from outpatient to
inpatient status for a period of more than 5 days and
if the transfer is due to an alleged violation of a
condition of a transfer to less restrictive treatment,
the department or the county department specified
under par. (a) shall ensure that the patient is
provided a written statement of the reasons for the
transfer and the facts supporting the transfer and
oral and written notice of all of the following:
a. The requirements and rights under subds.
3. to 5.
b. The patient's right to counsel.
c. The patient's right to have counsel
provided at public expense, as provided under s.
51.60.
d. The rights of the patient's counsel to
investigate the facts specified in the written
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No. 2012AP665
statement of reasons for the transfer, to consult
with the patient prior to the patient's waiving a
hearing under subd. 3., to represent the patient
at all proceedings on issues relating to the
transfer, and to take any legal steps necessary
to challenge the transfer.
3. Within 10 days after the transfer specified in
subd. 2., a hearing shall be held on whether the form
of treatment resulting from the transfer is least
restrictive of the patient's personal liberty,
consistent with the treatment needs of the patient,
and on whether the patient violated a condition of a
transfer to less restrictive treatment that resulted
in a transfer under subd. 2. The hearing shall be
held before a hearing officer designated by the
director of the facility to which the patient has been
transferred. The hearing officer may not be a person
who has had direct responsibility for making treatment
decisions for or providing treatment to the subject
individual. The patient may appear at the hearing,
either personally or by counsel, and may present and
cross-examine witnesses and present documentary
evidence. The hearing may be waived by the patient
only after consultation with counsel. Any waiver made
shall be in writing and witnessed by the patient's
counsel.
Wis. Stat. § 51.35(1)(a), (e) (emphasis added).
¶22 Samuel argues that all transfers under Wis. Stat.
§ 51.35(1)(e) require a review hearing within ten days of the
transfer. He points to language in Elizabeth M.P. that
"[t]ransfers pursuant to § 51.35(1)(e) require a hearing within
ten days." 267 Wis. 2d 739, ¶26. Samuel argues that this
interpretation reinforces the policy that a patient who is the
subject of a mental health commitment has a right to the least
restrictive placement necessary to address his or her mental
health issues. See, e.g., Wis. Stat. § 51.001(2) ("To protect
personal liberties, no person who can be treated adequately
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No. 2012AP665
outside of a hospital, institution or other inpatient facility
may be involuntarily treated in such a facility."). Samuel also
points out that if the two types of transfers are subject to
different procedures, the reason for transfer can be manipulated
to avoid a hearing within ten days. Finally, Samuel points to
case law holding that statutory time limits in civil commitment
proceedings are strictly enforced, and failure to comply with
time limits deprives a court of jurisdiction over the person who
is the subject of the proceedings.
¶23 Manitowoc County argues that the plain language of the
statute requires a hearing within ten days only when the
transfer is based on a violation of a treatment condition. See
Wis. Stat. § 51.35(1)(e)2.-3. (stating that "if the transfer is
due to an alleged violation of a condition of a transfer to less
restrictive treatment" a hearing shall be held "[w]ithin 10 days
after the transfer"). The County further argues that if there
must be a hearing within ten days for all transfers under
§ 51.35(1)(e), that interpretation would effectively eliminate
transfers for reasonable medical and clinical judgment. The
subdivision that sets out the Department's burden of proof at
the hearing within ten days requires it to prove that there was
a violation of a treatment condition: "[t]he department seeking
the transfer has the burden of proving . . . that the patient
violated a condition of a transfer to less restrictive treatment
that resulted in a transfer under subd. 2." § 51.35(1)(e)4.
Additionally, the County argues that the statements at the end
of Elizabeth M.P.——requiring a hearing within ten days for all
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No. 2012AP665
transfers under § 51.35(1)(e)——are contrary to the plain
language of the statute and contrary to the reasoning of the
opinion itself. See Elizabeth M.P., 267 Wis. 2d 739, ¶17
("However, § 51.35(1)(e)1 and (1)(e)2 seem to indicate different
forms of transfers. . . . [S]ubdivision 2 exists to further
protect the rights of those whose transfer" is due to a
violation of a treatment condition). Finally, the County states
that though Samuel makes compelling policy arguments, those
arguments should be made to the legislature because policy
arguments cannot overcome the plain language of § 51.35(1)(e).
