Marathon County v. D. K. ( 2020 )

2020 WI 8SUPREME COURT OF WISCONSIN
CASE NO.: 2017AP2217
COMPLETE TITLE: In the matter of the condition of D. K.:
Marathon County,
Petitioner-Respondent,
v.
D. K.,
Respondent-Appellant-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 384 Wis. 2d 272,921 N.W.2d 14
(2018 – unpublished)
OPINION FILED: February 4, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 25, 2019
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Marathon
JUDGE: Karen L. Seifert
JUSTICES:
ZIEGLER, J., delivered the majority opinion of the Court with
respect to Parts I., II., III., IV.A., IV.B., and IV.C.1, in
which ROGGENSACK, C.J., REBECCA GRASSL BRADLEY, KELLY, and
HAGEDORN, JJ., joined, the majority opinion of the Court with
respect to Part V., in which ROGGENSACK, C.J., KELLY and
HAGEDORN, JJ., joined, and an opinion with respect to Parts
IV.C.2., and IV.D., in which ROGGENSACK, C.J., and HAGEDORN,
JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring
opinion, in which KELLY, J., joined. DALLET, J., filed a
dissenting opinion, in which ANN WALSH BRADLEY, J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
filed by Catherine R. Malchow, assistant state public defender.
There was an oral argument by Catherine R. Malchow.
For the petitioner-respondent, there was a brief filed by
Michael J. Puerner and Scott M. Corbett, corporation counsel.
There was an oral argument by Michael J. Puerner.
2
2020 WI 8NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2017AP2217
(L.C. No. 2017ME132)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the condition of D. K.:
MARATHON COUNTY,
FILED
Petitioner-Respondent,
FEB 4, 2020
v.
Sheila T. Reiff
D. K., Clerk of Supreme Court
Respondent-Appellant-Petitioner.
ZIEGLER, J., delivered the majority opinion of the Court with
respect to Parts I., II., III., IV.A., IV.B., and IV.C.1, in
which ROGGENSACK, C.J., REBECCA GRASSL BRADLEY, KELLY, and
HAGEDORN, JJ., joined, the majority opinion of the Court with
respect to Part V., in which ROGGENSACK, C.J., KELLY and
HAGEDORN, JJ., joined, and an opinion with respect to Parts
IV.C.2., and IV.D., in which ROGGENSACK, C.J., and HAGEDORN,
JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring
opinion, in which KELLY, J., joined. DALLET, J., filed a
dissenting opinion, in which ANN WALSH BRADLEY, J., joined.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an
unpublished decision of the court of appeals, Marathon County v.
D.K., No. 2017AP2217, unpublished slip op. (Wis. Ct. App.
No. 2017AP2217
Aug. 7, 2018), affirming the Winnebago County circuit court's1
Wis. Stat. ch. 51 orders for involuntary commitment and
involuntary medication and treatment.2 D.K. argues that he
should not have been committed because the County failed to
prove by clear and convincing evidence that he was dangerous as
defined under Wis. Stat. § 51.20(1)(a)2.b. (2015-16).3 The
County disagrees, and also argues that D.K.'s commitment is a
moot issue.
¶2 At the final hearing, the County had to prove by clear
and convincing evidence that D.K. was mentally ill, a proper
subject for commitment, and dangerous. Wis. Stat.
§ 51.20(1)(a). The circuit court concluded that Winnebago
County met its burden of proof, ordered D.K.'s involuntary
commitment for six months, and ordered involuntary medication
and treatment. The court of appeals affirmed. It concluded
that D.K.'s threats and plans to strangle police officers and
kill other people established a "'reasonable fear . . . of
serious physical harm' under § 51.20(1)(a)2.b," and, therefore,
"the circuit court's dangerousness determination . . . was
1 The Honorable Karen L. Seifert presided.
Winnebago County was the original petitioner in this case.
2
But after the circuit court entered its order, venue was
transferred to Marathon County. On appeal, Marathon County was
designated as the petitioner-respondent and argued before the
court of appeals and this court. Throughout this opinion, we
will refer to Marathon County as "the County."
All subsequent references to the Wisconsin Statutes are to
3
the 2015-16 version unless otherwise indicated.
2
No. 2017AP2217
supported by the evidence." D.K., No. 2017AP2217, unpublished
slip op., ¶11. On review, we are asked to decide two issues:
(1) whether D.K.'s challenge to his commitment order is moot;
and (2) whether there was clear and convincing evidence that
D.K. was dangerous under § 51.20(1)(a)2.b.
¶3 We conclude that D.K.'s commitment is not a moot issue
because it still subjects him to a firearms ban. We also
conclude that there was clear and convincing evidence at the
final hearing that D.K. was dangerous as defined under Wis.
Stat. 51.20(1)(a)2.b. Thus, we affirm the court of appeals.
I. FACTUAL BACKGROUND
¶4 On April 25, 2017, Officer Kelly Schmitz of the
Winnebago County Sheriff's Department arrested D.K. The next
day, Officer Schmitz filed a Statement of Emergency Detention by
Law Enforcement Officer in the Winnebago County circuit court.
According to the Statement, D.K. had complained that the Oshkosh
Police Department bugged his phone and that other people were
"stalking him" and lying about him. The Statement also alleged
that D.K. had emailed the Department's human resources director
and requested a meeting with the police chief so he could
"strangle him to death." It also alleged that D.K. had
threatened to "hurt every single person" who was stalking him
and lying about him.
¶5 On April 28, 2017, the circuit court commissioner
determined that there was probable cause to believe that D.K.
was mentally ill, a proper subject for treatment, and dangerous
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No. 2017AP2217
to himself or others. See Wis. Stat. § 51.20(7)(a). The
circuit court commissioner ordered that D.K. be detained at
Winnebago Mental Health Institute pending a final hearing. That
same day, the circuit court issued an Order Appointing
Examiners, appointing Dr. Jagdish Dave and Dr. Yogesh Pareek.
See Wis. Stat. § 51.20(9)(a). Both doctors examined D.K. and
filed reports with the circuit court. See Wis. Stat.
§ 51.20(9)(a)5.
¶6 On May 11, 2017, the circuit court held a final
hearing. See Wis. Stat. §§ 51.20(10), (13). Winnebago County
presented only one witness——Dr. Dave. Winnebago County did not
move Dr. Dave's report into evidence at the hearing, although
the report had been filed with the circuit court.4 Winnebago
County did not call Dr. Pareek or any fact witness such as
Officer Kelly or the human resources director to testify.5 D.K.
did not testify. Thus, the only evidence at the final hearing
was Dr. Dave's testimony.
¶7 Dr. Dave is a psychiatrist. He stated that he had the
opportunity to evaluate D.K. Dr. Dave spoke with D.K., observed
We will not refer to the contents of Dr. Dave's report
4
because the circuit court did not rely on it when it made
factual findings and legal conclusions. Nor did the parties
rely on its contents in their arguments before this court.
Thus, we need not decide whether filing Dr. Dave's report with
the circuit court was sufficient to enter the report into
evidence.
The County attempted to call a different officer, but D.K.
5
objected because the officer was not on the witness list. See
Wis. Stat. § 51.20(10)(a). The circuit court sustained the
objection and did not permit the officer to testify.
4
No. 2017AP2217
him, and reviewed his records. Dr. Dave stated his conclusion
to a reasonable degree of medical certainty that D.K. suffered
from a mental illness called delusional disorder and had
"substantial disorder of thought and perception." He also
concluded that D.K.'s judgment and behavior were substantially
impaired, he was a proper subject for treatment, and he needed
treatment. Corporation counsel for Winnebago County then asked
Dr. Dave, "Based on your interview of [D.K.] were you able to
form an opinion as to whether or not he had presented a
substantial risk of danger to either himself or others?" Dr.
Dave responded, "To other people."
¶8 Dr. Dave then explained the basis of his opinion. He
stated that D.K. was "paranoid about people around him. He had
thoughts of harming those people who were talking about him,
making fun of him. He also was making some threats against
[the] police department because he had thought that they were
not listening to him . . . ." Corporation counsel then asked,
"Did he tell you what his intentions were with regard to the
police or any of the persons in the public?" Dr. Dave
responded, "Yes." "He plans on strangulating the police officer
and also killing the people who made fun of him." Dr. Dave also
testified that D.K.'s threats were directly related to his
delusional disorder.
¶9 On cross-examination, Dr. Dave made multiple other
statements relevant to D.K.'s argument before this court. Dr.
Dave stated that D.K.: "was acting on his delusional belief and
he could be potentially dangerous"; "can act on those thoughts
5
No. 2017AP2217
and he can become potentially dangerous"; "could be still
potentially dangerous"; "was expressing those thoughts and he
probably may have acted on those thoughts"; and "most
possibly . . . might act on those thoughts." Dr. Dave also
stated, "I don't think I can make [a] difference whether he will
act on his thoughts or not."
