Waupaca County v. K.E.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.
September 26, 2019
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. 2018AP1887 Cir. Ct. No. 2017ME44

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN THE MATTER OF THE MENTAL COMMITMENT OF K. E. K.:

WAUPACA COUNTY,

PETITIONER-RESPONDENT,

V.

K. E. K.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Waupaca County:
VICKI L. CLUSSMAN, Judge. Affirmed.

Before Fitzpatrick, P.J., Blanchard, and Graham, JJ.
No. 2018AP1887

¶1 BLANCHARD, J.1 K.E.K. appeals two decisions of the circuit
court: one to extend K.E.K.’s involuntary commitment and the other requiring
involuntary medication and treatment. In challenging the order extending her
commitment, K.E.K. argues that (1) the circuit court lacked competency to order
involuntary recommitment because Waupaca County filed the petition after the
time required by WIS. STAT. § 51.20(13)(g)2r. and (2) the recommitment
paragraph, § 51.20(1)(am), is unconstitutional, both facially and as applied to
K.E.K., on both vagueness and due process grounds. Regarding the ruling
requiring involuntary medication and treatment, K.E.K. argues that the circuit
court erred by failing to identify supporting statutory grounds and that the
evidence is insufficient. We reject all of K.E.K.’s arguments and affirm.

Background

¶2 On November 22, 2017, the County filed an initial petition for
examination seeking to commit K.E.K. under WIS. STAT. § 51.20(1)(a), more
specifically under § 51.20(1)(a)2.e., known as the “fifth standard” of
dangerousness. See State v. Dennis H., 2002 WI 104, ¶¶14, 33, 255 Wis. 2d 359,
647 N.W.2d 851 (fifth standard permits commitment of “mentally ill persons
whose mental illness renders them incapable of making informed medication
decisions and makes it substantially probable that, without treatment, disability or
deterioration will result”). On December 8, 2017, following a jury trial, the circuit
court entered an order committing K.E.K. for six months. On May 22, 2018, the

1
This appeal was converted from a one-judge appeal to a three-judge appeal under WIS.
STAT. RULE 809.41(3) (2017-18). All references to the Wisconsin Statutes are to the 2017-18
version unless otherwise noted.

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No. 2018AP1887

County filed an evaluation, recommendation, and petition for recommitment
seeking to extend K.E.K.’s commitment for an additional twelve months.2

¶3 K.E.K. filed a motion to dismiss the County’s petition for
recommitment on the ground that the circuit court lacked competency to proceed,
because the County violated a statutory requirement under WIS. STAT.
§ 51.20(13)(g)2r. Specifically, the County failed to follow the requirement that
petitions for recommitment must be filed at least 21 days before the expiration of
the initial commitment. See § 51.20(13)(g)2r. The County conceded that it had
filed only 17 days prior to expiration of K.E.K.’s original commitment order. The
circuit court denied K.E.K.’s timeliness motion.

¶4 Separately, K.E.K. argued that, in order to satisfy due process
requirements for recommitment, the County was required to establish that K.E.K.
had engaged in a recent act supporting a new or continuing finding of
dangerousness. K.E.K. further contended that WIS. STAT. § 51.20(1)(am) is
unconstitutionally vague because it fails to define a key phrase contained within
that paragraph, namely, “would be a proper subject for commitment if treatment
were withdrawn,” and there is no definition of that phrase in statutes or in case
law. The circuit court rejected these arguments, concluding that the County was
not required to present evidence of a recent act supporting a finding of
dangerousness to meet its burden to establish that recommitment was appropriate.
The court also at least implicitly concluded that § 51.20(1)(am) is not
unconstitutionally vague.

2
WISCONSIN STAT. § 51.20, as well as case law, uses the terms “recommitment” and
“extension of a commitment” interchangeably. See Portage Cty. v. J.W.K., 2019 WI 54, ¶1 n.1,
386 Wis. 2d 672, 927 N.W.2d 509. We will generally use “recommitment.”

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No. 2018AP1887

¶5 The County’s request for recommitment was tried to the court. We
recount trial testimony as necessary to discussion below.

¶6 The circuit court found that K.E.K. was mentally ill and that there
was a substantial likelihood that she would be a proper subject for commitment if
treatment were withdrawn. The court issued an order extending K.E.K.’s
involuntary commitment for the maximum period of twelve months. In addition,
the court ordered involuntary medication and treatment during the period of
recommitment. K.E.K. now appeals.

