In Re Washington
2007 WI 104, 735 N.W.2d 111 (2007)
Rule of Law:
Under Wis. Stat. § 252.07(9), a person with noninfectious tuberculosis who fails to comply with a prescribed treatment regimen may be confined to a jail, provided the jail offers proper care and prevents disease spread, and no less restrictive place of confinement exists; courts may consider placement costs only after satisfying these primary medical and restrictiveness criteria.
Facts:
- On May 19, 2005, Ruby Washington was evaluated for tuberculosis at the Keenan Health Center Tuberculosis Control Clinic, operated by the City of Milwaukee Health Department (Department).
- On June 17, 2005, Washington was diagnosed with tuberculosis and received medication at the TB Clinic on June 21, 2005.
- Washington, who was living in a shelter and had no fixed address, did not show up for her next two scheduled appointments to receive her medication and could not be located.
- The Department issued directly-observed therapy and isolation orders for Washington on July 27, 2005, intending to serve them upon her location.
- On August 22, 2005, Washington was admitted to Aurora Sinai Medical Center to give birth, and the Department served her with the treatment and isolation orders, requesting she stay at the Medical Center.
- The next day, Washington threatened to leave the Medical Center, prompting the City of Milwaukee to petition the circuit court for enforcement of the orders.
- Following a stipulation, Washington was released from the Medical Center on September 27, 2005, on the condition that she report to the TB Clinic for directly-observed therapy, follow a nine-month treatment plan, and live with her sister, Alwiller Washington.
- On September 29, 2005, Alwiller Washington reported that Ruby Washington had left her residence; Ruby Washington was later located by health officials and police, appearing incoherent and becoming agitated when detained.
Procedural Posture:
- The City of Milwaukee petitioned the Milwaukee Circuit Court (Honorable Maxine A. White) under Wis. Stat. § 252.07(9) for enforcement of treatment and isolation orders against Ruby Washington.
- The parties reached a stipulation, approved by the circuit court, that Washington would remain confined at Aurora Sinai Medical Center until a status hearing.
- At the September 27, 2005, status hearing, before Milwaukee Circuit Court (Honorable Clare L. Fiorenza), the parties reached a second stipulation for Washington's release, requiring her to report to the TB Clinic, follow a treatment plan, and live with her sister, Alwiller Washington, with potential for renewed confinement if she failed to comply.
- After Washington failed to comply, the City filed a 'Motion of Contempt' with the circuit court, seeking her confinement to the Milwaukee County Criminal Justice Facility (CJF).
- The circuit court found Washington in violation of the prior treatment orders and ordered her confinement to the CJF for an indeterminate period, with a review in six months, proceeding under Wis. Stat. § 252.07(9) and explicitly not the contempt statute.
- Ruby Washington appealed the circuit court's order of confinement to the CJF to the Wisconsin Court of Appeals, challenging only her placement to the CJF instead of a less restrictive facility.
- The court of appeals affirmed the circuit court, concluding that the 'no less restrictive alternative' language in Wis. Stat. § 252.07(9)(a) applied only to the fact of confinement, not the place, and that the circuit court could consider cost; a majority also found the confinement lawful under the remedial contempt statute, with one judge dissenting on this point.
- Ruby Washington, as respondent-appellant-petitioner, sought review from the Supreme Court of Wisconsin.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does Wis. Stat. § 252.07(9) authorize the confinement of a person with noninfectious tuberculosis who fails to comply with treatment to a jail, and if so, does the 'no less restrictive alternative' standard apply to the place of confinement, and may a circuit court consider the cost of placement options?
Opinions:
Majority - Louis B. Butler, Jr., J.
Yes, Wis. Stat. § 252.07(9) authorizes the confinement of a person with noninfectious tuberculosis who fails to comply with treatment to a jail, the "no less restrictive alternative" standard does apply to the place of confinement, and a circuit court may consider the cost of placement options under specific conditions. The court began by interpreting the statutory language of Wis. Stat. § 252.07(9)(a). It determined that the term "facility," undefined in the relevant statutes or administrative code, should be given its common, ordinary dictionary meaning, which is broad enough to encompass a jail. This interpretation was bolstered by the legislature's use of "confine," which connotes restriction and has "imprison" as a synonym, differentiating it from "isolate" or "quarantine" used elsewhere in the statute. Legislative history also supported this view, indicating that the drafters intended "facility" to include penal institutions. However, the court stressed that any facility, including a jail, must be capable of providing proper care and treatment and preventing the spread of the disease. Next, the court addressed the "no less restrictive alternative" language in § 252.07(9)(a)3. It rejected the Court of Appeals' conclusion that this applied only to the fact of confinement, holding that it also applies to the place of confinement. This interpretation aligns with the administrative code's definition of "confinement" as restriction "to a specified place" and the principle that remedies should be the "least restrictive." Applying this standard to the place of confinement ensures that a court reviews whether the chosen facility is truly the least restrictive option that meets medical and public health goals, preventing jail from becoming a placement of first resort. Finally, the court held that a circuit court may take cost into account when determining the place of confinement under § 252.07(9). This consideration is permissible, but only after the court has first determined that two or more placement options fulfill the statutory requirements of proper medical treatment and disease prevention, and that none of these options is significantly less restrictive than the other(s). This approach ensures that public health and individual liberty are prioritized over purely fiscal concerns. Applying these principles to Ruby Washington's case, the court concluded that the circuit court did not erroneously exercise its discretion. The circuit court demonstrated appropriate concern for public health and Washington's treatment, considering her history of noncompliance, disappearing, belligerence, and flight risk, which necessitated a secure facility. The court noted that the CJF could provide necessary treatment and that Washington was not infectious. While cost was a factor, it was considered alongside these paramount concerns, and the circuit court actively encouraged Washington's counsel to find alternative locked facilities. Separately, the court disavowed the court of appeals' conclusion that Washington's confinement was also authorized by the remedial contempt statute, Wis. Stat. § 785.04(1). The circuit court had explicitly declined to proceed under contempt, and the specific tuberculosis control statute provided a more appropriate and detailed framework for such confinement.
Analysis:
This case clarifies the delicate balance between public health and individual liberty in the context of involuntary civil confinement for communicable diseases. By interpreting "no less restrictive alternative" to extend to the place of confinement, the Wisconsin Supreme Court imposed a more stringent standard for facility selection, particularly limiting the default use of penal institutions for non-criminal health reasons. This ruling guides courts in conducting a thorough, individualized assessment of placement options, ensuring that medical suitability and individual rights are paramount. The decision emphasizes that cost may be considered only as a secondary factor, further reinforcing the public health nature of the confinement rather than a punitive one, and is likely to impact how states manage non-compliant patients with serious communicable diseases, requiring robust evidence of necessity and a diligent search for appropriate facilities.
