Guardianship of Nelson, Matter of

• Citation: 296 N.W.2d 736,98 Wis.2d 261
• Decision Date: 30 September 1980
• Docket Number: No. 79-997,79-997
• Parties: In the Matter of the Guardianship of Elliot NELSON, Incompetent. BANK OF STURGEON BAY, Guardian, Appellant, v. DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Respondent.
• Court: Wisconsin Supreme Court

Page 736

296 N.W.2d 736

98 Wis.2d 261

In the Matter of the Guardianship of Elliot NELSON, Incompetent.

BANK OF STURGEON BAY, Guardian, Appellant, v. DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Respondent.

No. 79-997.

Supreme Court of Wisconsin.

Argued Sept. 3, 1980.

Decided Sept. 30, 1980.

Eric A. Stearn (argued) and Jonjak, Kase, Stearn & Scallon, Sturgeon Bay, on brief, for appellant.

Wendy A. Vercauteren, Asst. Collection and Deportation Counsel, Cross Plains, for respondent.

BEILFUSS, Chief Justice.

On May 24, 1979, an order was entered by the Door County Circuit Court requiring the Bank of Sturgeon Bay in its capacity as guardian of the estate of Elliot Nelson, an incompetent, to pay the Department of Health & Social Services (H&SS) all funds available from the guardianship assets in excess of $1,500. This order was issued under the authority of sec. 46.10(2), Stats. From this adverse ruling, the Bank of Sturgeon Bay (guardian) appealed. This court subsequently granted the guardian-appellant's petition to bypass the court of appeals under sec. 808.05.

The trial court decided this matter on the basis of a stipulation of fact entered into by the parties. It appears from this stipulation that in 1971 Elliot Nelson was tried in Door County for the offense of second-degree murder in violation of sec. 940.02, Stats. Nelson was found not guilty by reason of mental disease or defect. The circuit court thereafter committed the defendant to Central State Hospital pursuant to sec. 971.17(1). On May 15, 1973, the guardian assumed responsibilities for the estate of Nelson. On February 12, 1974, Nelson was transferred to the Winnebago Mental Health Institute where he remained until at least January 31, 1978.

H&SS filed a petition for payment of claim with the Door County Court on March 21, 1978. In its petition it was alleged that between July 31, 1975 ¹ and January 31, 1978, the ward Nelson had been receiving treatment at the Winnebago Mental Health Institute and that the sum of $61,331.17 was due as payment for the cost of his care and maintenance during that period. At the time of the filing of the petition, the value of the Nelson estate was about $27,000. The petition filed by H&SS further stated that payment of all of the assets except $400 would entitle the incompetent Elliot Nelson to become eligible for Medical Assistance and Supplemental Security Income.

As noted above, the trial court granted the petition and entered the order requiring payment of all guardianship funds in excess of $1,500.

This case presents three issues for our determination:

1. Whether sec. 46.10(2) and (2m), Stats., which authorizes the collection of the cost of care and maintenance from persons admitted or committed to a state institution but which exempts persons in prisons from a similar liability violates the equal protection clause of the federal or state constitutions.

2. Whether persons transferred to mental health facilities under sec. 51.37(5), Stats., after conviction and during the term of their sentence are exempt from sec. 46.10(2) liability and, if so, whether this violates the equal protection rights of the guardian's ward.

3. Whether the 1975 amendment to sec. 46.10(2), Stats., which had an effective date of July 31, 1975 constitutes an ex post facto law when applied to Nelson who was found not guilty by reason of mental disease or defect in 1971.

Sec. 46.10(2), Stats. (1977), provides in relevant part: ²

"Except as provided in sub. (2m), any person, including but not limited to a person admitted or committed under (sec.) . . . 971.17(1) . . . receiving care, maintenance, services and supplies provided by any institution in this state . . . in which the state is chargeable with all or part of the person's care, maintenance, services and supplies . . . shall be liable for the cost of the care, maintenance, services and supplies. . . ."

Subsection (2m) of sec. 46.10, Stats., further provides:

"The liability specified in sub. (2) shall not apply . . . to care, maintenance, services and supplies provided to persons 18 and older by prisons named in s. 53.01."

This subsection effectively exempts persons in prisons from any claims by H&SS which might otherwise exist under sub. (2) of sec. 46.10.

