City of Milwaukee v. Washington
City of Milwaukee v. Washington
Opinion of the Court
¶ 1. Ruby Washington seeks review of a published decision of the court of appeals
¶ 2. The court of appeals affirmed the circuit court on two independent grounds. City of Milwaukee v. Ruby Washington, 2006 WI App 99, 292 Wis. 2d 258,
¶ 3. We conclude that Wis. Stat. § 252.07(9)(a) authorizes confinement to a jail for a person with noninfectious tuberculosis who is at a high risk of developing infectious tuberculosis and fails to comply with a prescribed treatment regimen, provided the jail is a place where proper care and treatment will be provided and the spread of disease will be prevented, and that no less restrictive alternative exists to jail confinement. We further conclude that a circuit court may take into account the cost of placement options when determining the place of confinement under § 252.07(9), but only after determining that two or more placement options fulfill the statutory requirements of proper medical treatment and disease prevention, and that none of these options is significantly less restrictive than the other(s).
¶ 4. In this case, the circuit court engaged in a careful, deliberative process in which it demonstrated appropriate concern for both the public health of the
¶ 5. We further conclude that Washington's confinement was not authorized by the remedial contempt statute, Wis. Stat. § 785.04(1), and disavow the court of appeals' discussion of contempt as a separate basis for confinement to jail in this case. Washington, 292 Wis. 2d 258, ¶¶ 16-19.
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¶ 6. On May 19, 2005, Ruby Washington was evaluated for tuberculosis at the Keenan Health Center Tuberculosis Control Clinic ("TB Clinic"), operated by the City of Milwaukee Health Department ("Department"). Sputum specimens were taken and tested for tuberculosis. On June 17, 2005, Washington was diagnosed with tuberculosis. Washington received tuberculosis medication at the TB Clinic on June 21, 2005. Washington was living in a shelter and had no fixed address at the time. TB Clinic staff provided Washington with bus tickets to ensure that she would return for periodic directly-observed therapy.
¶ 7. The Department issued Washington a directly-observed therapy order ("treatment order") and an isolation order on July 27, 2005, which it intended to serve upon Washington as soon as she could be located. On August 22, 2005, a nurse at the Medical Center informed the Department that Washington had been admitted to the hospital and was giving birth to a baby. The Department served the orders for treatment and isolation on Washington later that day, and requested that Washington stay at the Medical Center.
¶ 8. The next day, after Washington threatened to leave the Medical Center, the City of Milwaukee petitioned the circuit court under Wis. Stat. § 252.07(9)
¶ 9. At the September 27, 2005, hearing before the circuit court, Honorable Clare L. Fiorenza, the City noted that Washington's recovery had progressed to the point where the Department believed that Washington no longer needed to be confined for medical reasons. Counsel for the parties reached a second stipulation under which Washington would be released from confinement at the Medical Center, but would report to the TB Clinic at regular intervals to receive medication by directly-observed therapy, consistent with the July 27 order. Additionally, the stipulation required that Washington follow a nine-month treatment plan and live with her sister, Alwiller Washington, during that time. The stipulation provided that
in the event that... Washington fails to fully and completely comply with the provisions of this Order [the stipulation], she may be subject to imprisonment, to renewed isolation and inpatient confinement pursuant to Wis. Stat. §§ 252.07(8) and (9) and/or to such other and additional sanctions for contempt of court as this Court may determine.
¶ 10. On September 29, 2005, Alwiller Washington ("Alwiller") called Irmine Reitl, program manager of the TB Clinic, to report that Ruby Washington had left
¶ 11. A Milwaukee Police Department squad car arrived in the parking lot, and Washington left the area and entered a convenience store at the corner of 36th Street and North Avenue. Two additional squad cars arrived, and officers detained Washington. Reitl averred that
Ruby was crying and yelling while the police spoke to her. After a few minutes, Ruby was handcuffed and placed in a squad car. While in the police car, she continued to be agitated and was kicking her feet out of the squad car window and kicking the inside roof of the squad car, all the while loudly screaming, yelling and crying.
Washington received an assessment from the Medical Center and was transported to the CJF. The City filed a "Motion of Contempt" with the circuit court seeking Washington's confinement to the CJF for noncompliance with the prior treatment order. Washington was held in the CJF pending a court hearing scheduled for October 3, 2005, on the City's motion.
¶ 12. On October 1, 2005, Washington was mistakenly released from the CJF and went missing. The October 3 hearing was adjourned because the City had
¶ 13. Judge Fiorenza convened a hearing later that afternoon at which Washington contested the City's allegation that she was in violation of the treatment order. The City called Irmine Reitl of the TB Clinic, who explained that Washington was diagnosed with pulmonary tuberculosis, a disease that becomes colonized in the lungs and may be transmitted by coughing, sneezing or otherwise forcing bacteria out of the lungs and into the air. She noted that Washington had one previous bout with tuberculosis, for which she had been successfully treated. She stated that for patients like Washington who have recurrent tuberculosis, a nine-month course of treatment is necessary, which starts with administering a regimen of four medications at regular intervals. Reitl testified that she believed Washington was not presently contagious, but that if she did not resume treatment, she would become contagious, perhaps within a week, and "certainly within a month." Reitl explained that "for [Washington's] own health and everyone's health in the community," Washington "must strictly adhere to the treatment regimen."
