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.
May 6, 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. 2020AP2105 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 S. KUGLITSCH, Judge. Affirmed.

¶1 BLANCHARD, J.1 J.J.K. appeals two circuit court orders: one
granting Rock County’s petition to extend a prior involuntary commitment for 12

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2020AP2105

months and the other granting the County’s request for an order of involuntary
medication and treatment during the period of extended commitment or until
further order of the court. See WIS. STAT. §§ 51.20(13)(g)1., 51.61(1)(g)4.
Regarding the recommitment order, J.J.K. primarily argues that the evidence was
insufficient to show that, as of the time of the court’s challenged ruling, he was
“currently dangerous” to himself, as the circuit court determined. Regarding the
order for involuntary medication and treatment, J.J.K. argues that the County
failed to prove that he was substantially incapable of applying an understanding of
the advantages, disadvantages, and alternatives to medication under the applicable
statutory standards, because he was not fully informed about his options.

¶2 I conclude that there was clear and convincing evidence to support
the circuit court’s determination that there was “a substantial likelihood” that
J.J.K. “would be a proper subject for commitment if treatment were withdrawn,”
see WIS. STAT. § 51.20(1)(am), based on sufficient proof of a substantial
likelihood of dangerousness based on an inability to care for himself under the
“fourth standard,” see § 51.20(1)(a)2.d. I separately conclude that there was also
clear and convincing evidence sufficient to support the order for involuntary
medication and treatment, including sufficient proof of his knowledge about
options. Accordingly, I affirm.

BACKGROUND

Petition For Recommitment

¶3 In January 2020, J.J.K. was initially committed and subjected to
involuntary medication. In May 2020, Rock County petitioned for recommitment,
alleging that he is mentally ill, a proper subject for treatment, and a danger to
himself or others. The petition explained that J.J.K., then 34, was residing in an

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apartment and was being “followed on an outpatient basis by [the] Janesville
Counseling Center.” It reported that Dr. Jeffrey Marcus had evaluated J.J.K. on
May 19, 2020, and that Dr. Marcus “recommends extension of the current
commitment.” The petition represented that J.J.K. had “made significant
improvements over the period of commitment,” but that “[t]reatment staff believe
that if not committed to treatment, [J.J.K.] would not comply and would
decompensate to a dangerous level of functioning once again.”

¶4 The circuit court held a hearing on the petition on July 22, 2020, at
which two witnesses testified, both called by the County: Dr. Marcus, a
psychiatrist, and Dr. James Black, a psychologist. J.J.K. did not personally testify.
At the hearing, his counsel did not challenge either the qualifications of either Dr.
Marcus or Dr. Black, nor did counsel challenge the reliability of their expert
testimony. Each expert testified that he had recently conducted a mental status
examination with J.J.K., reviewed treatment records, and consulted with treatment
staff. Each also testified that he had filed a report with the court based on these
information sources. The court received both reports into evidence.

Hearing Evidence

¶5 Dr. Marcus testified to the following regarding J.J.K.’s mental
illness. J.J.K. has a dual diagnosis of a mental illness and developmental
disability.2 J.J.K.’s mental illness diagnosis is “an unspecified psychotic disorder,
likely schizophrenia,” which affects his “thought and perception” and “impairs his

2
J.J.K.’s developmental disability diagnosis is an “autism spectrum disorder” and is not
the focus of arguments by either side in this appeal. Neither side disputes testimony by Dr.
Marcus that, as a general rule, autism is not a treatable mental illness.

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judgment, behavior, capacity to meet the demands of daily life,” and his “ability to
recognize reality.” He has “psychotic symptoms”—which include “acute
paranoia,” “agitation,” “lability,”3 and “disorganization”—with “treatable
components.” The “primary features” of this mental illness include “dysfunction
with lack of judgment” and an “inability to manage himself safely.”

¶6 In his report, Dr. Marcus stated that treatment records reflect that
J.J.K. was initially committed after he “was unwilling to accept assistance with
housing or other services due to his paranoid beliefs,” and “afraid to accept food
because of fears of being poisoned.”

