Dane County v. Sheila W. , 348 Wis. 2d 674 ( 2013 )

2013 WI 63
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP500
COMPLETE TITLE: In the interest of Sheila W., a person under the
age of 18:
Dane County,
Petitioner-Respondent,
v.
Sheila W.,
Respondent-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(No Cite)
OPINION FILED: July 10, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 11, 2013
SOURCE OF APPEAL:
COURT: Dane
COUNTY: Circuit
JUDGE: William C. Foust
JUSTICES:
CONCURRED: PROSSER, J., concurs. (Opinion filed.)
DISSENTED: GABLEMAN, ROGGENSACK, ZIEGLER, JJJ., dissent.
(Opinion filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
by Shelley M. Fite, assistant state public defender, and oral
argument by Shelly M. Fite.
For the petitioner-respondent, there was a brief by Eve M.
Dorman, assistant corporation counsel, and Dane County, and oral
argument by Eve M. Dorman.
2013 WI 63
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP500
(L.C. No. 2012JC55)
STATE OF WISCONSIN : IN SUPREME COURT
In the interest of Sheila W., a person under
the age of 18:
Dane County, FILED
Petitioner-Respondent,
JUL 10, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
Sheila W.,
Respondent-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 PER CURIAM. This is a review of an unpublished
opinion of the court of appeals dismissing this appeal because
the issues presented are moot.1 The petitioner, Sheila W., is a
minor who was diagnosed with aplastic anemia. She opposed on
1
Dane Cnty. v. Sheila W., No. 2012AP500, unpublished slip
op. (Ct. App. Oct. 31, 2012).
No. 2012AP500
religious grounds any life-saving blood transfusions and her
parents supported her position.
¶2 The circuit court appointed a temporary guardian under
Wis. Stat. § 54.50 for the purpose of deciding whether to
consent to medical treatment. Sheila W. appealed, but the order
appointing a temporary guardian expired while the case was
pending before the court of appeals. The court of appeals then
dismissed the appeal, concluding that the issues presented are
moot and that the appeal does not sufficiently satisfy the
criteria to address the merits regardless of mootness. Four
issues are presented for our review:
¶3 First, notwithstanding mootness, should this court
decide this case on the merits because it involves matters of
statewide importance that are capable of repetition yet evade
appellate review? Second, does Wisconsin recognize the mature
minor doctrine, which may permit a minor to give or refuse
consent to medical treatment after a finding that she is
sufficiently mature and competent to make the treatment
decision? Third, does a mature, competent minor have an
enforceable due process right to refuse unwanted medical
treatment? Fourth, did the circuit court violate Sheila W.'s
common law and constitutional right to refuse unwanted medical
treatment by appointing a temporary guardian to determine
whether to give consent to medical treatment over her
objections?
¶4 We address only the issue of mootness. This court has
"consistently adhered to the rule that a case is moot when a
2
No. 2012AP500
determination is sought upon some matter which, when rendered,
cannot have any practical legal effect upon a then existing
controversy." G.S., Jr. v. State, 118 Wis. 2d 803, 805, 348
N.W.2d 181 (1984). In this case, no determination of this court
will have any practical legal effect upon an existing
controversy because the order being appealed has expired. There
was no request to extend the order and there is no indication
that Dane County has sought any additional order to which Sheila
W. objects.2
¶5 All parties agree with the conclusion of the court of
appeals that the issues presented in this case are moot. Like
the parties and the court of appeals, we also conclude that the
issues presented are moot.
¶6 Sheila W. argues that this court should reach the
merits of the issues presented despite the acknowledged
mootness. In past cases, this court has addressed moot issues
when the issues presented are of "great public importance," or
when "the question is capable and likely of repetition and yet
2
Counsel for Dane County observed at oral argument that no
"movement" has been made for any additional order:
But there is nothing in this record to suggest that
this is an ongoing problem at this point. For the
last year, there has not been, to the best of my
knowledge, any movement to subject [Sheila W.] to
additional transfusions to which she objects, and to
the best of my knowledge she survives.
3
No. 2012AP500
evades appellate review . . . ." State ex rel. Angela M.W. v.
Kruzicki, 209 Wis. 2d 112, 120 n.6, 561 N.W.2d 729 (1997).3
¶7 This case undoubtedly presents issues of great public
importance. Questions concerning when or if a minor may
withdraw consent to life-saving medical treatment are inquiries
"bristling with important social policy issues." Id. at 134.
Furthermore, it appears that orders appointing temporary
guardians for the purpose of determining whether to consent to
life-saving medical care are capable and likely of repetition
and yet will evade appellate review.
