R.S. v. Milwaukee County , 154 Wis. 2d 706 ( 1990 )

FINE, J.

This is an appeal from an order appointing a guardian for R.S. pursuant to sec. 880.12, Stats., on the trial court's finding that she was incompetent.¹ See sec. 880.03, Stats, (incompetents are subject to guardianship). R.S. and her guardian ad litem contend that the trial court erroneously relied on the written report filed with the court by Nicholas E. Claditis, Ed.D., a licensed psychologist, in lieu of his live testimony. We disagree, and affirm.

I — I

The petition for guardianship alleged that R.S., a fifty-six year old woman residing in a nursing home, was incompetent as a result of "chronic paranoid schizophrenia." At the hearing held pursuant to sec. 880.33, Stats., the trial court heard live testimony from only one witness, a court liaison employee with the Community Services Division of Milwaukee County who had worked in that capacity since 1976. She told the trial court that she had filed hundreds of guardianship petitions, and had testified in hundreds of guardianship cases. Having interviewed R.S. four or five times, she testified about her impressions:

She has delusions of grandeur. At times she'll tell you she owns everything that she surveys. She goes in and out. She has a diagnosis of chronic schizophrenia.

The diagnosis of "chronic schizophrenia" was made by Dr. Claditis, and was contained in his report to the trial court under sec. 880.33(1), Stats.² The liaison worker also testified that during her most recent visit with R.S., R.S. claimed that her name was Jack and that she was twenty-four years old. "She does not have insight into her medical dilemma," the liaison worker added, noting that R.S. had muscular dystrophy, was unable to walk, was bedridden, and that all of her needs had to be met by nursing-home personnel. When allowed to answer over an objection interposed by R.S.'s counsel, the court liaison worker opined, "I feel that [R.S.] is a proper subject for guardianship because I don't think that she could maintain herself either mentally or physically outside of a structured setting." She added, however, that she was not seeking a protective placement for R.S.³

The trial court received Dr. Claditis' written evaluation of R.S. into evidence over objections by R.S.'s attorney. The court also adjourned the hearing, at the request of R.S.'s attorney, to permit R.S. to call Dr. Claditis as a witness so, as phrased by R.S.'s attorney, "I can exercise my client's right to cross-examine him." On the adjourned date, however, R.S.'s attorney made the following statement to the trial court:

At the point we left off last week the corporation counsel had rested. There was some discussion about my possibly subpoenaing Dr. Claditis. Upon doing further research on the matter and conferring with some of my colleagues I decided it was not the Public Defender's Office duty [sic] to subpoena the witness but the corporation counsel's in order to have the opportunity to cross examine that doctor.

The trial court issued a written decision, which concluded that the testimony by the liaison worker, as reinforced by Dr. Claditis' report, established by clear and convincing evidence that R.S. was incompetent.

R.S.'s appeal raises two issues. First, she contends that the trial court may not determine that a person is a proper subject for guardianship based on incompetency unless the proponent of guardianship produces the licensed physician or licensed psychologist to testify at the hearing. Second, she argues that the trial court improperly received Dr. Claditis' report into evidence.⁴

A.

As material here, sec. 880.33, Stats., provides:

Incompetency; appointment of guardian. (1) Whenever it is proposed to appoint a guardian on the ground of incompetency, a licensed physician or licensed psychologist, or both, shall furnish a written statement concerning the mental condition of the proposed ward, based upon examination. A copy of the statement shall be provided to the proposed ward, guardian ad litem and attorney . . ..⁵

(2)(a)l. . . . The proposed ward, attorney or guardian ad litem shall have the right to present and cross-examine witnesses, including the physician or psychologist reporting to the court under sub. (1). The attorney or guardian ad litem for the proposed ward shall be provided with a copy of the report of the physician or psychologist at least 96 hours in advance of the hearing.

Section 880.33, Stats., is clear and must be applied as written. See Ball v. District No. 4, Area Bd., 117 Wis. 2d 529, 538, 345 N.W.2d 389, 394 (1984). Under sec. 880.33, the evaluative report prepared by the physician or psychologist is filed with the court, and must be given to the proposed ward at least four days before the hearing. The statute does not require that the physician or psychologist testify at the hearing unless the proposed ward wishes to exercise his or her right "to present and cross-examine witnesses, including the physician or psychologist reporting to the court." Sec. 880.33(2)(a) 1, Stats.

