State ex rel. Jones v. Gerhardstein
| Decision Date | 21 December 1987 |
| Docket Number | No. 85-1718,85-1718 |
| Citation | 416 N.W.2d 883,141 Wis.2d 710 |
| Parties | STATE of Wisconsin ex rel. Joyce JONES and David Galicia, M.D., individually and as representatives of the classes of persons similarly situated, Petitioners-Appellants, State of Wisconsin ex rel. State Public Defender, Attempted Intervenor and Appellant, v. Richard GERHARDSTEIN, M.D., The Milwaukee County Combined Community Services Board, Donald Percy, and The Wisconsin Department of Health and Social Services, Respondents-Petitioners. |
| Court | Wisconsin Supreme Court |
Robert A. McKnight, Principal Asst. Corp. Counsel, with whom on the brief was George E. Rice, Acting Corp. Counsel, Milwaukee, F. Thomas Creeron, III, Asst. Atty. Gen., with whom on the briefs was Donald J. Hanaway, Atty. Gen., for respondents-petitioners.
Thomas K. Zander, Legal Aid Society of Milwaukee, Inc., Milwaukee, for petitioners-appellants and attempted intervenor and appellant.
Herbert S. Bratt, Edward S. Levin and Wisconsin Psychiatric Ass'n, Inc., Milwaukee, Sally L. Wencel, H.B. Maroney, II and State Medical Society of Wisconsin, Dianne Greenely and Wisconsin Coalition for Advocacy, Inc., and Thomas E. Dixon, Jr., Michael Perlin, Director, Federal Litigation Clinic, New York Law School, New York, N.Y., and Mary Burke, The Nat. Mental Health Ass'n, Nat. Mental Health Consumer's Ass'n, and The Mental Health Ass'n of Wisconsin, Madison, amicus curiae.
This court accepted the petition for review to decide whether the involuntary administration of psychotropic 1 medication to persons committed pursuant to Chapter 51 of the Wisconsin Statutes violates their right to equal protection under the United States and Wisconsin Constitutions, when those persons have not been found to be incompetent to make treatment decisions. The distinction between precommitment detainees and involuntarily committed patients for purposes of drug administration does not have a rational basis when members of both groups are competent to decide.
The Wisconsin Department of Health and Social Services (a state agency) and the Milwaukee County Combined Community Services Board (a county agency) as petitioners raise several jurisdictional and procedural issues. They claim the courts lacked personal jurisdiction based on inadequate service of process. They further challenge the habeas corpus jurisdiction of the trial court to raise the substantive constitutional issue. Finally, petitioners argue that Jones and Galicia lacked standing to bring the action commenced because there was no case or controversy and because this was not a proper class action. Alternatively, they claim that the action was properly dismissed by the trial court as moot.
The respondents, Joyce Jones and David Galicia, M.D., were involuntarily committed for psychiatric treatment. This action was commenced on September 28, 1979, by the filing of a petition for habeas corpus and for declaratory and injunctive relief on behalf of Jones against Richard Gerhardstein, M.D. and the Milwaukee County Combined Community Services Board created pursuant to sec. 51.42, Stats. (the 51.42 board). On that same date, the Milwaukee county circuit court, the Honorable John E. McCormick, issued a writ requiring the production of Joyce Jones before the court. The issue in this case has therefore been before the court system for eight years.
At the first hearing, the county made an oral motion to dismiss the action as moot because Jones was no longer in the custody of the 51.42 board, her commitment having expired.
On October 16, 1979, an additional petitioner, David Galicia, M.D., was added to the lawsuit which implicated the state's responsibilities under chs. 51 and 971, Stats. Galicia had been involuntarily committed to the custody of the Wisconsin Department of Health and Social Services pursuant to sec. 971.17(1). 2 A summons was not used or filed at this time, but the writ used to engage the state's agency ordered the state to appear in court one day after the amended writ was served. A second hearing was held on October 22, 1979, at which time the state agency challenged the jurisdiction of the court.
Jones and Galicia filed a motion on November 5, 1979, purporting to state a class action covering all individuals who at that time or in the future might be involuntarily treated following commitment pursuant to sec. 51.20(13)(a)3, Stats., 3 but who had not been adjudicated incompetent. A second class, allegedly represented by Galicia, was designated as those individuals committed to the custody of the Wisconsin Department of Health and Social Services pursuant to ch. 971. The county and state subsequently filed motions opposing class certification and motions to dismiss on various grounds, including jurisdiction and mootness. The State Public Defender filed a motion to intervene on May 2, 1980.
