Dane County v. Sheila W.

2013 WI 63

SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP500
COMPLETE TITLE: In the interest of Sheila W., a person under the
age of 18:

Dane County,
Petitioner-Respondent,
v.
Sheila W.,
Respondent-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
(No Cite)

OPINION FILED: July 10, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 11, 2013

SOURCE OF APPEAL:
COURT: Dane
COUNTY: Circuit
JUDGE: William C. Foust

JUSTICES:
CONCURRED: PROSSER, J., concurs. (Opinion filed.)
DISSENTED: GABLEMAN, ROGGENSACK, ZIEGLER, JJJ., dissent.
(Opinion filed.)
NOT PARTICIPATING:

ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
by Shelley M. Fite, assistant state public defender, and oral
argument by Shelly M. Fite.

For the petitioner-respondent, there was a brief by Eve M.
Dorman, assistant corporation counsel, and Dane County, and oral
argument by Eve M. Dorman.
2013 WI 63
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP500
(L.C. No. 2012JC55)

STATE OF WISCONSIN : IN SUPREME COURT

In the interest of Sheila W., a person under
the age of 18:

Dane County, FILED
Petitioner-Respondent,
JUL 10, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
Sheila W.,

Respondent-Appellant-Petitioner.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 PER CURIAM. This is a review of an unpublished

opinion of the court of appeals dismissing this appeal because

the issues presented are moot.1 The petitioner, Sheila W., is a

minor who was diagnosed with aplastic anemia. She opposed on

1
Dane Cnty. v. Sheila W., No. 2012AP500, unpublished slip
op. (Ct. App. Oct. 31, 2012).
No. 2012AP500

religious grounds any life-saving blood transfusions and her

parents supported her position.

¶2 The circuit court appointed a temporary guardian under

Wis. Stat. § 54.50 for the purpose of deciding whether to

consent to medical treatment. Sheila W. appealed, but the order

appointing a temporary guardian expired while the case was

pending before the court of appeals. The court of appeals then

dismissed the appeal, concluding that the issues presented are

moot and that the appeal does not sufficiently satisfy the

criteria to address the merits regardless of mootness. Four

issues are presented for our review:

¶3 First, notwithstanding mootness, should this court

decide this case on the merits because it involves matters of

statewide importance that are capable of repetition yet evade

appellate review? Second, does Wisconsin recognize the mature

minor doctrine, which may permit a minor to give or refuse

consent to medical treatment after a finding that she is

sufficiently mature and competent to make the treatment
decision? Third, does a mature, competent minor have an

enforceable due process right to refuse unwanted medical
treatment? Fourth, did the circuit court violate Sheila W.'s

common law and constitutional right to refuse unwanted medical
treatment by appointing a temporary guardian to determine

whether to give consent to medical treatment over her
objections?

¶4 We address only the issue of mootness. This court has

"consistently adhered to the rule that a case is moot when a
2
No. 2012AP500

determination is sought upon some matter which, when rendered,

cannot have any practical legal effect upon a then existing

controversy." G.S., Jr. v. State, 118 Wis. 2d 803, 805, 348

N.W.2d 181 (1984). In this case, no determination of this court

will have any practical legal effect upon an existing

controversy because the order being appealed has expired. There

was no request to extend the order and there is no indication

that Dane County has sought any additional order to which Sheila

W. objects.2

¶5 All parties agree with the conclusion of the court of

appeals that the issues presented in this case are moot. Like

the parties and the court of appeals, we also conclude that the

issues presented are moot.

¶6 Sheila W. argues that this court should reach the

merits of the issues presented despite the acknowledged

mootness. In past cases, this court has addressed moot issues

when the issues presented are of "great public importance," or

when "the question is capable and likely of repetition and yet

2
Counsel for Dane County observed at oral argument that no
"movement" has been made for any additional order:

But there is nothing in this record to suggest that
this is an ongoing problem at this point. For the
last year, there has not been, to the best of my
knowledge, any movement to subject [Sheila W.] to
additional transfusions to which she objects, and to
the best of my knowledge she survives.

3
No. 2012AP500

evades appellate review . . . ." State ex rel. Angela M.W. v.

Kruzicki, 209 Wis. 2d 112, 120 n.6, 561 N.W.2d 729 (1997).3

¶7 This case undoubtedly presents issues of great public

importance. Questions concerning when or if a minor may

withdraw consent to life-saving medical treatment are inquiries

"bristling with important social policy issues." Id. at 134.

Furthermore, it appears that orders appointing temporary

guardians for the purpose of determining whether to consent to

life-saving medical care are capable and likely of repetition

and yet will evade appellate review.

