Portage County v. J. W. K. , 386 Wis. 2d 672 ( 2019 )

2019 WI 54
SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP1574
COMPLETE TITLE: In the matter of the mental commitment
of J. W. K.:
Portage County,
Petitioner-Respondent,
v.
J. W. K.,
Respondent-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
OPINION FILED: May 21, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 11, 2018
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Portage
JUDGE: Thomas T. Flugaur
JUSTICES:
CONCURRED: DALLET, J., concurs and dissents, joined by
ABRAHAMSON, J. and A.W. BRADLEY, J. (opinion
filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
filed by Katie R. York, assistant state public defender. There
was an oral argument by Katie R. York.
For the petitioner-respondent, there was a brief filed by
Briana L. Sweeney and Interim Deputy Corporation Counsel,
Stevens Point. There was an oral argument by Briana L. Sweeney.
2019 WI 54
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP1574
(L.C. No. 2013ME18B)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the mental commitment of
J.W.K.:
Portage County, FILED
Petitioner-Respondent, MAY 21, 2019
v. Sheila T. Reiff
Clerk of Supreme Court
J.W.K.,
Respondent-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. An issue is moot when its
resolution will have no practical effect on the underlying
controversy. In this review of a Chapter 51 recommitment order,
we consider whether J.W.K.'s sufficiency-of-the-evidence
challenge to the 2016 order extending his commitment is rendered
moot because the 2016 order expired after the court extended his
commitment in 2017 under a separate order.1 Reversing the
1Wisconsin Stat. § 51.20 uses "recommitment" and "extension
of a commitment" interchangeably and we do as well. See
§ 51.20(13)(g)2r ("Twenty-one days prior to expiration of the
(continued)
No. 2017AP1574
expired 2016 order for insufficient evidence would have no
effect on subsequent recommitment orders because later orders
stand on their own under the language of the statute. We
therefore hold that J.W.K.'s sufficiency challenge is moot, and
we affirm the court of appeals' decision dismissing the appeal.2
I. BACKGROUND
¶2 J.W.K. was originally committed in February 2016 for
six months under Wis. Stat. § 51.20 (2017-18).3 In July 2016,
Portage County filed a petition seeking to extend J.W.K.'s
commitment for twelve months. The petition alleged J.W.K.: (1)
was "currently committed for involuntary treatment" at an
inpatient facility; (2) was a proper subject for commitment; (3)
had the mental illness of schizophrenia; (4) was "presently
dangerous as set forth in Sec. 51.20(1)(a) or based on
period of commitment under subd. 1., the department . . . shall
file an evaluation of the individual and the recommendation of
the department or county department regarding the individual's
recommitment with the committing court and provide a copy of the
evaluation and recommendation to the individual's counsel and the
counsel designated under sub. (4). . . . A failure of the
department or the county department to which an individual is
committed to file an evaluation and recommendation under this
subdivision does not affect the jurisdiction of the court over a
petition for recommitment." (emphasis added)); see also
§ 51.20(13)(g)3 ("Upon application for extension of a commitment
by the department or the county department having custody of the
subject, the court shall proceed under subs. (10) to (13)."
(emphasis added)).
2Portage Cty. v. J.W.K., No. 2017AP1574, unpublished slip
op. (Wis. Ct. App. Jan. 24, 2018).
3All subsequent references to the Wisconsin Statutes are to
the 2017-18 version unless otherwise indicated.
2
No. 2017AP1574
[J.W.K.'s] treatment record . . . would be a proper subject for
commitment if treatment were withdrawn as evidenced by: in the
past when commitment has expired, [J.W.K.] has discontinued
psychotropic medications and became a danger to self or others
or demonstrated inability to care for self"; and (5) was "not
competent to refuse psychotropic medication or treatment."
¶3 The circuit court held a hearing on the extension
petition in August 2016. At the hearing, the County presented
only the testimony of Dr. James Persing, who testified J.W.K.
was suffering from schizophrenia, and the symptoms included
"most prominently . . . delusional thinking and paranoia."
Persing said that J.W.K. was being treated with medication, and
this medication helped "organize [J.W.K.'s] thought processes"
and clear his delusional thinking and hallucinations. Persing
also opined that J.W.K. would be a proper subject for commitment
if treatment were withdrawn. On cross-examination, Persing
clarified that he based his opinion on J.W.K.'s "history" and
"overall struggles with chronic mental illness for many years
with variable levels of compliance with treatment, and leading
up to a point of [a] variety of altercations." The doctor made
clear J.W.K.'s "need for mental health commitment."4
¶4 J.W.K. testified on his own behalf. When his attorney
asked whether he understood the hearing was to determine whether
4
Persing based his opinion primarily on J.W.K.'s treatment
history; he met with J.W.K. for "approximately five minutes or
less."
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No. 2017AP1574
his commitment would be extended, J.W.K. responded that the
hearing "involve[d] more than that," and proceeded to tell the
circuit court that his family was stealing his money by
"breaking and entering into" his "private property
and . . . private home . . . and removing" his important
"documents." When his attorney interrupted to redirect him,
J.W.K. told the circuit court he would continue treatment on an
outpatient basis and take his medication even if he were not
committed.
