Grant County Department of Social Services v. Unified Board of Grant & Iowa Counties

PATIENCE DRAKE ROGGENSACK, J.

¶ 61. {concurring in part and dissenting in part). The majority opinion sets up an elaborate system of steps and requirements, both in regard to time and substance, that it directs the circuit court to make in order to decide whether the guardianship and protective placement of Jane E.E that were issued in Jo Daviess County, Illinois should be transferred to Grant County, Wisconsin. The majority opinion does so in lieu of construing Wis. Stat. § 55.06(3)(c) (2003-04),1 which the court of appeals concluded was an unconstitutional restriction on the right to travel. While the majority opinion makes a valiant effort at trying to solve what can become problematic when a ward lives in one state and the guardian wishes to transfer the ward into Wisconsin, it does so without the benefit of legislative input or even the benefit of the court's own rulemaking. It thereby exceeds the court's constitutional powers and creates an opinion I cannot join. However, I conclude that § 55.06(3)(c) is constitutional, as applied to Jane. *288Therefore, I, too, would reverse the court of appeals decision. However, I would affirm the circuit court's order dismissing the petition for guardianship and protective placement.

I. BACKGROUND

¶ 62. Deborah V petitioned the Grant County Circuit Court for the appointment of a guardian for Jane E.E and to have her protectively placed in Grant County. Jane has been subject to guardianship and protective placement in Jo Daviess County, Illinois since 1999. She resides in a nursing home in Galena, Illinois.2 There was no allegation that Jane is or was ever a resident of Wisconsin. There was no allegation that Jane was physically present in Wisconsin before or after the petition was filed in circuit court. The petitioner, who is her guardian and sister, is a resident of Grant County. There is nothing in the record to show that the court in Jo Daviess County appears to have exercised jurisdiction over Jane, was contacted or consulted regarding Deborah's petition.

¶ 63. In response to the petition for protective placement, the circuit court ordered Unified Community Services to make a comprehensive evaluation of Jane. After investigating Jane's location, Unified Community Services moved to dismiss because Jane was neither a resident of Grant County nor present in Grant County, as it contended that Wis. Stat. §§ 55.06(3) and 880.03 require. After an evidentiary hearing, the circuit court granted Unified Community *289Services' motion and Grant County Department of Social Services (Social Services) appealed. The court of appeals reversed, concluding that § 55.06(3), as applied, unconstitutionally restricts Jane's right to travel. Unified Community Services petitioned for review and we granted its petition.

II. DISCUSSION

A. Concentration of Power

¶ 64. In my view, the majority opinion creates what amounts to a statute for the interstate transfer of guardianships and protective placements. While some type of an interstate compact may be helpful, that is a task that the constitution set out for the legislature. Wis. Const, art. iy § 1. The legislature has experience in devising interstate compacts. See Wis. Stat. § 938.991 (interstate compact on juveniles). When it does so, it has the ability to consider and address the financial impact of the agreements Wisconsin makes with other states. § 938.991(10). The majority opinion has not evaluated the financial impact of a transfer of Jane to Wisconsin.3

¶ 65. Additionally, concentration of power in one branch of government in a tripartite system of government is suspect because the system was created to prevent exactly that. See State v. Holmes, 106 Wis. 2d 31, 42, 315 N.W.2d 703 (1982). As we have repeatedly explained, the Wisconsin Constitution envisions a separation of the legislative and judicial powers. Id.

*290¶ 66. Notwithstanding our prior statements, this is the third time this term that the court has concentrated legislative and judicial power in itself. In March, as a result of a rulemaking petition, the court "repealed" the frivolous action statute, Wis. Stat. § 814.025, a substantive rule enacted by the legislature, which was not unconstitutional. Supreme Court Order No. 03-06, 2005 WI 38, _ Wis. 2d _. And in State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110, we established parameters for police practices.

¶ 67. Here, once again, a majority of the court says it has the requisite constitutional power to establish what appears to me to be very like a statute. I dissent because I see this process that this court is becoming increasingly enchanted with as dangerous precedent. Even though the goal of the majority opinion may be a worthwhile goal, in my view, it is achieved at the expense of the balance of power set out in the Wisconsin Constitution. Unconstitutional actions taken to achieve worthwhile goals are still unconstitutional actions. Therefore, I cannot join the majority opinion. Instead, I interpret the relevant statutes and ascertain the constitutionality of Wis. Stat. § 55.06(3)(c).