Sec. 46.10, Stats., as amended, represents a legislative modification of a series of decisions by this court. The court had historically refused to extend sec. 46.10(2) liability "(for) any confinement or any treatment which is merely an adjunct of the criminal process and is not separately mandated by confinement under the standards of ch. 51, Stats. . . ." Conservatorship of Grams, 63 Wis.2d 194, 197, 216 N.W.2d 889, 890 (1974). See also Treglown v. H& SS Department, 38 Wis.2d 317, 156 N.W.2d 363 (1968); Guardianship of Radoll, 222 Wis. 539, 269 N.W. 305 (1936); Guardianship of Gardner, 220 Wis. 490, 264 N.W. 647 (1936); Guardianship of Sprain, 219 Wis. 591, 263 N.W. 648 (1935). This court has specifically held that a person committed to a mental health facility after a finding of not guilty by reason of mental disease or defect was not liable for the cost of his subsequent confinement and treatment. Treglown v. H&SS Department, supra. Sec. 46.10 now expressly provides that a person committed under the authority of sec. 971.17(1) shall be liable for the cost of his care. There is no dispute in this case that Nelson comes squarely within its terms.

The guardian initially contends that liability as fixed by sec. 46.10(2), Stats., violates the equal protection clause of the federal and state constitutions. We begin by noting that art. I, sec. 1 of the Wisconsin Constitution is substantially equivalent to the due process and equal protection clauses of the fourteenth amendment to the United States Constitution. State ex rel. Cresci v. H&SS Department, 62 Wis.2d 400, 414, 215 N.W.2d 361 (1974); State ex rel. Sonneborn v. Sylvester, 26 Wis.2d 43, 49, 132 N.W.2d 249 (1965). It is also worth noting that all legislative acts are presumed constitutional, a heavy burden is placed on the party challenging constitutionality, and if any reasonable doubt exists it must be resolved in favor of the constitutionality of the statute. Sambs v. City of Brookfield, 97 Wis.2d 356, 370, 293 N.W.2d 504 (1980).

The threshold question presented by the guardian's equal protection claim regards the proper standard to be applied in reviewing the constitutionality of sec. 46.10(2), Stats. It is claimed that the right to hold personal assets is a fundamental right which cannot be denied to a segment of society absent a compelling state interest. In support of his position, the guardian cites Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972). It is true that when a statutory classification infringes upon a fundamental right or involves a suspect class, a heightened judicial standard of scrutiny is appropriate. ³ However, our attention has not been directed to any case which holds that a statute which affects only an interest in real or personal property infringes upon a "fundamental right" as that term has been used in the context of analysis under the equal protection clause.

The guardian's reliance upon Lynch v. Household Finance Corp., supra, is not persuasive. Lynch involved the construction of two federal statutes, 42 U.S.C., sec. 1983 and 28 U.S.C., sec. 1343(3). The United States Supreme Court held that in an action under those statutes a plaintiff may seek to vindicate "property" rights as well as "personal" rights. 405 U.S. at 543-44, 92 S.Ct. at 1117-18. Although the court recognized the traditional value placed by American law on the right to own or dispose of property, the case did not involve a question of law under the equal protection clause.

Sec. 46.10(2), Stats., does not single out a class of persons and deny them, directly or indirectly, any right which is properly characterized as fundamental. In this case the guardian is being asked to pay for services rendered to the ward in the course of his treatment at a mental health facility. To hold that strict scrutiny applies in this case would require the court to invalidate all statutes which exacted a charge from the public for some service rendered unless justified by a compelling state interest. Strict scrutiny under the equal protection clause does not extend that far.

In the case of Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973), the United States Supreme Court was faced with an analogous equal protection challenge. The appellant in Ortwein challenged a $25 appellate court filing fee levied by the State of Oregon. He claimed he was indigent and unable to pay the fee. The Supreme Court rejected all claims that the $25 fee, which was used to offset the operating expense of the appellate system, implicated the fundamental rights of the appellant. The court concluded that the Oregon law was in the area of economics and social welfare and therefore the applicable standard of review was that of rational justification. Id. at 660, 93 S.Ct. at 1174. The reasoning of Ortwein is applicable to the present case. Where, as here, a statute which exacts a charge for some service rendered is challenged on equal protection grounds, the proper standard of review is the "rational basis" test as set forth below.

The guardian alternatively claims that the classification created by sec. 46.10(2) and (2m), Stats., is arbitrary and irrational and that it must be invalidated even though it does not implicate a fundamental interest. Two arguments are presented in this regard.

The guardian initially argues that both prisoners and other persons described in sub. (2) are similarly situated. They are confined in institutions for the public benefit as a result of the criminal process and while so confined they receive care, supplies and services from the state. In view of the similarity of their situation in society, the guardian...