¶5 At the conclusion of the testimony, the circuit court
found the statutory dangerousness standard was satisfied because
"there is a substantial likelihood that [J.W.K.] would be a
proper subject for commitment if treatment were withdrawn."
Accordingly, the circuit court extended J.W.K.'s commitment for
twelve months, ending on August 2, 2017.
¶6 J.W.K. did not timely appeal this order, but filed a
pro se motion asking for an extension "due to the lack of
exchange of information due to conflicting interest." The court
of appeals granted the motion, reinstated J.W.K.'s
postconviction rights and gave J.W.K. until April 24, 2017 to
seek postcommitment relief. The State Public Defender's office
appointed counsel for J.W.K. On April 3, 2017 his counsel filed
a notice of intent to seek postcommitment relief and on August
7, 2017 filed a notice of appeal.
¶7 Meanwhile, with J.W.K.'s 2016 extension order expiring
on August 2, 2017, the County filed a petition seeking another
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No. 2017AP1574
twelve-month extension of J.W.K.'s commitment, which the circuit
court granted after holding a hearing on July 21, 2017.
¶8 In September 2017, the court of appeals ordered J.W.K.
to file a memorandum addressing whether his appeal of the August
2016 order was moot, given he filed his notice of appeal after a
new order extending his commitment had been entered in July
2017. After considering submissions addressing mootness from
J.W.K. and the County, the court of appeals dismissed the appeal
as moot "because J.W.K. is no longer subject to the order being
appealed." The court of appeals acknowledged that "exceptions
to dismissal based on mootness exist, as for example, when an
issue is of great public importance or arises frequently but
evades review," but it did not consider the mootness exceptions
because J.W.K. did "not argue that any of the exceptions
appl[ied] in this case."
¶9 J.W.K. petitioned for review, arguing his appeal was
not moot and asserting the evidence presented at the August 2016
extension hearing was insufficient to prove he was dangerous.
We granted the petition.
II. ANALYSIS
A. Standard of Review
¶10 Mootness is a question of law we review de novo. PRN
Assocs. LLC v. DOA, 2009 WI 53, ¶25, 317 Wis. 2d 656, 766
N.W.2d 559. J.W.K.'s argument requires us to interpret Wis.
Stat. § 51.20; statutory interpretation is a question of law we
review de novo. Waukesha Cty. v. J.W.J., 2017 WI 57, ¶14, 375
Wis. 2d 542, 895 N.W.2d 783. "[S]tatutory interpretation
5
No. 2017AP1574
'begins with the language of the statute.'" State ex rel. Kalal
v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271
Wis. 2d 633, 681 N.W.2d 110 (quoted source omitted). We give
statutory language "its common, ordinary, and accepted meaning,
except that technical or specially-defined words or phrases are
given their technical or special definitional meaning." Id. If
this process yields a plain meaning, our inquiry ends. Id.
B. Discussion
¶11 Before addressing J.W.K.'s substantive claim on
sufficiency of the evidence, we must first consider the
threshold issue of whether J.W.K.'s appeal is moot. If the
appeal is moot, then we do not reach J.W.K.'s sufficiency
argument. "An issue is moot when its resolution will have no
practical effect on the underlying controversy." PRN Assocs.
LLC, 317 Wis. 2d 656, ¶25; see also City of Racine v. J-T
Enters. of Am., Inc., 64 Wis. 2d 691, 700, 221 N.W.2d 869 (1974)
("This court has consistently adhered to the rule that a case is
moot when 'a determination is sought which, when made, cannot
have any practical effect upon an existing controversy.'"
(quoted source omitted)).
A moot case has been defined as one which seeks to
determine an abstract question which does not rest
upon existing facts or rights, or which seeks a
judgment in a pretended controversy when in reality
there is none, or one which seeks a decision in
advance about a right before it has actually been
asserted or contested, or a judgment upon some matter
which when rendered for any cause cannot have any
practical legal effect upon the existing controversy.
6
No. 2017AP1574
Fort Howard Paper Co. v. Fort Howard Corp., 273 Wis. 356, 360,
77 N.W.2d 733 (1956) (quoted source omitted); see also State ex
rel. Ellenburg v. Gagnon, 76 Wis. 2d 532, 535, 251 N.W.2d 773
(1977).
¶12 Appellate courts generally decline to reach moot
issues, and if all issues on appeal are moot, the appeal should
be dismissed. See id.; PRN Assocs. LLC, 317 Wis. 2d 656, ¶¶25,
29. We may, however, choose to address moot issues in
"exceptional or compelling circumstances." J-T Enters., 64
Wis. 2d at 702. There are several established exceptions under
which this court may elect to address moot issues: (1) "the
issues are of great public importance;" (2) "the
constitutionality of a statute is involved;" (3) the situation
arises so often "a definitive decision is essential to guide the
trial courts;" (4) "the issue is likely to arise again and
should be resolved by the court to avoid uncertainty;" or (5)
the issue is "capable and likely of repetition and yet evades
review." G.S. v. State, 118 Wis. 2d 803, 805, 348 N.W.2d 181
(1984). With these principles in mind, we turn to the record to
evaluate whether J.W.K.'s appeal is moot.