¶10 It is this final hearing evidence that we review,
along with the circuit court's findings and conclusions, for
clear and convincing evidence of dangerousness.
II. PROCEDURAL POSTURE
¶11 The circuit court made an oral ruling at the final
hearing. The circuit court concluded:
Based on the testimony that at this point is the only
testimony and it's uncontroverted, I do find that Dr.
Dave testified that [D.K.] suffers from a major mental
illness.
. . .
He testified that [D.K.] is mentally ill, that [D.K.]
is a proper subject for treatment. He testified that
he is a danger to others, specifically that he is
paranoid, that he has thoughts of harming people and
has made threats to the police department that he
wanted—-he had thoughts that he wanted to strangle
police and kill people. These are homicidal thoughts
and that's what the doctor testified to.
On that basis I do find that it's appropriate that
[D.K.] be committed for a period of [6] months, that
he be under the care and custody of the department and
that it be inpatient treatment at this time.
When counsel for D.K. asked the circuit court to clarify under
which statutory subsection it found dangerousness, corporation
6
No. 2017AP2217
counsel suggested that the circuit court's findings fell under
Wis. Stat. § 51.20(1)(a)2.b., "which would be indicating that he
evidences a substantial probability of physical harm to others
as manifested by evidence of recent homicidal or other violent
behavior." The circuit court responded, "That's what I heard
the doctor testify to."
¶12 The circuit court issued its Order of Commitment that
same day. It stated that the grounds for commitment were that
D.K. was mentally ill, dangerous, a proper subject for
treatment, and a resident of Winnebago County. It also stated
that, as a result of his commitment, D.K. was prohibited from
possessing a firearm. The circuit court also issued its Order
for Involuntary Medication and Treatment. D.K. then filed a
Notice of Intent to Pursue Postcommitment Relief.6
¶13 On May 17, 2017, D.K. was transferred from inpatient
to outpatient status. On June 12, 2017, the circuit court
issued an Order for Transfer of Venue to Marathon County because
D.K. had changed his residence to Marathon County. On November
6, 2017, D.K. filed a Notice of Appeal. On November 11, 2017,
D.K.'s six-month commitment expired and the County did not seek
an extension.
¶14 On August 7, 2018, the court of appeals issued its
decision affirming the circuit court. First, it declined to
The various record documents refer interchangeably to a
6
Notice of Intent to Pursue "Postconviction" Relief or "Post
Disposition" Relief. Since this was a commitment proceeding, we
refer to this document as a Notice of Intent to Pursue
Postcommitment Relief.
7
No. 2017AP2217
address whether the issue was moot because the County did not
argue mootness in its briefing. D.K., No. 2017AP2217,
unpublished slip op., ¶3 n.3 (citing State v. Verhagen, 2013 WI
App 16, ¶38, 346 Wis. 2d 196, 827 N.W.2d 891 (unrefuted
arguments are deemed conceded)). Second, the court of appeals
concluded:
[W]hile in Dr. Dave's presence, [D.K.] specifically
threatened strangulation and murder of multiple people
for specific, delusional perceptions of his ill
treatment by those people. We conclude those 'plans'
and threats establish a 'reasonable fear . . . of
serious physical harm' under [Wis. Stat.]
§ 51.20(1)(a)2.b. In sum, the circuit court's
dangerousness determination was based upon a correct
interpretation of § 51.20(1)(a)2.b. and was supported
by the evidence.
D.K., No. 2017AP2217, unpublished slip op., ¶3 n.3.
¶15 On September 5, 2018, D.K. petitioned this court for
review. We granted the petition.
III. STANDARD OF REVIEW
¶16 We must first determine whether D.K.'s challenge to
his six-month commitment is moot because it has expired.
Mootness is a question of law that we review independently.
Waukesha Cty. v. S.L.L., 2019 WI 66, ¶10, 387 Wis. 2d 333, 929
N.W.2d 140.
¶17 We must also interpret Wis. Stat. § 51.20(1)(a)2.b. in
order to determine whether the County proved dangerousness in
D.K.'s case. The interpretation of a statute presents a
question of law that this court "reviews de novo while
benefiting from the analyses of the court of appeals and circuit
8
No. 2017AP2217
court." State v. Alger, 2015 WI 3, ¶21, 360 Wis. 2d 193, 858
N.W.2d 346 (citing State v. Ziegler, 2012 WI 73, ¶37, 342
Wis. 2d 256, 816 N.W.2d 238).
¶18 Finally, we must review whether there was clear and
convincing evidence of dangerousness as defined under Wis. Stat.
§ 51.20(1)(a)2.b. at D.K.'s final hearing. D.K. does not
challenge any of the circuit court's factual findings as clearly
erroneous. "'We will not disturb a circuit court's factual
findings unless they are clearly erroneous.'" Winnebago Cty. v.
Christopher S., 2016 WI 1, ¶50, 366 Wis. 2d 1, 878 N.W.2d 109,
cert. denied, 136 S. Ct. 2464 (2016) (quoting Outagamie Cty. v.
Melanie L., 2013 WI 67, ¶38, 349 Wis. 2d 148, 833 N.W.2d 607).
Accordingly, our review of statutory dangerousness requires us
to apply the facts to the statutory standard and presents a
question of law that we review independently. Christopher S.,
366 Wis. 2d 1, ¶50.
IV. ANALYSIS
A. The Commitment is Not a Moot Issue.
¶19 Mootness is a doctrine of judicial restraint. "'An
issue is moot when its resolution will have no practical effect
on the underlying controversy.'" Portage Cty. v. J.W.K., 2019
WI 54, ¶11, 386 Wis. 2d 672, 927 N.W.2d 509 (quoting PRN Assocs.
LLC v. DOA, 2009 WI 53, ¶25, 317 Wis. 2d 656, 766 N.W.2d 559).
Because moot issues do not affect a live controversy, this court
generally declines to reach them. Id., ¶12. But we may
overlook mootness if the issue falls within one of five
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No. 2017AP2217
exceptions: (1) the issue is of great public importance; (2) the
issue involves the constitutionality of a statute; (3) the issue
arises often and a decision from this court is essential; (4)
the issue is likely to recur and must be resolved to avoid
uncertainty; or (5) the issue is likely of repetition and evades
review. Id.
¶20 The County argues that D.K.'s challenge to his
commitment is moot because his commitment has expired and the
issue does not fall in any of the exceptions. D.K. argues that
the County forfeited its mootness argument. D.K. also argues
that the issue is not moot because, even though the commitment
expired, three collateral consequences of his commitment remain.
First, D.K., having been committed under Wis. Stat. § 51.20, is
liable for the costs of his care to the extent that he can pay.
Wis. Stat. §§ 46.10(2)-(3). Second, D.K.'s involuntary
commitment order prohibits him from possessing a firearm, which
would otherwise be his right. U.S. Const. amend. II; Wis.
Const. art. I, § 25. Third, D.K. cites the negative stigmas
often attached to mental commitment as a lasting consequence.
¶21 The court of appeals addressed mootness in a footnote
of its opinion. It concluded, "The [C]ounty does not address
this argument in its response brief, so we do not opine on
mootness here but rather reach the merits of this appeal. See
State v. Verhagen, 2013 WI App 16, ¶38, 346 Wis. 2d 196, 827
N.W.2d 891 (unrefuted arguments are deemed conceded)." D.K.,
No. 2017AP2217, unpublished slip op., ¶3 n.3. But the County
10
No. 2017AP2217
did argue mootness before this court. Accordingly, we do
address the issue.
¶22 We have previously concluded that an expired initial
commitment order is moot. Christopher S., 366 Wis. 2d 1, ¶30.
However, the issue of collateral consequences' effect on an
otherwise moot commitment was not raised in that case. Then in
J.W.K., we specifically left open the question whether
collateral consequences render an expired commitment not moot.
We said, "Our holding that J.W.K.'s [challenge to his
commitment] is moot is limited to situations where, as here, no
collateral implications of the commitment order are raised."
J.W.K., 386 Wis. 2d 672, ¶28 n.11. We said these collateral
consequences may include a firearms ban, civil claims, and costs
of care. Id. And now, in this case, D.K. has raised the issue
of collateral consequences.
