*1 Co., remittitur, 2d Powers v. Allstate Ins. rule 10 Wis. employed (1960), where the N.W.2d prejudicial only directly damages. to Be- error relates only damages, cause error the case at bar relates to appropriate we that this is an conclude case one in apply option. Powers remand the We therefore damages circuit issue court to determine dam- ages 805.15(6), under sec. Stats. 1979-80.

By the of appeals Court. —Decision the court re- versed and cause remanded the circuit court damages 805.15(6), determine under sec. Stats. 1979-80. situated, all similarly Michael J. others Jankowski, Plaintiffs-Appellants-Petitioners, municipal corporation, County, Milwaukee Defendant-Respondent.

Supreme Court Argued September 9, 1981. No. 79 — 1896. November 1981. Decided

(Also reported 45.) in 312 N.W.2d court) (in petitioners For was a brief there Milwaukee, argument by Irvings Ruth and oral counsel *2 Legal Wisconsin, Action Inc. of respondent argued by Robert For the cause was corporation counsel, Ott, principal assistant with G. appeals) S. (in brief court whom on the Gerard Paradowski, acting corporation counsel. CALLOW, G. This is a review of

WILLIAM J. appeals order the court of which affirmed an decision of judgment granting summary court the circuit entered county, Judge Gram, Jr., Laurence C. for Milwaukee county. favor of the defendant Milwaukee brought Jankowski, Michael J. plaintiff,, named himself declaratory judgment on action behalf involuntarily persons detained and all other who were 51, county, pursuant Chapter in Milwaukee 1, September January 1, 1975, and 1973, between Stats. money seek declaration no 1976. The during owing county costs incurred is due and in Milwaukee institutions. these commitments Judge case, McCormick In a related John E. Court, County Circuit in his memorandum Milwaukee August 441-417, No. State decision of Case Mundy, that all of the commit- ex Memmel v. declared rel. plaintiffs’ Four- due violations of ments were invalid rights process of law and Sixth to due teenth Amendment rights of counsel to effective assistance Amendment right by jury. The ordered circuit court to trial proceedings insti- or that new be plaintiffs be released all appropriate. ordered The court further tuted where expunged. note We records of the commitments merit decision State ex rel. Memmel Mundy appealed parties was not and that the ac- to this dispute plaintiffs’ tion do fact that commitments We, were invalid. have no therefore, occasion to address propriety plaintiffs’ do, commitments. We how- ever, justification, note that judge, the trial with some vigorous language used evaluation of the his issue process. due

Sometime after the circuit court declared the commit- procedures ment plain- unconstitutional and released the tiffs, Milwaukee collection commenced efforts against members, seeking recovery the class costs pursuant care and at the Mental Health Center sought payment Stats.1 Milwaukee plaintiff, Jankowski, the named Michael J. in the $6,314.95. payment amount of Mr. Jankowski refused declaratory judgment and commenced this action. court, although acknowledging plaintiffs may circuit against persons responsi- have some cause action those *3 participating proceedings resulting ble for in or in commitments, county their determined Milwaukee party proceedings. was not a to those The court circuit county merely provided care concluded Milwaukee therefore, and, plaintiffs pursuant for to a court order Accordingly, paid. was entitled to be the circuit court granted county’s judgment. summary motion for appeals judgment court the trial court of affirmed the of holding county per opinion, in a curiam Milwaukee participant illegal was not an in the and active detentions 1 46.10(2), Stats., “[A]ny including person, reads: not Sec. but person limited to admitted or . . . be liable committed shall care, maintenance, supplies accord cost and department ance with the fee established schedule 46.03(18).” s. phrase “any person, including but The dissent infers that applies to some limited admitted or to committed” group other than those individuals or committed. admitted identify group, dissent does we know of none. such county acknowledged While counsel for Milwaukee that a sizable judgment and, proof number class involved this action seeks, therefore, pay county unable to the cost of care duty taxpaying public to to counsel states feels proceedings. institute collection efforts and and hence it should not bear the of

commitments, costs no needed care. That court further found that sec. 46.10 interpretation liability any person imposing upon com- mitted to a mental institution.2 We conclude place proper emphasis upon appeals of court failed case, re- process of involved and we denial due judgment. verse the dealing question in precedent find with this Wis- no

We upon determine consin elsewhere. We are called illegally involuntarily com- whether an individual responsible of care for the costs mitted be held pursuant 46.10, recently addressed to sec. Stats. haveWe constitutionality and found of sec. 46.10 the issue Guard- difficulty upholding In Matter no the statute. 261, ianship 2d Nelson, 98 N.W.2d Wis. Guardianship Klisurich, (1980); In Matter Wis. 274, does not Plaintiff 2d 296 N.W.2d 46.10; challenge constitutionality of he the facial illegally challenges application persons merely all its between detained and in Milwaukee periods January 1, September time 1976. arguing court of

