Rock County v. J. J. K.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 29, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1085 Cir. Ct. No. 2020ME2

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE COMMITMENT OF J.J.K.:

ROCK COUNTY,

PETITIONER-RESPONDENT,

V.

J. J. K.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Rock County:
JEFFREY KUGLITSCH, Judge. Affirmed.
No. 2020AP1085

¶1 NASHOLD, J.1 J.J.K. appeals an involuntary commitment order
entered pursuant to WIS. STAT. § 51.20 and an involuntary medication order
entered pursuant to WIS. STAT. § 51.61(1)(g)3. After first addressing the issue of
mootness, J.J.K. argues that: (1) the circuit court’s admission of, and reliance on,
hearsay evidence of dangerousness constitutes plain error; (2) the circuit court
failed to find, and the County failed to prove, that J.J.K. was dangerous to himself
or others as required by § 51.20(1)(a)2.; and (3) the County did not prove that
J.J.K. was substantially incapable of applying an understanding of the advantages
and disadvantages of medication to his condition within the meaning of
§ 51.61(1)(g)4. I affirm.

BACKGROUND

¶2 On January 6, 2020, Rock County filed a Statement of Emergency
Detention, which alleged that J.J.K. evidenced behavior that constituted a
substantial probability of physical harm to self or to others. At the time of J.J.K.’s
detention in January of 2020, J.J.K. was living outdoors underneath a bridge and
refused to live in an apartment that was made available to him through the County.
J.J.K. had also recently refused food that was offered by a County employee,
stating that he did not “know what [the County employee] put in it.”

¶3 On January 15, 2020, a commitment hearing was held, at which the
County presented the testimony of psychiatrist Dr. Jeffrey Marcus and
psychologist Dr. Kevin Miller, whose reports were received into evidence. In
forming their opinions, Drs. Marcus and Miller relied on their mental status

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d). All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

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examinations of J.J.K. and on collateral sources, such as police reports, the
emergency detention statement, and records from Winnebago Mental Health
Institute (Winnebago).

Dr. Marcus’s Testimony and Report

¶4 Dr. Marcus testified that J.J.K. suffers from a mental illness which
he diagnosed as “unspecified psychotic disorder” possibly due to schizophrenia,
and that J.J.K. is a proper subject for treatment. Dr. Marcus explained that he
observed paranoid thinking and ideation in J.J.K., which involved J.J.K.’s beliefs
that he was being mistreated by Rock County personnel. Dr. Marcus further
testified that J.J.K. had been previously diagnosed with autism spectrum disorder
but that J.J.K’s psychosis and paranoia would not be caused from autism spectrum
disorder.

¶5 Dr. Marcus believed that J.J.K was a danger to himself because, if
left to his own devices, J.J.K. would continue to live homeless in cold winter
weather, even though the County had arranged for him to live in an apartment.
Dr. Marcus believed there were “paranoid underpinnings” to J.J.K.’s refusal to
accept housing from the County. Dr. Marcus acknowledged that he was not aware
of any adverse medical conditions that J.J.K. had suffered related to the weather
and that J.J.K. was not malnourished.

¶6 With respect to medication, Dr. Marcus testified that he believed
medication would have therapeutic value for J.J.K. and that J.J.K. understood the
advantages and disadvantages of the medication that Dr. Marcus had explained to
him. Although Dr. Marcus agreed that “psychosocial therapy” was a possible
alternative, he stated that “[m]edications, particularly [for] paranoia, would be …
by far the type of treatment … modality that you’d want to use.” Dr. Marcus

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testified that J.J.K. could not apply his understanding of the medications to his
current situation because he “did not see the value in taking” the medication, “did
not believe he had a condition for which this medication would offer benefit,” and
would discontinue the medication if not required to take it. Dr. Marcus testified
that J.J.K.’s inability to apply his understanding is “at least in part … related to his
mental illness.” His report indicates that J.J.K.’s inability is due to mental illness
and developmental disability.

Dr. Miller’s Testimony and Report

¶7 Dr. Miller testified that J.J.K. has a mental illness that Dr. Miller
diagnosed as “unspecified schizophrenia spectrum or other psychotic disorder”
and that J.J.K is a proper subject for treatment.

¶8 Dr. Miller testified that J.J.K. was a “significant risk of harm” to
others. His report states that J.J.K. is dangerous because he evidenced a
“substantial probability of physical harm to other subjects 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.”

