Langlade County v. D. J. W.

, and before we had
granted the petition for review in this case, we asked the parties
to address the impact of that decision on the issues presented in
D.J.W.'s petition for review. Specifically, the court in J.W.K.
determined that J.W.K.'s appeal of his recommitment order was moot
because he was no longer subject to the commitment order he was
appealing. Id., ¶31.

     In response to our inquiry, the parties agreed that D.J.W.'s
sufficiency challenge was moot for the same reason. D.J.W. asked
this court to accept the petition for review pursuant to one of
the mootness exceptions. See Outagamie Cty. v. Melanie L.,

2013 WI 67, ¶80

349 Wis. 2d 148

833 N.W.2d 607

 (explaining that the
court may decide an otherwise moot issue if the issue "(1) is of
great public importance; (2) occurs so frequently that a definitive
decision is necessary to guide circuit courts; (3) is likely to
arise again and decision of the court would alleviate uncertainty;
or (4) will likely be repeated, but evades appellate review because
the appellate review process cannot be completed or even undertaken
in time to have a practical effect on the parties"). The County
urged us to deny the petition for review. We accepted the petition
for review.

     Neither party raised any collateral consequences that would
affect our analysis. See Marathon Cty. v. D.K.,

2020 WI 8

, ¶¶22-
25,

937 N.W.2d 901

. However, the question of the
necessary evidence to support an involuntary commitment is of great
importance yet often evades appellate review.      Our decision on
this case will give necessary guidance to circuit courts conducting
involuntary commitment proceedings. Thus, we reach the merits of
the parties' arguments.

                                    9
                                                           No.   2018AP145-FT



                                      A

     ¶27   The legislatively stated purpose of chapter 51 of the

Wisconsin Statutes is "to assure the provision of a full range of

treatment and rehabilitation services in the state for all mental

disorders and developmental disabilities and for mental illness,

alcoholism and other drug abuse."

Wis. Stat. § 51.001

(1).       Such

treatment should be given to those in need by way of "the least

restrictive      treatment    alternative      appropriate       to   their

needs . . . ."

Id.


     ¶28   "Because     of   the     liberty   interests     affected     by

involuntary commitment, public policy favors outpatient treatment

whenever possible . . . ."         J.W.J.,

375 Wis. 2d 542, ¶19

.        This

policy is clearly set forth in the statutes:       "To protect personal

liberties, no person who can be treated adequately outside of a




     After this court heard oral argument, but before we issued
this decision, D.J.W. passed away. This intervening fact does not
dictate a contrary result.     In the criminal context, we have
previously determined that "when a defendant dies while pursuing
postconviction relief, . . . the defendant's right to bring an
appeal continues." State v. McDonald,

144 Wis. 2d 531, 532

424 N.W.2d 411

 (1988). The right to appeal, which arises from both
the constitution and statutory law, "is an integral part of a
defendant's right to a final determination of the merits of the
case.   It serves as a safeguard to protect a defendant against
errors in the criminal proceedings. A defendant who dies pending
appeal . . . is no less entitled to those safeguards."

Id. at 536-37

.

     Given the significant liberty interests at stake in a ch. 51
involuntary commitment proceeding, the same considerations are
attendant here.     We thus issue this opinion despite the
petitioner's passing.

                                     10
                                                                        No.     2018AP145-FT



hospital,      institution         or   other        inpatient        facility       may    be

involuntarily treated in such a facility."

Wis. Stat. § 51.001

(2).

       ¶29   For a person to be subject to a chapter 51 involuntary

commitment,       three    elements      must       be    fulfilled:          the    subject

individual must be (1) mentally ill; (2) a proper subject for

treatment; and (3) dangerous to themselves or others.                          Fond du Lac

Cty.   v.    Helen      E.F.,

2012 WI 50, ¶20

340 Wis. 2d 500

814 N.W.2d 179

Wis. Stat. § 51.20

(1)(a)1.-2.                       Each of these required

elements must be proven by clear and convincing evidence.

Wis. Stat. § 51.20

(13)(e); J.W.J.,

375 Wis. 2d 542, ¶19

.

       ¶30   In    an     initial       commitment         proceeding,

Wis. Stat. § 51.20

(1)(a)2. provides five different means of demonstrating

that a person is "dangerous."                 State v. Dennis H.,

2002 WI 104, ¶14

255 Wis. 2d 359

647 N.W.2d 851

.               Pursuant        to

§ 51.20(1)(a)2.,         an     individual     is    "dangerous"        if    any    of     the

following is fulfilled:

       (1) Evidences a substantial probability of physical harm
       to himself or herself as manifested by evidence of recent
       threats of or attempts at suicide or serious bodily harm.
       § 51.20(1)(a)2.a.

       (2) Evidences a substantial probability of physical harm
       to other individuals as manifested by evidence of recent
       homicidal or other violent behavior, or by evidence that
       others are placed in reasonable fear of violent behavior
       and serious physical harm to them, as evidenced by a
       recent overt act, attempt or threat to do serious
       physical harm. § 51.20(1)(a)2.b.

       (3) Evidences such impaired judgment, manifested by
       evidence of a pattern of recent acts or omissions, that
       there is a substantial probability of physical
       impairment or injury to himself or herself or other
       individuals. § 51.20(1)(a)2.c.

                                              11
                                                            No.    2018AP145-FT


    (4) Evidences behavior manifested by recent acts or
    omissions that, due to mental illness, he or she is
    unable to satisfy basic needs for nourishment, medical
    care, shelter or safety without prompt and adequate
    treatment so that a substantial probability exists that
    death, serious physical injury, serious physical
    debilitation,   or   serious  physical   disease   will
    imminently ensue unless the individual receives prompt
    and adequate treatment for this mental illness.
    § 51.20(1)(a)2.d.

    (5) For an individual, other than an individual who is
    alleged to be drug dependent or developmentally
    disabled, after the advantages and disadvantages of and
    alternatives to accepting a particular medication or
    treatment have been explained to him or her and because
    of mental illness, evidences either incapability of
    expressing an understanding of the advantages and
    disadvantages of accepting medication or treatment and
    the alternatives, or substantial incapability of
    applying    an   understanding    of    the    advantages,
    disadvantages, and alternatives to his or her mental
    illness in order to make an informed choice as to whether
    to accept or refuse medication or treatment; and
    evidences a substantial probability, as demonstrated by
    both the individual's treatment history and his or her
    recent acts or omissions, that the individual needs care
    or   treatment   to   prevent   further    disability   or
    deterioration and a substantial probability that he or
    she will, if left untreated, lack services necessary for
    his or her health or safety and suffer severe mental,
    emotional, or physical harm that will result in the loss
    of the individual's ability to function independently in
    the community or the loss of cognitive or volitional
    control   over   his   or  her   thoughts    or   actions.
    § 51.20(1)(a)2.e.
    ¶31   Upon the impending expiration of an initial six-month

commitment, a county may seek an extension of the commitment for

a period not to exceed one year.

Wis. Stat. § 51.20

(13)(g)1.,

(13)(g)3.; Portage Cty. v. J.W.K.,

2019 WI 54, ¶¶17-18

.        To   prevail   in   a     recommitment
proceeding, the County must prove the same elements necessary for


                                   12
                                                                   No.     2018AP145-FT



the initial commitment by clear and convincing evidence——that the

patient is (1) mentally ill; (2) a proper subject for treatment;

and     (3)   dangerous    to    themselves       or   others.           J.W.J.,

375 Wis. 2d 542, ¶20

; J.M.,

381 Wis. 2d 28, ¶59

 (citing

Wis. Stat. § 51.20

(1)(a), (13)(e)).

