Marathon County v. D. K.

833 N.W.2d 607

).

Accordingly, our review of statutory dangerousness requires us

to apply the facts to the statutory standard and presents a

question of law that we review independently.                      Christopher S.,

366 Wis. 2d 1, ¶50

.


                                 IV.      ANALYSIS
               A.   The Commitment is Not a Moot Issue.

    ¶19     Mootness is a doctrine of judicial restraint.                          "'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, ¶11

386 Wis. 2d 672

927 N.W.2d 509

 (quoting PRN Assocs.

LLC v. DOA,

2009 WI 53, ¶25

317 Wis. 2d 656

766 N.W.2d 559

).

Because moot issues do not affect a live controversy, this court

generally    declines    to    reach      them.      Id.,    ¶12.      But    we   may
overlook     mootness    if    the     issue      falls   within     one     of    five

                                           9
                                                                    No.   2017AP2217



exceptions: (1) the issue is of great public importance; (2) the

issue involves the constitutionality of a statute; (3) the issue

arises often and a decision from this court is essential; (4)

the issue is likely to recur and must be resolved to avoid

uncertainty; or (5) the issue is likely of repetition and evades

review.      Id.

       ¶20   The   County    argues        that   D.K.'s    challenge      to    his

commitment is moot because his commitment has expired and the

issue does not fall in any of the exceptions.                 D.K. argues that

the County forfeited its mootness argument.                   D.K. also argues

that the issue is not moot because, even though the commitment

expired, three collateral consequences of his commitment remain.

First, D.K., having been committed under

Wis. Stat. § 51.20

, is

liable for the costs of his care to the extent that he can pay.

Wis. Stat. §§ 46.10

(2)-(3).           Second,      D.K.'s     involuntary

commitment order prohibits him from possessing a firearm, which

would   otherwise     be   his    right.      U.S.   Const.   amend.      II;   Wis.

Const. art. I, § 25.             Third, D.K. cites the negative stigmas
often attached to mental commitment as a lasting consequence.

       ¶21   The court of appeals addressed mootness in a footnote

of its opinion.        It concluded, "The [C]ounty does not address

this argument in its response brief, so we do not opine on

mootness here but rather reach the merits of this appeal.                        See

State v. Verhagen,

2013 WI App 16, ¶38

346 Wis. 2d 196

827 N.W.2d 891

 (unrefuted arguments are deemed conceded)."                          D.K.,

No. 2017AP2217, unpublished slip op., ¶3 n.3.                  But the County


                                       10
                                                                            No.   2017AP2217



did    argue        mootness   before     this       court.         Accordingly,      we   do

address the issue.

       ¶22     We have previously concluded that an expired initial

commitment order is moot.                Christopher S.,

366 Wis. 2d 1, ¶30

.

However,       the    issue    of   collateral        consequences'         effect    on    an

otherwise moot commitment was not raised in that case.                               Then in

J.W.K.,        we     specifically       left        open     the     question       whether

collateral consequences render an expired commitment not moot.

We     said,        "Our   holding       that       J.W.K.'s        [challenge     to      his

commitment] is moot is limited to situations where, as here, no

collateral          implications    of    the       commitment      order   are   raised."

J.W.K.,

386 Wis. 2d 672

, ¶28 n.11.                          We said these collateral

consequences may include a firearms ban, civil claims, and costs

of care.

      And now, in this case, D.K. has raised the issue

of collateral consequences.

       ¶23     The idea that collateral consequences can render an

otherwise moot issue not moot is nothing new in Wisconsin.                              Over

40 years ago, in State v. Theoharopoulos, this court concluded
that    collateral         consequences         could    render       a   prior   criminal

conviction not moot.

72 Wis. 2d 327

240 N.W.2d 635

 (1976).                      In

that case, a criminal defendant challenged a prior conviction

for which he had already served his sentence in full.

Id. at 329

.     We noted that the defendant's challenge faced a mootness

hurdle.

Id. at 332

.        But the defendant argued that the issue of

his    prior    conviction      was      not    moot.

      Specifically,        the

defendant argued that his prior conviction was not moot because
he was "being held on a detainer and may be subjected to the
                                               11
                                                                             No.    2017AP2217



further       penalty       of      deportation         because        of     the        [prior

conviction]."

Id. at 333

.        We concluded the prior conviction

was not moot because "on the face of the record, there [was] a

causal relationship between the defendant's present confinement

and the prior conviction which he wishes to attack."                                Id.; see

also    State      v.     Larkin,       Nos.     2007AP1646     through           2007AP1650,

unpublished        slip     op.,     ¶6    (Wis.       Ct.    App.     Jul.        24,   2008)

(concluding         the     defendant's          "challenge       to        his     completed

sentences [was] not moot because he [was] still experiencing the

collateral consequences of his convictions in the form of an

enhanced federal sentence"); State v. Genz, No. 2016AP2475-CR,

unpublished slip op., ¶10 (Wis. Ct. App. Jan. 30, 2018) (stating

that a "'criminal case is moot only if it is shown that there is

no possibility that any collateral legal consequences will be

imposed      on    the    basis    of     the    challenged     conviction.' . . . A

challenge to a conviction is not moot because the relief sought

would free a defendant from all consequences flowing from his or

her conviction") (citing Sibron v. New York,

392 U.S. 40, 57

(1968); Lane v. Williams,

455 U.S. 624, 630

 (1982)).

       ¶24    Of course, this is not a criminal case.                        But the logic

of Theoharopoulos is just as sound here.                      In this case, there is

a   "causal       relationship      between"         D.K.'s   firearms        ban    and    the

civil commitment "which he wishes to attack."                           Theoharopoulos,

72 Wis. 2d at 333

.          The circuit court's commitment order says:

       The subject is prohibited from possessing any firearm.
       Federal law provides penalties for, and you may be
       prohibited from possessing, transporting, shipping,
       receiving, or purchasing a firearm, including, but not

                                                12
                                                           No.   2017AP2217


    limited to, a rifle, shotgun, pistol, revolver, or
    ammunition, pursuant to 18 U.S.C. 921(a)(3) and (4)
    and 922(g)(4).    This prohibition shall remain in
    effect until lifted by the court.  Expiration of the
    mental commitment proceeding does not terminate this
    restriction.
(Emphasis added.)

    ¶25      As   a    result   of   his   civil   commitment,   D.K.   is

"prohibited from possessing any firearm."          And the "[e]xpiration

of the mental commitment proceeding [did] not terminate this

restriction."         Accordingly, though his commitment has expired,
D.K. is still subject to the lasting collateral consequence of a

firearms ban.         Since D.K. would otherwise have a fundamental

right to bear arms, this is no minor consequence.                See U.S.

Const. amend II; Wis. Const. art. I, § 25; see also District of

Columbia v. Heller,

554 U.S. 570

 (2008); Wisconsin Carry, Inc.

v. City of Madison,

2017 WI 19

373 Wis. 2d 543

892 N.W.2d 233

.

