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Manitowoc County v. Samuel J. H., 2012AP665, District 2, 9/5/12, WSC review granted 11/14/12

court of appeals certificationsupreme court review granted 11/14/12; case activity

 § 51.35(1)(e) Patient Transfer, Time Limits

Issue certified:

Whether our holding in Fond du Lac County v. Elizabeth M.P., 2003 WI App 232, ¶¶26, 28, 267 Wis. 2d 739, 672 N.W.2d 88, that “Wisconsin Stat. § 51.35(1)(e) mandates that a patient transferred to a more restrictive environment receive a hearing within ten days of said transfer,” is contrary to the plain language of the statute.  We certify to the supreme court for its determination as to whether § 51.35(1)(e) mandates a hearing within ten days for all transferred patients, including those transferred for medical reasons under § 51.35(1)(e)1., or whether the mandate applies only to those transferred due to a violation of the conditions of outpatient placement as set forth in § 51.35(1)(e)2.-5.

Elizabeth M.P. recognized two types of § 51.35(1)(e) transfers: medical reasons and violation of outpatient conditions. Elizabeth M.P. herself fell in the latter category, but the court “blur(red) the distinction between the two types of transfer,” and thus broadly required a hearing within 10 days for all transfers, 2003 WI App 232, ¶26. Samuel J.H. is a “medical reason” transfer and invokes the 10-day rule. The court reacts with this certification, all but asking the supreme court to modify the prior holding:

Despite the more specific reasoning in Elizabeth M.P., Samuel understandably relies on these final broad statements in support of his argument that he has a right to a hearing within ten days under Wis. Stat. § 51.35(1)(e)1.  While the State distinguishes Elizabeth M.P. on its facts and contends that Samuel’s argument ignores the statute and specific reasoning in Elizabeth M.P., this court’s broader statement remains.  The inconsistency in Elizabeth M.P. was noted in this case by both the circuit court and the County and, while apparent to us too, we are powerless to address it.  Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W. 2d 246 (1997) (the court of appeals may not overrule, modify or withdraw language from its prior published decisions).  In light of the confusion surrounding the application of Elizabeth M.P. to transfers made pursuant to Wis. Stat. § 51.35(1)(e)1., we respectfully request that the supreme court accept certification in order to provide needed guidance on the issue.

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