      ¶32     In   a   recommitment      proceeding,    however,         there   is   an

additional manner of proving dangerousness provided by

Wis. Stat. § 51.20

(1)(am).         "Because an individual's behavior might change

while receiving treatment,

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 commencement of the extension proceedings . . . ."                     J.W.K.,

386 Wis. 2d 672, ¶19

.        Pursuant to § 51.20(1)(am),

      If the individual has been the subject of inpatient
      treatment for mental illness . . . immediately prior to
      commencement of the proceedings as a result of . . . a
      commitment or protective placement 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.
      ¶33     Wisconsin    Stat.       § 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

.        "However,


                                             13
                                                                 No.    2018AP145-FT



dangerousness remains an element to be proven to support both the

initial commitment and any extension."

Id.


       ¶34   Indeed, "[t]he County must prove the individual 'is

dangerous.'"

Id.,

 ¶24 (citing

Wis. Stat. § 51.20

(1)(a)2. and

(13)(g)3.).    It is not enough that the individual was at one point

dangerous.       Thus, "[e]ach extension hearing requires proof of

current dangerousness."

Id.

   The evidentiary pathway set forth by

sub.   (1)(am)    "acknowledges    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." but it "does not change the elements or quantum of proof

required."     Id.

                                       B

       ¶35   With the above background in hand, we next clarify the

statutory underpinnings of this case.

       ¶36   The statutory basis for D.J.W.'s commitment in this case

has been somewhat of a moving target.             It was not clear at either

the initial commitment hearing or the extension hearing on which
subdivision paragraph of

Wis. Stat. § 51.20

(1)(a)2. the commitment

was based.

       ¶37   After D.J.W. was initially committed, he appealed that

commitment.      In affirming the initial commitment, the court of

appeals specifically determined that the subdivision paragraph of

Wis. Stat. § 51.20

(1)(a)2. under which commitment was appropriate

was § 51.20(1)(a)2.d.        Langlade Cty. v. D.J.W. (D.J.W. I), No.

2017AP1313-FT, unpublished slip op., ¶14 (Wis. Ct. App. Nov. 7,


                                       14
                                                       No.   2018AP145-FT



2017).    That is, it determined that D.J.W. met the following

standard of dangerousness:

    Evidences behavior manifested by recent acts or
    omissions that, due to mental illness, he or she is
    unable to satisfy basic needs for nourishment, medical
    care, shelter or safety without prompt and adequate
    treatment so that a substantial probability exists that
    death, serious physical injury, serious physical
    debilitation,   or   serious  physical   disease   will
    imminently ensue unless the individual receives prompt
    and adequate treatment for this mental illness.
§ 51.20(1)(a)2.d.
    ¶38    In the court of appeals in the present appeal, the

County's brief did not cite any specific subdivision paragraph of

Wis. Stat. § 51.20

(1)(a)2. under which it argued that D.J.W. was

dangerous.      Accordingly,     D.J.W.   reasonably    followed     the

formulation of the court of appeals with regard to the initial

commitment, and at the outset of his oral argument before this

court    set   forth   the     relevant   statutory    provisions     as

§ 51.20(1)(a)2.d. and (1)(am).

    ¶39    However, in its oral argument before this court, the

County apparently took a new tack and asserted that D.J.W. would
be a proper subject for commitment in the event treatment were

discontinued not under subd. para. 2.d., but under 2.c.        Pursuant

to

Wis. Stat. § 51.20

(1)(a)2.c., one is a proper subject for

commitment if that person "[e]vidences such impaired judgment

manifested by evidence of a pattern of recent acts or omissions,

that there is a substantial probability of physical impairment or

injury to himself or herself or other individuals."



                                   15
                                                        No.   2018AP145-FT



     ¶40   The record in this case is therefore quite unhelpful in

guiding this court's analysis.          We have received conflicting

messages from the County and the court of appeals regarding the

statutory basis for this commitment.         In order to avoid this

problem in the future, we determine that going forward circuit

courts in recommitment proceedings are to make specific factual

findings   with   reference   to    the   subdivision    paragraph     of

§ 51.20(1)(a)2. on which the recommitment is based.6

     ¶41   Such a requirement is manifest in the language of

Wis. Stat. § 51.20

(1)(am), which references the dangerousness pathways

of § 51.20(1)(a)2.   Specifically, pursuant to § 51.20(1)(am),

     6 Justice Rebecca Grassl Bradley's dissent asserts that the
guidance we offer in this opinion is redundant to that provided in
D.K.,

. Justice Rebecca Grassl Bradley's Dissent,
¶124. It contends that we should simply dismiss this case as moot
and not decide the substantive issues before us. Id., ¶116.

     However, D.K. mandated no such rule as we do in the present
case. The majority/lead opinion indicated only that the circuit
court "could have made more detailed and thorough factual findings
and clarified its legal conclusions." D.K.,

390 Wis. 2d 50, ¶55

(Ziegler, J., joined by Roggensack, C.J., and Hagedorn, J.)
(emphasis added).      Such a determination creates no clear
requirement such as that contained in this opinion.

     Likewise, the concurrence in D.K. indicated that "[b]ecause
circuit courts bear the responsibility of determining whether the
evidence satisfies the statutory standard, circuit courts must
expressly make independent factual findings on the record,
separate from any legal conclusions."

Id.,

 ¶68 n.4 (Rebecca Grassl
Bradley, J., concurring, joined by Kelly, J.).       Even if this
language can be read as a directive to circuit courts, it sets
forth the position of two justices only and does not create any
binding holding. Rather than leaving circuit courts to discern a
mandatory rule from the suggestive language contained in separate
opinions in D.K., our conclusion in the present case aims to
provide clarity for circuit courts going forward.

                                   16
                                                               No.    2018AP145-FT


       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. (Emphasis added).
Para. (1)(am) thus mandates that circuit courts ground their

conclusions in the subdivision paragraphs of subd. 2.

       ¶42   Further, the purpose of making specific factual findings

with    reference     to    a    subdivision     paragraph    of

Wis. Stat. § 51.20

(1)(a)2. is twofold.           First, it provides clarity and extra

protection    to    patients     regarding     the   underlying     basis    for    a

recommitment.       The United States Supreme Court "repeatedly has

recognized that civil commitment for any purpose constitutes a

significant    deprivation       of   liberty   that     requires    due    process

protection."        Addington v. Texas,

441 U.S. 418, 425

 (1979).

"Freedom from physical restraint is a fundamental right that 'has

always been at the core of the liberty protected by the Due Process

Clause from arbitrary governmental action.'"                State v. Post,

197 Wis. 2d 279, 302

541 N.W.2d 115

     (1995)    (quoting    Foucha       v.

Louisiana,

504 U.S. 71, 80

 (1992)).

       ¶43   With such an important liberty interest at stake, the

accompanying protections should mirror the serious nature of the




                                        17
                                                               No.    2018AP145-FT



proceeding.7      Requiring circuit courts 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    provides

increased protection to patients to ensure that recommitments are

based on sufficient evidence.

       ¶44     Second, a requirement of specific factual findings with

reference to a subdivision paragraph of

Wis. Stat. § 51.20

(1)(a)2.

will clarify issues raised on appeal of recommitment orders and

ensure the soundness of judicial decision making, specifically

with regard to challenges based on the sufficiency of the evidence.

See Klinger v. Oneida Cty.,

149 Wis. 2d 838, 846-47

440 N.W.2d 348


(1989) ("[A]s this court has stated many times, the circuit court

must make a record of its reasoning to ensure the soundness of its

own decision making and to facilitate judicial review.").                   A more

substantial record will better equip appellate courts to do their

job, further ensuring meaningful appellate review of the evidence

presented in recommitment proceedings.

