                                                             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.

                                            I

      ¶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.

                                              II

        ¶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
                                                     1
                                                                     No.    12AP500.mjg


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

                                       2
                                                                       No.    12AP500.mjg


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,

                                            3
                                                                                  No.    12AP500.mjg


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.

                                                 4
                                                                        No.   12AP500.mjg


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.

                                               5
                                                                                No.    12AP500.mjg


        ¶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

                                                6
                                                                                        No.      12AP500.mjg


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

                                                       7
                                                              No.   12AP500.mjg


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.

                                       8
    No.   12AP500.mjg




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