B. Standard of Review

¶ 68. This case turns in part on questions of statutory interpretation to which we apply a de novo standard of review, but benefiting from the analyses of both the circuit court and the court of appeals. See State v. Vanmanivong, 2005 WI 41, ¶ 16, 261 Wis. 2d 202, 661 N.W.2d 76. We also decide the constitutional questions presented de novo. See County of Kenosha v. C&S Mgmt., Inc., 223 Wis. 2d 373, 381-83, 588 N.W.2d 236 (1999).

*291C. Statutory Interpretation

¶ 69. Unified Community Services cites to three statutes that it asserts impact the decision about whether the Grant County Circuit Court correctly dismissed Deborah's petition: Wis. Stat. §§ 55.06(3), 880.03 and 880.05. However, only § 55.06(3) is central to my review.

¶ 70. When interpreting statutes, we rely on the criteria of statutory interpretation set out in State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110. In Kalal, we explained that our focus was to determine "statutory meaning." Id., ¶ 44. We explained that:

[jJudicial deference to the policy choices enacted into law by the legislature requires that statutory interpretation focus primarily on the language of the statute. We assume that the legislature's intent is expressed in the statutory language. Extrinsic evidence of legislative intent may become relevant to statutory interpretation in some circumstances, but is not the primary focus of inquiry. It is the enacted law, not the unenacted intent, that is binding on the public. Therefore, the purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect.

Id. As we have said many times, we begin with the language used in the statute and if that language is plain and clearly understood, we ordinarily stop our inquiry. Seider v. O'Connell, 2000 WI 76, ¶ 43, 236 Wis. 2d 211, 612 N.W.2d 659. Context is also important when determining the plain meaning of a statute, as is the purpose of the statute and its scope, if those qualities can be ascertained from the language of the statute *292itself. Kalal, 271 Wis. 2d 633, ¶¶ 46-48. These are all intrinsic sources for statutory interpretation. Id.

¶ 71. However, if the meaning of the statute is not plain and the statute "is capable of being understood by reasonably well-informed persons in two or more senses," then the statute is ambiguous. Id., ¶ 47. When a statute is ambiguous, we often consult extrinsic "interpretive resources outside the statutory text," such as legislative history. Id., ¶ 50.

¶ 72. No one argues that the meaning of "resident" or "residence" is ambiguous. Rather, all agree that either term requires at least Jane's presence in Grant County on the date the petition was filed.

¶ 73. In interpreting Wis. Stat. §§ 55.06(3), 880.03 and 880.05,1 begin with § 880.05, which sets the statutory parameters for venue of a petition for guardianship. Section 880.05 provides:

All petitions for guardianship of residents of the state shall be directed to the circuit court of the county of residence of the person subject to guardianship or of the county in which the person is physically present. A petition for guardianship of the person or estate of a nonresident may be directed to the circuit court of any county where the person ... may be found.

Social Services does not contend that Jane is a resident of Grant County or that she "may be found" in Grant County.

¶ 74. Wisconsin Stat. § 880.03 gives additional guidance for Wisconsin guardianships. It states in relevant part:

All minors, incompetents and spendthrifts are subject to guardianship. The court may appoint a guardian of the person of anyone subject to guardianship who is also a resident of the county, or of a nonresident found *293in the county, under extraordinary circumstances requiring medical aid or the prevention of harm to his or her person....

Once again, Social Services does not contend that Jane is a resident or may be "found" in Grant County.

¶ 75. Wisconsin Stat. § 55.06 speaks to petitions for protective placements. It states in relevant part:

(2) The department, an agency, a guardian or any interested person may petition the circuit court to provide protective placement for an individual who:
(a) Has a primary need for residential care and custody;
Ob) [H]as ... heen determined to be incompetent by a circuit court...
(c) As a result of... infirmities of aging, chronic mental illness or other like incapacities, is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to oneself or others. Serious harm may be occasioned by overt acts or acts of omission; and
(d) Has a disability which is permanent or likely to be permanent.
(3) (a) The petition shall state with particularity the factual basis for the allegations specified in sub. (2).
(b) The petition under sub. (2) shall be based on personal knowledge of the individual alleged to need protective placement.
(c) The petition shall be filed in the county of residence of the person to be protected.
*294(4) A petition for guardianship if required under sub. (2)(b) must be heard prior to the placement under this section.

Once again, Social Services does not contend that Grant County is Jane's "county of residence" as § 55.06(3)(c) requires. Instead, it contends that § 55.06(3)(c) is unconstitutional as applied to Jane because she is a nonresident and can never qualify in any Wisconsin county to have a petition for protective placement filed on her behalf. I will address this argument below.