       ¶45     In this case, in the absence of explicit factual findings
with       reference   to   any     subdivision   paragraph    of    Wis.   Stat.


       The stakes of a recommitment proceeding are further
       7

heightened when involuntary medication is a possibility.
Administration of psychotropic drugs is no small matter.      See
K.N.K. v. Buhler (Matter of Guardianship of K.N.K.),

139 Wis. 2d 190

, 207 n.3,

407 N.W.2d 281

 (Ct. App. 1987); In re
Guardianship of Roe,

421 N.E.2d 40, 53

 (Mass. 1981) (explaining
that antipsychotic medication "[is] powerful enough to immobilize
mind and body[,]" has a "profound effect . . . on the thought
processes of an individual[,]" and has a "well-established
likelihood   of    severe   and    irreversible   adverse    side
effects . . . .").

                                           18
                                                                   No.    2018AP145-FT



§ 51.20(1)(a)2., we will address the arguments made in this case

as they relate to § 51.20(1)(a)2.d., on which the court of appeals

determined        the      initial      commitment         was       based,       and

§ 51.20(1)(a)2.c., on which the County relied at oral argument.8

In   the    future,     such   guesswork    will   be    avoided    by    our   newly

instituted       requirement     for    specific        factual    findings       with

reference to a subdivision paragraph of § 51.20(1)(a)2.9

                                        IV

      ¶46    We now turn to examine the sufficiency of the evidence

presented at the recommitment hearing in this case to support a

determination of dangerousness.

      ¶47    At the outset of our examination of this question, we

observe that the court of appeals in this case applied a clearly

erroneous standard of review to a determination of dangerousness.

D.J.W.     II,   No.    2018AP145-FT,      unpublished     slip    op.,    ¶10.      A

determination of dangerousness is not a factual determination, but

a legal one based on underlying facts.             The court of appeals thus

erred by applying the standard of review for findings of fact to


      8Chief   Justice   Roggensack's   dissent   would   justify
recommitment pursuant to the "fifth standard" set forth by

Wis. Stat. § 51.20

(1)(a)2.e. Chief Justice Roggensack's Dissent, ¶61.
Neither party raised this argument. At oral argument, the County
conceded that it relies on subd. para. 2.c. only and counsel for
D.J.W. indicated that "this case has never been a fifth standard
case.   It wasn't alleged by the County either in the original
commitment or in this extension as a fifth standard case."
      9We recognize that there may be cases where a person
satisfies the criteria contained in several statutory subdivision
paragraphs. In such a case, we encourage circuit courts to state
each subdivision paragraph that is fulfilled.

                                        19
                                                            No.    2018AP145-FT



a legal determination of dangerousness.        See Metro. Assocs.,

379 Wis. 2d 141

, ¶25 ("Factual findings made by the circuit court will

not be disturbed unless they are clearly erroneous.").                Whether

facts     satisfy    the   statutory    standard     must     be     reviewed

independently of the determinations rendered by the circuit court

and court of appeals.      J.W.J.,

375 Wis. 2d 542, ¶15

.

     ¶48    D.J.W.   contends   that    Dr.   Coates's      testimony      was

insufficient to support the extension of his commitment because it

does not establish that he is dangerous as is required.                     He

characterizes Dr. Coates's testimony as establishing only that as

a result of his mental illness he lost his job, sought and received

disability benefits, and would be homeless were it not for his

family.    In D.J.W.'s view, none of these propositions provides any

evidence that he is "dangerous" under

Wis. Stat. § 51.20

(1)(a)2.d.

     ¶49    The County, on the other hand, argues that Dr. Coates's

testimony is sufficient to establish that D.J.W. is dangerous to

himself.    It focuses its argument on Dr. Coates's testimony that

D.J.W. suffers from impaired judgment and delusions that would be
exacerbated if he were to discontinue treatment.

     ¶50    We agree with D.J.W. that the evidence presented at the

recommitment hearing is insufficient to support a conclusion that

he is "dangerous" within the meaning of the commitment statute.

First, we focus on whether the introduced testimony meets the

standard for dangerousness set by

Wis. Stat. § 51.20

(1)(a)2.d., as

viewed through the lens of § 51.20(1)(am).         That is, the testimony

must provide sufficient evidence to support the conclusion that
D.J.W. would be "unable to satisfy basic needs for nourishment,
                                   20
                                                              No.   2018AP145-FT



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[,]" § 51.20(1)(a)2.d., if

treatment were withdrawn.          § 51.20(1)(am).

     ¶51    Dr. Coates's testimony provided no evidence that "death,

serious physical injury, serious physical debilitation, or serious

physical    disease"   would       ensue    if   treatment   were   withdrawn.

Instead, Dr. Coates testified only that if treatment is withdrawn,

D.J.W. "can't care for himself" in various ways, including being

unable to maintain a job, having to rely on disability for income,

and living with family.

     ¶52    The    doctor's        testimony      further    indicated     that

discontinuing treatment would exacerbate D.J.W.'s illness and that

as a result he would "experience . . . hallucinations to a greater

degree."    Dr. Coates stated that "the greater risk is just his

inability to properly care for himself and to properly socialize

if he goes untreated."
     ¶53    Inability 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.                 Nothing in Dr. Coates's

testimony even hints at a serious physical consequence to D.J.W.

if treatment were to be discontinued.                His testimony on this

subject relied only on generalized propositions with regard to

people with schizophrenia, not anything specific to D.J.W.                  For
example, Dr. Coates indicated that "[d]anger in my opinion is not
                                       21
                                                          No.    2018AP145-FT



suicidal     and   homicidal   ideations.        Although       those    are

possibilities.     There is an increased risk of suicide in people

with schizophrenia.     That's just a statistical fact."

       ¶54   Further, the County's argument is at odds with United

States Supreme Court precedent.          Specifically, in O'Connor v.

Donaldson,

422 U.S. 563, 576

 (1975), the Court determined that "a

State cannot constitutionally confine without more a nondangerous

individual who is capable of surviving safely in freedom by himself

or with the help of willing and responsible family members or

friends."

       ¶55   Again, Dr. Coates's testimony established only that if

treatment were withdrawn, D.J.W. would be unable to maintain a

job, would have to rely on disability for income, and would have

to live with family.     As detailed above, the testimony does not

support a determination that D.J.W. was dangerous.            Without more,

and given that D.J.W.'s family demonstrated willingness to help,

recommitment based on this record would run afoul of O'Connor.

       ¶56   We now turn to an examination of Dr. Coates's testimony
through the lens of

Wis. Stat. § 51.20

(1)(a)2.c. Subd. para. 2.c.,

in combination with para. (1)(am), provides that "dangerousness"

in a recommitment can be shown if a person would "[e]vidence[]

such    impaired   judgment . . .     that   there   is   a     substantial

probability of physical impairment or injury to himself or herself

or other individuals" if treatment were withdrawn.

       ¶57   The County's argument fares no better under subd. para.

2.c. than it does under 2.d.        Again, no testimony was offered at
the recommitment hearing that would support a determination of any
                                    22
                                                                No.    2018AP145-FT



"substantial probability of physical impairment or injury" that

may inure to D.J.W. specifically in the event treatment were

withdrawn.         A diagnosis of schizophrenia, by itself, does not

demonstrate the requisite "substantial probability of physical

impairment."        If it did, the statutory elements of mental illness

and dangerousness would be merely redundant.

