Racine County v. P. Z.

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 1, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2024AP146-FT Cir. Ct. No. 2015ME103

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE MENTAL COMMITMENT OF P.Z.

RACINE COUNTY,

PETITIONER-RESPONDENT,

V.

P.Z.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Racine County:
WYNNE P. LAUFENBERG, Judge. Affirmed.
No. 2024AP146-FT

¶1 LAZAR, J.1 Paul2 appeals orders extending his involuntary
commitment pursuant to WIS. STAT. § 51.20 and providing for his involuntary
medication and treatment pursuant to WIS. STAT. § 51.61(1)(g)3. He argues that
Racine County failed to meet its burden to prove that he is currently dangerous
under § 51.20(1)(a)2. This court concludes that the County introduced sufficient
evidence via testimony of a connection between Paul’s past acts and predicted
dangerousness if treatment were withdrawn and affirms the orders.

¶2 In August 2015, Paul was emergently detained after he violently
threw objects in his mother’s house (where he lived then and continues to live
now), which caused his mother to fear for her safety and to lock herself in a room
to avoid injury. Paul was subsequently committed under WIS. STAT. § 51.20 and
subject to an order for involuntary medication and treatment. The commitment
and medication orders were extended annually from 2016-22.3 Each year,
Dr. William J. Bjerregaard was the psychiatrist appointed to evaluate Paul.

¶3 The County filed the petition for recommitment giving rise to this
appeal on February 28, 2023, and the circuit court conducted a contested hearing
on the petition on April 18, 2023. Bjerregaard, who had again been appointed to
examine Paul, was the County’s first witness. He testified that Paul suffers from
chronic paranoid schizophrenia and hallucinations and that “he has essentially no

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2021-22).
This is an expedited appeal under WIS. STAT. RULE 809.17 (2021-22). All references to the
Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
In order to protect his confidentiality, this court refers to the subject individual by a
pseudonym. See WIS. STAT. RULE 809.19(1)(g).
3
Paul stipulated to the recommitments in 2017, 2018, and 2019.

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No. 2024AP146-FT

insight and his judgment is very poor.” He agreed that based on Paul’s treatment
record, there was a “substantial likelihood that he would be a proper subject for
commitment if his treatment were withdrawn” because Paul “has a history of
being off medication and becoming physically violent.”

¶4 He noted some instances of such violent behavior: Paul broke his
brother’s ankle immediately before his original commitment and had “disruptive
violent behavior when in the hospital, either the emergency room or inpatient,
when he’s not on medication.” Bjerregaard also reported that Paul refused “to get
properly clothed” when he was originally committed, “walking out of his
household naked when there were young children present.” In interviews with
Bjerregaard, Paul reported having been previously hospitalized at “both
Winnebago and Mendota” as well as at St. Luke’s Hospital, but Bjerregaard said
Paul had not been hospitalized since being on court-ordered antipsychotic
medication. Paul also denied to Bjerregaard “ever being violent towards anyone,”
including threatening his mother and breaking his brother’s ankle, despite those
instances being “documented in many places.”

¶5 Bjerregaard testified unequivocally that Paul does not believe he has
any mental illness and that Paul told him he would not take medication or seek
other treatment without a court order. Paul has been unemployed for at least eight
years and has been recommended to receive social security disability payments,
but he refuses to pursue social security “because he believes he does not have a
mental illness.” On cross-examination, Bjerregaard stated that he was not
surprised that Paul had “maintained psychiatric stability” throughout the current
commitment order as reflected in his Human Services Department recommitment
memo, explaining that he would expect such stability because “he’s been receiving
his court-ordered intramuscular antipsychotic medication.”

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No. 2024AP146-FT

¶6 Angela Townsend, a case manager with the Racine County Human
Services Department, and author of the aforementioned memo, also testified for
the County. She too stated that Paul was “aggressive” in 2015 “when he didn’t
take his medication,” elaborating that his threatening behavior caused his mother
and another family member to lock themselves in a room out of fear. She further
testified that Paul had been subject to multiple capias warrants over the course of
his commitment for missing an injection and missing court evaluations. 4 Finally,
she testified that Paul “reported to [her] directly that he does not have a mental
illness and that if it wasn’t for the court order, he would not take medications or
see his outpatient provider.”

