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COURT OF APPEALS DECISION DATED AND FILED April 30, 2009 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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APPEAL
from order of the circuit court for
Before Higginbotham, P.J., Vergeront and Bridge, JJ.
¶1 VERGERONT, J. The issue on this appeal is
whether
BACKGROUND
¶2 Richard is twenty-eight years old, and has apparently lived
in
¶3 On February 25, 1999, the day after Richard turned eighteen,
he was admitted to Mendota Mental Health Institute (Mendota) in
¶4 Upon Richard’s discharge from Mendota in April 1999, he was
released to live with his biological mother in Abbotsford, the
¶5 When the settlement agreement ended in mid-July 1999, Richard
went to live with his biological father in
¶6 From early September 1999 to September 23, 1999,
¶7 In late October 1999, Richard was staying in
¶8 In February 2000, Richard was transferred to the
¶9 Shortly before Richard’s mandatory release date of February
28, 2007, the treatment director at Mendota initiated this Wis. Stat. ch. 51 commitment proceeding
in
¶10 The circuit court held an evidentiary hearing in June 2007 at
which Richard testified. When he was asked
“where do you feel that you are a resident of?” Richard answered: “
¶11
(6) “Residence” means the voluntary concurrence of physical presence with intent to remain in a place of fixed habitation. Physical presence is prima facie evidence of intent to remain.[7]
….
(8) “Voluntary” means according to an individual’s free choice, if competent, or by choice of his or her guardian if the individual is adjudicated incompetent.
Wis. Stat. § 51.01(14) (footnote added). According to
¶12 The court entered a judgment declaring that, for purposes of Wis. Stat. ch. 51, Richard was not a
resident of
whether—in light of [Richard’s] transient past and his statements, then and now—he had the voluntary intent to stay in Wood County in ’99, is so … unclear, and uncertain, that it disestablishes the prima facie effect of his physical presence; and it cannot be concluded that Richard … is a resident of Wood County.
DISCUSSION
¶13 On appeal the Department contends that the circuit court erred
in construing and applying Wis. Stat. § 49.001(6)
and the related sections of Wis. Stat. ch.
51 an that this resulted in the erroneous conclusion that Richard is not a
resident of
¶14
¶15 We first address
¶16 While the factual and legal arguments in the circuit court focused
on whether Richard was a resident of
¶17 Resolution of this issue involves the construction of a statute
and its application to a given set of facts, which presents a question of law
for our de novo review.
¶18 When
we construe a statute we begin with the language of the statute and give
it its common, ordinary, and accepted meaning, except that technical or
specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court
for Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. We interpret statutory language in the
context in which it is used, not in isolation but as part of a whole, in
relation to the language of surrounding or closely related statutes, and we
interpret it reasonably to avoid absurd or unreasonable results.
¶19 We begin our analysis with an examination of the statutory scheme for the care of, and payment for the care of, persons involuntarily committed for treatment under Wis. Stat. § 51.20. If the allegations of the petition are proved, as they were in this case, and the person is not developmentally disabled, as Richard is not, then the disposition for a person who is a resident of the state and is not an inmate of a state prison, county jail, or house of corrections is to “order commitment to the care and custody of the … county department under s. 51.42 [county department of community programs] … or if inpatient care is not required order commitment to outpatient treatment under care of such county department….” Section 51.20(13)(a)3.[9] Persons who are inmates of a county jail or house of corrections are also “commit[ed] to the county department under 51.42 … serving the inmate’s county of residence,” with additional provisions required in the order. Section 51.20(13)(a)4m. Commitment is ordered to the Department only if the person is a nonresident, § 51.20(13)(a)5., or the person is an inmate of a state prison. Section 51.20(13)(a)4.
¶20 The care and custody of a committed person is addressed in Wis. Stat. § 51.22. Section 51.22(1) provides that, with the exception of persons committed to the Department because they are inmates of state prisons or are nonresidents,
any person committed under this chapter shall be committed to the county department under s. 51.42 … serving the person’s county of residence, and such county department shall authorize placement of the person in an appropriate facility for care, custody and treatment according to 51.42(3) (as) 1….
