State ex rel. Watts v. Combined Community Services Bd. of Milwaukee County

• Decision Date: 30 April 1985
• Docket Number: No. 84-1107,84-1107
• Citation: 362 N.W.2d 104,122 Wis.2d 65
• Parties: STATE of Wisconsin ex rel. Patricia A. WATTS and Gertrude Huerlimann, individually and as representatives of the class of persons similarly situated, Petitioners-Appellants, v. The COMBINED COMMUNITY SERVICES BOARD OF MILWAUKEE COUNTY, Gerald Engel, John A. Heidenreich, Kathleen Blonski, Thomas Korb, and Anne Tobias, individually and as members of the Combined Community Services Board of Milwaukee County, Symuel Smith, individually and as program director of the Combined Community Services Board of Milwaukee County, Richard Gerhardstein, M.D., individually and as medical director of the Milwaukee County Mental Health Complex, and as acting clinical program director of the Combined Community Services Board of Milwaukee County, Donald Percy, individually and as Secretary of the Wisconsin Department of Health and Social Services, and Wisconsin Department of Health and Social Services, Respondents. In the Matter of Julius ERDMANN. Julius ERDMANN, Appellant, v. COMBINED COMMUNITY SERVICES BOARD OF MILWAUKEE COUNTY, Respondent.
• Court: Wisconsin Supreme Court

Page 104

362 N.W.2d 104

122 Wis.2d 65

STATE of Wisconsin ex rel. Patricia A. WATTS and Gertrude

Huerlimann, individually and as representatives of

the class of persons similarly situated, Petitioners-Appellants, v. The COMBINED COMMUNITY SERVICES BOARD OF MILWAUKEE COUNTY, Gerald Engel, John A. Heidenreich, Kathleen Blonski, Thomas

Korb, and Anne Tobias, individually and as members of the

Combined Community Services Board of Milwaukee County,

Symuel Smith, individually and as program director of the

Combined Community Services Board of Milwaukee County,

Richard Gerhardstein, M.D., individually and as medical

director of the Milwaukee County Mental Health Complex, and

as acting clinical program director of the Combined

Community Services Board of Milwaukee County, Donald Percy,

individually and as Secretary of the Wisconsin Department of

Health and Social Services, and Wisconsin Department of

Health and Social Services, Respondents.

In the Matter of Julius ERDMANN.

Julius ERDMANN, Appellant, v. COMBINED COMMUNITY SERVICES BOARD OF MILWAUKEE COUNTY, Respondent.

No. 84-1107.

Supreme Court of Wisconsin.

Argued Nov. 26, 1984.

Decided Jan. 31, 1985.

Reconsideration Denied April 30, 1985.

Thomas K. Zander, Legal Aid Soc. of Milwaukee, Inc., Milwaukee (argued), for petitioners-appellants; Robert W. Pledl, Asst. State Public Defender, Milwaukee, of counsel.

Robert A. McKnight, Principal Asst. Corp. Counsel, Wauwatosa, for respondents.

Dianne Greenley, Madison, amicus curiae, for Wisconsin Coalition for Advocacy, Inc. and Mental Health Ass'n. in Wisconsin, Inc.

STEINMETZ, Justice.

The issues in this case are:

(1) Whether chs. 55 and 880, Stats., deny protectively placed individuals due process and equal protection of law by failing to require periodic automatic court review of the individual's need for guardianship and protective placement.

(2) Whether the temporary emergency diagnostic and treatment powers granted under sec. 55.06(9)(d) and 55.06(9)(e), Stats., ¹ satisfy the requirements of equal protection.

(3) Whether a guardian has the statutory authority to consent to mental hospitalization of his or her ward who is not protectively placed and who has not consented to such hospitalization.

Patricia Watts and Gertrude Huerlimann are adult women who were adjudged incompetent and ordered protectively placed pursuant to secs. 880.33(1) and 55.06(1), Stats., ² by the Milwaukee county circuit court in 1977 and 1978, respectively. Both women were initially confined in the Milwaukee County Mental Health Complex. Both were transferred to home placements in the community within one year of being institutionalized, and both continue to reside in community placements. Following petitioner Watts' placement in 1977, she was involuntarily hospitalized in an acute psychiatric unit pursuant to sec. 55.06(9)(e) at least seven times for periods ranging from seven to forty days in length. The original guardianship and protective placement orders for both petitioners have not been modified or terminated.

On October 17, 1980, Watts and Huerlimann petitioned the trial court, the Honorable John E. McCormick, for a writ of habeas corpus and for a declaratory judgment alleging four separate causes of action. The trial court held a hearing on petitioner Watts' claim that she was being illegally confined in an acute psychiatric ward of the Milwaukee County Mental Health Complex. The court sustained that claim, ordered her release, and set a date for a hearing on the remaining causes of action.

By the time the parties appeared before the trial court on October 1, 1982, only two of the original four causes of action remained in dispute. On these issues, the same issues now before this court, the trial court denied the plaintiffs' petition entering judgment against them on May 7, 1984.