¶7 Paul neither testified nor presented any other witnesses on his behalf.
The circuit court found that Paul has “a serious mental health disorder” that “is
treatable … with psychotropic medication.” It also found “if the treatment were
withdrawn that [Paul] would be a proper subject for commitment and … [a]
danger to others based on his treatment record.”5 The court purportedly based this
finding on Paul’s “prior actions within his home towards loved ones, as well as …
his aggressive behaviors and violent behaviors when he’s had to be hospitalized
when he has been off his medications.” It also gave significant weight to the
testimony from both Bjerregaard and Townsend that Paul “has utterly no insight
into his mental health situation,” refusing to believe that he suffers from mental
illness and needs medications and “even … refus[ing] to seek some kind of

4
The court record indicates that the most recent capias was issued in 2020.
5
The court’s written order indicates that Paul was dangerous under both standards WIS.
STAT. § 51.20(1)(a)2.b. (physical harm to others) and 2.d. (substantial probability of death or
serious physical issue). The parties agree that the latter standard was not addressed in the court’s
oral decision and was likely checked as a result of clerical error.

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No. 2024AP146-FT

income for himself” because “he maintains that he does not have a mental health
disorder,” which is belied by his “treatment record … [which] proves differently.”

¶8 Paul appeals the orders subjecting him to another twelve-month
commitment and involuntary medication and treatment. His argument is that all of
the evidence of dangerousness relied upon by the County relates to events that
occurred approximately eight years ago and is thus insufficient to show current
dangerousness as required by WIS. STAT. § 51.20.

¶9 Winnebago County v. S.H., 2020 WI App 46, 393 Wis. 2d 511, 947
N.W.2d 761, a published opinion issued by this court and cited in Paul’s brief, sets
forth the legal framework and standard of review for a recommitment such as
Paul’s. A court may extend the commitment of a subject individual for up to one
year upon proof of the same three elements required for an initial commitment:
that the individual is mentally ill, a proper subject for treatment, and dangerous
under one of the five standards of WIS. STAT. § 51.20(1)(a)2.a.-e. S.H., 393
Wis. 2d 511, ¶8. Given that an individual receiving treatment might not have
committed recent acts demonstrating dangerousness if treatment has been effective
in ameliorating such behavior, the legislature enacted § 51.20(1)(am), which
provides an “alternative evidentiary path” for proving dangerousness. S.H., 393
Wis. 2d 511, ¶¶8-9 (quoting Portage County v. J.W.K., 2019 WI 54, ¶19, 386
Wis. 2d 672, 927 N.W.2d 509). Under this provision, the dangerousness element
may be established in recommitment proceedings “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.” Sec. 51.20(1)(am). The goal of this legislation is to avoid the
“vicious circle of treatment, release, overt [dangerous] act, recommitment” that
could occur if proof of a recent dangerous behavior were required for extension of

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No. 2024AP146-FT

a commitment. S.H., 393 Wis. 2d 511, ¶9 (quoting State v. W.R.B., 140 Wis. 2d
347, 351, 411 N.W.2d 142 (Ct. App. 1987)).

¶10 “Review of an extension order presents a mixed question of fact and
law.” S.H., 393 Wis. 2d 511, ¶10 (citing Waukesha County v. J.W.J., 2017 WI
57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783). The circuit court’s factual findings
must be upheld unless they are clearly erroneous, but whether the facts satisfy the
statutory standards is a question of law to be reviewed de novo. S.H., 393 Wis. 2d
511, ¶10.

¶11 In S.H., Winnebago County sought the recommitment via WIS.
STAT. § 51.20(1)(am) of an individual who had not exhibited recent dangerous
behavior, but who did “not believe she need[ed] medication” and had a history of
discontinuing medication when she was not involuntarily committed, which led to
dangerous behavior, hospitalization, and further commitment. 393 Wis. 2d 511,
¶¶15-16. Although she had been compliant and stable for at least two years prior
to the petition for the recommitment in question, the subject individual’s
psychiatrist testified to a “very high likelihood” that she would stop taking
medication without a commitment order and that, in his opinion, “medication is
what [was] preventing her from decompensating” and engaging in the dangerous
behavior (induced by paranoia) in which she engaged in the past. Id., ¶¶4-6. This
testimony sufficiently “connected the dots” between previous dangerous acts and
the subject individual’s current situation to satisfy the “dangerousness”
requirement for recommitment. Id., ¶¶15-16.