¶ 14. Reitl gave testimony about Washington's combativeness when detained by officers on September 29. Reitl also testified that Washington was "incoherent" when Reitl encountered her on September 29, and Reitl believed, based on her training and experience as a nurse, that Washington was "under the influence of something."
¶ 16. The City asked that Washington be confined to the CJF. The City stated that it "d[id] not believe that there [was] any facility... other than the [CJF] that would serve the purpose of protecting the public health under these very unusual and extraordinary circumstances."
¶ 17. Counsel for Washington requested confinement to the Medical Center, arguing that her prior placement there "worked out very well and she was under guard and I would assume she would still be under guard." Alternatively, counsel asked that the circuit court consider confining Washington to the Milwaukee County Mental Health Complex (Mental Health Complex). Counsel urged the court to consider "any alternative other than jail.... The [Medical Center] situation worked. The Court could order her there for a period while other alternatives are explored."
¶ 18. The City opposed Washington's confinement to the Mental Health Complex, arguing that security there was "not assured." The City also opposed placement in the Medical Center, arguing "it would be grossly unfair to the taxpayers of this City to require that [Washington] be placed under police guard on a 24/7 basis, which would be required for a period of nine
¶ 19. The circuit court considered the City's request to confine Washington, and determined that it would proceed under Wis. Stat. § 252.07(9), the long-term confinement subsection of the tuberculosis control statute, and not under Wis. Stat. § 785.04(1), the remedial contempt statute:
THE COURT: Well, actually, you know, I was reading over the statute as to this type of hearing because it is an unusual type of action. It's under [sec.] 252.05 of the statutes regarding tuberculosis. And that statute does allow the Court to confine a person for the treatment of the tuberculosis. What the Court — What the statute requires is that if I'm going to order a person in confinement more than six months, I have to have a review every six months if I'm going to order her confined. I don't know if that's the—
[CITY ATTORNEY]: That's exactly how we're proceeding.
THE COURT: This is the only way I know how to proceed is under this statute because it's a specific statute if someone has tuberculosis.
[CITY ATTORNEY]: That's what I'm asking the Court proceed under. This statute, no other.
THE COURT: Yeah. And I don't know — really know if the Court has to find contempt per se . ... You know, [Wis. Stat. § 252.07(9)] allows for the Court to confine an individual. That's how I read the statute ....
[CITY ATTORNEY]: That's how I would read it, your Honor. The only reason that I brought it in the form of*111 a [motion for] contempt was because we did have a prior order that we contend was violated. But in the alternative, even if that weren't the case, if the case is serious enough, I believe — I think it's 252.07(8) and (9) would be sufficient.
The circuit court's written order of confinement stated that Washington "is and remains a threat to the public health and safety as a consequence of her failure to comply with" the court's previous treatment orders. The court's order did not reference contempt.
¶ 20. The circuit court found Washington to be in violation of the prior treatment orders based in part on Washington's admissions that she did not stay with her sister upon her release from the Medical Center, and that it had "slipped her mind" to take her medication. The court found that "[t]here is a huge threat to our community if Miss Washington is walking around our community not taking her medicine for tuberculosis." The court determined that "by not taking [her] medication," Washington was "making decisions for other people in our community. She's becoming a huge health risk."
¶ 21. The circuit court rejected Washington's request that she be confined to the Medical Center, citing fiscal reasons, in part:
With respect to the order that I place a guard at the hospital and allow her to stay at the hospital for the remainder of her treatment^] I refuse to require taxpayers to pay 24 hour around the clock guard at her door to make sure she stays put. I don't think that's appropriate.
The court also rejected confinement to the Mental Health Complex, stating:
*112 If your client for whatever reason would qualify to go to the mental health complex, that's fine with me, but I'm not ordering that she be placed there .... I don't know what the qualifications are for somebody to be placed there, and I have none of that information in front of me.7
¶ 22. The circuit court ordered Washington confined to the CJF for an indeterminate period of time, with a review of her confinement in six months, pursuant to Wis. Stat. § 252.07(9). The circuit court stated that "the [CJF] certainly qualifies" as "a facility where treatment can be rendered." Addressing Washington's counsel, the court stated "if you can find some other locked facility for your client [than the CJF] . . . the Court would be happy to order her placed somewhere else, and I'm sure the City would agree." The court added:
If any kind of change of circumstances come[s] up, you bring the matter and I'll hear this matter ... on very short notice .... If you find some other place to have her placed, you want me to order something, sir, I'll be happy to look at whatever you have found.
