COURT OF
APPEALS DECISION DATED AND
RELEASED November
27, 1996 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 96-2290-FT
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
IN THE
MATTER OF THE MENTAL CONDITION
OF
WILLIAM S., ALLEGED TO BE MENTALLY ILL:
COUNTY
OF DANE,
Petitioner-Respondent,
v.
WILLIAM
S.,
Respondent-Appellant.
APPEAL
from an order of the circuit court for Dane County: JAMES W. KARCH, Judge. Affirmed.
DEININGER,
J.[1] William
S. appeals from an order recommitting him for twelve months to the Dane County
§ 51.42 Board for outpatient treatment.
He claims that the trial court erred in not dismissing the recommitment
proceedings because there was not a personal examination by two physicians, one
of whom is a psychiatrist, pursuant to § 51.20(9)(a), Stats.
William also claims that, as a result of the failure of the
court-appointed psychiatrist to examine him personally, there was insufficient
evidence to sustain the jury's verdict finding him mentally ill, dangerous and
a proper subject for treatment. We
reject both arguments and affirm.
BACKGROUND
William
was originally committed to the Dane County § 51.42 Board for treatment
under § 51.20, Stats., on
January 9, 1995. The commitment was
extended on July 6, 1995, and a petition to further extend the commitment was
filed on November 30, 1995.
Although
the record does not contain an order appointing examiners, the parties agree
that the court did appoint Roger Rattan, a licensed psychologist, and Leslie
Taylor, M.D., a psychiatrist, to examine William. Rattan and Taylor filed written reports with the court on
December 26, 1995, and both testified at the jury trial on January 5,
1996. The county also presented
testimony from William's treating psychiatrist, Charles Meyer, M.D., who had
contact with William "every month or two" during the year preceding
trial. Dr. Taylor's written report and
her trial testimony indicated that she had not personally examined William in
December of 1995. She based her report
and testimony on a review of William's treatment records and on her own contact
with William approximately a year prior.
The two psychiatrists and the psychologist who testified at trial were
unanimous in their opinions that William was mentally ill, dangerous if
treatment were withdrawn and a proper subject for treatment. The jury, with one dissent on the question
of dangerousness, found likewise.
Prior
to trial, William moved to dismiss the recommitment proceedings because Dr.
Taylor had not personally examined William coincident with the preparation of
her December 26, 1995 court report. The
trial court denied the motion. William
presented no evidence. At the close of
the petitioner's case he moved for a directed verdict "on the
insufficiency of the evidence."
The motion was premised in part on the fact that "there has to be
two ... at least two doctors personally seeing the subject, and that one of
them be a psychiatrist." The trial
court denied the motion, based on its prior ruling that there "is no
requirement that two doctors examine the individual" and based on the
court's determination that "there is sufficient evidence to support a
jury's verdict in favor of the petition."
ANALYSIS
Interpretation
and application of a statute is a question of law which we review de novo. State ex rel. Sielen v. Milwaukee Cir.
Ct., 176 Wis.2d 101, 106, 499 N.W.2d 657, 659 (1993). To determine the meaning of a statute we
first look to the plain language of the statute. "If the statute is clear on its face, our inquiry as to the
legislature's intent ends and we must simply apply the language to the facts of
the case." Interest of Peter
B., 184 Wis.2d 57, 71, 516 N.W.2d 746, 752 (Ct. App. 1994). We do not look behind the plain and
unambiguous language of a statute.
On
an initial petition to commit a person for mental health treatment,
§ 51.20(9)(a), Stats.,
requires that two examiners be appointed to examine the individual. The examiners must be two psychiatrists, a
physician and a psychologist, or two physicians, one of whom is preferably a
psychiatrist. The examiners are
directed to "personally observe and examine the subject individual"
prior to making a written report to the court on their findings.
If
the county department to whom an individual has been committed under
§ 51.20(13)(a)3., Stats.,
wishes to extend a commitment order, it must apply to the committing
court. The court must then
"proceed under subs. (10) to (13)" to hear the extension
request. Section 51.20(13)(g)3. William concedes that the extension
provisions make no express mention of § 51.20(9)(a), but claims that the
requirement to appoint examiners must be read into the extension procedure.
William
first argues that because many probate courts routinely appoint examiners on
extension petitions, as this one did, § 51.20, Stats., is ambiguous.
We disagree. The fact that some
courts may choose to appoint examiners on extension petitions does not convert
that choice into a statutory mandate or a plainly worded statute into an
ambiguous one.
William
next argues that we must read § 51.20(13)(g)3., Stats., within the context of the other subsections of
§ 51.20. We agree. "[T]he
entire section of a statute and related sections are to be considered in its
construction or interpretation: we do not read statutes out of
context." Brandt v. LIRC,
160 Wis.2d 353, 362, 466 N.W.2d 673, 676 (Ct. App. 1991), aff'd, 166
Wis.2d 623, 480 N.W.2d 494 (1992). In
reviewing § 51.20, however, we find no support for implicitly
incorporating § 51.20(9)(a) into the commitment extension procedure of
§ 51.20(13)(g)3.