On appeal, a decision in D.K.'s favor would void the firearms

ban and therefore have a "practical effect."           Thus, we conclude

that D.K.'s commitment is not a moot issue because it still

subjects him to the collateral consequence of a firearms ban.7

We now proceed to the merits.

        B.   Constitutional Rights And Commitment Proceedings

    ¶26      The Fifth Amendment declares that no person shall be

"deprived of life, liberty, or property, without due process of


    7  Because we conclude that the firearms ban is itself
sufficient to render D.K.'s commitment not moot, we need not
address whether the collateral consequences of costs of care
under

Wis. Stat. § 46.10

(2)-(3) or negative stigma would render
the same result.

                                      13
                                                                            No.     2017AP2217



law. . . . "         U.S.   Const.     amend.      V.      "'[C]ommitment           for       any

purpose constitutes a significant deprivation of liberty that

requires due process protection.'"                  J.W.K.,

386 Wis. 2d 672, ¶16


(quoting Jones v. United States,

463 U.S. 354, 361

 (1983)).

Accordingly, civil commitment cases are to be handled with the

utmost diligence and care.                  Two due process protections are

implicated in D.K.'s case——the what, and the how of commitment

cases.

      ¶27    First, due process dictates what the petitioner must

prove for commitment to be appropriate.                            The petitioner must

prove that the individual is both mentally ill and dangerous.

O'Connor v. Donaldson,

422 U.S. 563, 576

 (1975) ("In short, 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.")                It is not sufficient to show that

the   individual      is    mentally     ill.

Id. at 575

.          Nor    is    it

sufficient     to    show   "[m]ere      public      intolerance        or    animosity."


      ¶28    Second, due process dictates how the petitioner must

prove commitment is appropriate.                  The petitioner must prove that

commitment     is    appropriate       by    clear      and    convincing          evidence.

Addington v. Texas,

441 U.S. 428, 432-33

(1979). The Supreme

Court concluded that clear and convincing evidence is the

appropriate burden of proof in commitment cases because the

individual liberty at stake is of great "weight and gravity."
Id. at 427. But, notably, the Supreme Court declined to adopt
14
No. 2017AP2217

the "beyond a reasonable doubt" standard in commitment cases

because that standard lends itself to "specific, knowable

facts." Id. at 430. Civil commitment cases do not. "The

subtleties and nuances of psychiatric diagnosis render

certainties virtually beyond reach in most situations." Id.

The clear and convincing evidentiary standard balances the

individual's significant liberty interest with the State's

interests in "providing care to its citizens who are

unable . . . to care for themselves" and "protect[ing] the

community from the dangerous tendencies of some who are mentally

ill." Id. at 425.

¶29 Accordingly, in a civil commitment case, due process

requires the petitioner to prove by clear and convincing

evidence that the individual is both mentally ill and dangerous.

The Wisconsin Statutes codify the same and additional

protections.

C. Statutory Interpretation

1. Wisconsin Stat. § 51.20 Commitment Proceedings Generally
¶30 We pause a moment to discuss the general statutory

framework for involuntary commitment proceedings in Wisconsin.

Then we will interpret and apply the particular section at issue

in D.K.'s case. Involuntary commitment proceedings are

controlled by

Wis. Stat. § 51.20

.                    Just last term, we described

these proceedings:

               To initiate commitment proceedings involving a
          mentally ill individual under

Wis. Stat. § 51.20

, the
          County must file a petition alleging the individual is
          (1) mentally ill and a proper subject for treatment,

                                                15
                                                                  No.    2017AP2217


    and    (2)     "[t]he   individual     is    dangerous."
    § 51.20(1)(a)1-2; see also [Waukesha Cty. v. J.W.J.,

2017 WI 57, ¶18

375 Wis. 2d 542

895 N.W.2d 783

].
    The statute contains five standards by which the
    County   may    show  the   individual    is  dangerous.
    § 51.20(1)(a)2.a.-e.     Each requires the County to
    identify recent acts or omissions demonstrating that
    the individual is a danger to himself or to others.
    See id.    During the final hearing, the County bears
    the burden of proving the allegations in the petition
    by clear and convincing evidence.        § 51.20(13)(e);
    J.W.J.,

375 Wis. 2d 542, ¶19

895 N.W.2d 783

. If the
    grounds in the petition are proven, then the court
    "shall" order commitment.     § 51.20(13)(a)3; see also
    M.J. v. Milwaukee Cty. Combined Cmty. Servs. Bd.,

122 Wis. 2d 525

, 529-30,

362 N.W.2d 190

 (Ct. App. 1984).
    The initial period of commitment cannot exceed six
    months. § 51.20(13)(g)1.
J.W.K.,

386 Wis. 2d 672, ¶17

.

    ¶31    In this case, the circuit court concluded that D.K.

was mentally ill, a proper subject for commitment, and dangerous

as defined under

Wis. Stat. § 51.20

(1)(a)2.b.               D.K. disputes the

circuit court's conclusion as to dangerousness only.                    This court

has never before interpreted § 51.20(1)(a)2.b.              We do so now.

      2.     Wisconsin Stat. § 51.20(1)(a)2.b. Dangerousness

    ¶32    Pursuant      to

Wis. Stat. § 51.20

(1)(a)2.b.,         an

individual is dangerous if he or she:

    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.

    ¶33    In this case, the County argues there was clear and
convincing    evidence        that     D.K.     presented    "a     substantial

                                        16
                                                                       No.   2017AP2217



probability of physical harm to other individuals as manifested

by . . . evidence that others [were] placed in reasonable fear

of   violent     behavior   and    serious       physical       harm   to    them,    as

evidenced by a . . . threat to do serious physical harm."

Wis. Stat. § 51.20

(1)(a)2.b.            Accordingly,           we    interpret     that

language, and that language only.

      ¶34    Statutory interpretation "begins with the language of

the statute."        State ex rel. Kalal v. Circuit Court for Dane

Cty.,

2004 WI 58, ¶45

271 Wis. 2d 633

681 N.W.2d 110

 (internal

quotations omitted).        If its meaning is plain, then our inquiry

ends.

    We give statutory language "its common, ordinary,

and accepted meaning."

      We give "technical or specially-

defined     words    or     phrases"         their     "technical       or    special

definitional meaning."

   "Context is important to meaning."

Id., ¶46.       Accordingly, we interpret statutory language "not in

isolation but as part of a whole."                   Id.     For the whole statute

to have meaning, we must "give reasonable effect to every word"

and "avoid surplusage."          Id.
      ¶35    While   this   court      has     never       before   interpreted      the

entirety of

Wis. Stat. § 51.20

(1)(a)2.b., Wisconsin courts have

interpreted portions of the language included in this section.

We begin with "substantial probability."                    In State v. Curiel, we

interpreted the phrase "substantial probability" in

Wis. Stat. § 980.02

(2)(c) (1995-96) and "substantially probable" in

Wis. Stat. § 980.01

(7)       (1995-96).

227 Wis. 2d 389, 402-03

      (1999).     We    noted      that    both     the   legislature      and
courts use the two phrases interchangeably and concluded that
                                          17
                                                               No.    2017AP2217



they "share a common meaning."

