Commitment of Sprosty, In re, 97-3524

• Decision Date: 30 June 1999
• Docket Number: No. 97-3524,97-3524
• Parties: In re the COMMITMENT OF Larry J. SPROSTY. State of Wisconsin, Petitioner-Respondent-Petitioner, v. Larry J. Sprosty, Respondent-Appellant.
• Court: Wisconsin Supreme Court

Page 692

595 N.W.2d 692

In re the COMMITMENT OF Larry J. SPROSTY State of Wisconsin, Petitioner-Respondent-Petitioner, v. Larry J. Sprosty, Respondent-Appellant.

No. 97-3524.

Supreme Court of Wisconsin.

Argued April 9, 1999.

Decided June 30, 1999.

For the petitioner-respondent-petitioner the cause was argued by Warren D. Weinstein, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

For the respondent-appellant there was a brief by T. Christopher Kelly and Thomas, Kelly, Habermehl & Mays, S.C., Madison and oral argument by T. Christopher Kelly.

¶1 JON P. WILCOX, J

The State seeks review of a decision of the court of appeals ¹ reversing an order of the circuit court for Crawford County, Honorable Michael T. Kirchman. The circuit court initially ordered supervised release of the defendant, Larry Sprosty, under Wis. Stat. ch. 980 (1995-96), ² the sexual predator law. However, when the county submitted its plan to not release Sprosty because of inadequate resources, the circuit court denied his supervised release. The court of appeals reversed.

¶2 The State has presented four issues for our review: (1) is the availability of a facility within the community an appropriate factor for the circuit court to consider under Wis. Stat. §§ 980.06(2)(b) or 980.08(4) ³; (2) does the circuit court have authority to order a county department or the Department of Health and Family Services (DHFS) to create whatever programs or facilities are deemed necessary to accommodate an order for supervised release; (3) does the circuit court have authority to reconsider an earlier decision to order supervised release upon obtaining more complete information on available facilities; and (4) who bears the burden of the cost of the necessary programs and facilities, the county department or DHFS.

¶3 We conclude that a circuit court, in its discretion, may consider the availability of facilities to house or to treat a sexual predator under Wis. Stat. § 980.08(4). However, any such consideration must be in keeping with the purpose of providing the "least restrictive" means to accomplish the treatment of the person while also protecting the public. We further conclude that once a circuit court has made a finding and ordered supervised release under § 980.08(4), it is required to order a treatment plan under § 980.08(5) and to ensure that the person is placed on supervised release in accordance with the plan. In some cases, the creation of facilities and services to provide the requisite treatment and to protect the public while a person is on supervised release in the community may be necessary, for which DHFS is responsible. Wis. Stat. § 980.12(1). In this case, the circuit court granted the petition for supervised release, but failed to order Sprosty's release. This was in error. Accordingly, we remand the matter to the circuit court for a determination consistent with this opinion.

I.

¶4 The facts are not in dispute. Sprosty was committed as a sexual predator under Wis. Stat. ch. 980 in 1995. In 1996, Sprosty filed petitions for supervised release, Wis. Stat. § 980.08, and/or for discharge, Wis. Stat. § 980.09. At the evidentiary hearing, experts testified that although Sprosty needed to continue participation in sex offender and substance abuse treatment programs, he could benefit from such treatment on an outpatient basis while living in the community under close supervision. The circuit court agreed and granted Sprosty's petition for supervised release. In its October 18, 1996, order granting the petition, the court required that a treatment plan be developed, and that Sprosty remain in custody until further order of the court.

¶5 From late 1996 to early 1997, a social worker for the Wisconsin Resource Center (WRC), Heather Leach, corresponded with the circuit court about an appropriate release and treatment service plan for Sprosty. The WRC clinical staff believed, and the circuit court concurred, that an appropriate plan for Sprosty would include halfway house placement followed by placement in the community on electronic monitoring, intensive and long-term sex offender treatment with a qualified and experienced provider, AODA treatment, and high risk supervision by a Sex Offender Intensive Supervision Program Agent through the Division of Community Corrections. Leach indicated, however, that she was having difficulty locating the requisite treatment and facilities. Crawford County, Sprosty's county of residence, lacked these resources. At the court's request that there be no geographical limits, Leach located four counties, Dane, Milwaukee, La Crosse, and Portage, which had the breadth and depth of resources necessary to appropriately and adequately supervise Sprosty; however, at least some of the facilities were unwilling or unable to admit him for placement or services.