(Emphasis added.) Wisconsin Stat. § 51.42 obligates the county departments of community programs to provide “community services and facilities for the prevention or amelioration of … mental illness….” Section 51.42(2), (3).
¶21 Wisconsin Stat. § 51.42(1)(b) addresses the county’s liability and provides:
(b) County liability. The county board of supervisors has the primary responsibility for the well-being, treatment and care of the mentally ill … citizens residing within its county and for ensuring that those individuals in need of such emergency services found within its county receive immediate emergency services. This primary responsibility is limited to the programs, services and resources that the county board of supervisors is reasonably able to provide within the limits of available state and federal funds and of county funds required to be appropriated to match state funds. County liability for care and services purchased through or provided by a county department of community programs established under this section shall be based upon the client's county of residence except for emergency services for which liability shall be placed with the county in which the individual is found.
Within the limits of “available state and federal funds and of county funds required to be appropriated to match state funds …” the county department is to offer specified services including assessment and evaluation services and “inpatient and outpatient care and treatment, residential facilities, partial hospitalization, emergency care and supportive transitional services.” Section 51.42(3)(ar)4.b., c. Paragraph 51.42(3)(as), referred to in Wis. Stat. § 51.22(1), establishes the manner in which a county is to contract and pay for the care it authorizes for persons in facilities it does not govern—whether state, local, or private.
¶22 If a person is placed in a facility authorized by a county department under Wis. Stat. § 51.42 and the placement is outside the county, “the placement does not transfer the patient’s residence to the county of the facility’s location while such patient is under commitment or placement.” Wis. Stat. § 51.22(4). See also Wis. Stat. § 51.40(2)(a)1. (person residing in a facility under a commitment order remains a resident of the county in which he or she has residence at the time of the initial commitment), and § 51.40(2)(b)1. (an individual in a state facility is a resident of the county in which he or she was in residence at the time the admission to the state facility was made).
¶23 From this statutory scheme, we see that each county is
primarily responsible for persons who have a residence in the county, both for
providing mental health care and services and for paying for the care and
services it provides (with certain exceptions, such as emergency services. See Wis. Stat. § 51.42(1)(b)). This principle applies to persons who are
committed under Wis. Stat. § 51.20
to a county department. There is no
provision for committing a person under § 51.20 to the Department unless
he or she is in a state prison or is a nonresident. In this case, there is no question that
Richard was not an inmate of a state prison when the commitment order was
entered and that he is a resident of the state of
¶24
(3) Whenever an admission is made through the department, the department shall determine the need for inpatient care of the individual to be admitted. Unless a state-operated facility is used, the department may only authorize care in an inpatient facility which is operated by or under a purchase of service contract with a county department under s. 51.42 or 51.437 or an inpatient facility which is under a contractual agreement with the department. Except in the case of state treatment facilities, the department shall reimburse the facility for the actual cost of all authorized care and services from the appropriation under s. 20.435 (7) (da)….
The proceeding in this case, according
to
¶25 Wisconsin Stat. § 51.22(1), as discussed above in paragraph 20, reiterates that under Wis. Stat. § 51.20(13)(a) there are only two situations in which a person is ordered committed to the Department, rather than a county department serving the person’s county of residence: an inmate of a state prison and a nonresident. See § 51.20(13)(a)4., 5. Subsection 51.22(1) further specifies the provisions under which a county department, when a person is committed to it, is to “authorize placement … in an appropriate facility.”[10]
¶26 When read in this context, the procedure in Wis. Stat. § 51.22(3) for “an admission … made through the [D]epartment …” plainly refers either to those admissions by the Department of a person committed to the Department under Wis. Stat. § 51.20(13)(a)4. or 5. or to the three types of voluntary admissions specified in subsec. (2).[11] There is no indication in the language of subsec. (3), when read in context, that this subsection creates a procedure for admission and payment by the Department when the admission does not fall into one of these categories. Put somewhat differently, there is no indication in the language of subsec. (3), when read in context, that this subsection creates a procedure for admission and payment by the Department when a commitment order is to a county department.