¶12 Thus, Paul is mistaken in asserting that events that occurred long
before the recommitment hearing are per se insufficient to prove current
dangerousness. On the contrary, “[d]angerousness in an extension proceeding can

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No. 2024AP146-FT

and often must be based on the individual’s precommitment behavior, coupled
with an expert’s informed opinions and predictions.” S.H., 393 Wis. 2d 511, ¶13.
In this case, the circuit court’s factual finding that Paul would still be dangerous to
others if he discontinued his medication is not clearly erroneous. Bjerregaard’s
expert testimony predicting such dangerousness is supported by the history of
dangerous behavior in Paul’s treatment record (including breaking his brother’s
ankle6 and threatening his mother), Paul’s apparent failure to presently appreciate
or have insight into his mental illness, and the high likelihood that Paul would stop
taking medication and getting treatment if his commitment were discontinued.
Bjerregaard’s explanation of the connection between Paul’s history and predicted
dangerousness in the event medication is discontinued supports the circuit court’s
determination that Paul “would be a proper subject for commitment if treatment
were withdrawn.” See WIS. STAT. § 51.20(1)(am).

¶13 In addition to S.H., Paul cites Burnett County v. B.S.,
No. 2023AP1811-FT, unpublished slip op. (WI App Feb. 28, 2024) and
Winnebago County v. L.F.-G., No. 2019AP2010, unpublished slip op. (WI App
May 20, 2020). Both are unpublished opinions7 in which the appellate court found
insufficient evidence for recommitment. Both, however, relate to situations very
different from Paul’s. In B.S., there was no connection established between the
subject individual’s “continued … psychotic thinking” and any dangerousness,

6
Paul writes that “no evidence was presented whether [he] was the aggressor or if the
incident was an accident.” In fact, the court’s finding that “[Paul] had broken his brother’s foot,”
which it deemed relevant to the question of Paul’s dangerousness, is supported by Bjerregaard’s
testimony that Paul “breaking his brother’s ankle” was part of his history of dangerous behavior.
It cannot be overturned as clearly erroneous without any evidence to the contrary.
7
Paul correctly acknowledges that these cases are not precedential but can be cited for
persuasive value. See WIS. STAT. RULE 809.23(3)(b).

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No. 2024AP146-FT

No. 2023AP1811-FT, ¶¶21-23, perhaps because the examining physician was ill
and unable to testify at the recommitment hearing, id., ¶¶5, 25. Burnett County’s
only witness established that the individual suffered from a mental illness, but she
“did not testify regarding the symptoms [the individual] would experience if his
medication were stopped” and in fact said that “a court order for involuntary
medication was not necessary and that the facility planned to ‘wean’ [him] off of
his medication,” to which the individual did not respond very well. Id., ¶¶6, 21.
The circuit court had no factual basis from which it could conclude that the
individual (B.S.) would be dangerous if commitment were discontinued, and the
appellate court noted that absent such evidence, it would be impermissible to rely
on assumptions stemming simply from the fact that the individual had been
committed in the past. Id., ¶23.

¶14 Similarly, in L.F.-G., Winnebago County’s expert testified only that
when the subject individual “was off commitment, she stopped her treatment and
became acutely psychotic again” and that the individual did “not believe she
need[ed] treatment.” No. 2019AP2010, ¶7. Unlike in Paul’s case, there was no
testimony regarding the likelihood of future dangerousness if treatment were
withdrawn. See id. Thus, this court is not persuaded by these unpublished cases
that the circuit court erred in ordering Paul’s recommitment.

¶15 Finally, Paul’s only argument with respect to his involuntary
medication order is that the underlying commitment order is invalid. See WIS.
STAT. § 51.61(1)(g)3. (an involuntary medication order can only exist with a valid
commitment order). Since this court rejects that argument, as explained above,
both orders on appeal are affirmed.

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No. 2024AP146-FT

By the Court.—Orders affirmed.

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

9