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Tuberculosis Treatment Commitment, § 252.07 – Confinement: Least Restrictive Alternative

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


¶42      Washington next argues that if jail is a permissible place of confinement under Wis. Stat. § 252.07(9), confinement to jail is not permitted whenever some less restrictive placement is available, citing “no less restrictive alternative” language in § 252.07(9)(a)3. The court of appeals construed this language to apply only to the fact of confinement and not to the place of confinement. Washington, 292 Wis. 2d 258, ¶12. The City asks us to adopt the court of appeals’ interpretation. We adopt Washington’s interpretation because we conclude it is more reasonable. We interpret Wis. Stat. § 252.07(9)(a)3. to require that “no less restrictive alternative” applies to the place of confinement as well as the fact of confinement.

¶48      In light of the legislature’s choice to permit confinement to jail of a person with noninfectious tuberculosis who is noncompliant with a prescribed treatment regimen, we conclude that the legislature intended the “no less restrictive alternative” language to apply to the place of confinement as well as the fact of confinement. The legislature did not intend jail to be a placement of first resort for persons with tuberculosis who are noncompliant with a prescribed treatment regimen.

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