¶8 In this instance, we deem it unwise to decide such
substantial social policy issues with far-ranging implications
based on a singular fact situation in a case that is moot. In
Eberhardy v. Circuit Court for Wood Cnty., 102 Wis. 2d 539, 307
N.W.2d 881 (1981), this court was faced with a similar dilemma
of whether to yield initially to the legislature on a social
policy issue. In that case the guardians of a mentally-impaired
adult daughter sought court approval for her surgical
sterilization. Id. at 541-42. The court concluded that because
of the complexities of the public policy considerations
involved, opportunity should be given to the legislature to
3
For additional discussion of mootness and its exceptions,
see, e.g., State v. Schulpius, 2006 WI 1, 287 Wis. 2d 44, 707
N.W.2d 495; Sauk Cnty. v. Aaron J.J., 2005 WI 162, 286 Wis. 2d
376, 706 N.W.2d 659; State ex rel. Riesch v. Schwarz, 2005 WI
11, 278 Wis. 2d 24, 692 N.W.2d 219; State v. Morford, 2004 WI 5,
268 Wis. 2d 300, 674 N.W.2d 349; City of Racine v. J-T
Enterprises of America, Inc., 64 Wis. 2d 691, 221 N.W.2d 869
(1974).
4
No. 2012AP500
conduct hearings and undertake the necessary fact-finding
studies that would result in measured public policy along with
statutory guidelines. Id. at 542. The court explained:
The legislature is far better able, by the hearing
process, to consider a broad range of possible fact
situations. It can marshal informed persons to give
an in-depth study to the entire problem and can secure
the advice of experts . . . to explore the
ramifications of the adoption of a general public
policy . . . .
Id. at 570-71.
¶9 For the same reasons enunciated in Eberhardy, we
decline at this time to exercise the court's discretion to
address the moot issues presented in this case.4 Accordingly, we
affirm the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
4
As the court stated in Eberhardy in yielding to
legislative action, it should not be construed that "this court
abrogates its own authority and jurisdiction to act on this
subject at a future time if it becomes apparent that the
legislature is unable or unwilling to act." Eberhardy v.
Circuit Court for Wood Cnty., 102 Wis. 2d 539, 578, 307 N.W.2d
881 (1981).
5
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¶10 DAVID T. PROSSER, J. (concurring). The Per
Curiam opinion concludes that this case is moot. It further
concludes that, although the case raises issues of great public
importance and presents a situation likely to repeat itself yet
evade appellate review, the court should not proceed to exercise
its discretion to take up issues that ought, if possible, to be
decided by the legislature. I strongly agree with this
decision. I write separately to supplement the explanation of
why further court action at this time would be premature and
undesirable.
I
¶11 In considering this case, the court is not fully
apprised about the present status of Sheila W. Thus, the case
is being reviewed on facts that are more than a year old.
¶12 In the early months of 2012, Sheila W. (Sheila), then
15, was diagnosed with aplastic anemia, a life-threatening
illness in which a person's immune system attacks the person's
bone marrow, preventing the body from producing new blood cells.
Sheila had received treatment for her condition at the
University of Wisconsin Hospital in Madison, and she was taking
immunosuppressant drugs without objection. Sheila's doctors
determined, however, that Sheila needed blood transfusions and
that if she did not have them, her condition would become dire.
Her red blood cell, white blood cell, and platelet counts were
very low, and she was at risk of serious infection, spontaneous
hemorrhage, and cardiac arrest. Dr. Christian Capitini, a
1
No. 2012AP500.dtp
pediatric hematologist who was Sheila's attending physician,
informed Sheila that without blood transfusions, she would die.
¶13 Sheila's parents refused to consent to blood
transfusions. Sheila and her family were Jehovah's Witnesses1
who believed that God prohibits blood transfusions. The parents
indicated to their daughter that they believed she was mature
enough to make her own decision to accept or refuse blood
transfusions, and they informed her that if she decided to
accept blood transfusions, they would support her decision.
However, the parents would not personally consent.
¶14 Sheila refused to consent to the transfusions, citing
a Biblical passage from Acts 15:28 and 29. She told Dr.
Capitini that she "would rather die not receiving the
transfusions than survive, but have the stigma of having
received a transfusion." She told Cheryl Bradley, a child
protection worker for Dane County, that she would not consent to
a blood transfusion under any circumstances, even in the face of
death. She told Dane County Circuit Judge William Foust that a
blood transfusion would be "devastating to me mentally and
physically" because it is "my body, my belief, my wishes." She
considered a blood transfusion equivalent to "rape."
1
According to the annual report of Jehovah's Witnesses,
there were approximately 7.8 million active members, or
"publishers," worldwide in 2012, with roughly 1.2 million
members in the United States. Watch Tower Bible and Tract
Society of Pa., 2013 Yearbook of Jehovah's Witnesses, 178, 186,
190 (2013).
