PUBLISHED OPINION
Case No.: 94-0688
† Petition
for Review Filed.
Complete Title
of Case:
IN THE MATTER OF CAROL J. R.:
CAROL J. R.,
Appellant, †
v.
COUNTY OF MILWAUKEE,
Respondent.
Submitted on Briefs: November 1, 1994
Oral Argument: ---
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: September 19, 1995
Opinion Filed: September 19, 1995
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Milwaukee
(If "Special", JUDGE: DAVID L. DANCEY, Reserve
so indicate)
JUDGES: Sullivan,
Fine and Schudson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSFor
the appellant the cause was submitted on the briefs of Mark Lukoff,
assistant state public defender.
Respondent
ATTORNEYSFor
the respondent the cause was submitted on the briefs of Robert G. Ott,
corporation counsel, with Robert A. McKnight, principal assistant
corporation counsel.
|
COURT OF APPEALS DECISION DATED AND RELEASED September 19, 1995 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-0688
STATE
OF WISCONSIN IN COURT OF
APPEALS
IN THE MATTER OF CAROL
J. R.:
CAROL J. R.,
Appellant,
v.
COUNTY OF MILWAUKEE,
Respondent.
APPEAL from an order of
the circuit court for Milwaukee County: DAVID L. DANCEY, Reserve Judge. Affirmed.
Before Sullivan, Fine
and Schudson, JJ.
SULLIVAN,
J. Carol J. R. appeals from an order denying her motion
for post-commitment relief from a probate court commissioner's order for
involuntary medication. The central
issue on appeal is whether a probate court commissioner has the authority to
order post-involuntary commitment psychotropic medication.[1]
We conclude that the
Wisconsin Supreme Court's conclusion in State ex rel. Jones v.
Gerhardstein, 141 Wis.2d 710, 745-46, 416 N.W.2d 883, 898 (1987), that
recognized a court commissioner to hear and determine the medication issue
under a previous version of § 51.61, Stats.,
survived unscathed from a repeal and recreation of § 51.61(1)(g)3, Stats.[2] Accordingly, we affirm the order denying
post‑commitment relief.
The facts are
undisputed. On October 26, 1993, the
trial court committed Carol J. R. to the custody of the Milwaukee County
§ 51.42 Board for six months and designated the Milwaukee County Mental
Health Complex as the facility to receive her into the mental health system for
involuntary treatment. Upon a motion of
the Board and after a hearing, the probate court commissioner authorized the
Board to administer psychotropic drugs to Carol J. R. using appropriate
medical standards. On March 8, 1994,
Carol J. R. moved the trial court to vacate the court commissioner's
order authorizing the administration of psychotropic drugs, contending that a
probate court commissioner lacks authority to conduct § 51.61(1)(g), Stats., hearings as provided by
§§ 757.69 and 757.72, Stats.[3] On March 18, the trial court denied Carol J.
R.'s post-commitment motion.
Resolution of this issue
requires the application of statutes to undisputed facts. Accordingly, it presents an issue of law
that we determine without deference to the conclusions of the trial court. Old Republic Surety Co. v. Erlien,
190 Wis.2d 401, 411, 527 N.W.2d 389, 392 (Ct. App. 1994).
Carol J. R. argues that
the legislature terminated the power of a probate court commissioner to conduct
post-final commitment hearings on involuntary administration of psychotropic
drugs when it repealed and recreated § 51.61(1)(g), Stats., six months after the supreme
court decided Gerhardstein.
See 1987 Wis. Act 366, § 18.
In Gerhardstein,
the supreme court determined that an unconstitutional disparity of rights
existed between precommitment detainees and involuntary committees with respect
to the right to exercise informed consent for the administration of
psychotropic drugs. Gerhardstein,
141 Wis.2d at 733-34, 416 N.W.2d at 892-93.
The precommitment detainees had the right to exercise informed consent;
the committees did not. Id.
at 733-35, 416 N.W.2d at 892-93.
Applying an equal protection analysis, the court thoroughly discussed
the circumstances under which involuntary detainees and committees may be
forcibly administered psychotropic drugs.
Id. at 733-45, 416 N.W.2d at 892-97. Only after detailing this remedial scheme
did the court discuss the authority to hear and determine motions relating to
involuntary administration of medication.
The court stated that the hearing could be concomitant with the original
commitment hearing under the standard of § 51.61(1)(g), Stats., or at any time thereafter
during the pendency of the involuntary commitment. Id. at 746, 416 N.W.2d at 898. Further, the court stated that “such
hearings could be held by court commissioners.” Id. (emphasis added).
The supreme court
decided Gerhardstein on December 21, 1987. The Wisconsin Legislature, however, repealed
and recreated § 51.61(1)(g), Stats.,
effective May 3, 1988. See 1987
Wis. Act 366, § 18.
Section §51.61(1)(g), Stats. (1985-86), pre‑repeal,
provided in part:
Prior to the final commitment hearing and
court commitment orders, [each patient shall] have the right to refuse all
medication and treatment except as ordered by the court under this paragraph,
or in a situation where such medication or treatment is necessary to prevent
serious physical harm to the patient or to others. Medications and treatment during such period may be refused on
religious grounds only as provided in par. (h). At or after the hearing to determine probable cause for
commitment but prior to the final commitment order, the court may issue an
order permitting medication to be administered to the individual regardless of
his or her consent if it finds that such medication will have therapeutic value
and will not unreasonably impair the ability of the individual to prepare for
or participate in subsequent legal proceedings, and that there is probable
cause to believe that the individual is not competent to refuse
medication. Before issuing such an
order, the court shall hold a hearing on the matter which meets the
requirements of s. 51.20(5), except for the right to a jury trial. An individual is not competent to refuse
medication if because of mental illness, developmental disability, alcoholism
or drug dependence, the individual is incapable of expressing an understanding
of the advantages and disadvantages of accepting treatment, and the
alternatives to accepting the particular treatment offered, after the
advantages, disadvantages and alternatives have been explained to the
individual. Following a final
commitment order, the subject individual does not have the right to refuse
medication and treatment except as provided by this section.