¶8 In this instance, we deem it unwise to decide such

substantial social policy issues with far-ranging implications

based on a singular fact situation in a case that is moot. In

Eberhardy v. Circuit Court for Wood Cnty., 102 Wis. 2d 539, 307
N.W.2d 881 (1981), this court was faced with a similar dilemma

of whether to yield initially to the legislature on a social

policy issue. In that case the guardians of a mentally-impaired

adult daughter sought court approval for her surgical

sterilization. Id. at 541-42. The court concluded that because

of the complexities of the public policy considerations

involved, opportunity should be given to the legislature to

3
For additional discussion of mootness and its exceptions,
see, e.g., State v. Schulpius, 2006 WI 1, 287 Wis. 2d 44, 707
N.W.2d 495; Sauk Cnty. v. Aaron J.J., 2005 WI 162, 286 Wis. 2d
376, 706 N.W.2d 659; State ex rel. Riesch v. Schwarz, 2005 WI
11, 278 Wis. 2d 24, 692 N.W.2d 219; State v. Morford, 2004 WI 5,
268 Wis. 2d 300, 674 N.W.2d 349; City of Racine v. J-T
Enterprises of America, Inc., 64 Wis. 2d 691, 221 N.W.2d 869
(1974).

4
No. 2012AP500

conduct hearings and undertake the necessary fact-finding

studies that would result in measured public policy along with

statutory guidelines. Id. at 542. The court explained:

The legislature is far better able, by the hearing
process, to consider a broad range of possible fact
situations. It can marshal informed persons to give
an in-depth study to the entire problem and can secure
the advice of experts . . . to explore the
ramifications of the adoption of a general public
policy . . . .
Id. at 570-71.

¶9 For the same reasons enunciated in Eberhardy, we

decline at this time to exercise the court's discretion to

address the moot issues presented in this case.4 Accordingly, we

affirm the court of appeals.

By the Court.—The decision of the court of appeals is

affirmed.

4
As the court stated in Eberhardy in yielding to
legislative action, it should not be construed that "this court
abrogates its own authority and jurisdiction to act on this
subject at a future time if it becomes apparent that the
legislature is unable or unwilling to act." Eberhardy v.
Circuit Court for Wood Cnty., 102 Wis. 2d 539, 578, 307 N.W.2d
881 (1981).

5
No. 2012AP500.dtp

¶10 DAVID T. PROSSER, J. (concurring). The Per

Curiam opinion concludes that this case is moot. It further

concludes that, although the case raises issues of great public

importance and presents a situation likely to repeat itself yet

evade appellate review, the court should not proceed to exercise

its discretion to take up issues that ought, if possible, to be

decided by the legislature. I strongly agree with this

decision. I write separately to supplement the explanation of

why further court action at this time would be premature and

undesirable.

¶11 In considering this case, the court is not fully

apprised about the present status of Sheila W. Thus, the case

is being reviewed on facts that are more than a year old.

¶12 In the early months of 2012, Sheila W. (Sheila), then

15, was diagnosed with aplastic anemia, a life-threatening

illness in which a person's immune system attacks the person's

bone marrow, preventing the body from producing new blood cells.

Sheila had received treatment for her condition at the
University of Wisconsin Hospital in Madison, and she was taking

immunosuppressant drugs without objection. Sheila's doctors

determined, however, that Sheila needed blood transfusions and

that if she did not have them, her condition would become dire.
Her red blood cell, white blood cell, and platelet counts were

very low, and she was at risk of serious infection, spontaneous

hemorrhage, and cardiac arrest. Dr. Christian Capitini, a

1
No. 2012AP500.dtp

pediatric hematologist who was Sheila's attending physician,

informed Sheila that without blood transfusions, she would die.

¶13 Sheila's parents refused to consent to blood

transfusions. Sheila and her family were Jehovah's Witnesses1

who believed that God prohibits blood transfusions. The parents

indicated to their daughter that they believed she was mature

enough to make her own decision to accept or refuse blood

transfusions, and they informed her that if she decided to

accept blood transfusions, they would support her decision.

However, the parents would not personally consent.

¶14 Sheila refused to consent to the transfusions, citing

a Biblical passage from Acts 15:28 and 29. She told Dr.

Capitini that she "would rather die not receiving the

transfusions than survive, but have the stigma of having

received a transfusion." She told Cheryl Bradley, a child

protection worker for Dane County, that she would not consent to

a blood transfusion under any circumstances, even in the face of

death. She told Dane County Circuit Judge William Foust that a

blood transfusion would be "devastating to me mentally and
physically" because it is "my body, my belief, my wishes." She

considered a blood transfusion equivalent to "rape."

1
According to the annual report of Jehovah's Witnesses,
there were approximately 7.8 million active members, or
"publishers," worldwide in 2012, with roughly 1.2 million
members in the United States. Watch Tower Bible and Tract
Society of Pa., 2013 Yearbook of Jehovah's Witnesses, 178, 186,
190 (2013).