¶9 In concluding that J.J.K. is a danger to others, Dr. Miller relied in
part on a police report showing that J.J.K. had been aggressive toward law
enforcement a few weeks before J.J.K. was taken into detention. Dr. Miller’s
report quoted an excerpt from a police report,2 stating that on December 13, 2019,

2
This police report, supplemental report #4, is not part of the appellate record.

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in response to a citizen complaint, law enforcement made contact with J.J.K., who
swore at the officers, eventually picked up a large rock, and “came at the officers
in an assaultive manner,” resulting in law enforcement attempting to tase J.J.K.
When tasing was unsuccessful due to J.J.K.’s winter clothing, law enforcement
attempted to use oleoresin capsicum (OC) spray, but when that was also
unsuccessful, an officer knocked J.J.K. to the ground. J.J.K. was then arrested for
“resisting or obstructing and battery or threats to law enforcement” and held at the
Rock County Jail.

¶10 Dr. Miller also relied on reports from Winnebago indicating that
after J.J.K. was admitted to Winnebago and refused medication, on January 9,
2020, while being physically restrained and administered involuntary medication,
J.J.K. threatened to “fuck someone up” upon being released from restraints.
Dr. Miller also stated that during his interview with J.J.K., J.J.K. said that the
judge who initially ordered the involuntary medication would “go down” for
ordering treatment “illegally,” but that J.J.K. refused to elaborate on what he
meant by that statement.

¶11 In his report, Dr. Miller stated that, due to J.J.K.’s mental illness, he
was substantially incapable of applying an understanding of the advantages,
disadvantages and alternatives to his condition in order to make an informed
choice as to whether to accept or refuse the recommended medication or
treatment. Dr. Miller’s report further stated that J.J.K. “did not believe he had any
issues requiring help.”

J.J.K.’s Testimony

¶12 J.J.K. testified on his own behalf. When asked how he adapted to
the weather, J.J.K. explained that he had clothing such as “bibs,” “overalls,”

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sweatshirts, stocking caps, and face masks. He testified that “[b]asically I warmed
up when I needed to. Put on more clothes—clothing when I needed to. Did what
I need to [do] to stay dry and not too wet.”

¶13 He testified that he had a representative payee and had received food
stamps. J.J.K. confirmed that he had access to food, clean water, and medical
care. He stated that he chose not to move into an apartment offered to him by the
County because he believed moving into the apartment would delay his ultimate
goal—to move back to the state of Oregon to be near his sister and daughter.

¶14 Regarding the threatening comment J.J.K. made at Winnebago,
J.J.K. testified, “I was frustrated and I was angry and I was hallucinating a little
because of the medication. So I questioned the medication, and at that point, yeah,
I made that comment. It was not intentional.” He testified that he had not tried to
hurt himself or anyone else at Winnebago. He stated that he did not have any
intention of harming the judge who presided over his probable cause hearing.
J.J.K. acknowledged his mental illness, stating: “I have a mental illness … which
I categorize as [something that I am] able to manage and to be able to function in
society. I do struggle, I will admit that. We all do struggle sometimes. But I
mean I’m able to function. I’m able to survive. I know how.”

¶15 The circuit court asked J.J.K. if he would take his medications, and
J.J.K. responded:

That’s a tough question because a lot of medications
fog up my ability to be able to concentrate and to be able to
function. The last time I was on the medication, I was
basically one of those people that was a walking zombie.
You talked to me, it took me about a few seconds to answer
you because I was so, you know, hyped up on meds would
be the proper term, that I was just not there.

….

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No. 2020AP1085

And I’m definitely afraid that this is going to
happen again. I apologize.

When asked by his counsel to elaborate about why he did not want to take the
medications, J.J.K. responded:

A lot of medications in which I’ve been prescribed like
Ambien, Wellbutrin, you know, Risperdal and, you know,
medium to higher doses have made me so foggy I can’t -- I
can’t even do Sudoku, which is what I love to do. So I
don’t even think enough to even do those....

….

That’s why I refuse to take it, is because I don’t like
the way it makes me feel.

….

I’m able to function without it.

The Circuit Court’s Decision

¶16 The circuit court determined that the County met its burden for
involuntary commitment and medication. The court concluded that J.J.K. suffers
from a treatable mental illness and that he “creates a danger to himself or to
others.” Regarding dangerousness to others, the court noted that J.J.K. had
behaved aggressively toward law enforcement “to the point where they [found] it
necessary to tase and [take] actions of that nature,” that J.J.K. had made a threat
against the circuit court judge who conducted the probable cause hearing, and that
J.J.K. had also threatened Winnebago staff “to fuck them up or whatever it was”
while he was being restrained and involuntarily medicated.

