*1 Larry Sprosty: In re the Commitment of J. Petitioner-Respondent-Petitioner, Wisconsin, State
v. Larry Respondent-Appellant. J. Sprosty,
Supreme Court 9, 1999. argument No. 97-3524. Oral April June Decided (Also 692.) reported in 595 N.W.2d
318 petitioner-respondent-petitioner the cause For the attorney by argued Weinstein, assistant D. Warren was Doyle, E. general, was James on the brief with whom attorney general. by respondent-appellant there was brief Kelly,
For the Kelly Thomas, & Christopher Habermehl T. argument by Mays, T. Christo- oral S.C., Madison and Kelly. pher seeks The State
¶1. WILCOX, J. P. JON reversing appeals1 court of decision of the of a review County, Hon- for Crawford circuit court an order initially The circuit court T. Kirchman. Michael orable Larry defendant, supervised release of the ordered (1995-96),2 sex- Sprosty, ch. 980 Stat. under Wis. county submitted predator However, when law. ual inadequate Sprosty because of to not release its his denied circuit court resources, appeals reversed. court of release. The presented for our four issues has 2. The State (1) facility availability within is the review: community appropriate circuit court factor for the an 980.06(2)(b) 980.08(4);3 §§ Stat. under Wis. consider 1 (Ct. 637 2d 585 N.W.2d 221 Wis. Sprosty, v. State 1998). App. version of to the 1995-96 statutory references are All noted. otherwise unless statutes 980.06(2)(b) language §§ of Wis. The *4 980.06(2)(b) placement in governs identical, except that § 980.08(4) in governs placement order, and § initial commitment decision, this purposes release. For supervised petition however, appli is 980.08(4); our decision only refer § we will 980.06(2)(b) as well. cable §
(2) authority does the circuit court have to order a county department Department or the of Health and (DHFS) Family programs Services to create whatever or facilities are deemed to accommodate an (3) supervised order for release; does the circuit court authority have to reconsider an earlier decision to supervised upon obtaining complete order release more (4) information on available facilities; and who bears necessary programs the burden of the cost of the county department facilities, the or DHFS.
¶ 3. We conclude that court, a circuit in its discre- may availability tion, consider the of facilities to house predator or to treat a sexual under Wis. Stat. 980.08(4). any However, such consideration must be keeping purpose providing with the the "least accomplish restrictive" means to person the treatment of the protecting public. while also We further con- finding clude that once a circuit court has made a supervised 980.08(4), ordered release under it is required to order a under placed supervised and to ensure that the on plan. release accordance with the cases, some provide creation of requi- facilities and services to protect public site treatment and to while a community may on release in the be nec- essary, responsible. for which DHFS is Wis. granted case, In this the circuit court petition release, but failed to order Sprosty's Accordingly, release. This was in error. we remand the matter to the circuit court for a determina- opinion. tion consistent with this dispute. Sprosty 4. The facts are not in was predator committed as a sexual under Wis. Stat. ch. *5 Sprosty petitions super- 1996, 980 in 1995. In filed for discharge, § 980.08, and/or for release, vised Wis. Stat. evidentiary hearing, experts At the Wis. Stat. 980.09. although Sprosty par- that needed to continue testified ticipation in sex offender and substance abuse programs, he could benefit from such treat- living outpatient in the ment on an basis while community supervision. under close The circuit court granted Sprosty's petition agreed and for granting 1996, 18, release. In its October order required plan petition, that a treatment be the court Sprosty custody developed, remain in until and that further order of the court. early 1997, 5. From late 1996 to a social worker (WRC), Resource Center Heather
for Wisconsin corresponded Leach, the circuit court about an with plan appropriate release and treatment service Sprosty. cir- believed, The clinical staff and the WRC appropriate plan concurred, that an cuit court halfway placement Sprosty include house fol- would community by placement on electronic in the lowed long-term monitoring, offender treat- intensive and sex experienced provider, qualified AODA ment with a and by high supervisión treatment, risk a Sex Offender Agent through Supervision Program Intensive Community indicated, Leach Division of Corrections. difficulty locating having however, that she was County, requisite treatment and facilities. Crawford Sprosty's county residence, these resources. lacked geographical request there be no At the court's Dane, Milwaukee, limits, counties, four Leach located Portage, had the breadth and Crosse, La which appropriately depth and ade- of resources Sprosty; quately supervise however, at least some unwilling him the facilities were or unable to admit placement or services. April the circuit held a status County prepare a
conference and ordered Crawford provide supervised release under Wis. Stat. *6 § In June the circuit held addi- court two community hearings regarding Sprosty's
tional County plan. hearings, At the the Crawford attorney county, conjunction district stated that the in developed plan DHFS, with tory a that addressed the statu- Sprosty criteria, and determined that could not be county appropri- released because did not have the ate resources to his in address treatment needs a community setting. agreed programs
¶ 8. The circuit court that the necessary Sprosty's and facilities supervision, treatment and protection as well as for the of the commu- nity, County not were available Crawford or other compel counties. The court concluded that it could not private agencies accept Sprosty, require to nor would it provide super- the state to build facilities in order to vised release. Because the court would not release Sprosty necessary under conditions that were less than protection pub- ensure his treatment and the lic, it denied his release and returned Sprosty Sprosty appealed. to secure confinement. appeals
¶ 9. The court of
reversed. The court
unambiguous statutory language
determined that the
ofWis. Stat.
