State of Wisconsin ex rel. William E. Marberry, Petitioner-Appellant, v. Phillip G. Macht, Superintendent, Wisconsin Resource Center and Joseph S. Leean, Secretary, Department of Health and Family Services, Respondents-Respondents, 254 Wis. 2d 690

SNYDER, J. ¶ 1. In this case we are asked to determine whether the initial reexamination required by Wis. Stat. § 980.07 (1997-98) for Wis. Stat. ch. 980 committed patients is mandatory or directory and to determine the appropriate remedy if the six-month time limit is violated. William E. Marberry contends that both the hearing and stated time limit are mandatory and appeals from a circuit court order denying his habeas corpus petition.

The State responds that the six-month time limit is directory or, in the alternative, that if the time limit is mandatory, the remedy is not release or discharge from the ch. 980 commitment. We hold that the § 980.07 six-month time limit for an initial reexamination is mandatory and that Marberry is entitled to release or discharge from his ch. 980 commitment. We therefore reverse the circuit court order and remand this matter for proceedings consistent with this opinion. BACKGROUND ¶ 2. The essential facts are undisputed. Marberry was committed as a sexually violent person on July 15, 1998, pursuant to Wis.

Stat. § 980.06(1). Wisconsin Stat. § 980.07 requires a reexamination of Marberry's mental condition after his initial commitment and reads in relevant part: Periodic reexamination; report.

(1) If a person has been committed under s. 980.06 and has not been discharged under s. 980.09, the department shall conduct an examination of his or her mental condition within 6 months after an initial commitment under s. 980.06 and again thereafter at least once each 12 months for the purpose of determining whether the person has made sufficient progress to be entitled to transfer to a less restrictive facility, to supervised release or to discharge.

At the time of a reexamination under this section, the person who has been committed may retain or, if he or she is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her. ¶ 3. The State concedes that the Department of Health and Family Services (DHFS) failed to conduct an initial reexamination of Marberry's mental condition within the six months prior to January 15, 1999. On June 15, 1999, eleven months after the Wis.

Stat. ch. 980 commitment, Marberry filed a petition for a writ of habeas corpus requesting to be discharged from the ch. 980 commitment because he had still not received the required Wis. Stat. § 980.07(1) initial reexamination. The circuit court denied Marberry's petition and he appeals. ISSUE ¶ 4. Marberry and the State dispute whether the six-month time limit for an initial reexamination under Wis. Stat. § 980.07(1) is mandatory or directory. The parties also dispute the appropriate remedy if the time limit is mandatory. DISCUSSION ¶ 5. Whether the Wis.

Stat. § 980.07(1) six-month time requirement for an initial reexamination of a committed person is discretionary or mandatory requires us to interpret § 980.07(1). Statutory

interpretation is a question of law that we review de novo. State v. Curiel, 227 Wis. 2d 389, 404, 597 N.W.2d 697 (1999). The goal of statutory

interpretation is to discern the intent of the legislature. Jungbluth v. Hometown, Inc., 201 Wis. 2d 320, 327, 548 N.W.2d 519 (1996). ¶ 6. Marberry contends that the six-month reexamination time limit of Wis. Stat. § 980.07(1) is mandatory, relying on our holding in State ex rel. Lockman v. Gerhardstein, 107 Wis. 2d 325, 320 N.W.2d 27 (Ct. App. 1982). In Lockman, a Wis. Stat. ch. 51 patient was not provided a final commitment hearing within fourteen days of her detention as required by Wis. Stat. § 51.20(7)(c). Lockman, 107 Wis. 2d at 326-27. We held that the § 51.20(7)(

c) fourteen-day time limit is mandatory and that it could not be varied at the discretion of the trial court; consequently, we ordered Lockman released. See Lockman, 107 Wis. 2d at 330. ¶ 7. The State contends that the six-month time limit of Wis. Stat. § 980.07(1) is directory, citing to State v. R.R.E., 162 Wis. 2d 698, 470 N.W.2d 283 (1991), in support. R.R.E. was acquitted of second-degree murder and attempted murder by reason of mental disease or defect (NGI) and was committed under Wis. Stat. § 971.17; he later moved for a reexamination of his mental condition as provided in Wis. Stat. § 51.20(16)(c). R.R.E., 162 Wis. 2d at 703.