¶23 The idea that collateral consequences can render an
otherwise moot issue not moot is nothing new in Wisconsin. Over
40 years ago, in State v. Theoharopoulos, this court concluded
that collateral consequences could render a prior criminal
conviction not moot. 72 Wis. 2d 327, 240 N.W.2d 635 (1976). In
that case, a criminal defendant challenged a prior conviction
for which he had already served his sentence in full. Id. at
329. We noted that the defendant's challenge faced a mootness
hurdle. Id. at 332. But the defendant argued that the issue of
his prior conviction was not moot. Id. Specifically, the
defendant argued that his prior conviction was not moot because
he was "being held on a detainer and may be subjected to the
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No. 2017AP2217
further penalty of deportation because of the [prior
conviction]." Id. at 333. We concluded the prior conviction
was not moot because "on the face of the record, there [was] a
causal relationship between the defendant's present confinement
and the prior conviction which he wishes to attack." Id.; see
also State v. Larkin, Nos. 2007AP1646 through 2007AP1650,
unpublished slip op., ¶6 (Wis. Ct. App. Jul. 24, 2008)
(concluding the defendant's "challenge to his completed
sentences [was] not moot because he [was] still experiencing the
collateral consequences of his convictions in the form of an
enhanced federal sentence"); State v. Genz, No. 2016AP2475-CR,
unpublished slip op., ¶10 (Wis. Ct. App. Jan. 30, 2018) (stating
that a "'criminal case is moot only if it is shown that there is
no possibility that any collateral legal consequences will be
imposed on the basis of the challenged conviction.' . . . A
challenge to a conviction is not moot because the relief sought
would free a defendant from all consequences flowing from his or
her conviction") (citing Sibron v. New York, 392 U.S. 40, 57
(1968); Lane v. Williams, 455 U.S. 624, 630 (1982)).
¶24 Of course, this is not a criminal case. But the logic
of Theoharopoulos is just as sound here. In this case, there is
a "causal relationship between" D.K.'s firearms ban and the
civil commitment "which he wishes to attack." Theoharopoulos,
72 Wis. 2d at 333. The circuit court's commitment order says:
The subject is prohibited from possessing any firearm.
Federal law provides penalties for, and you may be
prohibited from possessing, transporting, shipping,
receiving, or purchasing a firearm, including, but not
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No. 2017AP2217
limited to, a rifle, shotgun, pistol, revolver, or
ammunition, pursuant to 18 U.S.C. 921(a)(3) and (4)
and 922(g)(4). This prohibition shall remain in
effect until lifted by the court. Expiration of the
mental commitment proceeding does not terminate this
restriction.
(Emphasis added.)
¶25 As a result of his civil commitment, D.K. is
"prohibited from possessing any firearm." And the "[e]xpiration
of the mental commitment proceeding [did] not terminate this
restriction." Accordingly, though his commitment has expired,
D.K. is still subject to the lasting collateral consequence of a
firearms ban. Since D.K. would otherwise have a fundamental
right to bear arms, this is no minor consequence. See U.S.
Const. amend II; Wis. Const. art. I, § 25; see also District of
Columbia v. Heller, 554 U.S. 570 (2008); Wisconsin Carry, Inc.
v. City of Madison, 2017 WI 19, 373 Wis. 2d 543, 892 N.W.2d 233.
On appeal, a decision in D.K.'s favor would void the firearms
ban and therefore have a "practical effect." Thus, we conclude
that D.K.'s commitment is not a moot issue because it still
subjects him to the collateral consequence of a firearms ban.7
We now proceed to the merits.
B. Constitutional Rights And Commitment Proceedings
¶26 The Fifth Amendment declares that no person shall be
"deprived of life, liberty, or property, without due process of
7 Because we conclude that the firearms ban is itself
sufficient to render D.K.'s commitment not moot, we need not
address whether the collateral consequences of costs of care
under Wis. Stat. § 46.10(2)-(3) or negative stigma would render
the same result.
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No. 2017AP2217
law. . . . " U.S. Const. amend. V. "'[C]ommitment for any
purpose constitutes a significant deprivation of liberty that
requires due process protection.'" J.W.K., 386 Wis. 2d 672, ¶16
(quoting Jones v. United States, 463 U.S. 354, 361 (1983)).
Accordingly, civil commitment cases are to be handled with the
utmost diligence and care. Two due process protections are
implicated in D.K.'s case——the what, and the how of commitment
cases.
¶27 First, due process dictates what the petitioner must
prove for commitment to be appropriate. The petitioner must
prove that the individual is both mentally ill and dangerous.
O'Connor v. Donaldson, 422 U.S. 563, 576 (1975) ("In short, a
State cannot constitutionally confine without more a
nondangerous individual who is capable of surviving safely in
freedom by himself or with the help of willing and responsible
family members or friends.") It is not sufficient to show that
the individual is mentally ill. Id. at 575. Nor is it
sufficient to show "[m]ere public intolerance or animosity."
Id.
¶28 Second, due process dictates how the petitioner must
prove commitment is appropriate. The petitioner must prove that
commitment is appropriate by clear and convincing evidence.
Addington v. Texas, 441 U.S. 428, 432-33 (1979). The Supreme
Court concluded that clear and convincing evidence is the
appropriate burden of proof in commitment cases because the
individual liberty at stake is of great "weight and gravity."
Id. at 427. But, notably, the Supreme Court declined to adopt
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No. 2017AP2217
the "beyond a reasonable doubt" standard in commitment cases
because that standard lends itself to "specific, knowable
facts." Id. at 430. Civil commitment cases do not. "The
subtleties and nuances of psychiatric diagnosis render
certainties virtually beyond reach in most situations." Id.
The clear and convincing evidentiary standard balances the
individual's significant liberty interest with the State's
interests in "providing care to its citizens who are
unable . . . to care for themselves" and "protect[ing] the
community from the dangerous tendencies of some who are mentally
ill." Id. at 425.
¶29 Accordingly, in a civil commitment case, due process
requires the petitioner to prove by clear and convincing
evidence that the individual is both mentally ill and dangerous.
The Wisconsin Statutes codify the same and additional
protections.
C. Statutory Interpretation
1. Wisconsin Stat. § 51.20 Commitment Proceedings Generally
¶30 We pause a moment to discuss the general statutory
framework for involuntary commitment proceedings in Wisconsin.
Then we will interpret and apply the particular section at issue
in D.K.'s case. Involuntary commitment proceedings are
controlled by Wis. Stat. § 51.20. Just last term, we described
these proceedings:
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,
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No. 2017AP2217
and (2) "[t]he individual is dangerous."
§ 51.20(1)(a)1-2; see also [Waukesha Cty. v. J.W.J.,
2017 WI 57, ¶18, 375 Wis. 2d 542, 895 N.W.2d 783].
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 convincing evidence. § 51.20(13)(e);
J.W.J., 375 Wis. 2d 542, ¶19, 895 N.W.2d 783. 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.
J.W.K., 386 Wis. 2d 672, ¶17.
¶31 In this case, the circuit court concluded that D.K.
was mentally ill, a proper subject for commitment, and dangerous
as defined under Wis. Stat. § 51.20(1)(a)2.b. D.K. disputes the
circuit court's conclusion as to dangerousness only. This court
has never before interpreted § 51.20(1)(a)2.b. We do so now.
2. Wisconsin Stat. § 51.20(1)(a)2.b. Dangerousness
¶32 Pursuant to Wis. Stat. § 51.20(1)(a)2.b., an
individual is dangerous if he or she:
Evidences a substantial probability of physical harm
to other individuals as manifested by evidence of
recent homicidal or other violent behavior, or by
evidence that others are placed in reasonable fear of
violent behavior and serious physical harm to them, as
evidenced by a recent overt act, attempt or threat to
do serious physical harm.
§ 51.20(1)(a)2.b.
¶33 In this case, the County argues there was clear and
convincing evidence that D.K. presented "a substantial
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No. 2017AP2217
probability of physical harm to other individuals as manifested
by . . . evidence that others [were] placed in reasonable fear
of violent behavior and serious physical harm to them, as
evidenced by a . . . threat to do serious physical harm." Wis.
Stat. § 51.20(1)(a)2.b. Accordingly, we interpret that
language, and that language only.
¶34 Statutory interpretation "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 (internal
quotations omitted). If its meaning is plain, then our inquiry
ends. Id. We give statutory language "its common, ordinary,
and accepted meaning." Id. We give "technical or specially-
defined words or phrases" their "technical or special
definitional meaning." Id. "Context is important to meaning."
Id., ¶46. Accordingly, we interpret statutory language "not in
isolation but as part of a whole." Id. For the whole statute
to have meaning, we must "give reasonable effect to every word"
and "avoid surplusage." Id.
¶35 While this court has never before interpreted the
entirety of Wis. Stat. § 51.20(1)(a)2.b., Wisconsin courts have
interpreted portions of the language included in this section.
We begin with "substantial probability." In State v. Curiel, we
interpreted the phrase "substantial probability" in Wis. Stat.
§ 980.02(2)(c) (1995-96) and "substantially probable" in Wis.
