                                                                 2013 WI 68

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2012AP665
COMPLETE TITLE:         In the matter of the mental commitment
                        of Samuel J. H.:

                        Manitowoc County,
                                  Petitioner-Respondent,
                             v.
                        Samuel J. H.,
                                  Respondent-Appellant.


                           ON CERTIFICATION FROM THE COURT OF APPEALS

OPINION FILED:          July 11, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          February 26, 2013

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Manitowoc
   JUDGE:               Jerome L. Fox

JUSTICES:
   CONCURRED:           ABRAHAMSON, C.J., concurs. (Opinion filed.)
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
       For the respondent-appellant, there were briefs by Donald
T. Lang, assistant state public defender, and oral argument by
Donald T. Lang.


       For the petitioner-respondent, there was a brief by Ryan
O’Rourke, assistant corporation counsel, and Manitowoc County,
and oral argument by Ryan O’Rourke.
                                                                 2013 WI 68
                                                         NOTICE
                                           This opinion is subject to further
                                           editing and modification.   The final
                                           version will appear in the bound
                                           volume of the official reports.
No.   2012AP665
(L.C. No.   2003ME63)

STATE OF WISCONSIN                     :            IN SUPREME COURT

In the matter of the mental commitment of
Samuel J.H.:



Manitowoc County,
                                                              FILED
            Petitioner-Respondent,                       JUL 11, 2013

      v.                                                    Diane M. Fremgen
                                                         Clerk of Supreme Court

Samuel J.H.,

            Respondent-Appellant.




      APPEAL from an order of the Manitowoc County Circuit Court,

Jerome L. Fox, Judge.   Affirmed.



      ¶1    ANNETTE KINGSLAND ZIEGLER, J.      This appeal is before

the court on certification by the court of appeals, pursuant to

Wis. Stat. § 809.61 (2011-12).1      On May 31, 2011, Samuel J.H.

(Samuel) was committed to the care and custody of the Manitowoc

County Human Services Department (the Department).              Samuel was

      1
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
                                                                                  No. 2012AP665



initially placed in outpatient care.                       On September 22, 2011, the

Department transferred Samuel to an inpatient facility because

of erratic and delusional behavior.

        ¶2     Samuel petitioned the Manitowoc County Circuit Court

for a review of his transfer, arguing that he was entitled to a

hearing      within       ten     days     of    his    transfer     to     the     inpatient

facility under Wis. Stat. § 51.35(1)(e) and under Fond du Lac

Cnty. v. Elizabeth M.P., 2003 WI App 232, 267 Wis. 2d 739, 672

N.W.2d 88.       He also petitioned for a transfer back to outpatient

status, arguing that was the proper remedy for failure to hold

the review hearing within ten days of his transfer.                               The circuit

court    held       a   hearing     on     Samuel's        petitions,     and      it   denied

Samuel's petition to transfer back to outpatient status.                                     The

circuit court concluded that a patient is entitled to a hearing

within ten days of his transfer to a more restrictive placement

under    § 51.35(1)(e)3. only              when      the      transfer    is    based      on   a

violation of treatment conditions.                         The court denied Samuel's

petition to transfer, finding that his transfer to the inpatient

facility       was      not      based     on    a     violation     of     his     treatment

conditions,         but    rather    was        based    on    reasonable      medical       and

clinical judgment.

        ¶3     Samuel appealed, and the court of appeals certified

the     case    to        this     court        to   clarify      whether       Wis.       Stat.

§ 51.35(1)(e)           requires     a     hearing       within     ten     days     for    all

transfers to a more restrictive placement.                         The court of appeals

stated       that       language     in     Elizabeth          M.P.——that      "[t]ransfers

pursuant to § 51.35(1)(e) require a hearing within ten days"——is
                                                 2
                                                                             No. 2012AP665



arguably       contrary   to     a   plain    interpretation         of   the    statute,

which        differentiates      between      transfers       made    for     reasonable

medical        and    clinical       judgment       under     § 51.35(1)(e)1.,        and

transfers made for "an alleged violation of a condition of a

transfer to less restrictive treatment" under § 51.35(1)(e)2.-3.

Elizabeth M.P., 267 Wis. 2d 739, ¶26.                       However, the court of

appeals       was    without   power     to       overrule,   modify,       or   withdraw

language from Elizabeth M.P.

        ¶4     We granted the court of appeals' certification and now

affirm the order of the circuit court.

     ¶5        We hold that Wis. Stat. § 51.35(1)(e) does not require

a hearing to be conducted within ten days of a transfer when the

transfer is based on reasonable medical and clinical judgment

under § 51.35(1)(e)1.            We withdraw any language from Elizabeth

M.P. to the contrary.2               We further hold that a hearing must be




        2
       Because two statements in the Elizabeth M.P. decision are
contrary to the plain language of Wis. Stat. § 51.35(1)(e),
stare decisis does not require that we adhere to that precedent.
Thus, we withdraw the following language from Elizabeth M.P.:
"Transfers pursuant to § 51.35(1)(e) require a hearing within
ten   days,"   267  Wis. 2d 739,   ¶26,  and   "Wisconsin  Stat.
§ 51.35(1)(e) mandates that a patient transferred to a more
restrictive environment receive a hearing within ten days of
said transfer," id., ¶28.

                                              3
                                                     No. 2012AP665



conducted within ten days of a transfer when (1) the transfer

"results in a greater restriction of personal freedom for the

patient for a period of more than 5 days" or is "from outpatient

to inpatient status for a period of more than 5 days" and (2)

the transfer is based on "an alleged violation of a condition of

a transfer to less restrictive treatment" under § 51.35(1)(e)2.-

3.

          I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

     ¶6   On May 31, 2011, Samuel was committed to the care and

custody of the Department.3    Samuel was initially placed at an

outpatient facility, Newport Group Home in Manitowoc, Wisconsin.

On September 22, 2011, the Department transferred Samuel from an

outpatient to an inpatient facility.    The transfer form stated

the reason for the transfer:


     Specifically, the doctrine of stare decisis applies to
published court of appeals opinions and requires this court "to
follow court of appeals precedent unless a compelling reason
exists to overrule it."    Wenke v. Gehl Co., 2004 WI 103, ¶21,
274 Wis. 2d 220, 682 N.W.2d 405 (citing State v. Douangmala,
2002 WI 62, ¶42, 253 Wis. 2d 173, 646 N.W.2d 1). See also Wis.
Stat. § 752.41(2) (published court of appeals opinions "have
statewide precedential effect").     Here, a compelling reason
exists to withdraw the language in Elizabeth M.P. that directly
conflicts with the plain language of the statute. In so doing,
we are not acting contrary to the principle of stare decisis
because stare decisis does not require us "to adhere to
interpretations of statutes that are objectively wrong." Wenke,
274 Wis. 2d 220, ¶21 (citing Douangmala, 253 Wis. 2d 173, ¶42).
The portions of Elizabeth M.P. that do not comport with the
plain language of Wis. Stat. § 51.35(1)(e) are withdrawn because
they are objectively wrong.
     3
       The record in this appeal does not contain documents
relating to Samuel's underlying mental health commitment.