2
No. 2012AP500.dtp

¶15 On March 1, 2012, Dane County filed a petition for

protection or services for Sheila under Wis. Stat. § 48.255 and

a petition for temporary physical custody under Wis. Stat.

§ 48.205. The following day, the Dane County Circuit Court

conducted a hearing at University Hospital. After receiving

testimony, the court sua sponte appointed a temporary guardian

for Sheila under Wis. Stat. § 54.50. The guardian was given

authority to decide whether to consent to the recommended

medical treatment. The guardian consented, and an undetermined

number of blood transfusions were administered to Sheila. The

court's guardianship order expired 60 days after March 2, 2012,

and was not extended. The expiration of the order is the

principal reason this case is moot.

¶16 In this review, Sheila asks the court to disregard

mootness and to recognize the "mature minor doctrine" as part of

Wisconsin law. Sheila describes the mature minor doctrine as an

exception to the general rule requiring parents to give consent

to medical treatment for their children. Under the doctrine,
older minors can be permitted to independently make medical

treatment decisions involving their own care if they demonstrate

"sufficient understanding and appreciation of the nature and

consequences of treatment despite their chronological age." Fay
A. Rozovsky, Consent to Treatment: A Practical Guide,

§ 5.01[B][3] (4th ed. 2012). The court's recognition of the

mature minor doctrine would presumably enable Sheila to refuse

any future blood transfusions regardless of the consequences.
3
No. 2012AP500.dtp

¶17 The parties acknowledge that states have come to

different conclusions about the mature minor doctrine. A number

of states have adopted some form of the doctrine, but there is

little consistency about how to determine when a minor is

"mature" and the full extent of the decisions to which that

"maturity" may apply.

¶18 Several states have recognized the "rights" of mature

minors by statute. See, e.g., Arkansas (Ark. Code Ann. § 20-9-

602(7) (2012)); New Mexico (N.M. Stat. Ann. § 24-7A-6.1.C.

(1997)); South Carolina (S.C. Code Ann. § 63-5-340 (2010)); and

Virginia (Va. Code Ann. § 63.2-100.2. (2012)). But care must be

taken not to misread some of these statutes. For instance, the

South Carolina statute provides:

Any minor who has reached the age of sixteen
years may consent to any health services from a person
authorized by law to render the particular health
service for himself and the consent of no other person
shall be necessary unless such involves an operation
which shall be performed only if such is essential to
the health or life of such child in the opinion of the
performing physician and a consultant physician if one
is available.
S.C. Code Ann. § 63-5-340 (2010) (emphasis added). It is not

clear from this statute whether a minor who has reached the age
of 16 years may refuse lifesaving services, especially if those

services are authorized by a parent or by a court. A provision
of South Carolina's Death with Dignity (or Right to Die) Act,

S.C. Code Ann. § 44-77-30 (2002), permits a person to adopt a

written declaration that life-sustaining procedures may be

withheld, but only if the person is 18 years of age or older.

4
No. 2012AP500.dtp

Consequently, while South Carolina "recognizes" the rights of

mature minors by statute, the statute is not as far-reaching as

the doctrine that Sheila proposes here.

¶19 By contrast, New Mexico's statute appears to be very

far-reaching and to cover Sheila's 2012 circumstances. The

pertinent statute reads:

Subject to the provisions of Subsection B of this
section, if an unemancipated minor has capacity
sufficient to understand the nature of that
unemancipated minor's medical condition, the risks and
benefits of treatment and the contemplated decision to
withhold or withdraw life-sustaining treatment, that
unemancipated minor shall have the authority to
withhold or withdraw life-sustaining treatment.
N.M. Stat. Ann. § 24-7A-6.1.C. (1997). If this statute had been

in effect last year in Wisconsin, Sheila would now likely be

dead.

¶20 There also are a number of court decisions that have

adopted some form of the mature minor doctrine. See, e.g.,
Kozup v. Georgetown Univ., 851 F.2d 437, 439 (D.C. Cir. 1988);

People v. E.G., 549 N.E.2d 322, 325 (Ill. 1989); Younts v. St.
Francis Hosp. & Sch. of Nursing, 469 P.2d 330, 338 (Kan. 1970);

In re Swan, 569 A.2d 1202, 1205 (Me. 1990); In re Rena, 705

N.E.2d 1155, 1157 (Mass. App. Ct. 1999); Bakker v. Welsh, 108

N.W. 94, 96 (Mich. 1906); Gulf & Ship Island R.R. Co. v.