Discussion

¶7 We begin by addressing K.E.K.’s statutory and constitutional
arguments regarding the recommitment order. After that, we address K.E.K.’s
argument that there was insufficient evidence to support the court’s involuntary
treatment and medication order.3

3
Given the timing of this decision, K.E.K.’s appeal of the recommitment and medication
and treatment orders appears to be moot. See J.W.K., 386 Wis. 2d 672, ¶14 (“An appeal of an
expired commitment order is moot.”). We may consider moot issues if they fall within
exceptions to the rule that moot appeals are generally dismissed. See id., ¶29 (listing several
mootness exceptions including, for example, “‘the constitutionality of a statute,’” and “an issue
‘capable and likely of repetition and yet evades review because the appellate process usually
cannot be completed and frequently cannot even be undertaken within a time that would result in
a practical effect upon the parties.’”) (alterations and quoted source omitted); see also Outagamie
Cty. v. Melanie L., 2013 WI 67, ¶80, 349 Wis. 2d 148, 833 N.W.2d 607 (addressing moot appeal
of involuntary medication and treatment order based on multiple exceptions). The parties do not
address the issue of mootness or the exceptions to dismissing moot appeals. We conclude that
each of K.E.K.’s arguments sufficiently implicate one or more of the exceptions to mootness to
warrant addressing her arguments on the merits.

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No. 2018AP1887

I. The Recommitment Order

A. Whether the Circuit Court Lacked Competency

¶8 Our resolution of K.E.K.’s argument that the circuit court lacked
competency turns on the proper interpretation of WIS. STAT. § 51.20(13)(g)2r.
The construction of a statute is a question of law that appellate courts review
without deference to the circuit court. DeMars v. LaPour, 123 Wis. 2d 366, 370,
366 N.W.2d 891 (1985). Courts first determine whether the statutory language
has plain meaning. See State ex rel. Kalal v. Circuit Court for Dane Cty., 2004
WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. In addition, “statutory language is
interpreted in the context in which it is used; not in isolation but as part of a
whole; in relation to the language of surrounding or closely-related statutes; and
reasonably, to avoid absurd or unreasonable results.” Id., ¶46. “Statutory
language is read where possible to give reasonable effect to every word, in order
to avoid surplusage.” Id.

¶9 WISCONSIN STAT. § 51.20 governs relatively short term involuntary
commitments and recommitments. Fond du Lac Cty. v. Helen E.F., 2012 WI 50,
¶29, 340 Wis. 2d 500, 814 N.W.2d 179 (“[WIS. STAT.] ch. 51 is used for short
term treatment and rehabilitation intended to culminate with re-integration of the
committed individual into society,” as opposed to WIS. STAT. ch. 55, which
governs long-term care).

¶10 When a governmental entity (here, the County) seeks the
recommitment of an individual already committed pursuant to WIS. STAT. ch. 51,
the government must file an “evaluation ... and ... recommendation” at least 21

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No. 2018AP1887

days before the expiration of the previously imposed commitment.4 See WIS.
STAT. § 51.20(13)(g)2r. Here, it is undisputed that, under this 21-day rule, the
County filed its recommitment petition after the time set forth in the statute.

¶11 K.E.K. argues that the County’s failure to meet the 21-day
requirement deprived the circuit court of “competency” and, therefore, the
recommitment order must be vacated. Specifically, K.E.K. argues that when a
petitioner violates the mandatory directive that it “shall file” a recommitment
petition “[t]wenty-one days prior to expiration of the period of commitment”
found in WIS. STAT. § 51.20(13)(g)2r., this deprives the circuit court of
competency to address the recommitment petition. The dispute here centers on the
subdivision’s later directive that “[a] failure ... to file an evaluation and
recommendation under this subdivision does not affect the jurisdiction of the court
over a petition for recommitment.” The issue is whether this directive preserves
court jurisdiction, but not court competency. See § 51.20(13)(g)2r. According to
K.E.K., because this directive pertains to jurisdiction, it has no effect on
competency. K.E.K. points out that cases such as City of Eau Claire v. Booth,
2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738, make clear that “jurisdiction” and
“competency” are distinct concepts.

¶12 The County argues that the “jurisdiction” language in WIS. STAT.
§ 51.20(13)(g)2r. would be rendered meaningless by K.E.K.’s interpretation.
According to the County, it would make no sense for the legislature to include

4
There appears to be no dispute that the “evaluation ... and ... recommendation” referred
to in WIS. STAT. § 51.20(13)(g)2r. may also be properly referred to as a “recommitment petition.”
See § 51.20(13)(g)2r. (using the phrase “petition for recommitment” as an apparent substitute for
the somewhat cumbersome phrase “an evaluation of the individual and the recommendation of
the department or county department regarding the individual’s recommitment”).

6
No. 2018AP1887

language preserving a court’s jurisdiction if a late filing would cause the court to
lose competency to act. That is, we understand the County to argue that K.E.K.’s
interpretation is absurd, because the preservation of jurisdiction has no meaning if
a court were to lose competency to do anything pursuant to that preserved
jurisdiction.

¶13 In our view, K.E.K.’s argument assumes that the legislature’s use of
the term “jurisdiction” is consistent with the case law distinction between
“jurisdiction” and “competency.” As we now explain, we conclude that the only
reasonable reading of “does not affect the jurisdiction of the court” is that courts
retain competency to exercise jurisdiction. As a result, a petitioner’s failure to
comply with the 21-day filing time limit does not affect the court’s competency to
exercise jurisdiction.

