Thielman v. Leean
Thielman v. Leean
Opinion of the Court
¶ 1. 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
BACKGROUND
¶ 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,
¶ 5. During the course of the proceedings, the legislature amended Wis. Stat. § 51.61(l)(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.
¶ 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.
Wisconsin Stat. § 51.61(l)(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(l)(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*260 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(l)(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(l)(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(l)(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
¶ 10. The parties focus on the meaning of the words "may be restrained for security reasons" in Wis. Stat. § 51.61(l)(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
¶ 12. Thielman's second argument is rooted in his reading of the interplay between Wis. Stat. § 51.61(l)(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, 198, 295 N.W.2d
¶ 13. We begin our analysis of this argument by examining the provisions of Wis. Stat. § 51.61(l)(e), which state in relevant part:
[Patients] have the right to the least restrictive conditions necessary to achieve the purposes of admission, commitment or protective placement, under programs, services and resources that the county board of supervisors is reasonably able to provide ....
Subsection (e) is focused on accomplishing the specific purpose for which each individual patient was committed. Here, the purpose of Thielman's commitment is to treat his mental defect that causes him to be sexually dangerous. However, this must be accomplished while protecting him and others from his dangerousness. Anthony, 2000 WI 94 at ¶ 12. DHFS is required to work toward correcting Thielman's sexual dangerousness by the least restrictive means. Section 51.61(l)(e) is a general statement of the terms and conditions of confinement as they bear on the purpose of the commitment. Accordingly, it is not aimed at the specific, temporary task of transporting a patient to or from an institution.
¶ 14. On the other hand, Wis. Stat. § 51.61(l)(i) does address transports. It is the more specific statutory provision bearing on the use of physical restraints when
¶ 15. Furthermore, Wis. Stat. § 51.61(l)(i) has long provided that if a patient committed for any reason has a "recent history of physical aggression" restraints could he used during transport. Therefore, if the only occasion on which a ch. 980 patient could be restrained during transport were when he/she had recently exhibited overt physical aggression, there would have been no need to add the provision to § 51.61(l)(i) stating that patients "who are detained or committed under ch. 980," may also be restrained for security during transport. Accordingly, we conclude that the legislature unambiguously permitted DHFS to exercise its discretion by a reasonable method of its choice.
DHFS's Discretion.
¶ 16. We next review whether DHFS erroneously exercised its discretion. An agency exercises its discre
CONCLUSION
¶ 18. Because we conclude that Wis. Stat. § 51.61(l)(i) grants broad discretionary power to DHFS sufficient to permit its treatment facilities to transport Wis. Stat. 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.
By the Court. — Order reversed.
All further references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.
The WRC policy provides that all ch. 980 patients are transported out of the institution in full restraints, which means handcuffs, waist belt, and leg irons.
The original suit also named Joseph Leean, Laura Flood, Bryan Barrow, James Doyle, State of Wisconsin and WRC as defendants. The circuit court dismissed those parties with prejudice, but without any preclusive effect on Thielman's ability to pursue his claims against DHFS. Therefore, DHFS is the named party in this appeal.
We note that this case presents solely as a question of statutory interpretation, not as a constitutional challenge to the way in which the statute was applied. Thielman has already received an adverse decision concluding that he has no constitutional due process right involved in the mode of restraint used in transporting him because he has no liberty interest in an individualized determination as to whether he poses a safety or escape risk. Thielman v. Leean, 282 F.3d 478 (7th Cir. 2002).
2001 Wis. Act. 16 § 1993r, effective Sept. 1, 2001, amended the final sentence of Wis. Stat. § 51.61(l)(i) by adding the italicized words. Because this version of § 51.61(l)(i) is now operative and because only the order permanently enjoining DHFS from using full restraints on ch. 980 patients in the future has been appealed, we will address only the current version of the statute.
The contention of the dissent is that we have "ignored" the restraints permitted when a patient has a recent history of violence. We have not. Rather, we have relied on the additional authority granted DHFS for security reasons when transporting ch. 980 patients.
Thielman contends that DHFS promulgated Policy No. 3-1-8-P dealing with the use of restraints during transports of patients and that policy requires the use of the least restrictive means and documentation in the patient's treatment record of the reasons restraints were used. He contends DHFS is not following that policy. DHFS does not respond to this argument. However, we note Policy 3-1-8-P is dated 5/7/96, long before Wis. Stat. § 51.61(l)(i) was amended in regard to the transport of ch. 980 patients, and that DHFS currently employs a trans
Dissenting Opinion
¶ 19. (dissenting). This is a case about stereotypes. It involves a group of patients civilly committed under Wis. Stat. ch. 980 (1999-2000).
¶ 20. The question is one of statutory interpretation. It involves a statute, Wis. Stat. § 51.61 entitled "Patients rights." The statute begins: "[E]ach patient shall." What follows is a comprehensive list of requirements that DHFS must follow. Getting closer to the issue at hand, § 51.61(1)(i)l begins: "... have a right to be free from physical restraint and isolation except for emergency situations or when isolation or restraint is a part of a treatment program." Then comes a comprehensive list of requirements for DHFS to follow when using isolation or restraints.
¶ 21. One cannot help but notice the emphasis the legislature has put on the limited situations when restraints can be used: "Isolation or restraint may be used only when less restrictive measures are ineffective or not feasible and shall be used for the shortest time possible." Id.. And "Isolation or restraint may be used for emergency situations only when it is likely that the patient may physically harm himself or herself or others." Id. Other parts of the statute speak to the required use of physicians or psychologists to order the use of restraints.
