In re Washington
| Decision Date | 17 July 2007 |
| Docket Number | No. 2005AP3141.,2005AP3141. |
| Citation | 735 N.W.2d 111,2007 WI 104 |
| Parties | In the Interest of Ruby WASHINGTON. City of Milwaukee, Petitioner-Respondent, v. Ruby Washington, Respondent-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the respondent-appellant-petitioner there were briefs by William J. Tyroler and Karl Otto Rohlich, Assistant State Public Defenders, and oral argument by William J. Tyroler.
For the petitioner-respondent there was a brief and oral argument by Stuart S. Mukamal, Assistant City Attorney, with whom on the brief was Grant F. Langley, City Attorney.
An amicus curiae brief was filed by Laurence J. Dupuis and ACLUWI Foundation, Milwaukee; Colleen D. Ball and Appellate Counsel, S.C., Wauwatosa, on behalf of The American Civil Liberties Union of Wisconsin Foundation, Inc.
An amicus curiae brief was filed by Kimberly Allegretti Nass and Washington County Attorneys Office, West Bend; Steven J. Rollins and Manitowoc County Corporation Counsel, Manitowoc, on behalf of the Wisconsin Association of County Corporation Counsels.
Ruby Washington seeks review of a published decision of the court of appeals1 affirming a circuit court order confining her to the Milwaukee County Criminal Justice Facility ("CJF") for failure to comply with prior court orders for treatment of tuberculosis.2 The Milwaukee County Circuit Court, Honorable Clare L. Fiorenza, found that if Washington continued to refuse treatment she would become contagious and threaten the public health, and issued an order of confinement pursuant to Wis. Stat. § 252.07(9) (2005-06)3, the long-term confinement provisions of the tuberculosis control statute. Washington asked to be confined to Aurora Sinai Medical Center ("Medical Center"), but the circuit court ordered her confined to the CJF.
¶ 2 The court of appeals affirmed the circuit court on two independent grounds. City of Milwaukee v. Ruby Washington, 2006 WI App 99, 292 Wis.2d 258, 716 N.W.2d 176. First, the court of appeals agreed that Wis. Stat. § 252.07(9) authorized Washington's confinement to the CJF, concluding that statutory language referring to "no less restrictive alternative" applied only to the fact of confinement itself, and not the place of confinement. Washington, 292 Wis.2d 258, ¶ 12, 716 N.W.2d 176. Thus, the court of appeals concluded that once confinement is determined to be necessary, the statute does not require placement to the least restrictive facility. Id. It further concluded that a circuit court may consider the relative cost of different placement options when determining the place of confinement. Id., ¶ 14, 716 N.W.2d 176. Second, the court of appeals concluded that Wis. Stat. § 785.04(1), the remedial contempt statute, provided the circuit court with an alternate basis to confine Washington to the CJF. Id., ¶¶ 18-19, 716 N.W.2d 176.
¶ 3 We conclude that Wis. Stat. § 252.07(9)(a) authorizes confinement to a jail for a person with noninfectious tuberculosis who is at a high risk of developing infectious tuberculosis and fails to comply with a prescribed treatment regimen, provided the jail is a place where proper care and treatment will be provided and the spread of disease will be prevented, and that no less restrictive alternative exists to jail confinement. We further conclude that a circuit court may take into account the cost of placement options when determining the place of confinement under § 252.07(9), but only after determining that two or more placement options fulfill the statutory requirements of proper medical treatment and disease prevention, and that none of these options is significantly less restrictive than the other(s).
¶ 4 In this case, the circuit court engaged in a careful, deliberative process in which it demonstrated appropriate concern for both the public health of the community and the care and treatment of Ruby Washington. We conclude the circuit court did not erroneously exercise its discretion in ordering Washington's confinement to the CJF. We therefore affirm on these grounds the court of appeals' opinion affirming the circuit court's order of confinement.4
¶ 5 We further conclude that Washington's confinement was not authorized by the remedial contempt statute, Wis. Stat. § 785.04(1), and disavow the court of appeals' discussion of contempt as a separate basis for confinement to jail in this case. Washington, 292 Wis.2d 258, ¶¶ 16-19, 716 N.W.2d 176.