¶17 Regarding J.J.K.’s dangerousness to himself, the circuit court noted
that J.J.K. had been “living outdoors, sleeping in sleeping bags outside” in the
winter and that J.J.K. had “been fortunate it hasn’t been extremely cold like it
certainly can get in February.” The court noted that although “a person has a right

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to be homeless if it’s of their own choosing,” here, the County had offered J.J.K an
apartment to “get out of the cold” but that J.J.K. had said it would prevent him
from going to Oregon, which did not make sense to the court. The court noted that
J.J.K. refused to avail himself of necessary help in the community, and had
paranoid delusions, including concerns that there may be wiretaps in the home and
that some of the food offered him may have been poisoned. The court stated that
J.J.K.’s conduct “goes to the mental illness … he has.”

¶18 As to the medication order, the circuit court stated that it had no
doubt that “if left to his own devices, [J.J.K.] will not take his medication and he
will be in a worse state than he is in court here today.” The court credited
Dr. Marcus’s testimony that, although J.J.K. understood his medications, he was
“incapable of applying that understanding of the advantages, disadvantages, and
alternatives to his condition in order to make an informed choice as to whether to
accept or refuse the recommended treatment.” The court ordered that J.J.K. be
involuntarily committed for six months and that he be administered involuntary
medication.

Extension of J.J.K.’s Commitment

¶19 Because the commitment order at issue in this appeal was entered on
January 15, 2020, J.J.K.’s commitment would have expired on or about July 15,
2020, months before briefing was completed in this appeal and less than a month
before the notice of appeal was filed. However, prior to expiration, the County
petitioned for an extension of the commitment (also known as a recommitment),
and on July 1, 2020, pursuant to a stipulation, J.J.K. was recommitted for one
month and involuntary medication was again imposed, under orders not at issue in
this appeal. Following a recommitment hearing, on July 23, 2020, the court

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ordered a 12-month extension of J.J.K.’s commitment and again ordered
involuntary medication.

¶20 Additional facts will be provided as needed in the discussion section
below.

DISCUSSION

I. Standard of Review and General Legal Principles

¶21 Review of WIS. STAT. ch. 51 orders for involuntary commitment and
for involuntary medication and treatment presents a mixed question of fact and
law. This court upholds a circuit court’s findings of fact unless they are clearly
erroneous. Waukesha Cnty. v. J.W.J., 2017 WI 57, ¶15, 375 Wis. 2d 542, 895
N.W.2d 783 (involuntary commitment); Outagamie Cnty. v. Melanie L., 2013 WI
67, ¶¶37-38, 349 Wis. 2d 148, 833 N.W.2d 607 (involuntary medication and
treatment). Whether the facts satisfy the statutory requirements for an involuntary
commitment or a medication order presents a question of law that this court
reviews de novo. J.W.J., 375 Wis. 2d 542, ¶15; Melanie L., 349 Wis. 2d 148,
¶¶38-39.

¶22 For a person to be subject to a WIS. STAT. ch. 51 involuntary
commitment, three elements must be fulfilled: the subject individual must be
(1) mentally ill; (2) a proper subject for treatment; and (3) dangerous to oneself or
to others. Fond du Lac Cnty. v. Helen E.F., 2012 WI 50, ¶20, 340 Wis. 2d 500,
814 N.W.2d 179; WIS. STAT. § 51.20(1)(a)1.-2. Each of these required elements
must be proven by clear and convincing evidence. Sec. 51.20(13)(e); J.W.J., 375
Wis. 2d 542, ¶19. The County also bears the burden of proving that an individual

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is incompetent to refuse medication by clear and convincing evidence. Melanie
L., 349 Wis. 2d 148, ¶37; see also § 51.20(13)(e).

II. Mootness

¶23 As previously stated, J.J.K.’s six-month commitment was to expire
on July 15, 2020. However, on July 1, 2020, pursuant to a stipulation, a one-
month extension was ordered, and on July 23, 2020, the court entered a 12-month
recommitment order and an involuntary medication order. J.J.K. has appealed the
recommitment and that appeal, Rock County v. J.J.K., No. 2020AP2105, is
currently pending.

¶24 The County argues that J.J.K.’s challenge to the January 2020
commitment order is moot. Mootness is a question of law this court reviews de
novo. Portage Cnty. v. J.W.K., 2019 WI 54, ¶10, 386 Wis. 2d 672, 927 N.W.2d
509. “‘An issue is moot when its resolution will have no practical effect on the
underlying controversy.’” Id., ¶11 (quoted source omitted).