In his before this court and the case plaintiff principal appeals, advanced three bases has grant- upon can he contends relief and should appeals following drew “We see The court conclusion: appellant under sec. no reason to excuse the County, for valuable services rendered him Milwaukee *4 by placed merely procedures which because he defective theory facts at Health There no under the the Mental Center. appellant his entitle the relief before us would from which According 46.10, obligations to the under sec. Stats. restitution, appellant’s principles equity the reverse of the and appellant arguments has a benefit obtain: received should justice paid. County For this which in should from Milwaukee expense enriching reason, a at the it is case of (Emphasis added.) appellant.” Jankowski v. Milwaukee Coun- App. 1980). ty, 803, (Ct. Table Wis. 2d 300 82 99 N.W.2d (1) State., ed: 46.10, Sec. should not be construed to as- sess against costs of care illegal- and services individuals ly committed; any (2) imposition liability would result in a process; further (3) denial of due and such against an assessment of illegally costs in- committed dividual is public policy inequitable. violative of and Be- find, utilizing cause we principles statutory sound construction, applies only process sec. 46.10 to due commitments, we need not address the additional issues as to equitable whether other princi- constitutional or ples prohibit statutory liability.

We 46.10, note at Stats.,, provides the outset that sec. remedy the exclusive liability imposition of costs provided by of care any a state institution.3 un- Thus, just argument by enrichment advanced or ac- cepted by regarding if, the lower courts4 “benefit” — fact, one5 there was in terms of the treatment received illegally ground committed individuals recovery. 46.10, provides person Stats.,

Sec. committed admitted a state institution shall be liable for the provides: maintenance, Sec. “Cost of care and liability; deportation counsel; collections; collection and court ac tions; collection, recovery. (1) Liability and the enforcement care, of such maintenance, supplies for the specified governed exclusively by in this section is this section.” Department See, Sem, State Public 8 Wis. 2d Welfare N.W.2d 2, supra. See Note cogent argument petition Plaintiff makes this for re his view before this court: “Of what value is a bed on a locked ward person illegally deprived to a of access to own To his/her home? mentally possible ill, who is not of what benefit is treat psychotropic ment such as medication? And of what use is occu pational therapy illegal to one prevented whose commitment has going presume him/her to work? To the services were ignores grossly value to procedures defective importance process and the of the due protections judicial for fair and correct determinations.” *5 436 maintenance, services, care, supplies

cost of and accord ing pay. ability to his Milwaukee advances simplistic reading facially any person statute: regardless commitment, validity committed, is that this *6 appears unambiguous when that statute clear and on its face. County, Teamsters 695 Union v. Local Waukesha 69, 62, (1973) ; 57 Wis. 2d 203 N.W.2d Estate 707 of Evans, 97, 101, (1965); 28 2dWis. 135 832 N.W.2d Wor Stephenson achek 116, v. District, Town School 270 Wis. 124, (1955) ; Pfingsten Pfingsten, 70 N.W.2d 657 v. 164 313, 308, Wis. 159 921 N.W. Plaintiff asserts per that to construe sec. 46.10(2), to mean that sons legally illegally whether or are liable only absurd, the cost of their inequitable, care not against public policy, with lan but is inconsistent guage implication prior decisions of court. this respect,

In plaintiff this latter cites a number of cases concerning liability 46.10, Stats., noting that under sec. legal Department involve In commitments. State Public Sem, supra, ruled that v. court Welfare father was liable for the cost of the care of his commit child, duly ted minor but noted that child had been 97, 98, In Estate 16 Buxton, committed. 246 Wis. (1944), court, holding an individual’s N.W.2d 399 confinement, estate liable under sec. for the 46.10 cost of legally noted that committed. individual had been by negative implication (expressio argues, Plaintiff unius ques alterius), est exclusio that had the commitments illegal ruling concerning liability tion been court’s the cost of confinement different. See: would have been County 169, 153, Bylewski, Columbia v. 2dWis. (1980) ; 695 v. N.W.2d 129 Teamsters Union Local Wau County, kesha 2d at In In Matter 57 Wis. 67. Guardi involving anship Nelson, 2d at a case Wis. challenge person found constitutional 46.10 guilty by reason of mental disease or defect and com pursuant (1), Stats., mitted to sec. 971.17 this court noted “generally” individuals committed are liable for expenses. imply Plaintiff their treatment takes envisaged per the court have situations where Department, Treglown H & SS sons are not. See also: (1968) (a person com 2d N.W.2d 363 Wis. finding facility after a mitted to a mental health found guilty by or defect was reason of mental disease subsequent of his confinement not liable for the cost care). specific