                                4
                                                                                 No. 2012AP665


          Samuel   has   been  presenting  as   increasingly
     delusional.   Today he was 'chanting' and then punched
     his wall and door, putting a hole in the door. Samuel
     is the subject of a Mental Health Commitment and is
     being transferred inpatient.   Samuel is presenting as
     delusional.    His thoughts are confused and he is
     agitated.   He repeatedly stated he put a hole in the
     door because 'someone was shot down and should be
     taken care of.'     Sam states he is at [Holy Family
     Medical Center] because he is a 'person of interest.'
On   September     22,    2011,        Samuel      was     transferred           to   Nicolet

Psychiatric     Center,    and     he     was      subsequently             transferred       to

Trempealeau     County    Health        Care      Center,       both        of     which    are
inpatient facilities.

     ¶7    On      September      22,        2011,       the        same     day      he     was

transferred, Samuel was provided with a form entitled "Written

Notice    of    Wis.     Stat.     § 51.35(1)(e)1. Rights."                        The      form

reflected that Samuel was being transferred from outpatient to

inpatient status.         The     form    stated         that       the    Department       must

inform    Samuel    orally       and    in       writing       of     his    rights        under

§ 51.35(1)(e)1.        The form listed those rights: "[t]he right to

contact an attorney and a member of Subject's immediate family,"

"[t]he right to have counsel provided at public expense . . . if

Subject is a child or is indigent," and "the right to petition a

court in the county in which the patient is located or the

committing court for a review of the transfer."                               A Department

employee signed the form and thus certified that she read Samuel

his rights and provided him a written copy of the form at the

time of transfer.         The form contained contact information for

the Manitowoc County Public Defender's office.



                                             5
                                                                         No. 2012AP665



       ¶8    On November 7, 2011, Samuel wrote Judge Jerome L. Fox

of the Manitowoc County Circuit Court a letter that stated "I am

disturbed that my outpatient status was changed to inpatient

without due procedure."              On November 14, 2011, the judge sent a

copy   of    Samuel's       letter    to   the   Manitowoc    County     Corporation

Counsel office.         The judge's cover letter to the County stated

that "I assume this triggers a hearing under § 51.35(1)(e)."

       ¶9    On    November     15,    2011,     Assistant    Corporation       Counsel

Ryan O'Rourke responded to the judge in a letter.                          Manitowoc

County took the position that Samuel was entitled to a review

hearing by the circuit court because Samuel's transfer was for

reasonable        medical     and     clinical     judgment    under     Wis.     Stat.

§ 51.35(1)(e)1.,        but         that   he     was   not     entitled        to    an

administrative hearing within ten days of the transfer because

he was not transferred for a violation of treatment conditions

under § 51.35(1)(e)2.-3.

       ¶10   The Department referred the matter to the Manitowoc

County Public Defender's office.                   On   November   22,    2011,      the
Manitowoc     County    Public        Defender's    office    appointed     attorney

Jewel Scharenbroch to represent Samuel.                  On November 30, 2011,
Samuel, by his attorney, filed a petition for review of his

transfer and a petition to transfer from inpatient to outpatient
treatment for failure to hold a timely review hearing.                          Samuel

argued that under Wis. Stat. § 51.35(1)(e) and Elizabeth M.P., a

patient is entitled to a review hearing within ten days of the

transfer when the transfer results in more restrictive placement

and lasts for more than five days, regardless of the reason for
                                            6
                                                                                          No. 2012AP665



transfer.          Samuel       argued     that         according         to     Elizabeth           M.P.,

because he did not receive a hearing within ten days of his

transfer      under        § 51.35(1)(e)3.,                  he    must        be     returned         to

outpatient status.           267 Wis. 2d 739, ¶28.

      ¶11     On    December       19,     2011,        the       Manitowoc         County       Circuit

Court,      Judge       Jerome     L.     Fox,         held        a    hearing          on     Samuel's

petitions.          At    the     hearing,         the       court      heard       testimony         from

Samuel      and    from     Lori     Fure,         Samuel's            social       worker.           Fure

testified     that        Samuel    was       transferred              because      he    had       become

"increasingly           psychotic       and    his       behavior         had       become       out   of

control."           She    testified          that       "[h]is          medication           had    been

increased and yet he continued to become more psychotic and more

out of control to the point where he was totally delusional and

punching holes in the wall."                       She further stated that the group

home could no longer handle Samuel.                           Based on her experience as

a social worker and her understanding of Samuel's case, Fure

testified that inpatient care was the least restrictive level of

treatment appropriate for Samuel at that time.

      ¶12    Fure        denied    that       Samuel         was       transferred        because       of
violations of his treatment conditions.                                   Fure testified that

Samuel was subject to treatment conditions while he was placed
in   outpatient          care,     including,            inter         alia,     "[r]efrain          from

consuming     alcoholic          beverages"            and    "[r]efrain         from         any    acts,

attempts, or threats to harm myself or others."                                     Fure testified

that Samuel had consumed alcohol a couple of days prior to his

transfer,         but    "that's     not       a    reason         to     transfer            somebody."

Further, though Samuel had made vaguely threatening statements,
                                                   7
                                                                                No. 2012AP665



Fure testified that Samuel had not been transferred because of

an act or a threat to harm himself or others.

      ¶13      Samuel also testified.              His attorney asked him why he

punched the          door,    and Samuel       responded         that    "[o]ne       plane       of

reality was shot down in my——my real world, and when the two

worlds met up, I could tell that I wanted to make it concrete

and meet up with my mental state of affairs."

      ¶14      The court found that the reason for Samuel's transfer

was     his    delusional       behavior,         not    for      a    violation       of        his

treatment       conditions.            The     court       interpreted          Wis.        Stat.

§ 51.35(1)(e) as requiring a hearing within ten days only when a

transfer is made for a violation of treatment conditions, not

when a        transfer is made         for    reasonable         medical       and     clinical

judgment.       However, the circuit court concluded that language in

Elizabeth       M.P.    could     be   interpreted         as     requiring       a    hearing

within    ten    days        regardless   of       whether       the    subject       is    being

transferred       for    reasonable          medical       and    judgment        or       for     a

violation       of     treatment       conditions.              267     Wis. 2d 739,             ¶26

("Transfers pursuant to § 51.35(1)(e) require a hearing within

ten   days.").          The    circuit    court         noted,    however,      that        other

language in Elizabeth M.P. in fact differentiated the two types

of transfers.          The circuit court suggested that Elizabeth M.P.'s

statement——requiring a hearing within ten days for all transfers

under     § 51.35(1)(e)——related              to     its     discussion         of      whether

hearings       under    § 51.35(1)(e)3. were              mandatory       or    permissive.