¶24 We conclude that the plain language of the statute
does not make the hearing within ten days of a transfer under
Wis. Stat. § 51.35(1)(e)3. applicable to transfers based on
reasonable medical and clinical judgment under § 51.35(1)(e)1.
Several reasons support our interpretation. First, subdivisions
(1)(e)1. and (1)(e)2. provide different rights and procedures
depending on the nature of the transfer. Subdivision
(1)(e)1. provides rights4 for patients transferred for
"reasonable medical and clinical judgment," see § 51.35(1)(a),
when the transfer "results in a greater restriction of personal
freedom for the patient" or when the transfer is "from
4
Under Wis. Stat. § 51.35(1)(e)1., the department must
inform the patient of the right to contact an attorney and a
member of his or her immediate family, the right to have an
attorney provided at public expense under Wis. Stat. § 51.60,
and "the right to petition a court in the county in which the
patient is located or the committing court for a review of the
transfer."
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No. 2012AP665
outpatient to inpatient status," collectively discussed as a
more restrictive transfer. Subdivision (1)(e)2. provides rights5
"[i]n addition to the rights and requirements specified in subd.
1." when a more restrictive transfer lasts "for a period of more
than 5 days" and is "due to an alleged violation of a condition
of a transfer to less restrictive treatment." Thus, the
legislature differentiated between the two types of transfers by
providing additional protections to a patient when a more
restrictive transfer lasts for longer than five days and results
from an alleged violation of a treatment condition.6
¶25 Second, consistent with the differentiation in rights
under subdivisions (1)(e)1. and (1)(e)2., the procedures for the
hearing within ten days of a transfer under subdivision (1)(e)3.
are made applicable only to more restrictive transfers under
5
Under Wis. Stat. § 51.35(1)(e)2., the department must
provide the patient with "a written statement of the reasons for
the transfer and the facts supporting the transfer." The
department must also provide oral and written notice of the
hearing procedures under subdivisions (1)(e)3.-5., the rights to
counsel provided at public expense under Wis. Stat. § 51.60, and
the rights of the patient's counsel in representing the patient
throughout the review of the patient's transfer.
6
Under both Wis. Stat. § 51.35(1)(e)1. and (1)(e)2., the
patient has the "right to have counsel provided at public
expense, as provided under s. 51.60." Section 51.60, governing
appointment of counsel, provides that for adults "[i]n any
situation under this chapter in which an adult individual has a
right to be represented by counsel, the individual shall be
referred as soon as practicable to the state public defender,
who shall appoint counsel for the individual under s. 977.08
without a determination of indigency." Wis. Stat.
§ 51.60(1)(a). The individual may waive counsel if the waiver
is knowing and voluntary. § 51.60(1)(b).
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No. 2012AP665
(1)(e)2.——those lasting longer than five days and resulting from
an alleged violation of a treatment condition. Subdivision
(1)(e)3. states, in relevant part: "Within 10 days after the
transfer specified in subd. 2., a hearing shall be held
on . . . whether the patient violated a condition of a transfer
to less restrictive treatment that resulted in a transfer under
subd. 2." (Emphasis added.) It would be contrary to the plain
language of the statute to interpret subdivision (1)(e)3. as
providing a hearing within ten days for transfers made for
reasonable medical and clinical judgment. The plain language
applies the transfer review hearing within ten days, as set
forth in subdivisions (1)(e)3.-5., only to transfers under
(1)(e)2.——those resulting in a more restrictive placement that
last for more than five days and that are a result of an alleged
violation of a condition of treatment.
¶26 Third, we are persuaded by the County's argument that
Samuel's interpretation of the statute leads to an absurd result
because his interpretation could effectively eliminate the
County's ability to transfer a patient for reasonable medical
and clinical judgment, or could put the County in the untenable
position of being required to allege and prove that the transfer
was due to a violation of a treatment condition even if the
transfer was only for reasonable medical and clinical judgment.