¶ 23. Both sentences concern themselves with the use of restraints during transport. If we look at the first sentence alone, it seems obvious that DHFS must make an individual inquiry as to each ch. 980 patient it intends to transport to determine whether the patient has a recent history of physical aggression. The second sentence permits a patient to be restrained for security reasons during transport.
¶ 24. The majority's method of dealing with these two sentences is to ignore the first sentence because the second sentence doesn't require DHFS to consider individual reasons for restraints during transport. The majority holds that by doing this, it can conclude that Wis. Stat. § 51.61(l)(i)l unambiguously permits DHFS to transport all patients in restraints without an inquiry into whether the restraints are needed.
¶ 25. Initially, one might ask: "Why not ignore the second sentence? It isn't any better or any worse
¶ 26. First, of course, I must determine whether the two sentences, and therefore the statute, is ambiguous. A statute is ambiguous if it is capable of being understood in more than one way or in more than one sense by reasonably well-informed persons. State ex rel. Kaminski v. Schwarz, 2001 WI 94, ¶ 29, 245 Wis. 2d 310, 630 N.W.2d 164.
¶ 27. I don't think it's that easy. A sentence in a statute permitting restraint during transport only if a patient has a recent history of physical aggression is difficult for me to ignore when the question is whether
¶ 28. It is also well understood what courts are to do when confronted with an ambiguous statute. If a statute is unclear or ambiguous, courts use extrinsic aids for guidance. Kaminski, 2001 WI 94 at ¶ 29. When reasonable minds could differ as to the meaning of a statute, the court examines the scope, history, context, subject matter and purpose of the statute in question. Kopke v. A. Hartrodt S.R.L., 2001 WI 99, ¶ 17, 245 Wis. 2d 396, 629 N.W.2d 662.
¶ 29. Any ambiguity disappears when considering the scope, subject matter and purpose of Wis. Stat. § 51.61 as a whole. This is a statute which, in lengthy detail, outlines "Patients rights." That is its title. Reading this lengthy statute, one cannot help but note that the Wisconsin legislature has gone to great lengths to protect civilly committed patients. The first sentence I have considered, which the majority concludes it can ignore, is very much consistent with the remaining parts of this lengthy statute, and consistent with the purpose of the statute — to grant real and extensive rights to individual patients confined in a hospital against their will. I cannot ignore a statute which permits restraint during transport only if the patient has a history of recent physical aggression.
¶ 30. But I must, if I can, harmonize the first sentence, and the balance of the statute with the last sentence in Wis. Stat. § 51.61(l)(i)l. I find this possible. The last sentence of the statute tells DHFS that it can
¶ 31. The first sentence tells us how DHFS is to determine when security requires transport restraints. The answer is clear: Only when the patient has shown a recent history of physical aggression. This too makes common sense. A docile patient whose history in the institution is one of compliance and flexibility is unlikely to threaten his security or that of his transporters.
¶ 32. DHFS has interpreted Wis. Stat. § 51.61 to require an individual assessment of a patient before placing him or her in restraints for transport.
¶ 33. The majority discounts this policy order by noting that Policy No. 3-1-8-P was promulgated before
¶ 34. The requirement of individual assessment of patients to determine whether they are transport risks fits perfectly with this harmonization of the two sentences in Wis. Stat. § 51.61(l)(i)l. The second sentence I have considered tells its readers that patients may be restrained for security reasons during transport. The first sentence explains what those security reasons are: A history of recent physical aggression. While the two sentences could have been written to more succinctly convey this meaning, that is not the test. In my view, it is not possible to read these two sentences as giving DHFS carie blanche to place transported patients in restraints for any reason or no reason.
¶ 35. It is always easier to stereotype individuals and ascribe perceived traits of the group to all the individuals in the group. "Irish need not apply" and "Women belong in the home" are stereotypes that once existed, permitting what we now see as irrational classifications. Government is prone to stereotyping because it is easy, it sets out a rule that all must follow, and it limits the discretion of individual decision makers. "Everyone is treated alike" is an easily defended policy. Transporting a comatose patient in full restraints is therefore defensible.
All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.
The majority also finds Wis. Stat. § 51.61(l)(e) inapplicable, because it does not specifically apply to restraints during transportation. While the observation that § 51.61(l)(e) does not specifically apply to transport is of course correct, the majority does not recognize that courts are to consider all parts of a statute when harmonizing ambiguous parts of the statute. Landis v. Physicians Ins. Co., 2001 WI 86, ¶ 16, 245 Wis. 2d 1, 628 N.W.2d 893. Section 51.61(l)(e) is useful in determining the overall intent and scope of the statute. It is evidence that the legislature disfavored the use of restraints except when no other
An alternative test leads to the same result. A statute is ambiguous if both parties argue that a "plain reading" of statutes supports their respective positions. Appointment of Interpreter in State v. Le, 184 Wis. 2d 860, 867, 517 N.W.2d 144 (1994). However, assigning different interpretations to the scope and meaning of a statutory exception does not lead to the same result. State ex rel. Girouard v. Jackson Circuit Ct., 155 Wis. 2d 148, 154-55, 454 N.W.2d 792 (1990).
The administrative interpretation of a statute is of great assistance in interpreting the meaning of a statute. Indeed, we are to defer to an administrative agency's interpretation of a statute unless it is unreasonable. Theuer v. LIRC, 2001 WI 26, ¶ 14, 242 Wis. 2d 29, 624 N.W.2d 110.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.