       ¶58    Accordingly, we conclude that the evidence introduced at

the recommitment hearing was insufficient to support a conclusion

that    D.J.W.      is   "dangerous"   pursuant    to     either

Wis. Stat. §§ 51.20

(1)(a)2.c. or 2.d. and 51.20(1)(am).

                                       V

       ¶59    In sum, we determine that going forward circuit courts

in recommitment proceedings are to make specific factual findings

with reference to the subdivision paragraph of § 51.20(1)(a)2. on

which the recommitment is based.            Further, we conclude that the

evidence introduced at the recommitment hearing was insufficient

to support a conclusion that D.J.W. is "dangerous" pursuant to

either

Wis. Stat. §§ 51.20

(1)(a)2.c. or 2.d. and 51.20(1)(am).
       ¶60    Accordingly, we reverse the decision of the court of

appeals.

       By    the   Court.—The   decision    of   the    court   of    appeals   is

reversed.




                                       23
                                                                   No.   2018AP145-FT.pdr



      ¶61    PATIENCE DRAKE ROGGENSACK, C.J.                     (dissenting).          The

majority     opinion        concludes         that   D.J.W.'s        commitment         was

erroneously     extended         under

Wis. Stat. § 51.20

(1)(am)          by   the

circuit court and that the court of appeals erred by affirming.

The majority reverses because it concludes that "the evidence

introduced at the recommitment hearing was insufficient to support

a   conclusion      that    D.J.W.       is   'dangerous'        pursuant     to   either

§§ 51.20(1)(a)2.c.          or    2.d.    and     51.20(1)(am)."1           Although      I

understand why the majority chose to evaluate the evidence that

was presented under § 51.20(1)(a)2.c. and 2.d., the majority errs

because the evidence fully satisfies the "fifth criterion" for

dangerousness       found    in    § 51.20(1)(a)2.e.,            which   we   carefully

explained in State v. Dennis H.,

2002 WI 104

255 Wis. 2d 359

647 N.W.2d 851

.

      ¶62    I write in dissent not only because the majority errs

but also because it is important for this court, and all Wisconsin

courts who adjudicate civil commitments and recommitments under

Wis. Stat. ch. 51, to recognize that there is a category of
seriously mentally ill individuals whose symptoms are described in

Wis. Stat. § 51.20

(1)(a)2.e. They are dangerous to themselves

because their illness prevents them from understanding the

advantages and disadvantages of treatment and, as demonstrated by

their treatment history, they need care or treatment to prevent

further disability or deterioration and they have a substantial

probability, if left untreated, of losing the ability to function

1 Majority op., ¶3.

1
No. 2018AP145-FT.pdr

independently in the community or of losing cognitive or volitional

control over their thoughts or actions.

¶63 These seriously, mentally ill individuals often are very

fragile, and when they do not receive the care they need, they are

a significant danger to themselves even when not overtly suicidal.2

Wisconsin Stat. § 51.20(1)(a)2.e.'s fifth criterion of

dangerousness forms an appropriate basis for evaluation of these

individuals. The majority should have so employed it to evaluate

the evidence presented in regard to D.J.W., which evidence fully

satisfies § 51.20(1)(a)2.e.'s criterion for dangerousness.

Accordingly, I respectfully dissent from the majority opinion.

I. BACKGROUND

¶64 D.J.W. had a long history of mental illness that began

to be recorded in October of 2016 with his emergency detention.

The Statement of Emergency Detention relayed that D.J.W. had

"somatic delusions" and believed that he had parasites in his

intestines. It was reported that D.J.W. was vomiting his food

because he believed that medicine was being placed in it; that he
was paranoid; that he "believes that the devil had tap[p]ed him on

the shoulder;" that due to his "current altered state he is not

able to care for himself;" and that his mother reported that she

is concerned for her safety because D.J.W. was standing outside of

her bedroom door with a knife in his hand.

¶65 D.J.W.'s medical records reveal that in October of 2016,

he reported hearing "the devil who tells him to destroy himself by

2 Darold A. Treffert, M.D., The MacArthur Coercion Studies:
A Wisconsin Perspective,

82 Marq. L. Rev. 759

 (1999) (discussing
the balance of the right to be sick with the right to be rescued).

                                    2
                                                    No.   2018AP145-FT.pdr


various actions."    He also reported that he has "learned to ignore

the devil and is not afraid of the devil."    His assessment in 2016

evaluated him as a "moderate risk" for suicide and noted that two

of D.J.W.'s cousins committed suicide.

     ¶66    In 2016, D.J.W., with the advice of counsel, entered

into a court approved settlement agreement, wherein he agreed to

take all prescribed doses of psychotropic medications and keep all

psychiatric and psychological appointments.     However, D.J.W. said

that when the settlement term ended, he would stop complying with

its requirements.    This resulted in his detention at North Central

Health Care, in Wausau, Wisconsin.

     ¶67    Langlade County petitioned for his commitment pursuant

to ch. 51.    A hearing on Langlade County's petition was held on

January 30, 2017.     Dr. John T. Coates, M.D., a psychiatrist, was

retained by the County to examine D.J.W.     He did so.

     ¶68    Dr. Coates filed his report on January 25, 2017, after

he met with D.J.W., who largely "exercised his right to remain

silent."   Dr. Coates reported that D.J.W. did "not believe that he
was mentally ill or in need of medication" and "claims that he is

the Messiah who has been sent from God to save humanity."             Dr.

Coates     noted    that   D.J.W.   was   hearing    voices,      having

hallucinations, had persecutory delusions and impaired judgment.

He diagnosed D.J.W. as suffering from schizophrenia and cannabis

use disorder.

     ¶69    In his report, Dr. Coates noted that D.J.W. was a

"significant risk of dangerousness" to himself, also to others and
that he is unable to independently care for himself.            He noted

                                    3
                                                           No.   2018AP145-FT.pdr


that D.J.W. had a history of "aggressive behavior and property

damage."     He recommended commitment in an institution.              However,

he opined that "eventually" D.J.W.'s care and treatment could be

provided as an outpatient.         He stated that he had explained the

advantages and disadvantages of accepting medication or treatment,

but that D.J.W.'s mental illness was preventing his understanding

and   that    he   was   "substantially        incapable    of    applying     an

understanding" of the advantages and disadvantages of treatment

due to his mental illness.

      ¶70    The   County   also    retained      Dr.   Nicholas     Starr,    a

psychologist, to examine D.J.W.            D.J.W. refused to participate in

Dr. Starr's examination.         Therefore, Dr. Starr's examination was

limited to D.J.W.'s medical records.             His report, based on this

review, concluded that D.J.W. was mentally ill and dangerous

because there was "[a] substantial probability of physical harm to

himself . . . as manifested by evidence of recent threats of or

attempts at suicide or serious bodily harm."               He said D.J.W. was

dangerous    because     there   was   a    "substantial     probability,     as
demonstrated       by    both . . . [his]        treatment       history      and

[his] . . . recent acts or omissions, that [he] . . . needs care

or treatment to prevent further disability or deterioration."

      ¶71    Dr. Starr noted that D.J.W. was "passively suicidal,"

and that he questioned the point of living.             He, too, recommended

treatment in a locked institution, but said that when D.J.W. is

stabilized by medication, he could be released to outpatient

treatment.



                                       4
                                                               No.    2018AP145-FT.pdr


     ¶72    At the commitment hearing held January 30, Dr. Coates

testified consistent with his report.3               He explained that although

D.J.W. was seriously mentally ill, his condition, schizophrenia,

is   treatable     with    psychotropic         medication,      counseling       and

behavioral adjustments.          He said that D.J.W. does not believe he

is schizophrenic or in need of medications.                     He believes that

others can hear his thoughts, so he has no privacy.                       He opined

that D.J.W. was more of a danger to himself, but due to past

aggressive behaviors, he was a danger to others as well.                             He

explained that D.J.W. was unpredictable and unable to care for

himself when in an acute psychotic state.                 He testified that at

the time of the hearing the least restrictive treatment would be

in an institution, initially.