A transfer based upon reasonable medical and clinical judgment
can differ from a transfer based upon a violation of a treatment
condition. Under the statute, when the County transfers a
patient based on reasonable medical and clinical judgment, the
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No. 2012AP665
County need not prove that the patient violated a treatment
condition, but it does need to prove that the transfer was based
on reasonable medical and clinical judgment. See Wis. Stat.
§ 51.35(1)(a), (1)(e)1. In fact, the statute specifically
allows for transfers that are "consistent with reasonable
medical and clinical judgment." Id. On the other hand,
§ 51.35(1)(e)4., the subdivision that requires a hearing within
ten days for certain transfers, requires that the "department
seeking the transfer has the burden of proving . . . that the
patient violated a condition of a transfer to less restrictive
treatment that resulted in a transfer under subd. 2." Wis.
Stat. § 51.35(1)(e)4. (emphasis added). If we interpret
§ 51.35(1)(e) as requiring a hearing within ten days for all
transfers, not just those that are for a violation of a
treatment condition, the County would be required to prove a
violation of a treatment condition, even if the transfer was
based on reasonable medical and clinical judgment. The County
should not be asked to falsify its reasons for transfer. Thus,
it is absurd to interpret the statute to provide for a hearing
within ten days for all transfers under § 51.35(1)(e) and to
require the County to prove a violation of a treatment condition
regardless of the reason for transfer. We must interpret
statutory language reasonably, "to avoid absurd or unreasonable
results." Kalal, 271 Wis. 2d 633, ¶46.
¶27 The legislative history of Wis. Stat. § 51.35 confirms
our plain language interpretation. Id., ¶51 (stating that
"legislative history is sometimes consulted to confirm or verify
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No. 2012AP665
a plain-meaning interpretation"). A prior version of the
statute did not address transfers due to alleged violations of
treatment conditions. See Wis. Stat. § 51.35(1)(e) (1985-86).
In 1987, the legislature amended § 51.35(1)(e):
Note: The repeal and recreation of s. 51.35(1)(e) by
this bill creates procedural rights in addition to
those in current law for persons who are transferred
between facilities or from outpatient to inpatient
status and applies these rights to patients who, due
to an alleged violation of a condition of a transfer
to less restrictive treatment: (1) are transferred to
a more restrictive facility for longer than 5 days; or
(2) or transferred from outpatient to inpatient status
for more than 5 days.
See 1987 Wis. Act 366, § 14 (emphasis added). One of the newly
created procedural rights in 1987 Wis. Act 366 was a right to an
administrative hearing within ten days of the more restrictive
transfer. Id. The legislative note to 1987 Wis. Act 366
reinforces that the hearing within ten days was meant to be
applicable only to more restrictive transfers resulting from an
alleged violation of a treatment condition.
¶28 Considering our interpretation of Wis. Stat.
§ 51.35(1)(e), we next turn to consider whether Elizabeth M.P.
comports with our interpretation. In that case, Elizabeth was
the subject of a mental health commitment, was initially treated
at an inpatient facility, and in March 2002, was transferred to
an outpatient facility. Elizabeth M.P., 267 Wis. 2d 739, ¶¶2-3.
On May 28, 2002, a notice was filed to transfer Elizabeth from
outpatient to inpatient care under § 51.35(1). Id., ¶3. An
19
No. 2012AP665
affidavit from Fond du Lac's corporation counsel gave the
reasons for Elizabeth's transfer:
An affidavit by the corporation counsel for Fond
du Lac county, attached to this notice, indicated that
since Elizabeth's outpatient placement she had refused
to take her court-ordered medication, had become
delusional, argumentative and aggressive, and had
failed to take her psychotropic medication as
prescribed. The affidavit further indicated that
Elizabeth's mental condition had substantially
deteriorated, that she was unable to meet the demands
of everyday life, and that she had violated conditions
of her commitment 'in that she has failed to comply
with recommended treatment.'
Id., ¶4. Elizabeth filed a motion for immediate release from
inpatient treatment, arguing that she was entitled to and did
not receive a hearing within ten days under Wis. Stat.