¶7 In a similar vein, Dr. Black testified to the following regarding
J.J.K.’s mental illness. J.J.K.’s “psychiatric profile” is “complicated,” but “I
believe he is diagnosed with schizophrenia with a predominance of negative
symptoms.” “Negative symptoms” for a patient with schizophrenia include being
“isolative,” “withdrawn,” having “odd social behaviors, difficulty interacting with
others.” The schizophrenia affects J.J.K.’s “thought, mood, and perception,” and
“impairs his judgment, behavior, capacity to recognize reality, [and] ability to
meet the demands of daily life.”

¶8 Dr. Marcus testified that when he met with J.J.K. in May 2020, Dr.
Marcus “did not notice acute paranoia. [J.J.K.] was organized when he talked to
me. There was no evidence of lability.” Since the initial commitment, J.J.K. “has

3
“Labile” means “readily or continually undergoing … change or breakdown.” Labile,
MERRIAM-WEBSTER.COM DICTIONARY, https://www.merriam-webster.com/dictionary/labile (last
visited May 3, 2021).

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gotten a residence in Janesville, and I believe that [things have] been going fairly
well for him.”

¶9 Consistent with this testimony, Dr. Black testified to the following
on related topics. J.J.K. “is not presenting with any obvious symptoms,” having
“been on medications for a while now,” and is “showing notable improvement.”
J.J.K.’s improvement was reflected in: his agreement to stay in an apartment
instead of living under a bridge (as Dr. Black testified he had done, when not
treated, for a year and half); his “displaying some better evidence of ability to
interact with others”; his having “some insight into his complicated situation”; and
there being no “reports of periods of agitation or lability or paranoid delusions.”

¶10 Dr. Marcus testified that, at the time of his interview with J.J.K., he
was being treated “on a long-acting psychotic medication called Invega Sustenna
and that was working quite well in stabilizing his symptoms.” Dr. Black testified
that psychotropic medication has been J.J.K.’s “predominant treatment,” although
there has also been some “case management” and “community-based contacts.”

¶11 However, J.J.K. told Dr. Marcus that he would stop taking this
medication “if he were off of commitment.” Dr. Black also testified that J.J.K.
made clear to him that, absent a court order requiring treatment, J.J.K. would not
continue with the treatment.

¶12 Dr. Marcus testified that the medication had a “fairly significant[]”
therapeutic value for J.J.K., and that if J.J.K. stopped taking it then he would
become a proper subject for commitment. This was because Dr. Marcus expected
“that the paranoia would increase, the thought disorganization would increase, and
that his overall level of functioning would decline.” Dr. Black also testified that if

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J.J.K. went off treatment with psychotropic medication he would become a proper
subject for treatment.

¶13 Dr. Marcus testified that he explained to J.J.K. the advantages of
taking the medication (to treat his paranoia and to reduce agitation and lability)
and disadvantages (“sedation, abnormal muscle movements, weight gain,
metabolic disturbance, pain at the injection site,” and restlessness). Dr. Marcus
also “[v]ery briefly mentioned” to J.J.K. “that other psychotropic medications,
either oral or injectable, can sometimes be used and that other interventions like
therapy and case management services can be provided.”

¶14 Dr. Marcus testified that he did not believe that J.J.K. was able to
apply an understanding of the advantages and disadvantages of the medication to
his situation, because J.J.K. “did not believe that he had a treatable mental illness
which would require this type of medication.” Consistent with this, in his report
Dr. Marcus stated that J.J.K. “has consistently denied having a psychotic illness,”
and that his “insight into the presence and nature of his mental illness appeared
grossly impaired” because he “essentially denied have a psychotic illness.” Dr.
Marcus also testified that the current level of outpatient treatment “would seem
appropriate” as the least restrictive treatment option to meet his needs.