     ¶73    D.J.W. also testified.            He said that he is fully aware

that he sees and hears things that others do not see or hear.                        He

said that if commitment was not ordered, he would not continue

outpatient    treatment.         He    does    not   believe    the    medicine      or

counseling helped him.
     ¶74    The court concluded that D.J.W. was dangerous due to his

mental illness and ordered a six month commitment for care and

medication.

     ¶75    On June 16, 2017, in advance of the expiration of

D.J.W.'s six month commitment, a Petition for Recommitment was

commenced    pursuant     to

Wis. Stat. § 51.20

(1)(am). Outpatient

treatment with community supports in place was requested. The

petition did not state whether the County was relying on a

3 The Honorable John B. Rhode presided.

5
No. 2018AP145-FT.pdr

§ 51.20(1)(a)2. criterion of dangerousness for its recommitment

petition. A hearing was set for July 18, 2017. It is the

recommitment order that resulted from this hearing that is now

before us.

¶76 Dr. John Coates was again retained to examine D.J.W. and

to file a report at least 48 hours before the hearing. He did so,

filing his report on July 3, 2017. His report explained that

D.J.W. had a defiant attitude, and that D.J.W. said he saw the

devil three months ago and last heard voices two months ago. Dr.

Coates opined that D.J.W.'s thought process was impaired and

delusional. He said that if treatment were withdrawn, D.J.W. would

be unable to care for himself, and that he has a history of

aggressive behavior that concerned him. He recommended extending

D.J.W.'s commitment for 12 months, with medication, and that

treatment could be provided outside an institution.

¶77 Dr. Coates reported that he had explained the advantages

and disadvantages of accepting treatment and medication to D.J.W.,

but that he was "substantially incapable of applying an
understanding of the advantages, disadvantages and alternatives

[due] to his [] mental illness . . . in order to make an informed

choice as to whether to accept or refuse medication or treatment."

¶78 At the July 18, 2017 hearing, Dr. Coates testified by

telephone consistent with his report.4 He explained that D.J.W.

has "a history of auditory and visual hallucinations. His thought

process is illogical and has some grandiose illusions." He

repeated in his testimony that D.J.W. had told him that he saw the

4 The Honorable Gregory Grau presided.

6
No. 2018AP145-FT.pdr

devil four months ago and last heard voices two months ago. Dr.

Coates opined that D.J.W.'s schizophrenia is treatable with

psychotropic medication, and that he was showing a response to the

medication he has been receiving.

¶79 When asked if D.J.W. was a danger to himself or to

others, Dr. Coates said that "the main danger is risk to himself

if he should go off treatment." If he does so, his illness will

be exacerbated and he will lose his ability to properly care for

himself.

¶80 Dr. Coates said that D.J.W. had a month's

institutionalization in January because he was very delusional and

had quit his job because he thought he was the Messiah sent from

God to save humanity. He was hearing voices on a daily basis and

thought others could hear his thoughts. He also did not believe

he was mentally ill, but rather, a psychic. Dr. Coates testified

that D.J.W. believes that "he can manage his illness in the

presence of hallucinations" and without medication. D.J.W.

believed that Haldol, which he was receiving, is disabling him,
rather than a mental illness.

¶81 Dr. Coates said that "dangerousness to others is

unpredictable." He explained that, "I don't believe that he's an

aggressive-type person who is apt to act out, but you can't predict

the behavior when someone is acutely psychotic." He also said, he

is a danger to himself and "unable to independently care for

himself." He said that danger "is not suicidal and homicidal

ideations. Although those are possibilities. There is an
increased risk of suicide in people with schizophrenia."

7
No. 2018AP145-FT.pdr

¶82 Counsel for Langlade County asked Dr. Coates whether:

[I]s it accurate to say that if the subject individual
in the past, there has been no evidence that that subject
has made a suicidal threat to harm himself or herself,
that when you do this examination, that you still can
have a finding or express a medical opinion that that
individual may present a suicide risk if treatment were
withdrawn?
Dr. Coates answered, "Yes."

¶83 Counsel continued:

Q. Doctor, I note in your report when to the
question does this individual present a significant risk
of dangerousness at this time or if treatment were to be
withdrawn, you've basically checked all the statutory
criteria that constitutes risk of
dangerousness. . . . [I]f treatment were to be
withdrawn, then he would meet, in your opinion, all of
those four criteria for dangerousness?

A. . . . [I]f treatment were withdrawn, all four
of those things would be more evident. . . . [H]e's not
able to independently care for himself at this point.
And he would be homeless I think if he wasn't able to
live with his parents. . . . His judgment is currently
still impaired. He feels that he can manage his illness
in the presence of hallucinations.
¶84 D.J.W. testified at the July hearing, as he had in

January. He said that he first sought help because he "felt
suicidal at the time." He said that he was hospitalized for one

week, during which time he received medication. After he was

discharged he stopped taking the medications.

¶85 D.J.W. said that his next hospitalization was at North

Central Health Care, where he stayed for two weeks. He said that

after discharge he did continue with medications, but they "didn't

affect me." He said that he told his doctor that he "had not

8
No. 2018AP145-FT.pdr

intended to continue taking the meds after the settlement agreement

expired." That's when commitment was proposed.

¶86 He acknowledged that he had damaged property at his

parent's residence, but asserted that no person was harmed. He

explained that he did not need community services because his

parents or his sister would help him with food and housing, as

they had in the past. He said his current medication, Haldol,

hurts, rather than helps him. He said that he was not then hearing

voices or seeing things others do not see. That they had "stopped

recently."

¶87 In closing, Langlade's counsel argued that the only

medical testimony that was presented, that of Dr. Coates, provided

clear and convincing evidence that D.J.W. has a mental illness,

schizophrenia, which is treatable. He explained because the County

is proceeding under Wis. Stat. 51.20(1)(am) for recommitment,

recent dangerous acts or thoughts are not required, but rather the

court must look at D.J.W.'s whole record. Counsel pointed out

that in regard to dangerousness, Dr. Coates testified that if
treatment were withdrawn, D.J.W. would become dangerous to

himself.

¶88 Counsel for D.J.W. argued that D.J.W. objected to

medication and that he was fine when he was not on it. She

acknowledged that the first time he checked himself into a facility

for voluntary services he was having suicidal thoughts. She

pointed out, however, that he did not act on those thoughts.

¶89 The circuit court found that D.J.W. suffered from a
mental illness, schizophrenia, which is treatable. The court also

9
No. 2018AP145-FT.pdr

found that D.J.W. does not believe that he suffers from

schizophrenia. The court cited D.J.W.'s testimony that recently

the hallucinations and delusions have decreased. The court found

that this seems to evidence a response to the treatment he has

been receiving.