Stat. § 980.01(7) (1995-96). 227 Wis. 2d 389, 402-03, 597
N.W.2d 697 (1999). We noted that both the legislature and
courts use the two phrases interchangeably and concluded that
17
No. 2017AP2217
they "share a common meaning." Id. at 403. We then interpreted
the plain language and concluded that the two phrases mean "much
more likely than not." Id. at 406. Importantly, we connected
this conclusion to the "substantial probability" language in ch.
51. We explained:
Both ch. 980 and ch. 51 employ a "substantial
probability" standard. We held that the term
"substantially probable" as used in ch. 980 means
"much more likely than not." As the terms are to be
used in a consistent manner between the chapters, we
can conceive of no reason why the term as used in ch.
51 should be construed any differently than it is
under ch. 980.
Id. at 414.8 We also noted that the legislature had amended Wis.
Stat. § 51.20 in 1977. Id. at 410. It replaced "substantial
risk" with "substantial probability." Id. In this case, the
County did not dispute that "substantial probability" means
"much more likely than not." We now reaffirm that "substantial
probability" in Wis. Stat. § 51.20(1)(a)2.b. means "much more
likely than not."
¶36 Under the plain language of the statute, evidence of a
"substantial probability of physical harm to other individuals"
must be "manifested by" "evidence of recent homicidal or other
violent behavior" or "evidence that others are placed in
reasonable fear of violent behavior and serious physical harm to
them, as evidenced by a recent overt act, attempt or threat to
8Since our decision in State v. Curiel, 227 Wis. 2d 389,
597 N.W.2d 697 (1999), the legislature has changed the language
of both Wis. Stat. §§ 980.01(7) and 980.02(2)(c). Both sections
now use the word "likely." See §§ 980.01(7) and 980.02(2)(c)
(2015-16)..
18
No. 2017AP2217
do serious physical harm." Wis. Stat. § 51.20(1)(a)2.b.
Because the County argues that it presented clear and convincing
evidence of "reasonable fear," we focus our interpretation on
that portion of the statute.
¶37 In R.J. v. Winnebago County, the court of appeals
interpreted "evidence that others are placed in reasonable fear
of violent behavior and serious physical harm to them" in Wis.
Stat. § 51.20(1)(a)2.b.——the same section at issue here. 146
Wis. 2d 516, 431 N.W.2d 708 (Ct. App. 1988). In that case, R.J.
argued that "them" meant only the individuals threatened. Id.
at 521. Under R.J.'s interpretation, there was no "reasonable
fear" unless the threatened individual was subjectively aware of
the threat. Id. The court of appeals correctly concluded that
that interpretation was too narrow. Id. at 522. R.J.'s
interpretation would have rendered insufficient evidence that a
person was placed in reasonable fear of serious physical harm to
another person. The court of appeals rejected that narrow
interpretation of the statute. Id. Instead, it concluded that
the statute was satisfied by "a showing . . . that others are
placed in a fearsome position by a [mentally ill] person's
actions even if the person placed in that position has no
subjective awareness of it." Id. at 523. Neither party to this
case challenges the court of appeals' interpretation in R.J.
Rather, consistent with R.J., both parties agreed that
Dr. Dave's testimony, as a third-party witness to D.K.'s alleged
threat to harm others, could be sufficient to satisfy the
19
No. 2017AP2217
statute. They dispute only whether Dr. Dave's testimony
actually was sufficient.
¶38 We conclude that the court of appeals' interpretation
in R.J. is consistent with the plain language of Wis. Stat.
§ 51.20(1)(a)2.b. Specifically, we conclude that a plain
reading of the statute demonstrates that "them" in the second
clause of that section refers back to "other individuals" in the
first clause. See § 51.20(1)(a)2.b. ("Evidences a substantial
probability of physical harm to other individuals as
manifested . . . by evidence that others are placed in
reasonable fear of violent behavior and serious physical harm to
them . . . ") (emphasis added). Thus, under the plain language
of the statute, evidence that a person was placed in reasonable
fear of serious physical harm to that person or another person
can be sufficient to establish a "reasonable fear" under
§ 51.20(1)(a)2.b.
¶39 In his briefing and at oral argument, D.K. argued that
the County could not prove dangerousness under Wis. Stat.
§ 51.20(1)(a)2.b. without showing facts supporting an objective,
"reasonable fear." Specifically, D.K. argued that the County
did not prove that he was dangerous because there was no
testimony to facts concerning his demeanor at the time he made
his threats.
¶40 We agree with D.K. that Wis. Stat. § 51.20(1)(a)2.b.
establishes an objective test. But our agreement ends there,
and we decline to adopt D.K.'s interpretation. His
interpretation would read out the first portion of
20
No. 2017AP2217
§ 51.20(1)(a)2.b. Under D.K.'s interpretation, evidence of
"reasonable fear" would be both necessary and sufficient to
establish "a substantial probability of physical harm." See
§ 51.20(1)(a)2.b. Put simply, a "reasonable fear" would equal a
"substantial probability." That cannot be right for two
reasons. First, the plain language of those two phrases
suggests otherwise——different words require different meanings.9
See State ex rel. DNR v. Wisconsin Court of Appeals, District
IV, 2018 WI 25, ¶28, 380 Wis. 2d 354, 909 N.W.2d 114 ("When the
legislature uses different terms in the same act, we generally
do not afford them the same meaning.") Indeed, at oral
argument, the County agreed that "the substantial probability is
informed by the requirement of . . . threats that would put a
reasonable person at fear of serious physical harm"; that those
phrases must be given separate meaning in order to "harmonize"
the statutory language. Second, if "reasonable fear" and
"substantial probability" in § 51.20(1)(a)2.b. meant the same
thing, then one or the other would be surplusage. We must
interpret statutory language "to give reasonable effect to every
word" and "avoid surplusage." Kalal, 271 Wis. 2d 633, ¶46; see
also Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts, 174-79 (2012) ("Surplusage
Canon"); id. at 174 ("If possible, every word and every
Common sense suggests that "reasonable" is something less
9
than "substantial." Thus, D.K.'s interpretation would likely
provide less protection for the mentally ill than the one we
adopt today.
21
No. 2017AP2217
provision is to be given effect. . . . None should needlessly be
given an interpretation that causes it to duplicate another
provision or to have no consequence.").
¶41 We conclude that a finding of a "reasonable fear"
supports a separate finding of a "substantial probability." In
other words, evidence of a "reasonable fear" is necessary but
not automatically sufficient alone to conclude there is a
"substantial probability of physical harm" under Wis. Stat.
§ 51.20(1)(a)2.b. A "reasonable fear" may, and perhaps often
will, establish a "substantial probability." But it will not
necessarily always end the analysis.
¶42 In sum, we conclude that the plain language of Wis.
Stat. § 51.20(1)(a)2.b. requires a showing that it is much more
likely than not that the individual will cause physical harm to
other individuals. Id. This conclusion can be supported by
evidence that at least one person was placed in "reasonable fear
of violent behavior and serious physical harm" to that same
person or another.10 Id. This reasonable fear must be
"evidenced by" a "recent overt act," an "attempt," or a "threat
to do serious physical harm." Id.
¶43 We now proceed to decide the merits of D.K.'s case:
whether there was clear and convincing evidence at the final
hearing that D.K. was dangerous under Wis. Stat.
§ 51.20(1)(a)2.b.
It can also be supported by "evidence of recent homicidal
10
or other violent behavior" but that language is not at issue in
this case. See Wis. Stat. § 51.20(1)(a)2.b.
22
No. 2017AP2217
D. There Was Clear And Convincing Evidence of Dangerousness.
¶44 At the outset, we note that D.K. does not challenge
any of the circuit court's factual findings as clearly
erroneous. Nor does D.K. challenge the circuit court's
conclusions that D.K. had a mental illness and was a proper
subject for commitment. Thus, we review the evidence presented
at the final hearing and the circuit court's findings to decide
whether there was clear and convincing evidence that D.K. was
dangerous as defined under Wis. Stat. § 51.20(1)(a)2.b.
¶45 At the final hearing, corporation counsel asked Dr.
Dave, "Based on your interview of [D.K.] were you able to form
an opinion as to whether or not he had presented a substantial
risk of danger to either himself or others?" Dr. Dave
responded, "To other people." The clear meaning of Dr. Dave's
testimony is that D.K. "presented a substantial risk of danger"
"[t]o other people."
¶46 Dr. Dave then explained his conclusion. He stated
that D.K. was "paranoid about people around him. He had
thoughts of harming those people who were talking about him,
making fun of him. He also was making some threats against
[the] police department because he had thought that they were
not listening to him . . . ." Corporation counsel then asked,
"Did he tell you what his intentions were with regard to the
police or any of the persons in the public?" Dr. Dave
responded, "Yes." "He plans on strangulating the police officer
and also killing the people who made fun of him." Dr. Dave also
23
No. 2017AP2217
testified that D.K.'s threats were directly related to his
delusional disorder.