¶ 76. However, before I address the constitutional argument, I note that an amicus brief filed by Legal Action of Wisconsin, Inc. asks us to interpret Wis. Stat. § 55.06(3)(c) as a venue provision. It asserts that because venue does not affect a court's power to adjudicate a given case, the court had the power to adjudicate whether a guardianship and protective placement is appropriate for Jane. Legal Action cites numerous cases to support the proposition that placing venue in the wrong Wisconsin county does not affect the authority of the court to take action.

¶ 77. Each case cited by Legal Action assumes that there is a Wisconsin county where the case could have been properly venued. Additionally, the county of residence designated in Wis. Stat. § 55.06(3) (c) is much more than the locus for hearing the petition for protective placement and guardianship. It is the county of residence that is obligated to conduct a comprehensive evaluation of the proposed ward, § 55.06(8); it is the county of residence that becomes responsible for providing the least restrictive environment consistent with the needs of the ward, § 55.06(9); and it is the county of residence that becomes financially responsible, at least in part, for whatever placement or treatment the ward *295requires if the ward is indigent, Wis. Stat. § 51.40(l)(e) and (2), to name only a few obligations. Accordingly, I am not persuaded by Legal Action's argument that § 55.06(3)(c) is simply a venue statute.

D. Constitutionality of Wis. Stat. § 55.06(3)(c)

¶ 78. Generally, a challenged statute is presumed to be constitutional. State v. Cole, 2003 WI 112, ¶ 11, 264 Wis. 2d 520, 665 N.W.2d 328; Lounge Mgmt., Ltd. v. Town of Trenton, 219 Wis. 2d 13, 20, 580 N.W.2d 156 (1998); State v. Konrath, 218 Wis. 2d 290, 302, 577 N.W.2d 601 (1998). This presumption is based on our respect for a co-equal branch of government and is meant to promote due deference to legislative acts. Cole, 264 Wis. 2d 520, ¶ 18. "[E]very presumption must be indulged to sustain the law." Jackson v. Benson, 218 Wis. 2d 835, 853, 578 N.W.2d 602 (1998).

¶ 79. The court must resolve any doubt about the constitutionality of a statute in favor of upholding its constitutionality. Monroe County Dep't of Human Servs. v. Kelli B., 2004 WI 48, ¶ 16, 271 Wis. 2d 51, 678 N.W.2d 831; Cole, 264 Wis. 2d 520, ¶ 11. Further, " '[g]iven a choice of reasonable interpretations of a statute, this court must select the construction which results in constitutionality.'" American Family Mut. Ins. Co. v. DOR, 222 Wis. 2d 650, 667, 586 N.W.2d 872 (1998) (quoting State ex rel. Strykowski v. Wilkie, 81 Wis. 2d 491, 526, 261 N.W.2d 434 (1978)).

¶ 80. A party challenging a statute's constitutionality bears a heavy burden to overcome the presumption of constitutionality. Dowhower v. West Bend Mut. Ins. Co., 2000 WI 73, ¶ 10, 236 Wis. 2d 113, 613 N.W.2d 557. Therefore, it is insufficient for the party challenging the statute to establish either that the statute's *296constitutionality is doubtful or that the statute is probably unconstitutional. Cole, 264 Wis. 2d 520, ¶ 11; Jackson, 218 Wis. 2d at 853. Instead, a party challenging a statute's constitutionality must demonstrate that the statute is unconstitutional beyond a reasonable doubt. Cole, 264 Wis. 2d 520, ¶ 11; Jackson, 218 Wis. 2d at 853; Konrath, 218 Wis. 2d at 302. While this language implies the evidentiary burden of proof most commonly used for factual determinations in a criminal case, in this context, the phrase, "beyond a reasonable doubt," establishes the force or conviction with which a court must conclude, as a matter of law, that a statute is unconstitutional before the statute or its application can be set aside. See Guzman v. St. Francis Hosp., Inc., 2001 WI App 21, ¶ 4 n.3, 240 Wis. 2d 559, 623 N.W.2d 776.

¶ 81. In order to examine the constitutionality of Wis. Stat. § 55.06(3)(c) and its claimed effect on Jane's constitutional right to interstate travel, we first must determine what type of right is at issue. The right to interstate travel is a federal constitutional right that has no explicit mention in the United States Constitution. Shapiro v. Thompson, 394 U.S. 618, 630 (1969).