¶15 In his report, Dr. Marcus stated the following in addressing
dangerousness that could result from discontinuing treatment, resulting in J.K.K.
no longer taking the medication:

There is a substantial likelihood of psychotic
decompensation if current treatment were [to be]
withdrawn. This would result in an increased risk of
dangerousness, primarily to self. Of specific concern
would be grossly impaired judgment and a decline in
[J.J.K.’s] ability to satisfy his basic care needs. It appears

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that his risk of dangerousness has lessened with his current
psychotropic treatment.

At the hearing, the circuit court asked Dr. Marcus to elaborate on this passage of
his report. Dr. Marcus responded:

One of the most concerning aspects of what was going on
at the time of his [initial] commitment was his residing
outdoors in very cold weather and so lack of judgment and
an inability to satisfy issues of shelter, issues of nutrition.
There was concern that he was paranoid about food and
was not accepting of that. There were basic care needs
concerns which were raised in the record.

Drs. Marcus and Black each testified that neither was aware of a recurrence, since
J.J.K.’s initial commitment in January 2020, of any of the dangerous behaviors
that resulted in the initial commitment, although they attributed that to his being
medicated.

Arguments Of The Parties To The Circuit Court

¶16 The County made an argument based in part on WIS. STAT.
§ 51.20(1)(a)2.d. (the County referred to it not by statute number but as “the fourth
standard”), which addresses concern about the ability of the committed person
care for him or herself (more specifically, “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.”). The County
contended that, under the fourth standard, recommitment of J.J.K. is necessary “to
stop the revolving door of commitment, improvement, withdrawal of treatment,
and then coming back under a commitment.” This “revolving door” concept was a
transparent reference to § 51.20(1)(am), which provides an “avenue for proving
dangerousness” “reflecting a change in circumstances occasioned by an

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individual’s [prior] commitment and treatment” and “acknowledg[ing] that an
individual may still be dangerous despite the absence of recent acts, omissions, or
behaviors exhibiting dangerousness outlined in § 51.20(1)(a)2.a.-e.” See Portage
Cnty. v. J.W.K., 2019 WI 54, ¶¶19, 24, 386 Wis. 2d 672, 927 N.W.2d 509.4

¶17 Counsel for J.J.K. argued that the County had failed to show that,
even if J.J.K. were to stop receiving psychotropic medication and even if this
diminished his ability to care for himself to some degree, “a substantial probability
exists that death, serious physical injury, serious physical debilitation, or serious
physical disease will imminently ensue.” Counsel noted that our supreme court
has explained that the “[i]nability to care for oneself does not equate with a
‘substantial probability’ that ‘death, serious physical injury, serious physical
debilitation, or serious physical disease’ would ensue if treatment were
withdrawn.” See Langlade Cnty. v. D.J.W., 2020 WI 41, ¶53, 391 Wis. 2d. 231,
942 N.W.2d 277. Counsel did not present an independent, developed argument
against the proposed order for involuntary medication and treatment.

Circuit Court Decisions

¶18 The circuit court reached determinations regarding recommitment
that included the following. J.J.K. suffers from the mental illness of

4
The court of appeals has explained that WIS. STAT. § 51.20(1)(am) aims

to avoid the “revolving door” phenomena whereby there must be
proof of a recent overt act to extend the commitment but because
the patient was still under treatment, no overt acts occurred and
the patient was released from treatment only to commit a
dangerous act and be recommitted ... [in] a vicious circle of
treatment, release, overt act, recommitment.

State v. W.R.B., 140 Wis. 2d 347, 351, 411 N.W.2d 142 (Ct. App. 1987).