2
No. 2012AP500.dtp
¶15 On March 1, 2012, Dane County filed a petition for
protection or services for Sheila under Wis. Stat. § 48.255 and
a petition for temporary physical custody under Wis. Stat.
§ 48.205. The following day, the Dane County Circuit Court
conducted a hearing at University Hospital. After receiving
testimony, the court sua sponte appointed a temporary guardian
for Sheila under Wis. Stat. § 54.50. The guardian was given
authority to decide whether to consent to the recommended
medical treatment. The guardian consented, and an undetermined
number of blood transfusions were administered to Sheila. The
court's guardianship order expired 60 days after March 2, 2012,
and was not extended. The expiration of the order is the
principal reason this case is moot.
II
¶16 In this review, Sheila asks the court to disregard
mootness and to recognize the "mature minor doctrine" as part of
Wisconsin law. Sheila describes the mature minor doctrine as an
exception to the general rule requiring parents to give consent
to medical treatment for their children. Under the doctrine,
older minors can be permitted to independently make medical
treatment decisions involving their own care if they demonstrate
"sufficient understanding and appreciation of the nature and
consequences of treatment despite their chronological age." Fay
A. Rozovsky, Consent to Treatment: A Practical Guide,
§ 5.01[B][3] (4th ed. 2012). The court's recognition of the
mature minor doctrine would presumably enable Sheila to refuse
any future blood transfusions regardless of the consequences.
3
No. 2012AP500.dtp
¶17 The parties acknowledge that states have come to
different conclusions about the mature minor doctrine. A number
of states have adopted some form of the doctrine, but there is
little consistency about how to determine when a minor is
"mature" and the full extent of the decisions to which that
"maturity" may apply.
¶18 Several states have recognized the "rights" of mature
minors by statute. See, e.g., Arkansas (Ark. Code Ann. § 20-9-
602(7) (2012)); New Mexico (N.M. Stat. Ann. § 24-7A-6.1.C.
(1997)); South Carolina (S.C. Code Ann. § 63-5-340 (2010)); and
Virginia (Va. Code Ann. § 63.2-100.2. (2012)). But care must be
taken not to misread some of these statutes. For instance, the
South Carolina statute provides:
Any minor who has reached the age of sixteen
years may consent to any health services from a person
authorized by law to render the particular health
service for himself and the consent of no other person
shall be necessary unless such involves an operation
which shall be performed only if such is essential to
the health or life of such child in the opinion of the
performing physician and a consultant physician if one
is available.
S.C. Code Ann. § 63-5-340 (2010) (emphasis added). It is not
clear from this statute whether a minor who has reached the age
of 16 years may refuse lifesaving services, especially if those
services are authorized by a parent or by a court. A provision
of South Carolina's Death with Dignity (or Right to Die) Act,
S.C. Code Ann. § 44-77-30 (2002), permits a person to adopt a
written declaration that life-sustaining procedures may be
withheld, but only if the person is 18 years of age or older.
4
No. 2012AP500.dtp
Consequently, while South Carolina "recognizes" the rights of
mature minors by statute, the statute is not as far-reaching as
the doctrine that Sheila proposes here.
¶19 By contrast, New Mexico's statute appears to be very
far-reaching and to cover Sheila's 2012 circumstances. The
pertinent statute reads:
Subject to the provisions of Subsection B of this
section, if an unemancipated minor has capacity
sufficient to understand the nature of that
unemancipated minor's medical condition, the risks and
benefits of treatment and the contemplated decision to
withhold or withdraw life-sustaining treatment, that
unemancipated minor shall have the authority to
withhold or withdraw life-sustaining treatment.
N.M. Stat. Ann. § 24-7A-6.1.C. (1997). If this statute had been
in effect last year in Wisconsin, Sheila would now likely be
dead.
¶20 There also are a number of court decisions that have
adopted some form of the mature minor doctrine. See, e.g.,
Kozup v. Georgetown Univ., 851 F.2d 437, 439 (D.C. Cir. 1988);
People v. E.G., 549 N.E.2d 322, 325 (Ill. 1989); Younts v. St.
Francis Hosp. & Sch. of Nursing, 469 P.2d 330, 338 (Kan. 1970);
In re Swan, 569 A.2d 1202, 1205 (Me. 1990); In re Rena, 705
N.E.2d 1155, 1157 (Mass. App. Ct. 1999); Bakker v. Welsh, 108
N.W. 94, 96 (Mich. 1906); Gulf & Ship Island R.R. Co. v.