does
a
not allow circuit court to
refuse to order release
it
once
has determined that
appropriate.
Sprosty,
release is
State v.
221 Wis. 2d
(Ct.
1998).
App.
401, 409,
Rather,
must ascertain and Court, 214 Reiman v. Circuit Wis. lature. State ex rel. (1997). identify the 385 To 605, 613, 2d 571 N.W.2d statutory legislative the lan- intent, first examine we guage 883, 893, 2d 470 Martin, v. 162 Wis. itself. State bearing on Stat. has no
4 Sprosty insists Wis. super that the circuit court determined appeal this because 980.08(5). However, the appropriate was under § vised release petition presented the issues in the before this court are issues Weber, 788, 789, 476 867 2d N.W.2d State v. 164 Wis. for review. (1991). petition for submitted in the This was one of four issues review.
323 (1991). meaning 900 If the of the statute is N.W.2d language clear, outside of the we will not look legislative intent. Id. at 893-94. statute to discern 980.08(4) provides Wisconsin part: grant petition
The court shall unless the state by convincing clear and evidence that proves person person is still a violent and that it is substantially still probable person will engage person in acts of sexual violence if the is not facility. confined in a secure mental health unit or making subsection, a decision under this consider, may without limitation because of enumeration, and nature circumstances of the allegation behavior that was the basis of the in the petition..., person's history present mental condition, live, mental where the will how support will himself or herself and what arrangements per- are available to ensure that the son has participate access to will [Emphasis added.] treatment. general interpreting statutory
¶ 13. The rule in language presumed is that "the word 'shall' mandatory appears when it in a statute." Karow v. Comm'n, Milwaukee Co. Civil Serv. 82 2dWis. (1978). support given 570, 263 N.W.2d "Further mandatory interpretation legis to a of 'shall' when the 'may' particular lature uses the words 'shall' and in a statutory indicating legislature section, was aware meanings of the distinct of the words." GMAC Mort gage Corp. Gisvold, 459, 478, v. 215 Wis. 2d 572 N.W.2d (1998). *8 legislature
¶ 14. The used the words "shall” and "may" grant § in Stat. The Wis. court shall petition supervisory the release unless the state
324 person proves the is still violent and that that substantially engage probable person the still will it is if not in secure institutional in acts of sexual violence 980.08(4). making may § decision, its the court care. enumeration, consider, limitation because of without things live and how the such as where will support Therefore, herself. himself or Id. will legislature "can infer that was aware we and intended the words to have different denotations meanings." precise Karow, 82 2d at 571. their Wis. language plain ¶ conclude that the ofWis. 15. We 980.08(4) requires grant the circuit court to Stat. proves petition supervisory release unless the state by convincing evidence. We also con- its case clear plain language have, that the clude, as other courts 980.08(4) require, permits, does not Wis. Stat. but statutory making in factors circuit court consider appropri- supervisory release is decision on whether its 308, 314, 2d Seibert, v. 220 Wis. 582 N.W.2d ate. State (Ct. 1998); Keding, App. v. 214 Wis. see also State 745 (Ct. 1997).5 App. 363, 367, 571 459 2d N.W.2d mandatory The State does not contest the 16. 980.08(4) prove it its Stat. if fails nature of Wis. question the court's broad discretion does it case. Nor supervisory determining appropriateness release. argues Nevertheless, the State Wis. ambiguous it is unclear because making determination, the circuit court its
whether 5 directory in as word "shall" can be construed While the intent, Mortgage carry legislature's clear GMAC order to out (1998), 479, Gisvold, 2d 572 N.W.2d Corp. v. 215 Wis. legislature intended argue that the parties appear do not directory. its command to be *9 availability
may factor in the
of facilities with the nec-
creating
essary security
necessary
or the cost in
the
language
facilities. The State insists that the
"where
person
the
means that the circuit court should
will live"
possess
consider whether facilities which
security
willing
are
for the individual
available
supervision
person's
undertake the
before
agree
release can be ordered. We do not
premise.