Id. at 403

.      We then interpreted

the plain language and concluded that the two phrases mean "much

more likely than not."

Id. at 406

.     Importantly, we connected

this conclusion to the "substantial probability" language in ch.

51.   We explained:

      Both ch. 980 and ch. 51 employ a "substantial
      probability" standard.     We held that the term
      "substantially probable" as used in ch. 980 means
      "much more likely than not."   As the terms are to be
      used in a consistent manner between the chapters, we
      can conceive of no reason why the term as used in ch.
      51 should be construed any differently than it is
      under ch. 980.

Id. at 414

.8     We also noted that the legislature had amended

Wis. Stat. § 51.20

 in 1977.          Id. at 410.         It replaced "substantial

risk" with "substantial probability."               Id.   In this case, the

County    did   not   dispute    that    "substantial     probability"    means

"much more likely than not."            We now reaffirm that "substantial

probability" in

Wis. Stat. § 51.20

(1)(a)2.b. means "much more

likely than not."

      ¶36   Under the plain language of the statute, evidence of a

"substantial probability of physical harm to other individuals"

must be "manifested by" "evidence of recent homicidal or other

violent     behavior"   or   "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

      8Since our decision in State v. Curiel,

227 Wis. 2d 389

 (1999), the legislature has changed the language
of both

Wis. Stat. §§ 980.01

(7) and 980.02(2)(c). Both sections
now use the word "likely."    See §§ 980.01(7) and 980.02(2)(c)
(2015-16)..

                                        18
                                                                                  No.        2017AP2217



do     serious       physical       harm."

Wis. Stat. § 51.20

(1)(a)2.b.

Because the County argues that it presented clear and convincing

evidence of "reasonable fear," we focus our interpretation on

that portion of the statute.

       ¶37     In    R.J.    v.    Winnebago         County,        the    court        of    appeals

interpreted "evidence that others are placed in reasonable fear

of violent behavior and serious physical harm to them" in

Wis. Stat. § 51.20

(1)(a)2.b.——the same section at issue here.

146 Wis. 2d 516

431 N.W.2d 708

(Ct. App. 1988). In that case, R.J.

argued that "them" meant only the individuals threatened. Id.

at 521. Under R.J.'s interpretation, there was no "reasonable

fear" unless the threatened individual was subjectively aware of

the threat. Id. The court of appeals correctly concluded that

that interpretation was too narrow. Id. at 522. R.J.'s

interpretation would have rendered insufficient evidence that a

person was placed in reasonable fear of serious physical harm to

another person. The court of appeals rejected that narrow

interpretation of the statute. Id. Instead, it concluded that
the statute was satisfied by "a showing . . . that others are

placed in a fearsome position by a [mentally ill] person's

actions even if the person placed in that position has no

subjective awareness of it." Id. at 523. Neither party to this

case challenges the court of appeals' interpretation in R.J.

Rather, consistent with R.J., both parties agreed that

Dr. Dave's testimony, as a third-party witness to D.K.'s alleged

threat to harm others, could be sufficient to satisfy the

19
No. 2017AP2217

statute. They dispute only whether Dr. Dave's testimony

actually was sufficient.

¶38 We conclude that the court of appeals' interpretation

in R.J. is consistent with the plain language of

Wis. Stat. § 51.20

(1)(a)2.b.            Specifically,         we    conclude       that     a    plain

reading of the statute demonstrates that "them" in the second

clause of that section refers back to "other individuals" in the

first clause.         See § 51.20(1)(a)2.b. ("Evidences a substantial

probability     of      physical          harm     to      other      individuals           as

manifested . . . by          evidence        that       others       are     placed        in

reasonable fear of violent behavior and serious physical harm to

them . . . ") (emphasis added).                  Thus, under the plain language

of the statute, evidence that a person was placed in reasonable

fear of serious physical harm to that person or another person

can   be    sufficient       to    establish       a     "reasonable        fear"     under

§ 51.20(1)(a)2.b.

      ¶39   In his briefing and at oral argument, D.K. argued that

the   County   could     not       prove    dangerousness           under

Wis. Stat. § 51.20

(1)(a)2.b. without showing facts supporting an objective,

"reasonable fear."           Specifically, D.K. argued that the County

did   not   prove     that    he    was    dangerous          because   there        was    no

testimony to facts concerning his demeanor at the time he made

his threats.

      ¶40   We agree with D.K. that

Wis. Stat. § 51.20

(1)(a)2.b.

establishes an objective test.                   But our agreement ends there,

and   we     decline     to        adopt     D.K.'s        interpretation.                 His
interpretation        would        read     out         the     first       portion         of
                                            20
                                                                               No.      2017AP2217



§ 51.20(1)(a)2.b.             Under      D.K.'s           interpretation,         evidence       of

"reasonable      fear"      would       be    both        necessary    and     sufficient       to

establish "a substantial probability of physical harm."                                         See

§ 51.20(1)(a)2.b.           Put simply, a "reasonable fear" would equal a

"substantial         probability."             That        cannot     be     right      for    two

reasons.        First,      the       plain     language         of    those      two      phrases

suggests otherwise——different words require different meanings.9

See State ex rel. DNR v. Wisconsin Court of Appeals, District

IV,

2018 WI 25, ¶28

380 Wis. 2d 354

909 N.W.2d 114

 ("When the

legislature uses different terms in the same act, we generally

do    not    afford    them       the    same        meaning.")            Indeed,      at    oral

argument, the County agreed that "the substantial probability is

informed by the requirement of . . . threats that would put a

reasonable person at fear of serious physical harm"; that those

phrases must be given separate meaning in order to "harmonize"

the    statutory      language.              Second,        if   "reasonable         fear"      and

"substantial probability" in                   § 51.20(1)(a)2.b.             meant the same

thing, then one or the other would be surplusage.                                       We must
interpret statutory language "to give reasonable effect to every

word" and "avoid surplusage."                   Kalal,

271 Wis. 2d 633, ¶46

; see

also       Antonin    Scalia      &     Bryan        A.    Garner,       Reading      Law:      The

Interpretation         of    Legal       Texts,           174-79      (2012)      ("Surplusage

Canon");

id. at 174

       ("If    possible,          every     word      and      every


       Common sense suggests that "reasonable" is something less
       9

than "substantial."    Thus, D.K.'s interpretation would likely
provide less protection for the mentally ill than the one we
adopt today.

                                                21
                                                                               No.      2017AP2217



provision is to be given effect. . . . None should needlessly be

given      an    interpretation         that       causes    it     to   duplicate       another

provision or to have no consequence.").

      ¶41       We    conclude     that       a    finding     of    a   "reasonable       fear"

supports a separate finding of a "substantial probability."                                     In

other words, evidence of a "reasonable fear" is necessary but

not   automatically          sufficient            alone     to     conclude     there     is    a

"substantial          probability        of       physical    harm"      under

Wis. Stat. § 51.20

(1)(a)2.b.            A "reasonable fear" may, and perhaps often

will, establish a "substantial probability."                              But it will not

necessarily always end the analysis.