Sullivan, 119 So. 501, 502 (Miss. 1928); Cardwell v. Bechtol,
724 S.W.2d 739, 748-49 (Tenn. 1987); Belcher v. Charleston Area
Med. Ctr., 422 S.E.2d 827, 837-38 (W. Va. 1992). The substance
of these decisions is not uniform. To illustrate, the Tennessee
Supreme Court adopted the so-called Rule of Sevens, which
5
No. 2012AP500.dtp
provides that children under the age of 7 have no capacity to
consent to medical treatment, children between the ages of 7 and
14 have a rebuttable presumption of no capacity, and children
between the ages of 14 and the age of majority possess a
rebuttable presumption of capacity. Cardwell, 724 S.W.2d at
745.
¶21 In 2009 the Supreme Court of Canada exhaustively
considered the mature minor doctrine in a case similar to the
one before us. A.C. v. Manitoba, [2009] 2 S.C. 181 (Can.).
In A.C., the statutory law in Manitoba recognized a mature
minor's views with respect to her own health care but authorized
the Director of Child and Family Services to seek treatment for
a child whom the director believed did not understand or
appreciate the consequences of the child's decision. The
subject of the case was admitted to a hospital when she was 14
years, 10 months old, suffering from internal bleeding caused by
Crohn's disease. Id., para. 5. She was a devout Jehovah's
Witness, id., who previously had signed an advance medical
directive containing her written instructions not to be given
blood under any circumstances. Id., para. 6. Her doctor
believed that internal bleeding created an imminent risk of
death. Id., para. 11. Nevertheless, A.C. refused to consent to
a blood transfusion. Id., para. 7.
¶22 A brief psychiatric assessment took place at the
hospital on the night after the young woman's admission. Id.,
para. 6. The Director of Child and Family Services determined
her to be a child in need of protection, and sought a treatment
6
No. 2012AP500.dtp
order from the court under section 25(8) of the Manitoba Child
and Family Services Act, under which the court may authorize
treatment that it considers to be in the child's best interests.
Id., paras. 8–9. Section 25(9) of the Act presumes that the
best interests of a child 16 or over will be most effectively
promoted by allowing the child's views to be determinative,
unless it can be shown that the child does not understand the
decision or appreciate its consequences. Id., para. 9. Where
the child is under 16, however, no such presumption exists. See
id. As a result, the local court ordered that A.C. receive
blood transfusions, concluding that "when a child is under 16
years old, there are no legislated restrictions . . . on the
court's ability to order medical treatment in the child's best
interests." Id., para. 12 (internal quotation marks omitted).
A.C. and her parents appealed the order, arguing that the
legislative scheme was unconstitutional because it unjustifiably
infringed A.C.'s rights under the Manitoba statute and the
Canadian Charter of Rights and Freedoms. Id., para. 14. The
Court of Appeal upheld the constitutional validity of the
challenged provisions as well as the treatment order. See id.,
paras. 15–20.
¶23 Writing for a majority of the Supreme Court, Justice
Rosalie Abella made the following observations:
The application of an objective "best interests"
standard to infants and very young children is
uncontroversial. Mature adolescents, on the other
hand, have strong claims to autonomy, but these claims
exist in tension with a protective duty on the part of
the state that is also justified.
7
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. . . .
In the vast majority of situations where the
medical treatment of a minor is at issue, his or her
life or health will not be gravely endangered by the
outcome of any particular treatment decision. . . .
Where a young person comes before the court under
s. 25 of the Child and Family Services Act, on the
other hand, it means that child protective services
have concluded that medical treatment is necessary to
protect his or her life or health, and either the
child or the child's parents have refused to consent.
In this very limited class of cases, it is the
ineffability inherent in the concept of "maturity"
that justifies the state's retaining an overarching
power to determine whether allowing the child to
exercise his or her autonomy in a given situation
actually accords with his or her best interests. The
degree of scrutiny will inevitably be most intense in
cases where a treatment decision is likely to
seriously endanger a child's life or health.
The more a court is satisfied that a child is
capable of making a mature, independent decision on
his or her own behalf, the greater the weight that
will be given to his or her views when a court is
exercising its discretion under s. 25(8). . . . Such
an approach clarifies that in the context of medical
treatment, young people under 16 should be permitted
to attempt to demonstrate that their views about a
particular medical treatment decision reflect a
sufficient degree of independence of thought and
maturity.
. . . When applied to adolescents, therefore,
the "best interests" standard must be interpreted in a
way that reflects and addresses an adolescent's
evolving capacities for autonomous decision making.
It is not only an option for the court to treat the
child's views as an increasingly determinative factor
as his or her maturity increases, it is, by
definition, in a child's best interests to respect and
promote his or her autonomy to the extent that his or
her maturity dictates.
A.C., 2 S.C. 181, paras. 82, 85-88.