¶ 6 On May 19, 2005, Ruby Washington was evaluated for tuberculosis at the Keenan Health Center Tuberculosis Control Clinic ("TB Clinic"), operated by the City of Milwaukee Health Department ("Department"). Sputum specimens were taken and tested for tuberculosis. On June 17, 2005, Washington was diagnosed with tuberculosis. Washington received tuberculosis medication at the TB Clinic on June 21, 2005. Washington was living in a shelter and had no fixed address at the time. TB Clinic staff provided Washington with bus tickets to ensure that she would return for periodic directly-observed therapy.5 Washington did not show up for her next two appointments to receive her medication, and could not be located.
¶ 7 The Department issued Washington a directly-observed therapy order ("treatment order") and an isolation order on July 27, 2005, which it intended to serve upon Washington as soon as she could be located. On August 22, 2005, a nurse at the Medical Center informed the Department that Washington had been admitted to the hospital and was giving birth to a baby. The Department served the orders for treatment and isolation on Washington later that day, and requested that Washington stay at the Medical Center.
¶ 8 The next day, after Washington threatened to leave the Medical Center, the City of Milwaukee petitioned the circuit court under Wis. Stat. § 252.07(9)6 for enforcement of the treatment and isolation orders. The Milwaukee Circuit Court, Honorable Maxine A. White, appointed an attorney from the State Public Defender's Office to represent Washington. See Wis Stat. § 252.07(9)(d). Counsel for the parties reached a stipulation whereby Washington would remain confined at the Medical Center, at least until a status hearing on September 27, 2005, at which point the circuit court would assess the progress of Washington's treatment and her possible release from hospital confinement.
¶ 9 At the September 27, 2005, hearing before the circuit court, Honorable Clare L. Fiorenza, the City noted that Washington's recovery had progressed to the point where the Department believed that Washington no longer needed to be confined for medical reasons. Counsel for the parties reached a second stipulation under which Washington would be released from confinement at the Medical Center, but would report to the TB Clinic at regular intervals to receive medication by directly-observed therapy, consistent with the July 27 order. Additionally, the stipulation required that Washington follow a nine-month treatment plan and live with her sister, Alwiller Washington, during that time. The stipulation provided that
in the event that . . . Washington fails to fully and completely comply with the provisions of this Order [the stipulation], she may be subject to imprisonment, to renewed isolation and inpatient confinement pursuant to Wis. Stat. §§ 252.07(8) and (9) and/or to such other and additional sanctions for contempt of court as this Court may determine.
¶ 10 On September 29, 2005, Alwiller Washington ("Alwiller") called Irmine Reitl, program manager of the TB Clinic, to report that Ruby Washington had left Alwiller's residence shortly after being released from the Medical Center on the 27th, and had yet to return. Alwiller said a friend had spotted (Ruby) Washington near the Jewel/Osco store on North 35th Street in Milwaukee that morning. Reitl and an officer of the Milwaukee Police Department drove to the Jewel/Osco and found Washington in the store parking lot. Reitl caught up with Washington and talked with her on the curb for a few minutes. In an affidavit to the court, Reitl averred that Washington "said many things that [Reitl] was unable to understand" and that Washington "seemed less than coherent in her thoughts."
¶ 11 A Milwaukee Police Department squad car arrived in the parking lot, and Washington left the area and entered a convenience store at the corner of 36th Street and North Avenue. Two additional squad cars arrived, and officers detained Washington. Reitl averred that
Ruby was crying and yelling while the police spoke to her. After a few minutes, Ruby was handcuffed and placed in a squad car. While in the police car, she continued to be agitated and was kicking her feet out of the squad car window and kicking the inside roof of the squad car, all the while loudly screaming, yelling and crying.
Washington received an assessment from the Medical Center and was transported to the CJF. The City filed a "Motion of Contempt" with the circuit court seeking Washington's confinement to the CJF for noncompliance with the prior treatment order. Washington was held in the CJF pending a court hearing scheduled for October 3, 2005, on the City's motion.
¶ 12 On October 1, 2005, Washington was mistakenly released from the CJF and went missing. The October 3 hearing was adjourned because the City had yet to locate Washington. On the morning of October 5, Washington was found at the home of a friend, and was detained by police. She was taken to the Medical Center to be evaluated, and then held at a district police station for a period of hours.
¶ 13 Judge Fiorenza convened a hearing later that afternoon at which Washington contested the City's allegation that she was in violation of the treatment order. The City called Irmine Reitl of the TB Clinic, who explained that Washington was diagnosed with pulmonary tuberculosis, a disease that becomes colonized in the lungs and may be transmitted by coughing, sneezing or...
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