On June 20, 1985, the trial court issued a memorandum decision dismissing the amended petition as moot and denying the motion for class certification. On August 2, 1985, the court issued findings of fact and conclusions of law denying the motion for intervention and the motion for reconsideration. The court issued a judgment dismissing the action for lack of case or controversy and for mootness. This judgment was appealed to the court of appeals.
The court of appeals rejected all arguments of the state and county and reversed the trial court. State ex rel. Jones v. Gerhardstein, 135 Wis.2d 161, 400 N.W.2d 1 (Ct.App.1986). The court of appeals found the treatment authorization provisions of sec. 51.59, Stats., 4 unconstitutional on equal protection grounds. The state and county petitioned this court for review of that decision.
The state and county claim the courts lack personal jurisdiction over petitioners based on inadequate service of process. A review of the record reveals that on September 28, 1979, Attorney Robert A. McKnight; principal assistant corporation counsel for Milwaukee county, admitted service of the writ of habeas corpus, the order granting writ of habeas corpus and the petition for writ of habeas corpus on behalf of Dr. Gerhardstein and the 51.42 board. On October 1, 1979, Esther K. Hetzel, Dr. Gerhardstein's secretary, admitted service of these same documents on behalf of Dr. Gerhardstein. On October 16, 1979, Attorney McKnight admitted service of the amended writ of habeas corpus and the amended petition for the writ "on behalf of Gerhardstein and the 51.42 Board." The following day, Attorney Barbara Jaffe, legal counsel for the state, admitted service of these same amended documents on behalf of Donald Percy and the Wisconsin Department of Health and Social Services. Service of these documents was also admitted by the attorney general's office on October 19, 1979. 5
One basis for the service of process challenge is that no summons or complaint was ever filed in this case. However, sec. 801.02(5), Stats., authorizes the commencement of a habeas corpus action "by service of an appropriate original writ on the defendant named in the writ if a copy of the writ is filed forthwith." The writ of habeas corpus was filed on September 28, 1979, and the amended writ was filed October 16, 1979. Under sec. 801.02(5), a summons and complaint was not required to commence this action.
The second basis for the personal jurisdiction challenge raised by the county is that neither Dr. Gerhardstein nor Attorney McKnight were proper agents to accept service of process on behalf of the 51.42 board because neither of these individuals "had custody of the patients." Section 801.11(4)(a)7, Stats., provides that a court may exercise personal jurisdiction if there is personal service "against any other body politic, an officer, director, or managing agent thereof." Section 782.10(1) authorizes service of a writ of habeas corpus "By delivering a copy of the same to the person to whom it is directed."
Dr. Gerhardstein, when served, was a "director" within the meaning of sec. 801.11(4)(a)7, Stats. He is acknowledged to be the sec. 51.42 board's clinical program director pursuant to sec. 51.42(7)(b). Additionally, Dr. Gerhardstein was the medical director of the Milwaukee County Mental Health Complex; he had the authority to discharge involuntarily committed patients, and, therefore, was a custodian of these individuals for purposes of the habeas corpus jurisdiction.
Once jurisdiction was thus obtained over Dr. Gerhardstein, the responsibilities of the 51.42 board were implicated. Moreover, Attorney McKnight accepted not only the original documents, but the amended documents as well.
The amended writ of habeas corpus and amended petition for writ of habeas corpus were served on R.A. McKnight "on behalf of Gerhardstein & 51.42 Board." Dr. Gerhardstein had already been served with original documents and therefore assistant corporation counsel was accepting the amended documents as attorney "on behalf of" the doctor. This court stated in Fontaine v. Milwaukee County Expressway Comm., 31 Wis.2d 275, 279, 143 N.W.2d 3 (1966):
"When an attorney-at-law formally acknowledges the receipt of a document as an attorney on behalf of a client, it may be presumed (in the absence of contradiction) that he was authorized by the client to accept it."
The amended documents were also served on Donald Percy and the Wisconsin Department of Health and Social Services by substituted service on "Barbara S. Jaffe, Legal Counsel on behalf of Donald Percy, Wis. Dept. of H & SS." Service of the amended documents was statutorily sufficient under secs. 782.10(1), 6 801.11(1)(b) 7 and 801.11(4)(a)7, Stats. 8 The state and county challenge the use of habeas corpus as a proper form of remedy. The original habeas corpus petition and the amended petition alleged unlawful confinement, and also that the petitioners were being forcibly administered psychotropic drugs without their informed consent when they have not been...
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