¶25 In Marathon County v. D.K., 2020 WI 8, ¶25, 390 Wis. 2d 50, 937
N.W.2d 901, our supreme court held that an appeal of an expired involuntary
commitment is not moot when the commitment still subjects the individual to the
“lasting collateral consequence of a firearms ban” and a decision in the appellant’s
favor “would void the firearms ban and therefore have a ‘practical effect.’” Id.
Here, it is undisputed that, as a result of the commitment, J.J.K. is subject to a
firearms ban and that the firearms ban remains in effect even after expiration of
the commitment order. The commitment order states clearly that it “shall remain
in effect until lifted by the court” and that “[e]xpiration of the mental commitment
proceeding does not terminate [the] restriction.” Thus, J.J.K. argues that D.K.
clearly governs and that this appeal is not moot.

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¶26 In contrast, the County argues that D.K. is inapplicable, and J.J.K.’s
appeal is moot, because J.J.K.’s commitment was subsequently extended and he is
now subject to a firearms ban under the recommitment order. In addition, the
County asserts that J.J.K. is also banned from possessing firearms by a domestic
violence restraining order under WIS. STAT. § 813.12, which the County contends
is in effect until May 24, 2022. Thus, according to the County, a reversal of the
commitment order in this case would therefore have no practical effect on D.K.’s
ability to possess a firearm. Instead of being governed by D.K., the County argues
that this case is governed by J.W.K., in which the court determined that J.W.K.’s
challenge to a 2016 recommitment order was moot because the 2016 order expired
after the court again extended J.W.K.’s commitment in 2017 under a separate
order. J.W.K., 386 Wis. 2d 672, ¶1. The County’s arguments are unpersuasive.

¶27 First, J.W.K. was decided prior to D.K. and the J.W.K. court
specifically explained that its decision was “limited to situations where, as here, no
collateral implications to the commitment order are raised.” Id., ¶28 n.11. The
court suggested that an appeal of an expired commitment order may not be moot if
the committed individual continued to be affected by collateral consequences of
the order, noting that the firearms ban and liability for the costs of care might be
potential collateral consequences of commitments. Id. In contrast, here, J.J.K.
specifically raises the issue of collateral consequences attendant to his
commitment, including the firearms ban.

¶28 Moreover, I reject the County’s argument that this appeal is moot
because a firearms ban was also imposed in the subsequent recommitment order
and therefore a reversal of the commitment order in this appeal will have no
practical effect on J.J.K.’s ability to possess a firearm. As previously stated, J.J.K.
has appealed the recommitment order and that appeal is pending. I cannot

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conclusively determine that reversal of the commitment order in this appeal would
have no practical effect because it has not yet been established whether, in the
other appeal, the recommitment order—which also includes a firearms ban—will
be reversed or affirmed.

¶29 I also reject the County’s related argument that this case is moot
because J.J.K. is banned from owning a firearm pursuant to a domestic violence
restraining order. Even assuming that a separate firearms restriction is in place
until May 24, 2022 as the County asserts, once that order expires, J.J.K. would still
be restricted from possessing a firearm under the commitment order in this case.
Thus, contrary to the County’s position, a reversal of the commitment order in this
case would in fact have a “practical effect.” See J.W.K., 386 Wis. 2d 672, ¶11.

¶30 Accordingly, I conclude that the appeal of the commitment order is
not moot.3

III. Hearsay

¶31 J.J.K. argues that the circuit court relied on impermissible hearsay in
determining that J.J.K. is dangerous to others. Specifically, J.J.K. challenges
Dr. Miller’s report and testimony describing the December 13, 2019 incident in

3
Given my determination that this case is not moot because of the collateral
consequence of the firearms ban, I need not consider J.J.K.’s other ground for arguing that the
case is not moot, namely, that he may be liable for the cost of care while committed. See
Barrows v. American Fam. Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508
(2013) (“An appellate court need not address every issue raised by the parties when one issue is
dispositive.”).

I also note that the circuit court’s July 1, 2020 order recommitting J.J.K. for one month
pursuant to the parties’ stipulation also includes a firearms ban. However, because the parties do
not make any arguments that rely on this order, I do not consider its possible consequences here.

