State of Wisconsin ex rel. William E. Marberry, Petitioner-Appellant, v. Phillip G. Macht, Superintendent, Wisconsin Resource Center and Joseph S. Leean, Secretary, Department of Health and Family Services, Respondents-Respondents. †
No. 99-2446
Court of Appeals
Oral argument January 15, 2002. Decided April 10, 2002.
2002 WI App 133 | 648 N.W.2d 522 | 254 Wis. 2d 690
† Petition to review granted 6-11-02.
On behalf of the respondents-respondents, there was a brief by Marguerite M. Moeller, assistant attorney general, and James E. Doyle, attorney general. There was oral argument by Marguerite M. Moeller, assistant attorney general.
Before Nettesheim, P.J., Brown and Snyder, JJ.
¶ 1. SNYDER, J. In this case we are asked to determine whether the initial reexamination required by
BACKGROUND
¶ 2. The essential facts are undisputed. Marberry was committed as a sexually violent person on July 15, 1998, pursuant to
Periodic reexamination; report. (1) If a person has been committed under s. 980.06 and has not been discharged under s. 980.09, the department shall conduct an examination of his or her mental condition within 6 months after an initial commitment under s. 980.06 and again thereafter at least once each 12 months for the purpose of determining whether the person has made sufficient progress to be entitled to transfer to a less restrictive facility, to supervised release or to discharge. At the time of a reexamination under this section, the person who has been committed may retain or, if he or she is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her.
¶ 3. The State concedes that the Department of Health and Family Services (DHFS) failed to conduct an initial reexamination of Marberry‘s mental condition
ISSUE
¶ 4. Marberry and the State dispute whether the six-month time limit for an initial reexamination under
DISCUSSION
¶ 5. Whether the
¶ 6. Marberry contends that the six-month reexamination time limit of
¶ 7. The State contends that the six-month time limit of
¶ 8. Lockman addressed a
¶ 9.
¶ 10.
¶ 11. In addition, it is much more difficult to commit a person under
¶ 12. Furthermore, a person may be committed under
¶ 13. Although
¶ 14. Neither is a
¶ 15. Additionally, a
¶ 16. The differences in the procedures for initial commitment between
¶ 17. We must now consider whether the initial reexamination of
¶ 18. In determining whether a statutory time limit is mandatory or directory, we consider several factors: the existence of penalties for failure to comply with the limitation, the statute‘s nature, the legislative objective for the statute and the potential consequences to the parties, such as injuries or wrongs. State v.
¶ 19. Here,
¶ 20. The nature of a
¶ 21. The potential consequences for both parties cannot be labeled insignificant; failure to conduct a reexamination could result in the release of a potentially dangerous mentally disordered person into the community or the continued confinement of a person who no longer presents a danger to society and the
¶ 22. The general rule in interpreting statutory language is that “the word ‘shall’ is presumed mandatory when it appears in a statute.” State v. Sprosty, 227 Wis. 2d 316, 324, 595 N.W.2d 692 (1999) (citation omitted). “Further support is given to a mandatory interpretation of ‘shall’ when the legislature uses the words ‘shall’ and ‘may’ in a particular statutory section, indicating the legislature was aware of the distinct meanings of the words.” Id. (citation omitted).
¶ 23. The legislature used both the words “shall” and “may” in
(1) If a person has been committed under s. 980.06 and has not been discharged under s. 980.09, the department shall conduct an examination of his or her mental condition within 6 months after an initial commitment under s. 980.06 and again thereafter at least once each 12 months for the purpose of determining whether the person has made sufficient progress to be entitled to transfer to a less restrictive facility, to supervised release or to discharge. At the time of a reexamination under this section, the person who has been committed may retain or, if he or she is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her.
(2) Any examiner conducting an examination under this section shall prepare a written report of the
examination no later than 30 days after the date of the examination. The examiner shall place a copy of the report in the person‘s medical records and shall provide a copy of the report to the court that committed the person under s. 980.06.
(3) Notwithstanding sub. (1), the court that committed a person under s. 980.06 may order a reexamination of the person at any time during the period in which the person is subject to the commitment order. (Emphasis added.)
Therefore, we “can infer that the legislature was aware of the different denotations and intended the words to have their precise meanings.” Sprosty, 227 Wis. 2d at 325 (citation omitted).
¶ 24. By and large, if a provision of a statute states a time for performance of an official duty, without any language denying performance after a specified time, it is directory; however, if the time period is provided to safeguard someone‘s rights, it is mandatory and the agency cannot perform its official duty after the time requirement has passed. 3 SUTHERLAND STATUTORY CONSTRUCTION § 57.19 (6th ed. 2001).
¶ 25. Where statutes provide for performance of acts by public officers protecting private rights or in the public interest, they are mandatory. Id. at § 57.14; Town of LaGrange v. Auchinleck, 216 Wis. 2d 84, 97, 573 N.W.2d 232 (Ct. App. 1997). This rule has been enunciated by the United States Supreme Court as follows: “The conclusion to be deduced from the authorities is, that where power is given to public officers . . . —whenever . . . individual rights call for its exercise—the language used . . . is in fact peremptory.”
