VOSS, P.J.
In this case, we are called upon to decide a single point. At issue is whether a trial court has the
authority to designate the maximum level of inpatient facility as part of a reexamination hearing held pursuant to sec. 971.17 (2), Stats. We agree with the trial court that it has no such authority and affirm its decision.
In 1974, a trial court found Ronald Smith not guilty of criminal charges by reason of mental disease or defect. The trial court committed Smith to the Department of Health and Social Services, and the Department placed Smith in Central State Hospital. Smith petitioned for a reexamination hearing on September 27, 1980. At a pretrial conference, Smith’s attorney notified the court that Smith did not wish to contest the issue of dangerousness. Rather, Smith’s attorney only requested that the court make a determination on the maximum level of inpatient facility. He contended that sec. 51.20(13) (c)2, Stats.,
gave the trial court the authority to redetermine
the maximum level of inpatient facility. The district attorney, at that point, completely agreed. The trial court offered no opinion whether or not it possessed such authority.
On June 17, 1980, S.W. Kayute, a doctor at Central State Hospital, informed the trial court that the hospital staff had reevaluated Smith and recommended that Smith be placed at a different facility. The staff had recommended its feeling that there would be a therapeutic benefit in exposing Smith to new programs and new people.
The trial court held a hearing on July 3, 1980 to determine the sole issue of whether Smith should be transferred from Central State Hospital to another less restrictive facility. At the hearing, it received evidence that recommended Smith’s transfer to Mendota. The trial court expressed a reluctance to order transfer and held the matter open for thirty to forty-five days to allow a possible transfer to be made through the Department of Health and Social Services.
The Department denied Smith’s transfer. Consequently, the hearing on Smith’s transfer reconvened on August 25, 1980. At that time, for the first time in the hearing process, the district attorney expressed doubt about the court’s power to order transfer. This doubt occurred after a Department of Health and Social Services attorney, Paul Harris, talked to him. Harris addressed the court on this issue. He argued that sec. 51.20(13) (a), Stats., did not refer to the Department of Health and So
cial Services. Consequently, he contended that the trial court must revert back to sec. 971.17(2), Stats.,
to determine the extent of its authority to act in reexamination hearings. Because the section does not grant the trial court the authority to determine the maximum level of inpatient facility, the Department argued that the court had no such authority.
The uncontradicted expert testimony presented at the hearing indicated that a transfer to Mendota would be likely to improve Smith’s chances of recovery. The testimony also indicated that Smith was a potential escape risk, and his chances of recovery were not good. Men-dota offered no additional services that Central State did not provide.
Burton Wagner, the Department administrator who ultimately refused to transfer Smith, stated the reasons why the Department did not transfer Smith. He felt that Smith was a potential escape risk.
Additionally, he stated that staffing and population pressures were two factors which contributed to the decision not to transfer Smith.
The trial court ruled that it had no statutory
authority to determine the maximum level of inpatient facility for Smith.
On appeal, Smith argues that the court has the statutory authority to set the maximum level of inpatient facility. His argument is based upon the following statutory argument. Section 971.17 (2), Stats., states that the reexamination hearing “may be had as provided in sec. 51.20(16), Stats.”
Section 51.20(16) (g), Stats., states
that “ [s]ubsections (10) to (13) shall govern the procedure to be used in the conduct of the hearing insofar as applicable.” The pertinent part of subsections (10) through (13), sec. 51.20(13) (c)2, Stats., declares: “The community board under s. 51.42 or 51.437 shall arrange for treatment in the least restrictive manner consistent with the requirements of the subject individual
in accordance with a court order designating the maximum level of impatient facility,
if any, which may be used for treatment . . . .” (Emphasis added.) This, Smith contends, tracks the statutory justification for allowing the court to determine the maximum level of inpatient facility. We are not convinced by Smith’s argument.
Section 51.20(16) (g), Stats., declares that sec. 51.20 (13), Stats., “shall govern the procedure to be used in the conduct of the hearing,
insofar as applicable.”
(Emphasis added.) The plain language of sec. 51.20(13) (c) 2, Stats., indicates that it could not be applicable to a criminal commitment. The statute directs the
community board
to arrange for treatment in the least restrictive manner in accordance with what the court orders to be the maximum level of inpatient facility.