      ¶42       In sum, we conclude that the plain language of

Wis. Stat. § 51.20

(1)(a)2.b. requires a showing that it is much more

likely than not that the individual will cause physical harm to

other individuals.

Id.

     This conclusion can be supported by

evidence that at least one person was placed in "reasonable fear

of violent behavior and serious physical harm"                                 to that same

person      or       another.10

Id.

         This     reasonable      fear       must    be
"evidenced by" a "recent overt act," an "attempt," or a "threat

to do serious physical harm."

Id.


      ¶43       We now proceed to decide the merits of D.K.'s case:

whether there was clear and convincing evidence at the final

hearing          that      D.K.         was        dangerous         under

Wis. Stat. § 51.20

(1)(a)2.b.

       It can also be supported by "evidence of recent homicidal
      10

or other violent behavior" but that language is not at issue in
this case. See

Wis. Stat. § 51.20

(1)(a)2.b.

                                                  22
                                                                            No.     2017AP2217



  D.   There Was Clear And Convincing Evidence of Dangerousness.

       ¶44       At the outset, we note that D.K. does not challenge

any    of     the       circuit       court's        factual     findings     as      clearly

erroneous.           Nor       does    D.K.     challenge         the     circuit     court's

conclusions that D.K. had a mental illness and was a proper

subject for commitment.                Thus, we review the evidence presented

at the final hearing and the circuit court's findings to decide

whether there was clear and convincing evidence that D.K. was

dangerous as defined under

Wis. Stat. § 51.20

(1)(a)2.b.

¶45 At the final hearing, corporation counsel asked Dr.

Dave, "Based on your interview of [D.K.] were you able to form

an opinion as to whether or not he had presented a substantial

risk of danger to either himself or others?" Dr. Dave

responded, "To other people." The clear meaning of Dr. Dave's

testimony is that D.K. "presented a substantial risk of danger"

"[t]o other people."

¶46 Dr. Dave then explained his conclusion. He stated

that D.K. was "paranoid about people around him. He had
thoughts of harming those people who were talking about him,

making fun of him. He also was making some threats against

[the] police department because he had thought that they were

not listening to him . . . ." Corporation counsel then asked,

"Did he tell you what his intentions were with regard to the

police or any of the persons in the public?" Dr. Dave

responded, "Yes." "He plans on strangulating the police officer

and also killing the people who made fun of him." Dr. Dave also

23
No. 2017AP2217

testified that D.K.'s threats were directly related to his

delusional disorder.

¶47 The circuit court concluded:

[Dr. Dave] testified that [D.K.] is mentally ill, that
[D.K.] is a proper subject for treatment. He
testified that he is a danger to others, specifically
that he is paranoid, that he has thoughts of harming
people and has made threats to the police department
that he wanted--he had thoughts that he wanted to
strangle police and kill people. These are homicidal
thoughts and that's what the doctor testified to.
(Emphasis added.) The circuit court then confirmed that its

conclusions fell under

Wis. Stat. § 51.20

(a)(1)2.b.                    D.K. does

not challenge any of the circuit court's factual findings as

clearly erroneous.

    ¶48     When we review this record, it is uncontroverted that

Dr. Dave witnessed D.K.'s threats to harm others and testified

that he "plan[ned] on strangulating the police officer and also

killing the people who made fun of him."                  Dr. Dave testified

that D.K. presented a substantial risk of danger "[t]o other

people."     Additionally, the circuit court found that D.K. made

threats to the police department and wanted to strangle police

and kill people.

    ¶49     We conclude that Dr. Dave's testimony and the circuit

court's    factual    findings      established    that   D.K.   was    dangerous

under

Wis. Stat. § 51.20

(1)(a)2.b.        There    was      clear   and

convincing       evidence    that    D.K.    "[e]vidence[d]      a   substantial

probability of physical harm to other individuals as manifested
by . . . evidence that others [were] placed in reasonable fear


                                        24
                                                                                 No.        2017AP2217



of    violent      behavior        and    serious          physical     harm     to     them,          as

evidenced       by     a . . . threat            to     do    serious       physical          harm."

§ 51.20(1)(a)2.b.

       ¶50     D.K.       argues        that     this        evidence       is     negated             by

statements Dr. Dave made during cross-examination.                                See Pucci v.

Rausch,

51 Wis. 2d 513, 519

187 N.W.2d 138

(1971) (stating that

"an expert opinion expressed in terms of possibility or

conjecture is insufficient"). Specifically, D.K. argues that

certain statements Dr. Dave made failed to establish a

"substantial probability." Dr. Dave stated that D.K.: "could be

potentially dangerous"; "can become potentially dangerous";

"could be still potentially dangerous"; "probably may have

acted"; and "most possibly . . . might act." Dr. Dave also

stated, "I don't think I can make [a] difference whether he will

act on his thoughts or not."

¶51 We agree with D.K. that this equivocal testimony alone

would be at least arguably insufficient to establish a

"substantial probability." We will not attempt to discern what
the phrases "probably may have acted" or "most

possibly . . . might act" mean. We need not so attempt because

we do not review Dr. Dave's statements in isolation. Rather, we

review his testimony and the circuit court's findings as a

whole. As we concluded above, Dr. Dave's testimony on direct-

examination established clear and convincing evidence that D.K.

was dangerous under

Wis. Stat. § 51.20

(1)(a)2.b.                And    his

testimony       as    a    whole        supports       that       conclusion.           Dr.       Dave
testified that D.K. presented a substantial risk of danger "to
                                                 25
                                                                                No.   2017AP2217



other people."          He never negated or withdrew his conclusion that

D.K. was dangerous.

       ¶52     While       mere         possibility           and      conjecture           are

insufficient, we will not disregard Dr. Dave's testimony simply

because he expressed something less than certainty.                                The statute

does     not     require          certainty,       but        rather        a     "substantial

probability."

Wis. Stat. § 51.20

(a)(1)2.b.                Furthermore,     we

have never required a mental illness expert to be clairvoyant

and we decline to do so now.                      See Addington,

441 U.S. at 430


("The    subtleties        and    nuances    of     psychiatric         diagnosis       render

certainties virtually beyond reach in most situations."); see

also D.K., No. 2017AP2217, unpublished slip op., ¶9 ("To the

extent       that     [D.K.]       criticizes       [Dr.]       Dave's          testimony    as

'speculat[ive],'

Wis. Stat. § 51.20

(1)(a)2.b. did not require

[Dr.] Dave, in providing an expert opinion, to be clairvoyant of

[D.K.'s]       future      acts    in     order    to    establish          a     'substantial

probability' of harm due to [D.K.'s] recent threats and his

medical diagnosis.")
       ¶53     D.K.     also      argues    that        Dr.    Dave's           testimony   was

insufficient under Outagamie County v. Melanie L.,

2013 WI 67

833 N.W.2d 607

.                    In that case, we reversed an

involuntary medication order under

Wis. Stat. § 51.61

(1)(g)4.b.