¶13 The record is undisputed as to several critical
facts. First, J.W.K. is no longer subject to the August 2016
recommitment order forming the basis for this appeal. That
order lapsed when the court entered a new commitment order on
7
No. 2017AP1574
July 21 2017.5 Second, J.W.K. does not allege any defects in the
July 2017 recommitment order. This makes J.W.K.'s challenge to
the 2016 commitment order moot.
¶14 An appeal of an expired commitment order is moot. See
Winnebago Cty. v. Christopher S., 2016 WI 1, ¶¶30-31, 366
Wis. 2d 1, 878 N.W.2d 109 ("In Christopher's case, the issues
are moot because he is no longer subject to the orders being
appealed.").6 Reversing J.W.K.'s expired 2016 order "will have
no practical effect on the underlying controversy," see PRN
Assocs. LLC, 317 Wis. 2d 656, ¶25, because he is no longer
subject to the 2016 order.
¶15 J.W.K. acknowledges the apparent lack of a live
controversy, but he argues this case is not moot, and urges the
court to address his sufficiency argument. He hinges his
argument on what he construes to be different evidentiary
standards governing initial commitment orders versus
recommitment orders. J.W.K. contends a reversal of the August
2016 recommitment order would necessarily invalidate all later
extensions, creating a domino effect voiding subsequent
recommitment orders. Citing State ex rel. Serocki v. Circuit
5J.W.K. is no longer subject to the July 21, 2017
commitment order; it was in effect for only twelve months and
expired in July 2018.
6In Winnebago Cty. v. Christopher S., 2016 WI 1, 366
Wis. 2d 1, 878 N.W.2d 109, we nevertheless exercised our
discretion to address the issues raised (despite their mootness)
because they were "of great public importance" and "likely to
evade appellate review." Id., ¶32.
8
 No. 2017AP1574
Court for Clark Cty., 163 Wis. 2d 152, 471 N.W.2d 49 (1991),
J.W.K. maintains a recommitment order is merely a continuation
of the original commitment and creates a chain linking each
prior commitment order to any extension that follows it. Under
J.W.K.'s theory, reversing the August 2016 recommitment order
nullifies any subsequent commitment order, thereby requiring
reversal of the July 2017 order and any succeeding recommitment
order. J.W.K. contends reversal of the August 2016 order would
create a gap between the original commitment in February 2016
and the July 2017 recommitment order, thereby making the
commitment orders no longer consecutive. J.W.K. argues that
this break in the chain means the State must start over with an
original commitment instead of petitioning for an extension.
J.W.K. describes the original commitment procedures and burden
of proof as "more onerous" than those required to extend the
commitment. J.W.K. argues that reversal of the 2016 order would
mean the circuit court lacked competency to issue the 2017
extension order. J.W.K. also invokes due process, contending
that if the 2016 order falls, his commitment under the 2017
order deprived him of his liberty without the requisite showing
that he was mentally ill and dangerous. The concurrence/dissent
echoes J.W.K.'s arguments, maintaining that the original
commitment and any extensions of that commitment "create[] a
chain linking each prior order to any extension that follows."
Concurrence/dissent, ¶35. We disagree.
¶16 "[C]ommitment for any purpose constitutes a
significant deprivation of liberty that requires due process
9
No. 2017AP1574
protection." Jones v. United States, 463 U.S. 354, 361 (1983)
(quoted source omitted). The County comports with due process
when it "confine[s] a mentally ill person if it shows 'by clear
and convincing evidence that the individual is mentally ill and
dangerous.'" Foucha v. Louisiana, 504 U.S. 71, 80 (1992)
(quoting Jones, 463 U.S. at 362). The commitment, however,
cannot continue after the constitutional basis for it ceases to
exist; the findings of mental illness and dangerousness must be
current, not retrospective. See Foucha, 504 U.S. at 77-78.
While the Supreme Court determined that the Constitution
requires a showing of dangerousness, and not mental illness
alone, it "has declined to prescribe 'strict boundaries for
legislative determinations of what degree of dangerousness is
necessary for involuntary commitment.'" See State v. Dennis H.,
2002 WI 104, ¶13, 255 Wis. 2d 359, 647 N.W.2d 851 (quoting State
v. Post, 197 Wis. 2d 279, 312, 541 N.W.2d 115 (1995)).