¶6 In April 1997, the circuit court held a status conference and ordered Crawford County to prepare a plan to provide supervised release under Wis. Stat. § 980.08(5).

¶7 In June 1997, the circuit court held two additional hearings regarding Sprosty's community treatment plan. At the hearings, the Crawford County district attorney stated that the county, in conjunction with DHFS, developed a plan that addressed the statutory criteria, and determined that Sprosty could not be released because the county did not have the appropriate resources to address his treatment needs in a community setting.

¶8 The circuit court agreed that the programs and facilities necessary for Sprosty's treatment and supervision, as well as for the protection of the community, were not available in Crawford County or in other counties. The court concluded that it could not compel private agencies to accept Sprosty, nor would it require the state to build facilities in order to provide supervised release. Because the court would not release Sprosty under conditions that were less than necessary to ensure his treatment and the protection of the public, it denied his supervised release and returned Sprosty to secure confinement. Sprosty appealed.

¶9 The court of appeals reversed. The court determined that the unambiguous statutory language of Wis. Stat. § 980.08(5) does not allow a circuit court to refuse to order release once it has determined that release is appropriate. State v. Sprosty, 221 Wis.2d 401, 409, 585 N.W.2d 637 (Ct.App.1998). Rather, the court reasoned that § 980.08(5) requires that if the person's county of residence is unable or unwilling to prepare a plan, and no other counties agree to prepare a plan or accept the person into their program, the committing court must designate a county for placement. Sprosty, 221 Wis.2d at 408-09, 585 N.W.2d 637. The court of appeals remanded the case with directions to the circuit court to order a county to do what is necessary for Sprosty's release. Id. at 409, 585 N.W.2d 637. The State appeals.

II.

¶10 The first issue we address is whether the circuit court may consider the availability of facilities, the feasibility of creating facilities if they do not exist, and the cost of such creation when deciding whether to place a sexually violent person on supervised release under Wis. Stat. § 980.08(4). ⁴ To resolve this issue, we must interpret Wis. Stat. § 980.08(4). Statutory interpretation presents a question of law that we review independent of the circuit court and the court of appeals. State v. Szulczewski, 216 Wis.2d 495, 499, 574 N.W.2d 660 (1998).

¶11 When construing Wis. Stat. § 980.08(4), we must ascertain and give effect to the intent of the legislature. State ex rel. Reimann v. Circuit Court, 214 Wis.2d 605, 613, 571 N.W.2d 385 (1997). To identify the legislative intent, we first examine the statutory language itself. State v. Martin, 162 Wis.2d 883, 893, 470 N.W.2d 900 (1991). If the meaning of the statute is clear, we will not look outside of the language of the statute to discern legislative intent. Id. at 893-94, 470 N.W.2d 900.

¶12 Wisconsin Stat. § 980.08(4) provides in part:

The court shall grant the petition unless the state proves by clear and convincing evidence that the person is still a sexually violent person and that it is still substantially probable that the person will engage in acts of sexual violence if the person is not confined in a secure mental health unit or facility. In making a decision under this subsection, the court may consider, without limitation because of enumeration, the nature and circumstances of the behavior that was the basis of the allegation in the petition ..., the person's mental history and present mental condition, where the person will live, how the person will support himself or herself and what arrangements are available to ensure that the person has access to and will participate in necessary treatment. [Emphasis added.]

¶13 The general rule in interpreting statutory language is that "the word 'shall' is presumed mandatory when it appears in a statute." Karow v. Milwaukee Co. Civil Serv. Comm'n, 82 Wis.2d 565, 570, 263 N.W.2d 214 (1978). "Further support is given to a mandatory interpretation of 'shall' when the legislature uses the words 'shall' and 'may' in a particular statutory section, indicating the legislature was aware of the distinct meanings of the words." GMAC Mortgage Corp. v. Gisvold, 215 Wis.2d 459, 478, 572 N.W.2d 466 (1998).

¶14 The legislature used the words "shall" and "may" in Wis. Stat. § 980.08(4). The court shall grant the petition for supervisory release unless the state proves that the person is still sexually violent and that it is still substantially probable the person will engage in acts of sexual violence if not in secure institutional care. § 980.08(4). In making its decision, the court may consider, without limitation because of enumeration, such things as where the person will live and how the person will support himself or herself. Id. Therefore, we "can infer that the legislature was aware...