¶14 K.E.K. is correct that precedent such as Booth explains that
jurisdiction is distinct from competency. However, Booth also explains that
subject matter jurisdiction is conferred by the Wisconsin Constitution and may not
be curtailed by the legislature. The legislature may curtail the courts’ competency
to exercise jurisdiction in defined circumstances:

Article VII, Section 8 of the Wisconsin Constitution
provides, in pertinent part: “Except as otherwise provided
by law, the circuit court shall have original jurisdiction in
all matters civil and criminal within this state ....” Subject
matter jurisdiction, established by this section of our
constitution, “refers to the power of a court to decide
certain types of actions.” Because this power is granted to
circuit courts by our constitution, it cannot be “curtailed by
state statute.” However, “a circuit court’s ability to
exercise the subject matter jurisdiction vested in it by the
constitution may be affected by noncompliance with
statutory requirements pertaining to the invocation of that
jurisdiction in individual cases.” Noncompliance with
statutory mandates affects a court’s competency and “a
court’s ‘competency,’ as the term is understood in

7
No. 2018AP1887

Wisconsin, is not jurisdictional at all, but instead, is defined
as ‘the power of a court to exercise its subject matter
jurisdiction’ in a particular case.”

Booth, 370 Wis. 2d 595, ¶7 (emphasis added; citations omitted). Thus, subject
matter jurisdiction is conferred on our courts by our constitution and our
legislature is powerless to confer or restrict such jurisdiction. It follows that, when
the legislature provides that a petitioner’s failure to observe the 21-day window to
file “does not affect the jurisdiction of the court,” it could not mean to address
whether the circuit court does or does not have jurisdiction.5

¶15 For these reasons, the only reasonable reading of “does not affect the
jurisdiction of the court” is that a failure to comply with the 21-day filing time
limit does not affect a court’s competency to exercise jurisdiction. Stated in the
words of Booth, “[n]oncompliance with statutory mandates affects a court’s
competency” to “exercise the subject matter jurisdiction vested in [the court] by
the constitution.” Id.

¶16 Notably, although K.E.K. accurately describes the difference
between jurisdiction and competency, she does not provide any alternative
interpretation of “does not affect the jurisdiction of the court.” If, as K.E.K.
contends, the phrase solely implicates jurisdiction, and if, as Booth explains, the
legislature is powerless to confer or restrict jurisdiction, what else could the phrase
mean? K.E.K. does not provide an answer, and we discern none.

5
It appears that the parties to agree that the phrase “jurisdiction of the court” in WIS.
STAT. § 51.20(13)(g)2r. refers to subject matter jurisdiction of the court. K.E.K. acknowledges as
much when she references subject matter jurisdiction while relying on a paragraph in Booth that
discusses subject matter jurisdiction and competency. See City of Eau Claire v. Booth, 2016 WI
65, ¶7, 370 Wis. 2d 595, 882 N.W.2d 738.

8
No. 2018AP1887

¶17 Accordingly, we agree with the circuit court that WIS. STAT.
§ 51.20(13)(g)2r. directs that a petitioner’s failure to comply with the 21-day filing
time limit does not affect a court’s competency to exercise jurisdiction and,
therefore, the circuit court here did not lose competency when the County filed the
K.E.K. recommitment petition fewer than 21 days before expiration of the initial
commitment.

B. Facial Constitutional Challenges

¶18 K.E.K. argues that part of the recommitment criteria in WIS. STAT.
ch. 51 is unconstitutional because it violates substantive due process and is void
for vagueness. The arguments hinge, or largely hinge, on the proposition that a
portion of WIS. STAT. § 51.20(1)(am), addressing recommitments, is unclear. We
disagree based on the following statutory interpretation discussion. After
clarifying the meaning of the disputed language, we return to K.E.K.’s
constitutional arguments.

1. The Meaning Of The Recommitment Subsection

¶19 K.E.K. argues that one part of the criteria found in WIS. STAT.
§ 51.20(1)(am) for the recommitment of an individual is hopelessly unclear. This
is the criterion 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.” We put that phrase in context, and
then explain why we disagree with K.E.K.’s arguments.

¶20 The recommitment paragraph, WIS. STAT. § 51.20(1)(am), must be
read together with the initial commitment paragraph, § 51.20(1)(a). Under WIS.
STAT. ch. 51, a court may order an initial commitment if an individual is:

9
No. 2018AP1887

(1) mentally ill (required by § 51.20(1)(a)1.),6

(2) a proper subject for treatment (also required by § 51.20(1)(a)1.),
and

(3) dangerous under one of the five alternative dangerousness
standards (set forth in five subdivision paragraphs,
§ 51.20(1)(a)2.a.-e.).

See § 51.20(1)(a); WIS JI—CIVIL 7050. In evaluating the third prong of this test,
each of the five dangerousness standards include a requirement of a recent act, for
example, issuing threats or attempting suicide. See § 51.20(1)(a)2.a.-e. (example
from subd. para. a.).