See id., ¶¶20-25.              In other words, the statement in Elizabeth


                                              8
                                                                          No. 2012AP665



M.P. could be read as "a hearing under (1)(e)3. is mandatory,

not permissive."

     ¶15   The circuit court concluded that it was not necessary

to hold a hearing within ten days for Samuel, since his transfer

was based on reasonable medical and clinical judgment rather

than a violation of a treatment condition.                    As Samuel was not

entitled to a hearing within ten days, the circuit court denied

his petition for a transfer from inpatient to outpatient care.

The circuit court concluded that inpatient care was the least

restrictive placement appropriate for Samuel.

    ¶16    On March 27, 2012, Samuel filed a notice of appeal

from the circuit court's order.             On September 5, 2012, the court

of appeals certified the question of whether Elizabeth M.P.'s
statement——requiring      a   hearing       within    ten    days   for     transfers

made under Wis. Stat. § 51.35(1)(e)——is contrary to the plain

language of the statute.            The court of appeals noted that the

inconsistency in Elizabeth M.P. was apparent, but that it was

powerless to address the inconsistency.                See Cook v. Cook, 208

Wis. 2d 166,    189-90,    560   N.W.2d 246         (1997)    (holding      that    the

court of appeals may not overrule, modify, or withdraw language

from its prior published decisions).

     ¶17   On   November      14,    2012,     we    accepted       the     court   of

appeals' certification.

                          II. STANDARD OF REVIEW

     ¶18   The question presented in this case is whether Wis.

Stat. § 51.35(1)(e) mandates a hearing within ten days for all

transferred patients, including those transferred for reasonable
                                        9
                                                                          No. 2012AP665



medical and clinical judgment under § 51.35(1)(e)1., or whether

the mandate applies only to those transferred due to a violation

of    treatment         conditions         under      § 51.35(1)(e)2.-5.              The

interpretation and application of § 51.35 present questions of

law that we review de novo while benefitting from the analyses

of   the    court      of   appeals    and       circuit   court.      See    State   v.

Ziegler,       2012    WI   73,    ¶37,    342     Wis. 2d 256,     816   N.W.2d 238;

Heritage Farms, Inc. v. Markel Ins. Co., 2012 WI 26, ¶24, 339

Wis. 2d 125, 810 N.W.2d 465.                     The circuit court made factual

findings       about    the   reason       for    Samuel's   transfer,       and   "[w]e

uphold     a   circuit      court's       findings    of   fact     unless   they     are

clearly     erroneous."           Phelps    v.    Physicians   Ins.    Co.    of Wis.,

Inc., 2009 WI 74, ¶34, 319 Wis. 2d 1, 768 N.W.2d 615.

                                     III. ANALYSIS

      ¶19      We hold that Wis. Stat. § 51.35(1)(e) does not require

a hearing to be conducted within ten days of a transfer when the

transfer is based on reasonable medical and clinical judgment

under § 51.35(1)(e)1.              We withdraw any language from Elizabeth

M.P. to the contrary.              We further hold that a hearing must be

conducted within ten days of a transfer when (1) the transfer

"results in a greater restriction of personal freedom for the

patient for a period of more than 5 days" or is "from outpatient

to inpatient status for a period of more than 5 days" and (2)

the transfer is based on "an alleged violation of a condition of

a transfer to less restrictive treatment" under § 51.35(1)(e)2.-

3.


                                             10
                                                                             No. 2012AP665



        ¶20    "'[T]he         purpose    of     statutory     interpretation       is    to

determine what the statute means so that it may be given its

full,      proper,       and    intended        effect.'"       Heritage     Farms,      339

Wis. 2d 125, ¶26 (quoting State ex rel. Kalal v. Circuit Court

for     Dane       Cnty.,       2004     WI     58,    ¶44,   271     Wis. 2d 633,       681

N.W.2d 110).              Statutory           interpretation     "'begins       with     the

language of the statute.                      If the meaning of the statute is

plain,        we    ordinarily         stop      the     inquiry.'"         Kalal,       271

Wis. 2d 633, ¶45 (quoting Seider v. O'Connell, 2000 WI 76, ¶43,

236 Wis. 2d 211, 612 N.W.2d 659).                      "Statutory language is given

its     common,         ordinary,        and     accepted     meaning,     except      that

technical or specially-defined words or phrases are given their

technical          or    special       definitional         meaning."       Kalal,       271

Wis. 2d 633, ¶45.              Statutory language is interpreted in context,

and it must be understood in relation to surrounding language

and surrounding statutes.                 Id., ¶46.       Courts interpret statutes

"to avoid absurd or unreasonable results."                          Id.   When statutory

interpretation yields a plain meaning, extrinsic sources need

not   be      consulted,        "although       legislative    history     is   sometimes

consulted to confirm or verify a plain-meaning interpretation."

Id., ¶¶46, 51.

        ¶21    Wisconsin Stat. § 51.35(1), which governs the transfer

of patients and residents, states in relevant part:

           (a) Subject to pars. (b), (d), and (dm), the
      department or the county department under s. 51.42 or
      51.437 may transfer any patient or resident who is
      committed to it, or who is admitted to a treatment
      facility under its supervision or operating under an
      agreement with it, between treatment facilities or

                                                 11
                                                No. 2012AP665


from a treatment facility into the community if the
transfer is consistent with reasonable medical and
clinical judgment, consistent with s. 51.22(5), and,
if the transfer results in a greater restriction of
personal freedom for the patient or resident, in
accordance with par. (e).

    . . . .

     (e)1. Whenever any transfer between different
treatment facilities results in a greater restriction
of personal freedom for the patient and whenever the
patient is transferred from outpatient to inpatient
status, the department or the county department
specified under par. (a) shall inform the patient both
orally and in writing of his or her right to contact
an attorney and a member of his or her immediate
family, the right to have counsel provided at public
expense, as provided under s. 51.60, and the right to
petition a court in the county in which the patient is
located or the committing court for a review of the
transfer.

     2. In addition to the rights and requirements
specified in subd. 1., within 24 hours after any
transfer which results in a greater restriction of
personal freedom for the patient for a period of more
than 5 days or any transfer from outpatient to
inpatient status for a period of more than 5 days and
if the transfer is due to an alleged violation of a
condition of a transfer to less restrictive treatment,
the department or the county department specified
under par. (a) shall ensure that the patient is
provided a written statement of the reasons for the
transfer and the facts supporting the transfer and
oral and written notice of all of the following:

         a. The requirements and rights under subds.
    3. to 5.

         b. The patient's right to counsel.

         c. The patient's right to have counsel
    provided at public expense, as provided under s.
    51.60.

         d. The rights of the patient's counsel to
    investigate the facts specified in the written

                          12
                                                                      No. 2012AP665


            statement of reasons for the transfer, to consult
            with the patient prior to the patient's waiving a
            hearing under subd. 3., to represent the patient
            at all proceedings on issues relating to the
            transfer, and to take any legal steps necessary
            to challenge the transfer.