Julius Erdmann's court appointed guardian ad litem had filed with the circuit court a petition for review and for declaratory judgment. The petition was brought as a class action on behalf of Mr. Erdmann and all persons who are or who may be in the future admitted to psychiatric units without their consent, but with the consent of their court appointed guardians, where there is no existing protective placement order issued under sec. 55.06(9)(a) or 55.06(11)(c), Stats. ³ The petition sought a declaratory judgment holding that guardians do not have the legal authority to consent to admissions of their wards to psychiatric units without the consent of the ward or without a protective placement order that would authorize a temporary hospitalization under sec. 55.06(9)(d) or 55.06(9)(e).

Since the Watts case was pending in the Milwaukee circuit court at the time of the filing of the Erdmann case, and since the Watts case raised the issue of the constitutionality of secs. 55.06(9)(d) and 55.06(9)(e), Stats., the two cases were consolidated. The petition for declaratory judgment was denied in the Erdmann case also by the Honorable John E. McCormick on May 7, 1984. The petitioners petitioned this court to bypass the court of appeals and bypass was granted. 120 Wis.2d 689, 357 N.W.2d 562 (1984).

The defendants argue the case is moot since the petitioners are not presently being involuntarily detained in any mental health center. However, Watts and Huerlimann are still under protective placement orders which subject them to possible confinement under the involuntary hospitalization provisions of sec. 55.06(9)(d) and 55.06(9)(e), Stats., being challenged in this case, and they are denied court reexaminations of their need for continued protective placement, and lastly, both the Watts case and Erdmann case are class actions seeking declaratory judgments. The issues are of great public concern with regular recurrence and due to the limited period of confinement of ten days and fifteen days respectively under sec. 55.06(9)(d) and (e), a limited opportunity exists to bring the issues before the courts. By the time the issues are scheduled before trial courts, the petitioners similarly situated are likely no longer to be detained for diagnosis or treatment. The case is within the exception to the rule that this court does not consider moot issues as stated In Matter of G.S., 118 Wis.2d 803, 805, 348 N.W.2d 181 (1984):

"This court has consistently adhered to the rule that a case is moot when a determination is sought upon some matter which, when rendered, cannot have any practical legal effect upon a then existing controversy.... It is generally thought to be in the interest of judicial economy to avoid litigating issues that will not affect real parties to an existing controversy.... However, this court has carved out certain exceptions to this general rule where: the issues are of great public importance; the constitutionality of a statute is involved; the precise situation under consideration arises so frequently that a definitive decision is essential to guide the trial courts; the issue is likely to arise again and should be resolved by the court to avoid uncertainty; or, a question is capable and likely of repetition and yet evades review because the appellate process usually cannot be completed and frequently cannot even be undertaken within a time that would result in a practical effect upon the parties."

Petitioners' first claim is that ch. 55, Stats., is unconstitutional insofar as it allows protective placements to be indefinite in duration without requiring automatic, periodic reexamination of the need for continued protective placement. We hold ch. 55 unconstitutionally deprives individuals of an automatic periodic reexamination of the need for continued protective placement.

Wisconsin law regarding the institutionalization of the mentally disabled underwent radical change with the landmark federal district court decision in Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.Wis.1972); vacated and remanded on procedural grounds, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974); judgment reentered, 379 F.Supp. 1376 (E.D.Wis.1974); vacated and remanded on procedural grounds, 421 U.S. 957, 95 S.Ct. 1943, 44 L.Ed.2d 445 (1975); judgment reentered, 413 F.Supp. 1318 (E.D.Wis.1976), in which Wisconsin's involuntary civil commitment law was held unconstitutional. In response to Lessard, the legislature enacted three new civil commitment laws; one for persons who are acutely mentally ill, developmentally disabled, or drug dependent (ch. 430, Laws of 1975, creating secs. 51.15-51.20, Stats.); another law for alcoholics (ch. 198, Laws of 1973, creating secs. 51.45(12) and (13), Stats.); and another law for persons having permanent mental disabilities (ch. 284, Laws of 1973, creating sec. 55.06, Stats.). All three of these laws authorize court ordered institutionalization of mentally disabled individuals for the purpose of care and custody.

There are similarities in purpose and protection afforded by ch. 51 and ch. 55, Stats. Both ch. 51, civil commitment, and ch. 55, protective placement, deal with persons who are mentally ill, developmentally disabled, chronic alcoholics or drug abusers. Secs. 51.20(1)(a)1, 51.45(13) and 55.06(2)(c). Both require a finding of dangerousness before involuntary commitment or placement can be imposed. Secs. 51.20(1)(a)2, 51.45(13)(a)2, 55.06(2)(c). ⁴ Both require treatment in the least restrictive alternative. Secs. 51.20(13)(f), 51.45(13) (g), 55.06(9)(a). ⁵ Both afford their patients similar rights after the commitment or placement has been made. See secs. 51.61 and 55.07, Patients' Rights.

However, there are fundamental differences in the procedure employed in ch. 51 and ch. 55, Stats. Patients committed under sec. 51.20 have time-limited commitments--six months for the first commitment and one year for subsequent ones--which must be renewed through a full due process court proceeding initiated by the party wishing to continue the commitment. Sec. 51.20(13)(g). ⁶ Patients placed under ch. 55 can have their...