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schizophrenia, which is treatable, as demonstrated by the undisputed fact that
J.J.K. made “tremendous improvement” since the initial commitment. The
testimony of both experts support a dangerousness finding, as seen through the
lens of WIS. STAT. § 51.20(1)(am). The critical question is whether there was
sufficient evidence to show that, if treatment were withdrawn, J.J.K. would not be
“able to care for himself … and suffer [from failure to meet] his basic needs,”
which the court explained meant his needs “for nourishment,” “medical care,”
“shelter[],” and “safety.” The court answered this question yes. In explaining its
conclusion, the court referred to “a fifth standard type category,” which on its face
evokes § 51.20(1)(a)2.e., but the language used by the court about being “able to
care for himself” could only be reference to “the fourth standard,”
§ 51.20(1)(a)2.d., which was the standard that had just been argued by the
County.5

¶19 Regarding the order for involuntary medication and treatment, the
court credited the testimony of Dr. Marcus 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
psychotropic medication.”

¶20 Based on those rulings, the court granted the County’s request to
extend the commitment for 12 months and to order involuntary medication and
treatment, and issued corresponding orders. J.J.K. appeals.

5
The circuit court also made a passing reference to a concern that J.J.K. might
potentially harm others if he stopped taking his medication. But the court did not appear to rest
its decisions on this ground and further there was little in the expert testimony to support this as a
ground for recommitment. Accordingly, I do not consider this as a basis to affirm the circuit
court.

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DISCUSSION

I. LEGAL STANDARDS

A. Standards Of Review

¶21 The appellate 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). However, whether those facts fulfill the statutory
requirements in WIS. STAT. ch. 51 presents issues of law that this court reviews de
novo. J.W.J., 375 Wis. 2d 542, ¶15; Melanie L., 349 Wis. 2d 148, ¶¶38-39.

B. Substantive Legal Standards

Recommitment

¶22 Circuit courts have authority to extend involuntary commitments
under WIS. STAT. § 51.20(13)(g). In considering a petition for extension, courts
apply the criteria set forth in § 51.20(1)(a). A court may order the initial
commitment of an individual if the petitioner shows, by clear and convincing
evidence, that the individual meets a three-prong standard by being: (1) mentally
ill; (2) a proper subject for treatment; and (3) currently dangerous.
Sec. 51.20(1)(a)1., 2.a.-e., and (13)(e); J.W.K., 386 Wis. 2d 672, ¶¶17, 24.

¶23 Under the third prong, addressing current dangerousness, WIS. STAT.
§ 51.20(1)(a)2.a.-e. sets forth five separate standards, each of which includes a
requirement of recent acts or omissions demonstrating that the individual is a
danger to himself or herself or others. J.W.K., 386 Wis. 2d 672, ¶17.

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¶24 If a person is subject to a WIS. STAT. ch. 51 commitment order, a
petitioner such as Rock County here may, before the expiration of the prior
commitment, petition for an extension of that commitment under WIS. STAT.
§ 51.20(13)(g)3. See J.W.K., 386 Wis. 2d 672, ¶18. Extension may be for up to
one year. Sec. 51.20(13). The petitioner pursuing recommitment must prove by
clear and convincing evidence that the individual is: (1) mentally ill, (2) a proper
subject for treatment, and (3) dangerous. See § 51.20(1)(a) and (am), and (13)(e)
and (g)3.; J.W.K., 386 Wis. 2d 672, ¶¶18, 24. This may be accomplished by
showing that the individual is dangerous under § 51.20(1)(am). See J.W.K., 386
Wis. 2d 672, ¶19 (observing that § 51.20(1)(am) “provides a different avenue for
proving dangerousness”).

¶25 As pertinent here, WISCONSIN STAT. § 51.20(1)(am) provides:

[I]f the individual has been the subject of outpatient
treatment for mental illness, … immediately prior to
commencement of the proceedings as a result of a
commitment ordered by a court under this section, the
requirements of a recent overt act, attempt or threat to act
under par. (a)2. a. or b., pattern of recent acts or omissions
under par. (a)2. c. or e., or recent behavior under par. (a)2.
d. may be satisfied by a showing that there is a substantial
likelihood, based on the subject individual’s treatment
record, that the individual would be a proper subject for
commitment if treatment were withdrawn.