¶47 The circuit court concluded:
[Dr. Dave] testified that [D.K.] is mentally ill, that
[D.K.] is a proper subject for treatment. He
testified that he is a danger to others, specifically
that he is paranoid, that he has thoughts of harming
people and has made threats to the police department
that he wanted--he had thoughts that he wanted to
strangle police and kill people. These are homicidal
thoughts and that's what the doctor testified to.
(Emphasis added.) The circuit court then confirmed that its
conclusions fell under Wis. Stat. § 51.20(a)(1)2.b. D.K. does
not challenge any of the circuit court's factual findings as
clearly erroneous.
¶48 When we review this record, it is uncontroverted that
Dr. Dave witnessed D.K.'s threats to harm others and testified
that he "plan[ned] on strangulating the police officer and also
killing the people who made fun of him." Dr. Dave testified
that D.K. presented a substantial risk of danger "[t]o other
people." Additionally, the circuit court found that D.K. made
threats to the police department and wanted to strangle police
and kill people.
¶49 We conclude that Dr. Dave's testimony and the circuit
court's factual findings established that D.K. was dangerous
under Wis. Stat. § 51.20(1)(a)2.b. There was clear and
convincing evidence that D.K. "[e]vidence[d] a substantial
probability of physical harm to other individuals as manifested
by . . . evidence that others [were] placed in reasonable fear
24
No. 2017AP2217
of violent behavior and serious physical harm to them, as
evidenced by a . . . threat to do serious physical harm."
§ 51.20(1)(a)2.b.
¶50 D.K. argues that this evidence is negated by
statements Dr. Dave made during cross-examination. See Pucci v.
Rausch, 51 Wis. 2d 513, 519, 187 N.W.2d 138 (1971) (stating that
"an expert opinion expressed in terms of possibility or
conjecture is insufficient"). Specifically, D.K. argues that
certain statements Dr. Dave made failed to establish a
"substantial probability." Dr. Dave stated that D.K.: "could be
potentially dangerous"; "can become potentially dangerous";
"could be still potentially dangerous"; "probably may have
acted"; and "most possibly . . . might act." Dr. Dave also
stated, "I don't think I can make [a] difference whether he will
act on his thoughts or not."
¶51 We agree with D.K. that this equivocal testimony alone
would be at least arguably insufficient to establish a
"substantial probability." We will not attempt to discern what
the phrases "probably may have acted" or "most
possibly . . . might act" mean. We need not so attempt because
we do not review Dr. Dave's statements in isolation. Rather, we
review his testimony and the circuit court's findings as a
whole. As we concluded above, Dr. Dave's testimony on direct-
examination established clear and convincing evidence that D.K.
was dangerous under Wis. Stat. § 51.20(1)(a)2.b. And his
testimony as a whole supports that conclusion. Dr. Dave
testified that D.K. presented a substantial risk of danger "to
25
No. 2017AP2217
other people." He never negated or withdrew his conclusion that
D.K. was dangerous.
¶52 While mere possibility and conjecture are
insufficient, we will not disregard Dr. Dave's testimony simply
because he expressed something less than certainty. The statute
does not require certainty, but rather a "substantial
probability." Wis. Stat. § 51.20(a)(1)2.b. Furthermore, we
have never required a mental illness expert to be clairvoyant
and we decline to do so now. See Addington, 441 U.S. at 430
("The subtleties and nuances of psychiatric diagnosis render
certainties virtually beyond reach in most situations."); see
also D.K., No. 2017AP2217, unpublished slip op., ¶9 ("To the
extent that [D.K.] criticizes [Dr.] Dave's testimony as
'speculat[ive],' Wis. Stat. § 51.20(1)(a)2.b. did not require
[Dr.] Dave, in providing an expert opinion, to be clairvoyant of
[D.K.'s] future acts in order to establish a 'substantial
probability' of harm due to [D.K.'s] recent threats and his
medical diagnosis.")
¶53 D.K. also argues that Dr. Dave's testimony was
insufficient under Outagamie County v. Melanie L., 2013 WI 67,
349 Wis. 2d 148, 833 N.W.2d 607. In that case, we reversed an
involuntary medication order under Wis. Stat. § 51.61(1)(g)4.b.
Id., ¶¶96-97. Under that section, the county "must prove that
the person is substantially incapable of applying an
understanding of the advantages and disadvantages of particular
medication . . . ." Id., ¶94. We reversed because the expert
in that case misstated the substance of the statutory standard.
26
No. 2017AP2217
The expert testified that Melanie was not "'capable of applying
the benefits of the medication to her advantage' rather than
that she was substantially incapable of applying an
understanding of the advantages, [and] disadvantages" of the
medication. Id., ¶6. We concluded that the county did not meet
its burden of proof because the expert's testimony "did not
sufficiently address and meet the statutory standard." Id.,
¶97. We explained:
Medical experts must apply the standards set out in
the competency statute. An expert's use of different
language to explain his or her conclusions should be
linked back to the standards in the statute.
Id.
¶54 D.K. uses Melanie L. to argue that Dr. Dave was
required to testify to the exact statutory standard and that his
statements on cross-examination were therefore insufficient.
But the issue in Melanie L. was that the expert's testimony
misstated the substance of the statutory standard. That is not
true here. Dr. Dave did not misstate the substance of the
standard; he merely failed to recite it exactly. Melanie L.
does not stand for the proposition that we require witnesses or
circuit courts to recite magic words. Rather, it stands for the
proposition that a medical expert's testimony and conclusions
"should be linked back to the standards in the statute."
Melanie L., 349 Wis. 2d 148, ¶97. Dr. Dave testified that D.K.:
was paranoid and suffered from delusions; presented a
"substantial risk of danger" "to other people"; and "plan[ned]
on strangulating the police officer and also killing" other
27
No. 2017AP2217
people. (Emphasis added.) This is not the exact statutory
language, but it does "link back" to it. See Wis. Stat.
§ 51.20(1)(a)2.b. (requiring a "substantial probability of
physical harm to other individuals as manifested
by . . . evidence that others [were] placed in reasonable fear
of violent behavior and serious physical harm to them, as
evidenced by a . . . threat to do serious physical harm")
(emphasis added).
¶55 We pause once more to speak to the bench and the bar.
We do so because finality in a commitment proceeding is very
important to all concerned. D.K.'s commitment expired in
November 2017, and he will not have a final answer to the
question whether his commitment was appropriate until 2020. Had
certain things happened in the circuit court below, perhaps
D.K.'s appeal would have been unnecessary. The record was
sufficient in this case, but it could have been more detailed.
The County could have further developed its medical expert's
testimony, moved the expert's report into evidence, and properly
provided notice of its witnesses. Also, the circuit court could
have made more detailed and thorough factual findings and
clarified its legal conclusions. A commitment is no trivial
matter. Taking more time at the circuit court can save years of
uncertainty on appeal.
V. CONCLUSION
¶56 We conclude that D.K.'s commitment is not a moot issue
because it still subjects him to a firearms ban. We also
28
No. 2017AP2217
conclude that there was clear and convincing evidence at the
final hearing that D.K. was dangerous as defined under Wis.
Stat. 51.20(1)(a)2.b. Thus, we affirm the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
29
No. 2017AP2217.rgb
¶57 REBECCA GRASSL BRADLEY, J. (concurring). I agree
with the majority that when a commitment order infringes the
individual right to bear arms with a restriction that remains in
effect even after expiration of the commitment, a challenge to
an involuntary commitment is not moot merely because the order
has expired. I also agree with the majority's conclusion that
there was clear and convincing evidence at the commitment
hearing of D.K.'s dangerousness under Wis. Stat.
§ 51.20(1)(a)2.b (2015-16). Majority op., ¶3.1 However, I write
separately because I disagree with the majority's methodology of
statutory analysis. Instead of relying exclusively on
precedent, the majority should have analyzed and applied the
plain meaning of the statutory text. Accordingly, I
respectfully concur and I join parts I, II, III, IV.A, IV.B, and
IV.C.1 of the majority opinion.
I
¶58 Resolving D.K.'s challenge requires interpretation of
Wis. Stat. § 51.20(1)(a)2.b. Whenever we construe a statute, we
"begin[] with the language of the statute." State ex rel. Kalal
v. Circuit Court of Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110 (quoted source omitted). If the meaning of the
statute is plain and unambiguous, we stop the inquiry. See id.
(citations omitted). While the majority recites these seminal
principles of statutory interpretation, see majority op., ¶34,
it only superficially applies them, opting to discuss past
1All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
1
No. 2017AP2217.rgb
precedent rather than conducting a thorough textual analysis.