Sullivan, 119 So. 501, 502 (Miss. 1928); Cardwell v. Bechtol,

724 S.W.2d 739, 748-49 (Tenn. 1987); Belcher v. Charleston Area
Med. Ctr., 422 S.E.2d 827, 837-38 (W. Va. 1992). The substance

of these decisions is not uniform. To illustrate, the Tennessee
Supreme Court adopted the so-called Rule of Sevens, which
5
No. 2012AP500.dtp

provides that children under the age of 7 have no capacity to

consent to medical treatment, children between the ages of 7 and

14 have a rebuttable presumption of no capacity, and children

between the ages of 14 and the age of majority possess a

rebuttable presumption of capacity. Cardwell, 724 S.W.2d at

745.

¶21 In 2009 the Supreme Court of Canada exhaustively

considered the mature minor doctrine in a case similar to the

one before us. A.C. v. Manitoba, [2009] 2 S.C.R. 181 (Can.).

In A.C., the statutory law in Manitoba recognized a mature

minor's views with respect to her own health care but authorized

the Director of Child and Family Services to seek treatment for

a child whom the director believed did not understand or

appreciate the consequences of the child's decision. The

subject of the case was admitted to a hospital when she was 14

years, 10 months old, suffering from internal bleeding caused by

Crohn's disease. Id., para. 5. She was a devout Jehovah's

Witness, id., who previously had signed an advance medical

directive containing her written instructions not to be given
blood under any circumstances. Id., para. 6. Her doctor

believed that internal bleeding created an imminent risk of

death. Id., para. 11. Nevertheless, A.C. refused to consent to

a blood transfusion. Id., para. 7.

¶22 A brief psychiatric assessment took place at the

hospital on the night after the young woman's admission. Id.,

para. 6. The Director of Child and Family Services determined

her to be a child in need of protection, and sought a treatment
6
No. 2012AP500.dtp

order from the court under section 25(8) of the Manitoba Child

and Family Services Act, under which the court may authorize

treatment that it considers to be in the child's best interests.

Id., paras. 8–9. Section 25(9) of the Act presumes that the

best interests of a child 16 or over will be most effectively

promoted by allowing the child's views to be determinative,

unless it can be shown that the child does not understand the

decision or appreciate its consequences. Id., para. 9. Where

the child is under 16, however, no such presumption exists. See

id. As a result, the local court ordered that A.C. receive

blood transfusions, concluding that "when a child is under 16

years old, there are no legislated restrictions . . . on the

court's ability to order medical treatment in the child's best

interests." Id., para. 12 (internal quotation marks omitted).

A.C. and her parents appealed the order, arguing that the

legislative scheme was unconstitutional because it unjustifiably

infringed A.C.'s rights under the Manitoba statute and the

Canadian Charter of Rights and Freedoms. Id., para. 14. The

Court of Appeal upheld the constitutional validity of the
challenged provisions as well as the treatment order. See id.,

paras. 15–20.

¶23 Writing for a majority of the Supreme Court, Justice

Rosalie Abella made the following observations:

The application of an objective "best interests"
standard to infants and very young children is
uncontroversial. Mature adolescents, on the other
hand, have strong claims to autonomy, but these claims
exist in tension with a protective duty on the part of
the state that is also justified.
7
No. 2012AP500.dtp

. . . .

In the vast majority of situations where the
medical treatment of a minor is at issue, his or her
life or health will not be gravely endangered by the
outcome of any particular treatment decision. . . .

Where a young person comes before the court under
s. 25 of the Child and Family Services Act, on the
other hand, it means that child protective services
have concluded that medical treatment is necessary to
protect his or her life or health, and either the
child or the child's parents have refused to consent.
In this very limited class of cases, it is the
ineffability inherent in the concept of "maturity"
that justifies the state's retaining an overarching
power to determine whether allowing the child to
exercise his or her autonomy in a given situation
actually accords with his or her best interests. The
degree of scrutiny will inevitably be most intense in
cases where a treatment decision is likely to
seriously endanger a child's life or health.

The more a court is satisfied that a child is
capable of making a mature, independent decision on
his or her own behalf, the greater the weight that
will be given to his or her views when a court is
exercising its discretion under s. 25(8). . . . Such
an approach clarifies that in the context of medical
treatment, young people under 16 should be permitted
to attempt to demonstrate that their views about a
particular medical treatment decision reflect a
sufficient degree of independence of thought and
maturity.

. . . When applied to adolescents, therefore,
the "best interests" standard must be interpreted in a
way that reflects and addresses an adolescent's
evolving capacities for autonomous decision making.
It is not only an option for the court to treat the
child's views as an increasingly determinative factor
as his or her maturity increases, it is, by
definition, in a child's best interests to respect and
promote his or her autonomy to the extent that his or
her maturity dictates.
A.C., 2 S.C.R. 181, paras. 82, 85-88.