¶17 To initiate commitment proceedings involving a
mentally ill individual under Wis. Stat. § 51.20, the County
must file a petition alleging the individual is (1) mentally ill
and a proper subject for treatment, and (2) "[t]he individual is
dangerous." § 51.20(1)(a)1-2; see also J.W.J., 375 Wis. 2d 542,
¶18. The statute contains five standards by which the County
may show the individual is dangerous. § 51.20(1)(a)2.a-e. Each
requires the County to identify recent acts or omissions
demonstrating that the individual is a danger to himself or to
others. See id. During the final hearing, the County bears the
burden of proving the allegations in the petition by clear and
10
No. 2017AP1574
convincing evidence. § 51.20(13)(e); J.W.J., 375 Wis. 2d 542,
¶19. If the grounds in the petition are proven, then the court
"shall" order commitment. § 51.20(13)(a)3; see also M.J. v.
Milwaukee Cty. Combined Cmty. Servs. Bd., 122 Wis. 2d 525, 529-
30, 362 N.W.2d 190 (Ct. App. 1984). The initial period of
commitment cannot exceed six months. § 51.20(13)(g)1.
¶18 Wisconsin Stat. § 51.20 allows the initial commitment
order to be extended for "a period not to exceed one year."
§ 51.20(13)(g)1, (13)(g)3.
Upon application for extension of a commitment by the
department or the county department having custody of
the subject, the court shall proceed under subs. (10)
to (13).[7] If the court determines that the
individual is a proper subject for commitment as
prescribed in sub. (1)(a)1. and evidences the
conditions under sub. (1)(a)2. or (am) . . . it shall
order judgment to that effect and continue the
commitment[.]
§ 51.20(13)(g)3 (emphasis added). An extension requires the
County to prove the same elements by clear and convincing
evidence: (1) the individual is mentally ill and a proper
subject for treatment, and (2) the individual is dangerous. See
Wis. Stat. § 51.20(1)(a), (am); see also J.W.J., 375
Wis. 2d 542, ¶20 ("Upon each petition to extend a term of
commitment, a county must establish the same elements with the
7
Wisconsin Stat. § 51.20(10) details the requirements for
hearings, subsection (11) addresses jury trials, subsection (12)
delineates an exception to the requirement of open hearings, and
subsection (13) deals with the disposition of the petition for
involuntary commitment. § 51.20(10)-(13).
11
No. 2017AP1574
same quantum of proof."). However, in addition to the five
standards for showing dangerousness by recent acts or omissions
under § 51.20(1)(a)2.a-e, the County may prove dangerousness
under § 51.20(1)(am).
¶19 Because an individual's behavior might change while
receiving treatment, Wis. Stat. § 51.20(1)(am) provides a
different avenue for proving dangerousness if the individual has
been the subject of treatment for mental illness immediately
prior to commencement of the extension proceedings:
If the individual has been the subject of inpatient
treatment for mental illness . . . immediately prior
to commencement of the proceedings as a result
of . . . a commitment or protective placement ordered
by a court under this section . . . the requirements
of a recent overt act, attempt or threat to act under
par. (a)2. a. or b., pattern of recent acts or
omissions under par. (a)2. c. or e., or recent
behavior under par. (a)2. d. may be satisfied by a
showing that there is a substantial likelihood, based
on the subject individual's treatment record, that the
individual would be a proper subject for commitment if
treatment were withdrawn[.]
§ 51.20(1)(am) (emphasis added). Under this provision, if the
individual who is the subject of extension proceedings is under
commitment "immediately prior" to the extension proceedings,
then the County may, as an alternative to the options outlined
in § 51.20(1)(a)2.a-e, prove dangerousness by showing "a
substantial likelihood, based on the subject individual's
treatment record, that the individual would be a proper subject
for commitment if treatment were withdrawn." § 51.20(1)(am).
This paragraph recognizes that an individual receiving treatment
may not have exhibited any recent overt acts or omissions
12
No. 2017AP1574
demonstrating dangerousness because the treatment ameliorated
such behavior, but if treatment were withdrawn, there may be a
substantial likelihood such behavior would recur. In this way,
paragraph (am) functions as an alternative evidentiary path,
reflecting a change in circumstances occasioned by an
individual's commitment and treatment. However, dangerousness
remains an element to be proven to support both the initial
commitment and any extension.
¶20 After the initial commitment period, which may last no
longer than six months, "all subsequent consecutive orders of
commitment of the individual may be for a period not to exceed
one year." Wis. Stat. § 51.20(13)(g)1. The circuit court must
hold a hearing on the petition for extension before the previous
order expires or it loses competency to extend the commitment.
See G.O.T. v. Rock Cty., 151 Wis. 2d 629, 633, 445 N.W.2d 697
(Ct. App. 1989) (explaining that "[a]n initial
commitment . . . expires at the end of six months and cannot be
extended beyond that period unless a statute permits its
extension," and "[f]or that reason, the trial court must hold
the extension hearing before the initial commitment expires");
Wis. Stat. § 51.20(13)(g)1, 3 (allowing for extension of
consecutive orders of commitment); see also City of Eau Claire
v. Booth, 2016 WI 65, ¶21, 370 Wis. 2d 595, 882 N.W.2d 738 ("a
circuit court may lose competency to enter judgment in a
particular case if statutory requirements are not met").