¶ 23. Washington appealed to the court of appeals, challenging only her placement to the CJF instead of a less restrictive facility, and not whether the court had grounds to order her confinement. She contended that Wis. Stat. § 252.07(9) required that confinement be to the least restrictive place available, that the Medical Center was suitable and less restrictive
¶ 24. The court of appeals unanimously affirmed the circuit court, concluding that "no less restrictive alternative" language in Wis. Stat. § 252.07(9)(a) applied to the fact of confinement only, and not to the place of confinement. Washington, 292 Wis. 2d 258, ¶ 12. The court of appeals further concluded that a circuit court may consider the cost to taxpayers in determining the place of confinement under Wis. Stat. § 252.07(9).
¶ 25. A majority of the panel concluded that the order of confinement was also lawful under Wis. Stat. § 785.04(1), which authorizes orders of remedial contempt. Id., ¶ 19. One judge dissented as to this point. Washington seeks review of the decision of the court of appeals affirming the circuit court's order of confinement to jail.
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¶ 26. A circuit court's decision concerning where to confine a person with tuberculosis who fails to comply with a prescribed treatment regimen is discretionary. "A proper exercise of discretion requires that the trial court rely on facts of record, the applicable law, and, using a demonstrable rational process, reach a reasonable decision." State v. Manuel, 2005 WI 75, ¶ 24, 281 Wis. 2d 554, 697 N.W.2d 811. Whether the circuit court applied the correct legal standard is a question of law that we review de novo. Landwehr v. Landwehr, 2006 WI 64, ¶ 8, 291 Wis. 2d 49, 715 N.W.2d 180.
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¶ 28. The tuberculosis control section of the communicable disease chapter of the Wisconsin statutes, Chapter 252, authorizes the confinement of an individual with tuberculosis under certain circumstances. The statute contains subsections that set forth procedures for confinement of persons with tuberculosis for up to 72 hours, Wis. Stat. § 252.07(8), and for periods of indeterminate length, § 252.07(9).
¶ 29. Wisconsin Stat. § 252.07(8) permits the Wisconsin Department of Health and Family Services ("DHFS”) or a local health officer
¶ 30. Under Wis. Stat. § 252.07(9)(a),
[t]he [DHFS] or a local health officer may petition any court for a hearing to determine whether an individual with infectious or suspect tuberculosis should be confined for longer than 72 hours in a facility where proper care and treatment will be provided and spread of the disease will be prevented.10
¶ 31. Washington does not challenge the circuit court's basis for ordering her confinement under Wis. Stat. § 252.07(9). She asserts only that the court lacked authority under the statute to order confinement to the CJF. Washington first contends that a jail is not a "facility" as the term is used in § 252.07(9)(a), which authorizes confinement to a "facility where proper care and treatment will be provided and spread of the disease will be prevented." Washington disputes the court of appeals' conclusion that the absence of an explicit bar on jail confinement makes jail a permissible placement option, see Washington, 292 Wis. 2d 258, ¶ 12, asserting that the absence of an express authorization of jail confinement demonstrates that it is an impermissible placement option, given the statute's nonpunitive, public health purpose. Further, Washington notes that § 252.07(8), like § 252.07(9), also authorizes confinement to a "facility." She argues that to construe "facility" to include a jail would give DHFS and local health officers the authority under § 252.07(8) to confine a person to jail for up to 72 hours without prior judicial approval, a result Washington asserts the legislature would never have intended.
¶ 32. When interpreting a statute, we "begin[] with the language of the statute. If the meaning of the
¶ 33. To determine whether Wis. Stat. § 252.07(9) (a) permits confinement to a jail for a person with noninfectious tuberculosis with a high risk of developing infectious tuberculosis who is noncompliant with a prescribed treatment regimen, we begin with the statutory language, considering the meaning of operative terms singly, and in relation to the statute as a whole. See Kalal, 271 Wis. 2d 633, ¶ 46 ("[Statutory language is interpreted in the context in which it is used; not in isolation, but as a part of the whole."). The statute provides that the place to which a person with infectious tuberculosis, noninfectious tuberculosis with a high risk
¶ 34. While Wis. Stat. § 252.07(9)(a) does not explicitly authorize placement in jail of persons with noninfectious tuberculosis who are noncompliant with a prescribed treatment regimen, the plain language of the statute also does not preclude such a placement. The statute authorizes confinement to a "facility," a word not defined in Chapters 250 (health administration) or 252 (communicable diseases) of the statutes, nor in the tuberculosis subchapter of the administrative code. We therefore turn to a dictionary to ascertain the meaning of the word. See Landwehr, 291 Wis. 2d 49, ¶ 16. Webster's defines "facility" as "something (as a hospital, machinery, plumbing) that is built, constructed, installed or established to perform some particular function or to serve or facilitate some particular end." Webster's Third New International Dictionary
¶ 35. The use of the word "confine" in Wis. Stat. § 252.07(9)(a) further indicates that jail is a placement option permitted for persons with noninfectious tuberculosis who are noncompliant with a prescribed treatment regimen. "Confine" is not defined within Chapters 250 (health administration) nor 252 (communicable diseases) of the Wisconsin Statutes. The tuberculosis control suhchapter of the administrative code defines "confinement" as "restriction of a person with tuberculosis to a specified place in order to prevent the transmission of the disease to others, to prevent the development of drug-resistant organisms or to ensure that the person receives a complete course of treatment." Wis. Admin. Code § HFS 145.08(2). This definition essentially repeats the language of § 252.07(9)(a), which provides that the facility must be one in which "proper care and treatment will be provided and spread of the disease will be prevented."