Id., ¶¶96-97. Under that section, the county "must prove that

the person is substantially incapable of applying an

understanding of the advantages and disadvantages of particular

medication . . . ." Id., ¶94. We reversed because the expert
in that case misstated the substance of the statutory standard.
26
No. 2017AP2217

The expert testified that Melanie was not "'capable of applying

the benefits of the medication to her advantage' rather than

that she was substantially incapable of applying an

understanding of the advantages, [and] disadvantages" of the

medication. Id., ¶6. We concluded that the county did not meet

its burden of proof because the expert's testimony "did not

sufficiently address and meet the statutory standard." Id.,

¶97. We explained:

Medical experts must apply the standards set out in
the competency statute. An expert's use of different
language to explain his or her conclusions should be
linked back to the standards in the statute.
Id.

¶54 D.K. uses Melanie L. to argue that Dr. Dave was

required to testify to the exact statutory standard and that his

statements on cross-examination were therefore insufficient.

But the issue in Melanie L. was that the expert's testimony

misstated the substance of the statutory standard. That is not

true here. Dr. Dave did not misstate the substance of the

standard; he merely failed to recite it exactly. Melanie L.

does not stand for the proposition that we require witnesses or

circuit courts to recite magic words. Rather, it stands for the

proposition that a medical expert's testimony and conclusions

"should be linked back to the standards in the statute."

Melanie L.,

349 Wis. 2d 148, ¶97

.                   Dr. Dave testified that D.K.:

was    paranoid         and       suffered        from     delusions;      presented       a

"substantial risk of danger" "to other people"; and "plan[ned]
on    strangulating         the    police    officer       and   also    killing"    other

                                             27
                                                                                         No.     2017AP2217



people.       (Emphasis added.)                   This is not the exact statutory

language,         but   it    does     "link          back"       to       it.      See

Wis. Stat. § 51.20

(1)(a)2.b. (requiring a "substantial probability of

physical harm to other individuals as manifested

by . . . evidence that others [were] placed in reasonable fear

of violent behavior and serious physical harm to them, as

evidenced by a . . . threat to do serious physical harm")

(emphasis added).

¶55 We pause once more to speak to the bench and the bar.

We do so because finality in a commitment proceeding is very

important to all concerned. D.K.'s commitment expired in

November 2017, and he will not have a final answer to the

question whether his commitment was appropriate until 2020. Had

certain things happened in the circuit court below, perhaps

D.K.'s appeal would have been unnecessary. The record was

sufficient in this case, but it could have been more detailed.

The County could have further developed its medical expert's

testimony, moved the expert's report into evidence, and properly
provided notice of its witnesses. Also, the circuit court could

have made more detailed and thorough factual findings and

clarified its legal conclusions. A commitment is no trivial

matter. Taking more time at the circuit court can save years of

uncertainty on appeal.

V. CONCLUSION

¶56 We conclude that D.K.'s commitment is not a moot issue
because it still subjects him to a firearms ban. We also

28
No. 2017AP2217

conclude that there was clear and convincing evidence at the

final hearing that D.K. was dangerous as defined under Wis.

Stat. 51.20(1)(a)2.b. Thus, we affirm the court of appeals.

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

affirmed.

29
No. 2017AP2217.rgb

¶57 REBECCA GRASSL BRADLEY, J. (concurring). I agree

with the majority that when a commitment order infringes the

individual right to bear arms with a restriction that remains in

effect even after expiration of the commitment, a challenge to

an involuntary commitment is not moot merely because the order

has expired. I also agree with the majority's conclusion that

there was clear and convincing evidence at the commitment

hearing of D.K.'s dangerousness under

Wis. Stat. § 51.20

(1)(a)2.b (2015-16).            Majority op., ¶3.1           However, I write

separately because I disagree with the majority's methodology of

statutory        analysis.          Instead     of     relying       exclusively      on

precedent, the majority should have analyzed and applied the

plain     meaning        of   the    statutory         text.         Accordingly,       I

respectfully concur and I join parts I, II, III, IV.A, IV.B, and

IV.C.1 of the majority opinion.

                                           I

      ¶58       Resolving D.K.'s challenge requires interpretation of

Wis. Stat. § 51.20

(1)(a)2.b.            Whenever we construe a statute, we
"begin[] with the language of the statute."                    State ex rel. Kalal

v. Circuit Court of Dane Cty.,

2004 WI 58, ¶45

271 Wis. 2d 633

681 N.W.2d 110

 (quoted source omitted).                   If the meaning of the

statute is plain and unambiguous, we stop the inquiry.                           See

id.


(citations omitted).            While the majority recites these seminal

principles of statutory interpretation, see majority op., ¶34,

it   only   superficially        applies       them,    opting      to    discuss   past


      1All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.

                                           1
                                                                        No.   2017AP2217.rgb


precedent rather than conducting a thorough textual analysis.

See majority op., ¶¶35-37.               I begin with the text of § 51.20.

    ¶59      In    order      for   a    county        to    involuntarily      commit       an

individual under

Wis. Stat. § 51.20

, a court must find that the

individual    is:       (1)     mentally      ill;      (2)    a   proper     subject       for

treatment;        and   (3)    dangerous.              § 51.20(1)(a)1-2;         see    also

Waukesha Cty. v. J.W.J.,

2017 WI 57, ¶18

375 Wis. 2d 542

895 N.W.2d 783

         (quoted      source        omitted).               Wisconsin        Stat.

§ 51.20(1)(a)2.a-e provides an exclusive list of five alternate

means   of        establishing          the   requisite         dangerousness.               An

individual is dangerous under the statute if he:

    (a)      "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."

    (b)      "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."

    (c)      "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."

                                              2
                                                                  No.   2017AP2217.rgb


(d)   "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."

(e)   "[E]vidences      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

                                      3
                                                              No.   2017AP2217.rgb


            cognitive     or     volitional   control    over       his   or     her

            thoughts or actions."

§ 51.20(1)(a)2.a-e.

      ¶60   Both parties agree that subdivision 2.b is the only

provision at issue in D.K.'s case and both the court of appeals

and   the    circuit     court     analyzed   dangerousness         under       that

subdivision.    Because the text of subdivision 2.b is plain and

unambiguous, my review of whether D.K. was dangerous begins and

ends with the text.

      ¶61   Proving dangerousness under subdivision 2.b requires

showing a "substantial probability of physical harm to other

individuals[.]"

Wis. Stat. § 51.20

(1)(a)2.b.            This court has

already determined that "substantial probability" means "much

more likely than not."           State v. Curiel,

227 Wis. 2d 389

, 413-

14,

227 Wis. 2d 650, 654, 669-70

    (1999).       Subdivision     2.b    provides        three

exclusive ways to demonstrate a person is much more likely than

not to physically harm other individuals:

      (1)   "evidence of recent homicidal" . . . behavior;
      (2)   evidence of recent "other violent behavior"; or

      (3)   "evidence that others are placed in reasonable fear of

            violent behavior and serious physical harm to them[.]"2


      2In R.J. v. Winnebago Cty., the court of appeals determined
the word "them" did not refer only to the individual threatened,
but also included any member of the "great mass of humankind" in
the class of people denoted "others" by the statute.

