The decision in this case is suspect, and may not be reconcilable with the Supreme Courts holding this past summer in State ex rel. Marberry v. Macht, 2003 WI 79, 262 Wis.2d 720, 665 N.W.2d 155. Given the confused state of the law that the Supreme Court has created in this area, however, it could hardly be otherwise.
The problem begins with a fundamental flaw that plagues all of Wisconsins cases that address whether a time limit is mandatory attachment of unwarranted significance to the use of the term, shall, instead of may.
There are circumstances in which use of one term or the other is indicative of legislative intent.
Consider the language of one of the provisions at issue in State v. Sprosty, 227 Wis.2d 316, 324, 595 N.W.2d 692 (1999) sec. 980.08(4): The court shall grant the petition [for supervisory release of a sexually violent person] unless the state proves by clear and convincing evidence that the person is still a sexually violent person and that it is still substantially probable that the person will engage in acts of sexual violence if the person is not confined in a secure mental health unit or facility. In making a decision under this subsection, the court may consider, without limitation because of enumeration, the nature and circumstances of the behavior that was the basis of the allegation in the petition…
In that statute, may could have been used by the legislature instead of shall in the first sentence, and vice versa in the second, without producing a nonsensical sentence. Thus, it should be presumed that, when the legislature wrote this statute, it intended shall to be mandatory in the first instance, and may to be discretionary in the second.
When time limits are involved, however, this does not hold true. The statute provides, 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 patients personal liberty …
Substitute may for shall and the sentence makes no sense. If any statute provided that a court may hold a hearing, it would not even be directory, but would be discretionary. It certainly would not contain a time limit, since there would be no requirement that a hearing be held at all.
All the time limits that the courts consider contain shall instead of may. Yet, there is no consistency in whether the courts ultimately find the time limits to be mandatory or directory.
In State ex rel. Jones v. Division of Hearings and Appeals, 195 Wis.2d 669, 536 N.W.2d 213 (Ct.App.1995), the court of appeals held that a parolee was not entitled to release, even though sec. 302.335(2) provided, The division shall begin a final revocation hearing within 50 calendar days after the person is detained in the county jail. The court found the language directory, rather than mandatory.
In Eby v. Kozarek, 153 Wis.2d 75, 450 N.W.2d 249 (1990), the Supreme Court held that the requirement in sec. 655.445(1) that a medical malpractice plaintiff shall file a request for mediation within 15 days of filing the action is directory, rather than mandatory.
In State v. R.R.E., 162 Wis.2d 698, 470 N.W.2d 283 (1991), the issue was sec. 51.20(16)(c), which requires that, when a person has been committed as a result of a finding in a criminal case that he is not guilty by reason of mental disease or defect, and petitions for reexamination, a hearing shall be held within 30 days.
The Supreme Court held that shall was directory, rather than mandatory in such a case, noting that mandamus is available as a remedy to the petitioner. Id., 162 Wis.2d at 712.
Finally, this past year, the Supreme Court took a different tack. In State ex re. Marberry v. Macht, 2003 WI 79, 262 Wis.2d 720, 665 N.W.2d 155, the court held it was mandatory that DHFS shall conduct a post-commitment initial reexamination of a sexually violent person within six months of the initial commitment.
Nevertheless, the court concluded that immediate release upon the filing of a habeas corpus action was not the appropriate remedy, even though the court found, it is undeniably true that … the department was in prolonged and inexcusable noncompliance with its mandatory duties. Id., 2003 WI 79, par. 26.
As in R.R.E., the court directed aggrieved parties to file writs of mandamus.
Sexually violent persons, people committed pursuant to Chapter 51, and persons found not guilty by reason of mental disease or defect, share a common trait: they are all in custody to serve the dual purpose of receiving treatment and protecting the public. Marberry, at par. 19; R.R.E., 162 Wis.2d at 709.
In addition, in all three cases, the statutes provi
de no penalty for failure to comply with the time limit. Marberry, at par. 18; R.R.E., 162 Wis.2d at 710-11. Finally, the failure to comply with the time limits… has substantial consequences for the committed person. Marberry, at par. 20; R.R.E., 162 Wis.2d at 711.
Yet, the time limits for persons found not guilty by reason of mental disease or defect are directory.
For sexually violent persons, the time limits are mandatory, but automatic release is not the remedy.
Now, given the holding in the case at bar, the time limits for general civil commitments are mandatory, and automatic release is the remedy for failure to hold a timely hearing.
There may be good reasons for these distinctions, but they will remain difficult to discern, as long as enormous portions of the decisions are devoted to irrelevant and talismanic discussion of the meaning of the word, shall.
In the interim, the question for trial courts is what to do when the State fails to hold a hearing in a civil commitment within 10 days, but the person is clearly dangerous to himself and the community.
The court could order him released, pursuant to this decision; or it could acknowledge the court of appeals holding that shall is mandatory, but defy the court of appeals by citing Marberry, and holding that this case is not dispositive because the court failed to explicitly address whether automatic release or a writ of mandamus is the appropriate remedy for an aggrieved party.
– David Ziemer
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David Ziemer can be reached by email.