¶27 Because Richard is a
¶28 There is no dispute that Richard was voluntarily physically
present in Wood County from late October 1999 until December 1999, and living
in an apartment there from November 1 until December 17, 1999. After December 17, 1999, until the date of
this commitment proceeding, he was physically present in
¶29 According to Wis. Stat. § 49.001(6) “[p]hysical presence is prima facie evidence of intent to remain.” The meaning of “prima facie” when used in a legal context is “sufficient to establish a fact or raise a presumption unless disproved or rebutted.” Black’s Law Dictionary 1228 (8th ed. 2004). In this case, then, Richard’s physical presence in Wood County beginning in late October 1999 is sufficient to establish his intent to remain there unless evidence is presented that disproves this intent.
¶30 We recognize the circuit court here gave careful attention to the evidence in applying this statutory definition in a situation where there is a complex statutory scheme and no case law guidance. Although we benefit from the circuit court’s opinion, we employ a different analysis and reach a different conclusion.
¶31 The circuit court identified several items of evidence that it
considered persuasive in deciding that the evidence presented disproved the
prima facie evidence of intent. As explained
in the next four paragraphs, we conclude that some of this evidence is
irrelevant to the determination of Richard’s intent with respect to remaining
in
¶32 First, the circuit court gave consideration to Richard’s “own
words in 2007” that he did not have a “residency,” that he had been “all over
the state.” However, Richard’s
conclusory opinion on whether he does or does not have a county of residence is
not relevant to a determination under Wis.
Stat. § 49.001(6). The
relevant factual inquiry is his intent with respect to remaining in
¶33 Second, the circuit court took into account Richard’s desire to
live near various family members who reside in four counties, one of which is
Wood County, except that, in the court’s words, “he doesn’t want anything to do
with his dad who he thinks lives in Marshfield of Wood County.” However, this testimony was in response to a
question about where Richard would choose to live at the time of the hearing in
June 2007, if he had that choice. It is
not relevant to his intent with respect to
¶34 Third, the circuit court found the history of the Department’s
treatment of Richard’s county of residence implicitly showed that the Department
found it difficult and confusing to determine his county of residence, and it
considered this relevant.[13]
We agree there are a number of unanswered
questions on this record about the decisions the Department did or did not make
prior to late October 1999 concerning financial and other responsibility for
Richard’s care and treatment. Whether
there was confusion or inconsistency in the Department’s approach, on the one
hand, or a reasonable application of a complex statutory scheme to a
complicated fact situation, on the other, is something that we cannot determine
on the state of this record and the legal arguments presented. However, we do not understand from the
circuit court’s opinion, our review of the record, and
¶35 Fourth, the court viewed Richard’s “transient life-style” as
relevant. We are uncertain whether the
court is including in this term Richard’s history before the settlement
agreement terminated in July 1999. If
the court is, we conclude that is error. Before Richard turned eighteen in February
1999, he had no choice in where he lived or where he was placed. He was either living with his biological parents
or his adoptive parents or was placed in various foster homes and institutional
settings. Upon turning eighteen, he was
placed at Mendota and, upon release from there in April 1999, was placed in the
county where his biological mother lived until the expiration of the settlement
agreement in July 1999. This history is
not relevant to his intentions regarding his residence when he was in a
position to make a choice on where to live, which first occurred upon the
expiration of the settlement agreement in July 1999. As for Richard’s frequent moves between that
date and late October 1999 when he returned to
¶36 The evidence that is
highly relevant to Richard’s intent is his own testimony of why he went to
¶37 The issue is whether this evidence is sufficient to disprove
the prima facie evidence of his intent derived from his voluntary physical
presence in Wood County from late October to December 17, 1999. We view this as a question of law because it
involves applying the statutory language of Wis.
Stat. § 49.001(6) to the summary of Richard’s testimony in the
preceding paragraph, and, in doing so, interpreting that statutory language in the
context of the relevant sections in Wis.
Stat. ch. 51.