8
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¶24 The authorities cited above, including the decision of
the Supreme Court of Canada, reveal the seriousness that should
be afforded to Sheila's position. But her position may not
represent the majority view in Wisconsin and it may not
represent sound public policy. Asking this court to enshrine
Sheila's view into our law is asking the court to make
profoundly important policy determinations about the rights of
minors as well as the role of parents and the role of the state
without statutory guidance. It is asking this court to make up
the law on its own initiative. Courts need not and should not
leap into controversies that may upset longstanding legal
principles unless their involvement is unavoidable. This
court's involvement is not unavoidable today.
III
¶25 There are specific reasons why the court is correct in
not acting now.
¶26 First, unlike Canada and several states, Wisconsin has
not codified a mature minor doctrine into its statutory law.
However, Wisconsin does have a statute on advance directives to
physicians, Wis. Stat. § 154.03(1) ("Any person of sound mind
and 18 years of age or older may at any time voluntarily execute
a declaration . . . authorizing the withholding or withdrawal of
life-sustaining procedures or of feeding tubes"), and a statute
on Power of Attorney for Health Care that specifically provides
that "[a]n individual who is of sound mind and has attained age
18 may voluntarily execute a power of attorney for health care."
Wis. Stat. § 155.05(1) (emphasis added). By incorporating the
9
No. 2012AP500.dtp
adult age of 18 into these statutes, the legislature appears to
have made a policy choice that is relevant to the present case.
¶27 Counsel have not briefed the applicability, if any, of
any provision of Wis. Stat. § 51.61.
¶28 Second, the court is reviewing this case against the
backdrop of State v. Neumann, 2013 WI 58, ___ Wis. 2d ___, ___
N.W.2d ___, in which the court upheld the convictions of Dale
and Leilani Neumann for second-degree reckless homicide in the
death of their 11-year-old daughter Kara. Kara died from
diabetic ketoacidosis resulting from untreated juvenile onset
diabetes mellitus. Id., ¶1. Her parents were concerned about
Kara's health and prayed for her recovery, but they never tried
to secure medical treatment for her. After Kara died, her
parents were prosecuted for second-degree reckless homicide.
Id.
¶29 Although I disapproved of the parents' neglect, I
dissented from their convictions under the second-degree
reckless homicide statute because I thought the statutory scheme
was "very difficult to understand and almost impossible to
explain." Id., ¶213 (Prosser, J., dissenting). The statutory
scheme presented notice issues to potential defendants,
including the question of when a failure to act amounts to
reckless conduct. The court said the answer to when a failure
to act amounts to reckless conduct is when the failure violates
a "legal duty." Id., ¶94.
¶30 The majority in Neumann had no problem determining
that the Neumanns violated a "legal duty" to provide medical
10
No. 2012AP500.dtp
care to their daughter. Against that background, what is the
parental duty here? Sheila's parents refused to consent to
lifesaving blood transfusions for their daughter. Would
Sheila's parents have escaped criminal responsibility if Sheila
had died from not receiving blood transfusions if the parents
claimed that they had delegated medical decision-making to their
daughter? Stated differently, does a state's adoption of a
mature minor doctrine relieve parents of whatever duty they have
to provide medical care to their "mature" children? These
questions have not been briefed, and, in my view, the court is
unprepared to answer them.
¶31 Third, permitting a minor to refuse lifesaving medical
treatment comes uncomfortably close to permitting a minor to
commit suicide.
¶32 Wisconsin law provides that, "[w]hoever with intent
that another take his or her own life assists such person to
commit suicide is guilty of a Class H felony." Wis. Stat.
§ 940.12 (emphasis added). At first glance, this statute would
not appear to be implicated in a situation where a minor is
permitted to refuse blood transfusions. In such a case, a
potential defendant would not normally have the purpose that the
minor commit suicide. However, the phrase "with intent that"
also means a defendant was aware that his or her conduct was
practically certain to cause (the minor) to commit suicide.
¶33 What is suicide? On this point, Sheila's doctors did
not believe that she had a terminal illness. Assuming that she
is still alive, her doctors were correct. But Sheila's
11
No. 2012AP500.dtp
attending physician predicted that she would die without blood
transfusions. There was no alternative treatment to preserve
her life. Refusing to agree to the only known treatment to save
one's life is suicidal unless a person's condition is terminal.2
Facilitating suicidal conduct in these circumstances is
practically certain to cause the person's death.3 Here, the
"person" is a minor.
¶34 The mature minor doctrine anticipates that the state
will take steps to assure that a minor has the maturity and
understanding to knowingly, intelligently, and voluntarily make
the decision whether to act to preserve her own life. This is
likely to put courts in the unenviable position of either
prohibiting or permitting a minor's suicidal conduct.