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which J.J.K. acted aggressively toward officers, resulting in officers attempting to
tase and use OC spray on J.J.K., and the January 9, 2020 incident in which J.J.K.,
while being physically restrained and forcibly medicated, stated that he would
“fuck someone up” upon being released from restraints. Dr. Miller did not witness
either of these two events but instead learned of them through collateral sources,
namely, a police report and Winnebago records, respectively.

¶32 Significantly, J.J.K. did not object to Dr. Miller’s testimony or report
describing these incidents. Nevertheless, J.J.K. argues that the circuit court’s
reliance on this hearsay evidence constituted “plain error” and that the error was
not harmless. J.J.K. notes the court’s following references to these incidents:

 “There [were] concerns [regarding] his conduct from law
enforcement to the point where they needed to tase[.]”

 “But, again, in engaging with law enforcement to the point where
they felt it necessary to tase[.]”

 “Dr. Miller talked about the threats on the unit …. So we’re looking
at a different level of dangerousness there. And I understand, he was
forcibly restrained and being involuntarily medicated and he acted
out and he was making statements whether he’s going to fuck them
up or whatever it was.”

¶33 J.J.K. acknowledges that under WIS. STAT. § 907.03 an expert may
rely on hearsay in forming an opinion. However, J.J.K. cites precedent concluding
that the underlying hearsay remains inadmissible. See S.Y. v. Eau Claire Cnty.,
156 Wis. 2d 317, 327-28, 457 N.W.2d 326 (Ct. App. 1990) (“While experts may
rely on inadmissible evidence in forming opinions, [WIS. STAT. §] 907.03, the

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underlying evidence is still inadmissible.”); State v. Coogan, 154 Wis. 2d 387,
399, 453 N.W.2d 186 (Ct. App. 1990) (expert may not act as a conduit for
inadmissible evidence); State v. Williams, 2002 WI 58, ¶19, 253 Wis. 2d 99, 644
N.W.2d 919 (expert cannot act as a conduit for the opinion of another).

¶34 However, the authority upon which J.J.K. relies is unavailing
because it does not address the plain error doctrine. I also note that, in contrast to
this case, in S.Y. and Williams, the party opposing the evidence made a timely
objection. S.Y., 156 Wis. 2d at 327; Williams, 253 Wis. 2d 99, ¶5. And the
Coogan court addresses the “conduit for inadmissible evidence” issue in the
context of affirming the denial of a motion for a new trial. Coogan, 154 Wis. 2d
at 394-401. As explained below, I conclude that J.J.K. has forfeited his challenge
to this evidence by failing to object, and that J.J.K. has not demonstrated that the
plain error doctrine applies.

¶35 Typically, “failure to object constitutes a forfeiture of the right on
appellate review.” State v. Ndina, 2009 WI 21, ¶30, 315 Wis. 2d 653, 761
N.W.2d 612. “The purpose of the forfeiture rule is to enable the circuit court to
avoid or correct any error as it comes up, with minimal disruption of the judicial
process and maximum efficiency.” State v. Counihan, 2020 WI 12, ¶26, 390
Wis. 2d 172, 938 N.W.2d 530. “Such a practice encourages timely objections and
obviates the need for appeal.” Id. It additionally “prevents attorneys from
‘sandbagging’ opposing counsel by failing to object to an error for strategic
reasons and later claiming that the error is grounds for reversal.” Id., ¶27 (quoted
source omitted).

¶36 However, WIS. STAT. § 901.03(4) recognizes the plain error
doctrine. “The plain error doctrine allows appellate courts to review errors that

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were otherwise [forfeited] by a party’s failure to object.” State v. Jorgensen, 2008
WI 60, ¶21, 310 Wis. 2d 138, 754 N.W.2d 77. “Plain error is error so fundamental
that a new trial or other relief must be granted even though the action was not
objected to at the time.” Id. (quoted source and internal quotation marks omitted).
The error, however, must be “obvious and substantial.” Id. “Courts should use
the plain error doctrine sparingly.” Id. The party seeking application of the plain
error doctrine “bears the burden in the first instance to ‘show[ ] that the unobjected
to error is fundamental, obvious, and substantial.’” State v. Nelson, 2021 WI App
2, ¶46, 395 Wis. 2d 585, 954 N.W.2d 11 (quoting Jorgensen, 310 Wis. 2d 138,
¶23).

¶37 In the instant case, J.J.K. has failed to meet his burden of
establishing that any reliance on the hearsay information constitutes plain error
that would allow J.J.K. to challenge the evidence despite his failure to object.
J.J.K. has failed to cite any authority in which an appellate court has applied a
plain error analysis in similar circumstances. A high bar rightfully exists for
establishing plain error and J.J.K. has not met it here, nor has he shown why this is
one of the rare instances where this court should abandon the forfeiture rule and
thereby deprive the circuit court and the County of the opportunity to respond to
an objection.