¶38 We conclude the evidence is not sufficient to disprove the
prima facie evidence of Richard’s intent derived from his voluntary physical presence
in
¶39 Second, while Richard identified factors that might cause him
to move from
¶40 Our conclusion that the evidence is insufficient is not altered by the evidence of Richard’s frequent moves between July 1999 and late October 1999. The proper focus of Wis. Stat. § 49.001(6) as applied to the facts of this case is on Richard’s intent while in Wood County from late October 1999 to December 17, 1999. The bare fact that he moved frequently in the preceding three months without some evidence tying those moves to his intent while in Wood County during the relevant time period does not disprove the prima facie evidence of his intent to remain in Wood County. Concluding otherwise allows an inference that a person who has moved a lot in a short period of time does not intend to remain in a place of fixed habitation and permits this inference to overcome the statutory prescribed prima facie evidence of intent. Giving countervailing weight in this way to the evidence of Richard’s recent frequent moves, without more, is inconsistent with the prima facie evidence of intent established in § 49.001(6).
CONCLUSION
¶41 Construing and applying Wis.
Stat. § 49.001(6) in a manner consistent with the statutory scheme
established in Wis. Stat. § 51.20
and related statutes, we conclude that Richard is a resident of
By the Court.—Order reversed and cause remanded.
Not recommended for publication in the official reports.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] The
testimony and evidence presented to the circuit court at the evidentiary
hearing apparently does not show where Richard lived before living in
[3] Abbotsford
lies in both
[4] The Mendota treatment director filed a statement of emergency detention under Wis. Stat. § 51.15. The filing of this statement has the same effect as a petition for a commitment under Wis. Stat. § 51.20. Section 51.15(5). In general, the grounds for commitment under § 51.20(1) as they relate to mental illness are that the person is mentally ill, is a proper subject for treatment, and is dangerous as specified in the statute. Section 51.20(1)(a)1. and 2. Section 51.20(1)(am) specifies how the requirement of dangerousness is determined when the person is already the subject of treatment immediately prior to commencement of the proceeding, as was Richard.
[5] Counsel
for the Department raised the objection of relevance to this question,
explaining that the inquiry was his intent in 1999 when he was living in
[6] Richard testified:
Basically, I really didn’t want to live in Marshfield because Marshfield was well-known for my father, and that’s reason I didn’t want to be around was because of that, and plus of the things that happened in past years that brought up too much of a bad memory after getting charged with something that they thought I had done because it was done to me by my father.
[7] “Residence” as defined in Wis. Stat. § 49.001(6) has the same meaning as “residence” for purposes of commitment proceedings under Wis. Stat. ch. 51.
[8] The
Department also asserts that, for purposes of determining responsibility for
the care and treatment of persons committed under Wis. Stat. § 51.20, every person who is a resident of
the State of
[9] For developmentally disabled individuals older than fourteen, the mandated procedure is to determine if they should receive protective placement or protective services under Wis. Stat. § 51.67. Wis. Stat. § 51.20(13)(a)2.
[10] Wisconsin Stat. § 51.22(2) addresses specific types of admissions that either a county department or the Department (for a nonresident) might make—voluntary admissions of adults (Wis. Stat. § 51.10), admission of minors (Wis. Stat. § 51.13), and voluntary treatment of alcoholics (Wis. Stat. § 51.45(10)—and establishes the respective procedures for these admissions: the county departments are to follow Wis. Stat. § 51.42(3)(as)1. and Wis. Stat. § 51.437(4rm)(a) and the Department is to follow subsec. (3).
[11] While the admission of minors under Wis. Stat. § 51.13 is not titled “Voluntary admission of minors,” the text indicates that either the minor or the parent/guardian or both voluntarily choose the admission. See § 51.13(1). Apparently admissions under these three sections, Wis. Stat. §§ 51.10, 51.13, and 51.45(10), may be independent of a commitment under Wis. Stat. § 51.20.
[12] Although “voluntary” directly precedes “concurrence” rather than “physical presence,” we agree with the implicit position of both parties and the circuit court that the only reasonable reading is that voluntary modifies “physical presence.”
[13] Part of this finding appears to be based on the court’s view that the Department could have chosen to consider Richard’s residence to be in the county of residence of his adoptive parents when he was released from Mendota in April 1999. However, it appears the court may be overlooking the undisputed fact that his adoptive parents terminated their parental rights to Richard when he was eleven.
[14] In
another part of its opinion the court stated that Richard’s “contact with