City of Milwaukee v. Washington

KESSLER, J.

¶ 21. (concurring in part, dissenting in part). Because I agree with the Majority's conclusion that under the circumstances of this case Washington was properly confined, I concur in the result the Majority reaches in Part II.A. of its opinion. I write separately to clarify what I understand is permitted by *275Wis. Stat. §§ 252.07(8) and (9) in the context of depriving a person of her liberty. I dissent from Part II.B. of the Majority opinion because I do not agree that this case involved a finding" of contempt under Wis. Stat. ch. 785, and I therefore believe that we should not be addressing that issue. I also disagree with the Majority's conclusion that the contempt statutes provide a basis for jailing a person confined for treatment under the authority of § 252.07(9).

I. Public health confinement

¶ 22. Wisconsin Stat. §§ 252.07(8) and (9) set out the scheme that gives public health departments the authority to compel persons with contagious tuberculosis to accept treatment for the disease. If the infected person refuses to comply with treatment, the person may be confined and treatment compelled until the person is cured. Confinement may be enforced under the terms of § 252.07(9) (a) when the health department establishes all of the following: (1) the person has infectious tuberculosis; (2) the person has failed to follow the treatment regimen; (3) other means of compelling treatment have been exhausted and no less restrictive alternative exists; and (4) the infected person poses an imminent and substantial threat to herself or the health of the general public. Id. I agree with the Majority that "no less restrictive alternative" in § 252.07(9)(a)3. refers to the method of providing treatment, not to the location of the confinement. See Majority op., ¶ 12.

¶ 23. Wisconsin Stat. § 252.07(5) authorizes home isolation to provide treatment for the infected person and to reduce the public's exposure to the disease. That alternative was initially ordered here, but Washington *276refused to comply. The existence of the elements required by Wis. Stat. § 252.07(9)(a) to permit confinement to effect treatment were not disputed. The question before the court was only where the confinement for treatment would occur. The Majority's emphasis on the legislature's failure to describe the place of confinement by a "least restrictive" standard might be incorrectly understood to imply that a correctional facility is always an acceptable alternative. See Majority op., ¶¶ 12-13.1 write to clarify why I believe such a reading would be an incorrect interpretation of the statutes and of the Majority opinion.

¶ 24. When a trial court finds under Wis. Stat. § 252.07(9)(c) that confinement is the least restrictive method necessary to ensure treatment, it has both the discretion to consider alternative places of confinement and the obligation every six months to review the continuing necessity of confinement. Here, the trial court was presented with only two confinement location alternatives: a twenty-four hour guard for Washington in a hospital room, or medication delivered to Washington in a jail cell. The trial court appropriately considered all of the options presented. It also stated that it was open to other suggestions. No other suggestions appear in the record. With only two alternatives, and no detailed cost analysis, it was not unreasonable for the court to conclude that jail was a more cost-effective location to confine Washington for treatment.

II. Contempt confinement

¶ 25. Having concluded that the trial court had the authority to confine Washington for treatment under Wis. Stat. § 252.07(9), the Majority proceeds to decide the case on the alternative basis of statutory contempt of court under Wis. Stat. ch. 785. I disagree *277with the decision to address this issue, because, as this court recognized in State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W2d 514 (Ct. App. 1989), cases should be decided on the "narrowest possible ground." In addition, I disagree with the Majority's conclusion because it adds to the statutory tuberculosis treatment program a remedy that is not only unnecessary on the facts of this case, but is also an alternative that the legislature could have easily included in treatment program but did not.

¶ 26. The trial court made clear that it was not conducting a contempt proceeding. As the Majority observes, the trial court struck all references to contempt before signing the order on which this appeal is based. See Majority Op., ¶ 16. Because the order appealed from was not based on a finding of contempt, we should not decide whether the trial court could have ordered Washington confined on that basis.

¶ 27. The fact that in a preliminary order this court erroneously described this case as "at base, an appeal from a contempt order," see Majority Op., ¶ 9, does not mean that we should address a legal issue on appeal that was never a part of the order appealed from. The order appealed from is no more nor less than an order pursuant to Wis. Stat. § 252.07(9) confining a person infected with contagious tuberculosis to a facility for treatment. The power of the court to enter that order is the only issue we should address.

¶ 28. Furthermore, I disagree with the Majority's conclusion in Part II.B., see ¶¶ 16-19, that Wis. Stat. §§ 785.03 and 785.04, governing imprisonment for contempt, are available as an alternate basis for confining a person for treatment of tuberculosis. The Majority discusses the definitions of sanctions under § 785.04. It does not discuss the alternative procedures in § 785.03 that are required to impose those sanctions. In view of *278the significant powers provided to the trial court in Wis. Stat. § 252.07, a close review of the process set out by the legislature by which a trial court may impose contempt sanctions compels the conclusion that contempt is not an appropriate alternative vehicle to order the tuberculosis treatment because the civil liberties safeguards connected with compelled treatment are not a part of contempt punishment.

¶ 29. The trial court could not have ordered imprisonment as a remedial sanction for contempt under Wis. Stat. § 785.03(l)(a) because Washington cannot rid herself of the contempt (i.e., not taking her medicine) by terminating the offending conduct (i.e., taking her medicine) and thus gain release from imprisonment. If the Majority were correct in applying Wis. Stat. ch. 785 to this case, Washington would have to be released from the correctional facility as soon as she began taking her medicine. Wisconsin Stat. § 785.04(1)(b) permits imprisonment for "only so long as the person is committing the contempt of court...." Obviously, that would be an absurd result when long-term tuberculosis treatment is needed. One suspects the inapplicability of contempt proceedings to tuberculosis treatment was not lost on the legislature when it crafted the more detailed and specific treatment enforcement program of Wis. Stat. § 252.07(9).

¶ 30. Other provisions in Wis. Stat. ch. 785 likewise fail to fit the situation here. This was not a punitive sanction contempt proceeding under Wis. Stat. § 785.03(l)(b) because it was neither referred to the district attorney for prosecution nor separately prosecuted. This was not a summary procedure under § 785.03(2) because it did not involve action committed in the presence of the trial court.

*279¶ 31. Had the legislature wished to provide contempt under Wis. Stat. § 785.04 as an alternative means of compelling tuberculosis treatment, it could easily have done so. It did not. Wisconsin Stat. § 252.07(9) makes no reference to the contempt statutes. The legislature, instead, developed an elaborate and detailed system to protect the public from, provide treatment for, and protect the civil liberties of, individuals with contagious tuberculosis. The legislature has concluded that the statutory system of regulation, and enforcement, provides adequate tools to protect the public and to treat the infected. The key to release from confinement under § 252.07(9) is becoming tuberculosis-free. The key to release from imprisonment for contempt, however, is either to complete the specific time imposed as punishment or to end the conduct that resulted in the contempt finding. Neither method of contempt release is available to a person infected with tuberculosis. This court should not engraft an entire additional body of contempt law onto a carefully designed treatment system solely because of an improvident statement earlier made by this court before it had the opportunity to review the complete record.

¶ 32. Because the parameters of Wis. Stat. ch. 785 add nothing to the tuberculosis treatment sanctions provided by the legislature, and because ch. 785 was not incorporated by the legislature in Wis. Stat. §§ 252.07(8) and (9), I respectfully dissent from Part II.B. of the Majority opinion.