§ 51.35(1)(e)3. Id., ¶7. The circuit court concluded that
Elizabeth's transfer was made pursuant to subdivision (1)(e)1.,
not subdivisions (1)(e)2.-3., and she was therefore not entitled
to a hearing within ten days. Id. The circuit court
subsequently conducted a transfer review hearing under
§ 51.35(1)(e)1. and approved of the transfer, "finding that the
least restrictive environment consistent with Elizabeth's needs
was inpatient status." Id., ¶9. Elizabeth appealed the circuit
court's approval of her transfer. Id.
¶29 The court of appeals reviewed "whether the circuit
court had jurisdiction to transfer Elizabeth to inpatient status
when judicial review of the County's decision to transfer her
was not held within ten days as required by Wis. Stat.
20
No. 2012AP665
§ 51.35(1)(e)3." Id., ¶10. The court of appeals interpreted
§ 51.35(1)(e):
[Subdivisions] 51.35(1)(e)1 and (1)(e)2 seem to
indicate different forms of transfers. The provisions
suggest that while only one transfer provision and its
various subdivisions all serve to protect the rights
of patients, subdivision 2 exists to further protect
the rights of those whose transfer 'results in a
greater restriction of personal freedom for the
patient for a period of more than 5 days or any
transfer from outpatient to inpatient status for a
period of more than 5 days' where the transfer 'is due
to an alleged violation of a condition of a transfer
to less restrictive treatment.'
Id., ¶17 (quoting Wis. Stat. § 51.35(1)(e)2.) (footnote
omitted). The court concluded that Elizabeth's transfer had
been pursuant to subdivision (1)(e)2. because "the document
affecting her transfer relates the rights that are enumerated in
§ 51.35(1)(e)3 to 5," including a right to a review hearing
within ten days of her transfer. Id., ¶18. Further, one of the
reasons for her transfer was her alleged failure to take court-
ordered medications as her treatment conditions required. Id.,
¶19.
¶30 The court then considered whether a hearing within ten
days under Wis. Stat. § 51.35(1)(e)3. is mandatory or directory.
Id., ¶20. The court concluded that a hearing within ten days
under § 51.35(1)(e)3. is mandatory. Id., ¶25. In other words,
there is no discretion in holding a hearing under subdivision
(1)(e)3. because the statute requires that "'a hearing shall be
held.'" Id., ¶21.
21
No. 2012AP665
¶31 However, the court of appeals, in its concluding
paragraphs, broadly stated that "[t]ransfers pursuant to
§ 51.35(1)(e) require a hearing within ten days." Id., ¶26; see
also id., ¶28. The court did not clearly differentiate between
the two types of transfers when it reached its conclusions.
¶32 The statements in the concluding paragraphs of
Elizabeth M.P. do not comport with the plain language of Wis.
Stat. § 51.35(1)(e). Moreover, the concluding paragraphs are
not consistent with the underlying analysis of the Elizabeth
M.P. decision, wherein the court of appeals did distinguish
between transfers under subdivisions (1)(e)1. and (1)(e)3. See
id., ¶17 ("However, § 51.35(1)(e)1 and (1)(e)2 seem to indicate
different forms of transfers. . . . [S]ubdivision 2 exists to
further protect the rights of those whose transfer" is due to a
violation of a treatment condition). As a result, we withdraw
any language in Elizabeth M.P. that is contrary to our
conclusion that § 51.35(1)(e) does not require a hearing to be
conducted within ten days of a transfer when the transfer is
based on reasonable medical and clinical judgment under
§ 51.35(1)(e)1.
¶33 Applying our interpretation of Wis. Stat.
§ 51.35(1)(e) to the facts of this case, we conclude that Samuel
was not entitled to a hearing within ten days of his transfer
under subdivision (1)(e)3. because his transfer was based on
reasonable medical and clinical judgment, not a violation of a
treatment condition. Samuel's social worker testified that he
had become "increasingly psychotic and his behavior had become
22
No. 2012AP665
out of control." The transfer form stated that "Samuel is
presenting as delusional. His thoughts are confused and he is
agitated. He repeatedly stated he put a hole in the door
because 'someone was shot down and should be taken care of.'"