Section 51.20(16)(

c) requires a hearing within thirty days of receipt of a reexamination petition if a hearing was not held within 120 days of the filing of the petition. R.R.E. petitioned for release from commitment under § 971.17 because the State failed to comply with the thirty-day time requirement. R.R.E., 162 Wis. 2d at 703. Our supreme court held that the thirty-day time limit of § 51.20(16)(

c) was directory in response to a § 971.17 reexamination petition, that R.R.E. was not entitled to release from the § 971.17 commitment and that the remedy was a remand to the circuit court "for a hearing to determine whether R.R.E. is entitled to release under the standards of sec. 971.17." R.R.E., 162 Wis. 2d at 715. ¶ 8. Lockman addressed a Wis. Stat. ch. 51 patient while R.R.E. focused on a Wis. Stat. § 971.17 patient. We conclude that because of the unique nature of a Wis. Stat. ch. 980 commitment, neither Lockman nor R.R.E. is directly applicable. ¶ 9.

Wisconsin Stat. ch. 980 creates a civil commitment procedure primarily intended to protect the public and to provide concentrated treatment to convicted sexually violent persons, not to punish the sexual offender. State v. Carpenter, 197 Wis. 2d 252, 258, 541 N.W.2d 105 (1995). The principal purposes of ch. 980, the protection of the public and the treatment of convicted sex offenders who are at a high risk to reoffend in order to reduce the likelihood that they will engage in such future conduct, are significantly nonpu-nitive and remedial. Carpenter, 197 Wis. 2d at 271.

Because of these dual purposes, ch. 980 commitments differ from both Wis. Stat. ch. 51 and Wis. Stat. § 971.17 commitments. State v. Williams, 2001 WI App 263, ¶¶ 12-20, 249 Wis. 2d 1, 637 N.W.2d 791. ¶ 10. Wisconsin Stat. ch. 51 commitments are permitted for many reasons that do not implicate a danger to others. Williams, 2001 WI App 263 at ¶ 13; Wis. Stat. § 51.20(1)(a)2.a, c-e. In contrast to ch. 51, significant danger to others is the only justification for a commitment under Wis. Stat. ch. 980. Williams, 2001 WI App 263 at ¶ 13.

Thus, persons committed under ch. 980 are more dangerous as a class than those committed under ch. 51. Williams, 2001 WI App 263 at ¶ 13 (citing State v. Post, 197 Wis. 2d 279, 322, 541 N.W.2d 115 (1995)). ¶ 11. In addition, it is much more difficult to commit a person under Wis. Stat. ch. 980 than it is to commit someone under Wis. Stat. ch. 51. Williams, 2001 WI App 263 at ¶ 14. First, ch. 980 provides a right to a trial by a jury of twelve, all of whom must agree that the subject of the petition is a sexually violent person. Wis. Stat. §§ 980.03(3), 980.05(2); Williams, 2001 WI App 263 at ¶ 14.

On the other hand, a ch. 51 commitment is by a jury of six, only five of whom must agree to commit. Wis. Stat. § 51.20(11)(a), (b); Williams, 2001 WI App 263 at ¶ 14. Second, the burden of proof is "clear and convincing evidence" in ch. 51 commitments, § 51.20(13)(e), but "beyond a reasonable doubt" in ch. 980 commitments, § 980.05(3). Williams, 2001 WI App 263 at ¶ 14. ¶ 12. Furthermore, a person may be committed under Wis.

