Manitowoc County v. Samuel J. H.

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Appeal No. 2012AP665 Cir. Ct. No, 200GMEGS

WISCONSIN COURT OF APPEALS
DISTRICT il

INTHE MATTER OF THE MENTAL COMMITMENT OF

SAMUEL J. EL:
MANITOWOC COUNTY, FILED
PETITIONER-RESPONDENT, SEP 05, 2012
V. Dane M Frengen
Clerk of Suprene Court
SAMUEL J. H.,
RESPONDENT-APPELLANT.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Brown, C,J., Neubauer, P.J., and Reilly, J.

Pursuant to WIS. STAT. RULE 809.61 (2009-10),! this appeal is
certified to the Wisconsin Supreme Court for its review and detennination.

ISSUE

Whether our holding in Fond du Lac County v. Elizabeth M-P., 2003 WI
App 232, 99126, 28, 267 Wis. 2d 739, 672 N.W.2d 88, that “WISCONSIN STAT.

' All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise
noted. The chief judge of the court of appeals converted this from an appeal decided by one
judge to a three-judge panel by order dated August 6, 2012. See WIS. STAT. RULE 809.41(3).

No. 2012AP665
2
§ 51.35(1)(e) mandates that a patient transferred to a more restrictive environment
receive a hearing within ten days of said transfer,” is contrary to the plain
language of the statute. We certify to the supreme court for its determination as to
whether § 51.35(1)(e) mandates a hearing within ten days for all transferred
patients, including those transferred for medical reasons under § 51.35(1)(e)1., or
whether the mandate applies only to those transferred due to a violation of the
conditions of outpatient placement as set forth in § 51.35(1)(e)2.-5.
BACKGROUND
The facts relevant to the issue certified are brief and undisputed. On
September 22, 2011, Samuel, who was subject to an involuntary commitment
order under WIS. STAT. ch. 51, was transferred from an outpatient facility to
inpatient care. Samuel was provided with a written notice of his rights under WIS.
STAT. § 51.35(1)(e)1. After Samuel objected to the transfer, an attorney was
appointed for Samuel and a petition for review of transfer was filed. Relying on
this court’s holding in Fond du Lac County v. Elizabeth M.P., 267 Wis. 2d 739,
¶¶26, 28, Samuel argued that, under WIS. STAT. § 51.35(1)(e), he was entitled to a
hearing within ten days of transfer. Samuel requested that he be returned to
outpatient status.
Following a hearing, the circuit court determined that Samuel was
transferred for medical reasons under WIS. STAT. § 51.35(1)(e)1. and, therefore,
was not entitled to the mandatory hearing under § 51.35(1)(e)2. In arriving at its
decision, the circuit court acknowledged that while Elizabeth M.P. expressly
addressed § 51.35(1)(e)2. when discussing a mandatory hearing within ten days, it
then “thr[e]w the net over everything” in stating more broadly that a transfer under
§ 51.35(1)(e) requires a hearing within ten days. Ultimately, the circuit court

No. 2012AP665
3
concluded that the broad statement in Elizabeth M.P. was not consistent with the
statute.
DISCUSSION
Applicable Law. WISCONSIN STAT. § 51.35, governs patient transfers and
discharges under WIS. STAT. § ch. 51. Section 51.35(1)(a) permits a department or
county department to transfer any committed patient “between treatment facilities
or from a treatment facility into the community if the transfer is consistent with
reasonable medical and clinical judgment [and] consistent with [WIS. STAT. §]
51.22(5), and, if the transfer results in a greater restriction of personal freedom …,
in accordance with par. (e).” Section 51.35(1)(e) provides in relevant part:
(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.

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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 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.
4. The department or the county department seeking the
transfer has the burden of proving, by a preponderance of
the evidence, that 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 that
the patient violated a condition of a transfer to less
restrictive treatment that resulted in a transfer under
subd. 2. Hearsay evidence is admissible if the hearing
officer makes a determination that the evidence is reliable.
Hearsay evidence may not be the sole basis for the decision
of the hearing officer.
5. The hearing officer shall, as soon as possible after the
hearing, issue a written statement setting forth his or her
decision, the reasons for the decision and the facts upon
which the decision is based. Within 30 days after the date
on which the statement is issued, the patient or the
department or the county department seeking the transfer
may appeal the decision to a court in the county in which
the facility to which the patient has been transferred is
located or to the committing court….