¶21 J.W.K.'s domino theory that each extension depends on
the validity of previous commitment orders is not supported by
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No. 2017AP1574
the text of the statute. First, reversing the August 2016
recommitment order does not retroactively deprive the circuit
court that issued a subsequent commitment order of competency.
The statute permits the extension of an individual's commitment
for up to one year at a time, and contemplates consecutive
orders of commitment. See Wis. Stat. § 51.20(13)(g)1. As long
as the extension is made prior to the expiration of the previous
commitment order, the circuit court may order the extension if
the County proves its case under the statutory criteria.8 See
§ 51.20(13)(g)1, 3; G.O.T., 151 Wis. 2d at 633. Each order must
independently be based upon current, dual findings of mental
illness and dangerousness; accordingly, the sufficiency of the
evidence supporting prior orders has no impact on any subsequent
order.
¶22 While J.W.K. correctly notes the circuit court lacks
competency to extend a commitment order once the previous order
expires, the August 2016 order remained in effect at the time
J.W.K.'s commitment was extended in July 2017. Accordingly, the
circuit court had competency to extend the commitment. An
appellate court's later conclusion that the evidence was
8The concurrence/dissent concludes that a later judicial
determination of insufficient evidence to support the August
2016 order renders that order retroactively invalid, resulting
in the expiration of the original commitment before any valid
extension. Concurrence/dissent, ¶¶34,36. The
concurrence/dissent misunderstands the text of Chapter 51. When
the commitment was extended in July 2017, the August 2016 order
remained in place, and as a factual matter, the orders were
therefore consecutive. Accordingly, the circuit court retained
competency to extend J.W.K.'s commitment in 2017.
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No. 2017AP1574
insufficient to support the August 2016 extension order would
not retroactively change the fact that at the time the circuit
court entered the extension order in July 2017, the prior order
had not expired; therefore, the circuit court retained
competency to enter the unchallenged July 2017 order.
¶23 Second, J.W.K. fails to identify any provision in Wis.
Stat. § 51.20 making the validity of an unchallenged
recommitment order vulnerable to the invalidation on appeal of
the previous recommitment order. Contrary to the
concurrence/dissent's insistence that "[t]he statutory language
supports [the] premise" that "an extension order is a
continuation of the original commitment and creates a chain
linking each prior order to any extension that follows,"9 no such
language appears in the statute, and the availability of the
alternate evidentiary standard in paragraph (am) requires
nothing more than "the individual ha[ving] been the subject of
inpatient treatment for mental illness . . . immediately prior
to commencement of the proceedings as a result of . . . a
commitment or protective placement ordered by a court under this
section[.]" § 51.20(1)(am). The statute says nothing about the
validity of the preceding order of commitment or protective
placement and does not condition the availability of the
alternate means of establishing dangerousness on the legitimacy
of the prior order for treatment. This makes sense, because the
alternate means for establishing dangerousness is predicated
9
Concurrence/dissent, ¶35.
15
No. 2017AP1574
upon the fact that treatment may have had the desired effect of
ending the dangerous behaviors that led to the individual's
original commitment in the first place. "Because of the therapy
received, evidence of recent action exhibiting 'dangerousness'
is often nonexistent," and "the emphasis [during extension
proceedings] is on the attendant consequence to the patient
should treatment be discontinued." M.J., 122 Wis. 2d at 531.
Despite the absence of recent acts demonstrating dangerousness,
an individual may nevertheless pose a danger to himself or to
others based on a substantial likelihood that he would exhibit
those behaviors if treatment were withdrawn. Paragraph (am)
"allow[s] extension of a commitment when the patient's condition
has not improved enough to warrant discharge." Serocki, 163
Wis. 2d at 160 (quoted source omitted).
¶24 Each extension hearing requires the County to prove
the same elements with the same quantum of proof required for
the initial commitment. See Wis. Stat. § 51.20(13)(e), (g)3
("The petitioner has the burden of proving all required facts by
clear and convincing evidence."). The dangerousness standard is
not more or less onerous during an extension proceeding; the
constitutional mandate that the County prove an individual is
both mentally ill and dangerous by clear and convincing evidence
remains unaltered. Each extension hearing requires proof of
current dangerousness. It is not enough that the individual was
at one point a proper subject for commitment. The County must
prove the individual "is dangerous." § 51.20(1)(a)2 and
(13)(g)3 (emphasis added). The alternate avenue of showing
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No. 2017AP1574
dangerousness under paragraph (am) does not change the elements
or quantum of proof required. It merely acknowledges that an
individual may still be dangerous despite the absence of recent
acts, omissions, or behaviors exhibiting dangerousness outlined
in § 51.20(1)(a)2.a-e.
