State ex rel. Marberry v. Macht

• Decision Date: 13 March 2001
• Docket Number: No. 99-2446.,99-2446.
• Parties: STATE of Wisconsin EX REL. William E. MARBERRY, Petitioner-Appellant, v. Phillip G. MACHT, Superintendent, Wisconsin Resource Center, and Joseph S. Leean, Secretary, Department of Health and Family Services, Respondents-Respondents.
• Court: Wisconsin Supreme Court

241 Wis.2d 695

2001 WI 19

623 N.W.2d 135

STATE of Wisconsin EX REL. William E. MARBERRY, Petitioner-Appellant, v. Phillip G. MACHT, Superintendent, Wisconsin Resource Center, and Joseph S. Leean, Secretary, Department of Health and Family Services, Respondents-Respondents.

No. 99-2446.

Supreme Court of Wisconsin.

Oral argument January 4, 2001.

Decided March 13, 2001.

For the petitioner-appellant there were briefs and oral argument by Donald T. Lang, assistant state public defender.

For the respondents-respondents the cause was argued by Marguerite M. Moeller, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.

¶ 1. PER CURIAM.

The court is equally divided on the resolution of this appeal. Justice Prosser did not participate. Justice Wilcox, Justice Crooks, and Justice Sykes would affirm the order of the circuit court for Winnebago County. Chief Justice Abrahamson, Justice Bablitch, and Justice Bradley would issue the following order seeking additional briefing in this court:

This court, having reviewed the record, having considered the briefs submitted by the parties, and having heard oral argument and, specifically, having heard the Assistant Attorney General advise the court that committees have not timely received statutorily required six-month evaluations and that the Department will not have completed timely examinations until May 1, 2001, concludes that additional information and additional briefs would be helpful.

Therefore, IT IS ORDERED that Petitioner-Appellant William E. Marberry, and Respondents-Respondents, Phillip G. Macht, Superintendent, Wisconsin Resources Center, and Joseph S. Leean, Secretary, Department of Health and Family Services, address the following questions in additional briefs:

1. What facts exist to explain Respondents' failure to examine committee Marberry until more than eighteen months after the time period specified in Wis. Stat. § 980.07(1) and more than ten months after the circuit court ordered Respondents to conduct a prompt examination? What facts existed in the past regarding the Respondents' inability to periodically examine Chapter 980, Wis. Stats., committees in accordance with the statutory requirements in Wis. Stat. § 980.07(1)? What are the projections of future expanded or new facilities and additional staffing that will enable the Respondents to comply with the statute in the future? Is it necessary to remand the cause to the circuit court to determine these facts?

2. Does the Respondents' explanation for the failure to perform the periodic examinations on committee Marberry required under Wis. Stat. § 980.07(1) provide a valid excuse under the law for the failure to comply therewith? Does the Respondents' explanation for the failure to perform the prompt periodic examination on Marberry required by the circuit court order provide a valid excuse under the law for the failure to comply therewith?

3. If Respondents have failed to follow Wis. Stat. § 980.07(1) in regard to timely periodic examinations on Marberry and other committees or if Respondents in the future fail to follow the statute, should the court hold that the statute is facially unconstitutional on equal protection or due process grounds or as applied?

4. What effect, if any, does the decision in Seling v. Young, 121 S.Ct. 727 (2001), have on this case?

5. If compliance with the periodic examination provision set forth in Wis. Stat. § 980.07(1) is required, but the statute nonetheless allows a reasonable deviation from the six-month time limit therein, what would be a reasonable amount of time for the examination after the six-month period has expired?

6. If compliance with the periodic examination

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