           3. Within 10 days after the transfer specified in
      subd. 2., a hearing shall be held on whether the form
      of treatment resulting from the transfer is least
      restrictive   of    the  patient's    personal   liberty,
      consistent with the treatment needs of the patient,
      and on whether the patient violated a condition of a
      transfer to less restrictive treatment that resulted
      in a transfer under subd. 2.       The hearing shall be
      held before a hearing officer designated by the
      director of the facility to which the patient has been
      transferred. The hearing officer may not be a person
      who has had direct responsibility for making treatment
      decisions for or providing treatment to the subject
      individual.   The patient may appear at the hearing,
      either personally or by counsel, and may present and
      cross-examine    witnesses   and   present    documentary
      evidence.   The hearing may be waived by the patient
      only after consultation with counsel. Any waiver made
      shall be in writing and witnessed by the patient's
      counsel.
Wis. Stat. § 51.35(1)(a), (e) (emphasis added).

      ¶22   Samuel    argues   that     all    transfers     under    Wis.    Stat.

§ 51.35(1)(e) require a review hearing within ten days of the
transfer.      He     points   to   language      in    Elizabeth     M.P.    that
"[t]ransfers pursuant to § 51.35(1)(e) require a hearing within

ten   days."    267    Wis. 2d 739,     ¶26.      Samuel     argues    that    this

interpretation reinforces the policy that a patient who is the

subject of a mental health commitment has a right to the least

restrictive placement necessary to address his or her mental

health issues.       See, e.g., Wis. Stat. § 51.001(2) ("To protect

personal    liberties,    no   person    who    can    be   treated    adequately


                                        13
                                                                        No. 2012AP665



outside of a hospital, institution or other inpatient facility

may be involuntarily treated in such a facility.").                  Samuel also

points out that if the two types of transfers are subject to

different procedures, the reason for transfer can be manipulated

to avoid a hearing within ten days.                 Finally, Samuel points to

case law holding that statutory time limits in civil commitment

proceedings are strictly enforced, and failure to comply with

time limits deprives a court of jurisdiction over the person who

is the subject of the proceedings.

       ¶23    Manitowoc County argues that the plain language of the

statute      requires   a   hearing    within       ten   days   only     when    the

transfer is based on a violation of a treatment condition.                         See

Wis. Stat. § 51.35(1)(e)2.-3. (stating that "if the transfer is

due to an alleged violation of a condition of a transfer to less

restrictive treatment" a hearing shall be held "[w]ithin 10 days

after the transfer").          The County further argues that if there

must   be    a   hearing    within    ten    days   for   all    transfers       under

§ 51.35(1)(e), that interpretation would effectively eliminate

transfers for reasonable medical and clinical judgment.                           The

subdivision that sets out the Department's burden of proof at

the hearing within ten days requires it to prove that there was

a violation of a treatment condition: "[t]he department seeking

the transfer has the burden of proving . . . that the patient

violated a condition of a transfer to less restrictive treatment

that resulted in a transfer under subd. 2."                      § 51.35(1)(e)4.

Additionally, the County argues that the statements at the end

of Elizabeth M.P.——requiring a hearing within ten days for all
                                        14
                                                                                     No. 2012AP665



transfers           under        § 51.35(1)(e)——are           contrary        to     the      plain

language of the statute and contrary to the reasoning of the

opinion           itself.         See    Elizabeth       M.P.,       267    Wis. 2d 739,          ¶17

("However, § 51.35(1)(e)1 and (1)(e)2 seem to indicate different

forms        of     transfers. . . . [S]ubdivision                   2    exists     to     further

protect        the       rights     of   those     whose       transfer"       is     due    to    a

violation of a treatment condition).                          Finally, the County states

that        though       Samuel     makes    compelling        policy       arguments,       those

arguments          should      be    made    to    the    legislature         because       policy

arguments cannot overcome the plain language of § 51.35(1)(e).

       ¶24        We conclude that the plain language of the statute

does not make the hearing within ten days of a transfer under

Wis.        Stat.       § 51.35(1)(e)3. applicable              to       transfers     based      on

reasonable medical and clinical judgment under § 51.35(1)(e)1.

Several reasons support our interpretation.                              First, subdivisions

(1)(e)1. and             (1)(e)2. provide         different      rights       and     procedures

depending           on     the      nature    of       the     transfer.            Subdivision

(1)(e)1. provides                 rights4     for        patients          transferred         for

"reasonable medical and clinical judgment," see § 51.35(1)(a),
when the transfer "results in a greater restriction of personal

freedom           for    the     patient"     or       when    the       transfer     is      "from


        4
       Under Wis. Stat. § 51.35(1)(e)1., the department must
inform the patient of the right to contact an attorney and a
member of his or her immediate family, the right to have an
attorney provided at public expense under Wis. Stat. § 51.60,
and "the right to petition a court in the county in which the
patient is located or the committing court for a review of the
transfer."

                                                  15
                                                                     No. 2012AP665



outpatient       to     inpatient    status,"   collectively   discussed      as   a

more restrictive transfer.             Subdivision (1)(e)2. provides rights5

"[i]n addition to the rights and requirements specified in subd.

1." when a more restrictive transfer lasts "for a period of more

than 5 days" and is "due to an alleged violation of a condition

of   a       transfer    to   less   restrictive     treatment."      Thus,    the

legislature differentiated between the two types of transfers by

providing       additional     protections      to   a   patient   when   a   more

restrictive transfer lasts for longer than five days and results

from an alleged violation of a treatment condition.6

     ¶25       Second, consistent with the differentiation in rights

under subdivisions (1)(e)1. and (1)(e)2., the procedures for the

hearing within ten days of a transfer under subdivision (1)(e)3.

are made applicable only to more restrictive transfers under


         5
       Under Wis. Stat. § 51.35(1)(e)2., the department must
provide the patient with "a written statement of the reasons for
the transfer and the facts supporting the transfer."         The
department must also provide oral and written notice of the
hearing procedures under subdivisions (1)(e)3.-5., the rights to
counsel provided at public expense under Wis. Stat. § 51.60, and
the rights of the patient's counsel in representing the patient
throughout the review of the patient's transfer.
     6
       Under both Wis. Stat. § 51.35(1)(e)1. and (1)(e)2., the
patient has the "right to have counsel provided at public
expense, as provided under s. 51.60." Section 51.60, governing
appointment of counsel, provides that for adults "[i]n any
situation under this chapter in which an adult individual has a
right to be represented by counsel, the individual shall be
referred as soon as practicable to the state public defender,
who shall appoint counsel for the individual under s. 977.08
without   a    determination  of   indigency."      Wis.  Stat.
§ 51.60(1)(a).   The individual may waive counsel if the waiver
is knowing and voluntary. § 51.60(1)(b).