Stat. ch. 51 because he or she is a danger to others even though the factual predicates to the commitment may represent the first time he or she has done something that " [Evidences a substantial probability of physical harm to other individuals." Wis. Stat. § 51.20(l)(a)2.b; Williams, 2001 WI App 263 at ¶ 15. Conversely, a person committed under Wis. Stat. ch. 980 has, by definition, not only already violated the rights of at least one victim by

an act or acts of sexual violence, but, significantly, has also demonstrated that "previous treatment has proved ineffective." Williams, 2001 WI App 263 at ¶ 15 (citing Post, 197 Wis. 2d at 309). ¶ 13. Although Wis. Stat. ch. 51 is perhaps more lenient with those who are subject to its provisions than is Wis. Stat. ch. 980, there are significant differences between the degree of danger posed by each of the two classes of persons, as well as significant differences in what must be proven in order to commit under the two chapters. Williams, 2001 WI App 263 at ¶ 16. ¶ 14. Neither is a Wis.

Stat. ch. 980 commitment analogous to a Wis. Stat. § 971.17 commitment. In a § 971.17 commitment, the law only infers current mental illness and dangerousness when a person is found to have violated the criminal law but to be not responsible for that violation because he or she had a mental disease or defect at the time of the crime. Wis. Stat. § 971.15(1); Williams, 2001 WI App 263 at ¶ 17.

In contrast to this inference of current mental state and dangerousness, a person may not be committed under ch. 980 unless the State proves beyond a reasonable doubt both that the person actually has a mental disorder at the time of the commitment trial and is then actually dangerous to others because the mental disorder creates a substantial probability that the person will engage in acts of sexual violence. Wis. Stat. §§ 980.02(2)(b), (

c) and 980.05(3)(a); Williams, 2001 WI App 263 at ¶ 18. This is a critical distinction between persons committed under § 971.17 and persons committed under ch. 980. Williams, 2001 WI App 263 at ¶ 18. ¶ 15. Additionally, a Wis. Stat. ch. 980 committed person has alternative routes and protections not available to a Wis. Stat. § 971.17 committed person, not the least of which is the ability to petition for discharge at any time with the approved of the secretary of DHFS. Williams, 2001 WI App 263 at ¶ 19.

Also under ch. 980, the trial court can consider supervised release in connection with any petition for discharge. Williams, 2001 WI App 263 at ¶ 19. ¶ 16. The differences in the procedures for initial commitment between Wis. Stat. ch. 980 and Wis. Stat. § 971.17 are based upon real distinctions between the statutory schemes and the interests served by each. We are not convinced that the purpose of ch. 980 is best served by applying the case law governing either Wis. Stat. ch. 51 or § 971.17 commitments. ¶ 17. We must now consider whether the initial reexamination of Wis.

Stat. § 980.07(1) is mandatory or directory. In determining whether a statutory provision is mandatory or directory, "as of every other question of statutory construction, the prime object is to ascertain the legislative intention." Worachek v. Stephenson Town Sch. Dist., 270 Wis. 116, 120, 70 N.W.2d 657 (1955) (citation omitted). Although use of the word "shall" in a statute suggests that the provision is mandatory, this court has held that statutory time limits can be directory despite the use of the word "shall." Eby v. Kozarek, 153 Wis. 2d 75, 79-80, 450 N.W.2d 249 (1990).

Consequently, the determination of whether "shall" is mandatory or directory is not governed by a per se rule. State ex rel. Jones v. Franklin, 151 Wis. 2d 419, 428, 444 N.W.2d 738 (Ct. App. 1989) (Sundby, J., dissenting). ¶ 18. In determining whether a statutory time limit is mandatory or directory, we consider several factors: the existence of penalties for failure to comply with the limitation, the statute's nature, the legislative objective for the statute and the potential consequences to the parties, such as injuries or wrongs. State v.

Thomas, 2000 WI App 162, ¶ 9, 238 Wis. 2d 216, 617 N.W.2d 230, review denied, 2000 WI 121, 239 Wis. 2d 312, 619 N.W.2d 94 (Wis. Sept. 12, 2000) (No. 00-0150). ¶ 19. Here, Wis. Stat. § 980.07(1) does not provide a penalty for a violation of the six-month time period. A statute prescribing the time in which public officers are required to perform an official act, unless it denies the exercise of power after such time, is generally directory. Karow v. Milwaukee County Civil Serv. Comm'n, 82 Wis. 2d 565, 571, 263 N.W.2d 214 (1978).