The circuit court was not clearly erroneous in finding that
Samuel had been transferred based on reasonable medical and
clinical judgment. See Phelps, 319 Wis. 2d 1, ¶34, (stating
that we uphold a circuit court's factual findings unless they
are clearly erroneous). We therefore affirm the circuit court's
denial of Samuel's petition to transfer and conclude that he was
not entitled to a hearing within ten days of his transfer under
§ 51.35(1)(e)3. because his transfer was based on reasonable
medical and clinical judgment.7
7
A patient who is transferred under subdivision (1)(e)1.——a
transfer for reasonable medical and clinical judgment that
results in a more restrictive placement——is entitled to the
rights as set forth in that subdivision, including "the right to
petition a court in the county in which the patient is located
or the committing court for a review of the transfer." Samuel
received a review of his transfer in front of the Manitowoc
County Circuit Court, which upheld the transfer because it
concluded that inpatient placement was the least restrictive
treatment appropriate for Samuel's needs. Samuel does not
challenge that portion of the circuit court's order.
23
No. 2012AP665
IV. CONCLUSION
¶34 We hold that Wis. Stat. § 51.35(1)(e) does not require
a hearing to be conducted within ten days of a transfer when the
transfer is based on reasonable medical and clinical judgment
under § 51.35(1)(e)1. We withdraw any language from Elizabeth
M.P. to the contrary. We further hold that a hearing must be
conducted within ten days of a transfer when (1) the transfer
"results in a greater restriction of personal freedom for the
patient for a period of more than 5 days" or is "from outpatient
to inpatient status for a period of more than 5 days" and (2)
the transfer is based on "an alleged violation of a condition of
a transfer to less restrictive treatment" under § 51.35(1)(e)2.-
3.
By the Court.—The order of the circuit court is affirmed.
Though it may be better practice to hold a hearing within
ten days for all patients transferred under Wis. Stat.
§ 51.35(1)(e), the statute does not mandate that procedure for
transfers based on reasonable medical and clinical judgment
under § 51.35(1)(e)1. At oral argument, Manitowoc County stated
that after Samuel's case, it had in fact been conducting a
hearing within ten days for all patients transferred under
§ 51.35(1)(e), which had not resulted in a great burden on the
County. As the plain language of § 51.35(1)(e) does not require
a hearing within ten days for patients transferred for
reasonable medical and clinical judgment under subdivision
(1)(e)1., arguments to change the procedure should properly be
made to the legislature.
24
No. 2012AP665.ssa
¶35 SHIRLEY S. ABRAHAMSON, C.J. (concurring).1 I agree
with the majority opinion and Manitowoc County that the plain
language of Wis. Stat. § 51.35(1)(e)1. and § 51.35(1)(e)2.
provides different procedures, depending on the grounds stated
for the patient's transfer. But interpreting these provisions
literally, as the majority opinion does, without examining them
in the context of Chapter 51 and without considering the
policies and procedures the legislature has explicitly
established in Chapter 51 violates the majority opinion's stated
rules of statutory interpretation requiring it to interpret a
statute reasonably to avoid absurd or unreasonable results.
¶36 I write not only to disagree with the majority
opinion's statutory interpretation, but also as importantly, to
commend Manitowoc County. When the County discovered what
happened in the present case, it reviewed its practices. As a
result of its self-examination, Manitowoc County is working with
the entities across the State in which patients from Manitowoc
County reside. The County has adopted procedures that follow
the statutes, adhere to legislative policies, and protect
patients' statutory liberty rights and interests, without
increasing costs. Hats off to Manitowoc County!
I
¶37 In the present case, Samuel J.H. was transferred on
September 22, 2011, from outpatient status in Manitowoc County
1
I concur because I would not, in the present case, turn
the clock back and give Samuel J.H. the ten-day hearing at this
time. He was afforded judicial review on the merits of his
transfer and his inpatient placement has been upheld.