¶25 Accordingly, even if we assume the insufficiency of
the County's proffered evidence to support its petition for an
extension of J.W.K.'s commitment in August 2016, J.W.K. received
due process during the July 2017 recommitment proceedings
because the County was required to establish the same elements
required for any commitment or recommitment: J.W.K.'s mental
illness and dangerousness. J.W.K. does not suggest the County
failed to carry its burden of proof during the 2017 proceeding;
therefore, J.W.K.'s due process rights were fully protected.10
¶26 We reject J.W.K.'s and the concurrence/dissent's claim
that Serocki supports J.W.K.'s domino theory. The issue in
Serocki was whether an individual being committed timely filed a
request for substitution prior to "any preliminary contested
matters." Serocki, 163 Wis. 2d at 156-57. Because a
recommitment hearing is not "an entirely new proceeding" the
"circuit court continues to receive evidence in the same case"
10
Contrary to the concurrence/dissent's characterization of
our due process analysis as "pay[ing] lip service" to
constitutional protections afforded the mentally ill, we explain
that because subsequent extension proceedings require the dual
showings of mental illness and current dangerousness, the
proceedings in this case protected J.W.K.'s due process rights.
The concurrence/dissent misreads the applicable statutes (and
apparently this opinion) in concluding otherwise.
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No. 2017AP1574
and may rely on "the individual's present condition and past
response to treatment." Id. at 159-60. We concluded a
recommitment hearing was "a continuation of the original
commitment proceeding and previous recommitment hearings" in the
context of the substitution request under Wis. Stat. § 801.58(1)
(1989-90). Serocki, 163 Wis. 2d at 156, 160. This conclusion,
however, was driven by the language of § 801.58(1) (1989-90) and
limited to "the context of a request for substitution."
Serocki, 163 Wis. 2d at 160. Because a substitution request
must be made prior to the circuit court hearing any preliminary
contested matters, as a procedural matter the individual subject
to commitment proceedings must make his substitution request in
the context of the original commitment proceedings, not later.
¶27 However, the fact that recommitment proceedings are
procedurally part of the original commitment action does not
mean that the requisite findings of mental illness and
dangerousness necessary to support a recommitment may be
borrowed from the original proceeding. To the contrary, in
Serocki, we explicitly acknowledged that "the circuit court must
make a new determination of the individual's suitability for
commitment at the recommitment hearing." Id. at 159. The
"evidence presented at each recommitment hearing may be
different from evidence presented at the original commitment
proceeding or a previous recommitment hearing." Id. We never
stated or implied that the validity of each recommitment order
depended on the validity of every commitment order preceding it.
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¶28 Because a decision invalidating the August 2016
recommitment order has no impact on subsequent extensions, each
of which independently requires the County to meet the statutory
burden of proof, J.W.K.'s argument that insufficient evidence
supported the August 2016 order is moot.11
¶29 J.W.K. argues that concluding his case is moot may
deprive him of meaningful appellate review because appellate
proceedings in Chapter 51 commitments are rarely completed
before a subsequent recommitment order is entered. The
concurrence/dissent similarly laments the "lack of remedy,"
which it considers "especially troubling in light of the fact
that an extension order is valid for no more than one year, and
therefore, by the time an appeal is heard, there is likely to be
a subsequent extension order in effect." Concurrence/dissent,
¶37 (footnote omitted). That a recommitment order will likely
expire before appellate proceedings conclude does not transform
a moot issue into a live controversy. Rather, such concerns may
be addressed under the well-established exceptions to dismissal
for mootness, particularly, issues capable of repetition yet
11
Our holding that J.W.K.'s sufficiency challenge is moot
is limited to situations where, as here, no collateral
implications of the commitment order are raised. J.W.K. points
out there may be "a variety of reasons other issues in chapter
51 cases are not moot even though a subsequent extension order
has been entered or the order expired," including "the
implications of a firearms ban when initially committed,
potential civil claims related to an illegal commitment," and
any attempt by the County to recover its cost of care. J.W.K.
does not argue any of these collateral circumstances; therefore,
we do not address them.
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No. 2017AP1574
evading review. In G.S. v. State, we explained the exceptions
to dismissal for mootness include situations involving: (1)
"issues [] of great public importance;" (2) "the
constitutionality of a statute;" (3) issues that arise so often
"a definitive decision is essential to guide the trial courts;"
(4) "issue[s] . . . likely to arise again and [that] should be
resolved by the court to avoid uncertainty;" or (5) an issue
"capable and likely of repetition and yet evades review because
the appellate process usually cannot be completed and frequently
cannot even be undertaken within a time that would result in a
practical effect upon the parties." G.S., 118 Wis. 2d at 805
(emphasis added).
¶30 J.W.K. makes no argument that any of the exceptions to
dismissal for mootness apply, and his sufficiency challenge does
not appear to fit into any of the exceptions. J.W.K.'s
sufficiency challenge is fact-specific. While it is undoubtedly
extremely important to J.W.K., the issue is not of great public
importance; the sufficiency of the evidence will be different in
each case. J.W.K. raises no arguments concerning the
constitutionality of Wis. Stat. § 51.20. Additionally, we do
not perceive a lack of definitive guidance on the issue J.W.K.
raises, or uncertainty in the lower courts that warrants our
intervention. Finally, this case is not "likely of repetition."