¶35 Courts are often obligated to enforce law that they
may not approve. They are not obligated to create law that they
do not approve. To my mind, it is not sound public policy to
force courts to give their imprimatur to a minor's commitment to
martyrdom.
2
See Cruzan v. Dir., Mo. Dep't of Health, 497 U.S. 261, 293
(1990) (Scalia, J., concurring) ("American law has always
accorded the State the power to prevent, by force if necessary,
suicide——including suicide by refusing to take appropriate
measures necessary to preserve one's life").
3
Cf. Lenz v. L.E. Phillips Career Dev. Ctr., 167
Wis. 2d 53, 70, 482 N.W.2d 60 (1992) ("It is difficult not to
view the withdrawal of artificial feeding as inducing death
through starvation and dehydration.").
12
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¶36 Finally, Sheila told her attending physician that she
would rather die than endure the "stigma of having received a
transfusion."
¶37 According to the American Red Cross, 30 million blood
components are transfused each year in the United States. Am.
Red Cross, Blood Facts and Statistics,
http://www.redcrossblood.org./learn-about-blood/blood-facts-and-
statistics (last visited June 27, 2013). These blood components
are received by approximately 5 million patients from more than
9 million donors. Id. There is little stigma attached to blood
transfusions among the population at large, although there is
often concern about the safety of the blood supply.
¶38 Jehovah's Witnesses are one of the most notable
exceptions. They consider the issue of blood transfusions to be
"a religious issue rather than a medical one. Both the Old and
New Testaments clearly command us to abstain from blood." Watch
Tower Bible and Tract Society of Pa., Why Don't You Accept Blood
Transfusions?, http://www.jw.org/en/jehovahs-
witnesses/faq/jehovahs-witnesses-why-no-blood-transfusions/
(citing Genesis 9:4; Leviticus 17:10; Deuteronomy 12:23; Acts
15:28, 29) (last visited June 27, 2013). Some Jehovah's
Witnesses have been accused of disfellowshipping, even shunning,
members who consent to blood transfusions. See Osamu Muramoto,
Bioethical aspects of the recent changes in the policy of
refusal of blood by Jehovah's Witnesses, Brit. Med. J., Jan. 6,
2001 at 37-39. The court is not in a position to evaluate these
accusations on the evidence before us. However, the existence
13
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of these accusations inevitably raises questions about whether a
minor's decision to refuse blood transfusions——at the risk of
her own death——is truly a voluntary decision when the minor is a
Jehovah's Witness.
¶39 The issues raised in this writing will be no easier
for the legislature than for this court. But the court ought to
defer to the principal lawmaking branch of government before it
tries to make policy on its own initiative.
¶40 For the foregoing reasons, I respectfully concur.
14
No. 12AP500.mjg
¶41 MICHAEL J. GABLEMAN, J. (dissenting). Two important
issues are presented in this case: (1) should Wisconsin
recognize the mature minor doctrine, which permits those under
18 years of age to refuse life-saving medical care under some
circumstances?; and (2) does a minor have a due-process right to
refuse medical treatment? Instead of answering them, the court
washes its hands of the matter and declares the case moot. As
this court has a responsibility to decide matters of great
public importance that are likely to recur but evade appellate
review, I dissent from the decision to dismiss this appeal.
¶42 A brief recitation of the facts and procedural history
is necessary to demonstrate the absurdity of the majority's
refusal to decide this case. In February 2012, 15-year-old
Sheila W. was diagnosed with aplastic anemia, a condition that
prevents her bone marrow from producing blood cells. If left
untreated, the condition is fatal. Sheila was admitted to the
hospital on February 25, 2012 and given antibody treatments.
After three days of treatment, however, her blood platelet count
remained at a critically low level, putting her at risk of
spontaneous hemorrhage, cardiac arrest, and respiratory
distress. Sheila's treating physician thus recommended that she
undergo blood transfusions. Without these transfusions, her
doctor stated that she would die.
¶43 Sheila and her parents, though, are Jehovah's
Witnesses, who believe that the Bible requires them to "abstain
from blood." Receiving a blood transfusion would violate this
belief, and Sheila described it as tantamount to "rape." Her
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parents, citing deference to their daughter's decision, stated
they would not force a transfusion upon her, even knowing she
would die.
¶44 Due to the high risk of imminent death, Dane County
took emergency custody of Sheila on February 29. The County
then filed a petition for protective services the next day,
seeking temporary physical custody of Sheila to administer the
blood transfusions. See Wis. Stat. § 48.13(10). On Friday,
March 2, the circuit court held a hearing in the hospital. The
court found that Sheila's parents were "seriously endanger[ing]"
her health by refusing to consent to the transfusions. But
instead of granting the petition for temporary physical custody,
the court appointed a temporary guardian pursuant to Wis. Stat.