¶90 The court found that if the treatment were withdrawn,

D.J.W. would be a proper subject for commitment because of the

severity of the hallucinations and delusions he has suffered in

the past. If that were to occur, D.J.W.'s judgment and perception

would be affected such that he would be a "significant danger to

himself." The court explained that D.J.W. is "substantially

incapable of applying and understanding the advantages,

disadvantages and alternatives to his mental illness to the point

where he can't make an informed choice as to whether to accept or

refuse medication or treatment." The court then continued D.J.W.'s

commitment as an outpatient, and found that because medication and

treatment will continue to have therapeutic value, they were

ordered.
II. DISCUSSION

A. Standard of Review

¶91 This case presents as a claim that the evidence was not

sufficient to recommit D.J.W. pursuant to

Wis. Stat. § 51.20

(1)(am)        because      there    was   insufficient         evidence     of

dangerousness.        In order to evaluate the evidence presented under

the     required      statutory     standard,      we      interpret     and    apply

§ 51.20(1)(am)        and   § 51.20(1)(a)2.           We   interpret     and    apply
statutes independently of the court of appeals' and circuit court's

                                           10
                                                             No.    2018AP145-FT.pdr


decisions, while benefitting from their discussions.                    Daniel v.

Armslist, LLC,

2019 WI 47, ¶13

386 Wis. 2d 449

926 N.W.2d 710

.

     ¶92    When    the    sufficiency    of    evidence    is     challenged,    we

sustain the circuit court's findings of fact unless they are

clearly erroneous. State v. Anderson,

2019 WI 97

, ¶20,

389 Wis. 2d 106

935 N.W.2d 285

.         Findings of fact are clearly erroneous when

they are "contrary to the great weight and clear preponderance of

the evidence."       Richards v. First Union Sec., Inc.,

2006 WI 55, ¶12

290 Wis. 2d 620

714 N.W.2d 913

.             We independently determine

whether    the    facts    fulfill    statutory     standards,       again   while

benefitting from prior courts' discussions.                Westmas v. Creekside

Tree Serv., LLC,

2018 WI 12

, ¶17,

379 Wis. 2d 471

907 N.W.2d 68

.

                               B.    Recommitment

                      1.     Civil Commitment Generally

     ¶93    The role that the State of Wisconsin has taken in civil

commitments has moved like a pendulum.             For example, in the early

1970s, civil commitments of mentally ill individuals in Wisconsin

were easily obtained, which came to national attention with the
issuance of Lessard v. Schmidt,

349 F. Supp. 1078

 (E.D. Wis. 1972),

vacated on other grounds,

414 U.S. 473

(1974) (per curiam). In

1972, many individuals had been institutionalized without well-

defined procedural standards. Lessard, a class action, was brought

on behalf of persons who were being held involuntarily under

emergency, temporary or permanent commitment provisions of

Wisconsin statutes. Id. at 1082.

¶94 The federal district court panel reasoned that the
"power of the state to deprive a person of the fundamental liberty

11
No. 2018AP145-FT.pdr

to go unimpeded about his or her affairs must rest on a

consideration that society has a compelling interest in such

deprivation." Id. at 1084. The court noted that it is the role

of courts to review procedural guarantees of due process that

commitment statutes should provide. Id. at 1086. Court review

was necessary because "the commitment adjudication carries with it

an enormous and devastating effect on an individual's civil

rights." Id. at 1089.

¶95 The court in Lessard, set out procedural requirements in

protection of civil rights of civil committees: notice and an

opportunity to be heard, id. at 1091; proof that commitment was

required because the individual poses a serious danger of harm to

others or himself, id. at 1095; the right to counsel, id. at 1097;

and the privilege against self-incrimination, id. at 1100, to name

a few required protections.

¶96 In 1976, Wisconsin significantly amended its procedural

standards for civil commitment, accepting most of Lessard's

conclusions. Many individuals were released from institutions, in
part because the amended standards for dangerousness were

difficult to meet.5

¶97 While the release of mentally ill persons who did not

require institutionalization to treat their illnesses was very

important, the change in the law also created obstacles that

prevented families and those concerned with obtaining care for the

mentally ill from being able to do so. This change resulted in a

significant increase in homelessness for mentally ill individuals,

5 Treffert,

82 Marq. L. Rev. 759

12
No. 2018AP145-FT.pdr

which began to be recognized.6 Accordingly, the pendulum on civil

commitment for treatment began to swing back toward greater

intervention and care for the lives of those who were chronically

mentally ill.7

¶98 Of importance in the matter before us, is the statutory

amendment that recognized that mental illness, itself, may render

the individual incapable of recognizing his or her illness and

accepting treatment. Wisconsin Stat. § 51.20(1)(a)2.e. is

Wisconsin's response to this concern. It focuses on dangerousness

to self that can arise when, due to mental illness, the individual

is incapable of understanding or applying advantages and

disadvantages of treatment or medication and if left untreated,

will suffer severe mental, emotional or physical harm. Also

important here is § 51.20(1)(am), which is employed for

recommitments for treatment as addressed below.

2. D.J.W.'s Recommitment

¶99 The matter before us is a recommitment. To recommit an

individual, the county is required to prove by clear and convincing
evidence that the individual is: (1) mentally ill; (2) a proper

subject for treatment; and (3) dangerous. Portage Cty. v. J.W.K.,

2019 WI 54, ¶18

.

     6 See generally, Steven K. Erickson, Michael J. Vitacco and
Gregorgy J. Van Rybroek, Beyond Overt Violence: Wisconsin's
Progressive Civil Commitment Statute As a Marker of a New Era in
Mental Health Law,

89 Marq. L. Rev. 358

 (2005).
     7 Darold A. Treffert, 1995 Wisconsin Act 292: Finally, the
Fifth Standard, Wis. Med. J., Aug. 1996 (explaining that Act 292
was necessary for individuals who were being disenfranchised from
treatment and care post-Lessard when they were obviously seriously
ill and deteriorating).

                                            13
                                                    No.   2018AP145-FT.pdr


     ¶100 Wisconsin    Stat.   § 51.20(1)(am)     provides     statutory

requirements that a county must meet.           They differ from the

requirements for an initial commitment.          Section 51.20(1)(am)

provides in relevant part:

     If the individual has been the subject of inpatient
     treatment for mental illness . . . immediately prior to
     commencement of the proceedings as a result of . . . a
     commitment . . . ordered   by   a   court    under   this
     section . . . or if 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 under . . . par. (a)2.c.
     or e., . . . 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.
As the court of appeals explained, § 51.20(1)(am) avoids "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."   State v. W.R.B.,

140 Wis. 2d 347

, 351,

411 N.W.2d 142

 (Ct. App. 1987).    Accordingly, a petition for recommitment

brings before the court the individual's complete mental health

record.

     ¶101 Under

Wis. Stat. § 51.20

(1)(am), the circuit court was

not limited to considering D.J.W.'s acts or omissions that occurred

immediately before the petition for recommitment was filed.

Id.


The circuit court's findings may be based on acts or omissions
that occurred prior to the initial commitment and are documented

                                 14
                                                            No.   2018AP145-FT.pdr


in his medical records, as well as psychiatric examination reports

and testimony presented at hearings.

     ¶102 Wisconsin       Stat.      § 51.20(1)(am)          requires      proof

that:   (1) the individual has been the subject of either inpatient

or outpatient treatment for mental illness; (2) immediately before

the recommitment petition was filed; (3) which treatment was court

ordered;    and   (4) based   on   the    subject   individual's       treatment

record, there is a substantial likelihood that the individual would

be a proper subject for commitment if treatment were withdrawn.

     ¶103 In the matter before us, D.J.W. easily meets the first

three requirements of

Wis. Stat. § 51.20

(1)(am) based on D.J.W.'s

mental health records.        Furthermore, there is no dispute that

D.J.W. received inpatient treatment and outpatient treatment for

mental illness immediately before the recommitment petition was

filed and that his treatment was court ordered.                   Those findings

are not clearly erroneous.

     ¶104 Because      the    fourth      requirement       of

Wis. Stat. § 51.20

(1)(am)      directs   that     there   must    be     "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,"    and    because   commitments       require   a

finding of dangerousness, recommitments also require a substantial

likelihood of dangerousness to self or others if treatment were

withdrawn.    J.W.K.,

386 Wis. 2d 672, ¶19

.