                                          16
                                                                                    No. 2012AP665



(1)(e)2.——those lasting longer than five days and resulting from

an   alleged         violation       of    a    treatment       condition.          Subdivision

(1)(e)3. states, in relevant part: "Within 10 days after the

transfer       specified        in        subd.     2.,   a     hearing      shall       be    held

on . . . whether the patient violated a condition of a transfer

to less restrictive treatment that resulted in a transfer under

subd. 2." (Emphasis added.)                       It would be contrary to the plain

language       of    the   statute         to     interpret      subdivision        (1)(e)3. as

providing       a     hearing    within         ten     days    for     transfers     made      for

reasonable medical and clinical judgment.                               The plain language

applies the transfer             review           hearing      within      ten   days,    as    set

forth     in    subdivisions          (1)(e)3.-5.,             only   to    transfers         under

(1)(e)2.——those resulting in a more restrictive placement that

last for more than five days and that are a result of an alleged

violation of a condition of treatment.

      ¶26      Third, we are persuaded by the County's argument that

Samuel's interpretation of the statute leads to an absurd result

because        his    interpretation              could   effectively            eliminate     the

County's ability to transfer a patient for reasonable medical
and clinical judgment, or could put the County in the untenable

position of being required to allege and prove that the transfer
was due to a violation of a treatment condition even if the

transfer was only for reasonable medical and clinical judgment.
A transfer based upon reasonable medical and clinical judgment

can differ from a transfer based upon a violation of a treatment

condition.            Under   the     statute,          when    the     County     transfers     a

patient based on reasonable medical and clinical judgment, the
                                                   17
                                                                                     No. 2012AP665



County need not prove              that       the    patient      violated        a    treatment

condition, but it does need to prove that the transfer was based

on reasonable medical and clinical judgment.                                  See Wis. Stat.

§ 51.35(1)(a),          (1)(e)1.         In     fact,       the     statute       specifically

allows      for    transfers       that       are     "consistent          with       reasonable

medical     and     clinical      judgment."            Id.         On    the     other     hand,

§ 51.35(1)(e)4., the subdivision that requires a hearing within

ten days for certain transfers, requires that the "department

seeking the transfer has the burden of proving . . . that the
patient violated a condition of a transfer to less restrictive

treatment that resulted in a transfer under subd. 2."                                        Wis.

Stat.     § 51.35(1)(e)4. (emphasis                  added).             If     we     interpret

§ 51.35(1)(e) as requiring a hearing within ten days for all

transfers,        not    just    those     that       are     for    a     violation        of   a

treatment condition, the County would be required to prove a

violation of a treatment condition, even if the transfer was

based on reasonable medical and clinical judgment.                                    The County

should not be asked to falsify its reasons for transfer.                                    Thus,

it is absurd to interpret the statute to provide for a hearing

within ten days for all transfers under § 51.35(1)(e) and to

require the County to prove a violation of a treatment condition

regardless        of    the   reason      for       transfer.         We      must     interpret

statutory language reasonably, "to avoid absurd or unreasonable

results."     Kalal, 271 Wis. 2d 633, ¶46.

      ¶27     The legislative history of Wis. Stat. § 51.35 confirms

our   plain       language      interpretation.              Id.,     ¶51      (stating      that

"legislative history is sometimes consulted to confirm or verify
                                               18
                                                              No. 2012AP665



a   plain-meaning   interpretation").     A    prior    version     of    the

statute did not address transfers due to alleged violations of

treatment conditions.     See Wis. Stat. § 51.35(1)(e) (1985-86).

In 1987, the legislature amended § 51.35(1)(e):

     Note: The repeal and recreation of s. 51.35(1)(e) by
     this bill creates procedural rights in addition to
     those in current law for persons who are transferred
     between facilities or from outpatient to inpatient
     status and applies these rights to patients who, due
     to an alleged violation of a condition of a transfer
     to less restrictive treatment: (1) are transferred to
     a more restrictive facility for longer than 5 days; or
     (2) or transferred from outpatient to inpatient status
     for more than 5 days.
See 1987 Wis. Act 366, § 14 (emphasis added).          One of the newly
created procedural rights in 1987 Wis. Act 366 was a right to an

administrative hearing within ten days of the more restrictive

transfer.     Id.   The   legislative   note   to   1987    Wis.    Act   366

reinforces that the hearing within ten days was meant to be

applicable only to more restrictive transfers resulting from an

alleged violation of a treatment condition.

     ¶28    Considering   our   interpretation         of    Wis.      Stat.

§ 51.35(1)(e), we next turn to consider whether Elizabeth M.P.

comports with our interpretation.       In that case, Elizabeth was

the subject of a mental health commitment, was initially treated
at an inpatient facility, and in March 2002, was transferred to

an outpatient facility.    Elizabeth M.P., 267 Wis. 2d 739, ¶¶2-3.
On May 28, 2002, a notice was filed to transfer Elizabeth from

outpatient to inpatient care under § 51.35(1).              Id., ¶3.      An




                                 19
                                                                               No. 2012AP665



affidavit       from       Fond     du    Lac's      corporation     counsel     gave    the

reasons for Elizabeth's transfer:

           An affidavit by the corporation counsel for Fond
      du Lac county, attached to this notice, indicated that
      since Elizabeth's outpatient placement she had refused
      to take her court-ordered medication, had become
      delusional, argumentative and aggressive, and had
      failed   to  take   her   psychotropic  medication   as
      prescribed. The affidavit further indicated that
      Elizabeth's   mental    condition   had   substantially
      deteriorated, that she was unable to meet the demands
      of everyday life, and that she had violated conditions
      of her commitment 'in that she has failed to comply
      with recommended treatment.'
Id., ¶4.         Elizabeth filed a motion for immediate release from

inpatient treatment, arguing that she was entitled to and did

not       receive      a    hearing       within      ten    days   under      Wis.    Stat.

§ 51.35(1)(e)3.              Id., ¶7.         The circuit         court   concluded     that

Elizabeth's transfer was made pursuant to subdivision (1)(e)1.,

not subdivisions (1)(e)2.-3., and she was therefore not entitled

to    a     hearing        within      ten    days.         Id.     The    circuit     court

subsequently           conducted          a    transfer       review      hearing       under

§ 51.35(1)(e)1. and approved of the transfer, "finding that the
least restrictive environment consistent with Elizabeth's needs

was inpatient status."                 Id., ¶9.       Elizabeth appealed the circuit
court's approval of her transfer.                     Id.

      ¶29       The    court      of     appeals     reviewed     "whether     the    circuit

court had jurisdiction to transfer Elizabeth to inpatient status

when judicial review of the County's decision to transfer her

was       not   held       within      ten    days    as     required     by   Wis.    Stat.