Although previously faced the have not we solely 46.10, Stats., applies to whether issue as noted our legal process commitments, we have due construing the commit opinions earlier legislative not have were valid. While we do ments legisla us, history guide do not we believe *7 should, illegally committed individuals ture intended that their care. nevertheless, the costs of liable for be held 164 Bylewski, 2d at County v. 94 Wis. See: Columbia statutory is to ascer (“‘[t]he purpose of construction legislature’”). with concur We tain the intent of the “If literal absurd. plaintiff that such a result would be act absurd, be of a statute of the words construction absurdity. The avoid the so as to must be construed Holy Trinity v. Church the words.” court must restrain 457, (1892). States, 460 143 U.S. United argument by to counter this seeks Milwaukee plain on that, stating a statute is proposition where legislature. imputed to -the face, cannot be intentions its Co., Casualty Surety 52 v. Aetna & Honeywell, Inc. See: Cartwright (1971) ; v. 429, 499 425, 2d 190 N.W.2d Wis. (1968); Est 5 494, 505, 162 Sharpe, 40 2d N.W.2d Wis. (1947). 204, 208, 659 Matzke, 26 N.W.2d ate 250 Wis. Mellen Lumber particular reliance on county places 114, Commission, 187 N.W. Wis. v. Industrial Co. Compen provision (construing (1913) Worker’s Act). sation interpretation of a statute argued that a literal “It is should interpretation would where such not be followed question consequence. The statute to an absurd

lead It make it absurd. inequitable, but this does might mitigate urged courts that the one time atwas rigor by adopting equitable harsh statutes a rule of exceptions might construction be read into such any statutes. It state, never obtained nor to con- country.” siderable extent in this Id. at 119. distinguish would We Mellen from the instant case. that, reading the court found under a literal There Compensation employee Worker’s Act, an who lost two fingers compensation was entitled to the an em- same as ployee totally who had so maimed been that he in- capacitated performing any gainful employment. clearly inequitable While this result was and burdensome employer, was not absurd or violative of con- rights. agree stitutional While we there are cases inequitable absurd, where statute would not be we are dealing presently with such a we do not case. Thus persuasive. find Mellen statutory

Plaintiff a further advances canon of con applicable struction which the case we also believe is Niagara recently before us. As we have stated Wis Paper Corp. Resources, Department consin v. Natural 50, 2d “statutes (1978), Wis. N.W.2d objec avoid should be construed so as to constitutional Lynch Conta, ex 2d Accord, tions.” State rel. 71 Wis. (1976) ; Milwaukee v. Milwaukee 239 N.W.2d 313 240, 125 Amusement, Inc., 22 Wis. 2d N.W.2d 625 *8 argue interpreting Stats., 46.10, that Plaintiffs sec. illegal in vio would be include commitments rights.6 Plaintiffs contend lation of their constitutional plain regard argument, we at the time In to this note that as, complaint their 1983 actions were not available tiffs filed municipalities time, that were immunized from suit. Since at that Supreme time, however, has held that States Court United good municipalities qualified immunity are based on not entitled to City Independence, Owen 445 U.S. faith their officials. v. of of City Dept. (1980); Monell New York 100 S. Ct. request Services, (1978). Plaintiffs therefore Social 436 U.S. one for relief under U.S.C. their claim be converted to that illegal deprived their them of lib commitments

erty. care To them liable for the cost of render property. deprive them would of their Union, filed an ami- Liberties who Wisconsin Civil argues if court persuasively brief, curiae cus plaintiffs, County collect from the allows Milwaukee creates class that sec. then must hold those includes people costs which liable for commitment legal- involuntarily committed with those illegally and involuntarily. voluntarily ly We whether agree equal protection such principles forbid statutory construction. greater legislature spoken with have could