However, the omission of a prohibition or a penalty is not dispositive but only one factor to be considered in the analysis of whether the legislature intended the provision to be mandatory or directory. Id. at 572. ¶ 20. The nature of a Wis. Stat. ch. 980 commitment is civil, not criminal. Thomas, 2000 WI App 162 at ¶ 11. The chief objectives of ch. 980 are the protection of the community from the dangerously mentally disordered and to provide care and treatment to those with mental disorders that predispose them to sexual violence. Post, 197 Wis. 2d at 302.

It is important, however, to highlight that the legislature's primary focus in creating ch. 980 was to provide treatment to convicted sexually violent persons for their mental conditions. Thomas, 2000 WI App 162 at ¶ 11. Failure to provide a reexamination within the statutorily required time period, without penalty, can hardly be said to assist in accomplishing this primary focus. ¶ 21.

The potential consequences for both parties cannot be labeled insignificant; failure to conduct a reexamination could result in the release of a potentially dangerous mentally disordered person into the community or the continued confinement of a person who no longer presents a danger to society and the prolonged deprivation of his or her liberty. Where the failure to act within a statutory time limit does work an injury or wrong, this court has construed the time limit as mandatory. Karow, 82 Wis. 2d at 572.

Certainly an individual such as Marberry, who is institutionalized and deprived of his liberty, is injured to a substantial degree. ¶ 22. The general rule in interpreting statutory language is that "the word 'shall' is presumed mandatory when it appears in a statute." State v. Sprosty, 227 Wis. 2d 316, 324, 595 N.W.2d 692 (1999) (citation omitted). "Further support is given to a mandatory

interpretation of 'shall' when the legislature uses the words 'shall' and 'may' in a particular statutory section, indicating the legislature was aware of the distinct meanings of the words." Id. (citation omitted). ¶ 23. The legislature used both the words "shall" and "may" in Wis. Stat. § 980.07:

(1) If a person has been committed under s. 980.06 and has not been discharged under s. 980.09, the department shall conduct an examination of his or her mental condition within 6 months after an initial commitment under s. 980.06 and again thereafter at least once each 12 months for the purpose of determining whether the person has made sufficient progress to be entitled to transfer to a less restrictive facility, to supervised release or to discharge. At the time of a reexamination under this section, the person who has been committed may retain or, if he or she is indigent and so requests, the court may appoint a qualified expert or a professional person to examine him or her.

(2) Any examiner conducting an examination under this

section shall prepare a written report of the examination no later than 30 days after the date of the examination. The examiner shall place a copy of the report in the person's medical records and shall provide a copy of the report to the court that committed the person under s. 980.06.

(3) Notwithstanding sub. (1), the court that committed a person under s. 980.06 may order a reexamination of the person at any time during the period in which the person is subject to the commitment order. (Emphasis added.) Therefore, we "can infer that the legislature was aware of the different denotations and intended the words to have their precise meanings." Sprosty, 227 Wis. 2d at 325 (citation omitted). ¶ 24.

By and large, if a provision of a statute states a time for performance of an official duty, without any language denying performance after a specified time, it is directory; however, if the time period is provided to safeguard someone's rights, it is mandatory and the agency cannot perform its official duty after the time requirement has passed. 3 Sutherland Statutory Construction § 57.19 (6th ed. 2001). ¶ 25. Where statutes provide for performance of acts by public officers protecting private rights or in the public interest, they are mandatory. Id. at § 57.14; Town of LaGrange v.

Auchinleck, 216 Wis. 2d 84, 97, 573 N.W.2d 232 (Ct. App. 1997). This rule has been enunciated by the United States Supreme Court as follows: "The conclusion to be deduced from the authorities is, that where power is given to public officers ... — whenever ... individual rights call for its exercise — the language used ... is in fact peremptory." Id. at 97-98 (citing Bd. of Supervisors v. United States ex rel. State Bank, 71 U.S. 435, 446-17 (1867)).

There are, undoubtedly, many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such, generally, are regulations designed to secure order, system and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected ....