There are, undoubtedly, many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such, generally, are regulations designed to secure order, system and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected. . . . But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory.
French v. Edwards, 80 U.S. 506, 511 (1871). “If the provision is essential, it is mandatory.” Midwest Mut. Ins. Co. v. Nicolazzi, 138 Wis. 2d 192, 198, 405 N.W.2d 732 (Ct. App. 1987) (citation omitted).
¶ 26. In the case at hand, mental reexaminations are conducted “for the purpose of determining whether the person has made sufficient progress to be entitled to . . . supervised release or to discharge.” Post, 197 Wis. 2d at 300 (citing
¶ 27. A
¶ 28. There is no doubt that Marberry was not provided his initial reexamination within this mandatory six-month period. In fact, it took DHFS nearly two years to provide him with this reexamination. The question remaining for us, then, is what is the appropriate remedy when DHFS fails to provide a
¶ 29. Marberry argues that the “prolonged indifference” of DHFS necessitates his release from his
¶ 30. All of the remedies offered by the State are inadequate to address the wrong perpetrated here. As noted by Marberry, as a practical matter, it is unlikely
¶ 31. We disagree with the State‘s assertion that damages and attorney‘s fees under
¶ 32. Freedom from physical restraint is a fundamental right that “has always been at the core of the liberty protected . . . from arbitrary governmental action.” Post, 197 Wis. 2d at 302 (citation omitted). Our supreme court held that “[c]ivil commitment for any purpose constitutes a significant deprivation of liberty . . . .” Id. (citation omitted). The Post court recognized that a proper function of the legal process is to minimize the risk of erroneous decisions and cautioned that an “individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.” Id. at 326 (citation omitted). “Loss of liberty through involuntary commitment imposes just such a heavy duty upon the state.” Id.
¶ 34. However, when our supreme court held
¶ 35.
¶ 36. Wisconsin‘s sexual predator law survived constitutional challenge, in part, because the nature and duration of
¶ 37. Here, DHFS took nearly two years to provide Marberry with a reexamination that should have been conducted within six months. Under the extreme state of affairs presented here and the prolonged deprivation of Marberry‘s liberty in violation of the strict safeguards of
CONCLUSION
¶ 38. We conclude that the six-month time limit of
By the Court.—Order reversed.
¶ 40. The majority pins its remedy to its interpretation of State v. Post, 197 Wis. 2d 279, 541 N.W.2d 115 (1995), and State v. Carpenter, 197 Wis. 2d 252, 541 N.W.2d 105 (1995). The majority interprets these cases as recognizing a liberty right to a reexamination. See Majority at ¶ 26 (“[t]he reexamination is a safeguard against arbitrary confinement“) and Majority at ¶ 27 (“[a]
¶ 41. I do not agree that Post and Carpenter view periodic reexaminations as procedural due process safeguards. In Carpenter, the defendant argued that the primary purpose of
Periodic mental examinations are conducted “for the purpose of determining whether the person has made sufficient progress to be entitled to transfer to a less restrictive facility, to supervised release or to discharge.”
Wis. Stat. § 980.07(1) . Thus, the duration of an individual‘s commitment is intimately linked to treatment of his mental condition. Commitment ends when the committed person no longer suffers from a mental disorder or when that condition no longer predisposes him to commit acts of sexual violence. Protection of the community is also well-served by this statutory scheme because the danger to the public has necessarily dissipated when treatment has progressed sufficiently to warrant an individual‘s release.
Post, 197 Wis. 2d at 314. In other words, the periodic testing is evidence of the legislative purpose to control, care and treat committed persons with the goal of returning them to society with minimal risk to the public, rather than warehousing such persons indefinitely.
¶ 42. Failure to hold the reexamination within six months does not transmogrify the statute into a penal one. Nor does it result in curtailment of a patient‘s liberty interests beyond that which is already encompassed by the patient‘s initial commitment. See id. at 317 (
¶ 43. This is not to say that there should not be consequences that flow from the governmental misconduct in this case. But I simply do not believe that it is fair or just to visit the consequences upon the innocent public. In addition, Marberry is not truly served by release either, given that his mental illness has not yet abated to a point where he may be safely reintroduced to the community. According to the most recent reexamination of Marberry, his health status requires that he receive treatment, not release. See State v. Seibert, 220 Wis. 2d 308, 320, 582 N.W.2d 745 (Ct. App. 1998) (refusing to allow release for committee‘s claim that facility failed to develop appropriate treatment program, stating that release would be “absurd” and his remedy was to litigate the issue and if successful, obtain correct treatment).
