Thielman v. Leean

Decision Date23 January 2003
Docket NumberNo. 02-0888.,02-0888.
PartiesRichard THIELMAN, Plaintiff-Respondent, v. Joseph LEEAN, Laura Flood, Byran Bartow, James Doyle, State of Wisconsin and Wisconsin Resource Center, Defendants, WISCONSIN DEPARTMENT OF HEALTH AND FAMILY SERVICES, Defendant-Appellant.
CourtWisconsin Court of Appeals

On behalf of the defendant-appellant, the cause was submitted on the briefs of James E. Doyle, attorney general, and Joely Urdan, assistant attorney general.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of Mary E. Kennelly of Fox & Fox, S.C. of Madison.

Before Dykman, Roggensack and Lundsten, JJ.


The Department of Health and Family Services (DHFS) appeals the circuit court's order enjoining DHFS from transporting Richard Thielman and similarly committed WIS. STAT. ch. 980 patients to and from treatment facilities such as Wisconsin Resource Center (WRC) in full restraints without first making individualized determinations that restraints are needed during transport. The circuit court determined that DHFS's transportation policy for ch. 980 patients violated WIS. STAT. § 51.61(1)(i) (1999-2000).1 Because we conclude that § 51.61(1)(i) grants broad discretionary power to DHFS sufficient to permit its treatment facilities to transport ch. 980 patients in restraints for security reasons and because there is nothing in the language of the statute that requires treatment facilities to exercise that discretion for each individual patient, rather than on the basis of its experience with ch. 980 patients as a group and the individualized prior finding of sexual dangerousness that each ch. 980 patient has had made, we reverse the circuit court's order.


¶ 2. In May 1998, Richard Thielman was adjudicated a sexually violent person and committed to DHFS for control, care and treatment until such time as he is no longer sexually violent. WIS. STAT. § 980.06(1). This finding of being sexually violent was supported by proof beyond a reasonable doubt. WIS. STAT. § 980.05(3)(a). He was assigned to WRC.

¶ 3. Thielman has numerous health problems that require transporting him for medical treatment outside WRC on a regular basis. In accordance with WRC policy,2 Thielman was temporarily placed in full restraints during the transports. ¶ 4. In October 2000, Thielman sued DHFS for alleged violations of WIS. STAT. § 51.61,3 on his own behalf and on behalf of all similarly situated patients committed under ch. 980. Thielman alleged that WRC's policy of transporting ch. 980 patients in full restraints violated his right to be free from physical restraints under § 51.61(1)(i) and his right to the least restrictive conditions necessary to achieve the purposes of commitment under § 51.61(1)(e). Both DHFS and Thielman moved for summary judgment. The circuit court granted judgment in Thielman's favor and permanently enjoined DHFS from transporting ch. 980 patients in full restraints, without first making individualized determinations that restraints are needed.

¶ 5. During the course of the proceedings, the legislature amended WIS. STAT. § 51.61(1)(i) to provide that patients detained or committed under ch. 980 may be restrained during transport for security reasons. Accordingly, DHFS moved for reconsideration of the permanent injunction on the grounds that the recent amendment clearly authorized WRC's restraint of ch. 980 patients during transport. The circuit court affirmed, but it amended its order to conclude that § 51.61(1)(i) provided the exclusive basis for the relief granted. DHFS appeals only the circuit court's order preventing future transports of ch. 980 patients in full restraints without prior individual determinations that restraints of the level used are necessary for the transport.


Standard of Review.

[1, 2]

¶ 6. We review questions of statutory interpretation de novo. State v. Sveum, 2002 WI App 105, ¶ 5, 254 Wis. 2d 868, 648 N.W.2d 496

.4 Additionally, whether a statute is ambiguous is a question of law that we review without deference to the circuit court. Awve v. Physicians Ins. Co. of Wis., Inc. 181 Wis. 2d 815, 822, 512 N.W.2d 216, 218 (Ct. App. 1994).

WISCONSIN STAT. § 51.61(1)(i).