While and sound statu- clarity, principles of sense common both easily take both tory We resolve this case. construction the United words of from the oft-cited and wisdom solace Supreme Court: States “ rule, thing may within that a ‘It is a familiar be- yet statute, not within the of the statute letter its spirit, within the nor intention cause not within its of the will not the substitution

makers. . . . This is legislator, frequently words judge general enough tion for that of the meaning statute, broad words are used yet question, a considera- to include an act giving from follow which of the absurd results ... meaning it unreasonable words, to the makes such broad par- legislator to include intended that the to believe ticular act. sages law appears that . t . . [I] contrary quite statutes construed heretofore have letter com- appearance, which and those statutes in some expounded to things they have in the letter prehend all generally pro- which things, and those to but some extend hibit interp- doing have an act people such all in- those which people it, and permit to do some reted adjudged to letter, they have every clude expositions al- persons only, have some reach to legislature, upon ways intent been founded considering by they have collected sometimes which cause paring act, making com- necessity sometimes another, and sometimes part of the act with one *9 ” foreign added.) (Emphasis Holy circumstances.’ Trinity States, v. Church United at 459. U.S. Accord, America, United Steelworkers AFL-CIO-CLC of (1979) (quoting 193, v. Weber, Holy Trin- U.S. ity); (quot- Muniz Hoffman, (1975) 422 U.S. ing Holy Trinity). Stats., ap- We 46.10, hold that sec. plies only process commitments, due and therefore plaintiffs does not question. believe, the reach For we citing Holy Trinity, duty at U.S. is “[i]t courts, say that, language broad the ... however act, although be, letter, of the statute within the legislature, within the there- intention conclude, fore cannot there- be within statute.” We fore, county’s summary judg- that Milwaukee for motion improperly granted, ment was we deci- reverse appeals. sion court of

By appeals the Court. —The decision of the court Rights reversed. declared. (dissenting).

COFFEY, J. I I inter- dissent because 46.10, authorizing pret Stats., as the collection regard- plaintiffs’ the costs of the care maintenance validity also less of their initial commitment. I disagree majority’s with the that sec. 46.10 is conclusion remedy exclusive state Milwaukee rights respective I to enforce their of reimbursement. inequitable who it no re- find more the burden ceived the benefits the care bear as or- costs than the rendered the services reasoning fully My dered court. is set out more below. majority opinion points. major sets forth three

First, an action under is the exclusive remedy state or Milwaukee to enforce rights respective provided their of reimbursement financially pay. using Second, those who are able to *10 legislature “commitment,” did the word not intend that an action under 46.10 for reimbursement should against subjected to an lie individual who had been liability Third, in such invalid commitment. to extend alleged compound case be constitutional would to error in the initial commitment. 46.10, already my

I have indicated belief remedy to the state is not exclusive available county. However, regardless position takes one or issue, important is what was on this case what is adopting ob- legislature’s purpose in The the statute. legislative those action to make for the was vious reason county institu- to state or inmates who were committed portion pay to liable for tions who could afford legislature was treatment. The cost of their care and money reducing would with the amount concerned It taxpayers. not concerned have to borne com- patients received or admitted, with how to came respective institutions or how mitted to the introductory of sec. section the services for the receive including person, applies any it 46.10(2), recites that .. person committed . but not limited to a admitted or care, supplies pro- receiving maintenance, and services ., any county . . within the state vided in institution chargeable part wherein the is with all or state person’s maintenance, supplies.1 care, and services 46.10(2), Stats., reads follows: Sec. as liability; maintenance, deporta- “Cost of care and and collection collections; counsel; actions; recovery. . court . . tion (2m), including “(2) Except provided any person, as in sub. 51.10, or but limited to a committed under admitted ss. 51.15, 51.20, 51.37(5), (11), (12) 51.13, 51.35(3), 51.45(10), and stats., (13), 55.06, 971.14(2) (5), 975.01, 55.05, 971.17(1), and care, stats., 975.17, stats., receiving 975.06 supplies provided by any maintenance, institution clinics, university hospital including state Wisconsin chargeable part person’s all or which the state is with quoted language eminently it makes clear that formal admission or proceedings required commitment are not establish for services and It maintenance. merely the fact that care and services have rendered been providing liability, institution that creates the taxpayers unfair of Milwaukee upon pay should be given called medical benefit pay one who is able to person- for the service and who ally through his relative, probability, immediate in all proceeding. initiated the purpose commitment *11 the unambiguous prevent unjust statute is clear and taxpayers’ expense. Therefore, enrichment at makes no difference whether for a common law action unjust may legislature brought, enrichment be as the has statutory remedy. created a preceding