Our supreme court has explained that § 51.20(1)(am) “recognizes that an
individual receiving treatment may not have exhibited any recent overt acts or
omissions demonstrating dangerousness because the treatment ameliorated such
behavior, but if treatment were withdrawn, there may be a substantial likelihood
such behavior would recur.” J.W.K., 386 Wis. 2d 672, ¶19. Thus, § 51.20(1)(am)
“functions as an alternative evidentiary path” for showing dangerousness,
“reflecting a change in circumstances occasioned by an individual’s commitment

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and treatment” and “acknowledg[ing] that an individual may still be dangerous
despite the absence of recent acts, omissions, or behaviors exhibiting
dangerousness outlined in § 51.20(1)(a)2.a.-e.” J.W.K., 386 Wis. 2d 672, ¶¶19,
24.

¶26 Nevertheless, dangerousness must be proven to support the
extension of an involuntary commitment, with reference to the specific
dangerousness standards set forth in WIS. STAT. § 51.20(1)(a)2.a.-e. J.W.K., 386
Wis. 2d 672, ¶19; see also D.J.W., 391 Wis. 2d 231, ¶34. The fourth
dangerousness standard is pertinent here. A person is dangerous within the
meaning of § 51.20(1)(a)2.d. if the individual is unable “to satisfy basic needs for
nourishment, medical care, shelter or safety,” causing “a substantial probability”
of imminent “death, serious physical injury, serious physical debilitation, or
serious physical disease.” Sec. 51.20(1)(a)2.d.

¶27 In sum, then, the County here had to prove that J.J.K. was
dangerous, but it did not need to show recent behaviors exhibiting dangerousness
outlined in WIS. STAT. § 51.20(1)(a)2.d., so long as it could prove a substantial
likelihood that he would be a proper subject for commitment if treatment were
withdrawn based on the fourth standard. See D.J.W., 391 Wis. 2d 231, ¶¶33-34.

Involuntary Medication And Treatment

¶28 There is “a presumption of competence to choose” to take or refuse
medication, “regardless of commitment status” of the person. Melanie L., 349
Wis. 2d 148, ¶45. I apply that presumption in the context of the following
statutory language establishing what a petitioner must show to obtain an order for
involuntary medication and treatment under the circumstances here:

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4. … [A]n individual is not competent to refuse
medication or treatment if, because of mental illness, …
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 … in order to
make an informed choice as to whether to accept or refuse
medication or treatment.

WIS. STAT. § 51.61(1)(g)4.a.-b. The petitioner bears the burden of proving that
one of the above conditions is met by clear and convincing evidence. Melanie L.,
349 Wis. 2d 148, ¶¶37, 55.

C. Analysis

Recommitment

¶29 J.J.K. does not argue that the County failed to meet its burden of
showing that he is mentally ill or that he is a proper subject for treatment. See
WIS. STAT. § 51.20(1)(a)1. Instead, he argues that the testimony and reports of the
two experts did not constitute clear and convincing evidence that J.J.K. is
currently dangerous on the ground offered by the experts, which is that, as seen
through the evidentiary lens permitted under § 51.20(1)(am), J.J.K. will stop
taking his psychotropic medication and then become unable “to satisfy basic needs
for nourishment, medical care, shelter or safety,” causing “a substantial
probability” of imminent “death, serious physical injury, serious physical
debilitation, or serious physical disease.” See § 51.20(1)(a)2.d. I disagree that the
evidence is sufficient to meet the legal standards.

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¶30 The County does not dispute J.J.K.’s position that “substantial
probability” here means “much more likely than not.” See Marathon Cnty. v.
D.K., 2020 WI 8, ¶¶35-42, 390 Wis. 2d 50, 937 N.W.2d 901. However, J.J.K.
fails to explain why Dr. Marcus’s testimony and report (as corroborated in some
respects by evidence from Dr. Black) did not meet this standard by clear and
convincing evidence, given the unrebutted testimony that J.J.K. unambiguously
told both experts that he would stop taking his medication if not required to do so
and additional evidence that includes the following.