The community board only arranges for treatment in civil commitments, not criminal commitments. Section
971.17 (1), Stats.,
clearly expresses that the Department of Health and Social Services determines treatment in criminal commitment cases. Nothing in the statutes expresses the intent that the court gains the power to determine the maximum level of inpatient facility in a reexamination hearing when it does not have it in the first instance.
_Section 51.20(13), Stats., itself, makes a distinction between commitments to the board and commitments to the Department of Health and Social Services. Sections 51.20(13) (a)4 and 51.20(13) (a)5, Stats., both specifically refer to conditions when the court may commit a person to the department. Because the legislature showed the awareness of the difference between referrals to the board and referrals to the department, the only conclusion which may be drawn is that sec. 51.20(13) (c)2, Stats., was not intended to apply to criminal commitments.
Further, sec. 51.20(13) (c) 2, Stats., is not applicable because sec. 971.17(2), Stats., specifically indicates the options a court has at the end of a reexamination hearing. It may discharge the defendant completely, it may discharge the defendant on such conditions as the court determines to be necessary or it may recommit the defendant to the custody of the department. These are the only options available to the court at the termination of a sec. 971.17 (2), Stats., hearing.
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VOSS, P.J.
In this case, we are called upon to decide a single point. At issue is whether a trial court has the
authority to designate the maximum level of inpatient facility as part of a reexamination hearing held pursuant to sec. 971.17 (2), Stats. We agree with the trial court that it has no such authority and affirm its decision.
In 1974, a trial court found Ronald Smith not guilty of criminal charges by reason of mental disease or defect. The trial court committed Smith to the Department of Health and Social Services, and the Department placed Smith in Central State Hospital. Smith petitioned for a reexamination hearing on September 27, 1980. At a pretrial conference, Smith’s attorney notified the court that Smith did not wish to contest the issue of dangerousness. Rather, Smith’s attorney only requested that the court make a determination on the maximum level of inpatient facility. He contended that sec. 51.20(13) (c)2, Stats.,
gave the trial court the authority to redetermine
the maximum level of inpatient facility. The district attorney, at that point, completely agreed. The trial court offered no opinion whether or not it possessed such authority.
On June 17, 1980, S.W. Kayute, a doctor at Central State Hospital, informed the trial court that the hospital staff had reevaluated Smith and recommended that Smith be placed at a different facility. The staff had recommended its feeling that there would be a therapeutic benefit in exposing Smith to new programs and new people.
The trial court held a hearing on July 3, 1980 to determine the sole issue of whether Smith should be transferred from Central State Hospital to another less restrictive facility. At the hearing, it received evidence that recommended Smith’s transfer to Mendota. The trial court expressed a reluctance to order transfer and held the matter open for thirty to forty-five days to allow a possible transfer to be made through the Department of Health and Social Services.
The Department denied Smith’s transfer. Consequently, the hearing on Smith’s transfer reconvened on August 25, 1980. At that time, for the first time in the hearing process, the district attorney expressed doubt about the court’s power to order transfer. This doubt occurred after a Department of Health and Social Services attorney, Paul Harris, talked to him. Harris addressed the court on this issue. He argued that sec. 51.20(13) (a), Stats., did not refer to the Department of Health and So
cial Services. Consequently, he contended that the trial court must revert back to sec. 971.17(2), Stats.,
to determine the extent of its authority to act in reexamination hearings. Because the section does not grant the trial court the authority to determine the maximum level of inpatient facility, the Department argued that the court had no such authority.
The uncontradicted expert testimony presented at the hearing indicated that a transfer to Mendota would be likely to improve Smith’s chances of recovery. The testimony also indicated that Smith was a potential escape risk, and his chances of recovery were not good. Men-dota offered no additional services that Central State did not provide.
Burton Wagner, the Department administrator who ultimately refused to transfer Smith, stated the reasons why the Department did not transfer Smith. He felt that Smith was a potential escape risk.
Additionally, he stated that staffing and population pressures were two factors which contributed to the decision not to transfer Smith.
The trial court ruled that it had no statutory
authority to determine the maximum level of inpatient facility for Smith.
On appeal, Smith argues that the court has the statutory authority to set the maximum level of inpatient facility. His argument is based upon the following statutory argument. Section 971.17 (2), Stats., states that the reexamination hearing “may be had as provided in sec. 51.20(16), Stats.”