See majority op., ¶¶35-37. I begin with the text of § 51.20.
¶59 In order for a county to involuntarily commit an
individual under Wis. Stat. § 51.20, a court must find that the
individual is: (1) mentally ill; (2) a proper subject for
treatment; and (3) dangerous. § 51.20(1)(a)1-2; see also
Waukesha Cty. v. J.W.J., 2017 WI 57, ¶18, 375 Wis. 2d 542, 895
N.W.2d 783 (quoted source omitted). Wisconsin Stat.
§ 51.20(1)(a)2.a-e provides an exclusive list of five alternate
means of establishing the requisite dangerousness. An
individual is dangerous under the statute if he:
(a) "Evidences a substantial probability of physical harm
to himself or herself as manifested by evidence of
recent threats of or attempts at suicide or serious
bodily harm."
(b) "Evidences a substantial probability of physical harm
to other individuals as manifested by evidence of
recent homicidal or other violent behavior, or by
evidence that others are placed in reasonable fear of
violent behavior and serious physical harm to them, as
evidenced by a recent overt act, attempt or threat to
do serious physical harm."
(c) "Evidences such impaired judgment, manifested by
evidence of a pattern of recent acts or omissions,
that there is a substantial probability of physical
impairment or injury to himself or herself or other
individuals."
2
No. 2017AP2217.rgb
(d) "Evidences behavior manifested by recent acts or
omissions that, due to mental illness, he or she is
unable to satisfy basic needs for nourishment, medical
care, shelter or safety without prompt and adequate
treatment so that a substantial probability exists
that death, serious physical injury, serious physical
debilitation, or serious physical disease will
imminently ensue unless the individual receives prompt
and adequate treatment for this mental illness."
(e) "[E]vidences either incapability of expressing an
understanding of the advantages and disadvantages of
accepting medication or treatment and the
alternatives, or substantial incapability of applying
an understanding of the advantages, disadvantages, and
alternatives to his or her mental illness in order to
make an informed choice as to whether to accept or
refuse medication or treatment; and evidences a
substantial probability, as demonstrated by both the
individual's treatment history and his or her recent
acts or omissions, that the individual needs care or
treatment to prevent further disability or
deterioration and a substantial probability that he or
she will, if left untreated, lack services necessary
for his or her health or safety and suffer severe
mental, emotional, or physical harm that will result
in the loss of the individual's ability to function
independently in the community or the loss of
3
No. 2017AP2217.rgb
cognitive or volitional control over his or her
thoughts or actions."
§ 51.20(1)(a)2.a-e.
¶60 Both parties agree that subdivision 2.b is the only
provision at issue in D.K.'s case and both the court of appeals
and the circuit court analyzed dangerousness under that
subdivision. Because the text of subdivision 2.b is plain and
unambiguous, my review of whether D.K. was dangerous begins and
ends with the text.
¶61 Proving dangerousness under subdivision 2.b requires
showing a "substantial probability of physical harm to other
individuals[.]" Wis. Stat. § 51.20(1)(a)2.b. This court has
already determined that "substantial probability" means "much
more likely than not." State v. Curiel, 227 Wis. 2d 389, 413-
14, 597 N.W.2d 697 (1999). Subdivision 2.b provides three
exclusive ways to demonstrate a person is much more likely than
not to physically harm other individuals:
(1) "evidence of recent homicidal" . . . behavior;
(2) evidence of recent "other violent behavior"; or
(3) "evidence that others are placed in reasonable fear of
violent behavior and serious physical harm to them[.]"2
2In R.J. v. Winnebago Cty., the court of appeals determined
the word "them" did not refer only to the individual threatened,
but also included any member of the "great mass of humankind" in
the class of people denoted "others" by the statute. 146
Wis. 2d 516, 521-23, 431 N.W.2d 708 (Ct. App. 1988). Because
R.J. is a published court of appeals opinion, and this court has
never overruled it, its holding stands as binding law in this
state. See Wis. Stat. § 752.41(2). Neither party asks us to
overrule it.
4
No. 2017AP2217.rgb
§ 51.20(1)(a)2.b. D.K.'s case involves the third way——"others
[were] placed in reasonable fear of violent behavior and serious
physical harm to them[.]" The statute lists three alternate
means of evidencing a "reasonable fear of violent behavior and
serious physical harm":
(1) "[A] recent overt act";
(2) A recent "attempt"; or
(3) A recent "threat to do serious physical harm."
Id.
¶62 The text of subdivision 2.b plainly describes what is
necessary to find a person dangerous. The record must evidence
a "recent overt act," a recent "attempt," or a recent "threat to
do serious physical harm." Any one of these three factual
predicates suffices to show that others were "placed in
reasonable fear of violent behavior and serious physical
harm[.]" Establishing a "reasonable fear of violent behavior
and serious physical harm" is one way of demonstrating a
"substantial probability of physical harm to other
individuals[.]" Establishing a "substantial probability of
physical harm to other individuals" is one way of showing a
person is dangerous within the meaning of Wis. Stat.
§ 51.20(1)(a)2. The analysis is complete. As evidence of
"others" being "placed in reasonable fear of violent behavior
and serious physical harm to them[]" a "threat to do serious
physical harm[]" constitutes satisfactory evidence of
dangerousness; the statutory standard is met.
5
No. 2017AP2217.rgb
¶63 The majority asserts that "evidence of a 'reasonable
fear' is necessary but not automatically sufficient alone to
conclude there is a 'substantial probability of physical
harm[.]'" Majority op., ¶41. The majority misunderstands the
statute. The legislature decided that, among other proof,
"evidence that others are placed in reasonable fear of violent
behavior and serious physical harm to them[]" constitutes one of
the manifestations that a person "evidences a substantial
probability of physical harm to other individuals[.]" Wis.
Stat. § 51.20(1)(a)2.b. In other words, the legislature
defined, with some particularity, what establishes "a
substantial probability of physical harm" to others and included
"others" being "placed in reasonable fear of violent behavior
and serious physical harm" as evidence meeting that standard.
¶64 Puzzlingly, the majority believes this interpretation
equates "reasonable fear" and "substantial probability" and,
along with the dissent, invokes the surplusage canon. Neither
the majority nor the dissent explain their accusations of
duplication. In its analysis, the majority neglects to consider
the context and structure of the statute. While the legislature
embedded many layers in the determination of dangerousness, the
language it used plainly says an individual is dangerous if he
"[e]vidences a substantial probability of physical harm to other
individuals" and a "substantial probability of physical harm"
may be manifested by "evidence that others are placed in
reasonable fear of violent behavior and serious physical harm to
them," which in turn may be evidenced by three separate actions:
6
No. 2017AP2217.rgb
(1) a recent overt act; (2) an attempt to do serious physical
harm; or (3) a threat to do serious physical harm. This
interpretation of the statute gives effect to every word and
every provision, ignoring none. In contrast, the majority
offers no explanation for its conclusory assertion that "[a]
'reasonable fear' may, and perhaps often will, establish a
'substantial probability[]' [b]ut . . . not necessarily
always[.]" Majority op., ¶41. As a result of this equivocation
by the majority, future litigants and courts may ponder when a
"reasonable fear" may or may not establish "a substantial
probability of physical harm" but the legislature already told
us——in the statutory language.
II
¶65 D.K. argues that Dr. Dave's testimony at the final
hearing was insufficient to meet the legal standard of
dangerousness under subdivision 2.b. Because Dr. Dave
repeatedly used phrases such as "could be potentially
dangerous[,]" "can become potentially dangerous[,]" "could be
still potentially dangerous[,]" and "I don't think I can make
the difference whether he will act on his thoughts or not[,]"
D.K. argues the evidence was insufficient to find him
"substantial[ly] probab[le]" or "much more likely than not" to
"physically harm other individuals[.]" See Wis. Stat.
§ 51.20(1)(a)2.b; Curiel, 227 Wis. 2d at 413-14.
¶66 Both D.K. and the dissent would impose an obligation
on medical experts to use particular statutory terms in
7
No. 2017AP2217.rgb
expressing their opinions.3 We do not impose a "magic words"
requirement in the law and this court has repeatedly rejected
them. See State v. Lepsch, 2017 WI 27, ¶36, 374 Wis. 2d 98, 892
N.W.2d 682 (rejecting in the context of a circuit court
inquiring about juror bias); State v. Wantland, 2014 WI 58, ¶33,
355 Wis. 2d 135, 848 N.W.2d 810 (rejecting in context of
withdrawing consent under the Fourth Amendment); Elections Bd.
v. Wisconsin Mfrs. & Commerce, 227 Wis. 2d 650, 654, 669-70, 597
N.W.2d 721 (1999) (rejecting in context of what is required to
be "express advocacy"); see also Patchak v. Zinke, 138 S. Ct.