¶31 As summarized above, Dr. Marcus reported that, if J.J.K. were to
stop taking his medication, there was “a substantial likelihood of psychotic
decompensation,” which “would result in an increased risk of dangerousness,
primarily to self.” Dr. Marcus went on to identify in his report the “specific
concern” that J.J.K.’s judgment “would be grossly impaired” and that his “ability
to satisfy his basic care needs” would “decline.” “Basic care needs” appears to
refer to the essentials of life, not just to “needs” in the sense of desires or wants, or
involving the achievement of stereotypically comfortable living circumstances.
This intended meaning was confirmed by Dr. Marcus when the court asked him to
elaborate on these statements in his report.

¶32 In elaborating, Dr. Marcus testified that “[o]ne of the most
concerning aspects” about J.J.K.’s circumstances at the time of his initial
commitment, when he was not on the medication,

was his residing outdoors in very cold weather and so lack
of judgment and an inability to satisfy issues of shelter,
issues of nutrition. There was concern that he was paranoid
about food and was not accepting of that. There were basic
care needs concerns which were raised in the record.

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A reasonable interpretation of this evidence is that Dr. Marcus concretely provided
a link between past significant dangerous-to-self behavior by J.J.K. and a
substantial likelihood of recurrence of such behavior absent an extension order.
More to the point, this record is sufficient to support a determination that J.J.K.
would repeat the dangerous cycle if allowed to stop taking the medications.

¶33 J.J.K. suggests that the circuit court clearly erred in its interpretation
of the expert testimony. J.J.K. argues that neither expert “testified that [that
expert] believed J.J.K. would abandon his apartment and resume living outdoors if
treatment were withdrawn.” Both experts could have been more explicit and
expansive in predicting the timing and circumstances of the self-harm that they
foresaw resulting from psychotic decompensation. But I reject the argument that
Dr. Marcus failed to convey in his report and testimony the opinion that there
would be, in his words, “a substantial likelihood of psychotic decompensation,”
leading to serious, imminent self-harm involving exposure to the elements and
lack of basic nutrition.

¶34 I turn to the legal issue of whether this evidence satisfies the WIS.
STAT. § 51.20(1)(am)’s “dangerousness” requirement. There could be no
reasonable argument, and J.J.K. does not attempt to make such an argument, that
as a general matter living outdoors (even on days and nights in Wisconsin when
the weather is not at its most inclement), when one has “an inability to satisfy
issues of shelter” and “nutrition”—including failing to consume food based on
mental illness—would not pose “a substantial probability” of imminent “death,
serious physical injury, serious physical debilitation, or serious physical disease.”

¶35 Instead, J.J.K. points out that the “[i]nability to care for oneself does
not equate with a ‘substantial probability’ that ‘death, serious physical injury,

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serious physical debilitation, or serious physical disease’ would ensue if treatment
were withdrawn.” See D.J.W., 391 Wis. 2d 231, ¶53. This is also an accurate
statement of the law. But the facts here differ markedly from those in D.J.W. In
that case, the only evidence of dangerousness were concerns that D.J.W. would be
unable to care for himself in ways that would result in him losing a job, forcing
him to rely on disability for income, and requiring him to continue to live with
family. See id., ¶51. Here, in contrast, Dr. Marcus’s testimony was not merely
that, once off the medication, J.J.K. would have a somewhat reduced ability to
care for himself, perhaps in such relative innocuous areas as worsened hygiene or
less-than-optimal nutrition. Instead, given the history, the evidence as a whole
could be reasonably interpreted as a prediction that J.J.K.’s mental illness would
cause him to again expose himself to serious physical harm through extreme
exposure to the elements and malnourishment.

¶36 J.J.K. also points out that “[i]t is not enough that the individual was
at one point a proper subject for commitment. The County must prove the
individual ‘is dangerous.’” See J.W.K., 386 Wis. 2d 672, ¶24 (quoted source and
emphasis omitted). This is an accurate statement of the law. But the testimony
here was not merely that J.J.K. once was at risk of serious physical injury through
exposure and malnutrition; the evidence from the experts as a whole could
reasonably be interpreted to stand for the proposition that he would be at that same
risk as a consequence of refusing medication, as he says he will absent a court
order.