¶38 I also note that, with respect to J.J.K.’s statement that he would
“fuck someone up,” J.J.K. testified to having made this statement, although he
further testified that he did so only because he was frustrated, angry, and
“hallucinating a little bit” because of the involuntary medication, and that he never
hurt anyone at Winnebago. J.J.K. was also asked by his counsel if he “had any
intentions of harming the judge who presided over your probable cause hearing”

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and responded that he did not. That J.J.K. himself verified aspects of these same
incidents is further reason to reject an application of the plain error doctrine.

¶39 In sum, by failing to object to Dr. Miller’s description of these
incidents described above, J.J.K. has forfeited any challenge to this evidence and
the circuit court was permitted to rely on the evidence in reaching its conclusions.

IV. Dangerousness

¶40 As previously stated, in an involuntary commitment proceeding, the
County has the burden of showing by clear and convincing evidence that the
individual is dangerous under one of the five specific standards of dangerousness
set forth in WIS. STAT. § 51.20(1)(a)2.a.-e. See J.W.K., 386 Wis. 2d 672, ¶17;
§ 51.20(1)(a), (13)(e). Each of these dangerousness standards requires evidence of
recent acts or omissions demonstrating that the individual is a danger to him or
herself or to others. J.W.K., 386 Wis. 2d 672, ¶17; § 51.20(1)(a)2.a.-e.

¶41 J.J.K. first argues that the circuit court failed to identify the standard
of dangerousness in WIS. STAT. § 51.20(1)(a)2. under which J.J.K. was committed.
However, even assuming this assertion is true, J.J.K. does not provide authority
demonstrating that this omission requires reversal of the commitment order. J.J.K.
first quotes D.K., 390 Wis. 2d 50, ¶55, in which the court observed that “the
circuit court could have made more detailed and thorough factual findings and
clarified its legal conclusions.” However, J.J.K does not argue, and D.K. does not
support, that a circuit court’s failure to specifically identify a statutory standard of
dangerousness results in reversal.

¶42 J.J.K. also relies on our supreme court’s holding in Langlade
County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, requiring that

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circuit courts in recommitment proceedings make specific factual findings
regarding dangerousness. See D.J.W., 391 Wis. 2d. 231, ¶40 (“[G]oing forward
circuit courts in recommitment proceedings are to make specific factual findings
with reference to the subdivision paragraph of [WIS. STAT. §] 51.20(1)(a)2. on
which the recommitment is based.”) (emphasis added). J.J.K. acknowledges that
D.J.W. addresses recommitment proceedings, but argues that the requirement
should also apply to initial commitment proceedings. However, even accepting
the premise that the D.J.W. directive applies to initial commitment proceedings,
this would not assist J.J.K. As we have previously determined, D.J.W.’s directive
is prospective only and “is inapplicable” where, as here, the commitment order
predates D.J.W.; thus, failure to make the required findings with reference to
§ 51.20(1)(a)2. “cannot compel reversal.” Winnebago Cnty. v. S.H., 2020 WI
App 46, ¶14, 393 Wis. 2d 511, 947 N.W.2d 761.

¶43 J.J.K. also argues that the County failed to prove that J.J.K. was
dangerous under any of the standards set forth in WIS. STAT. § 51.20(1)(a)2.a.-e. I
disagree. As explained below, I conclude that the County met its burden of
showing that J.J.K. was dangerous to others under § 51.20(1)(a)2.b. Under this
provision, an individual is dangerous if he or she:

[e]vidences 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.

Sec. 51.20(1)(a)2.b.

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¶44 The circuit court concluded that the County met its burden by “clear
and convincing” evidence that J.J.K. “creates a danger to himself or to others.”4 In
concluding that J.J.K. was dangerous to others, the court relied on J.J.K.’s conduct
toward law enforcement a few weeks before his detention “to the point where they
felt it necessary to tase and [take] actions of that nature.” The court also relied on
J.J.K.’s threats to Winnebago staff on January 9, 2020, that he would “fuck
someone up” when he was released from restraints, and J.J.K.’s threats involving
the judge who presided over J.J.K.’s probable cause hearing.

