Wirsing, In re

• Decision Date: 24 October 1995
• Docket Number: Docket No. 159638
• Citation: 542 N.W.2d 594,214 Mich.App. 131
• Parties: , 7 NDLR P 218 In re Lora Faye WIRSING, developmentally disabled person. (On Remand) Donna L. WIRSING, plenary guardian of Lora Faye Wirsing, Petitioner-Appellee, v. MICHIGAN PROTECTION AND ADVOCACY SERVICE, Intervenor-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 594

542 N.W.2d 594

214 Mich.App. 131, 7 NDLR P 218

In re Lora Faye WIRSING, developmentally disabled person. (On Remand)

Donna L. WIRSING, plenary guardian of Lora Faye Wirsing, Petitioner-Appellee, v. MICHIGAN PROTECTION AND ADVOCACY SERVICE, Intervenor-Appellant.

Docket No. 159638.

Court of Appeals of Michigan.

Submitted Sept. 9, 1994, at Detroit.

Decided October 24, 1995, at 9:10 a.m.

Released for Publication Jan. 23, 1996.

Herbert J. Booth and John P. Siler, Flint, for Donna L. Wirsing.

Michigan Protection & Advocacy Service by Dorothy Smith, Calvin Luker, and Deborah A. Mattison, Livonia, for appellant.

Before GRIBBS, P.J., and HOLBROOK, and TERANES, ^* JJ.

ON REMAND

GRIBBS, Presiding Judge.

In 1981, eighteen-year-old Lora Faye Wirsing (the ward) was adjudicated to be a developmentally disabled person as a result of congenital retardation. Her mother, Donna L. Wirsing, was appointed as her plenary guardian under the Mental Health Code, M.C.L. § 330.1600 et seq.; M.S.A. § 14.800(600) et seq. In March 1986, Donna L. Wirsing, as guardian of the ward, petitioned the probate court for authorization to consent to sterilization of the ward for birth control purposes. After holding an extensive hearing, the probate judge granted authorization to the guardian to consent to sterilization. An intervenor in the action, Michigan Protection and Advocacy Service, sought leave to appeal. The Court of Appeals, Marilyn Kelly and Jansen, JJ. (Fitzgerald, P.J., dissenting), denied leave to appeal in an unpublished order entered February 25, 1992 (Docket No. 144319).

The Michigan Supreme Court, in lieu of granting leave to appeal, remanded the case to this Court for consideration as on leave granted "to consider, without limitation, whether probate judges possess the power to authorize a guardian to consent to the sterilization of a developmentally disabled citizen." In re Wirsing, 441 Mich. 886, 495 N.W.2d 388 (1992). We conclude that a probate court judge does not have such power.

Const.1963, art. 6 deals with the judicial branch of government and sets forth the various courts of the state and the powers thereof. Article 6, § 15 sets forth the jurisdiction, powers, and duties of the probate court. This section of the constitution specifically directs that the "jurisdiction, powers and duties" of the probate court shall be "provided by law."

As noted by the Michigan Supreme Court in Buback v. Governor, 380 Mich. 209, 156 N.W.2d 549 (1968), the constitutional convention of 1961 distinguished between the terms "provided by law" and "prescribed by law":

Where "provided by law" is used, it is intended that the legislature shall do the entire job of implementation. Where only the details were left to the legislature and not the overall planning, the committee used the words "prescribed by law." See 2 Official Record, Constitutional Convention of 1961, pp 2673, 2674. [Id. at 226, 156 N.W.2d 549. Emphasis added.]

In the early part of the twentieth century, legislators around the country passed statutes allowing the sterilization of mentally ill persons. In 1913, the Michigan Legislature passed Public Act 34, which allowed the sterilization of "mentally defective" persons who were supported by public expense in a public institution. In 1918, the statute was declared unconstitutional because it applied only to persons in public institutions. Haynes v. Lapeer Circuit Judge, 201 Mich. 138, 166 N.W. 938 (1918). In 1923, the Michigan Legislature enacted Public Act 285, which again authorized the sterilization of mentally defective persons. This act was held to be constitutional by the Michigan Supreme Court. Smith v. Wayne Co. Probate Judge, 231 Mich. 409, 204 N.W. 140 (1925). 1923 P.A. 285 was repealed and replaced by 1929 P.A. 281, allowing sterilization of insane and mentally ill persons in order to prevent them from procreating.