¶ 36. Elsewhere in Wis. Stat. § 252.07 and in other sections of Chapter 252, "isolate" and "quarantine," or variants of these terms, are used rather than "confine." Section 252.07(lg)(c) defines "isolation" as "the separation from other persons of a person with infectious tuberculosis in a place and under conditions that prevent the transmission of infection." The term "quarantine" is not defined in Chapters 250 or 252. Webster's definition of "quarantine" is "to isolate as a precaution against contagious disease." Webster's Third New International Dictionary 1859 (1986).
¶ 37. By contrast, the word "confine" has a somewhat different meaning than "isolate" or "quarantine."
¶ 38. We find support for this interpretation in the legislative history of the statute. See Kalal, 271 Wis. 2d 633, ¶ 51 ("[Legislative history is sometimes consulted to confirm or verify a plain-meaning interpretation.") (citations omitted). Subsections (8) and (9) of Wis. Stat. § 252.07 were created in a 1999 revision of the tuberculosis control statute, authored at the re
¶ 40. Washington and amicus the American Civil Liberties Union also argue that a penal facility is not "a facility where proper care and treatment will be provided and spread of the disease will be prevented" because the rate of infection is reportedly significantly higher in correctional facilities than among the general population, and the dense congregation of individuals in a jail increases risk of transmission.
¶ 41. While the statute's plain language and legislative history demonstrate the legislature contemplated confinement to jail as a category of placement for persons with noninfectious tuberculosis who are non-compliant with a prescribed treatment regimen, a confining court must still determine whether the particular place of confinement is "a facility where proper care and treatment will be provided and spread of the disease will be prevented." Wis. Stat. § 252.07(9)(a). If conditions at a particular jail (or other facility) are such that proper care and treatment would be unavailable, or contrary to the prevention of the spread of the disease, such a placement would not be authorized under § 252.07(9)(a). Whether a facility meets these requirements is a fact-intensive question and is addressed to the circuit court's discretion.
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¶ 42. Washington next argues that if jail is a permissible place of confinement under Wis. Stat. § 252.07(9), confinement to jail is not permitted whenever some less restrictive placement is available, citing
¶ 43. Wisconsin Stat. § 252.07(9)(a)3. provides that DHFS or the local health official petitioning for confinement of a person with tuberculosis who is non-compliant with a treatment regimen must demonstrate "[t]hat all other reasonable means of achieving voluntary compliance with treatment have been exhausted and no less restrictive alternative exists; or that no other medication to treat the resistant disease is available."
¶ 44. The City argues that the language "no less restrictive alternative exists" applies to the fact of confinement only because the other items listed under Wis. Stat. § 252.07(9)(a) apply only to the fact and not place of confinement. It asserts that the place of confinement need only be, as § 252.07(9) (a) provides, "a facility where proper care and treatment will be provided and spread of the disease will be prevented." The City also argues that the fact that other statutes more explicitly require "least restrictive" placement, citing Wis. Stat. §§ 51.20(9)(b), 51.30(4)(b)5., 51.35(l)(d)l, 55.06(9)(a),
¶ 45. Washington argues that the full context in which Wis. Stat. § 252.07(9)(a)3. appears, as well as certain provisions of the administrative code, indicate that "no less restrictive alternative" language applies to place of confinement as well as fact of confinement. She notes that the tuberculosis control statute also includes a provision for short-term confinement, Wis. Stat. § 252.07(8)(c). She further notes that many (if not most) persons subject to a petition for long-term confinement under Wis. Stat. § 252.07(9) have already been confined to a specified place under the short-term confinement statute, which provides that if a person is to be held for more than 72 hours, there must be "a court hearing under sub. (9) to determine whether the confinement should continue." Wis. Stat. § 252.07(8)(c). She argues that because the judicial proceeding under the long-term confinement statute seeks to continue "the confinement" — not confinement in the abstract, but a confinement to a specified place — failure to apply the "no less restrictive" standard to the place of confinement would mean that the initial place of confinement ordered by DHFS or the local health official without prior judicial approval under the short-term confinement provision would be essentially unreviewable, no matter its restrictiveness.