     ¶105 In

Wis. Stat. § 51.20

(1)(a)2.a.-e., the legislature set

out five criteria through which dangerousness may be shown in the
course of a commitment.       Wisconsin Stat. § 51.20(1)(am) does not

                                     15
                                                             No.    2018AP145-FT.pdr


directly     incorporate        these     standards       but      relates     that

§ 51.20(1)(a)2.a.-e. are satisfied when 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."        Accordingly,      subd.    para.    2.a.-e.

provides an assist to my interpretation of how dangerousness may

be shown in a recommitment proceeding.

     ¶106 Of relevance, given the factual underpinning of the case

before us, is the fifth criterion for dangerousness,

Wis. Stat. § 51.20

(1)(a)2.e.       It is my focus because of the effect that

D.J.W.'s    mental    illness    has    had   on   his    ability    to    evaluate

treatment and care options and make a rational decision about

whether to accept them or not.           As we have explained, subd. para.

2.e. "applies to 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, bringing on a loss of ability to provide

self-care or control thoughts or actions."               Dennis H.,

255 Wis. 2d 359, ¶33

.

     ¶107 Wisconsin Stat. § 51.20(1)(a) provides in relevant part:

          2. The individual is dangerous because he or she
     does any of the following:

     . . . .

          e. For an individual, other than an individual who
     is alleged to be drug dependent or developmentally
     disabled, after the advantages and disadvantages of and
     alternatives to accepting a particular medication or
     treatment have been explained to him or her and because
     of mental illness, evidences . . . [has a] substantial
     incapability of applying an understanding of the
     advantages, disadvantages, and alternatives to his or
                                16
                                                              No.   2018AP145-FT.pdr

       her mental illness in order to make an informed choice
       as to whether to accept or refuse medication or
       treatment; and evidences a substantial probability, as
       demonstrated by both the individual's treatment history
       and his or her recent acts or omissions, that the
       individual needs care or treatment to prevent further
       disability   or   deterioration    and   a   substantial
       probability that he or she will, if left untreated, lack
       services necessary for his or her health or safety and
       suffer severe mental, emotional, or physical harm that
       will result in the loss of the individual's ability to
       function independently in the community or the loss of
       cognitive or volitional control over his or thoughts or
       actions.
       ¶108 In Dennis H., we set out five requirements of

Wis. Stat. § 51.20

(1)(a)2.e.:      First, the person must be mentally ill.                Id.,

¶19.    Second, the person must be "incompetent to make medication

or treatment decisions" due to his mental illness.                       Id., ¶21.

Incompetence    may   be    shown   by    a   "substantial      incapability     of

applying an understanding of the advantages, disadvantages, and

alternatives" because of mental illness, "after the advantages and

disadvantages    of   and     alternatives     to    accepting       a   particular

medication or treatment have been explained."                  Id.       Third, the

person must show "a 'substantial probability' that he or she 'needs

care     or    treatment      to     prevent        further     disability       or

deterioration.'"      Id., ¶22.     In a recommitment, these requirements
can be satisfied by either the person's treatment history or his

recent acts or omissions.

       ¶109 Fourth,    "the    person     must      evidence    a    'substantial

probability that he or she will, if left untreated, lack services

necessary for his or her health or safety,'" or "suffer severe

mental, emotional, or physical harm that will result in the loss
of the individual's ability to function independently in the


                                         17
                                                              No.   2018AP145-FT.pdr


community or the loss of cognitive or volitional control over his

or her thoughts or actions."          Id., ¶¶23, 24.

     ¶110 The fifth criterion for dangerousness, by its terms,

directs that the above requirements be evident to a "substantial

probability."      This   is    the    applicable    degree         of    proof   for

dangerousness under the fifth criterion set out in

Wis. Stat. § 51.20

(1)(a)2.e.      Id., ¶26.         D.J.W.'s treatment history and

current actions evidence that D.J.W. meets the requirements of

subd. para. 2.e. to a substantial probability thereby showing by

clear and convincing evidence that he will become dangerous if his

care and treatment were withdrawn.

     ¶111 First, there is no question that D.J.W. is seriously

mentally ill, as he has been for years.                  Second, Dr. Coates's

reports and testimony show that D.J.W. is incompetent to make

medication or treatment decisions because of his mental illness.

His report submitted on June 30, 2017 specifically found that

D.J.W. was "INCOMPETENT to refuse medication or treatment because

of mental illness."    Dr. Coates said that D.J.W. "is substantially
incapable   of    applying     an   understanding        of    the       advantages,

disadvantages       and        alternatives         to         his . . . mental

illness . . . in order to make an informed choice as to whether to

accept or refuse medication or treatment."

     ¶112 Third, Dr. Coates explained that D.J.W. needed treatment

to prevent further disability or deterioration.                 He said that if

D.J.W. goes off treatment "[h]e's apt to have exacerbation of his

illness.    He's apt to experience, you know, hallucinations to a
greater degree.     Become delusional."

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     ¶113 Fourth, Dr. Coates said that without treatment, D.J.W.

"would be homeless" if his parents could no longer care for him

because   he    is   "unable    to    independently   care    for   himself."

Dr. Starr's     report   said    that    without   treatment    there    is   a

"substantial probability" that D.J.W. "will lack the services

necessary for his [] health or safety, and will suffer severe

mental, emotional or physical harm that will result in loss

of . . . cognitive or volitional control over [his] thoughts or

actions."      There can be no question that D.J.W. has an inability

to control his delusions or hallucinations on his own.                  He has

seen some recent progress, but that has been due to medication.

     ¶114 Based on D.J.W.'s medical record and the reports and

testimony of Drs. Coates and Starr, Langlade County has met its

burden to prove by clear and convincing evidence that if treatment

were withdrawn, D.J.W. would be a proper subject for commitment,

with dangerousness established within the parameters of

Wis. Stat. § 51.20

(1)(a)2.e.

                               III.   CONCLUSION
     ¶115 In conclusion, although I understand why the majority

chose to evaluate the evidence that was presented under

Wis. Stat. § 51.20

(1)(a)2.c. and 2.d., the majority errs because the evidence

fully satisfies the "fifth criterion" for dangerousness found in

§ 51.20(1)(a)2.e., which we carefully explained in Dennis H.,

255 Wis. 2d 359

.     Accordingly, I respectfully dissent.




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     ¶116 REBECCA GRASSL BRADLEY, J.             (dissenting).      Both the

majority opinion and Chief Justice Roggensack's dissent reach the

merits of this case.     I write separately without joining either

opinion because it is imprudent to reach the merits, as well as

contrary to our established framework regarding the disposition of

Wis. Stat. ch. 51 commitment cases that are moot.              Because D.J.W.

died while his case was pending in this court, we should have

dismissed his appeal.    D.J.W.'s death renders the case moot and a

disposition unnecessary.

                                      I

     ¶117 The majority acknowledges D.J.W.'s death in a footnote,

see majority op., ¶26 n.5, but chooses to decide the case using as

its legal basis the criminal case of State v. McDonald,

144 Wis. 2d 531, 532

424 N.W.2d 411

 (1988).         Although the court in that

case fully considered the rationale for reaching the merits when

a criminal defendant dies with an appeal pending, see

id.

 at 535-

40, the court has never done so in the context of an appealed civil

commitment.     According to the majority, D.J.W.'s death "does not

dictate a contrary result [to reaching the merits]."                 Majority
op., ¶26 n.5.    I disagree.   The reasons for reaching the merits in

a criminal case despite an intervening death do not apply in a

chapter 51 commitment case.