¶45 The evidence also included Dr. Miller’s opinion in his report that
J.J.K. is dangerous because he evidences a “substantial probability of physical
harm to other subjects 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.” This conclusion tracks the
language in WIS. STAT. § 51.20(1)(a)2.b. Dr. Miller likewise testified that J.J.K.
was a “significant risk of harm” to others. In addition, Drs. Miller and Marcus
both note in their reports that J.J.K.’s mother has a restraining order against J.J.K.

¶46 Based on the foregoing, J.J.K. “[e]vidence[d] a substantial
probability of physical harm to other individuals as manifested by evidence of

4
In concluding that J.J.K. was a danger to himself, the circuit court relied primarily on
evidence that J.J.K. was living outside in the winter even though the County had provided him
with an apartment. The parties dispute whether the evidence before the circuit court in this case
relating to J.J.K.’s living outdoors in the winter constituted sufficient evidence of dangerousness
to oneself under WIS. STAT. § 51.20(1)(a)2. However, I need not address this issue in light of my
determination that the record shows by clear and convincing evidence that J.J.K. presents a
danger to others under § 51.20(1)(a)2.b. See Barrows v. American Fam. Ins. Co., 2014 WI App
11, ¶9, 352 Wis. 2d 436, 842 N.W.2d 508 (2013) (appellate courts need not address every issue
raised by parties when one issue dispositive).

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recent ... violent behavior” under WIS. STAT. § 51.20(1)(a)2.b., in particular,
through J.J.K.’s aggressive acts toward police. In addition, J.J.K.’s conduct
toward police, his threat toward the judge, and his threats toward Winnebago staff
support the conclusion that “others [were] 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.” Sec. 51.20(1)(a)2.b. As this court
observed in R.J. v. Winnebago County, 146 Wis. 2d 516, 523, 431 N.W.2d 708
(Ct. App. 1988), an objective test applies to a determination of whether there
exists a “reasonable fear of violent behavior” under § 51.20(1)(a)2.b.: “a showing
can be made that others are placed in a fearsome position by a disturbed person’s
actions even if the person placed in that position has no subjective awareness of
it.” See also R.J., 146 Wis. 2d at 522 (it would “defeat the statute’s purpose” and
“lead to an absurd result” to interpret the statute to “focus upon the subjective
feelings of the threatened individual” and the “effects of the acts” instead of “the
objective acts of the disturbed person.”).

¶47 Accordingly, I conclude that the record establishes by clear and
convincing evidence that J.J.K. was dangerous to others under WIS. STAT.
§ 51.20(1)(a)2.b.

V. Involuntary Medication Order

¶48 J.J.K. argues that the County failed to prove that he was incompetent
to refuse treatment under WIS. STAT. § 51.20(13)(e).

¶49 “[A] competent individual has a protected Fourteenth Amendment
liberty interest in refusing unwanted medical treatment.” Melanie L., 349 Wis. 2d
148, ¶89 (quoted source omitted). An individual is presumed competent to refuse
medication or treatment. Id. The County bears the burden of proving that an

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individual is incompetent to refuse medication by clear and convincing evidence.
Id. at ¶37; WIS. STAT. § 51.20(13)(e).

¶50 The competency standards in WIS. STAT. § 51.61(1)(g)4. provide:

[A]n individual is not competent to refuse medication or
treatment if, because of mental illness, developmental
disability, alcoholism or drug dependence, and after the
advantages and disadvantages of and alternatives to
accepting the particular medication or treatment have been
explained to the individual, one of the following is true:

a. The individual is incapable of expressing an
understanding of the advantages and disadvantages of
accepting medication or treatment and the alternatives.

b. The individual is substantially incapable of
applying an understanding of the advantages, disadvantages
and alternatives to his or her mental illness, developmental
disability, alcoholism or drug dependence in order to make an
informed choice as to whether to accept or refuse
medication or treatment.

¶51 There is no dispute in this case that Drs. Marcus and Miller
explained, and that J.J.K. understood, the advantages and disadvantages of
medication. Thus, competency standard 4.a. is not at issue here. Instead, J.J.K.
argues that the County failed to meet its burden under competency standard 4.b.
because the County failed to prove by clear and convincing evidence that J.J.K. is
substantially incapable of applying an understanding of the advantages,
disadvantages, and alternatives of medication in order to make an informed choice
as to whether to accept or refused medication or treatment. I disagree.