¶ 46. Both parties present reasonable interpretations of the statute, but we conclude that Washington's view is more reasonable. Confinement of a person who is noncompliant with a prescribed treatment regimen is not confinement in the abstract, but confinement to a specified place. A person already confined under the short-term tuberculosis confinement statute, Wis. Stat.
¶ 47. Portions of Chapter HFS 145 of the administrative code provide additional support for this interpretation. "Confinement" as defined in the tuberculosis control subchapter of HFS 145, means "restriction of a person with tuberculosis to a specified place" to achieve the goals of treatment and prevention of disease transmission. Wis. Admin. Code § HFS 145.08(2) (emphasis added). This language further demonstrates that the tuberculosis control statute contemplates confinement to a particular facility. Likewise, a related subchapter of HFS 145 concerning control of communicable diseases states that the remedy for noncompliance with prescribed treatments should be that which "is the least restrictive on the respondent which would serve to correct the situation and protect the public's health." Wis. Admin. Code § HFS 145.06(5). A remedy that includes confinement would be to a particular place with prevention and treatment as goals, and, taken with Wis. Admin. Code § HFS 145.08(2), these provisions indicate that officials must consider whether no less restrictive alternative exists to the place of confinement.
¶ 48. In light of the legislature's choice to permit confinement to jail of a person with noninfectious tuberculosis who is noncompliant with a prescribed treatment regimen, we conclude that the legislature intended the "no less restrictive alternative" language to apply to the place of confinement as well as the fact
C
¶ 49. Next, Washington argues that the circuit court erred in considering the relative costs to taxpayers of different placements in making its confinement decision. She asserts that cost may not be considered in determining place of confinement because it is not one of the placement criteria set forth in Wis. Stat. § 252.07(9). Washington cites D.E.R. v. La Crosse County, 155 Wis. 2d 240, 248, 455 N.W.2d 239 (1990), superseded by statute as stated in Dunn County v. Judy K., 2002 WI 87, ¶ 16, 254 Wis. 2d 383, 647 N.W.2d 799, for the proposition that costs are an impermissible factor in determining placement in an involuntary confinement.
¶ 50. In D.E.R., this court reversed a circuit court's order of protective placement under Wis. Stat. § 55.06(9) (a) (1987-88)
¶ 51. The City responds that a court may take cost into consideration when determining place of confinement because Wis. Stat. § 252.07(9) does not preclude a court from doing so. Moreover, the City notes that the D.E.R. court explicitly declined to address the question that Washington raises here:
This case does not pose the question of whether the circuit court may ever consider the costs of the proposed placement. Counsel for D.E.R. and M.D.A. acknowledged at oral argument that there may be cases in which the costs of the proposed placement are so exorbitant and the benefits to the individual so minimal that it is not reasonable for a professional to recommend the placement or for a circuit court to order such a placement.
D.E.R., 155 Wis. 2d at 253.
¶ 52. We turn to Wis. Stat. § 252.07(9)(a) and interpret its language in a manner that is consistent with the purposes of the statute. Kalal, 271 Wis. 2d 633, ¶ 49 (statutes should be interpreted in a manner that is consistent with their manifest purpose). The statute does not explicitly address whether costs may be a factor in determining place of confinement. However, the factors a court must consider in determining the place of confinement under the statute include: The place of confinement must be a facility (a) where proper care and treatment will be provided, (b) where spread of the disease will be prevented, and (c) that is not more restrictive than an alternate place of confinement. See Wis. Stat. § 252.07(9)(a).
IV
¶ 54. We turn now to the question of whether the circuit court's order confining Washington to jail under Wis. Stat. § 252.07(9) was a proper exercise of its discretion. "We affirm discretionary decisions if the circuit court applies the proper legal standard to the relevant facts and uses a rational process to reach a reasonable result." Robin K., 291 Wis. 2d 333, ¶ 12 (citations omitted).
¶ 55. Washington contends that the circuit court confined her to jail instead of the Medical Center based solely on its conclusion that the costs to local taxpayers of confinement to the Medical Center were too burdensome. We agree that the court's stated reasons for its placement decision were fiscal in part. However, we conclude the transcript of the circuit court hearing demonstrates that other factors, including the public health of the community and the treatment and care of Washington, were paramount.