897, 905 (2018) (noting that the Supreme Court refrains from
reading statutes to "incant magic words" (quoted source
omitted)). The dissent asserts that "risk" is not synonymous
with "probability" and because Dr. Dave testified to a
substantial risk of danger, and not a substantial probability,
there was not clear and convincing evidence of dangerousness
under the statute. See dissent, ¶¶79, 81, 83, 84.
¶67 The dissent is correct that risk and probability have
different meanings. See Risk, Black's Law Dictionary (11th ed.
2019) ("The uncertainty of a result, happening, or loss; the
chance of injury, damage, or loss; esp., the existence and
extent of the possibility of harm[.]"); Probability, Black's Law
The dissent relies on Outagamie Cty. v. Melanie L., 2013
3
WI 67, 349 Wis. 2d 148, 833 N.W.2d 607, for the proposition that
medical experts must testify to the specific words set forth in
Wis. Stat. § 51.20(1)(a)2.b. See dissent, ¶¶85-87. To the
extent Melanie L. can be read to impose such a "magic words"
requirement, I would clarify its holding and align it with our
other jurisprudence. See supra ¶66.
8
No. 2017AP2217.rgb
Dictionary (11th ed. 2019) ("Something that is likely; what is
likely[]"; "The degree to which something is likely to occur,
often expressed mathematically; Possibility[]"; "The quality,
state, or condition of being more likely to happen or to have
happened than not; the character of a proposition or supposition
that is more likely true than false."). Contrary to the
dissent's conclusion, this distinction is not dispositive. The
dissent erroneously conflates the role of the court and the role
of the medical expert in commitment cases. While the medical
expert testifies to the facts, the circuit court makes an
independent legal judgment as to whether the facts meet the
legal standard set forth in the commitment statute.
¶68 Contrary to the arguments of the dissent and D.K., it
is immaterial that the medical expert used "substantial risk" or
variants of "could be potentially dangerous[.]" It is the
court's responsibility to determine whether the testimony and
other evidence support a finding of a "substantial probability
of physical harm" as required by the statute.4 Cf. Winnebago
Cty. v. Christopher S., 2016 WI 1, ¶50, 366 Wis. 2d 1, 878
N.W.2d 109 (discussing how courts must apply facts to the legal
statutory standard).
Because
4 circuit courts bear the responsibility of
determining whether the evidence satisfies the statutory
standard, circuit courts must expressly make independent factual
findings on the record, separate from any legal conclusions.
Merely reciting testimony or melding factual findings with legal
conclusions can constrain appellate review. Because appellate
courts overturn only factual findings that are "clearly
erroneous," there must be distinct separation of factfinding
from legal conclusions. Cf. Winnebago Cty. v. Christopher S.,
2016 WI 1, ¶50, 366 Wis. 2d 1, 878 N.W.2d 109 (discussing the
standard of review in commitment cases).
9
No. 2017AP2217.rgb
¶69 Due to the significant deprivation of liberty
associated with an involuntary commitment, due process requires
that the evidence be clear and convincing. Addington v. Texas,
441 U.S. 418, 433 (1979). The evidence at the final hearing in
D.K.'s case clearly and convincingly supported the circuit
court's determination that D.K. was dangerous based on D.K.
evidencing "a substantial probability of physical harm to other
individuals[.]" Most importantly, the circuit court found that
D.K. "has thoughts of harming people and has made threats to the
police department that he wanted——he had thoughts that he wanted
to strangle police and kill people." D.K. does not challenge
this finding as clearly erroneous. As this factual finding
involves a recent "threat to do serious physical harm[,]" made
to Dr. Dave, it alone is sufficient to find that "others are
placed in a reasonable fear of violent behavior and serious
physical harm to them," which is enough to find "a substantial
probability of physical harm to other individuals[.]" See Wis.
Stat. § 51.20(1)(a)2.b; supra ¶¶61-62.
¶70 While this threat alone was sufficient for the circuit
court to find D.K. dangerous under subdivision 2.b, it also
found: (1) D.K. had homicidal thoughts; (2) D.K. has a mental
illness that causes delusional disorders; and (3) D.K.'s
delusions affected D.K.'s ability to recognize reality. The
uncontroverted evidence introduced during the hearing also
demonstrated that D.K.: (1) posed a substantial risk of danger
to "other people"; (2) had plans to strangle police and kill
those individuals making fun of him; (3) "could be potentially
10
No. 2017AP2217.rgb
dangerous"; (4) had feelings of persecution; and (5) was at risk
of acting on his violent thoughts because they are a product of
his delusions and he is unable to recognize reality.
¶71 The circuit court's factual findings that D.K. "has
made threats to the police department" and "that he wanted to
strangle police and kill people[]" alone render D.K. dangerous
under Wis. Stat. § 51.20(1)(a)2.b. The additional factual
findings, and uncontroverted hearing testimony in the record,
provide additional clear and convincing evidence of D.K.'s
dangerousness.
III
¶72 The majority is correct that this case is not moot.
When a commitment order infringes the individual right to bear
arms protected by the Second Amendment and the Wisconsin
Constitution, a challenge to an involuntary commitment is not
moot if the firearm prohibition survives expiration of the
commitment. See U.S. Const. amend. II; Wis. Const. Art. 1,
§ 25.
¶73 A textual analysis of Wis. Stat. § 51.20(1)(a)2.b
shows the County established D.K.'s dangerousness. The circuit
court's finding that D.K. "made threats to the police
department[,]" is not clearly erroneous. These "threat[s] to do
serious physical harm[,]" expressed to Dr. Dave, fulfill one of
the factual predicates sufficient to show "that others are
placed in a reasonable fear of violent behavior and serious
physical harm to them[.]" That showing, in turn, satisfies one
of the tests for dangerousness under § 51.20(1)(a)2——"a
11
No. 2017AP2217.rgb
substantial probability of physical harm to other
individuals[.]" Because the majority's analysis fails to
clearly apply the plain words of the statute, I respectfully
concur.
¶74 I am authorized to state that Justice DANIEL KELLY
joins this concurrence.
12
No. 2017AP2217.rfd
¶75 REBECCA FRANK DALLET, J. (dissenting). There is no
dispute that D.K. suffered from delusional disorder and that he
made statements regarding plans to strangle a police officer and
to kill people that he perceived to be making fun of him. The
issue is whether the County presented sufficient evidence that
D.K. was dangerous as a result of his disorder. In concluding
that the testimony of Dr. Dave was sufficient to establish that
D.K. was dangerous, the majority ignores the statutory standard
set forth in Wis. Stat. § 51.20(1)(a)2.b. and implicitly
overrules this court's holding in Melanie L. requiring medical
experts to apply that statutory standard. Outagamie Cty. v.
Melanie L., 2013 WI 67, 349 Wis. 2d 148, 833 N.W.2d 607. For
this reason, I dissent.
¶76 The United States Supreme Court has acknowledged that
involuntary commitment is "'a massive curtailment of liberty'
and in consequence 'requires due process protection.'" Vitek v.
Jones, 445 U.S. 480, 491-92 (1980) (citation omitted). Because
of the significant liberty interest involved in civil commitment
cases, the standard of proof of clear and convincing evidence is
required to meet due process guarantees. Addington v. Texas,
441 U.S. 418, 432-33 (1979). "This Court has mandated
an intermediate standard of proof——'clear and convincing
evidence'——when the individual interests at stake in a state
proceeding are both 'particularly important' and 'more
substantial than mere loss of money.'" Santosky v. Kramer, 455
U.S. 745, 756 (1982) (quoting Addington, 441 U.S. at 424).
1
No. 2017AP2217.rfd
¶77 To commit an individual pursuant to Wis. Stat.
§ 51.20(1)(a)2.b., a county must prove by clear and convincing
evidence that an individual is dangerous because he or she:
Evidences a substantial probability of physical harm
to other individuals as manifested by evidence of
recent homicidal or other violent behavior, or by
evidence that others are placed in reasonable fear of
violent behavior and serious physical harm to them, as
evidenced by a recent overt act, attempt or threat to
do serious physical harm.
(Emphasis added.) Whether the facts in the record satisfy the
statutory standard for commitment under § 51.20(1)(a)2.b. is a
question of law which this court reviews de novo. Waukesha Cty.
v. J.W.J., 2017 WI 57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783.
¶78 I agree with the majority's statutory analysis of Wis.
Stat. § 51.20(1)(a)2.b., see majority op. ¶¶30-42, because it
gives effect to every statutory term, unlike the concurrence's
analysis which renders the standard of "substantial probability"
surplusage. However, I part ways with the majority as to
whether there was clear and convincing evidence presented to the
circuit court that D.K. "evidence[d] a substantial probability
of physical harm."