¶21 Turning to recommitment, before a committed individual whose
initial commitment has not yet expired may be recommitted, the court must find
that the same standards are met. See Portage Cty. v. J.W.K., 2019 WI 54, ¶18,
386 Wis. 2d 672, 927 N.W.2d 509 (a petitioner seeking recommitment must
“prove the same elements by clear and convincing evidence: (1) the individual is
mentally ill and a proper subject for treatment, and (2) the individual is
dangerous.”) (citing WIS. STAT. § 51.20(1)(a), (am)). The only material difference
between initial commitment and recommitment in this context is that, if the
individual has been treated for a mental illness as the result of a § 51.20(1)
commitment, meeting the third prong of the test no longer necessarily requires
proof of a recent act and, instead, may be satisfied by a showing “that there is a
substantial likelihood, based on the subject individual’s treatment record, that the
6
Following the parties’ lead, we use “mentally ill” as shorthand for “mentally ill,
developmentally disabled, or drug dependent.” See WIS. STAT. § 51.20(1)(am). We note that, at
least in some case law, what we now list as prongs one and two of the commitment test are
described as a single “element.” See e.g., J.W.K., 386 Wis. 2d 672, ¶18, (“(1) the individual is
mentally ill and a proper subject for treatment, and (2) the individual is dangerous”).

10
No. 2018AP1887

individual would be a proper subject for commitment if treatment were
withdrawn.” Sec. 51.20(1)(am). This is the language that K.E.K. argues is
unclear.

¶22 K.E.K.’s argument fails, because this language means the following:
a petitioner seeking recommitment may, as an alternative to establishing one of the
five grounds for dangerousness through recent acts, establish one of those grounds
by proving a “substantial likelihood” that, if current “treatment were withdrawn,”
the “individual would be a proper subject for commitment” under the test
applicable to initial commitments. See J.W.K., 386 Wis. 2d 672, ¶¶18-19, 23-24
(describing WIS. STAT. § 51.20(1)(am) as an alternate evidentiary path to establish
a substantial likelihood that behaviors and acts manifesting dangerousness would
be exhibited if treatment were withdrawn). This is true for the following reasons.

¶23 First, it is undisputed, and not subject to reasonable dispute, that the
phrase “the individual would be a proper subject for commitment” in WIS. STAT.
§ 51.20(1)(am) is a reference to an initial commitment—that is, the individual up
for potential recommitment could be properly committed a first time. We cannot
discern what other “commitment” § 51.20(1)(am) could be referring to. Thus, the
requirement that an individual “be a proper subject for commitment” for
recommitment purposes means that, if treatment were withdrawn, the individual
would be a proper subject for commitment under the test for an initial commitment
described above: mentally ill, a proper subject for treatment, and dangerous.

¶24 Second, language in WIS. STAT. § 51.20(1)(am) that we have not
quoted to this point further demonstrates that this provision is connected to each of
the five dangerousness standards described in subd. (1)(a)2. Specifically, the
language immediately preceding the disputed clause refers to each type of recent

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No. 2018AP1887

act evidence corresponding to each dangerousness standard in describing how
para. (1)(am) provides an alternative means to meet each of the five standards in
the recommitment context.7

¶25 Third, it is clear that the phrase in WIS. STAT. § 51.20(1)(am), “the
individual would be a proper subject for commitment,” means that recommitment
requires a finding that, if treatment were withdrawn, there is a substantial
probability that the individual would be dangerous under at least one of the five
alternative dangerousness standards in the initial commitment test. This is
because, once more, there is no other reasonable reading of the language. K.E.K.
proposes two alternatives, but we conclude that neither is reasonable.

¶26 K.E.K. suggests that this phrase means that a petitioner “is relieved
of proving dangerousness at all.” We disagree. The phrase has the evident
meaning that we have just explained. And, our supreme court has made clear that
WIS. STAT. § 51.20(1)(am) requires a finding of dangerousness in the
recommitment setting, just as § 51.20(1)(a) requires a finding of dangerousness in
the initial commitment setting. See J.W.K., 386 Wis. 2d 672, ¶¶18-19, 23-24.

7
The following is a more complete quote:

[T]he 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.

WIS. STAT. § 51.20(1)(am).

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No. 2018AP1887

¶27 K.E.K. also suggests that this phrase requires proof supporting the
particular dangerousness standard—i.e., the same one of the five alternative
dangerousness standards—used for the individual’s initial commitment. We
disagree. No language in WIS. STAT. § 51.20(1)(am) suggests such a limitation.
The paragraph says “a proper subject for commitment” and does not say anything
to the following effect: “a proper subject for commitment looking to the same
dangerousness standard relied on during the initial commitment.”

¶28 In sum, we agree with the brief filed by the attorney general, which
states that it “is clear from the plain language of” WIS. STAT. § 51.20(1) that “[t]o
prove dangerousness—either initially or on extension—the government must show
that the individual would [evince] one of the five standards of dangerousness if
treatment were withdrawn.”8

¶29 Our discussion above resolves K.E.K.’s primary argument regarding
the clarity of WIS. STAT. § 51.20(1)(am). Nonetheless, we choose to address
another supporting argument in K.E.K.’s brief-in-chief.