146 Wis. 2d 516

, 521-23,

431 N.W.2d 708

 (Ct. App. 1988).      Because
R.J. is a published court of appeals opinion, and this court has
never overruled it, its holding stands as binding law in this
state.   See

Wis. Stat. § 752.41

(2).    Neither party asks us to
overrule it.

                                       4
                                                                             No.    2017AP2217.rgb


§ 51.20(1)(a)2.b.            D.K.'s case involves the third way——"others

[were] placed in reasonable fear of violent behavior and serious

physical harm to them[.]"                   The statute lists three alternate

means of evidencing a "reasonable fear of violent behavior and

serious physical harm":

       (1)    "[A] recent overt act";

       (2)    A recent "attempt"; or

       (3)    A recent "threat to do serious physical harm."

Id.

       ¶62    The text of subdivision 2.b plainly describes what is

necessary to find a person dangerous.                             The record must evidence

a "recent overt act," a recent "attempt," or a recent "threat to

do    serious      physical       harm."        Any        one    of   these      three    factual

predicates         suffices       to    show      that           others     were     "placed     in

reasonable         fear     of     violent        behavior          and     serious       physical

harm[.]"          Establishing a "reasonable fear of violent behavior

and    serious      physical        harm"       is     one       way   of    demonstrating        a

"substantial          probability            of            physical       harm       to       other
individuals[.]"             Establishing          a        "substantial        probability       of

physical harm to other individuals" is one way of showing a

person       is     dangerous          within         the     meaning        of

Wis. Stat. § 51.20

(1)(a)2.             The    analysis           is    complete.        As     evidence     of

"others" being "placed in reasonable fear of violent behavior

and serious physical harm to them[]" a "threat to do serious

physical          harm[]"         constitutes              satisfactory            evidence      of

dangerousness; the statutory standard is met.



                                                  5
                                                                         No.      2017AP2217.rgb


      ¶63    The majority asserts that "evidence of a 'reasonable

fear' is necessary but not automatically sufficient alone to

conclude     there     is     a   'substantial               probability         of    physical

harm[.]'"      Majority op., ¶41.                The majority misunderstands the

statute.       The    legislature         decided           that,    among       other   proof,

"evidence that others are placed in reasonable fear of violent

behavior and serious physical harm to them[]" constitutes one of

the     manifestations        that    a     person          "evidences       a    substantial

probability     of    physical       harm       to    other     individuals[.]"

Wis. Stat. § 51.20

(1)(a)2.b. In other words, the legislature

defined, with some particularity, what establishes "a

substantial probability of physical harm" to others and included

"others" being "placed in reasonable fear of violent behavior

and serious physical harm" as evidence meeting that standard.

¶64 Puzzlingly, the majority believes this interpretation

equates "reasonable fear" and "substantial probability" and,

along with the dissent, invokes the surplusage canon. Neither

the majority nor the dissent explain their accusations of
duplication. In its analysis, the majority neglects to consider

the context and structure of the statute. While the legislature

embedded many layers in the determination of dangerousness, the

language it used plainly says an individual is dangerous if he

"[e]vidences a substantial probability of physical harm to other

individuals" and a "substantial probability of physical harm"

may be manifested by "evidence that others are placed in

reasonable fear of violent behavior and serious physical harm to
them," which in turn may be evidenced by three separate actions:

6
No. 2017AP2217.rgb

(1) a recent overt act; (2) an attempt to do serious physical

harm; or (3) a threat to do serious physical harm. This

interpretation of the statute gives effect to every word and

every provision, ignoring none. In contrast, the majority

offers no explanation for its conclusory assertion that "[a]

'reasonable fear' may, and perhaps often will, establish a

'substantial probability[]' [b]ut . . . not necessarily

always[.]" Majority op., ¶41. As a result of this equivocation

by the majority, future litigants and courts may ponder when a

"reasonable fear" may or may not establish "a substantial

probability of physical harm" but the legislature already told

us——in the statutory language.

¶65 D.K. argues that Dr. Dave's testimony at the final

hearing was insufficient to meet the legal standard of

dangerousness under subdivision 2.b. Because Dr. Dave

repeatedly used phrases such as "could be potentially

dangerous[,]" "can become potentially dangerous[,]" "could be
still potentially dangerous[,]" and "I don't think I can make

the difference whether he will act on his thoughts or not[,]"

D.K. argues the evidence was insufficient to find him

"substantial[ly] probab[le]" or "much more likely than not" to

"physically harm other individuals[.]" See

Wis. Stat. § 51.20

(1)(a)2.b; Curiel,

227 Wis. 2d at 413-14

.

       ¶66    Both D.K. and the dissent would impose an obligation

on     medical      experts     to     use       particular             statutory       terms     in



                                                 7
                                                                         No.   2017AP2217.rgb


expressing their opinions.3               We do not impose a "magic words"

requirement in the law and this court has repeatedly rejected

them.      See State v. Lepsch,

2017 WI 27, ¶36

374 Wis. 2d 98

892 N.W.2d 682

         (rejecting     in    the       context     of     a    circuit     court

inquiring about juror bias); State v. Wantland,

2014 WI 58, ¶33

355 Wis. 2d 135

848 N.W.2d 810

       (rejecting          in    context     of

withdrawing consent under the Fourth Amendment); Elections Bd.

v. Wisconsin Mfrs. & Commerce,

597 N.W.2d 721

 (1999) (rejecting in context of what is required to

be "express advocacy"); see also Patchak v. Zinke,

138 S. Ct. 897, 905

 (2018) (noting that the Supreme Court refrains from

reading       statutes      to    "incant         magic     words"       (quoted     source

omitted)).         The dissent asserts that "risk" is not synonymous

with       "probability"      and      because      Dr.     Dave     testified        to    a

substantial risk of danger, and not a substantial probability,

there was not clear and convincing evidence of dangerousness

under the statute.          See dissent, ¶¶79, 81, 83, 84.

       ¶67       The dissent is correct that risk and probability have
different meanings.           See Risk, Black's Law Dictionary (11th ed.

2019) ("The uncertainty of a result, happening, or loss; the

chance      of    injury,   damage,     or    loss;       esp.,    the     existence       and

extent of the possibility of harm[.]"); Probability, Black's Law


       The dissent relies on Outagamie Cty. v. Melanie L., 2013

3 WI 67

833 N.W.2d 607

, for the proposition that
medical experts must testify to the specific words set forth in

Wis. Stat. § 51.20

(1)(a)2.b. See dissent, ¶¶85-87. To the
extent Melanie L. can be read to impose such a "magic words"
requirement, I would clarify its holding and align it with our
other jurisprudence. See supra ¶66.