1
No. 2012AP665.ssa
to inpatient status in an inpatient facility in Green Bay,
Wisconsin, about 40 miles away. Samuel J.H. stayed in Green Bay
four days and on September 26, 2011, was transferred to the
Trempealeau County Health Care Center in Whitehall, Wisconsin,
about 215 miles from Green Bay.
¶38 On the day that Samuel J.H. was transferred from
Manitowoc to Green Bay, he was provided with a piece of paper
informing him that he had the following rights:
1. The right to contact a lawyer and a member of his
family;
2. The right to have counsel provided at public expense
"if indigent;" and
3. The right to petition a court in the county in which
he is located or the committing court for review of
the transfer.
¶39 This piece of paper was apparently intended to satisfy
Wis. Stat. § 51.35(1)(e)1. and § 51.60(1)(a). I do not think it
does. At a minimum, the form Samuel J.H. was given seems to
conflict with Wis. Stat. § 51.60(1)(a) with regard to the
appointment of counsel. The form seems to indicate Samuel J.H.
is entitled to counsel at public expense only if he is indigent,
but § 51.60(1)(a) explicitly requires no such indigency
determination.2
2
Section § 51.60(1)(a), the section specifically referenced
in § 51.35, explicitly states that the state public defender
shall appoint counsel for any adult who has a right to be
represented by counsel without a determination of indigency.
2
No. 2012AP665.ssa
¶40 Furthermore, Wisconsin Stat. § 51.60 requires that a
patient "be referred as soon as practicable to the state public
defender . . . ." Wisconsin Stat. § 51.60 is entitled
"Appointment of Counsel" and reads, in pertinent part:
(1) Adults. (a) In any situation under this chapter
in which an adult individual has a right to be
represented by counsel, the individual shall be
referred as soon as practicable to the state
public defender, who shall appoint counsel for
the individual under s. 977.08 without a
determination of indigency (emphasis added).
¶41 Samuel J.H. was not referred to the State Public
Defender as soon as practicable.3 Indeed, the State Public
In contrast, the form given to Samuel J.H. states the right
to counsel as follows: "The right to have counsel provided at
public expense, as provided under s. 967.06 and ch. 977, if
Subject is a child or is indigent. . . ."
A patient who receives and reads this form could easily be
confused regarding the right to counsel and at whose expense
counsel will be provided.
At the bottom of the form, the following Note appears:
In Manitowoc County, the Public Defender can be
reached as follows:
State of Wisconsin Public Defender
933 South Eighth Street, Suite 102
Manitowoc, WI 54220
(920) 683-4690
3
At oral argument, Assistant Corporation Counsel Ryan
O'Rourke touched on the interpretation of the word "refer." He
explained that in Manitowoc County, transferred patients are now
"referred to the public defender's office and then [corporation
counsel] leave[s] it in [the public defender's] hands as to make
the decision on whether someone needs to be appointed. At least
[we] notify [the public defender] and make them aware of it, and
then that agency is responsible for making their own decision as
to whether they're statutorily obligated to appoint counsel."
3
No. 2012AP665.ssa
Defender was not informed of Samuel J.H.'s transfer until Samuel
J.H. himself wrote a letter to Manitowoc County Circuit Court
Judge Jerome Fox in November 2011. Judge Fox then informed the
Manitowoc County Corporation Counsel of Samuel J.H.'s letter,
and corporation counsel then referred the matter to the State
Public Defender. Majority op., ¶¶8-10.
¶42 Thus, nearly two months passed between Samuel J.H.'s
transfer to inpatient status and his referral to a public
defender. But for Samuel J.H.'s own action in sending a letter
to the Manitowoc County Circuit Court, he may never have had
counsel appointed and may never have had a hearing. The initial
failure of the County to refer Samuel J.H.'s transfer to the
State Public Defender and the County's placing the onus on
Samuel J.H. to obtain counsel (and advise his family) do not
comport with Wis. Stat. § 51.35(1)(e)1. or § 51.60. The purpose
of the statutes and the legislative policy have been skirted in
the present case by the majority opinion and the rights of the
mentally ill have been diluted.