¶30 K.E.K. asserts that, “[i]n lieu of [the five alternate dangerousness
standards], WIS. STAT. § 51.20(1)(am) substitutes a lower, undefined threshold:
‘would be a proper subject for commitment if treatment were withdrawn.’” This
appears to misread § 51.20(1)(am) as fully displacing the dangerousness
requirements in § 51.20(1)(a)2. Rather, § 51.20(1)(am) has the effect of adding a

8
This quote from the attorney general’s brief shows that K.E.K. is wrong when she
contends that “[t]he Attorney General does not say whether, at the recommitment stage, the
County must prove that withdrawing treatment would cause K.E.K. to become dangerous under
the same standard used to justify her original commitment or simply any standard of
dangerousness.”

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No. 2018AP1887

means by which dangerousness may be established in the recommitment context
by modifying the type of proof that may be used to establish dangerousness under
the five standards. See J.W.K., 386 Wis. 2d 672, ¶19. That is not a lower or
undefined non-dangerousness standard. It is a coherent way of defining
dangerousness when current treatment may be preventing dangerous behavior.

¶31 To sum up, K.E.K. fails to demonstrate that the disputed phrase in
the recommitment subsection is unclear. It has clear meaning. The party seeking
a recommitment order must prove a “substantial likelihood” that, if current
“treatment were withdrawn,” the “individual would be a proper subject for
commitment” under the test applicable to initial commitments. We turn to
K.E.K.’s facial constitutional challenges.

2. Facial Constitutional Challenge: Void For Vagueness

¶32 Having rejected K.E.K.’s argument that the meaning of the
recommitment standard in WIS. STAT. § 51.20(1)(am) is unclear, it follows that her
void for vagueness argument must fail. That is, we have established that
§ 51.20(1)(am) has a clear meaning and therefore it cannot be true that the statute
is “‘so obscure’” that individuals of “‘common intelligence must necessarily guess
at its meaning and differ as to its applicability.’” Dennis H., 255 Wis. 2d 359, ¶26
(quoting State v. Curiel, 227 Wis. 2d 389, 414-15, 597 N.W.2d 697 (1999)).

3. Facial Constitutional Challenge: Substantive Due Process
Requirement Of Dangerousness

¶33 K.E.K. and the attorney general agree that, to satisfy substantive due
process, a commitment or recommitment pursuant to WIS. STAT. § 51.20(1) must
be supported by a showing that the individual is both mentally ill and dangerous to
self or others. This agreement flows from several cases. See, e.g., Foucha v.

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No. 2018AP1887

Louisiana, 504 U.S. 71, 78 (1992) (“[K]eeping Foucha against his will in a mental
institution is improper absent a determination in civil commitment proceedings of
current mental illness and dangerousness.”); Dennis H., 255 Wis. 2d 359, ¶¶13,
31, 36 (the government does not have a legitimate interest in confining individuals
who are not mentally ill or who do not pose a danger to themselves or others).

¶34 However, citing O’Connor v. Donaldson, 422 U.S. 563, 575-76
(1975), K.E.K. contends that substantive due process specifically requires a
determination of current dangerousness to justify recommitment, as distinct from
a determination of a risk of future dangerousness or dangerousness that is
contingent on events that have not yet come to pass. K.E.K. argues that WIS.
STAT. § 51.20(1)(am) fails to require a determination of current dangerousness
because it “authorizes the involuntary commitment of a mentally ill person who is
not dangerous to himself or others” at the time of the court’s recommitment
decision.

¶35 We explain below why we conclude that K.E.K.’s argument fails
because it is based on the flawed proposition that current dangerousness can be
shown only by proof of recent behavior exhibiting dangerousness. In addition, her
argument is precluded by decisions of our supreme court. We first note our
agreement with two points that K.E.K. makes, and then turn to what we consider
flawed reasoning and to case law that forecloses her argument.

¶36 The County and the attorney general seem to suggest that K.E.K.’s
due process argument is rebutted by the explanation in case law that the purpose of
WIS. STAT. § 51.20(1)(am) is to avoid a “revolving door.” See State v. W.R.B.,
140 Wis. 2d 347, 411 N.W.2d 142 (Ct. App. 1987). We disagree. Briefly stated,
W.R.B. explains that the recommitment standard is needed to prevent a “revolving

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No. 2018AP1887

door” of commitment-release-commitment, etc., in light of the following potential
problem: it is often not possible in the recommitment context for the petitioner to
meet the dangerousness standards applicable to initial commitments precisely
because a currently committed individual is being successfully treated. See id. at
351-52. While the court clearly explains the nature of a potential revolving door
problem, we agree with K.E.K. that W.R.B.’s explanation does not address
whether the legislature adopted a constitutional means of addressing the potential
problem.

¶37 We also agree with K.E.K. that WIS. STAT. § 51.20(1)(am) does not
require proof of recent acts of dangerousness. However, we do not agree that this
means that the subsection does not require proof of current dangerousness.