§ 54.50(1). The order gave the guardian authority to "[d]ecide
whether to consent to medical treatment." Sheila's motion to
stay the order pending an appeal was denied by the circuit
court. Sheila's appointed guardian consented to the blood
transfusions, the first of which was successfully performed
later that day. The following Monday, the day before Sheila was
scheduled for another transfusion, she filed a notice of appeal.
The court of appeals also denied Sheila's motion to stay the
transfusions pending an appeal, stating that "the irreparable
harm Sheila would suffer if forced to undergo continued blood
transfusions against her religious beliefs is outweighed by the
irreparable harm to the public interest in preserving life and
protecting minors that would occur if Sheila were to die while
the appeal is pending." However, the court did state that "it
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would be open to a motion to expedite this appeal to minimize
the length of time Sheila receives transfusions, in the event
that the guardianship order is ultimately reversed by this court
or the Wisconsin Supreme Court."
¶45 By the time the case was fully briefed before the
court of appeals, the temporary guardianship order had expired.
While conceding that her appeal was thus moot because she no
longer needed the transfusions, Sheila argued that her case
nonetheless fell under one of the exceptions to the general rule
that a court does not decide moot issues. We have stated that a
court may address moot issues when: the issue has great public
importance, a statute's constitutionality is involved, a
decision is needed to guide the trial courts, or the issue is
likely to repeat yet evade review because the situation at hand
is one that typically is resolved before completion of the
appellate process. Sauk Cnty. v. Aaron J.J., 2005 WI 162, ¶3
n.1, 286 Wis. 2d 376, 706 N.W.2d 659 (per curiam). In a two-
page summary order, the court of appeals concluded that Sheila's
appeal did not satisfy any of the exceptions to mootness.
¶46 Sheila filed a petition for review on November 27,
2012. In its response to the petition, Dane County argued that
the court of appeals correctly dismissed the case as moot. On
January 15, 2013, we granted Sheila's petition for review. On
February 7, we assigned the case for oral argument. Each party
filed briefs. Oral argument was held April 11.
¶47 The subject of mootness was only glancingly touched
upon at oral argument. In her opening statement to the court,
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Dane County's attorney said, "Dane County asks that you dismiss
this appeal as moot. The County believes that's the most
appropriate outcome in this case, one that leaves the delicate
social balancing that we have been talking about among complex
and competing policy interests to the legislature." No follow-
up questions on mootness were asked. In fact, the issue of
mootness received only passing, perfunctory references during
the 70-minute oral argument. No member of this court asked
Sheila's attorney for her position on mootness, and she did not
offer it.
¶48 Based on this court's actions since granting the
petition for review in January, Sheila W. is entitled to feel
blindsided by today's decision to dismiss her appeal as moot.
And upon reading the per curiam issued by four members of this
court, her shock is likely to turn to confusion. The per curiam
assures us that "[t]his case undoubtedly presents issues of
great public importance. . . . Furthermore, it appears that
orders appointing temporary guardians for the purpose of
determining whether to consent to life-saving medical care are
capable and likely [to repeat] and yet will evade appellate
review." Per Curiam, ¶7. In other words, according even to the
per curiam opinion, Sheila meets two of the exceptions to
mootness.1
¶49 Despite these conclusions, the per curiam holds: "In
this instance, we deem it unwise to decide such substantial
1
I would add that this case also satisfies a third
exception to mootness: a decision is needed to guide the trial
courts.
4
No. 12AP500.mjg
social policy issues with far-ranging implications based on a
singular fact situation in a case that is moot." Per Curiam,
¶8. I do not understand what the majority means by this.
"Singular," as the per curiam uses the word, would seem to mean
"unique," "beyond what is ordinary," or "strange or unusual."
The American Heritage Dictionary of the English Language 1636
(5th ed. 2011). I fail to see why the facts in this case make
it a bad candidate to evaluate whether Wisconsin should adopt
the common law mature minor doctrine or decide the scope of a
minor's due-process rights. The mature minor doctrine asks when
and whether someone under the age of 18 should be permitted to
refuse medical care. See e.g., Illinois v. E.G., 549 N.E.2d
322, 327-28 (Ill. 1989). This case presents about as clear an
opportunity to address that question as can be imagined.
Furthermore, why does a "singular fact situation" make a
particular case unworthy of our review? Every case to some
extent has a "unique" set of facts, and many have "strange or
unusual facts." To say that a case of "great public importance"
cannot be resolved because the particular facts are "singular"
is no answer at all.2
2
Justice Prosser's concurrence attempts to provide the
rationale lacking from the per curiam. Much of the concurrence,
however, reads like a dissent from a decision to adopt the
mature minor doctrine, which this court has not done. See
concurrence, ¶¶24, 31, 34, 35. To be clear, this dissent does
not take a position on whether the court should adopt the mature
minor doctrine or whether minors have a due-process right to
refuse medical treatment because a majority of this court
inexplicably does not want to decide those issues.