with either
undisputed
committing
¶ 18.
It is
that the
court
determining
person
has broad discretion when
if the
appropriate
release under Wis. Stat.
980.08(4).
Keding,
Seibert,
314;
220 Wis. 2d at
see also
making
supervi-
clear and
substantially
person and that it is still
violent
engage
probable
in acts of sexual
will
if
in a secure mental health unit
violence not confined"
facility.
Wis. Stat.
While the court can
include in its order conditions which it considers neces-
*10
sary
placement, prior acceptance
person
for
of the
into
programs
inappropriate
facilities
is an
consid-
those
hearing
supervisory
petition
eration at the
on the
for
Keding,
release. See
¶
of
consideration of costs or
keeping
providing
must
in
with
the "least
facilities
be
accomplish
per-
treatment of the
restrictive" means to
protection
public.
Post,
of the
See State v.
son and
(1995);
279, 313,
2d
HHHHH-1
¶ 21.
next issue
consider is whether the
The
we
authority under
circuit court has the
Wis.
980.08(5)
county department
or DHFS to
to order a
necessary,
programs or facilities are
create whatever
super-
regardless
cost,
an order for
of
to accommodate
980.08(5) requires
release,
vised release. Whether
creating
release,
facilities
once
even
appropriate
release is
court has determined
Statutory
interpretation
statute.
involves
presents
question
construction
of law which we
Szulczewski,
de
procedural committing for a court to follow framework has determined that release once the court appropriate pro- Section under part: vides
If the that the appropriate court finds *11 release, supervised notify the court shall the county The and department. department the county under s. 51.42 in the department resi- person. prepare plan. dence of the . .shall a . . .The need[s],.. plan address the .The plan person's shall specify responsible providing shall who will be the treatment and services identified in the .... The the plan plan presented shall be to approval. county department for its . . .If the county of residence declines to a person's prepare plan, department may arrange the for another county county to the if that prepare plan agrees to prepare plan person living the and if the will be county. If department arrange that the is unable to county prepare plan, for another to a the court shall county designate department prepare plan, a to county department prepare plan order the to and place the person supervised on release in county. . .. 980.08(5)
¶
§
24. We conclude that Wis. Stat.
unambiguous.
clear and
The use of the word "shall" is
mandatory.