8
No. 2012AP500.dtp

¶24 The authorities cited above, including the decision of

the Supreme Court of Canada, reveal the seriousness that should

be afforded to Sheila's position. But her position may not

represent the majority view in Wisconsin and it may not

represent sound public policy. Asking this court to enshrine

Sheila's view into our law is asking the court to make

profoundly important policy determinations about the rights of

minors as well as the role of parents and the role of the state

without statutory guidance. It is asking this court to make up

the law on its own initiative. Courts need not and should not

leap into controversies that may upset longstanding legal

principles unless their involvement is unavoidable. This

court's involvement is not unavoidable today.

III

¶25 There are specific reasons why the court is correct in

not acting now.

¶26 First, unlike Canada and several states, Wisconsin has

not codified a mature minor doctrine into its statutory law.

However, Wisconsin does have a statute on advance directives to
physicians, Wis. Stat. § 154.03(1) ("Any person of sound mind

and 18 years of age or older may at any time voluntarily execute

a declaration . . . authorizing the withholding or withdrawal of

life-sustaining procedures or of feeding tubes"), and a statute

on Power of Attorney for Health Care that specifically provides

that "[a]n individual who is of sound mind and has attained age

18 may voluntarily execute a power of attorney for health care."

Wis. Stat. § 155.05(1) (emphasis added). By incorporating the
9
No. 2012AP500.dtp

adult age of 18 into these statutes, the legislature appears to

have made a policy choice that is relevant to the present case.

¶27 Counsel have not briefed the applicability, if any, of

any provision of Wis. Stat. § 51.61.

¶28 Second, the court is reviewing this case against the

backdrop of State v. Neumann, 2013 WI 58, ___ Wis. 2d ___, ___

N.W.2d ___, in which the court upheld the convictions of Dale

and Leilani Neumann for second-degree reckless homicide in the

death of their 11-year-old daughter Kara. Kara died from

diabetic ketoacidosis resulting from untreated juvenile onset

diabetes mellitus. Id., ¶1. Her parents were concerned about

Kara's health and prayed for her recovery, but they never tried

to secure medical treatment for her. After Kara died, her

parents were prosecuted for second-degree reckless homicide.

Id.

¶29 Although I disapproved of the parents' neglect, I

dissented from their convictions under the second-degree

reckless homicide statute because I thought the statutory scheme

was "very difficult to understand and almost impossible to
explain." Id., ¶213 (Prosser, J., dissenting). The statutory

scheme presented notice issues to potential defendants,

including the question of when a failure to act amounts to

reckless conduct. The court said the answer to when a failure

to act amounts to reckless conduct is when the failure violates

a "legal duty." Id., ¶94.

¶30 The majority in Neumann had no problem determining

that the Neumanns violated a "legal duty" to provide medical
10
No. 2012AP500.dtp

care to their daughter. Against that background, what is the

parental duty here? Sheila's parents refused to consent to

lifesaving blood transfusions for their daughter. Would

Sheila's parents have escaped criminal responsibility if Sheila

had died from not receiving blood transfusions if the parents

claimed that they had delegated medical decision-making to their

daughter? Stated differently, does a state's adoption of a

mature minor doctrine relieve parents of whatever duty they have

to provide medical care to their "mature" children? These

questions have not been briefed, and, in my view, the court is

unprepared to answer them.

¶31 Third, permitting a minor to refuse lifesaving medical

treatment comes uncomfortably close to permitting a minor to

commit suicide.

¶32 Wisconsin law provides that, "[w]hoever with intent

that another take his or her own life assists such person to

commit suicide is guilty of a Class H felony." Wis. Stat.

§ 940.12 (emphasis added). At first glance, this statute would

not appear to be implicated in a situation where a minor is
permitted to refuse blood transfusions. In such a case, a

potential defendant would not normally have the purpose that the

minor commit suicide. However, the phrase "with intent that"

also means a defendant was aware that his or her conduct was

practically certain to cause (the minor) to commit suicide.

¶33 What is suicide? On this point, Sheila's doctors did

not believe that she had a terminal illness. Assuming that she

is still alive, her doctors were correct. But Sheila's
11
No. 2012AP500.dtp

attending physician predicted that she would die without blood

transfusions. There was no alternative treatment to preserve

her life. Refusing to agree to the only known treatment to save

one's life is suicidal unless a person's condition is terminal.2

Facilitating suicidal conduct in these circumstances is

practically certain to cause the person's death.3 Here, the

"person" is a minor.

¶34 The mature minor doctrine anticipates that the state

will take steps to assure that a minor has the maturity and

understanding to knowingly, intelligently, and voluntarily make

the decision whether to act to preserve her own life. This is

likely to put courts in the unenviable position of either

prohibiting or permitting a minor's suicidal conduct.

