02-3221 In Re: the Commitment of Elizabeth M.P.

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“Wisconsin Stat. § 51.35(1)(e)3 states that ‘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’ within ten days of transfer. The use of the word ‘shall’ suggests that the provision must be interpreted as mandatory. In fact, the normal interpretation of this statutory language is that ‘the word `shall’ is presumed mandatory when it appears in a statute.’…

“This conclusion, that the hearing is mandatory, is further supported by the language of Wis. Stat. § 51.35(1)(e)3: ‘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.’ When a hearing must be waived and can only be waived in writing after consultation with legal counsel, such a provision can only be construed as mandatory.”

Reversed.

Recommended for publication in the official reports.

Dist II, Fond du Lac County, Weinke, J., Snyder, J.

Attorneys:

For Appellant: Thomas K. Voss, Waukesha

For Respondent: William J. Bendt, Fond du Lac