supervised
Karow,
See
incorrectly language read the in Wis. Stat. designate county department that the court "shall prepare plan. place supervised . .and on county" requiring person's release in that as supervised release once the court has determined that appropriate. release is The State contends that when 980.08(5) together 980.08(4), is read with it is clear legislature that the intended the circuit court to con- any placement together sider the cost with all of the determining other factors in whether appropriate. release is persons, In the case of violent legislature the State maintains that the did not intend DHFS to build whatever was placement create a release. 26. Wisconsin Stat. deals exclu-
sively committing grant with whether the court shall *12 petition supervised release. The circuit court is (4) required grant petition super- under sub. the
329 proves state it case. release unless the vised explained previous section, in in the As may sexually person violent live ofwhere the context arrangements available, for treatment are what availability security, facilities, and cost considera-
of may the court's decision on the factor into tions appropriateness Section release. of 980.08(5), procedures hand, sets forth the on other release under followed to be after 980.08(4) appropriate. is deemed 980.08(5) unambiguous ¶ 27. Stat. Wisconsin (4). conjunction with Proce- read in subsec. even when durally, committing person once a court determines imposed has its commitment should be released and (5) (4),6 requires that under subsec. order subsec. developed person and be be plan. in accordance with that Section released 980.08(5) requires compli- mandatory it and strict Keding, 214 2d at 371. ance. Wis. predator
¶ 28. Wisconsin's sexual law survived challenge, part, the nature because constitutional reasona- duration of ch. 980 commitments are to be and bly purposes to the for those commitments. related principle purposes 2d of Post, 197 Wis. at 314-16. The protection community ch. 980 are the persons. Post, Wis. 2d treatment of violent 197 Carpenter, control, 2d at The 313; at 197 Wis. care is to "the and treatment the committed be require- restrictive consistent least manner with and in accordance with the court's ments of (2)(b). order." commitment Wis. 6 may The court include in its order those conditions which Keding, 214 placement. State v. Wis. it considers 1997). (Ct. 363, 371, App. 450 2d N.W.2d *13 creating predator In leg- the sexual law, the sought protect community islature to from sexual predators, provide to treatment violent persons, appropriate, provide and when this treat- supervised ment under circumstances within the 980.07(1) community. §§ See Wis. Stat. 980.08. Carpenter accepted Post, this court the state's "[it] prepared provide specific affirmation that treatment to those committed under ch. 980 and not simply Carpenter, them," warehouse 197 Wis. 2d at legislature proceed good 267, and that "the will faith programs necessary and fund the for those chapter committed under 980." Post, 197 Wis. 2d at provide 308. The creation of facilities and services to supervised treatment under conditions within the com- munity contrary purposes. is not to these stated Accordingly,
¶ 30. we hold that a circuit court 980.08(5) authority has the under Wis. Stat. to order county, through programs DHFS, to create whatever or facilities are to accommodate an order for supervised release.
IV. ¶ 31. We must next address whether the circuit authority court has the to reconsider an earlier deci- upon obtaining sion to order release more complete information on available facilities. The State argues that because the circuit court had the discretion availability to consider the of facilities and their costs power in the first instance, it had the inherent to recon- sider its initial decision when confronted with more complete disagree. information. We 32. Wisconsin Stat. sets forth the procedures supervisory to be if followed release is 980.08(5) provides appropriate. in rele- Section deemed part: vant
(5) appropri- that the If the finds release, the notify ate court shall county . . department. department .If the declines county prepare person's residence *14 may for plan, department arrange the another county agrees if county prepare plan to the that to prepare plan person living the and if the will be arrange that If the is unable to county. department a county plan, the court shall prepare another to the designate county plan, department prepare a to county to the department prepare plan order the supervised the release in that place person and on .[Emphasis added.] county.. . 980.08(5) language
¶
§
is
33. The
of Wis. Stat.
appropri-
Supervised
has
deemed
clear.
release
been
development
ate; all
remains
is
plan.
implementation
a
If DHFS
of treatment
is unable
county through
prepare
arrange
a
DHFS to
a
to
county
designate
plan,
a
then the circuit
shall
to
court
county
plan,
prepare
prepare
a
it shall order
to
a
place
person
supervised
plan,
it shall
on
county
plan
has
release in that
pleted.
after
been com-
places
mandatory
Id. The statute
these
duties
Keding, 214
371.
on the circuit court. See
Wis. 2d at
Nothing
its
allows
reconsider
supervisory
inadequate
decision
release because of
on
county
develop
rather,
it
a
a
facilities;
must order
plan,
place
must
on
and it
plan
county.
pursuant
release
in that
Brady,
The State reles on
v.
34.
State
Wis.
(1986)
Castillo,
v.
2d
¶ 35. In the state sought suppression reconsideration of order based on recently Supreme released United States Court deci- Brady, 130 sion. Wis. 2d at 446. This court determined that a circuit court has the discretion, in some circum- compelled stances, but not to reconsider an order under these circumstances. Id. at 448. sought case, In this the State never recon-
sideration of the order for fact, release. In reviewing proposed the circuit court was Sprosty 980.08(5); under Wis. Stat. it was not reconsidering proved whether the State had its case for continued secure confinement under Wis. Stat. 980.08(4). Brady simply support does not the State's position. distinguishable
¶ 37. Castillo is as well. Cas- agreed allegations tillo, the defendant to admit to the petition in the for commitment as a violent *15 person exchange community placement. for Castillo, 2dWis. at 605. The state later filed a motion to reopen modify dispositional and to the order because it agreed-upon community place- was unable to fulfill the appeals ment. Id. at 605-06. The court of held that keep part plea the because state was unable to its agreement placed that the defendant be under commu- nity-based supervision, the defendant must be allowed plea allegations to withdraw his no contest to the in the petition. Id. at 610-11.