See G.S., 118 Wis. 2d at 805. The "'capable of repetition, yet
evading review' doctrine" is limited to situations involving "a
reasonable expectation that the same complaining party would be
subjected to the same action again." State ex rel. Clarke v.
20
No. 2017AP1574
Carballo, 83 Wis. 2d 349, 357, 265 N.W.2d 285 (1978) (quoting
Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (emphasis
added)). This is not the case for J.W.K. He argues the
evidence was insufficient during a particular hearing; he raises
no issues concerning the subsequent application of § 51.20 to
him under later recommitment orders.
III. CONCLUSION
¶31 We agree with the court of appeals and hold J.W.K.'s
sufficiency of the evidence argument is moot because J.W.K. is
no longer subject to the recommitment order he is appealing.
Accordingly, we affirm the court of appeals' decision dismissing
J.W.K.'s appeal as moot.
By the Court.——The decision of the court of appeals is
affirmed.
21
No. 2017AP1574.rfd
¶32 REBECCA FRANK DALLET, J. (concurring in part,
dissenting in part). The majority opinion concludes that
because J.W.K. received due process during the July 2017
hearing, the validity of the August 2016 extension order is
irrelevant and J.W.K.'s challenge to that order is moot.1 I
respectfully disagree. I conclude that the sufficiency of the
evidence presented at J.W.K.'s August 2016 extension hearing
determines the validity of the August 2016 extension order and
necessarily also determines the validity of any subsequent
extension orders. Thus, although J.W.K. is no longer subject to
the order being appealed, the appeal from the August 2016
extension order is not moot. Accordingly, I examine the
evidence presented at the August 2016 extension hearing and
conclude that the circuit court's finding of current
dangerousness was not erroneous.
¶33 In order to confine someone who is mentally ill, the
County must show by clear and convincing evidence that the
person is currently mentally ill and dangerous. Foucha v.
Louisiana, 504 U.S. 71, 80 (1992). There are two evidentiary
paths to prove dangerousness pursuant to Wis. Stat. § 51.20.
1The majority uses the term "recommitment," however, I use
the language included in the statutory provision which governs
commitment beyond the initial commitment order. See majority
op., ¶1 n.1. That section refers to the filing of an
"application for extension of a commitment" and requires proof
that the individual "is in need of continued commitment" in
order for the circuit court to enter judgment to "continue the
commitment." See Wis. Stat. § 51.20(13)(g)3.
1
No. 2017AP1574.rfd
The first path, applicable to initial commitment proceedings,
requires the County to identify recent acts or omissions
demonstrating the individual is a danger to themselves or
others, pursuant to § 51.20(1)(a)2.a.-e. In what the majority
opinion refers to as the "alternative evidentiary path," the
County may prove current dangerousness by showing there is "a
substantial likelihood, based on the subject individual's
treatment record, that the individual would be a proper subject
for commitment if treatment were withdrawn," pursuant to
§ 51.20(1)(am). Majority op., ¶19. This alternative
evidentiary path is only available if the individual has been
the subject of inpatient treatment for mental illness
"immediately prior to commencement of the proceedings as a
result of . . . a commitment . . . under this section."
§ 51.20(1)(am) (emphasis added).2 The circuit court "must make a
new determination of the individual's suitability for
commitment" at each extension hearing and evidence presented at
each extension hearing "may be different from evidence presented
at the original commitment proceeding." State ex rel. Serocki
v. Circuit Court for Clark Cty., 163 Wis. 2d 152, 159, 471
N.W.2d 49 (1991).
¶34 As recognized by the majority, the circuit court lacks
competency to extend a commitment order once the initial
commitment order has expired. Majority op., ¶22. See G.O.T. v.
2
There are other paths in Wis. Stat. § 51.20(1)(am) that
the County could follow, but those paths are not applicable
here.
2
No. 2017AP1574.rfd
Rock Cty., 151 Wis. 2d 629, 633, 445 N.W.2d 697 (Ct. App.
1989)("[a]n initial commitment . . . expires at the end of six
months and cannot be extended beyond that period unless a
statute permits its extension"). If current dangerousness was
not established at the August 2016 extension hearing, the August
2016 extension order was invalid. As such, the initial
commitment order would have expired prior to it being extended
and the circuit court would have lacked competency to enter any
subsequent extension orders. Contrary to the majority opinion,
even if dangerousness were established during the July 2017
hearing, this does not cure the circuit court's lack of
competency to issue an extension order in July 2017 or render
the two orders somehow permissibly "consecutive." Majority op.,
¶21 n.8.
¶35 J.W.K. properly asserts that an extension order is a
continuation of the original commitment and creates a chain
linking each prior order to any extension that follows. The
statutory language supports this premise. See Wis. Stat.
§ 51.20(13)(g)3. (referring to the court order after the filing
of an "application for extension" as an order to "continue the
commitment" requiring proof that the individual "is in need of
continued commitment"); see also § 51.20(1)(am) (creating an
alternative path to prove current dangerousness if the
individual is subject to a commitment order "immediately prior"
to the extension hearing). Additionally, in Serocki, in the
context of a request for substitution, this court concluded that
the legislature intended for an individual's extension hearing
3
No. 2017AP1574.rfd
to be "a continuation of the original commitment proceeding and
previous recommitment hearings." Serocki, 163 Wis. 2d at 154.