¶35 Courts are often obligated to enforce law that they

may not approve. They are not obligated to create law that they

do not approve. To my mind, it is not sound public policy to

force courts to give their imprimatur to a minor's commitment to

martyrdom.

2
See Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 293
(1990) (Scalia, J., concurring) ("American law has always
accorded the State the power to prevent, by force if necessary,
suicide——including suicide by refusing to take appropriate
measures necessary to preserve one's life").
3
Cf. Lenz v. L.E. Phillips Career Dev. Ctr., 167
Wis. 2d 53, 70, 482 N.W.2d 60 (1992) ("It is difficult not to
view the withdrawal of artificial feeding as inducing death
through starvation and dehydration.").

12
No. 2012AP500.dtp

¶36 Finally, Sheila told her attending physician that she

would rather die than endure the "stigma of having received a

transfusion."

¶37 According to the American Red Cross, 30 million blood

components are transfused each year in the United States. Am.

Red Cross, Blood Facts and Statistics,

http://www.redcrossblood.org./learn-about-blood/blood-facts-and-

statistics (last visited June 27, 2013). These blood components

are received by approximately 5 million patients from more than

9 million donors. Id. There is little stigma attached to blood

transfusions among the population at large, although there is

often concern about the safety of the blood supply.

¶38 Jehovah's Witnesses are one of the most notable

exceptions. They consider the issue of blood transfusions to be

"a religious issue rather than a medical one. Both the Old and

New Testaments clearly command us to abstain from blood." Watch

Tower Bible and Tract Society of Pa., Why Don't You Accept Blood

Transfusions?, http://www.jw.org/en/jehovahs-

witnesses/faq/jehovahs-witnesses-why-no-blood-transfusions/
(citing Genesis 9:4; Leviticus 17:10; Deuteronomy 12:23; Acts

15:28, 29) (last visited June 27, 2013). Some Jehovah's

Witnesses have been accused of disfellowshipping, even shunning,

members who consent to blood transfusions. See Osamu Muramoto,

Bioethical aspects of the recent changes in the policy of

refusal of blood by Jehovah's Witnesses, Brit. Med. J., Jan. 6,

2001 at 37-39. The court is not in a position to evaluate these

accusations on the evidence before us. However, the existence
13
No. 2012AP500.dtp

of these accusations inevitably raises questions about whether a

minor's decision to refuse blood transfusions——at the risk of

her own death——is truly a voluntary decision when the minor is a

Jehovah's Witness.

¶39 The issues raised in this writing will be no easier

for the legislature than for this court. But the court ought to

defer to the principal lawmaking branch of government before it

tries to make policy on its own initiative.

¶40 For the foregoing reasons, I respectfully concur.

14
No. 12AP500.mjg

¶41 MICHAEL J. GABLEMAN, J. (dissenting). Two important

issues are presented in this case: (1) should Wisconsin

recognize the mature minor doctrine, which permits those under

18 years of age to refuse life-saving medical care under some

circumstances?; and (2) does a minor have a due-process right to

refuse medical treatment? Instead of answering them, the court

washes its hands of the matter and declares the case moot. As

this court has a responsibility to decide matters of great

public importance that are likely to recur but evade appellate

review, I dissent from the decision to dismiss this appeal.

¶42 A brief recitation of the facts and procedural history

is necessary to demonstrate the absurdity of the majority's

refusal to decide this case. In February 2012, 15-year-old

Sheila W. was diagnosed with aplastic anemia, a condition that

prevents her bone marrow from producing blood cells. If left

untreated, the condition is fatal. Sheila was admitted to the

hospital on February 25, 2012 and given antibody treatments.

After three days of treatment, however, her blood platelet count

remained at a critically low level, putting her at risk of

spontaneous hemorrhage, cardiac arrest, and respiratory

distress. Sheila's treating physician thus recommended that she

undergo blood transfusions. Without these transfusions, her
doctor stated that she would die.

¶43 Sheila and her parents, though, are Jehovah's
Witnesses, who believe that the Bible requires them to "abstain

from blood." Receiving a blood transfusion would violate this

belief, and Sheila described it as tantamount to "rape." Her
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parents, citing deference to their daughter's decision, stated

they would not force a transfusion upon her, even knowing she

would die.

¶44 Due to the high risk of imminent death, Dane County

took emergency custody of Sheila on February 29. The County

then filed a petition for protective services the next day,

seeking temporary physical custody of Sheila to administer the

blood transfusions. See Wis. Stat. § 48.13(10). On Friday,

March 2, the circuit court held a hearing in the hospital. The

court found that Sheila's parents were "seriously endanger[ing]"

her health by refusing to consent to the transfusions. But

instead of granting the petition for temporary physical custody,

the court appointed a temporary guardian pursuant to Wis. Stat.