In addition to the discussion to the nonex- as clusivity 46.10, Stats., in- sec. it can noted that two be statutory provisions terrelated but distinct indicate that provisions of sec. not 46.10 are exclusive. These care, maintenance, any person receiving supplies, services and and care services under and boards or facilities under established 49.175, estate, 51.437, person’s property ss. 51.42 and and the and including homestead, spouse person, and of the and spouse’s property estate, including and, homestead, and child, parents property person, case of minor of the and their estates, including homestead, and their be for the cost shall liable care, maintenance, supplies of the services with and accordance department 46.03(18). the fee schedule established under s. department may bring The action for the enforcement of liability. spouse, incapacitated minor, aIf or widow or an may dependent lawfully upon property be support, for their part property the court shall all release or such and estate charges necessary provide per- from the be for those department notify every sons. shall make reasonable effort to possible beginning the relatives liable soon as as after the maintenance, receipt but the notice or the thereof condi- liability tion of of the relative.” statutory 51.42(1),2 provisions 51.437 are and (4).3 51.42(1) allows for the establishment Sec. 51.42(1) (b) Sec. reads as follows: retardation, “Community health, and mental mental alcoholism Program. drug abuse services. (1) “(b) government. Responsibility boards well-being, supervisors primary responsibility for have the disabled, mentally developmentally ill, treatment care of the and residing drug dependent their alcoholic other citizens within respective ensuring for need counties and those individuals respective emergency within counties of such services found their County liability emergency for care receive immediate services. through purchased provided a board established or upon county of resi- the client’s under this section shall be based liability emergency except services for which shall dence placed is found. For the with the in which individual county liability, ‘emergency’ purpose establishing services in- authority provided of s. under the cludes those services (11) (a) 55.05(4), 55.06(11) (a) 51.45(11) (b) (12), 51.45 prevents paragraph Nothing in than hours. more creating recovery any s. statute 46.10 or other receiving liability upon other a service or the individual responsible designated party.” 51.437(4) reads as follows: Sec. “Developmental .. disabilities services. . *12 county government. Responsibility county “(4) boards The of supervisors governmental responsibility primary have the residing developmentally well-being of citizens the those disabled' mentally respective the of the their families within counties family bear on the insofar as the usual resultant stresses retarded liability County well-being developmentally disabled citizen. through purchased provided or board for care and services upon the this section shall be based client’s established under county except emergency for which li- of residence services county ability placed in shall be with the which the individual county establishing liability, purpose ‘emer- For the found. authority provided gency’ services means those services the under (a). Nothing paragraph 51.15, 55.05(4) 55.06(11) or s. recovery liability any prevents or other statute under s. 46.10 creating liability upon any receiving individual or service responsible Adjacent designated party. counties, lacking the other professional personnel provide to financial resources needed Milwaukee facilities such mental health as petitioners this case to which the facilities county’s (1) 51.42 sets out the Sub. committed. fol- and uses the responsibility such services to render liability lowing referring county’s to language in to the renders: services it for the mental health collect recovery liabil- “Nothing paragraph prevents in this liability any creating ity s. 46.10 or other statute receiving des- upon or other individual a service ignated responsible party.” language 51.437 The same can be found exact county’s responsibility (4), Stats., to which sets out the persons.4 provide to disabled services statutory provisions language of each of these design legislature clearly did not demonstrates provide means for the exclusive persons it renders to to recover for the services financially pay. able language interprets statutory au- as majority

thorizing was committed from a who collection only procedural- if commitment institution was an ly Assuming were committed valid. majority procedures, holds constitutionally deficient they is used were not “committed” that term as and, therefore, are not liable for statute them. costs care rendered ignores phrase “in- the use of the

This construction language cluding to” in but not limited the statute. That provision intended to im- clearly indicates persons care, mainte- pose all who receive on supplies ac- nance, Even services, and at institution. finding plaintiffs were majority’s cepting the basis, single-county and shall on such secure energies and financial resources encouraged their to combine approval joint with the provide facilities services and these responsibility department. includes: . .” This . *13 4 See fn. 3. “committed,” express language of the statute im- poses liability they on them as the care and ser- received majority vices described. The into the statute lan- reads guage which is not contained therein conclude when only per- the statute authorizes collection from through sons constitutionally procedures. committed valid may explain why majority opinion This never sets out the liability entire text of the The statute.5 created 46.10, statutorily persons is sec. not limited to join opin- admitted or majority committed. I cannot impliedly ion which holds otherwise. overemphasis placed on the “commitment” word majority, the Wisconsin Liberties Union and Civil