                                                20
                                                                       No. 2012AP665



§ 51.35(1)(e)3."         Id., ¶10.      The court of appeals interpreted

§ 51.35(1)(e):

       [Subdivisions]   51.35(1)(e)1   and (1)(e)2   seem  to
       indicate different forms of transfers. The provisions
       suggest that while only one transfer provision and its
       various subdivisions all serve to protect the rights
       of patients, subdivision 2 exists to further protect
       the rights of those whose transfer 'results in a
       greater restriction of personal freedom for the
       patient for a period of more than 5 days or any
       transfer from outpatient to inpatient status for a
       period of more than 5 days' where the transfer 'is due
       to an alleged violation of a condition of a transfer
       to less restrictive treatment.'
Id.,    ¶17     (quoting       Wis.   Stat.       § 51.35(1)(e)2.)         (footnote
omitted).       The court concluded that Elizabeth's transfer had

been   pursuant     to    subdivision       (1)(e)2. because        "the    document

affecting her transfer relates the rights that are enumerated in

§ 51.35(1)(e)3 to        5,"    including     a   right   to   a   review    hearing

within ten days of her transfer.             Id., ¶18.     Further, one of the

reasons for her transfer was her alleged failure to take court-

ordered medications as her treatment conditions required.                       Id.,

¶19.
       ¶30    The court then considered whether a hearing within ten

days under Wis. Stat. § 51.35(1)(e)3. is mandatory or directory.
Id., ¶20.       The court concluded that a hearing within ten days

under § 51.35(1)(e)3. is mandatory.               Id., ¶25.        In other words,

there is no discretion in holding a hearing under subdivision

(1)(e)3. because the statute requires that "'a hearing shall be

held.'"      Id., ¶21.




                                        21
                                                                                      No. 2012AP665



        ¶31    However,      the     court    of     appeals,          in   its        concluding

paragraphs,          broadly    stated        that        "[t]ransfers            pursuant        to

§ 51.35(1)(e) require a hearing within ten days."                             Id., ¶26; see

also id., ¶28.          The court did not clearly differentiate between

the two types of transfers when it reached its conclusions.

        ¶32    The    statements       in      the        concluding         paragraphs           of

Elizabeth M.P. do not comport with the plain language of Wis.

Stat. § 51.35(1)(e).               Moreover, the concluding paragraphs are

not consistent with the underlying analysis of the Elizabeth
M.P.    decision,       wherein      the     court       of    appeals      did       distinguish

between transfers under subdivisions (1)(e)1. and (1)(e)3.                                       See

id., ¶17 ("However, § 51.35(1)(e)1 and (1)(e)2 seem to indicate

different      forms    of     transfers. . . . [S]ubdivision                     2    exists     to

further protect the rights of those whose transfer" is due to a

violation of a treatment condition).                          As a result, we withdraw

any     language      in     Elizabeth       M.P.        that     is     contrary         to     our

conclusion that § 51.35(1)(e) does not require a hearing to be

conducted within ten days of a transfer when the transfer is

based     on    reasonable          medical        and        clinical      judgment           under

§ 51.35(1)(e)1.

        ¶33    Applying        our         interpretation              of     Wis.             Stat.

§ 51.35(1)(e) to the facts of this case, we conclude that Samuel

was not entitled to a hearing within ten days of his transfer

under    subdivision         (1)(e)3. because            his    transfer      was       based     on

reasonable medical and clinical judgment, not a violation of a

treatment condition.               Samuel's social worker testified that he

had become "increasingly psychotic and his behavior had become
                                              22
                                                                            No. 2012AP665



out   of   control."      The   transfer       form      stated   that       "Samuel    is

presenting as delusional.             His thoughts are confused and he is

agitated.        He   repeatedly      stated   he     put   a   hole    in     the    door

because 'someone was shot down and should be taken care of.'"

The circuit court was not              clearly      erroneous     in    finding       that

Samuel     had   been   transferred      based      on   reasonable         medical    and

clinical judgment.         See Phelps, 319 Wis. 2d 1, ¶34, (stating

that we uphold a circuit court's factual findings unless they

are clearly erroneous).         We therefore affirm the circuit court's

denial of Samuel's petition to transfer and conclude that he was

not entitled to a hearing within ten days of his transfer under

§ 51.35(1)(e)3. because         his    transfer       was   based      on    reasonable

medical and clinical judgment.7




      7
       A patient who is transferred under subdivision (1)(e)1.——a
transfer for reasonable medical and clinical judgment that
results in a more restrictive placement——is entitled to the
rights as set forth in that subdivision, including "the right to
petition a court in the county in which the patient is located
or the committing court for a review of the transfer."     Samuel
received a review of his transfer in front of the Manitowoc
County Circuit Court, which upheld the transfer because it
concluded that inpatient placement was the least restrictive
treatment appropriate for Samuel's needs.       Samuel does not
challenge that portion of the circuit court's order.

                                         23
                                                      No. 2012AP665



                          IV. CONCLUSION

     ¶34   We hold that Wis. Stat. § 51.35(1)(e) does not require

a hearing to be conducted within ten days of a transfer when the

transfer is based on reasonable medical and clinical judgment

under § 51.35(1)(e)1.   We withdraw any language from Elizabeth

M.P. to the contrary.    We further hold that a hearing must be

conducted within ten days of a transfer when (1) the transfer

"results in a greater restriction of personal freedom for the

patient for a period of more than 5 days" or is "from outpatient

to inpatient status for a period of more than 5 days" and (2)

the transfer is based on "an alleged violation of a condition of

a transfer to less restrictive treatment" under § 51.35(1)(e)2.-

3.

     By the Court.—The order of the circuit court is affirmed.




     Though it may be better practice to hold a hearing within
ten days for all patients transferred under Wis. Stat.
§ 51.35(1)(e), the statute does not mandate that procedure for
transfers based on reasonable medical and clinical judgment
under § 51.35(1)(e)1. At oral argument, Manitowoc County stated
that after Samuel's case, it had in fact been conducting a
hearing within ten days for all patients transferred under
§ 51.35(1)(e), which had not resulted in a great burden on the
County. As the plain language of § 51.35(1)(e) does not require
a hearing within ten days for patients transferred for
reasonable medical and clinical judgment under subdivision
(1)(e)1., arguments to change the procedure should properly be
made to the legislature.

                                24
                                                                      No.    2012AP665.ssa


       ¶35    SHIRLEY S. ABRAHAMSON, C.J.                 (concurring).1          I agree

with the majority opinion and Manitowoc County that the plain

language      of     Wis.     Stat.      § 51.35(1)(e)1.       and    § 51.35(1)(e)2.

provides different procedures, depending on the grounds stated

for the patient's transfer.                 But interpreting these provisions

literally, as the majority opinion does, without examining them

in    the    context     of    Chapter      51    and    without     considering      the

policies      and      procedures          the    legislature        has      explicitly

established in Chapter 51 violates the majority opinion's stated

rules of statutory interpretation requiring it to interpret a

statute reasonably to avoid absurd or unreasonable results.

      ¶36     I    write      not   only    to    disagree     with     the       majority

opinion's statutory interpretation, but also as importantly, to

commend      Manitowoc      County.        When    the    County     discovered       what

happened in the present case, it reviewed its practices.                             As a

result of its self-examination, Manitowoc County is working with

the entities across the State in which patients from Manitowoc

County reside.          The County has adopted procedures that follow

the    statutes,       adhere       to   legislative      policies,         and    protect

patients'         statutory     liberty      rights      and   interests,         without

increasing costs.           Hats off to Manitowoc County!