Section 51.20(16) (g), Stats., states
that “ [s]ubsections (10) to (13) shall govern the procedure to be used in the conduct of the hearing insofar as applicable.” The pertinent part of subsections (10) through (13), sec. 51.20(13) (c)2, Stats., declares: “The community board under s. 51.42 or 51.437 shall arrange for treatment in the least restrictive manner consistent with the requirements of the subject individual
in accordance with a court order designating the maximum level of impatient facility,
if any, which may be used for treatment . . . .” (Emphasis added.) This, Smith contends, tracks the statutory justification for allowing the court to determine the maximum level of inpatient facility. We are not convinced by Smith’s argument.
Section 51.20(16) (g), Stats., declares that sec. 51.20 (13), Stats., “shall govern the procedure to be used in the conduct of the hearing,
insofar as applicable.”
(Emphasis added.) The plain language of sec. 51.20(13) (c) 2, Stats., indicates that it could not be applicable to a criminal commitment. The statute directs the
community board
to arrange for treatment in the least restrictive manner in accordance with what the court orders to be the maximum level of inpatient facility.
The community board only arranges for treatment in civil commitments, not criminal commitments. Section
971.17 (1), Stats.,
clearly expresses that the Department of Health and Social Services determines treatment in criminal commitment cases. Nothing in the statutes expresses the intent that the court gains the power to determine the maximum level of inpatient facility in a reexamination hearing when it does not have it in the first instance.
_Section 51.20(13), Stats., itself, makes a distinction between commitments to the board and commitments to the Department of Health and Social Services. Sections 51.20(13) (a)4 and 51.20(13) (a)5, Stats., both specifically refer to conditions when the court may commit a person to the department. Because the legislature showed the awareness of the difference between referrals to the board and referrals to the department, the only conclusion which may be drawn is that sec. 51.20(13) (c)2, Stats., was not intended to apply to criminal commitments.
Further, sec. 51.20(13) (c) 2, Stats., is not applicable because sec. 971.17(2), Stats., specifically indicates the options a court has at the end of a reexamination hearing. It may discharge the defendant completely, it may discharge the defendant on such conditions as the court determines to be necessary or it may recommit the defendant to the custody of the department. These are the only options available to the court at the termination of a sec. 971.17 (2), Stats., hearing.
This interpretation is consistent with case law which discussed the cross-referencing between chs. 971 and 51.
In
State v. Gebarski,
90 Wis. 2d 754, 280 N.W.2d 672 (1979), the Wisconsin Supreme Court specifically held that sec. 51.20, Stats., applies to sec. 971.17(2), Stats., hearings only “insofar as applicable.”
Id.
at 763-65, 280 N.W.2d at 675-76. Where the language of sec. 51.20, Stats., conflicts with the more specific language of sec. 971.17(2), Stats., the more specific language applies.
See State v. Neitzel,
95 Wis. 2d 191, 200, 289 N.W.2d 828, 833 (1980);
Schlosser v. Allis-Chalmers Corp.,
65 Wis. 2d 153, 161, 222 N.W.2d 156, 160 (1974).
The court expressed the same preference for the application of the specific criminal statutes over sec. 51.20, Stats., in
State v. Hungerford,
84 Wis. 2d 236, 267 N.W. 2d 258 (1978). There the court held: “[I]t is clear that the legislature did not intend all of the provisions of the civil commitment statute relating to reexamination of a civilly committed person to apply to hearings for the extension of control over a sexual deviate.”
Id.
at 250, 267 N.W.2d at 266. This is precisely the situation in the case in point.
We hold that the trial court does not have the power to order the maximum level of inpatient facility in a sec. 971.17 (2), Stats., reexamination hearing.
Smith contends that even if no statutory basis for a formal hearing on placement exists, the patients have a
constitutional right to such a hearing. He argues that ch. 971 creates a right to treatment which cannot be denied without the due process protection of a hearing. Smith argues that sec. 51.61, Stats., guarantees this right,
and the trial court may determine whether this right has been violated at a sec. 971.17(2), Stats., reexamination hearing. We do not agree.
If Smith feels his right to treatment has been violated, he may either institute a grievance pursuant to sec. 51.-61(5), Stats.,
or bring an action for damages pursuant to sec. 51.61(7), Stats.
However, a reexamination
hearing is not intended to provide a tool for the patient to contest the treatment he has received.
The hearing is designed so that the patient may contest whether future treatment is needed. Use of the grievance procedure or instituting an action in court on the treatment received provides adequate due process protection. Consequently, we believe no due process violation exists here.
By the Court.
— Order affirmed.