Legal representing plaintiff Action Wisconsin, family, and his is for unwarranted another reason. The chargeable any part state for of the care and provided plaintiff introductory treatment to the so the 46.10, Stats., containing clause examples sec. commitment, any liability admission does not create liability upon plaintiff. posture in the scheme His “any next falls under the clause that extends person receiving care and under boards or facil- 47.195, established under 51.42 and ities secs. 51.437. preparation dissent, majority Since the of this has altered opinion language to include all relevant its (See majority opinion 1.) Stats. fn. majority 1, questions in its footnote whether exists there any group persons institution other than those admitted point or committed. our believe as referred We discussion very clear, phrase to in this dissent the use of the “includ- ing persons but not limited admitted indicates or committed” legislative recovery 46.10, Stats., intent allow no matter how comes to receive services at the institution. Responding directly question posed majority’s more to the in the point footnote, however, that, being we out in addition to admitted persons institution, to the can be within transferred hospital hospitals on the same or transferred from other compound temporary detention without a formal commitment or admission order. *14 county Milwaukee institutions are administered incorpo- a board under 46.21. 51.42 established Sec. sec. provisions. plain- Therefore, rates sec. 46.21 in its statutory subject tiff is if received care he facility operated 51.42 in under a a question remains the care and ser- whether board. they not if it would necessary, not, vices were only inequitable, process, to exact but a denial due payment plaintiff treatment he from the for care and request not or need. did necessity majority

In for care and cases, is a formal mental commitment treatment determined proceeding voluntary to an institution. or a admission involuntarily person hand, if been the other has On hearing, commitment an invalid committed because of binding upon This means him. that determination is not pro- invalidity the commitment that he raise any payment ceedings under sec. action collect authority statutory applicable Stats., or other illegal com- provided, pursuant to such care and services county to estab- on the It is then incumbent mitment. provided were neces- and service lish that the treatment proceeding relying commitment on the sary, without requirement and es- fulfill If the can itself. may proceed necessity, to recover tablish fails to estab- If it applicable statutes. 46.10, or other ren- judgment plaintiff shall be same, for the lish the dered. cogent the majority finds opinion, the

In 5 of its fn. mentally ill derives argument not who is agree that I psychotropic medication. from no benefit hospitalization and mentally in need of is not one who However, it pay. has have to should not treatment mentally ill plaintiff was not established been in- Milwaukee admitted to time he was at the record Indeed, indication there is no stitution. plaintiff’s class were members need of at treatment time were admitted. The question precluded real whether showing plaintiff mentally ill, was notwithstand- ing plaintiff represented that the at his commitment hearing way in a right that offended his constitutional opinion judge. counsel, of one As noted I have *15 opinion above, majority’s the effect of the is to bar the county proving mentally plaintiffs from that the were they ill and in need of the services received.

I would not comment on the facts in State ex rel. Mem Mundy6 proceedings mel v. onor the mental commitment approves except majority referred to the fact that the judge’s of the trial comments: “We that the of note merit the decision in ex rel. State Mundy appealed parties Memmel v. was not the that dispute plaintiffs’ to this do not action the fact We, therefore, commitments were invalid. sion to We no have occa- propriety plaintiffs’ address the of commitments. however, do, judge, note the trial with some justification, vigorous language used of his evaluation process.” Majority Op. the issue of due at 432-433. they when reading have not had the benefit of the entire gratuitous record that case and the made comment footnote 5 way in no relates to facts the. skimpy record us. before majority’s interpretation Stats., of also ignores the of use the word “admitted” in the statute. point From the of view of the administrator the coun- of ty institutions, plaintiffs in this case were “admitted” upon delivery to the Thus, institution of the commitment. point county view and the adminis- trator, the statute authorizes the collection the cost plaintiffs care and persons services from the as “ad- mitted” to the institution. 6 Mundy, ex rel. Memmel 276, State v. 75 Wis. 2d 249 N.W.2d (1977).

573

449 majority’s is that the result decision consequently taxpayers with cost are saddled plaintiffs. of the care and services rendered to the This required spite is done in fact ap to admit under the the institutions 51, plicable provisions (See: chs. 46 and statutes. law, coun generally.) Under established case standing poli ty question commitment had ho the civil Dept. procedures County v. cies and involved. Dane Services, 323, 330, 255 N.W. Health & Social 79 Wis. 2d county’s agents be faulted 2d 539 Nor could the validity failing inquire the orders of into face.” Kalb “fair on their commitment where Langen (1940) ; Luce, 516, 509, v. 291 N.W. Wis. 277, 299-300, 206 Borkowski, v. N.W. Wis. Fox, (6th ; Kenney Cir. (1925) v. 232 F.2d Kenney Killian, nom 352 U.S. 855 1955), cert. sub den. (7th Brown, ; F.2d 194-95 (1956) Arensman v. being Thus, 1970). made to bear Cir. *16 required could to render and of it both cost services was challenge. not impossible for ad- speaking, the

Practically be would look behind county institutions of the ministrator Holding every the court. commitment of each accepting patients county responsible committed punishes constitutionally procedures in effect invalid pursuant to a providing innocently services them authority they nor had neither order which court question. time proceed- allegedly improper to the plaintiffs point