1929 P.A. 281 remained in effect until 1974, when the Legislature completely revised the Mental Health Code, M.C.L. § 330.1600 et seq.; M.S.A. § 14.800(600) et seq., repealing in effect 1929 P.A. 281. The revised Mental Health Code did not refer to sterilization in any manner. In 1977, the Legislature passed M.C.L. § 330.1629; M.S.A. § 14.800(629), which gave immunity to guardians of developmentally disabled persons for medical treatment approved by the guardian, including extraordinary medical procedures. In 1978, the Legislature enacted 1978 P.A. 527, which amended M.C.L. § 330.1629; M.S.A. § 14.800(629) to include sterilization as an extraordinary medical procedure:

(1) A guardian, temporary guardian, plenary, partial, or standby guardian shall not be liable for civil damages by reason of authorizing routine or emergency medical treatment or surgery or extraordinary procedures when previously ordered by the court for his or her ward if the guardian acted after medical consultation with the ward's physician, acted in good faith, was not negligent, and acted within the limits established for the guardian by the court.

(2) A guardian, temporary guardian, plenary, partial, or standby guardian who has been authorized by the court to give medical consent, shall not be liable by reason of his or her authorization for injury to the ward resulting from the negligence or other acts of a third person.

(3) Routine medical services do not include extraordinary procedures. Extraordinary procedures includes [sic], but is not limited to, sterilization, including vasectomy, abortion, organ transplants from the ward to another person, and experimental treatment.

The petitioner-guardian argues that M.C.L. § 330.1629; M.S.A. § 14.800(629), read in conjunction with M.C.L. § 330.1631; M.S.A. § 14.800(631), gives the probate court the power to authorize the guardian of a developmentally disabled ward to allow surgical sterilization of the ward. The petitioner-guardian argues that this authority comes by implication and that the Legislature would not refer to sterilization of a developmentally disabled person as one of the extraordinary procedures from which a guardian is immune if the Legislature did not intend to allow a probate court to authorize a guardian to allow such sterilization.

This Court does not agree with petitioner's interpretation. The jurisdiction of the probate court cannot arise by implication. As the Michigan Supreme Court stated in interpreting Const.1963, art. 6, § 15:

The Constitution of 1963 does not define the entire jurisdiction of probate courts. This responsibility is left to the legislature by article 6, § 15:

"The jurisdiction, powers and duties of the probate court and of the judges thereof shall be provided by law...."

The provision of the 1963 Constitution last above quoted placed the responsibility on the legislature to draft the law but did not grant authority for departure from the requirements and proscriptions of the Constitution. [Buback, supra at 226-227, 156 N.W.2d 549].

See also Ashbaugh v. Sinclair, 300 Mich. 673, 676, 2 N.W.2d 810 (1942); In re Brown, 149 Mich.App. 529, 386 N.W.2d 577 (1986). The jurisdiction and powers of the probate court are derived entirely by statute.

It is clear that the Mental Health Code permits the probate court to have jurisdiction over guardianship proceedings regarding a developmentally disabled person. M.C.L. § 330.1604(1); M.S.A. § 14.800(604)(1), M.C.L. § 330.1618; M.S.A. § 14.800(618). The probate court also has authority to establish the scope and the duration of a guardianship. M.C.L. § 330.1631; M.S.A. § 14.800(631), M.C.L. § 330.1626; M.S.A. § 14.800(626). These powers of the probate court are specifically provided by law.

Under Const.1963, art. 6, § 15, the probate court's jurisdiction, powers, and duties are confined to those provided by law. The Legislature must, therefore, specifically set forth by statute the jurisdiction, powers, and duties of the probate court. The probate court's jurisdiction, powers, and duties cannot be implied, and this Court will not read into the Mental Health Code the intent of the Legislature, particularly on so weighty a matter as this. If the Legislature intended to authorize the surgical sterilization of developmentally disabled wards, it could do so specifically as it has in the past. Sterilization was specifically and continuously authorized by the Legislature until 1974 by 1913 P.A. 34, by 1923 P.A. 285, and by 1929 P.A. 281. Sterilization was not included when 1929 P.A. 281 was repealed by enactment of the revised Mental Health Code of 1974, M.C.L. § 330.1600 et seq.; M.S.A. § 14.800(600) et seq. When the statute was later amended in 1977, express authority to authorize sterilization was still not included in the statute. In 1978, the statute was again amended to grant immunity to guardians who authorized "extraordinary procedures" such as "sterilization." One might speculate that the amendment providing immunity was intended to shield guardians who had consented to procedures such as sterilization before 1974.

In any event, for whatever reason, the Legislature chose not to enact statutory authorization for sterilization of developmentally disabled persons in the revised Mental Health Code of 1974, even though authorization had been specifically permitted for more than fifty-one years before that time. We conclude that the probate court now lacks the necessary statutory jurisdiction and power to authorize a guardian to consent to the surgical sterilization of a developmentally disabled ward.

We believe it would be injudicious to conclude, by mere implication, that the Legislature intended to give the probate court authority concerning sterilization of developmentally disabled persons. It is equally as likely that the omission of express authorization signifies a legislative intent to remove the authority previously given to the probate courts. We are especially concerned because adequate safeguards are not provided by statute to assure that the ward has the guarantee of due...