¶43 The legislature has declared that any person in need
of care must have "access to the least restrictive treatment"
appropriate for his or her needs and that in order "to protect
personal liberties, no person who can be treated adequately
Oral Argument at 51:17-52:35, Manitowoc County v. Samuel J.H.,
2012AP665, available at
http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?
evhdid=7191 (last visited June 28, 2013).
4
No. 2012AP665.ssa
outside of a hospital, institution or other inpatient facility
may be involuntarily treated in such a facility."4
¶44 The majority opinion does not facilitate least
restrictive treatment and does not comport with the
legislature's balancing the personal liberty interests of the
individual and the protection of the individual and the public.5
4
Wisconsin Stat. § 51.001, "Legislative Policy," reads as
follows:
(1) It is the policy of the state to assure the
provision of a full range of treatment and
rehabilitation services in the state for all
mental disorders and developmental disabilities
and for mental illness, alcoholism and other drug
abuse. There shall be a unified system of
prevention of such conditions and provision of
services which will assure all people in need of
care access to the least restrictive treatment
alternative appropriate to their needs, and
movement through all treatment components to
assure continuity of care, within the limits of
available state and federal funds and of county
funds required to be appropriated to match state
funds.
(2) To protect personal liberties, no person who can
be treated adequately outside of a hospital,
institution or other inpatient facility may be
involuntarily treated in such a facility
(emphasis added).
5
The court has recognized that "[c]urrent mental health
statutes reflect a balance between treating mental illness and
protecting the individual and society from danger on the one
hand, and personal liberty of the individual on the
other. . . . Hence, from the first section of [Chapter 51], we
see the tension between the role of the government to provide
caring treatment (sometimes involuntarily and, if necessary, by
force) and the personal liberty of the individual." Outagamie
County v. Melanie L., 2013 WI 67, ¶¶43, 58, ___ Wis. 2d ___, ___
N.W.2d ___.
5
No. 2012AP665.ssa
¶45 Samuel J.H. has committed no crime. The State is
providing him treatment because he has a mental illness. If the
State is to restrain those with a mental illness, it must guard
their liberty interests scrupulously. The legislature has
explicitly adopted this policy and accorded the individual the
services of the State Public Defender.
¶46 The majority opinion has wandered off the clearly
marked legislative course mandating the protection of the basic
liberty interests of the mentally ill.
¶47 The majority opinion does not guard the liberty
interests of the mentally ill scrupulously.
¶48 The majority opinion fails to harmonize
§ 51.35(1)(e)1. and § 51.35(1)(e)2. and interpret the provisions
in the context of the expressed legislative policy and the
procedural safeguards. The majority opinion severely undermines
a patient's statutory procedural rights, including the patient's
statutory right to government-paid counsel. In failing to
interpret and apply the statutes in a manner that makes sense
and respects the legislative purpose and policy, the majority
opinion allows manipulation of the rights of the mentally ill.6
6
The transferring entity determines what kind of hearing
the patient gets by the way it fills out the transfer form.
Samuel J.H. questions whether the entity should be able to
decide not only on the transfer but also on the hearing rights
of the patient.
6
No. 2012AP665.ssa
Statutes must not be interpreted and applied in such a manner as
to permit manipulation of the procedural rights of the mentally
ill or to render statutory provisions meaningless or
superfluous.
¶49 The result the majority opinion reaches is
unreasonable in light of the text of the statute, the rights
statutorily granted Samuel J.H., and the explicit legislative
policy.
II
¶50 To ensure the rights of patients and compliance with
the statutes, counties should follow Manitowoc's lead.
¶51 Manitowoc County Corporation Counsel explained at oral
argument that subsequent to Samuel J.H.'s case, the County
realized that Wis. Stat. § 51.35 was not well implemented. The
County then worked with the various entities in which Chapter 51
patients reside and created and is following a standard written
policy. The County now gives notice to the State Public
Many patients, including Samuel J.H., probably could be
classified under either Wis. Stat. § 51.35(1)(e)1. or
§ 51.35(1)(e)2. or both statutory provisions. Samuel J.H.'s
social worker testified that he had violated two conditions of
his outpatient treatment, but she asserted that he was not
transferred because of these violations of his treatment
conditions. Majority op., ¶12. Thus, the transferring entity
often, if not always, has an opportunity to decide between
whether the patient is transferred for "medical and clinical"
reasons or a "violation of conditions."