The county which ings courts the Milwaukee arguments coun- support of their plaintiffs in enforcing statutory lia- prevented ty from should of the the actions bility. plaintiffs to attribute seek contrary argument county. is an Such to the courts funda- powers is so separation of which principle of 450 democracy. judicial

mental to our form branch government independent co-equal our is of and with the government. Constitution, other branches of Wis. art. 2; VII, 374, In re Cannon, 206 Wis. N.W. (1932). Imposing responsibility county on the for acts disregards judicial of the principles courts established immunity. Holytz City Milwaukee, 26, 17 Wis. 2d 40, (1962). judge N.W.2d 618 Indeed, if a not regarded independent as pre- of the he which sides, he could not sit in in which case party. was a Likewise, this court would not be able judi- handle party cases which the state if was independent. cial branch were any, against The remedies of the if plaintiffs, are judges presided proceedings who over their commitment through against action, sec. 1983 party innocent to the It commitment. unlike- ly plaintiffs action, that the would succeed a sec. 1983 however, judicial principles immunity protect judges commissioners, acting or court under author- ity probate respective judges, 1983, judicial U.S.C. sec when act within their Catlin, Abdella v. function. 2d Wis.

N.W.2d 516 In us, the case before there has been allegation no committing judges or court com- acting missioners, authority respective under the probate judges, acted either in bad faith or outside their jurisdiction.

Holding plaintiffs liable for the cost of the care especial- does not principles offend equity, ly following when the factors are considered. Foremost among these the fact that the did indeed re- recovery sought. *17 ceive the cafe services for which is any way no There is evidence in this record which plaintiffs demonstrates the did not need the care any provided. which was Neither there is evidence dem- onstrating plain- that at time committed the danger and, tiffs were not a themselves or others to therefore, Lastly, there should not have been committed. indicating plaintiffs no re- is evidence the number of subsequently con- leased who were not recommitted stitutionally procedures. In the absence sufficient interpret showings, it “absurd” to these seem does requiring plaintiffs pay for to sec. as inequita- as the services It does not strike me rendered. require plaintiffs if to to ble reimburse ¡topay. they are able majority pointed of the com-

It out that the should be in all proceedings mitment case involved this applications relatives probability filed based on 46.10, Stats., the relatives plaintiffs. Under cost of care are liable for the Thus, pay. ma- patient if the is unable jority’s decision relieve the plaintiffs’ rela- potentially relieves the 46.10 they obligation pay treatment which tives of patently to the initially requested. result is unfair This taxpayers. and its a hos- arises in I the situation liken ease of a victim emergency when an unconscious pital room Although brought in for treatment. accident is car treatment, him. request given to it is patient does does, the cost hospital can, and collect Subsequently, the injured person. This the services rendered from responsi- regardless party another done whether injuries. ble for case, like the hos- acted

In institutions our court or- care which was They pital. administered necessary. They to recov- should be entitled dered and although because ery rendered care for this party in- wrongful much as acts. Just as another’s hospital paying cannot avoid accident jured in car responsi- another was received because for the care not be plaintiffs here should accident, for the ble *18 paying able they to avoid for the care received because persons other through allowed them to be committed un- proceedings. constitutional plaintiffs The re- should be quired pay to the costs and then seek to recover from persons responsible the improper for the commitment. They may recovery represen- be entitled to a from their proceedings tative at the commitment for breach of a fi- duciary duty committing or from the vio- authorities for rights lation protected their constitutional Regardless plain- U.S.C. sec. 1983. of the status of the rights against tiffs’ however, other the parties, required should not be to of the bear the cost services plaintiffs received. The basic issue in this involved case is whether the and, county, therefore, indirectly taxpayers, en- titled to reimbursement for the services rendered plaintiffs. majority’s The result of the determination of taxpayers being this issue is that are denied their process rights. question due we are faced with constitutionality and whether commitments necessary the services rendered patients. fully received Until these are liti- issues gated, taxpayers being de- Milwaukee are rights process judicial proceeding nied their due to a necessity which the the treatments rendered to plaintiffs ability pay fully litigated. and their to can be effect, majority, taxpayers bars the from a pro- ceeding litigated and, hence, which those issues can be process. them due denies

If plaintiffs court would have to center, private private treatment would that treatment payment center be entitled the services rendered regardless validity of the initial commitment they also have would to suffer the treatment loss for the commitment, validity rendered knowledge standing have no of nor chal- lenge. case, they If that be then would be wise to legal here, ruse, search to find some as the did challenge attempt every each commitment made *19 them, mentally patient to and left in limbo in the ill be they (the interim, provider) the without lest be left rights remedy denied, process and have their due the trying county, same as the of Milwaukee in to citizens legal collect for a authorized in treatment debt law for good dan- and services in faith need and rendered when ger properly have been demonstrated. presented