§ 54.50(1). The order gave the guardian authority to "[d]ecide

whether to consent to medical treatment." Sheila's motion to

stay the order pending an appeal was denied by the circuit

court. Sheila's appointed guardian consented to the blood

transfusions, the first of which was successfully performed

later that day. The following Monday, the day before Sheila was

scheduled for another transfusion, she filed a notice of appeal.

The court of appeals also denied Sheila's motion to stay the

transfusions pending an appeal, stating that "the irreparable

harm Sheila would suffer if forced to undergo continued blood

transfusions against her religious beliefs is outweighed by the

irreparable harm to the public interest in preserving life and

protecting minors that would occur if Sheila were to die while

the appeal is pending." However, the court did state that "it

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would be open to a motion to expedite this appeal to minimize

the length of time Sheila receives transfusions, in the event

that the guardianship order is ultimately reversed by this court

or the Wisconsin Supreme Court."

¶45 By the time the case was fully briefed before the

court of appeals, the temporary guardianship order had expired.

While conceding that her appeal was thus moot because she no

longer needed the transfusions, Sheila argued that her case

nonetheless fell under one of the exceptions to the general rule

that a court does not decide moot issues. We have stated that a

court may address moot issues when: the issue has great public

importance, a statute's constitutionality is involved, a

decision is needed to guide the trial courts, or the issue is

likely to repeat yet evade review because the situation at hand

is one that typically is resolved before completion of the

appellate process. Sauk Cnty. v. Aaron J.J., 2005 WI 162, ¶3

n.1, 286 Wis. 2d 376, 706 N.W.2d 659 (per curiam). In a two-

page summary order, the court of appeals concluded that Sheila's
appeal did not satisfy any of the exceptions to mootness.

¶46 Sheila filed a petition for review on November 27,

2012. In its response to the petition, Dane County argued that

the court of appeals correctly dismissed the case as moot. On

January 15, 2013, we granted Sheila's petition for review. On

February 7, we assigned the case for oral argument. Each party

filed briefs. Oral argument was held April 11.

¶47 The subject of mootness was only glancingly touched

upon at oral argument. In her opening statement to the court,

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Dane County's attorney said, "Dane County asks that you dismiss

this appeal as moot. The County believes that's the most

appropriate outcome in this case, one that leaves the delicate

social balancing that we have been talking about among complex

and competing policy interests to the legislature." No follow-

up questions on mootness were asked. In fact, the issue of

mootness received only passing, perfunctory references during

the 70-minute oral argument. No member of this court asked

Sheila's attorney for her position on mootness, and she did not

offer it.

¶48 Based on this court's actions since granting the

petition for review in January, Sheila W. is entitled to feel

blindsided by today's decision to dismiss her appeal as moot.

And upon reading the per curiam issued by four members of this

court, her shock is likely to turn to confusion. The per curiam

assures us that "[t]his case undoubtedly presents issues of

great public importance. . . . Furthermore, it appears that

orders appointing temporary guardians for the purpose of

determining whether to consent to life-saving medical care are

capable and likely [to repeat] and yet will evade appellate

review." Per Curiam, ¶7. In other words, according even to the

per curiam opinion, Sheila meets two of the exceptions to

mootness.1

¶49 Despite these conclusions, the per curiam holds: "In

this instance, we deem it unwise to decide such substantial

1
I would add that this case also satisfies a third
exception to mootness: a decision is needed to guide the trial
courts.

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social policy issues with far-ranging implications based on a

singular fact situation in a case that is moot." Per Curiam,

¶8. I do not understand what the majority means by this.

"Singular," as the per curiam uses the word, would seem to mean

"unique," "beyond what is ordinary," or "strange or unusual."

The American Heritage Dictionary of the English Language 1636

(5th ed. 2011). I fail to see why the facts in this case make

it a bad candidate to evaluate whether Wisconsin should adopt

the common law mature minor doctrine or decide the scope of a

minor's due-process rights. The mature minor doctrine asks when

and whether someone under the age of 18 should be permitted to

refuse medical care. See e.g., Illinois v. E.G., 549 N.E.2d

322, 327-28 (Ill. 1989). This case presents about as clear an

opportunity to address that question as can be imagined.