¶ 57. The circuit court did not want to confine Washington to jail, but felt it had no choice. The court kept open the door to alternative placements:
[I]f you can find some other locked facility for your client that would agree to take her, the Court would be happy to order her placed somewhere else, and I'm sure the City would agree. The problem is that I need to have a locked facility where she is going to stay put.... At this point the only place that I know where I can put her in a confined setting would be at the CJF, in jail.... I refuse to require tax payers to pay 24 hour around the clock guard at her door to make sure she stays put. I don't think that's appropriate. Miss Washington was given an opportunity to receive treatment in the community and she failed to do that. But, [counsel], if you find some other place that she can be*133 placed,... I'll be happy to place her some place other than jail if you can come up with some alternative that would accept hep, sir. I have no problem in doing that. Actually, I'd welcome that. But I don't know of any other facility at this time .... If you find some other place to have her placed, you want me to order something, sir, I'll be happy to look at whatever you have found.
¶ 58. We also note that Washington was highly belligerent toward police officers when she was picked up on September 27, that she "was kicking her feet out of the squad car window and kicking the inside roof of the squad car, all the while loudly screaming, yelling and crying."
¶ 59. Additionally, we observe that the circuit court record indicates that in Washington's case, the CJF was a place where proper care and treatment would be provided and spread of the disease would be prevented. The circuit court stated that "the [CJF] certainly qualifies" as "a facility where treatment can be rendered." Moreover, we note that the court received expert testimony that Washington's tuberculosis was presently noninfectious.
¶ 60. Based on these considerations, we conclude that the order confining Washington to jail was not an erroneous exercise of the circuit court's discretion. Washington was at risk to develop a drug-resistant strain of the disease, had a history of disappearing from sight and was belligerent toward officers. The circuit court reasonably concluded from these factors that medical staff would not have been equipped to handle Washington's outbursts, and that the added security of jail was necessary to ensure that she would continue taking her medication and would not escape confine
¶ 61. In future cases, courts should follow the guidelines set forth in this opinion when determining place of confinement under Wis. Stat. § 252.07(9). A court proceeding under § 252.07(9) must ascertain whether a proposed place of confinement is a facility where proper care and treatment will be provided, spread of the disease will be prevented and that no less restrictive alternative placement exists. After applying these criteria to potential placement options, if two or more placement options meet the statutory requirements for treatment and disease prevention, and none of these placement options is significantly less restrictive than the others, the court may take into account the relative costs of the different placements. However, a determination based on cost must be supported by more than mere assumptions about the cost of particular placements.
V
¶ 62. Finally, we consider the court of appeals' conclusion that the confinement order was also authorized under the contempt statutes, specifically, Wis. Stat. § 785.04(1), which grants circuit courts the power to enter remedial sanctions. Section 785.04(1) lists remedial sanctions a court may impose, including, under paragraph (b), "[imprisonment if the contempt of court" involves disobedience of a court order pursuant to Wis. Stat. § 785.01(l)(b). Paragraph (b) further provides: "The imprisonment may extend only so long as the person is committing the contempt of court or 6 months, whichever is the shorter period." § 785.04(l)(b).
¶ 63. Washington contends it was unnecessary for the court of appeals to address whether the confine
¶ 64. We agree with Washington that the court of appeals' conclusion that the confinement was lawful under the remedial contempt statute was unnecessary. To begin with, the circuit court never made a finding of contempt for this court to review. It is simply not part of this case. Further, as Judge Kessler noted in dissent, such a conclusion violated the principle that "cases should be decided on the 'narrowest possible ground.'" Washington, 292 Wis. 2d 258, ¶ 25 (Kessler, J., concurring in part, dissenting in part) (quoting State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989)).
¶ 65. Moreover, we agree with Washington that remedial contempt was not an appropriate sanction in this case. A contemnor may be imprisoned "only so long as the person is committing the contempt of court." Wis. Stat. § 785.04(l)(b). Once a contemnor complies with the prior court order, or "purges" the contempt, the person must be released. "The purge provision must clearly spell out what the contemnor must do to be purged, and that action must be within the power of the person." State ex rel. N.A. v. G.S., 156 Wis. 2d 338, 342, 456 N.W.2d 867 (Ct. App. 1990) (citing Schroeder v. Schroeder, 100 Wis. 2d 625, 638, 302 N.W.2d 475, 482 (1981)). "Thus, it is often said that contemnors 'hold the keys to their own jails.'" Id. (quoting State v. King, 82 Wis. 2d 124, 137, 262 N.W.2d 80 (1978)).
¶ 67. Additionally, the legislature specifically addressed confinement for noncompliant and drug-resistant persons with tuberculosis in Wis. Stat. § 252.07. As Judge Kessler noted in her dissent:
The legislature ... developed an elaborate and detailed system to protect the public from, provide treatment for, and protect the civil liberties of, individuals with contagious tuberculosis. The legislature has concluded that the statutory system of regulation, and enforcement, provides adequate tools to protect the public and to treat the infected.
Washington, 292 Wis. 2d 258, ¶ 31 (Kessler, J., concurring in part, dissenting in part).