Our in case has resolution of issues this hampered in by the that initial action been fact plaintiffs’ uncon- which the commitments were declared by judge Based not before the court.7 stitutional one is concerning upon information that action the limited case, in the am unable which can be found' files I stipulated county initially to why understand plain- by unconstitutionality procedures of the which I to understand tiffs committed. am also unable imple- why appeal the order which failed concerning questions stipulation.8 The mented appropriate reme- validity the commitments and United any, decided these dies, if never been have factual States on a similar situation. proceeding is a thirteen-minute sufficient

Whether hallucinating brought in while that a determine or wheth- is in need of treatment and restraints required proceeding to determine an is er extensive necessary application when institutional care qualified physicians is made one or more treatment questions 1973) (sec. are 51.04 Stats. litigatéd. fully failure of should have been which may to the been disservice county to do have so county. taxpayers residents at fn. 6. See: Citation challenged appeal order only arising an from that action representation provision concerned the of the court Mundy, 2dWis. ex Memmel v. State rel. future commitments. 249 N.W.2d imperative fully protect I it believe is most we spectrum rights broad individual’s of constitutional be- authorizing yet hospital, fore a commitment to a mental tacitly I think it borders on the for a court to extreme proceedings mandate that extensive be held each every commitment, particularly where the individual who subject proceeding is so out contact with reality, mentally deranged, confused, irrational, often frequently combative and be restraints unnecessary required and unfair that he or she through compre- sit a full trial which neither nor he she requirement hends. toNot mention that of extensive psychiatric testimony rather than of affidavits the use every allowed statute each and commitment placed significant proceeding taxpay- on burden *20 time, psychiatrist’s ers and be a can waste of the lest we forget shortage nursing personnel hospi- the acute tals, parties in- time of social workers and other Large costly volved. amounts of and court time valuable by procedures. unnecessarily be absorbed such Ex- proceedings may constitutionally tensive not be neces- sary person’s where mental condition and demeanor clearly deranged severely demonstrate that he is and/or observation, testimony sup- and confused affidavits or port adequate providing support his conclusion as well as finding danger for that the himself others. majority engages

I believe that judicial activism when it an persons by reads exclusion of con- stitutionally procedures insufficient into provided cost 46.10, other statutes. stipulated invalidity

I that the plain- would hold complete tiff’s commitment did furnish a defense to pursuant county, action to sec. Stats. deprived day should not be of its in court. Although rely on cannot the commitment to establish rely the need for the care treatment provided, it can to, including, its med- other but not limited on evidence testimony, psychiatric testimony, relatives’ records, ical receiving etc., plaintiff affidavits, bene- while through hospitalization. I affirm the court would fits appeals. Krieg Plaintiffs-Appellants Dickey Krieg, Joyce

Petitioners, Dayton-Hudson Corporation, a Minnesota Corporation,

Defendants-Respondents.

Supreme Court Argued 1981. November October 1981. Decided No. 80-998. 641.) (Also reported in 311 N.W.2d liable for the costs of care. The notes previously valid, court “is un has that sec. 46.10 found its ambiguous, inequity no confusion or arises Sem, operation.” Department State Public v. Welfare (holding (1959) lia 2d 98 N.W.2d 428 Wis. bility parent pursuant could imposed upon a to sec. 46.10 decree). not Milwaukee coun be eliminated divorce unambiguous, interpreta ty notes that where statute 242, 249, unnecessary. Kelley, tion v. 2d Harris 70 Wis. ; Lepper, (1975) Weather-Tite N.W.2d Co. 70, 74, 130 Wis. 2d N.W.2d urges 46.10, Stats., can read in Plaintiff clearly ways. and unam- one of two Either statute later biguously persons commitments are excludes whose judicially persons are not invalid those declared because law; or, eyes require in- if it does construction, statutory terpretation using canons of basic persons whose commit- be construed exclude should were invalid. ments declared fundamentally argues that, flawed due to Plaintiff fact-finding process procedures, there never due treatment or finding were need of individuals agree that, and conclude because commitment. We finding adequate proceedings to sustain a treatment, re- of care and individuals were need gardless they may of the fact that have been need treatment, such there was no valid commitment care “com- cannot order. Thus the be considered any purpose, fall mitted” for do reading literal Stats. argues also that a cannot be construed Plaintiff statute even to work an absurd unreasonable result so as