COURT OF APPEALS DECISION DATED AND RELEASED October 12, 1995 |
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. 95-2684-W
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN EX
REL.
GEORGE H.,
Petitioner,
v.
NANCY FENNEMA, ACTING
DIRECTOR
OF ROCK COUNTY HUMAN
SERVICES,
HER AGENTS, EMPLOYEES,
OR THOSE
ACTING BY HER
DIRECTION, OR ON HER BEHALF,
Respondents.
HABEAS CORPUS original
proceeding. Writ denied.
GARTZKE, P.J. George H., by his attorneys, petitioned this
court for a writ of habeas corpus to require the director of the Rock County
Health Center to release him. He
alleged he was taken into custody on the morning of September 21, 1995, and
held under an emergency detention, § 51.15, Stats., for a probable cause hearing to be held September 26,
1995. At the hearing on the morning of
September 26, he objected on grounds of lack of personal jurisdiction for the
court's failure to hold the hearing within the statutory time. Section 51.20(7)(a), Stats., provides that after the filing of a petition for
involuntary commitment for treatment, if the individual is detained under
§ 51.15, the court shall hold a hearing to determine whether there is
probable cause to believe the allegations within seventy-two hours after the
individual arrives at the facility, excluding Saturdays, Sundays and legal
holidays. George asserts that at the
hearing neither he nor his attorney requested a postponement. The trial court denied his motion to dismiss
and found probable cause.
George asserts that
§§ 51.15(5) and 51.20(7)(a), Stats.,
are unconstitutional in that they deny him due process and equal
protection. On October 2, 1995,
this court denied his petition for habeas corpus and stated that an opinion
would follow.[1]
We first discuss
George's claim that the statutes deny him equal protection of the law. The hearing was timely held, if the
Saturday, Sunday and legal holidays (Labor Day) exclusions are applied. He asserts in substance that the disparity
in the periods persons may be held, depending on the day they are taken into
custody, causes denial of equal protection.
We disagree.
A party challenging a
statute on constitutional grounds must show beyond a reasonable doubt that the
statute is unconstitutional. State
v. McManus, 152 Wis.2d 113, 129, 447 N.W.2d 654, 660 (1989). George has failed to carry his burden.
As a threshold matter,
we determine the classes created by the statutes. One class consists of persons taken into custody sufficiently
early in a week so that staff at the facility can determine within seventy-two
consecutive hours that grounds for detention no longer exist or hold the
probable cause hearing. The second
class consists of persons taken into custody at a time in the week such that
the facility cannot determine within seventy-two hours that the grounds for
detention no longer exist or hold the probable cause hearing, unless Saturdays,
Sundays and legal holidays are excluded.
We refer to the members of the two classes as "early" and
"late" detainees. George is a
"late" detainee.
George argues that the
seventy-two hour provision is ambiguous.
We see nothing ambiguous about it.
Seventy-two hours is certainly precise.
We see no room for argument that it covers only business hours. Seventy-two hours means actual hours. Compare State ex rel. Lockman
v. Gerhardstein, 107 Wis.2d 325, 326, 320 N.W.2d 27, 28 (Ct. App. 1982)
(reference in § 51.20(7)(c), Stats.,
to "fourteen days" refers to fourteen calendar days rather than
business days).
Because George's liberty
is infringed, the "early" and the "late" detainee
classification must be necessary to achieve or promote a compelling state
interest, the means chosen must be carefully tailored, and no less drastic
means may be available. San
Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 16-17
(1973).
In view of the serious
private and societal interests involved, the times for holding the probable
cause hearing as to early and late detainees do not work unequal
protection. The statutory bases for
emergency detention are set forth in § 51.15(1), Stats. We need not
quote them. It is only under circumstances
most dire to the individual or society or both, that a person may be detained
under the emergency provisions of § 51.15. The circumstances involve substantial risks to health, even to
the point of the life or death of the detainee and others.
Those circumstances give
rise to a compelling state interest in determining whether the State has
probable cause to go forward with commitment proceedings. That interest cannot be protected except by
excluding Saturdays, Sundays and legal holidays. To protect the interest, the State must have the opinion of a
health professional. It is common
knowledge that health professionals do not necessarily work on weekends or on
legal holidays. Excluding Saturdays,
Sundays and legal holidays is necessary to provide adequate assessment of late
detainees by health professionals.
Unless the State hires
additional health professionals to work Saturdays, Sundays and legal holidays,
the result could well be an even greater disparity between early and late
detainees than now exists. Late
detainees would have less access to professional staff than early
detainees. A late detainee taken into
custody on a Friday morning would have to be examined that day, if Saturdays,
Sundays and legal holidays are not excluded from the seventy-two hour
period. Detainees taken into custody on
Saturday or Sunday would have to be assessed on Monday or Tuesday. Inadequate assessments could result. The exclusions from the seventy-two hour
period remove that potential inadequacy as between early and late detainees.
If the State hired
professional staff for Saturdays, Sundays and legal holidays, there would be no
need to exclude those days from the seventy-two hour period. However, George does not contend that to
satisfy equal protection, the State must indeed provide professional staff on
those days.
Because we hold that the
statutes involved do not deny George equal protection, and because George's
equal protection and due process claims are essentially the same, we need not
provide a separate due process analysis.
See Jones v. United States, 463 U.S. 354, 362 n.10
(1983); see also State v. McManus, 152 Wis.2d 113, 130-32,
447 N.W.2d 654, 660-61 (1989).
For the reasons stated,
this court denied George's petition for habeas corpus.
By the Court.—Writ
denied.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.