VI
¶ 69. In sum, we conclude that Wis. Stat. § 252.07(9)(a) authorizes confinement to jail for a person with noninfectious tuberculosis who fails to comply with a prescribed treatment regimen, provided that the jail is a place where proper care and treatment will be provided and the spread of disease will be prevented, and that no less restrictive alternative exists to jail confinement. We further conclude that a circuit court may take into account the cost of placement options when determining the place of confinement under § 252.07(9), but only after determining that two or more placement options fulfill the statutory requirements of proper medical treatment and disease prevention, and that none of these options is significantly less restrictive than the other(s).
¶ 70. We conclude the circuit court did not erroneously exercise its discretion in ordering Washington's confinement to the CJF, and therefore affirm on these grounds the court of appeals' opinion affirming the circuit court's order of confinement.
¶ 71. Finally, we conclude that Washington's confinement was not authorized by the remedial contempt statute, Wis. Stat. § 785.04(1), and specifically disavow the court of appeals' discussion of contempt as a separate basis for confinement to jail in this case.
By the Court. — The decision of the court of appeals is affirmed.
City of Milwaukee v. Washington, 2006 WI App 99, 292 Wis. 2d 258, 716 N.W.2d 176.
The City of Milwaukee contends that the appeal is moot because Washington was released from jail confinement on May 26, 2006, and any decision issued by this court will have no practical effect upon her confinement. While we agree that our decision is moot as to Washington, we will proceed to the merits because the issues raised in this appeal are of great public concern and are likely to recur. See State v. Michael S., 2005 WI 82, ¶ 6, 282 Wis. 2d 1, 698 N.W.2d 673.
All references to the Wisconsin Statutes are to the 2005-2006 version of the statutes unless otherwise noted.
In future cases, we expect that courts determining place of confinement for persons subject to a petition under Wis. Stat. § 252.07(9) will apply the methodology set forth in this opinion.
Wisconsin Admin. Code § HFS 145.08(5) defines "directly-observed therapy" as "ingestion of prescribed anti-tuberculosis medication that is observed by a health care worker or other responsible person acting under the authority of the local health department."
Wisconsin Stat. § 252.07(9) provides, in part:
(a) The department or a local health officer may petition any court for a hearing to determine whether an individual with infectious or suspect tuberculosis should be confined for longer than 72 hours in a facility where proper care and treatment will be provided and spread of the disease will be prevented. The department or local health officer shall include in the petition documentation that demonstrates all of the following:
1. That the individual named in the petition has infectious tuberculosis; that the individual has noninfectious tuberculosis but is at high risk of developing infectious tuberculosis; or that the individual has suspect tuberculosis.
2. That the individual has failed to comply with the prescribed treatment regimen or with any rules promulgated by the department under sub. (11); or that the disease is resistant to the medication prescribed to the individual.
3. That all other reasonable means of achieving voluntary compliance with treatment have been exhausted and no less restrictive alternative exists; or that no other medication to treat the resistant disease is available.
*106 4. That the individual poses an imminent and substantial threat to himself or herself or to the public health.
For reasons that are unclear from the record and filings, Washington appears to have abandoned the Mental Health Complex as an alternate less restrictive place of confinement to jail. Her briefs focus exclusively on the Medical Center as the alternate less restrictive place of confinement.
"Local health officer" means "the health officer who is in charge of the local health department." Wis. Stat. § 250.01(5).
Wisconsin Stat. §252.07(lg) defines "infectious tuberculosis" and "suspect tuberculosis" as follows:
(a) "Infectious tuberculosis" means tuberculosis disease of the respiratory tract, capable of producing infection or disease in*115 others as demonstrated by the presence of acid-fast bacilli in the sputum or bronchial secretions or by chest radiograph and clinical findings.
(d) ''Suspect tuberculosis" means an illness marked by symptoms and laboratory tests that may be indicative of tuberculosis, such as a prolonged cough, prolonged fever, hemoptysis, compatible roent-genographic findings or other appropriate medical imaging findings.
We note that the first part of Wis. Stat. § 252.07(9)(a) refers to persons with infectious tuberculosis and suspect tuberculosis, but does not mention persons with noninfectious tuberculosis who áre at a high risk of developing infectious tuberculosis. Section 252.07(9)(a) cannot be read, however, without looking at the remainder of paragraph (9)(a). We construe § 252.07(9)(a) as applying to persons mentioned in
Wisconsin Stat. § 252.07(9)(a)l. states that the petition seeking confinement must demonstrate either that the person has infectious tuberculosis, suspect tuberculosis or "that the individual has noninfectious tuberculosis but is at high risk of developing tuberculosis." This portion of subdivision 1., which immediately follows paragraph (a), would be rendered meaningless surplusage if § 252.07(9)(a) were not construed to include persons with "noninfectious tuberculosis" who are at a high risk of becoming infectious. See Mueller v. McMillian Warner Ins. Co., 2006 WI 54, ¶ 27, 290 Wis. 2d 571, 714 N.W.2d 183 ("A statute should be construed so that no word or clause shall be rendered surplusage and every word if possible should be given effect.") (citation omitted). There is absolutely no reason to include this category of persons in a petition for confinement if that person cannot be confined under the statute. Such a reading would render the statute nonsensical.