     ¶118 In determining that the court should resolve a case

involving a committee who dies while his appeal is pending, the

majority   simply   asserts    that       "the   same   considerations     are

attendant here" as exist in a criminal matter.

Id.

   Specifically,

the majority cites significant deprivations of liberty affecting
both criminal defendants and chapter 51 involuntary committees.

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Of course, this consideration evaporates upon the death of the

defendant or committee.             Regardless, when the McDonald court

concluded a criminal case was not moot even though the defendant

died   during   the    appellate     process,    it   did   not   rely    on   the

deprivation of his liberty as its rationale.                See McDonald,

144 Wis. 2d at 532-40

.        Instead, the rationale was two-fold:

       (1)   [A] defendant has a constitutional as well as a
             statutory right to an appeal. This right . . . is
             an integral part of a defendant's right to a final
             determination of the merits of the case. It serves
             as a safeguard to protect a defendant against
             errors in the criminal proceedings.    A defendant
             who dies pending appeal . . . is no less entitled
             to those safeguards.

       (2)   [B]ecause collateral proceedings may be affected by
             criminal proceedings in which it is alleged that an
             individual took the life of another, it is in the
             interest of society to have a complete review of
             the merits of the criminal proceedings.
McDonald,

144 Wis. 2d at 536-37

     (emphasis    added;      internal

citations     omitted).       The    court    identified    those     collateral

proceedings affected by a final determination that the defendant

intentionally took the life of another (the underlying crime in

McDonald):

       (1) "receiv[ing] money from the victim's estate under
           the intestacy statute";

       (2) "inherit[ing] under the victim's will";

       (3) "receiv[ing] any benefit from a contract in which
           the victim is the obligee and which names the
           defendant as the beneficiary";

       (4) "receiv[ing] any benefit, as a beneficiary, payable
           as a result of the death of the victim";

       (5) "receiv[ing] a benefit, as a beneficiary, from a
           life insurance policy on the life of the victim";
           and
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       (6) "receiv[ing] the victim's interest in property held
           in joint tenancy[.]"

Id. at 537

 (internal citations omitted).                        The court expressly

limited its analysis to criminal proceedings:                      "society and the

deceased have a very real interest in a final determination of the

defendant's appeal from the criminal conviction."

Id. at 539


(emphasis added).

       ¶119 None         of    these   rationales       apply    to     an   individual

challenging a chapter 51 commitment.                 Regarding the first reason,

no one has a constitutional or statutory right of appeal to the

Wisconsin Supreme Court, irrespective of the nature of the case.

Wis. Stat. § 809.62

(1r) (2017-18)1 ("Supreme Court review is a

matter of judicial discretion, not of right[.]"); cf. Wis. S. Ct.

IOP III (Sept. 13, 2019).                 The second rationale espoused in

McDonald similarly does not apply to chapter 51 proceedings.

Unlike a criminal conviction based upon an intentional killing,

none of the collateral proceedings mentioned in McDonald arise

from       a   chapter    51    commitment       proceeding.2         The    absence   of

collateral       proceedings       stemming      from   a   chapter     51   commitment




       All subsequent references to the Wisconsin Statutes are to
       1

the 2017-18 version unless otherwise indicated.

       While it is possible D.J.W.'s estate may be liable for the
       2

cost of care he received during his commitment, see

Wis. Stat. § 46.10

(2) & (11)(b), this court has never concluded that costs of
care alone represent a collateral consequence sufficient to render
a case not moot. See Marathon Cty. v. D.K.,

2020 WI 8

, ¶25 n.7,

937 N.W.2d 901

 ("[W]e need not address whether the
collateral consequences of costs of care under

Wis. Stat. § 46.10

(2)-(3) . . . would render [a commitment not moot].");
Portage Cty. v. J.W.K.,

2019 WI 54

, ¶28 n.11,

 (not addressing whether cost of care would be a
collateral consequence sufficient to render a case not moot).

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                                                               No.    2018AP145-FT.rgb

proceeding erases any general societal interest in the outcome of

appeals in these matters.

       ¶120 While valid reasons may exist in an appeal of a ch. 51

commitment to hold it is not moot despite the death of the

committee while the appeal is pending, appeals from criminal

convictions are fundamentally different.                   In order to decide

whether a committee's death moots an appeal, this court should

have ordered the parties to brief the issue after D.J.W.'s death.

Deriving a legal basis from a criminal case is incongruous.

                                        II

       ¶121 "An issue is moot when its resolution will have no

practical effect on the underlying controversy."                     Portage Cty. v.

J.W.K.,

2019 WI 54, ¶¶1, 11


(quoted source omitted); see also Marathon Cty. v. D.K.,

2020 WI 8, ¶19

937 N.W.2d 901

        (noting         the    same).

"Mootness is a doctrine of judicial restraint[,]" which means we

refrain from resolving moot cases in the absence of a compelling

reason.      D.K.,

390 Wis. 2d 50, ¶19

.         We   recognize         certain

exceptions to this general rule and opt to address moot cases when
their issues "present . . . a need for an answer that outweighs

our concern for judicial economy."            Waukesha Cty. v. S.L.L.,

2019 WI 66, ¶15

387 Wis. 2d 333

929 N.W.2d 140

. These include issues:

(1)    "of    great    public     importance;"        (2)       challenging          the

constitutionality      of   a   statute;     (3)    for    which      "a   definitive

decision is essential to guide the trial courts;" (4) "likely to

arise again and [that] should be resolved by the court to avoid

uncertainty;" or (5) "capable and likely of repetition and yet



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                                                              No.    2018AP145-FT.rgb

evade[] review[.]"          J.W.K.,

386 Wis. 2d 672, ¶29

 (quoting G.S. v.

State,

118 Wis. 2d 803, 805

348 N.W.2d 181

 (1984)).

       ¶122 D.J.W.'s case is unquestionably moot because no decision

issued by the court will have any effect on the controversy.                     Even

before his death, D.J.W. was not subject to the original commitment

order     or     the   subsequent     recommitment     order.         The   firearm

restriction that survives the expiration of the commitment orders

ceased to have any legal effect upon D.J.W.'s death.                      Cf. D.K.,

389 Wis. 2d 50

, ¶25 (holding "a decision in [the petitioner's]

favor would void the firearms ban and therefore have a 'practical

effect[,]'" rendering it "not a moot issue").                   When we granted

review of his case, D.J.W. conceded the case was moot but asked us

to exercise our discretion and review his sufficiency-of-the-

evidence challenge under one of the mootness exceptions.

       ¶123 Because D.J.W. died, no issue outweighs our concern for

judicial economy.          See S.L.L.,

387 Wis. 2d 333, ¶15

.           None of the

mootness exceptions apply.               The majority claims exceptions (1),

(3), and (5) support reaching the merits.               Majority op., ¶26 n.5

("[T]he        question    of   the   necessary    evidence     to     support    an
involuntary commitment is of great importance yet often evades

appellate review.          Our decision on this case will give necessary

guidance       to   circuit     courts    conducting   involuntary      commitment

proceedings.").           I respectfully disagree.       Chapter 51 cases are

not so rare or procedurally unusual that they will evade appellate

review.    This term alone the court reviewed four chapter 51 cases.

Two of those, the present case and D.K.,

, dealt

with    sufficiency        of   the   evidence   challenges     to    findings    of
dangerousness under

Wis. Stat. § 51.20

.                Last term, this court

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reviewed two chapter 51 cases, both involving sufficiency of the

evidence challenges.           See S.L.L.,

387 Wis. 2d 333

; J.W.K.,