¶36 If the requirements of Wis. Stat. § 51.20(1)(am) were
not met at the August 2016 extension hearing, J.W.K. would not
have been subject to a valid commitment order immediately prior
to the July 2017 hearing. Once the chain of commitment was
broken, the County would be required to prove current
dangerousness as it did at the initial commitment hearing, by
establishing a factor set forth in § 51.20(1)(a)2.a.-e. If the
County did not do so, any subsequent extension orders would be
rendered invalid.3
¶37 The importance of the circuit court making a
sufficient finding of current dangerousness prior to an
extension of commitment cannot be overstated. The United States
Supreme Court has emphasized that in order to confine a mentally
ill individual, due process requires the County to show by clear
and convincing evidence that the individual is currently
mentally ill and dangerous. Foucha, 504 U.S. at 80; see also
Jones v. United States, 463 U.S. 354, 362 (1983). Absent this
finding, any extension order will not only violate Wis. Stat.
§ 51.20, but also J.W.K.'s due process rights. Although the
majority pays lip service to the due process protection required
3At the July 2017 hearing, the County followed the
alternative evidentiary path to prove current dangerousness
pursuant to Wis. Stat. § 51.20(1)(am). The parties did not
brief the issue of whether that testimony also established
current dangerousness pursuant to § 51.20(1)(a)2.a.-e. and
therefore I will not address it.
4
No. 2017AP1574.rfd
to deprive a mentally ill individual of their fundamental right
to liberty, it provides no consequence for a County's failure to
prove current dangerousness and the corresponding violation of
due process. A lack of remedy is especially troubling in light
of the fact that an extension order is valid for no more than
one year,4 and therefore, by the time an appeal is heard, there
is likely to be a subsequent extension order in effect.
According to the majority, the County can violate an
individual's due process rights without any practical effect.
See majority op., ¶14. The majority ignores the possible remedy
for an unconstitutional deprivation of liberty that would have a
practical effect on any individual and would help to ensure the
protection of due process rights for the mentally ill: release
from confinement.
¶38 Because I find that J.W.K.'s appeal of the sufficiency
of his August 2016 extension order is not moot, I reach the
issue J.W.K. sought to raise on appeal: whether the County
proved by clear and convincing evidence at the August 2016
extension hearing that J.W.K. would still be a proper subject
for commitment if treatment were withdrawn.5 This court defers
to the circuit court's factual findings unless they are clearly
erroneous. See Phelps v. Physicians Ins. Co. of Wis., Inc.,
2009 WI 74, ¶34, 319 Wis. 2d 1, 768 N.W.2d 615.
4 See Wis. Stat. § 51.20(13)(g)1.
5 The circuit court extended J.W.K.'s commitment prior to
completion of briefing on appeal.
5
No. 2017AP1574.rfd
¶39 On direct examination, Dr. James Scott Persing
testified that he examined J.W.K. and that, in his opinion,
there was a substantial likelihood that J.W.K. would be a proper
subject for commitment if treatment were withdrawn, pursuant to
Wis. Stat. § 51.20(1)(am). Had this been the extent of the
testimony to prove the dangerousness prong, J.W.K.'s argument
regarding the sufficiency of the evidence would be stronger.
However, the hearing continued and Dr. Persing was questioned on
cross-examination regarding the basis for his opinion. Dr.
Persing responded that he based his opinion: "[o]n the history
of the overall struggles with chronic mental illness for many
years with variable levels of compliance with treatment, and
leading up to a point of variety of altercations, or need for
mental health commitment." Dr. Persing further described how
assessment of J.W.K. was difficult because he had been isolative
and was not participating in therapeutic and recreational
activities.
¶40 The circuit court found that based upon the testimony
of Dr. Persing and J.W.K., there was a substantial likelihood
that J.W.K. would be a proper subject for commitment if
treatment were withdrawn. While the testimony supporting Dr.
Persing's opinion as to J.W.K.'s current dangerousness was
minimal, I nevertheless conclude that the findings of the
circuit court are not clearly erroneous and must be upheld.
¶41 In sum, I conclude that J.W.K.'s appeal of his August
2016 extension order is not moot and therefore I would reverse
the court of appeals' decision. Further, I reach the issue
6
No. 2017AP1574.rfd
regarding the sufficiency of the evidence presented at the
August 2016 extension hearing, which the majority opinion and
court of appeals failed to address, and conclude that the
circuit court's finding that J.W.K. was dangerous was not
clearly erroneous. Therefore, I concur in part and would affirm
the circuit court's August 2016 extension order.
¶42 For the foregoing reasons, I concur in part and
dissent in part.
¶43 I am authorized to state that Justices SHIRLEY S.
ABRAHAMSON and ANN WALSH BRADLEY join this concurrence/dissent.
7
No. 2017AP1574.rfd
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