The majority opinion provides a blueprint for how
authorities can fill out transfer papers to ensure that a
patient does not receive a ten-day hearing. Unfortunately, the
majority opinion may render the ten-day hearing and the
procedural protections in § 51.35(1)(e)2.-5. relics of the past.
7
No. 2012AP665.ssa
Defender immediately when a patient is being transferred. A
ten-day hearing is ordinarily held. Assistant Corporation
Counsel Ryan O'Rourke noted that providing a ten-day hearing in
every transfer is not a significant burden.7 Corporation counsel
stated that the new effort does not require substantially more
time or effort,8 and in the end, ensures that the process is
7
Oral Argument at 40:30-40:45, Manitowoc County v. Samuel
J.H., 2012AP665, available at
http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?
evhdid=7191 (last visited June 28, 2013).
8
At oral argument, Assistant Corporation Counsel O'Rourke
explained that some facilities in which Chapter 51 patients
reside did not know how to appoint a hearing officer, indicating
that the facilities may not be familiar with the statutory
requirements of hearings. This revelation is cause for concern,
yet the majority opinion remains oblivious to the practice. The
Manitowoc County Corporation Counsel is assisting the facilities
with which it works.
Assistant Corporation Counsel O'Rourke advised the court as
follows:
[T]he biggest problem with Samuel J.H.'s case that I
have with how it happened was that counsel wasn't
appointed right away. And the statute doesn't require
us to, the statute simply requires that we notify him
of his right to counsel and provide him the contact
information, but we as a county have taken it upon
ourselves to, regardless of the reason for transfer,
our office is notified immediately, which wasn't
always happening. Probate is notified immediately,
which wasn't always happening, whether we think a
hearing's necessary or not, and the public defender is
notified through probate and an attorney is appointed
immediately, so that we're not having this delay that
we had in Samuel's case where it was a month and a
half before he requested the hearing. Under the
statute do I think we have to do that? No, but I
believe it's better procedure.
8
No. 2012AP665.ssa
fair. As Corporation Counsel explained, "[I]t's the more
legally conservative approach to take to protect the transfer."9
¶52 Because the majority opinion's interpretation of Wis.
Stat. §§ 51.35 and 51.60 has wandered off the clearly marked
legislative course of protecting the basic liberty interests of
the mentally ill and leads to an absurd and unreasonable result,
I cannot join the majority opinion. A reasonable and harmonious
reading of §§ 51.35 and 51.60 leads to the conclusion that all
patients with outpatient status transferred to inpatient status
are referred to counsel and granted a hearing within ten days to
determine whether the form of treatment resulting from the
transfer is the least restrictive alternative and consistent
with the treatment needs of the patient.
¶53 A measure of a society is how it treats its weakest
members. The legislature has incorporated this ethos into the
Oral Argument at 34:23-35:18, Manitowoc County v. Samuel J.H.,
2012AP665, available at
http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?
evhdid=7191 (last visited June 28, 2013).
9
Assistant Corporation Counsel O'Rourke said in full:
Subsequent to Samuel J.H., and not that this has any
effect on Samuel's case, but procedurally what we've
done as a county is it became clear to me we needed a
standard written set of policies to follow, we
implemented those, we are holding the hearing
regardless of the reason for transfer now, simply
because I believe it's the more legally conservative
approach to take to protect the transfer.
Oral Argument at 33:48-34:15, Manitowoc County v. Samuel J.H.,
2012AP665, available at
http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?
evhdid=7191 (last visited June 28, 2013).
9
No. 2012AP665.ssa
statutes, and this court should interpret the statutes to
achieve the clearly stated legislative policy and purpose. The
majority opinion does not.
¶54 For the reasons set forth, I write separately.
10
No. 2012AP665.ssa
1