¶ 44. I prefer to take an economic approach to identify the consequences of the government‘s misconduct and to impose a remedy. An economic analysis is guided by cost efficiency; it identifies the costs of a transaction and then applies sanctions to arrive at the most economically efficient outcome. See generally Richard A. Posner, An Economic Theory of the Criminal Law, 85 Colum. L. Rev. 1193 (1985). According to Posner, concerns about economic efficiency have guided courts in devising remedies for governmental misconduct in criminal cases, even though such concerns may not always be articulated. Richard A. Posner, Excessive Sanctions for Governmental Misconduct in Criminal Cases, 57 Wash. L. Rev. 635, 646 (1982). He maintains, for example, that the harmless error rule is a remedy that can be explained in terms of efficiency:
If a person is guilty beyond a reasonable doubt on the basis of evidence both reliable and just, then a retrial will impose either a deadweight loss in the form of litigation expenses that will not change the outcome of the first trial, or an equally or (probably) more serious social cost resulting from the acquittal of a guilty person and consequent reduction in the deterrent and incapacitative effects of criminal punishment. These costs are excessive relative to the governmental misconduct, which by definition is slight since the defendant would in all probability have been convicted anyway.
What the harmless-error rule does, then, is to identify a type of governmental misconduct whose social costs are much lower than the social costs of attempting to deter the misconduct by overturning the conviction and forcing a retrial.
Id. at 645.1
¶ 45. Posner‘s cost efficiency approach resonates in this case as well. What are the costs if Marberry is granted his request for release? Marberry has previously been convicted of sexually assaulting an adult female by use of force and an adolescent female, also by use of force. He has been examined by WRC personnel and found to be a dangerous sexual predator. He has been reexamined and his illness has not subsided. Release of such a person, whom experts predict will reoffend, is a costly remedy triggering expenditures of police and community resources in the form of heightened security and other safety precautions in the community in which he plans to live. We cannot ignore these very real costs. Significantly, these costs will accrue if we grant Marberry‘s request for release regardless of whether he actually reoffends or not.
¶ 46. These costs must be compared to the cost of governmental misconduct involved in this case. Officials failed to hold a reexamination that was necessary to monitor Marberry‘s treatment and progress. From an economic perspective, the cost of this failure is only noticeable when patients who are eligible for release continue to reside at WRC, a drain on the state‘s resources. It is obviously more cost efficient to discharge persons no longer in need of treatment than to keep them in the system. There is also the cost associated with preventing a person from being a contributing and fully-functioning member of society when that person‘s mental health no longer requires confinement. In this case, however, Marberry is not a person who would have been eligible for release had the reexamination been timely conducted. Therefore, there is no
societal cost associated with his absence from the community and the state did not unnecessarily expend resources on Marberry‘s treatment and care. Consequently, the costs associated with the DHFS‘s failure to timely hold the reexamination are negligible.
¶ 47. My conclusion, therefore, is that release is not the appropriate remedy because it inefficiently allocates costs. The social costs associated with the misconduct are much lower than the social costs of attempting to deter the misconduct by releasing a potentially sexually violent person onto the streets.2 Instead, I would impose the sanctions set forth below. These sanctions would constitute detriments imposed directly on the responsible government officials in order to induce conformity with the requirements of
¶ 48. The first appropriate remedy is the issuance of a writ of mandamus to compel the public officials to perform a duty required by law. See Pasko v. City of Milwaukee, 2002 WI 33, ¶ 24, 252 Wis. 2d 1, 643 N.W.2d 72. In order for a writ of mandamus to be issued, there must be a clear legal right, a positive and plain duty, substantial damages, and no other adequate remedy at law. Id.
¶ 50. The State misses the point altogether by assuming that substantial damages are incurred only when a patient achieves mental health and his or her supervised release or discharge is delayed by official inaction. In essence, the State falls into the “liberty interest” argument put forth by Marberry and which I have rejected in its entirety.
¶ 51. It follows that when the patient‘s progress is not adequately monitored, he or she sustains substantial damage to the right to treatment, and has the right to insist that the legislature‘s goal of reexamination be correctly implemented. Therefore, in cases where the State fails to meet the statutorily prescribed time periods, a writ of mandamus should be issued to direct the responsible officials to undertake all necessary action to ensure that the mental reexamination is initiated and promptly completed. See Jackson v. State of Florida, 802 So. 2d 1213, 1218 (Fla. Dist. Ct. App. 2002) (issuing writ of mandamus as remedy, rather than release, when state failed to conduct mandatory annual reexamination under Florida‘s sexually violent predators law).4
¶ 53. Therefore, I would approach the issue in the following manner. Upon request, the trial court may order the State to disclose all information that will identify the person or persons responsible for not providing the reexamination. Upon disclosure, the court may order these persons held in contempt and fine them or jail them. I am not persuaded by the State‘s position that there is no evidence of willful misconduct at WRC and that officials there are doing the best they can with limited resources. Whether officials have been acting in good faith or in an egregious manner are facts that would be adduced, to the benefit of the public and the legislature, during contempt proceedings.
¶ 54. If any individual‘s actions are shown to be in flagrant disregard of the court‘s order, a jail term would be more than appropriate. Jail is a real cost to an egregious offender of the mandamus. A fine is a very real economic cost. If the purpose is to provide a
¶ 55. Finally, if the mental reexamination ultimately discloses that the committed person had made sufficient progress to justify supervised release or discharge, a damages remedy may be available in an action under