No. 2012AP665
5
The application of WIS. STAT. § 51.35(1)(e) was addressed by this court in
Elizabeth M.P., 267 Wis. 2d 739. There, the issue was whether the circuit court
had jurisdiction to transfer the subject to inpatient status when judicial review of
the county’s decision to transfer her was not held within ten days as required under
§ 51.35(1)(e)3. Elizabeth M.P., 267 Wis. 2d 739, ¶10. First, this court considered
whether the patient was transferred for medical reasons under § 51.35(1)(e)1. or
whether she was transferred due to a violation of the conditions for the patient’s
less restrictive placement under § 51.35(1)(e)2. See Elizabeth M.P., 267 Wis. 2d
739, ¶12-20. After determining that the patient was transferred under subd. 2., we
considered whether a patient transferred from outpatient to inpatient treatment for
violations of the conditions of placement was entitled to a hearing within ten days
of transfer under § 51.35(1)(e)2.-5. See Elizabeth M.P., 267 Wis. 2d 739, ¶20.
In concluding the patient was entitled to such a hearing, the Elizabeth M.P.
court recognized that § 51.35(1)(e) indicated different forms of transfer: (1) those
based on medical decisions, § 51.35(1)(e)1., and (2) those based on violations of
conditions of outpatient treatment, § 51.35(1)(e)2.-5. Elizabeth M.P., 267 Wis. 2d
739, ¶17. The court reasoned:
On its face, WIS. STAT. § 51.35(1)(e) does not
differentiate between transfers made pursuant to
subdivisions 1 and 3. In fact, § 51.35(1)(e)3 clearly
references subdivision (1)(e)2, which in turn references
subdivision (1)(e)1. However, § 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.” Sec. 51.35(1)(e)2.

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Elizabeth M.P., 267 Wis. 2d 739, ¶17 (footnote omitted).2 Thus, while any patient
transferred to a more restrictive environment can petition for judicial review under
§ 51.35(1)(e)1., only those patients transferred for a violation of conditions are
afforded the additional procedure of an automatic hearing before a hearing officer
within ten days of transfer, followed by the right to petition for judicial review of
that determination. However, the Elizabeth M.P. court then went on to blur the
distinction between the two types of transfer, stating:
We therefore reverse the order of the circuit court
insofar as it found: (1) that the transfer to inpatient status
was made pursuant to WIS. STAT. § 51.35(1)(e)1, not
§ 51.35(1)(e)3; and (2) that a transfer under § 51.35(1)(e)1
does not require a hearing within ten days of the transfer.
Transfers pursuant to § 51.35(1)(e) require a hearing within
ten days.
Elizabeth M.P., 267 Wis. 2d 739, ¶26. The court reiterated this holding in its
conclusion, “WISCONSIN STAT. § 51.35(1)(e) mandates that a patient transferred to
2 The court’s reasoning is supported by the legislative council note to the 1987 Wis. Act
366, § 14 repealing and recreating WIS. STAT. § 51.35(1)(e). Prior to its repeal and recreation,
WIS. STAT. § 51.35(1)(e) consisted of only what is now subd. 1. See § 51.35(1)(e) (1985-86).
Explaining the addition of subds. 2.-5., the legislative council note states:
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) are transferred from outpatient to
inpatient status for more than 5 days.…
While the legislative history and statutory language supports the more specific reasoning in
Elizabeth M.P. identifying two categories of transfer, we note that Samuel raises due process
concerns as to any interpretation providing for a review process for those transferred for medical
or treatment reasons that does not require an automatic hearing. In addition, Samuel advocates
for a uniform process in order to avoid potential difficulties arising from categorizing transfers as
medical-based or violation-based.

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a more restrictive environment receive a hearing within ten days of said transfer.”
Elizabeth M.P., 267 Wis. 2d 739, ¶28.
Despite the more specific reasoning in Elizabeth M.P., Samuel
understandably relies on these final broad statements in support of his argument
that he has a right to a hearing within ten days under WIS. STAT. § 51.35(1)(e)1.
While the State distinguishes Elizabeth M.P. on its facts and contends that
Samuel’s argument ignores the statute and specific reasoning in Elizabeth M.P.,
this court’s broader statement remains. The inconsistency in Elizabeth M.P. was
noted in this case by both the circuit court and the County and, while apparent to
us too, we are powerless to address it. Cook v. Cook, 208 Wis. 2d 166, 189-90,
560 N.W. 2d 246 (1997) (the court of appeals may not overrule, modify or
withdraw language from its prior published decisions). In light of the confusion
surrounding the application of Elizabeth M.P. to transfers made pursuant to WIS.
STAT. § 51.35(1)(e)1., we respectfully request that the supreme court accept
certification in order to provide needed guidance on the issue.