¶37 J.J.K. emphasizes the testimony of the experts that, while
consistently medicated and notably improved by the time of the recommitment
hearing, J.J.K. expresses relative contentment with his current independent living
in an apartment, and suggests that this must mean that the predictions of Dr.

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Marcus that an un-medicated J.J.K. would revert to highly dangerous outdoor
living cannot be credited. This argument ignores the effect of WIS. STAT.
§ 51.20(1)(am), which allows the courts to consider testimony that a person is in
fact currently dangerous based on a link between demonstrated prior dangerous
behavior and the dangerous behavior that would ensue when treatment is
terminated.

¶38 My analysis follows the reasoning in Winnebago County v. S.H.,
2020 WI App 46, 393 Wis. 2d 511, 947 N.W.2d 761, which I am obligated to
follow as a published opinion of this court following conversion of the case from
one-judge to three-judge status. In concluding that the petitioner in S.H. met its
burden of proving the committed person to be dangerous under WIS. STAT.
§ 51.20(1)(am), the court observed that “[d]angerousness in an extension
proceeding can and often must be based on the individual’s precommitment
behavior, coupled with an expert’s informed opinions and predictions (provided,
of course, that there is a proper foundation for the latter),” all of which “involve[ ]
a fact-intensive weighing of the evidence so as to arrive at an educated conclusion
as to the likelihood of reoccurring dangerousness.” S.H., 393 Wis. 2d 511, ¶13 &
n.6.

¶39 J.J.K. argues for the first time in his reply brief on appeal that the
recommitment order must be reversed because the circuit court failed to provide
“specific factual findings with reference to the subdivision paragraph of WIS.
STAT. § 51.20(1)(a)2. on which the recommitment is based,” as required in
D.J.W., 391 Wis. 2d 231, ¶¶3, 43. The argument is that the circuit court “did not
mention” the fourth standard (§ 51.20(1)(a)2.d.) “anywhere in its findings or
order, and only specifically references the fifth standard, WIS. STAT.
§ 51.20(1)(a)2.e.”

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No. 2020AP2105

¶40 The first problem with this argument is timing; the County lacks a
fair opportunity to address it.6 See A.O. Smith Corp. v. Allstate Ins. Cos., 222
Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998) (“It is inherently unfair for an
appellant to withhold an argument from its main brief and argue it in its reply brief
because such conduct would prevent any response from the opposing party.”). I
reject it on that basis. It would be unfair to the County to reverse based on this
new argument in the reply brief.

¶41 I also observe that the record reflects that the circuit court was
contemplating the applicable fourth standard, and simply misspoke in referring to
“the fifth standard.” See WIS. STAT. § 51.20(1)(a)2.d., e. It would have made no
sense for the court to have talked about J.J.K. not being “able to care for himself
and suffer [from failure to meet] his basic needs,” including his needs “for
nourishment,” “medical care,” “shelter[],” and “safety,” in connection with the
fifth standard. Further, as noted above, the County’s argument was clearly based
on a combination of § 51.20(1)(a)2.d. and § 51.20(1)(am), and the court’s decision
immediately followed arguments by both sides. Ideally, counsel for both sides
would have assisted the circuit court by calling to its attention this misstatement,
but neither did. In any case, any error was surely harmless. I do not interpret
D.J.W., 391 Wis. 2d 231, ¶¶3, 43, to put form over substance in a manner that
would require reversal on this record. Because it is obvious that the only standard
to which the circuit court here was referring was the fourth standard, there is no

6
J.J.K. states in his opening appellate brief that the circuit court referenced “the fifth
standard” in explaining its decision, but this does not constitute the argument that appears in the
reply brief that, in itself, this is a basis for reversal. Instead, the challenge to recommitment in the
opening brief is based exclusively on allegedly insufficient evidence.