¶ Here, 38. the State never filed a motion to reo- pen modify supervised the order for release. presented plan proposed Instead, it a treatment that releasing Sprosty community contrary not into the to Moreover, did the court order. commitment the court's hearing appropriateness of the on conduct a second not determined that supervised Instead, the court release. Sprosty, private agency to admit order a it could not require to facilities the state build it nor would 980.08(5) Stat. However, Wis. him. accommodate just requires court must order that —the court to do place person county develop plan and it must a a county it has deter- in that once release on appropriate under release mined that 980.08(5). 980.08(4). § suggest ¶ that DHFS and The State seems to 39. Sprosty county's plan to secure institu- to return plan. satisfactory treatment tional care constituted disagree. We 980.08(5), governs which 40. Wisconsin supervisory procedures if release is followed to be county appropriate, DHFS and the directs
deemed department prepare plan that identifies the treat- any, person services, will receive if ment and person's community. plan address the Id. "The shall counseling, any, supervision, medication, need, if community support services, services, residential voca- drug or other abuse services, and alcohol tional responsible specify plan who is Id. The is to treatment." plan providing services, and the the treatment approval presented within 60 to the court must be person appropri- finding days that the after the court supervised release. Id. ate for proposal to a secure A to return facility comport Wis. Stat. does not with institutional directs that Section identify will receive and services the community, upon institu return to a secure not in the *16 accept facility do not such as WRC. We tional 334 position "plan" nothing State's that a to do constitutes "plan" complies mandatory a with directives of 980.08(5).7 § case, In this the circuit court determined Sprosty appropriate
that
was
release
community.
and treatment
in the
Wisconsin Stat.
980.08(5) unambiguously
super-
directs that when
appropriate,
vised release is considered
the circuit
developed
court order a
be
that will achieve
community
release and treatment
in the
while also
protecting
public.
The court's order to return
Sprosty
facility
to a secure
was erroneous; the court
designated
county
should have
and then ordered a
to
develop
plan,
Sprosty's super-
a treatment
and ordered
plan.
vised release in accordance
We,
with that
therefore, remand the matter to the circuit court to
designate
county
develop plan,
and order a
consis-
980.08(5),
provides
Sprosty's
tent with
that
community.8
release and treatment
in the
7 Sprosty argues
County
the letter
from the Crawford
worker,
Leach,
Judge Kirchman,
social
Heather
dated March
13, 1997, does not
"plan"
constitute
under Wis. Stat.
"report"
simply
because
summarizes
Leach's
against
plan.
reasons
a release
Because we conclude that
proposal
Sprosty
State's
to return
to secure institutional
care
980.08(5),
comply
does not
with
we need not decide whether
Judge
adequate
Leach's letters to
Kirchman were
or were in the
requisite
"plan."
form of a
options
county
Placement
are not
limited to the
of resi
Keding,
county
dence.