R.S.'s argument that sec. 880.33(2)(a)l's use of the word "cross-examine" requires that the physician or psychologist be called by the party seeking the determination of guardianship loads the phrase with a burden that it was not meant to bear. As we have seen, the statute gives the proposed ward the right "to present . . . witnesses, including the physician or psychologist reporting to the court." Sec. 880.33(2)(a) 1. The proposed ward's right to "cross-examine" these witnesses, also granted by sec. 880.33(2)(a)l, is thus consistent with Rule 906.11(3), Stats., which permits a party to ask leading questions of witnesses it presents but who are identified with an adverse party, and with Rule 906.07, Stats., which permits a party to impeach those witnesses. See also United States v. Dixon, 547 F.2d 1079, 1082 n.2 (9th Cir. 1976) (provision in Rule 609(a) of the Federal Rules of Evidence permitting evidence that a witness has been convicted of a crime to be "established by public record during cross examination" also applies during party's direct examination of its own witness).

The right "to present and cross-examine witnesses, including the physician or psychologist reporting to the court" granted to a proposed ward by sec. 880.33(2)(a) 1 does not require the proponent of guardianship to produce the physician or psychologist.⁶ The trial court complied with the statute, and honored R.S.'s right to cross-examine Dr. Claditis, a right R.S. deliberately chose not to exercise.⁷

B.

R.S. contends that the trial court improperly received Dr. Claditis' report into evidence because, she argues, it is hearsay and was not properly authenticated.

1.

" 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 908.01(3), Stats. Dr. Claditis' report was thus hearsay. The rule against hearsay provides that " [h]earsay is not admissible except as provided by these rules or by other rules adopted by the supreme court or by statute." Rule 908.02, Stats, (emphasis added). As we have already seen, sec. 880.33(1), Stats., requires that the person subject to the petition for guardianship be examined by either a licensed physician or a licensed psychologist. The examiner must then report his or her findings to the court in "a written statement." Ibid. As we point out in part II. A., the examiner need not testify at the hearing unless he or she is called by the proposed ward. Since the trial court may thus rely on the examiner's report even though the examiner has not testified, it is an exception to the rule against hearsay "adopted ... by statute" within the meaning of Rule 908.02. Accordingly, the trial court properly received Dr. Claditis' report in evidence.⁸

2.

R.S. also argues that Dr. Claditis' report was not properly authenticated. Rule 909.01, Stats., establishes the commonsense requirement that before something can be received into evidence it must actually be what it purports to be.⁹

Authentication may be established in many ways. See Rule 909.015, Stats. For example, a person who knows about the item may testify that it "is what it is claimed to be." Rule 909.015(1), Stats. Additionally, an item's authenticity may be proven by its " [a]ppearance, contents ... or other distinctive characteristics, taken in conjunction with circumstances." Rule 909.015(4), Stats.

Authentication may also be established by " [ejvidence that a writing authorized by law to be . . . filed . . . [is] in fact . . . filed in a public office," Rule 909.015(7), Stats, even though the writing was not generated by a government officer or employee. See Sternberg Dredging Co. v. Moran Towing and Transp. Co., 196 F.2d 1002, 1005 (2d Cir. 1952); C. McCormick, McCormick on Evidence sec. 224, at 694 (E. Cleary 3d ed. 1984). Thus, as Professors Jack B. Weinstein and Margaret A. Berger point out in their treatise on evidence, tax returns that are filed in a public office are, by virtue of the filing, authenticated as being what they purport to be by Federal Rule of Evidence 901(b)(7), 5 J. Weinstein & M. Berger, Weinstein's Evidence para. 901(b)(7)[01], at 901-99 (1989), from which Rule 909.015(7) was patterned without modification. Contrary to the dissent's conclusion, it is not a precondition to the authentication of a writing under Rule 909.015(7) that the writing be available for public inspection. See id. at 901-97 n.2.

Bearing in mind that the specific examples listed in Rule 909.015(1) through (10) are "[b]y way of illustration only, and [are] not by way of limitation," Rule 909.015, Stats., it is apparent that Dr. Claditis' report was properly authenticated. First, the court liaison worker testified that she asked Dr. Claditis to examine R.S., and that his report was on file with the court, pursuant to sec. 880.33(1), Stats. This testimony, and the fact of filing, authenticated the report under Rule 909.015(7). Second, the report is on a letterhead bearing the legend:

Nicholas E. Claditis, Ed.D. Consulting Psychologist

and bears a handwritten signature that reads "N.E. Claditis." The report discusses Dr. Claditis' examination of R.S., and notes that it was requested by the Milwaukee County Protective Services Management Team. This authenticated the document under Rule 909.015(4). Since there is overwhelming evidence that Dr. Claditis' report is what it purports to be, and there is no evidence to the contrary, the trial court did not abuse its discretion in relying on the document. See Alexander Dawson, Inc. v. NLRB, 586 F.2d 1300, 1302 (9th Cir. 1978) (authentication may be proven by context and circumstances). See also State v. Pharr, 115 Wis. 2d 334, 342, 340 N.W.2d 498, 501 (1983) (A trial court's ruling on an evidentiary issue will not be reversed if it " 'exercised its discretion in accordance with accepted legal standards and in accordance with the facts of record.' " [quoting State v. Wollman, 86 Wis. 2d 459, 464, 273 N.W.2d 225, 228 (1979)]).

Other than the objections we have discussed, neither R.S. nor her guardian ad litem challenges the trial court's finding that R.S. was incompetent. Accordingly, the order appointing a guardian for R.S. is affirmed.

By the Court. — Order affirmed.

1 Section 880.01(4), Stats., provides:

"Incompetent" means.a person adjudged by a court of record to be substantially incapable of managing his property or caring for himself by reason of infirmities of aging, developmental disabilities, or other like incapacities. Physical disability without mental incapacity is not sufficient to establish incompetence.

2 Section 880.33(1), Stats., provides in part:

Incompetency; appointment of guardian. (1) Whenever it is proposed to appoint a guardian on the ground of incompetency, a licensed physician or licensed psychologist, or both, shall furnish a written statement concerning the mental condition of the proposed ward, based upon examination.

3 "A finding of incompetency and appointment of a guardian under this subchapter is not grounds for involuntary protective placement. Such placement may be made only in accordance with s. 55.06.” Sec. 880.33(7), Stats.

4 R.S. also argues, in passing, that the liaison worker was not qualified to give an expert opinion as to whether R.S. was a proper subject for guardianship. This argument is without merit. The liaison worker was clearly qualified by her extensive experience to give that opinion. See Rule 907.02, Stats, (witness qualified by "experience" may give expert testimony). As noted, the specific diagnosis that R.S. was suffering from "chronic schizophrenia" was made by Dr. Claditis. The liaison worker properly relied on Dr. Claditis' report, as well as her own observations of R.S.'s mental and physical infirmities, in reaching her conclusion. See Rule 907.03, Stats.

5 Section 880.33(1), Stats., was amended by Supreme Court order filed October 25,1989, effective January 1,1990, to make it clear that neither the physician/patient privilege nor the psychologist/patient privilege recognized by Rule 905.04, Stats., applies to the written statement concerning the proposed ward's mental condition. 151 Wis. 2d xlvii-xlviii. Neither R.S. nor her guardian ad litem has asserted any privilege under Rule 905.04.

6 As the trial court pointed out, the procedure under sec. 880.33, Stats., is substantially similar to the procedure for determining the competency of a criminal defendant to stand trial under secs. 971.14(3) and (4), Stats. Under these provisions, the report prepared by the examiner is filed with the court and provided to the defendant. The defendant, if he or she wishes, may present evidence at the competency hearing, including the testimony of the person who prepared the report. Ibid.

7 There was no showing that Dr. Claditis could not be subpoenaed, and, accordingly, we do not reach the issue of whether a trial court may rely on a report filed under sec. 880.33(1), Stats., when the expert is not available to testify.

R.S. also argues that requiring a proposed ward to subpoena the physician or psychologist in order to exercise the right of cross-examination shifts the burden of proof. It does no such thing. The burden of proof remains on the proponent of guardianship in accordance with sec. 880.33(4), Stats. ("When it appears by clear and convincing evidence that the person is incompetent, the court shall appoint a guardian."). The trial court found that R.S.'s incompetency was proven "by clear and convincing evidence."

8 The trial court ruled that Dr. Claditis' report was admissible under Rule 908.03(8), Stats. That rule provides:

PUBLIC RECORDS AND REPORTS. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law, or (c) in civil cases and against the state in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

Dr. Claditis' report, however, was not a report of a public office or agency. Accordingly, Rule 908.03(8) does not apply. We nevertheless affirm the trial court's decision to admit Dr. Claditis' report into evidence. See State v. Alles, 106 Wis. 2d 368, 391, 316 N.W.2d 378, 388 (1982) (appellate court may affirm correct result even though trial court bases decision on wrong reason).

9 Rule 909.01, Stats., provides:

General provision. The requirements of authentication or identification as a condition precedent to admissibility are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.