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No. 2020AP2105

risk here of the “guesswork” on appeal that our supreme court sought to avoid by
instituting the new requirement for specific factual findings. Id., ¶45.

Involuntary Medication And Treatment

¶42 J.J.K. argues that the County failed to overcome the presumption
that he was competent to refuse medication with clear and convincing evidence
that satisfies WIS. STAT. § 51.61(1)(g)4.a.-b., quoted above. As he correctly points
out, this involves the “‘significant liberty interest in avoiding forced medication of
psychotropic drugs.’” Melanie L., 349 Wis. 2d 148, ¶43 (quoted source omitted).

¶43 The experts here granted that J.J.K. was “[]capable of expressing an
understanding of the advantages and disadvantages of accepting medication or
treatment and the alternatives,” and therefore WIS. STAT. § 51.61(1)(g)4.a. is off
the table. However, I conclude that the County presented sufficient proof that
J.J.K. was “substantially incapable 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,” see § 51.61(1)(g)4.b. The County overcame the presumption that
J.J.K. was competent to make an informed choice to refuse medication.

¶44 As summarized above, Dr. Marcus testified that J.J.K. was not able
to apply an understanding of the advantages and disadvantages of the medication
to his situation, because he “did not believe he had a treatable mental illness which
would require this type of medication.” That is, according to Dr. Marcus, J.J.K.’s
incapacity on this topic arises largely from his misunderstanding that the
medication could do him no good; he could not weigh the advantages and
disadvantages of medication because he fails to recognize what Dr. Marcus
testified was “fairly significant[]” therapeutic value for him. J.J.K. fails even to

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No. 2020AP2105

attempt to come to grips with this testimony, and therefore implicitly concedes
that J.J.K. could not recognize any advantage of medication.

¶45 J.J.K.’s argument on this topic is entirely based on the premise that
there was insufficient evidence that anyone explained to J.J.K. other treatment
alternatives besides psychotropic medications. This argument is based on the
requirement that “it is the responsibility of medical experts who appear as
witnesses for the county to explain how they probed the issue of whether the
person can ‘apply’ his or her understanding to his or her own mental condition.”
See Melanie L., 349 Wis. 2d 148, ¶75.

¶46 As summarized above, Dr. Marcus testified that he explained to
J.J.K. that the medication would treat his paranoia and reduce agitation and lability
and that it would cause “sedation, abnormal muscle movements, weight gain,
metabolic disturbance, pain at the injection site,” and restlessness. Dr. Marcus
also “[v]ery briefly mentioned” to J.J.K. “that other psychotropic medications,
either oral or injectable, can sometimes be used and that other interventions like
therapy and case management services can be provided.”

¶47 There was no cross examination of either Dr. Marcus or Dr. Black,
or other evidence, that could undermine the determination that Dr. Marcus
sufficiently conveyed in his testimony that he engaged with J.J.K. in a meaningful
discussion of alternative modes of treatment and their advantages and
disadvantages. The requirement that experts explain “how they probed the issue
of whether the person can ‘apply’ his or her understanding to his or her own
mental condition,” as required in Melanie L., was largely satisfied by the
unambiguous testimony about how they discussed with J.J.K. his mental illness
and how he fails to recognize that he is mentally ill and that the medication

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No. 2020AP2105

benefits him, even to a small degree, contrary to the facts. See id. His
fundamental misunderstanding makes it impossible for him to make an informed
choice. 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 benefits
and risks of medication and the person’s own illness.” Id., ¶72.

¶48 I conclude that the testimony and reports of the two experts here are
sufficient. Beyond that evidence, it supports my conclusion regarding J.J.K.’s
awareness of alternatives that Dr. Marcus’s report reflects that he was receiving
services from both an outpatient psychiatrist and a case manager. Consistent with
this, Dr. Black testified that J.J.K. had “case management” and “community-based
contacts.”

CONCLUSION

¶49 For all these reasons, I affirm the recommitment and involuntary
medication and treatment orders.

By the Court.—Orders affirmed.

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

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