¶38 Both WIS. STAT. § 51.20(1)(a) (initial commitments) and
§ 51.20(1)(am) (recommitments) require a showing of current dangerousness,
although neither requires a showing that individuals actually harmed themselves or
others. Both paragraphs speak in terms of the presently existing probability or
likelihood that individuals will harm themselves or others in the future. See
§ 51.20(1)(a) (using “substantial probability” language); § 51.20(1)(am) (using
“substantial likelihood” language).9 Both paragraphs impose, in different ways,
the same burden on the government. The government must prove that there is a
substantial probability or a substantial likelihood that subject individuals will harm
themselves or others in the absence of treatment. In the words of the attorney
general, “whether the government uses a ‘recent overt act’ or the consequences of

9
K.E.K. does not suggest that there are any constitutional implications to the difference
between “substantial probability” and “substantial likelihood.”

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No. 2018AP1887

withdrawing treatment to prove dangerousness, the dangerousness being proved is
current dangerousness.”10

¶39 This rationale is consistent with statements by our supreme court.
The court has made clear that WIS. STAT. § 51.20(1)(am) “provides a different
avenue for proving dangerousness if the individual has been the subject of
treatment for mental illness immediately prior to” recommitment proceedings.
J.W.K., 386 Wis. 2d 672, ¶19. The court has further noted that “[e]ach extension
hearing requires proof of current dangerousness,” id., ¶24 (alteration in original),
whether proven through one of the five alternate standards of dangerousness using
recent acts or through § 51.20(1)(am), J.W.K., 386 Wis. 2d 672, ¶18. See also
Waukesha Cty. v. J.W.J., 2017 WI 57, ¶20, 375 Wis. 2d 542, 895 N.W.2d 783
(referring to WIS. STAT. § 51.20(1)(am) as a means of “satisfy[ing] the
‘dangerousness’ prong”).

¶40 K.E.K. further contends that her assertion that WIS. STAT.
§ 51.20(1)(am) does not require proof of current dangerousness is exemplified by
the purported holding of a one-judge opinion, Waukesha Cty. v. Kathleen R.H.,
2010AP2571-FT, unpublished slip op. (WI App Feb. 23, 2011). According to
K.E.K., this opinion “hold[s] that §51.20(1)(am) does not require proof that
withdrawing treatment would result in dangerousness.” We disagree. Nowhere
does the opinion say that WIS. STAT. § 51.20(1)(am) does not require such proof.

10
We observe that, even if a presently accurate showing of future dangerousness could be
said to be distinct from a showing of current dangerousness, the former showing may satisfy
substantive due process requirements under certain circumstances. See Kansas v. Hendricks, 521
U.S. 346, 358, 360 (1997) (upholding state law based on its requiring “a finding of future
dangerousness,” where that finding is “link[ed] … to the existence of a ‘mental abnormality’ or
‘personality disorder’ that makes it difficult, if not impossible, for the person to control his
dangerous behavior”).

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No. 2018AP1887

Rather, the opinion disposes of the notion that proof that the individual in that case
“would be a danger to herself or others if treatment were withdrawn” did not need
to be supplied by proof “apart from that contained in her treatment record.” See
Kathleen R.H., 2010AP2571-FT, ¶8.

C. As-Applied Challenges To Constitutionality

1. As-Applied: Void For Vagueness

¶41 K.E.K.’s brief-in-chief has a subsection purporting to demonstrate
that, even if WIS. STAT. § 51.20(1)(am) is not unconstitutionally vague on its face,
it is unconstitutionally vague as applied to her. However, we do not discern a
recognizable as-applied vagueness argument in this section of K.E.K.’s brief.

¶42 K.E.K. first points to testimony supporting the view that she would
not be dangerous to herself if she were not recommitted, and asks “[w]hat more
could [she] do to avoid endless recommitments?” This appears to be an
illustration of K.E.K.’s facial vagueness argument, not an as-applied vagueness
argument. Moreover, we note that K.E.K.’s question misapprehends the pertinent
inquiry in the assessment of whether the standards governing recommitment
hearings are unconstitutionally vague. The issue is not whether K.E.K. is able to
avoid recommitment. Circumstances outside her control, including mental illness,
may make it impossible for her to avoid recommitment. The issue is whether
someone of normal intelligence would understand the circumstances under which
an individual is subject to recommitment under WIS. STAT. § 51.20(1)(am), when
read together with § 51.20(1)(a). We have already addressed this issue and
determined that the statute is not unclear.

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No. 2018AP1887

¶43 K.E.K. next asserts that “separate actors [in this proceeding]
interpret[ed] [WIS. STAT.] § 51.20(1)(am) differently.” She describes what she
contends are statements demonstrating differing statutory interpretations made by
witnesses, the County’s attorney, and the circuit court. This again could be an
illustration of K.E.K.’s facial vagueness argument, not an as-applied vagueness
argument. Alternatively, such subjective views of what is required under WIS.
STAT. § 51.20(1)(am) might be a basis for arguing that the circuit court applied an
incorrect standard of law.11 However, the views do not support an as-applied
vagueness argument.