But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would he injuriously affected, they are not directory but mandatory. French v. Edwards, 80 U.S. 506, 511 (1871). "If the provision is essential, it is mandatory." Midwest Mut. Ins. Co. v. Nicolazzi, 138 Wis. 2d 192, 198, 405 N.W.2d 732 (Ct. App. 1987) (citation omitted). ¶ 26.

In the case at hand, mental reexaminations are conducted "for the purpose of determining whether the person has made sufficient progress to be entitled to ... supervised release or to discharge." Post, 197 Wis. 2d at 300 (citing Wis. Stat. § 980.07(1)). The State maintains the burden of proof throughout all Wis.

Stat. ch. 980 proceedings and must continually prove the need for detention; a ch. 980 committed person cannot be deprived of his or her liberty unless the State proves by clear and convincing evidence that the person is still dangerous to others because the person's mental disorder creates a substantial probability that he or she will engage in acts of sexual violence. Wis. Stat. §§ 980.08(4), 980.09(2)(b). The reexamination is a safeguard against arbitrary confinement and we have previously said that this reexamination is mandatory. State v. Ransdell, 2001 WI App 202, ¶ 9, 247 Wis. 2d 613, 634 N.W.2d 871.

A § 980.07 reexamination is a necessary precondition for securing judicial review of the commitment under § 980.09(2) and triggers other important procedural guarantees, such as the right to an independent mental examination, § 980.07(1), and the right to counsel, § 980.09(2)(a). ¶ 27. A Wis. Stat. ch. 980 committed person's liberty hinges upon this initial reexamination.

Because of the significance of this initial reexamination and because such a reexamination is fundamental to securing other essential rights granted by ch. 980, we. must conclude that the six-month time period for an initial reexamination is mandatory. ¶ 28. There is no doubt that Marberry was not provided his initial reexamination within this mandatory six-month period. In fact, it took DHFS nearly two years to provide him with this reexamination. The question remaining for us, then, is what is the appropriate remedy when DHFS fails to provide a Wis.

Stat. ch. 980 committed person with an initial reexamination within the required six months? ¶ 29. Marberry argues that the "prolonged indifference" of DHFS necessitates his release from his Wis. Stat. ch. 980 commitment. The State argues that release is inappropriate because there are insufficient facts developed in the record to explain DHFS's inaction. Under the egregious circumstances presented in this case, release is the only appropriate remedy. ¶ 30. All of the remedies offered by the State are inadequate to address the wrong perpetrated here.

As noted by Marberry, as a practical matter, it is unlikely that Wis. Stat. ch. 980 committed persons would be aware of or have the ability to pursue these other remedies. Pursuit of alternative remedies would require substantial time during which the committed person would continue to be deprived of his or her liberty. The State acknowledges that some of the proposed remedies are unworkable. For example, neither remedial nor punitive contempt is available to Mar-berry in this situation. ¶ 31. We disagree with the State's assertion that damages and attorney's fees under Wis.

Stat. ch. 51 are an appropriate remedy, as they do not address the problem of being denied a timely reexamination and are insufficient to compensate a person deprived of his or her liberty. Monetary damages are unlikely to benefit a Wis. Stat. ch. 980 patient because the patient is billed for his or her confinement and treatment and DHFS could seize any money damages received to satisfy this debt. Wis. Stat. § 46.10(2). ¶ 32.

Freedom from physical restraint is a fundamental right that "has always been at the core of the liberty protected ... from arbitrary governmental action." Post, 197 Wis. 2d at 302 (citation omitted). Our supreme court held that "[c]ivil commitment for any purpose constitutes a significant deprivation of liberty ...." Id. (citation omitted).

The Post court recognized that a proper function of the legal process is to minimize the risk of erroneous decisions and cautioned that an "individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state." Id. at 326 (citation omitted). "Loss of liberty through involuntary commitment imposes just such a heavy duty upon the state." Id. ¶ 33.

DHFS asserts that the Wisconsin Resource Center (WRC), where Marberry was confined, did not receive a copy of the commitment order until seven months after the initial commitment. In addition, DHFS indicates that WRC staff did not recognize, upon receipt of the order, that said order triggered the statutory obligation to conduct a periodic reexamination. Marberry suggests that DHFS's failure to timely conduct the reexamination was due, in part, to a shortage of staff. ¶ 34. However, when our supreme court held Wis.