The remainder of Wis. Stat. § 252.07(9)(a) makes it clear that, with respect to a person with noninfectious tuberculosis at a high risk of developing tuberculosis who has a nonresistant form of the disease, the petition must allege under subdivision (9)(a)2. that the individual has failed to comply with the prescribed treatment regimen or rules promulgated by the DHFS. The petition must further, under subdivision (9)(a)3., allege that all other reasonable means of achieving voluntary compliance have been exhausted and no less restrictive alternative exists. Finally, under subdivision (9)(a)4., the petition must allege that the individual poses an imminent and substantial threat to himself or herself or to the public health. There is no point in including these allegations in a petition seeking confinement unless the court has the power to act on the petition and order confinement. The introductory portion of § 252.07(9)(a) must be read with the remainder of the paragraph if the statute is to make any sense.
All references to Wis. Admin. Code § 145 are to the version published December 2003 in the administrative register, No. 576.
The City correctly notes that Washington conceded before the court of appeals that a jail was a "facility" under Wis. Stat. § 252.07(9)(a), and contends that Washington has therefore waived the right to argue otherwise here. For the sake of clarifying the law, we chose to address the question of whether a jail is a "facility" under this statute. See Clean Wisconsin, Inc. v. Pub. Serv. Comm'n of Wisconsin, 2005 WI 93, ¶ 270, 282 Wis. 2d 250, 700 N.W.2d 768 (stating that waiver is a rule of
For the sake of readability, we refer to persons with "noninfectious tuberculosis who are at a high risk of developing tuberculosis" as persons with "noninfectious tuberculosis" in the remainder of this opinion.
The issue of whether jail is a place of confinement authorized by the statute for persons with infectious or suspect tuberculosis is not before us. The issue we have addressed involves persons with noninfectious tuberculosis who are at a high risk of developing tuberculosis.
This assumes, of course, that the circuit court has already found that the person poses an imminent and substantial threat to himself or herself or to the public health. Wis. Stat. § 252.07(9)(a)4.
One might suggest that this legislative history indicates only that the bill's authors intended jail to be a permissible place of confinement for persons who contract tuberculosis while incarcerated. However, this view would suggest a double standard for tuberculosis treatment that would rest on the following untenable interpretation of Wis. Stat. § 252.07(9)(a): For incarcerated persons, jail is "a facility where proper care and treatment will be provided and spread of the disease will be
See Lawrence O. Gostin, "The Resurgent Tuberculosis Epidemic in the Era of AIDS: Reflections on Public Health, Law and Society," 54 Md. L. Rev. 1, 51 (1995).
We emphasize that this opinion applies only to persons with noninfectious tuberculosis — that is, persons who will not become infectious if they receive proper treatment and are forced to comply with a prescribed treatment regimen. For persons with infectious tuberculosis or with the most highly drug-resistant strains of the disease, we doubt that jail would be an appropriate placement under Wis. Stat. § 252.07(9)(a) because such a placement would almost certainly increase, not prevent, the risk of transmission of the disease.
Wisconsin Stat. § 55.06(9)(a) was amended and renumbered by 2005 Wis. Act 264 and the relevant language is now contained in Wis. Stat. § 55.12(3).
The protective placement statute was later amended to permit consideration of fiscal matters in placement. See Dunn County v. Judy K., 2002 WI 87, ¶ 16, 254 Wis. 2d 383, 647 N.W.2d 799; Wis. Stat. § 55.06(9)(a) (1997-98).
The court of appeals stated that Washington" 'purges' her contempt by complying with the treatment regimen for the medically required time. After that purge, she will no longer be confined." Washington, 292 Wis. 2d 258, ¶ 19. Washington asserts that to purge the contempt under that analysis, she would need to be healed of tuberculosis, and because it is not within her power to heal herself, an order of remedial contempt would not lie.
However, Washington was not confined merely because she had tuberculosis. She was confined because she was diagnosed with tuberculosis and refused to comply with treatment orders. Thus, had Washington been imprisoned on a remedial contempt order, she could have purged her contempt by complying with treatment orders, i.e., by taking her medication. Once Washington took her medication, she would no longer be in contempt, and could no longer be held in jail under Wis. Stat. § 785.04(l)(b).
Reference
- Full Case Name
- In the Interest of Ruby Washington: City of Milwaukee, Petitioner-Respondent v. Ruby Washington, Respondent-Appellant-Petitioner
- Cited By
- 7 cases
- Status
- Published