City of Milwaukee v. Ruby Washington, 2007 WI 104, affirming 2006 WI App 99
For Washington: Wm. Tyroler, SPD, Milwaukee Appellate; Karl Otto Rohlich, SPD, Milwaukee Mental Health
Amicus: Colleen Ball, ACLU
Issue/Holding:
¶37 … We conclude that, together, the commonly accepted meanings of “facility” and “confined” indicate that the legislature intended jail to be a permissible placement option under Wis. Stat. § 252.07(9)(a) for persons with noninfectious tuberculosis who are noncompliant with a prescribed treatment regimen, provided that “no less restrictive alternative exists” to such placement, infra, ¶¶48-59, and that the particular jail to which a person is to be confined is a place where proper care and treatment will be provided and spread of the disease will be prevented, infra, ¶44. …
…
¶39 … The statutory scheme ensures that jail is not a placement of first resort, but rather is permitted only in cases in which no less restrictive alternate placement is available. Additionally, the particular facility to which a person is to be confined, whether a penal institution or other type of facility, must be a place where proper care and treatment will be provided and spread of the disease will be prevented.
¶40 … We take these concerns seriously. Nevertheless, the legislature has provided that confinement is an option, provided all the statutory requirements have been met. [18]
¶41 While the statute’s plain language and legislative history demonstrate the legislature contemplated confinement to jail as a category of placement for persons with noninfectious tuberculosis who are noncompliant with a prescribed treatment regimen, a confining court must still determine whether the particular place of confinement is “a facility where proper care and treatment will be provided and spread of the disease will be prevented.” Wis. Stat. § 252.07(9)(a). If conditions at a particular jail (or other facility) are such that proper care and treatment would be unavailable, or contrary to the prevention of the spread of the disease, such a placement would not be authorized under § 252.07(9)(a). Whether a facility meets these requirements is a fact-intensive question and is addressed to the circuit court’s discretion.
[18] We emphasize that this opinion applies only to persons with noninfectious tuberculosis——that is, persons who will not become infectious if they receive proper treatment and are forced to comply with a prescribed treatment regimen. For persons with infectious tuberculosis or with the most highly drug-resistant strains of the disease, we doubt that jail would be an appropriate placement under Wis. Stat. § 252.07(9)(a) because such a placement would almost certainly increase, not prevent, the risk of transmission of the disease.