¶44 To the extent that K.E.K. points to these allegedly differing views to
support her argument that the meaning of WIS. STAT. § 51.20(1)(am) is unclear,
this adds nothing to her facial vagueness challenge.

¶45 For these reasons, we reject K.E.K.’s as-applied vagueness
argument.

2. As-Applied: Substantive Due Process Requirement Of Dangerousness

¶46 K.E.K. argues that, even if WIS. STAT. § 51.20(1)(am) does not
violate substantive due process on its face, the statute violates substantive due
process as applied to her. She provides three supporting arguments. We address
and reject each.

11
K.E.K. does not develop an argument, as an alternative to her challenges to the
constitutionality of WIS. STAT. § 51.20(1)(am), that the circuit court applied the incorrect
standards under the statute.

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No. 2018AP1887

¶47 First, K.E.K. argues that the County was required to prove that she
was currently dangerous, but that the circuit court found credible testimony
supporting the view that K.E.K. was not currently dangerous to herself or others.
We fail to understand in what sense this is an as-applied substantive due process
argument. Regardless, the argument is meritless. It is based on either of two
incorrect premises: that substantive due process cannot be satisfied by a current
finding of future or contingent dangerousness, or that such dangerousness cannot
be proven if there is no evidence of recent behavior showing dangerousness.

¶48 K.E.K. points to testimony and a finding by the circuit court here
that both address K.E.K.’s status while under treatment. However, as we have
explained, the recommitment dangerousness question is not necessarily whether
K.E.K. has engaged in recent acts suggesting dangerousness. Instead, the question
may be, as the circuit court stated here: “whether or not at this point, if treatment
was withdrawn, [K.E.K.] would then become a proper subject for a new
commitment” because she would then pose a danger to herself or others.

¶49 Second, K.E.K. argues that “at the recommitment trial the County
did not offer any evidence—in particular, any treatment records from her original
commitment—to prove that K.E.K. was ever dangerous to herself or others.” This
might be a sufficiency-of-the-evidence argument, but it is not an as-applied due
process argument.

¶50 Third, K.E.K. argues that WIS. STAT. § 51.20(1)(am) violates
substantive due process because it impermissibly “removes the ‘recent acts or
omissions’ requirement from the 5th [§ 51.20(1)(a)2.] standard.” Again, this is not
an as-applied argument because nothing about it is unique to the proceedings
involving K.E.K. Rather, as K.E.K. acknowledges, her third argument applies to

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No. 2018AP1887

“K.E.K. or anyone recommitted under the 5th standard.” As a facial challenge, we
have already resolved this topic.12

II. The Involuntary Treatment And Medication Order

¶51 Having addressed K.E.K.’s arguments about the recommitment
order, we now turn to the order for involuntary treatment and medication. K.E.K.
makes three arguments under the heading “[t]here was insufficient evidence to
support the circuit court’s involuntary treatment order.” It does not appear to us
that all three are sufficiency-of-the-evidence-arguments. But, labeling aside, we
attempt to address these three arguments as best we understand them.

A. Alleged Failure Of Circuit Court To Identify The Subsection

¶52 K.E.K. argues that the circuit court, in imposing the involuntary
medication order, improperly failed to identify whether the court was relying on
WIS. STAT. § 51.61(1)(g)3m. (involuntary treatment for individual committed
under fifth standard of dangerousness) or § 51.61(1)(g)4. (involuntary treatment
for individual committed under a dangerousness standard other than the fifth
standard, or while a petition for such a commitment awaits final determination).
The court’s written order includes the findings that K.E.K. is mentally ill and that
she “is substantially incapable of applying an understanding of the advantages,
disadvantages and alternatives to [her] condition in order to make an informed
choice as to whether to accept or refuse psychotropic medications.”

12
We agree with K.E.K. that the County’s reliance on Terry R.H. v. Marathon Cty.,
No. 1994AP2097, unpublished slip op. (WI App Mar. 14, 1995), is improper. Although this
unpublished opinion is authored, it pre-dates July 1, 2009. Therefore, with exceptions that do not
apply here, it falls within the rule that such decisions may “not be cited in any court of this state
as precedent or authority.” See WIS. STAT. RULE 809.23(3).

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No. 2018AP1887

¶53 As an initial matter, we question whether K.E.K. preserved this issue
for appeal. We see no place in the record at which K.E.K.’s counsel argued that
something more was required than the findings in the standard order form used by
the circuit court. Accordingly, it appears that this challenge has been forfeited.

¶54 More importantly, K.E.K. fails to explain why it matters that the
court failed to specify whether it was relying on WIS. STAT. § 51.61(1)(g)3m. or
§ 51.61(1)(g)4. K.E.K.’s entire argument on this topic is as follows:

The circuit court’s first error in ordering involuntary
medication and treatment for K.E.K. came when it failed to
identify which statutory subsection it was applying—
§51.61(1)(g)3m or §51.61(1)(g)4. The two overlap, but
they are not identical. [Outagamie Cty v.] Melanie L.,
[2013 WI 67,] ¶¶61-63, [349 Wis. 2d 148, 833 N.W.2d
607.] Section 51.61(1)(g)3m, which incorporates the 5th
standard, imposes many more requirements and is thus
much stricter.

