State ex rel. Harris v. Larson, 562

• Decision Date: 28 June 1974
• Docket Number: No. 562,562
• Citation: 64 Wis.2d 521,219 N.W.2d 335
• Parties: STATE ex rel. Jerry L. HARRIS and all others similarly situated, Respondents, v. Richard LARSON, Regional Director, Division of Corrections, State Department of Health & Social Services, et al., Appellants.
• Court: Wisconsin Supreme Court

Page 335

219 N.W.2d 335

64 Wis.2d 521

STATE ex rel. Jerry L. HARRIS and all others similarly situated, Respondents, v. Richard LARSON, Regional Director, Division of Corrections State Department of Health & Social Services, et al., Appellants.

No. 562.

Supreme Court of Wisconsin.

June 28, 1974.

Rehearing Denied Sept. 4, 1974.

Robert W. Warren, Atty. Gen., Charles R. Larsen, Asst. Atty. Gen., Madison, for Larson and Erickson.

Robert P. Russell, Corp. Counsel, Karl Mario Dunst, Milwaukee, for Hon. William Jennaro, Hon. Victor Manian and Arthur Silverman.

Craig E. Miller, Chief Staff Counsel, Corrections Legal Services Program, Milwaukee (James D. Rudd, Staff Atty., Legal Aid Society of Milwaukee, Wauwatosa, of counsel), for respondents.

HEFFERNAN, Justice.

Initially, respondents claim that Harris does not share a common or general interest with other children he claims to be members of his class. They argue that there are at least four groups of children at the Detention Home whose status is distinct and whose problems are different. They point out that these four groups consist of delinquents, children in need of supervision, dependent children, and neglected children.

While it is clear that all do not share all interests, it is equally clear that all share a common interest. Each of these children have had their status adjudicated, and each one of them has been held in the Detention Home awaiting placement. It is only this situation that constitutes the subject matter of this action. It is not the differences among members of the class that concern us. Rather, we are concerned with the common situation which each of them shares. They are a class too numberous to practicably bring before the court individually.

The members of the alleged class satisfy the provisions of sec. 260.12, Stats.:

'260.12 Parties united in interest to be joined; class actions; alternative joinder. Of the parties to the action those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should be joined as plaintiff cannot be obtained he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest of many persons or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole. And when more than one person makes a separate claim for damage against the same person or persons based upon the same alleged tortious conduct, they may unite in prosecuting their claims in one action.'

Our resolution of the problem is controlled by Pipkorn v. Brown Deer (1960), 9 Wis.2d 571, 646, 101 N.W.2d 623, 625, wherein this court said:

'. . . where the question involved is one of common or general interest a representative suit may be brought by one for the benefit of all who have such a common or general interest . . ..'

The trial judge correctly determined that this was an appropriate class action and that Harris was representative of the class.

The respondents impliedly misstate the question when they assert that 'confinement of members of the class in the Milwaukee County Detention Home is not illegal as a matter of statutory law.' The implication of this question is that it is the obligation of the petitioners to show some positive illegality in the confinement. Rather, we conclude that all that must be shown by the petitioners is a lack of statutory authority to order incarceration at the Detention Home after there has been an adjudication of status.

The question in regard to the judges of the Children's Court is whether they have statutory authority to order the detention of a child pending his placement. In addition, we are faced with the question of whether the Department of Public Welfare or the Department of Health and Social Services can place a child in the Detention Home pending permanent placement.

Chapter 48, Stats., the Children's Code, is a comprehensive legislative plan for dealing with children in need of supervision and neglected, dependent, and delinquent children. It is a chapter of carefully spelled out definitions and enumerated powers. Court jurisdiction is spelled out in great detail in sec. 48.12 ff. Procedures are carefully detailed. The circumstances under which a child may be detained when first taken into custody are enumerated in sec. 48.28. Eventual dispositions are enumerated, and legislative guidelines are carefully drawn to circumscribe judicial and administrative action.

The chapter reflects the legislature's desire to specifically define the authority of appropriate officers. Where there is evidence of such enumeration, it is in accordance with accepted principles of statutory construction to apply the maxim, expressio unius est exclusio alterius; in short, if the legislature did not specifically confer a power, it is evidence of legislative intent not to permit the exercise of the power.

Under this analysis, it is apparent that there is no authority for the Children's Court judges to order a child detained in the Detention Home after his status has been adjudicated and he is awaiting placement. Specific provision is made in secs. 48.28, 48.29, 48.30, and 48.31, Stats., for detention prior to adjudication. Sections 48.33, 48.34, 48.345, and 48.35 enumerate alternatives available to the judge upon adjudication. None of these alternatives provide for incarceration in the Detention Home.

The enumeration of the specific alternatives is evidence of legislative intent that any alternative not specifically authorized is to be excluded. The legislature excluded post-adjudication detention in this institution as an acceptable alternative.

It is also true that there is no statutory authority for the Milwaukee County Department of Public Welfare to temporarily place a child in its custody in the Detention Home while permanent placement is sought.

Section 48.57, Stats., lists the powers and duties of the Department of Public Welfare in its custody of the child and authorizes the Department:

'(1)(c) To provide appropriate care and training for children in its legal custody, including placing those children in licensed foster homes (governed by secs. 48.62, 48.63, and 48.64, Stats.) in this state or contracting for care of them by licensed child welfare agencies (governed by secs. 48.60 and 48.61).'

The Department of Public Welfare is also authorized to place the child in the county children's home and to place children for adoption. (Sec. 48.57(1)(e), Stats.) Sec. 48.58 lists the functions of the county children's home, and one of them is to 'provide temporary shelter care for dependent or neglected children.' (Sec. 48.58(1)(c)) Nowhere in any of sec. 48.57 or sec. 48.58 is the Department of Public Welfare authorized the place children in the Detention Home temporarily while permanent placement is sought. It does not have that authority.

Nor does the Department of Health and Social Services and its Divisions of Corrections and Family Services have authorization to place children temporarily in the Detention Home after the child's status has been adjudicated and his custody has been transferred to the Department.

For authority to place children in the...