¶52 The circuit court determined that although J.J.K. “understand[s] his
medications,” he was “incapable of applying that understanding of the advantages,
disadvantages, and alternatives to his condition in order to make an informed
choice as to whether to accept or refuse the recommended treatment.” The court’s

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medication order likewise states that, due to mental illness,5 J.J.K. is “substantially
incapable of applying an understanding of the advantages, disadvantages and
alternatives to his or her condition in order to make an informed choice as to
whether to accept or refuse psychotropic medications.” The court stated that it had
no doubt that if “left to his own devices, [J.J.K.] will not take his medication and
he will be in a worse state than he is in court here today.” The court’s conclusions
are supported by the record.

¶53 Both Drs. Miller and Marcus stated in their reports that J.J.K. is
substantially incapable of applying an understanding of the advantages,
disadvantages and alternatives to his condition in order to make an informed
choice as to whether to accept or refuse the recommended medication or
treatment. Dr. Marcus’s report explained the basis for this conclusion:

[J.J.K.’s] insight into the presence and nature of his mental
illness appeared grossly impaired. He essentially denied
having a condition for which his current medication
(Risperdal) would be necessary and expressed a desire to
discontinue the medication once he is discharged from the
hospital. He did not appear to understand the risks
associated with stopping his treatment.

Dr. Marcus testified similarly, stating that although J.J.K. understood his
medications, “[w]here he had difficulty was applying any of that understanding to
his own condition. He further testified that, due to J.J.K.’s mental illness, “[J.J.K.]
did not see the value in taking this medication. He did not believe he had a

5
The circuit court’s order actually indicates that J.J.K.’s inability is due to both “mental
illness” and “developmental disability,” i.e., autism spectrum disorder. The court did not make
any oral statements regarding a developmental disability, and the parties do not address this issue.
Therefore, this opinion likewise does not address this topic.

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No. 2020AP1085

condition for which this medication would offer benefit, and it was pretty clear
that he would want to discontinue this medication if not in a hospital.”

¶54 Likewise, when asked if he would voluntarily take his medication,
J.J.K. responded that it was “a tough question,” explaining, “[A] lot of
medications fog up my ability to be able to concentrate and to be able to function.
The last time I was on the medication, I was basically one of those people that was
a walking zombie.” He further testified:

A lot of medications in which I’ve been prescribed like
Ambien, Wellbutrin, you know, Risperdal and, you know,
medium to higher doses have made me so foggy I can’t -- I
can’t even do Sudoku, which is what I love to do. So I
don’t even think enough to even do those.

….

That’s why I refuse to take it, is because I don’t like
the way it makes me feel.

….

I’m able to function without it.

(Emphasis added.)

¶55 Dr. Miller similarly reported that J.J.K. had informed him that “he
does not need any mental health care.” His report further stated that, due to
J.J.K.’s mental illness, J.J.K. was substantially incapable of applying an
understanding of the advantages, disadvantages and alternatives to his condition in
order to make an informed choice as to whether to accept or refuse the
recommended medication or treatment.

¶56 Our supreme court has recognized that “[i]t may be true that if a
person cannot recognize that he or she has a mental illness, logically the person
cannot establish a connection between his or her expressed understanding of the

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benefits and risks of medication and the person’s own illness.” Melanie L., 349
Wis. 2d 148, ¶72. Further, “[a] person’s history of noncompliance in taking
prescribed medication is clearly relevant” to this issue, although “it is not
determinative if the person can reasonably explain the reason for the
noncompliance.” Id., ¶75. Thus, in determining that J.J.K. was substantially
incapable of applying the requisite understanding, the circuit court could properly
consider J.J.K.’s noncompliance and his belief that he did not have a mental illness
for which medication was needed.

¶57 I also note that, contrary to J.J.K.’s statements that he does not have
a mental illness for which medication would help, Dr. Marcus testified that
J.J.K.’s symptoms “are typically amenable to psychiatric interventions,
antipsychotic medications” and that J.J.K. had shown improvement while taking
medication. Dr. Marcus also testified:

[J.J.K.] has shown an initial response to treatment. When I
spoke to staff at Winnebago, it was apparent that his
symptoms and his functioning began to improve. He was
on a very low dose of medication called Risperdal and that
dosage had just been increased and I think they were
beginning to see a response to that. There was also an
indication that he may have had a positive response to that
in the past. These are all clues that the condition he has are
-- would be treatable.

¶58 Based on the record, I conclude that the County proved by clear and
convincing evidence that J.J.K. was incompetent to refuse treatment under
competency standard WIS. STAT. § 51.61(1)(g)4.b.

CONCLUSION

¶59 For the reasons stated above, the circuit court’s involuntary
commitment and medication orders are affirmed.

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By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.

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