Furthermore, why does a "singular fact situation" make a

particular case unworthy of our review? Every case to some

extent has a "unique" set of facts, and many have "strange or

unusual facts." To say that a case of "great public importance"
cannot be resolved because the particular facts are "singular"

is no answer at all.2

2
Justice Prosser's concurrence attempts to provide the
rationale lacking from the per curiam. Much of the concurrence,
however, reads like a dissent from a decision to adopt the
mature minor doctrine, which this court has not done. See
concurrence, ¶¶24, 31, 34, 35. To be clear, this dissent does
not take a position on whether the court should adopt the mature
minor doctrine or whether minors have a due-process right to
refuse medical treatment because a majority of this court
inexplicably does not want to decide those issues.

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¶50 Paradoxically, the court uses Eberhardy v. Circuit

Court for Wood Cnty., 102 Wis. 2d 539, 307 N.W.2d 881 (1981) as

its fig leaf. Eberhardy presented the question of "whether the

circuit court has jurisdiction to authorize the duly appointed

guardians of an adult mentally retarded female ward to give

their consent to surgical procedures which will result in the

permanent sterilization of the ward when such sterilization is

for contraceptive and therapeutic purposes," and if the circuit

court had such jurisdiction, whether it was "appropriate for the

court to exercise it for this purpose." Id. at 541-42. We held

that although the circuit courts had jurisdiction over a

guardian's petition seeking sterilization of an incompetent

ward, they were not permitted to exercise that jurisdiction

until the legislature provided clear guidelines in the area.

Id. at 578-79. In doing so we stressed the "irreversible"

nature of sterilization. Id. at 567, 568, 572, 575, 577, 585,

592. However, in a passage that should give the majority pause,

we stated: "The inevitability of the consequences of not acting
judicially in this case does not approach the degree that might

force a choice if the question were one of invoking state power

to order treatment for one who would die without it." Id. at

575. Thus by its own terms Eberhardy does not dictate the

result reached by the court today. In fact, it counsels just

the opposite.

¶51 Equally important, Eberhardy shows that the

legislature does not always act quickly in response to this

court's prodding. The only Wisconsin statute to address the

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sterilization of incompetents, Wis. Stat. § 54.25(2)(c)e.,

provides that if an individual is declared incompetent and a

guardian appointed, the circuit court may "declare that the

individual has incapacity . . . to consent to sterilization, if

the court finds that the individual is incapable of

understanding the nature, risk, and benefits of sterilization,

after the nature, risk, and benefits have been presented in a

form that the individual is most likely to understand." Yet it

was not until 25 years after Eberhardy that this statute was

enacted! 2005 Wis. Act 387, § 100 (effective May 25, 2006). As

Justice Callow pointed out in his Eberhardy dissent, "[a]part

from any aversion legislators may have to addressing a

controversial question, there is the added practical problem of

the press of legislative business. The thousands of problems

presented to the legislature tax its ability to respond

thoughtfully to the multiple problems of society." 102 Wis. 2d

at 605. As the history following Eberhardy reveals, the Sheila

W.s of this state may have to wait a long time before the
legislators on white horses arrive. In the meantime, the actual

problem of what to do with minors who refuse life-saving

treatment will remain unresolved.

¶52 Additionally, the question of the mature minor

doctrine is not just an abstract academic debate. The decision

over whether this state should adopt such a doctrine will

literally have life or death consequences for people such as

Sheila W. Currently, the circuit courts have no standard to

apply when presented with a minor who refuses life-saving

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medical care. Frighteningly, this raises the specter that a

child's life could depend on which judge within a county is

assigned the case.3 Unfortunately, four members of this court

refuse to offer any guidance to circuit court judges who must

actually adjudicate these difficult situations.

¶53 The case is just as moot now as it was when we granted

the petition for review back on January 15. If the court did

not want to decide the issues presented in this case, it should

not have granted the petition for review, ordered briefing, and

then held oral argument. What function is served when a law-

developing court takes a summary order declaring a case moot and

affirms it with a summary order declaring a case moot? Life is

about hard choices, particularly for members of a state high

court. Unfortunately, today the only thing the parties receive

for their time and trouble before this court is abdication

dressed as modesty.

¶54 I am authorized to state that Justices PATIENCE DRAKE

ROGGENSACK and ANNETTE KINGSLAND ZIEGLER join this dissent.

3
The concurrence states that we should not adopt the mature
minor doctrine because it would put courts "in the unenviable
position of either prohibiting or permitting a minor's suicidal
conduct." Concurrence, ¶34. Aside from inappropriately
assuming that this court would adopt the doctrine if the case
were not moot, the concurrence's statement is ironic because the
decision of this court to not answer the questions presented is
what will put circuit courts in the position of making ad hoc
life or death decisions. If Sheila were to relapse and require
blood transfusions again before her eighteenth birthday, how
would the members of the majority advise a court to handle the
matter? Would it have been wrong for the circuit court judge in
this case to allow Sheila to die? Inaction by the majority will
lead to the patchwork approach the concurring Justice is
attempting to avoid.

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