¶ 7. Convicted sex offenders involuntarily detained or committed under ch. 980 are subject to certain provisions under both ch. 980 and ch. 51. State v. Anthony D.B., 2000 WI 94, ¶ 11, 237 Wis. 2d 1, 614 N.W.2d 435. Additionally, they are entitled to patients' rights set forth in ch 51. Id. at ¶ 15. WISCONSIN STAT. § 51.61(1)(i) governs the use of restraints on mental health patients, including ch. 980 patients during transportation to and from treating facilities. The current statute provides in relevant part:

Patients who have a recent history of physical aggression may be restrained during transport to or from the facility.... Patients who are committed or transferred under s. 51.35(3) or 51.37 or under ch. 971 or 975, or who are detained or committed under ch. 980, may be restrained for security reasons during transport to or from the facility. (2001-02) (italics added).5


¶ 8. DHFS argues that WIS. STAT. § 51.61(1)(i) permits the department's use of a blanket policy for transporting all ch. 980 patients in full restraints for security reasons. DHFS explains that it formulated its policy for ch. 980 patients based on prior individual determinations of dangerousness that courts have made in each case and its experience transporting ch. 980 patients that has shown the need to protect the public from danger during transports. We agree that § 51.61(1)(i) gives DHFS the authority to decide whether to use full restraints during transport and that it does not prohibit exercising this authority through a policy that covers all ch. 980 patients within its care.


¶ 9. The resolution of the scope of DHFS's authority during transport turns on the policies that underlie a ch. 980 commitment which policies inform our construction of the word "may" in WIS. STAT. § 51.61(1)(i). When we construe a statute, our aim is to determine the intent of the legislature. We do so by first examining the language of the statute itself. Truttschel v. Martin, 208 Wis. 2d 361, 365, 560 N.W.2d 315, 317 (Ct. App. 1997). As an initial matter, we must determine whether the statute is clear and unambiguous on its face or whether its language is capable of being understood by reasonably well informed persons in two or more ways. Id. When a statute is clear, generally we will not look beyond the language chosen by the legislature to determine legislative intent. Doane v. Helenville Mut. Ins. Co., 216 Wis. 2d 345, 352, 575 N.W.2d 734, 736 (Ct. App. 1998). In so doing, we will interpret the statute based on "the plain meaning of its terms." State v. Williquette, 129 Wis. 2d 239, 248, 385 N.W.2d 145, 149 (1986). The underlying purpose of ch. 980 is to "treat the individual's mental illness and protect him and society from his potential dangerousness." State v. Post, 197 Wis. 2d 279, 308, 541 N.W.2d 115, 124 (1995) (citation omitted).

[10, 11]

¶ 10. The parties focus on the meaning of the words "may be restrained for security reasons" in Wis. STAT. § 51.61(1)(i). The word "may" is generally construed as permissive or directory. See State v. Sprosty, 227 Wis. 2d 316, 325, 595 N.W.2d 692, 696 (1999)

; City of Wauwatosa v. County of Milwaukee, 22 Wis. 2d 184, 191, 125 N.W.2d 386, 389 (1963). The use of permissive language connotes a grant of discretionary power by the legislature to an authorized decision-maker. Swatek v. County of Dane, 192 Wis. 2d 47, 59, 531 N.W.2d 45, 50 (1995) ("[T]he use of the word `may' implies a discretionary element."); see also Miller v. Smith, 100 Wis. 2d 609, 616, 302 N.W.2d 468, 471 (1981). Neither party disputes this basic principle. Where the parties diverge is in how the legislature intended DHFS to exercise its discretion.

¶ 11. Thielman first contends that the word "may" requires DHFS to exercise its discretion by deciding in each individual case how much restraint is needed for security reasons during each individual transport. Under Thielman's construction, each patient would have to be evaluated prior to being transported to determine whether he has significant, little or no propensity for escape or injury to a staff member during the transport. Only then, according to Thielman, could DHFS lawfully exercise the discretionary authority granted by the legislature under WIS. STAT. § 51.61(1)(i). However, he cites no legal authority to support his contention that the word "may" does not permit discretionary security decisions to be based on prior individualized determinations of dangerousness for a class of patients and DHFS's own past experience with ch. 980 patients, as DHFS has done here. Furthermore, Thielman's argument is premised on the assumption that a ch. 980 patient has the right to be transported to and from a treatment facility free from restraints. However, there is nothing in the plain language of the statute that grants Thielman that right and the United States Court of Appeals for the Seventh Circuit has concluded Thielman has no such right. Thielman v. Leean, 282 F.3d 478, 484 (7th Cir. 2002). Rather, § 51.61(1)(i) granted DHFS permission to transport ch. 980 patients in restraints for safety reasons. Therefore, we conclude that § 51.61(1)(i) is not internally ambiguous with regard to transporting ch. 980 patients based solely on the words within the statute itself.


¶ 12. Thielman's second argument is rooted in his reading of the interplay between WIS. STAT. § 51.61(1)(e) and § 51.61(1)(i) that he concludes requires the result ordered by the circuit court. It is true that a statute that appears unambiguous on its face, may be rendered ambiguous by its interaction with and relation to other statutes. State v. White, 97 Wis. 2d 193,...

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