Section
51.20(16), Stats., which permits
a committed individual to request reexamination, expressly incorporates the
§ 51.20(9)(a) two-examiner requirement.
Section 51.20(16)(e). Thus,
William's argument that § 51.20(9)(a) must be implicitly read into all
other relevant subsections of § 51.20 is not well-founded. If that were so, the legislature would not
have found it necessary to specify the application of § 51.20(9)(a) to the
§ 51.20(16) reexamination procedure.
William
maintains, however, that because § 51.20(3), Stats., which requires appointment of counsel for individuals
involved in commitment proceedings, is generally applicable to all proceedings
under § 51.20, we must give similar effect to § 51.20(9)(a). He argues that even though § 51.20(3)
is not specifically mentioned in § 51.20(13)(g)3., it would be absurd to
read the statute as not requiring the same assurance of representation for
extensions as for initial commitments.
William
is correct that a person subject to recommitment must be represented by
counsel. The extension procedures
required under § 51.20(13)(g), Stats.,
make express references to counsel for the subject individual: § 51.20(13)(g)2r. requires a copy of a
department's extension evaluation and recommendation to be provided to
"the individual's counsel"; the hearing procedure of § 51.20(10),
which expressly applies to extensions makes numerous references to the subject
individual's counsel, as do §§ 51.20(11) (right to jury trial) and
51.20(12) (right to open hearing), both of which also expressly apply to
extensions. No similar references to
the two-examiner requirement of § 51.20(9)(a) are found in these
subsections. Absent any ambiguity, we
will not read into a statute what the legislature has not written there. See La Crosse Lutheran Hosp. v.
La Crosse County, 133 Wis.2d 335, 338, 395 N.W.2d 612, 613 (Ct. App.
1986) ("We cannot rewrite [a statute] to meet [a party's] desired
construction of it.").
Finally,
William argues that if § 51.20(13)(g), Stats.,
is not read to incorporate the two-examiner requirement of § 51.20(9)(a),
the petitioner is somehow improperly relieved of its burden to prove the
elements necessary for recommitment.[2] He urges that we interpret the statute as
providing only one way for the petitioner to meet its burden: by having examiners appointed under
§ 51.20(9)(a) and presenting their testimony in support of extension. This argument is flawed. Nowhere in § 51.20 is there a
requirement that both (or even either) of the § 51.20(9)(a) examiners
testify at a commitment hearing or trial.
The only requirement is that the appointed examiners conduct
examinations and report their findings to the court and counsel. A petitioner in an initial commitment
proceeding may choose to present trial testimony from both of the examiners,
only one, or from altogether different experts. The only requirements are that the individual's counsel be
notified of petitioner's witnesses and their proposed testimony within a
reasonable time before a final hearing, and that counsel have access to
"all psychiatric and other reports" forty-eight hours prior to the
hearing. Section 51.20(10)(a) and (b).
On
his claim that there was insufficient evidence to extend his commitment,
William acknowledges that he is arguing "the flipside of what has been the
entire argument" regarding the application of § 51.20(9)(a), Stats., to extension proceedings. He asserts that "[w]hen there has not
been two mental examinations, and no examination conducted by a psychiatrist on
the subject, there cannot be a proper legitimate basis established" for a
recommitment. The short answer to
William's argument is that there was in fact testimony before the jury supporting
his recommitment from a psychiatrist having recent contact with him, that of
William's treating psychiatrist, Dr. Meyer, who had seen him "every month
or two" for a year.
William
would have this court hold that the only way a petitioner can meet its burden
of proof for the recommitment of an individual is through the testimony, based
on a recent examination, of a psychiatrist appointed via § 51.20(9)(a), Stats.
Nothing in § 51.20(10) through (13) places such constraints on the
petitioner's proof of the elements necessary for recommitment. Here, the petitioner presented testimony
from three experts-two psychiatrists and a psychologist-all of whom were
familiar with William through some combination of examination, treatment, or
review of treatment records, and all of whom testified that William was
mentally ill, dangerous if treatment were withdrawn and a proper subject for
treatment. Their testimony, apparently
accepted by the jury, provided a sufficient basis to enter the order appealed
from.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.
[2] William also argues that the trial court's
failure to dismiss the extension proceedings "defeated the spirit, intent
and overall purpose of Chapter 51."
This argument is not developed, however, and we therefore do not address
it. See Reiman Assocs. v.
R/A Advertising, Inc., 102 Wis.2d 305, 306 n.1, 306 N.W.2d 292, 294
(Ct. App. 1981).