¶79 The majority relies solely on Dr. Dave's testimony on
direct examination1 to support its conclusion that D.K.
"[e]vidences a substantial probability of physical harm to other
1 As the majority correctly notes, the County did not move
Dr. Dave's report into evidence at the hearing and therefore it
is not part of the record. Majority op., ¶6 & n.4.
2
No. 2017AP2217.rfd
individuals."2 Dr. Dave was asked the following question on
direct examination regarding the likelihood of D.K.'s current
dangerousness: "Based on your interview of [D.K.], were you
able to form an opinion as to whether or not [D.K.] had
presented a substantial risk of danger to either himself or
others?" Dr. Dave answered: "To other people."
¶80 The majority opinion pays lip service to the
importance of reviewing Dr. Dave's testimony "as a whole," yet
ignores his testimony on cross-examination, which it concedes
was "at least arguably insufficient to establish a 'substantial
probability.'" Majority op., ¶51. Dr. Dave stated on cross-
examination that he was not aware of any times that D.K. had
acted on his thoughts. When asked about the likelihood that
D.K. would act on his thoughts, Dr. Dave opined that: D.K. "can
act" on his thoughts; he "can become potentially dangerous"; he
"could be still potentially dangerous"; and he "probably may
have acted" on his thoughts. When asked whether Dr. Dave could
tell "whether or not he was saying something [D.K.] was going to
act on or maybe [was] just speaking in anger," Dr. Dave
responded "I don't think I can make the difference whether he
will act on his thoughts or not." These statements do not
support a finding by clear and convincing evidence that D.K. was
While the circuit court's factual findings in this case
2
are scant, they are not clearly erroneous. See Outagamie Cty.
v. Melanie L., 2013 WI 67, ¶38, 349 Wis. 2d 148, 833 N.W.2d 607("We will not disturb a circuit court's factual findings unless
they are clearly erroneous.").
3
No. 2017AP2217.rfd
dangerous in accordance with the statutory mandate of
"substantial probability."
¶81 But even if, like the majority, I only consider Dr.
Dave's testimony on direct examination, the record is still
insufficient to support a finding that D.K. evidences a
"substantial probability of physical harm to other individuals."
The majority says the "clear meaning" of Dr. Dave's direct
examination testimony "is that D.K. 'presented a substantial
risk of danger' '[t]o other people.'" Majority op., ¶45. But
what exactly is "a substantial risk of danger"? At first blush,
it looks similar to the language of Wis. Stat.
§ 51.20(1)(a)2.b.: "substantial probability of physical harm."
However, a deeper look reveals important distinctions.
¶82 As noted by the majority opinion, the legislature
amended Wis. Stat. § 51.20 in 1977 to replace "'substantial
risk'" with "'substantial probability,'" signifying that there
is a difference in meaning between these terms. See Richards v.
Badger Mut. Ins. Co., 2008 WI 52, ¶22, 309 Wis. 2d 541, 749
N.W.2d 581 ("By analyzing the changes the legislature has made
over the course of several years, we may be assisted in arriving
at the meaning of a statute."). We recognized in Curiel that
"there is no evidence that when the legislature amended Wis.
Stat. § 51.20 in 1977 and replaced 'risk' with 'probability,' it
did so with a view that 'probability' and 'risk' were
synonymous." State v. Curiel, 227 Wis. 2d 389, 410, 597 N.W.2d
697 (1999); see § 29, ch. 428, Laws of 1977; Drafting File for
4
No. 2017AP2217.rfd
1977 Act 428, Analysis by the Legislative Reference Bureau of
1977 A.B. 898, Legislative Reference Bureau, Madison, Wis.
¶83 Moreover, the term "substantial risk" has a meaning
distinct from the term "substantial probability." This court
often uses dictionary definitions to ascertain the meaning of
words and phrases not defined by statute. Curiel, 227 Wis. 2d
at 404. The Merriam Webster Dictionary defines "risk" as a
"possibility of loss or injury." "Risk," Merriam Webster Online
Dictionary (2020), https://www.merriam-webster.com/dictionary/
risk (emphasis added). "Possible" is defined as "being
something that may or may not occur." "Possible," Merriam
Webster Online Dictionary (2020), https://www.merriam-
webster.com/dictionary/possible. The common usage of the words
testified to by Dr. Dave is that D.K. evidences a danger to
other people that may or may not occur. In contrast, this court
has defined "substantial probability," as "much more likely than
not." Curiel, 227 Wis. 2d at 406.
¶84 Possibility and probability are not, as the majority
opinion assumes, simply interchangeable. This court has often
said an expert opinion expressed in terms of possibility or
conjecture is insufficient. See Pucci v. Rausch, 51 Wis. 2d
513, 519, 187 N.W.2d 138 (1971) (citing to cases dating back to
1904 for this proposition). The important distinction between
possibility and probability was best described in Michalski v.
Wagner, 9 Wis. 2d 22, 28, 100 N.W.2d 354 (1960), where we held
that there was "no probative value" to a medical expert's
5
No. 2017AP2217.rfd
testimony that it was possible the accident caused the
plaintiff's injury. We stated:
Preponderance of mere possibilities is, of course, not
the equivalent of a preponderance of probabilities.
Mere possibilities leave the solution of an issue of
fact in the field of conjecture and speculation to
such an extent as to afford no basis for inferences to
a reasonable certainty, and in the absence of at least
such inferences there is no sufficient basis for a
finding of fact.
Id. In a commitment case which carries an even higher burden of
proof, an opinion testifying to clear and convincing evidence of
possibilities is likewise of no probative value.
¶85 The majority concludes that a medical expert is not
required to render an opinion to the standard set forth in Wis.
Stat. § 51.20, and thus implicitly overrules Melanie L., 349
Wis. 2d 148. In Melanie L., this court determined that a
medical expert's opinion that Melanie L. was unable to apply an
understanding "to her advantage" did not establish clear and
convincing evidence of the statutory requirement that she be
"substantially incapable of applying an understanding of the
advantages, disadvantages and alternatives" of medication. Id.,
¶96. We emphasized that "[m]edical experts must apply the
standards set out in the competency statute" and that "[a]n
expert's use of different language to explain his or her
conclusions should be linked back to the standards in the
statute." Id., ¶97 (emphasis added). We further determined
that it is a county's burden to ensure that a medical expert
applies the required standard: "[w]hen [corporation counsel]
did not receive an answer in those [statutory] terms, he should
6
No. 2017AP2217.rfd
have required his witness to expound upon his answer, so that
the circuit court and a reviewing court did not have to
speculate upon [the doctor's] meaning." Id., ¶91. While no
medical expert is required to be clairvoyant, and certainty is
not required, Melanie L. signifies that a medical expert must
testify to the standard set forth in § 51.20(1)(a)2.b.
¶86 Here, as in Melanie L., Dr. Dave did not testify to
the standards set forth in the competency statute and
corporation counsel failed to clarify the testimony or introduce
his report into evidence.3 The majority attempts to distinguish
Melanie L. by claiming that Dr. Dave "did not misstate the
substance of the standard; he merely failed to recite it
exactly." Majority op., ¶54. Dr. Dave did exactly what the
majority opinion identified as improper: he misstated the
substance of the standard. The testimony of Dr. Dave using an
alternate standard did not rise to the level of proof by clear
and convincing evidence that D.K. evidences a "substantial
probability of physical harm to other[s]" as mandated by Wis.
Stat. § 51.20(1)(a)2.b. As this court warned in Melanie L.,
"[Wis. Stat. ch. 51] hearings cannot be perfunctory under the
3The majority opinion recognizes that the County "could
have further developed its medical expert's testimony, moved the
expert's report into evidence, and properly provided notice of
its witnesses." Majority op., ¶55. We review only the record
before us in a case, not the record that could have been made.
See Covelli v. Covelli, 2006 WI App 121, ¶14, 293 Wis. 2d 707,
718 N.W.2d 260 ("When reviewing fact finding, we search the
record for evidence to support findings reached by the trial
court, not for evidence to support findings the trial court did
not but could have reached.").
7
No. 2017AP2217.rfd
law. Attention to detail is important." Melanie L., 349
Wis. 2d 148, ¶94.
¶87 Since the record before the circuit court reflects
that the County's only witness did not render an opinion
regarding D.K.'s likelihood of dangerousness as defined in Wis.
Stat. § 51.20(1)(a)2.b., and as required by Melanie L., 349
Wis. 2d 148, I would reverse and vacate the circuit court's
order.
¶88 For the foregoing reasons, I respectfully dissent.
¶89 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissent.
8
No. 2017AP2217.rfd
1