After repeal and
recreation, the statute provided in part:
51.61(1)(g)
[Patients shall] have the following rights, under the following procedures, to
refuse medication and treatment:
...
3. Following a final
commitment order, have the right to exercise informed consent with regard to
all medication and treatment unless the committing court or the court in the
county in which the individual is located makes a determination, following a
hearing, that the person is not competent to refuse medication or unless a
situation exists in which the medication or treatment is necessary to prevent
serious physical harm to the patient or others. The hearings under this subdivision shall meet the requirements
of s. 51.20(5), except for the right to a jury trial.
While both versions
mandate the hearing requirements of § 51.20(5), Stats., each version is silent as to which body shall conduct
the hearings. There is a presumption
under the canons of statutory construction, however, that the legislature knew
about the previous statute and about the impact that Gerhardstein
had upon it. See Kindy v. Hayes, 44 Wis.2d 301, 314, 171
N.W.2d 324, 330 (1969) (it is presumed that the legislature acted with full
knowledge of the existing law, both the statutory and court decisions
interpreting it). Indeed, in Reiter
v. Dyken, 95 Wis.2d 461, 290 N.W.2d 510 (1980), our supreme court
stated that where a legislative act has been construed by this court, the
legislature is presumed to know that on the absence of the legislature
explicitly changing the law, the court's construction will remain
unchanged. Id. at 471,
290 N.W.2d at 515.
These canons of
construction apply to this case. Gerhardstein
painstakingly set a new procedural course to protect the rights of those
unfortunate citizens who are alleged to be so mentally ill that they may
require involuntary medication. In
clear and unambiguous terms the court declared that court commissioners may
preside over hearings on all commitment medication petitions. Within five months of the supreme court
decision, the legislature breathed statutory life into the principles of Gerhardstein
by expressly spelling out a patient's “bill of rights.” While neither the express language of the
revised statute nor the legislative drafting records[4]
make any reference to Gerhardstein's recognition of the court
commissioner's authority, we are convinced that the supreme court's conclusion
in Gerhardstein survived the legislature's actions. See Reiter,
95 Wis.2d at 471, 290 N.W.2d at 515; see also State v. Gomaz,
141 Wis.2d 302, 320 n.11, 414 N.W.2d 626, 634 n.11 (1987) (case law
interpreting statutes survives legislative changes that did not expressly alter
the case law). To conclude otherwise
would “resurrect the rigidity rejected” in Gerhardstein. State v. Evans, 187 Wis.2d 66,
90, 522 N.W.2d 554, 563 (Ct. App. 1994).
Accordingly, we conclude that court commissioners, including the probate
court commissioner at issue in the present case, have the authority to conduct
a hearing under § 51.61(1)(g), Stats.
By the Court.—Order
affirmed.
[1] Section 757.72, Stats., sets forth the powers of a
probate court commissioner:
Office of probate court
commissioner. (1)
In counties having a population of 500,000 or more, there is created in the
classified civil service the office of probate court commissioner. In counties having a population of at least
100,000 but not more than 500,000, the county board may create the office of
probate court commissioner which may be in the classified civil service.
(2)
Judges assigned probate jurisdiction may assign to the probate court
commissioners any matters over which the judges have jurisdiction, and the
probate court commissioners may determine such matters and may sign any order
or certificate required in such determination.
(3)
Probate court commissioners shall receive such salary and be furnished with
quarters, necessary office furnishings and supplies as determined by the county
board.
(4) In
counties having a population of 500,000 or more the chief judge of the judicial
administrative district shall appoint and may remove probate court
commissioners under ss. 63.01 to 63.17.
In counties having a population of at least 100,000 but not more than
500,000 the chief judge shall appoint and may remove any probate court
commissioner if cause is proven.
Probate court commissioners shall be attorneys licensed to practice in
this state.
(5) The
register in probate of a county shall have the duties and powers of a probate court
commissioner and shall act in that capacity when designated to do so by a judge
assigned probate jurisdiction.
(6)
Before entering upon the performance of their duties, probate court
commissioners shall take and file the official oath.
(7)
Probate court commissioners shall by virtue of their respective positions, and
to the extent required for the performance of their duties, each have the
powers of a court commissioner.
(8) The probate court commissioners may administer oaths, take depositions and testimony, and certify and report the depositions and testimony, take and certify acknowledgments, allow accounts and fix the amount and approve the sufficiency of bonds.
[2] Section 51.61(1)(g)3,
Stats., provides in part:
3. Following a final commitment order, [a patient shall] have the right to exercise informed consent with regard to all medication and treatment unless the committing court ... makes a determination, following a hearing, that the individual is not competent to refuse medication or treatment ....
[3] Section 757.69(1)(h),
Stats., provides in part:
(1) ...
[A] court commissioner ... may: ... (h) Hear petitions for commitment and
conduct probable cause hearings under ss. 51.20, 51.45 and 55.06(11) ....
Section 757.72(7), Stats., provides in part:
Probate court commissioners shall by virtue of their respective positions, and to the extent required for the performance of their duties, each have the powers of a court commissioner.