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¶50 Paradoxically, the court uses Eberhardy v. Circuit
Court for Wood Cnty., 102 Wis. 2d 539, 307 N.W.2d 881 (1981) as
its fig leaf. Eberhardy presented the question of "whether the
circuit court has jurisdiction to authorize the duly appointed
guardians of an adult mentally retarded female ward to give
their consent to surgical procedures which will result in the
permanent sterilization of the ward when such sterilization is
for contraceptive and therapeutic purposes," and if the circuit
court had such jurisdiction, whether it was "appropriate for the
court to exercise it for this purpose." Id. at 541-42. We held
that although the circuit courts had jurisdiction over a
guardian's petition seeking sterilization of an incompetent
ward, they were not permitted to exercise that jurisdiction
until the legislature provided clear guidelines in the area.
Id. at 578-79. In doing so we stressed the "irreversible"
nature of sterilization. Id. at 567, 568, 572, 575, 577, 585,
592. However, in a passage that should give the majority pause,
we stated: "The inevitability of the consequences of not acting
judicially in this case does not approach the degree that might
force a choice if the question were one of invoking state power
to order treatment for one who would die without it." Id. at
575. Thus by its own terms Eberhardy does not dictate the
result reached by the court today. In fact, it counsels just
the opposite.
¶51 Equally important, Eberhardy shows that the
legislature does not always act quickly in response to this
court's prodding. The only Wisconsin statute to address the
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sterilization of incompetents, Wis. Stat. § 54.25(2)(c)e.,
provides that if an individual is declared incompetent and a
guardian appointed, the circuit court may "declare that the
individual has incapacity . . . to consent to sterilization, if
the court finds that the individual is incapable of
understanding the nature, risk, and benefits of sterilization,
after the nature, risk, and benefits have been presented in a
form that the individual is most likely to understand." Yet it
was not until 25 years after Eberhardy that this statute was
enacted! 2005 Wis. Act 387, § 100 (effective May 25, 2006). As
Justice Callow pointed out in his Eberhardy dissent, "[a]part
from any aversion legislators may have to addressing a
controversial question, there is the added practical problem of
the press of legislative business. The thousands of problems
presented to the legislature tax its ability to respond
thoughtfully to the multiple problems of society." 102 Wis. 2d
at 605. As the history following Eberhardy reveals, the Sheila
W.s of this state may have to wait a long time before the
legislators on white horses arrive. In the meantime, the actual
problem of what to do with minors who refuse life-saving
treatment will remain unresolved.
¶52 Additionally, the question of the mature minor
doctrine is not just an abstract academic debate. The decision
over whether this state should adopt such a doctrine will
literally have life or death consequences for people such as
Sheila W. Currently, the circuit courts have no standard to
apply when presented with a minor who refuses life-saving
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medical care. Frighteningly, this raises the specter that a
child's life could depend on which judge within a county is
assigned the case.3 Unfortunately, four members of this court
refuse to offer any guidance to circuit court judges who must
actually adjudicate these difficult situations.
¶53 The case is just as moot now as it was when we granted
the petition for review back on January 15. If the court did
not want to decide the issues presented in this case, it should
not have granted the petition for review, ordered briefing, and
then held oral argument. What function is served when a law-
developing court takes a summary order declaring a case moot and
affirms it with a summary order declaring a case moot? Life is
about hard choices, particularly for members of a state high
court. Unfortunately, today the only thing the parties receive
for their time and trouble before this court is abdication
dressed as modesty.
¶54 I am authorized to state that Justices PATIENCE DRAKE
ROGGENSACK and ANNETTE KINGSLAND ZIEGLER join this dissent.
3
The concurrence states that we should not adopt the mature
minor doctrine because it would put courts "in the unenviable
position of either prohibiting or permitting a minor's suicidal
conduct." Concurrence, ¶34. Aside from inappropriately
assuming that this court would adopt the doctrine if the case
were not moot, the concurrence's statement is ironic because the
decision of this court to not answer the questions presented is
what will put circuit courts in the position of making ad hoc
life or death decisions. If Sheila were to relapse and require
blood transfusions again before her eighteenth birthday, how
would the members of the majority advise a court to handle the
matter? Would it have been wrong for the circuit court judge in
this case to allow Sheila to die? Inaction by the majority will
lead to the patchwork approach the concurring Justice is
attempting to avoid.
8
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