                                             I

      ¶37     In the present case, Samuel J.H. was transferred on

September 22, 2011, from outpatient status in Manitowoc County

       1
       I concur because I would not, in the present case, turn
the clock back and give Samuel J.H. the ten-day hearing at this
time.   He was afforded judicial review on the merits of his
transfer and his inpatient placement has been upheld.

                                             1
                                                                    No.    2012AP665.ssa


to    inpatient       status    in   an   inpatient     facility     in    Green    Bay,

Wisconsin, about 40 miles away.                  Samuel J.H. stayed in Green Bay

four days and on September 26, 2011, was transferred to the

Trempealeau County Health Care Center in Whitehall, Wisconsin,

about 215 miles from Green Bay.

        ¶38    On   the   day    that     Samuel    J.H.    was    transferred      from

Manitowoc to Green Bay, he was provided with a piece of paper

informing him that he had the following rights:

        1.     The right to contact a lawyer and a member of his

               family;

        2.    The right to have counsel provided at public expense

              "if indigent;" and

        3.     The right to petition a court in the county in which

               he is located or the committing court for review of

               the transfer.

        ¶39    This piece of paper was apparently intended to satisfy

Wis. Stat. § 51.35(1)(e)1. and § 51.60(1)(a).                     I do not think it

does.        At a minimum, the form Samuel J.H. was given seems to

conflict       with    Wis.     Stat.     § 51.60(1)(a)     with    regard     to   the

appointment of counsel.              The form seems to indicate Samuel J.H.

is entitled to counsel at public expense only if he is indigent,

but     § 51.60(1)(a)          explicitly        requires    no     such     indigency

determination.2



        2
       Section § 51.60(1)(a), the section specifically referenced
in § 51.35, explicitly states that the state public defender
shall appoint counsel for any adult who has a right to be
represented by counsel without a determination of indigency.

                                             2
                                                                    No.    2012AP665.ssa


     ¶40   Furthermore, Wisconsin Stat. § 51.60 requires that a

patient "be referred as soon as practicable to the state public

defender . . . ."             Wisconsin         Stat.     § 51.60     is        entitled

"Appointment of Counsel" and reads, in pertinent part:

     (1)   Adults. (a) In any situation under this chapter
           in which an adult individual has a right to be
           represented by counsel, the individual shall be
           referred as soon as practicable to the state
           public defender, who shall appoint counsel for
           the   individual  under   s.   977.08  without a
           determination of indigency (emphasis added).
     ¶41   Samuel      J.H.    was   not       referred    to   the   State       Public

Defender   as   soon    as    practicable.3         Indeed,     the   State       Public


     In contrast, the form given to               Samuel J.H. states the right
to counsel as follows:   "The right               to have counsel provided at
public expense, as provided under                 s. 967.06 and ch. 977, if
Subject is a child or is indigent. .              . ."

     A patient who receives and reads this form could easily be
confused regarding the right to counsel and at whose expense
counsel will be provided.

    At the bottom of the form, the following Note appears:

    In Manitowoc County,             the        Public    Defender        can   be
    reached as follows:

    State of Wisconsin Public Defender
    933 South Eighth Street, Suite 102
    Manitowoc, WI 54220
    (920) 683-4690
    3
       At oral argument, Assistant Corporation Counsel Ryan
O'Rourke touched on the interpretation of the word "refer." He
explained that in Manitowoc County, transferred patients are now
"referred to the public defender's office and then [corporation
counsel] leave[s] it in [the public defender's] hands as to make
the decision on whether someone needs to be appointed. At least
[we] notify [the public defender] and make them aware of it, and
then that agency is responsible for making their own decision as
to whether they're statutorily obligated to appoint counsel."

                                           3
                                                                No.    2012AP665.ssa


Defender was not informed of Samuel J.H.'s transfer until Samuel

J.H. himself wrote a letter to Manitowoc County Circuit Court

Judge Jerome Fox in November 2011.                Judge Fox then informed the

Manitowoc County Corporation Counsel of Samuel J.H.'s letter,

and corporation counsel then referred the matter to the State

Public Defender.       Majority op., ¶¶8-10.

        ¶42   Thus, nearly two months passed between Samuel J.H.'s

transfer      to   inpatient    status      and   his   referral   to    a    public

defender.      But for Samuel J.H.'s own action in sending a letter

to the Manitowoc County Circuit Court, he may never have had

counsel appointed and may never have had a hearing.                    The initial

failure of the County to refer Samuel J.H.'s transfer to the

State    Public    Defender     and   the    County's    placing   the       onus   on

Samuel J.H. to obtain counsel (and advise his family) do not

comport with Wis. Stat. § 51.35(1)(e)1. or § 51.60.                    The purpose

of the statutes and the legislative policy have been skirted in

the present case by the majority opinion and the rights of the

mentally ill have been diluted.

     ¶43      The legislature has declared that any person in need

of care must have "access to the least restrictive treatment"

appropriate for his or her needs and that in order "to protect

personal      liberties,   no   person      who   can   be   treated    adequately




Oral Argument at 51:17-52:35, Manitowoc County v. Samuel J.H.,
2012AP665,                      available                      at
http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?
evhdid=7191 (last visited June 28, 2013).

                                         4
                                                        No.   2012AP665.ssa


outside of a hospital, institution or other inpatient facility

may be involuntarily treated in such a facility."4

     ¶44   The    majority   opinion   does     not   facilitate      least

restrictive      treatment   and   does   not     comport      with    the

legislature's balancing the personal liberty interests of the

individual and the protection of the individual and the public.5



     4
       Wisconsin Stat. § 51.001, "Legislative Policy," reads as
follows:

     (1)   It is the policy of the state to assure the
           provision of a full range of treatment and
           rehabilitation services in the state for all
           mental disorders and developmental disabilities
           and for mental illness, alcoholism and other drug
           abuse.    There shall be a unified system of
           prevention of such conditions and provision of
           services which will assure all people in need of
           care access to the least restrictive treatment
           alternative appropriate to their needs, and
           movement through all treatment components to
           assure continuity of care, within the limits of
           available state and federal funds and of county
           funds required to be appropriated to match state
           funds.

     (2)   To protect personal liberties, no person who can
           be treated adequately outside of a hospital,
           institution or other inpatient facility may be
           involuntarily   treated  in   such   a  facility
           (emphasis added).
     5
       The court has recognized that "[c]urrent mental health
statutes reflect a balance between treating mental illness and
protecting the individual and society from danger on the one
hand,   and   personal  liberty  of   the   individual  on   the
other. . . . Hence, from the first section of [Chapter 51], we
see the tension between the role of the government to provide
caring treatment (sometimes involuntarily and, if necessary, by
force) and the personal liberty of the individual."    Outagamie
County v. Melanie L., 2013 WI 67, ¶¶43, 58, ___ Wis. 2d ___, ___
N.W.2d ___.