¶ 82. States have imposed residency requirements that burden the right to travel. If those requirements do not implicate a "suspect" classification, the state need show only that there is a rational basis for the residency requirement. See Martinez v. Bynum, 461 U.S. 321, 328 n.7 (1983). However, if the requirement implicates a suspect classification, the state must show that its regulation is "necessary to promote a compelling governmental interest." Shapiro, 394 U.S. at 633-34. The residency requirement at issue here does not impact on any suspect classification of residents. All are treated the same, no matter who they are or whence *297they came. The definition of Wis. Stat. § 49.001(6) is applied to all petitions for protective placements and guardianships. Wis. Stat. § 55.06(8). Section 49.001(6) provides: " '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."

¶ 83. There are two general types of residency requirements: durational requirements and bona fide requirements. Martinez, 461 U.S. at 325. A durational residency requirement limits the rights or services that are available to new residents of the state when compared with those residents who have been residents for a stated period of time. A bona fide residency requirement "simply requires that the person does establish residence before demanding the services that are restricted to residents." Id. at 329.

¶ 84. Bona fide residency requirements have often been upheld. See id. (upholding a residency requirement necessary to obtaining free public education); Dunn v. Blumstein, 405 U.S. 330, 343-44 (1972) (concluding that states may require "that voters be bona fide residents of the relevant political subdivision [s]" in order to be entitled to vote). Because it does not matter how brief a time the proposed ward is a resident of a Wisconsin county before a petition for protective placement is filed, the requirement of Wis. Stat. § 55.06(3)(c) is a bona fide residency requirement.

¶ 85. The next question we must ask is to what extent does the residency requirement interfere with the right to interstate travel. Here, Wis. Stat. § 55.06(3) does not prevent Jane's travel to Wisconsin. She is free to come to her sister's home in Grant County. It may be that the Illinois guardianship and protective placement *298restrict her ability to leave Illinois, but the record gives no information in that regard.

¶ 86. If we were to assume, arguendo, that the residency requirement does burden Jane's right to interstate travel, the State may do so if the State has a rational basis for the residency requirement. Martinez, 461 U.S. at 328 n.7. Here, the record is full of testimony about the financial effect a protective placement has for the county of residence and for the state. There was testimony that state and county resources are so limited that current residents are not being provided with the services they have requested. Neal Blackburn, the representative from Unified Community Services, was asked whether there was a waiting list of Wisconsin residents who had requested services that could not be provided due to a shortage of funds and he responded, "We have approximately close to 60 on the waiting list and that number grows every day or every month." Blackburn was also asked whether Unified Community Services had sought more money from the State. He said it had, but none was forthcoming, and instead he had been told that there would be a "significant cut in state funding," due to the budget deficit. The testimony shows that the residency requirement is rationally related to protecting and preserving the county's and the State's ability to provide services to its own bona fide residents in preference to those persons who reside in other states.

¶ 87. In holding Wis. Stat. § 55.06(3)(c) unconstitutional, the court of appeals concluded that the only way Jane could come to Wisconsin is if a Wisconsin court were to place her here. This, the court concluded, was a restriction on her right to travel. There is nothing in the record to support this conclusion. Perhaps it is the order of the Illinois court that keeps her in Illinois. *299However, aside from being told that she was found to be incompetent in Illinois and that she is the subject of an Illinois guardianship and protective placement, we know nothing of the terms of the Illinois court's order. Additionally, without identifying a "suspect classification" that was impacted negatively by § 55.06(3)(c), the court of appeals concluded that the State had not shown a "compelling governmental interest" in restricting Jane's right to travel. In so doing, it applied the wrong test. See Martinez, 461 U.S. at 328 n.7. Here, the State need show only that it has a rational basis for the residency requirement. Id. It has done so. Accordingly, for all the reasons set out above, I conclude that § 55.06(3)(c) passes constitutional muster.

III. CONCLUSION

¶ 88. I conclude that this court does not have the constitutional power it exercises in the majority opinion and that Wis. Stat. § 55.06(3)(c) is constitutional, as applied to Jane. Therefore, I would reverse the court of appeals decision. However, I would affirm the circuit court's order dismissing the petition for guardianship and protective placement.

¶ 89. Accordingly, I respectfully concur in part and dissent in part from the majority opinion.

¶ 90. I am authorized to state that Justice JON E WILCOX joins this concurrence and dissent. I am also authorized to state that Justice N. PATRICK CROOKS joins Section D of this concurrence and dissent.

All further references to Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

The record does not contain a copy of the Illinois court order appointing Deborah as Jane's guardian, nor does it contain a copy of the terms of the Illinois protective placement. These facts are taken from the petition Deborah filed.

The majority opinion cites several states that it asserts have addressed out-of-state guardianships. Majority op., ¶ 26 n.ll. However, in each of these states, it was the legislature that created a statute to address interstate transfers.