Stat. ch. 980 to be constitutional, the State promised it was prepared to provide specific treatment to those committed under ch. 980 and to not simply warehouse those committed. Carpenter, 197 Wis. 2d at 267. The State assured our supreme court that as the population increased, plans existed to increase the staff proportionately and that a committed person would be discharged as soon as his or her dangerousness or mental disorder abated. Id. at 267-68. As noted in Post, we presume good faith on the part of the legislature; the State is clearly obliged under Wis.

Stat. § 980.06(1) to provide control, care and treatment to those determined to be sexually violent persons. Post, 197 Wis. 2d at 308-09. Treatment is a bona fide goal of ch. 980 and, presumably, the legislature would proceed in good faith and fund the treatment programs necessary for those committed under ch. 980. Post, 197 Wis. 2d at 308. ¶ 35. Wisconsin Stat. ch. 980 does contain restrictive procedural time limits and we acknowledge that these time limits may cause administrative difficulties. See State v. Brown, 215 Wis. 2d 716, 726, 573 N.W.2d 884 (Ct. App. 1997).

However, in Carpenter and Post, our supreme court accepted the State's affirmation that it was "prepared to provide specific treatment to those committed under ch. 980 and not simply warehouse them" and that the legislature would "proceed in good faith and fund the treatment programs necessary for those committed under

chapter 980." Sprosty, 227 Wis. 2d at 331 (citing Carpenter, 197 Wis. 2d at 267, and Post, 197 Wis. 2d at 308, respectively). The employment of qualified and knowledgeable personnel and the creation of facilities and services to provide periodic reexaminations are not contrary to these stated purposes. Id. ¶ 36. Wisconsin's sexual predator law survived constitutional challenge, in part, because the nature and duration of Wis. Stat. ch. 980 commitments are to be reasonably related to the purposes for those commitments. Sprosty, 227 Wis. 2d at 330.

The control, care and treatment of the committed person is to be in "the least restrictive manner consistent with the requirements of the person and in accordance with the court's commitment order." Id. (quoting Wis. Stat. § 980.06(1), (2)(b)). ¶ 37. Here, DHFS took nearly two years to provide Marberry with a reexamination that should have been conducted within six months. Under the extreme state of affairs presented here and the prolonged deprivation of Marberry's liberty in violation of the strict safeguards of Wis. Stat. ch. 980, Marberry's release is the only appropriate remedy. CONCLUSION ¶ 38.

We conclude that the six-month time limit of Wis. Stat. § 980.07(1) for an initial reexamination is mandatory and because of the egregious circumstances of this case, Marberry's release is necessary. We therefore reverse the order of the circuit court. By the Court. — Order reversed. All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted. We certified the issues to the Wisconsin Supreme Court on August 2,2000. The certification was accepted and then vacated and remanded to this court on March 13, 2001. We heard oral arguments on the issues on January 15, 2002. Marberry's Wis.

Stat. § 980.07 reexamination was not commenced until June 29, 2000, almost two years after his initial commitment. Wisconsin Stat. § 51.20(7)(

c) states that if there is probable cause found to believe that allegations support a Wis. Stat. ch. 51 detention, the court "shall

schedule the matter for a hearing within 14 days from the time of detention of the subject individual...." Marberry also cites to N.N. v. County of Dane, 140 Wis. 2d 64, 409 N.W.2d 388 (Ct. App. 1987), in support of his argument. N.N. is a Wis. Stat. ch. 55 commitment case where we held that the circuit court lost jurisdiction and ordered N.N.'s release because a hearing for permanent placement was not held within thirty days of a temporary placement order. N.N., 140 Wis. 2d at 69-70; see also Wis. Stat. § 55.06(11)(c). N.N. cites to State ex rel. Lockman v. Gerhardstein, 107 Wis. 2d 325, 320 N.W.2d 27 (Ct.

App. 1982), as precedent for the proposition that time limits in Wis. Stat. ch. 51 are mandatory and supports the same conclusion for ch. 55 time limits.