K.E.K. makes no attempt to explain how § 51.61 interacts with WIS. STAT.
§ 51.20(1) and she does not specify the “many more requirements” or why they
might matter. Accordingly, we reject the argument as undeveloped.

B. Alleged Failure Of Circuit Court To Identify Evidence

¶55 K.E.K. argues that the circuit court failed to identify the evidence
that it relied on or to give a reason for ordering involuntary medication. The
County notes that the court made some findings regarding K.E.K.’s medication
history following her initial commitment, but concedes that the court “did not go
into further detail concerning the statutory criteria concerning a medication order.”
However, the County relies on the well-established rule that “[w]hen a court does
not expressly make a finding that is necessary to its decision, we may assume it
made that finding, and we review the record to determine if the presumed finding

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No. 2018AP1887

is clearly erroneous.” Gittel v. Abram, 2002 WI App 113, ¶49, 255 Wis. 2d 767,
649 N.W.2d 661. K.E.K. does not develop a rebuttal to this point, conceding it.

C. Alleged Failure Of Circuit Court To Recognize The Absence Of Evidence

¶56 K.E.K. argues that the circuit court failed to “recognize the absence
of clear and convincing evidence to support an involuntary treatment order under
either [WIS. STAT. §] 51.61(1)(g)3m. or §51.61(1)(g)4.” We assume that K.E.K.
means to argue that the evidence is insufficient to satisfy either § 51.61(1)(g)3m.
or § 51.61(1)(g)4.b.

¶57 In part, K.E.K. asserts that the “County had to demonstrate, at a
minimum, [that she had a] history of noncompliance with taking prescribed
medication.” The only support K.E.K. provides for this requirement is to cite
Melanie L., 349 Wis. 2d 148, ¶¶75-78, 97. We find no such requirement in those
paragraphs. Melanie L. does explain that an individual’s history of
noncompliance is relevant, see id. ¶75, but it does not say that proof of prior
noncompliance is required.

¶58 K.E.K. also asserts that the County was required to prove that she
had an “inability to apply the advantages and disadvantages of treatment to her
own condition.” We understand this to be an assertion that the evidence was
insufficient to support the circuit court’s written finding that K.E.K. was
“substantially incapable of applying an understanding of the advantages,
disadvantages and alternatives to ... her condition in order to make an informed
choice as to whether to accept or refuse psychotropic medications.”

¶59 This argument is undeveloped. She does not summarize the
evidence most favorable to the circuit court’s finding and then explain why that

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No. 2018AP1887

evidence is insufficient. Instead, in a few sentences unsupported by record
citations, K.E.K. briefly summarizes limited testimony that, viewed in isolation,
might support a finding that she did have the sort of understanding needed to make
an informed choice about medication. And even this limited discussion is flawed.
We give examples of both problems.

¶60 First, K.E.K. asserts that “Dr. Bales admitted that [K.E.K.] had at
least a ‘superficial understanding’ of the advantages, disadvantages and
alternatives to treatment.” (Emphasis added.) Although K.E.K. does not supply a
record citation with this assertion in her argument section, this appears to be a
reference to a factual summary in the background section of her brief in which she
cites to page 19 of the trial transcript. Looking there, we conclude that K.E.K.’s
assertion is misleading. Dr. Bales did not say that K.E.K. “had” a superficial
understanding. Rather, he agreed that K.E.K. was able to “express” an
understanding—something very different. See Melanie L., 349 Wis. 2d 148,
¶¶53-55 (explaining distinction between a subject’s ability to express
understanding of recommended medication and subject’s ability to apply that
understanding to subject’s circumstances). More importantly, Dr. Bales went on
to opine that K.E.K. could not apply any understanding that she did have in order
to make an informed medication choice.

¶61 Second, K.E.K. asserts that “the County did not offer any admissible
evidence of K.E.K.’s noncompliance with prescribed medication.” (Emphasis
added.) K.E.K. does not explain her qualifier “admissible.” In particular, she
does not explain why the testimony of Dr. Bales that K.E.K. had a history of
noncompliance with her medications was inadmissible.

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No. 2018AP1887

¶62 Third, K.E.K.’s failure to come to grips with testimony that supports
the circuit court’s finding includes testimony by Dr. Bales that K.E.K. did not
understand her mental illness. This also includes testimony by K.E.K.’s case
manager, Heather Van Kooy. Van Kooy testified that, based on her monthly
interactions with K.E.K. and K.E.K.’s “history [with] our department,” K.E.K.
“will no longer take her medications, become more unstable, and potentially
[become] a danger to herself” if she no longer receives “the treatment and care that
she’s receiving currently.”

Conclusion

¶63 For these reasons, we affirm the circuit court.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.

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