V. is to decide ¶ for our review The final issue 43. necessary pro- of the cost the burden who bears grams 980, the Stat. ch. under Wis. and facilities argues county department that the The State DHFS. or question appeals into whether decision calls of county department DHFS has the financial bur- or creating programs facilities den sexually place on release. violent places the Stat. ch. 980 maintains that Wis. The State appropriate providing treat- of financial burden Sprosty counters on DHFS. ment and facilities govern- appeal because no issue on this are not an costs Sprosty's entity finance ordered to ment has been likely to arise the issue release. Because question in interest of remand, address the on we efficiency. judicial
¶ that DHFS Stat. 980.12 states 44. Wisconsin pay appropriations.. .for all costs relat- from the "shall persons ing care evaluation, treatment and of Any chapter." possi- under this or committed evaluated by appeals questions court of decision raised ble by legislature. answered have been by supported position further our This 45. 2d 497 N.W.2d Goers, v. 174 Wis. decision Rolo (now DHFS) (1993). DHSS Rolo, we held that 724 financially responsible conditions of to fund was indigent person under Wis. committed release for an (1987-88) charged was because DHSS 971.17 "custody responsibility care and treat with persons. Rolo, 2d at 723. We such Wis. ment" of county- distinguished §971.17 from commitments commitments, Wis. Stat. for civil funded treatments 51.42(1)(b)(1987-88). 2d at 722-23. Rolo, 174 Wis. 980.06(1) provides Similarly, Wis. Stat. sexually person found to be violent "be commit- that a [DHFS] custody control, care and ted to the longer time as the is no treatment until such person." Section is not a form violent county-funded treatments for civil commitments either. *18 agree
¶47. Thus, with the State that the we arrange responsibility find, and programs DHFS and and facilities is shared between county live, such other will where designated county. And as Wis. Stat. by requested State, DHFS has the we now hold that necessary programs paying financial burden of persons who are evaluated or com- facilities for those under Stat. ch. 980. mitted Wis. appeals
By decision of court of Court.—The the cause remanded to the circuit court is affirmed and opinion. proceedings this further consistent with ¶ PROSSER, J., not T. did 48. DAVID participate.
¶ ABRAHAMSON, S. CHIEF 49. SHIRLEY (concurring). join opin- I Part V of the JUSTICE do not county develop plan. agree I must ion. Majority op. 332, 334—35. That's settled. at dispute is no this case about who 50. There pay programs facilities. No adverse for the will debating parties This should not be are this issue. rendering advisory opinion. an exchange following Justice between 51. The clearly argument oral and defense counsel at Crooks pay demonstrates that the issue of who will for the programs and facilities is not before this court. Kelly Mr. [defense
JUSTICE CROOKS: coun- sel], why shouldn't we reach the issue of who has responsibility? the financial [defense counsel]: MR. KELLY Whether it's the county? Basically Sprosty state or the because Mr. care; a community doesn't he wants to be released to setting. Sprosty. I'm an advocate for Mr. I don't represent county. We don't have a situation in county pay anything. which has been ordered to fact, nobody anything. has been ordered to do you
JUSTICE But think CROOKS: don't it help your position would client's if indeed this court responsibility said the is with the state rather than county? you speed with the Don't think that would things along a bit? Maybe
MR. KELLY: in the sense that the state money has more than counties do. I take that could I position. Sprosty's But don't think Mr. freedom hinge pays, should on who and I don't think that's ripe by the issue which is for consideration this *19 Nobody court. raised the issue in the trial court as to pay whether the state was to going or whether the county going pay. something was to That wasn't Judge Nobody that Kirchman was asked to decide. appeals raised that issue the court of and I don't read the court of appeals making decision as a deci- sion on that issue. I think appeals what the court of Judge told Kirchman require was that he has to a county prepare plan to a release and if there isn't a facility that currently is available then it's to the up county to create some kind of a release that accomplishes the goal of statute. The court of didn't appeals say pay who has to for it. So at this point any there hasn't been kind of adversarial rela- that squarely put case that would tionship in this the court. issue before say I to just going CROOKS: But was
JUSTICE county is to county pre- that the telling that impliedly it seems to me that pare plan, that have a saying "County, you better appeals court of words, you I think can available." In other facility by appeals the court of as approach read the taken county, why and that's it the burden on putting position want to take a you to me that would seems the next your client. Otherwise battle on behalf county the state or the agency, to be which going to organization responsibility has governmental requirement. meet the going that's to be a
MR. KELLY: I'm not sure saying in this case because I hear the state battle to for it. agree ought pay that we we Dr. I think that's what JUSTICE CROOKS: really if able I don't know he's saying. Weinstein is regard. the state in that clearly speak I he does but unless hope MR. KELLY: would county says "We have to a where get position we we think the state pay for this and been ordered "No, says, then we pay for it" and the state should it; county's responsibil- it's the pay don't have to kind an any that there isn't ity" happens —until that ripen dispute that will into adversarial battle issue point, decide. At this this court should nobody has up come in the case because just hasn't ordered, county rather —a nobody has asked —or any money anything. on spend I Part forth, join do not For the reasons set opinion. V