                                   5
                                                                         No.    2012AP665.ssa


        ¶45    Samuel    J.H. has      committed          no   crime.        The     State is

providing him treatment because he has a mental illness.                               If the

State is to restrain those with a mental illness, it must guard

their       liberty     interests     scrupulously.              The    legislature         has

explicitly adopted this policy and accorded the individual the

services of the State Public Defender.

      ¶46      The    majority      opinion       has    wandered      off     the    clearly

marked legislative course mandating the protection of the basic

liberty interests of the mentally ill.

      ¶47      The    majority      opinion       does     not     guard       the     liberty

interests of the mentally ill scrupulously.

      ¶48      The       majority       opinion            fails        to           harmonize

§ 51.35(1)(e)1. and § 51.35(1)(e)2. and interpret the provisions

in   the      context    of   the    expressed          legislative     policy        and   the

procedural safeguards.              The majority opinion severely undermines

a patient's statutory procedural rights, including the patient's

statutory       right    to   government-paid            counsel.        In     failing     to

interpret and apply the statutes in a manner that makes sense

and respects the legislative purpose and policy, the majority

opinion allows manipulation of the rights of the mentally ill.6




        6
       The transferring entity determines what kind of hearing
the patient gets by the way it fills out the transfer form.
Samuel J.H. questions whether the entity should be able to
decide not only on the transfer but also on the hearing rights
of the patient.

                                              6
                                                               No.    2012AP665.ssa


Statutes must not be interpreted and applied in such a manner as

to permit manipulation of the procedural rights of the mentally

ill   or    to     render   statutory       provisions     meaningless          or

superfluous.

      ¶49   The    result    the       majority      opinion         reaches    is

unreasonable in light of the text of the statute, the rights

statutorily granted Samuel J.H., and the explicit legislative

policy.

                                       II

      ¶50   To ensure the rights of patients and compliance with

the statutes, counties should follow Manitowoc's lead.

      ¶51   Manitowoc County Corporation Counsel explained at oral

argument    that   subsequent     to   Samuel   J.H.'s    case,       the   County

realized that Wis. Stat. § 51.35 was not well implemented.                     The

County then worked with the various entities in which Chapter 51

patients reside and created and is following a standard written

policy.     The    County   now    gives    notice   to   the    State      Public


     Many patients, including Samuel J.H., probably could be
classified   under   either   Wis.   Stat.   § 51.35(1)(e)1.  or
§ 51.35(1)(e)2. or both statutory provisions.      Samuel J.H.'s
social worker testified that he had violated two conditions of
his outpatient treatment, but she asserted that he was not
transferred because of these violations of his treatment
conditions.   Majority op., ¶12.   Thus, the transferring entity
often, if not always, has an opportunity to decide between
whether the patient is transferred for "medical and clinical"
reasons or a "violation of conditions."

     The   majority  opinion   provides  a   blueprint  for   how
authorities can fill out transfer papers to ensure that a
patient does not receive a ten-day hearing. Unfortunately, the
majority opinion may render the ten-day hearing and the
procedural protections in § 51.35(1)(e)2.-5. relics of the past.

                                       7
                                                         No.   2012AP665.ssa


Defender immediately when a patient is being transferred.                 A

ten-day   hearing   is   ordinarily       held.   Assistant    Corporation

Counsel Ryan O'Rourke noted that providing a ten-day hearing in

every transfer is not a significant burden.7        Corporation counsel

stated that the new effort does not require substantially more

time or effort,8 and in the end, ensures that the process is




     7
       Oral Argument at 40:30-40:45, Manitowoc County v. Samuel
J.H.,             2012AP665,              available            at
http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?
evhdid=7191 (last visited June 28, 2013).
     8
       At oral argument, Assistant Corporation Counsel O'Rourke
explained that some facilities in which Chapter 51 patients
reside did not know how to appoint a hearing officer, indicating
that the facilities may not be familiar with the statutory
requirements of hearings. This revelation is cause for concern,
yet the majority opinion remains oblivious to the practice. The
Manitowoc County Corporation Counsel is assisting the facilities
with which it works.

     Assistant Corporation Counsel O'Rourke advised the court as
follows:

     [T]he biggest problem with Samuel J.H.'s case that I
     have with how it happened was that counsel wasn't
     appointed right away. And the statute doesn't require
     us to, the statute simply requires that we notify him
     of his right to counsel and provide him the contact
     information, but we as a county have taken it upon
     ourselves to, regardless of the reason for transfer,
     our office is notified immediately, which wasn't
     always happening.    Probate is notified immediately,
     which wasn't always happening, whether we think a
     hearing's necessary or not, and the public defender is
     notified through probate and an attorney is appointed
     immediately, so that we're not having this delay that
     we had in Samuel's case where it was a month and a
     half before he requested the hearing.       Under the
     statute do I think we have to do that?      No, but I
     believe it's better procedure.

                                      8
                                                            No.    2012AP665.ssa


fair.       As   Corporation    Counsel    explained,    "[I]t's     the    more

legally conservative approach to take to protect the transfer."9

     ¶52    Because the majority opinion's interpretation of Wis.

Stat. §§ 51.35 and 51.60 has wandered off the clearly marked

legislative course of protecting the basic liberty interests of

the mentally ill and leads to an absurd and unreasonable result,

I cannot join the majority opinion.           A reasonable and harmonious

reading of §§ 51.35 and 51.60 leads to the conclusion that all

patients with outpatient status transferred to inpatient status

are referred to counsel and granted a hearing within ten days to

determine    whether    the    form   of   treatment    resulting    from   the

transfer    is   the   least   restrictive    alternative    and    consistent

with the treatment needs of the patient.

     ¶53    A measure of a society is how it treats its weakest

members.     The legislature has incorporated this ethos into the


Oral Argument at 34:23-35:18, Manitowoc County v. Samuel J.H.,
2012AP665,                      available                      at
http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?
evhdid=7191 (last visited June 28, 2013).
     9
         Assistant Corporation Counsel O'Rourke said in full:

     Subsequent to Samuel J.H., and not that this has any
     effect on Samuel's case, but procedurally what we've
     done as a county is it became clear to me we needed a
     standard written set of policies to follow, we
     implemented   those,  we   are   holding  the hearing
     regardless of the reason for transfer now, simply
     because I believe it's the more legally conservative
     approach to take to protect the transfer.

Oral Argument at 33:48-34:15, Manitowoc County v. Samuel J.H.,
2012AP665,                      available                      at
http://www.wiseye.org/Programming/VideoArchive/EventDetail.aspx?
evhdid=7191 (last visited June 28, 2013).

                                       9
                                                         No.    2012AP665.ssa


statutes,    and   this   court   should   interpret   the     statutes    to

achieve the clearly stated legislative policy and purpose.                The

majority opinion does not.

    ¶54     For the reasons set forth, I write separately.




                                    10
    No.   2012AP665.ssa




1