8
No. 2017AP2217.rgb

Dictionary (11th ed. 2019) ("Something that is likely; what is

likely[]"; "The degree to which something is likely to occur,

often expressed mathematically; Possibility[]"; "The quality,

state, or condition of being more likely to happen or to have

happened than not; the character of a proposition or supposition

that is more likely true than false."). Contrary to the

dissent's conclusion, this distinction is not dispositive. The

dissent erroneously conflates the role of the court and the role

of the medical expert in commitment cases. While the medical

expert testifies to the facts, the circuit court makes an

independent legal judgment as to whether the facts meet the

legal standard set forth in the commitment statute.

¶68 Contrary to the arguments of the dissent and D.K., it

is immaterial that the medical expert used "substantial risk" or

variants of "could be potentially dangerous[.]" It is the

court's responsibility to determine whether the testimony and

other evidence support a finding of a "substantial probability

of physical harm" as required by the statute.4 Cf. Winnebago
Cty. v. Christopher S.,

2016 WI 1, ¶50

366 Wis. 2d 1

878 N.W.2d 109

 (discussing how courts must apply facts to the legal

statutory standard).

       Because
       4        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.
Merely reciting testimony or melding factual findings with legal
conclusions can constrain appellate review.    Because appellate
courts overturn only factual findings that are "clearly
erroneous," there must be distinct separation of factfinding
from legal conclusions.    Cf. Winnebago Cty. v. Christopher S.,

2016 WI 1, ¶50

366 Wis. 2d 1

878 N.W.2d 109

 (discussing the
standard of review in commitment cases).
                                 9
                                                                  No.    2017AP2217.rgb


    ¶69     Due    to     the     significant         deprivation        of     liberty

associated with an involuntary commitment, due process requires

that the evidence be clear and convincing.                    Addington v. Texas,

441 U.S. 418, 433

 (1979).              The evidence at the final hearing in

D.K.'s    case    clearly    and       convincingly     supported        the    circuit

court's   determination         that    D.K.   was    dangerous      based     on   D.K.

evidencing "a substantial probability of physical harm to other

individuals[.]"      Most importantly, the circuit court found that

D.K. "has thoughts of harming people and has made threats to the

police department that he wanted——he had thoughts that he wanted

to strangle police and kill people."                   D.K. does not challenge

this finding as clearly erroneous.                    As this factual finding

involves a recent "threat to do serious physical harm[,]" made

to Dr. Dave, it alone is sufficient to find that "others are

placed in a reasonable fear of violent behavior and serious

physical harm to them," which is enough to find "a substantial

probability of physical harm to other individuals[.]"                          See

Wis. Stat. § 51.20

(1)(a)2.b; supra ¶¶61-62.
    ¶70     While this threat alone was sufficient for the circuit

court to find      D.K.     dangerous under          subdivision 2.b, it also

found:    (1) D.K. had homicidal thoughts; (2) D.K. has a mental

illness    that    causes       delusional      disorders;      and      (3)      D.K.'s

delusions affected D.K.'s ability to recognize reality.                              The

uncontroverted      evidence       introduced        during    the      hearing     also

demonstrated that D.K.:           (1) posed a substantial risk of danger

to "other people"; (2) had plans to strangle police and kill
those individuals making fun of him; (3) "could be potentially

                                          10
                                                                       No.   2017AP2217.rgb


dangerous"; (4) had feelings of persecution; and (5) was at risk

of acting on his violent thoughts because they are a product of

his delusions and he is unable to recognize reality.

       ¶71   The circuit court's factual findings that D.K. "has

made threats to the police department" and "that he wanted to

strangle police and kill people[]" alone render D.K. dangerous

under

Wis. Stat. § 51.20

(1)(a)2.b.            The    additional         factual

findings, and uncontroverted hearing testimony in the record,

provide      additional      clear    and     convincing        evidence       of    D.K.'s

dangerousness.

                                            III

       ¶72   The majority is correct that this case is not moot.

When a commitment order infringes the individual right to bear

arms    protected      by     the    Second       Amendment      and     the    Wisconsin

Constitution, a challenge to an involuntary commitment is not

moot    if   the    firearm       prohibition      survives      expiration         of   the

commitment.         See U.S. Const. amend. II; Wis. Const. Art. 1,

§ 25.
       ¶73   A     textual    analysis      of

Wis. Stat. § 51.20

(1)(a)2.b

shows the County established D.K.'s dangerousness. The circuit

court's finding that D.K. "made threats to the police

department[,]" is not clearly erroneous. These "threat[s] to do

serious physical harm[,]" expressed to Dr. Dave, fulfill one of

the factual predicates sufficient to show "that others are

placed in a reasonable fear of violent behavior and serious

physical harm to them[.]" That showing, in turn, satisfies one
of the tests for dangerousness under § 51.20(1)(a)2——"a

11
No. 2017AP2217.rgb

substantial probability of physical harm to other

individuals[.]" Because the majority's analysis fails to

clearly apply the plain words of the statute, I respectfully

concur.

¶74 I am authorized to state that Justice DANIEL KELLY

joins this concurrence.

12
No. 2017AP2217.rfd

¶75 REBECCA FRANK DALLET, J. (dissenting). There is no

dispute that D.K. suffered from delusional disorder and that he

made statements regarding plans to strangle a police officer and

to kill people that he perceived to be making fun of him. The

issue is whether the County presented sufficient evidence that

D.K. was dangerous as a result of his disorder. In concluding

that the testimony of Dr. Dave was sufficient to establish that

D.K. was dangerous, the majority ignores the statutory standard

set forth in

Wis. Stat. § 51.20

(1)(a)2.b.          and        implicitly

overrules this court's holding in Melanie L. requiring medical

experts to apply that statutory standard.                     Outagamie Cty. v.

Melanie L.,

2013 WI 67

833 N.W.2d 607

.                           For

this reason, I dissent.

      ¶76    The United States Supreme Court has acknowledged that

involuntary commitment is "'a massive curtailment of liberty'

and in consequence 'requires due process protection.'"                        Vitek v.

Jones,

445 U.S. 480, 491-92

 (1980) (citation omitted).                         Because

of the significant liberty interest involved in civil commitment
cases, the standard of proof of clear and convincing evidence is

required to meet due process guarantees.                 Addington v. Texas,

441 U.S. 418, 432-33

     (1979).         "This   Court        has     mandated

an intermediate       standard       of       proof——'clear     and         convincing

evidence'——when the individual interests at stake in a state

proceeding      are     both     'particularly important'               and      'more

substantial than mere loss of money.'"                Santosky v. Kramer,

455 U.S. 745, 756

 (1982) (quoting Addington,

441 U.S. at 424

).



                                          1
                                                           No.    2017AP2217.rfd


    ¶77    To   commit   an     individual    pursuant     to

Wis. Stat. § 51.20

(1)(a)2.b., a county must prove by clear and convincing

evidence that an individual is dangerous because he or she:

    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.

(Emphasis added.)    Whether the facts in the record satisfy the

statutory standard for commitment under § 51.20(1)(a)2.b. is a

question of law which this court reviews de novo.                Waukesha Cty.

v. J.W.J.,

2017 WI 57, ¶15

375 Wis. 2d 542

895 N.W.2d 783

.

    ¶78    I agree with the majority's statutory analysis of

Wis. Stat. § 51.20

(1)(a)2.b., see majority op. ¶¶30-42, because it

gives effect to every statutory term, unlike the concurrence's

analysis which renders the standard of "substantial probability"

surplusage. However, I part ways with the majority as to

whether there was clear and convincing evidence presented to the

circuit court that D.K. "evidence[d] a substantial probability
of physical harm."

¶79 The majority relies solely on Dr. Dave's testimony on

direct examination1 to support its conclusion that D.K.

"[e]vidences a substantial probability of physical harm to other

1 As the majority correctly notes, the County did not move
Dr. Dave's report into evidence at the hearing and therefore it
is not part of the record. Majority op., ¶6 & n.4.

2
No. 2017AP2217.rfd

individuals."2 Dr. Dave was asked the following question on

direct examination regarding the likelihood of D.K.'s current

dangerousness: "Based on your interview of [D.K.], were you

able to form an opinion as to whether or not [D.K.] had

presented a substantial risk of danger to either himself or

others?" Dr. Dave answered: "To other people."

¶80 The majority opinion pays lip service to the

importance of reviewing Dr. Dave's testimony "as a whole," yet

ignores his testimony on cross-examination, which it concedes

was "at least arguably insufficient to establish a 'substantial

probability.'" Majority op., ¶51. Dr. Dave stated on cross-

examination that he was not aware of any times that D.K. had

acted on his thoughts. When asked about the likelihood that

D.K. would act on his thoughts, Dr. Dave opined that: D.K. "can

act" on his thoughts; he "can become potentially dangerous"; he

"could be still potentially dangerous"; and he "probably may

have acted" on his thoughts. When asked whether Dr. Dave could

tell "whether or not he was saying something [D.K.] was going to
act on or maybe [was] just speaking in anger," Dr. Dave

responded "I don't think I can make the difference whether he

will act on his thoughts or not." These statements do not

support a finding by clear and convincing evidence that D.K. was

While the circuit court's factual findings in this case
2

are scant, they are not clearly erroneous. See Outagamie Cty.
v. Melanie L.,

2013 WI 67, ¶38

833 N.W.2d 607

("We will not disturb a circuit court's factual findings unless
they are clearly erroneous.").

                                              3
                                                                              No.      2017AP2217.rfd


dangerous     in        accordance             with       the        statutory         mandate      of

"substantial probability."

      ¶81    But even if, like the majority, I only consider Dr.

Dave's     testimony      on    direct         examination,            the    record      is    still

insufficient       to     support          a    finding         that       D.K.        evidences    a

"substantial probability of physical harm to other individuals."

The   majority     says     the      "clear          meaning"         of   Dr.     Dave's       direct

examination       testimony         "is    that         D.K.    'presented         a    substantial

risk of danger' '[t]o other people.'"                            Majority op., ¶45.                But

what exactly is "a substantial risk of danger"?                                   At first blush,

it    looks        similar          to         the        language           of

Wis. Stat. § 51.20

(1)(a)2.b.:             "substantial probability of physical harm."

However, a deeper look reveals important distinctions.

      ¶82    As    noted       by    the       majority         opinion,      the       legislature

amended

Wis. Stat. § 51.20

         in       1977    to    replace       "'substantial

risk'" with "'substantial probability,'" signifying that there

is a difference in meaning between these terms.                                   See Richards v.

Badger Mut. Ins. Co.,

2008 WI 52, ¶22

309 Wis. 2d 541

749 N.W.2d 581

 ("By analyzing the changes the legislature has made

over the course of several years, we may be assisted in arriving

at the meaning of a statute.").                          We recognized in Curiel that

"there is no evidence that when the legislature amended

Wis. Stat. § 51.20

 in 1977 and replaced 'risk' with 'probability,' it

did   so    with     a     view       that          'probability'            and       'risk'     were

synonymous."       State v. Curiel,

227 Wis. 2d 389, 410

 (1999); see § 29, ch. 428, Laws of 1977; Drafting File for



                                                    4
                                                                   No.   2017AP2217.rfd


1977 Act 428, Analysis by the Legislative Reference Bureau of

1977 A.B. 898, Legislative Reference Bureau, Madison, Wis.

       ¶83   Moreover, the term "substantial risk" has a meaning

distinct from the term "substantial probability."                         This court

often uses dictionary definitions to ascertain the meaning of

words and phrases not defined by statute.                     Curiel,

227 Wis. 2d at 404

.      The Merriam Webster Dictionary defines "risk" as a

"possibility of loss or injury."               "Risk," Merriam Webster Online

Dictionary      (2020),      https://www.merriam-webster.com/dictionary/

risk    (emphasis     added).           "Possible"     is     defined     as    "being

something    that     may    or   may   not    occur."        "Possible,"       Merriam

Webster      Online         Dictionary        (2020),         https://www.merriam-

webster.com/dictionary/possible.               The common usage of the words

testified to by Dr. Dave is that D.K. evidences a danger to

other people that may or may not occur.                  In contrast, this court

has defined "substantial probability," as "much more likely than

not."    Curiel,

227 Wis. 2d at 406

.

       ¶84   Possibility and probability are not, as the majority
opinion assumes, simply interchangeable.                     This court has often

said an expert opinion expressed in terms of possibility or

conjecture is insufficient.              See Pucci v. Rausch,

51 Wis. 2d 513, 519

187 N.W.2d 138

 (1971) (citing to cases dating back to

1904 for this proposition).              The important distinction between

possibility and probability was best described in Michalski v.

Wagner,

9 Wis. 2d 22, 28

100 N.W.2d 354

 (1960), where we held

that    there   was    "no    probative       value"    to    a   medical      expert's



                                          5
                                                                           No.   2017AP2217.rfd


testimony      that      it    was        possible          the    accident        caused   the

plaintiff's injury.           We stated:

       Preponderance of mere possibilities is, of course, not
       the equivalent of a preponderance of probabilities.
       Mere possibilities leave the solution of an issue of
       fact in the field of conjecture and speculation to
       such an extent as to afford no basis for inferences to
       a reasonable certainty, and in the absence of at least
       such inferences there is no sufficient basis for a
       finding of fact.

    In a commitment case which carries an even higher burden of

proof, an opinion testifying to clear and convincing evidence of
possibilities is likewise of no probative value.

       ¶85    The majority concludes that a medical expert is not

required to render an opinion to the standard set forth in

Wis. Stat. § 51.20

, and thus implicitly overrules Melanie L.,

. In Melanie L., this court determined that a

medical expert's opinion that Melanie L. was unable to apply an

understanding "to her advantage" did not establish clear and

convincing evidence of the statutory requirement that she be

"substantially incapable of applying an understanding of the

advantages, disadvantages and alternatives" of medication. Id.,

¶96. We emphasized that "[m]edical experts must apply the

standards set out in the competency statute" and that "[a]n

expert's use of different language to explain his or her

conclusions should be linked back to the standards in the

statute." Id., ¶97 (emphasis added). We further determined

that it is a county's burden to ensure that a medical expert

applies the required standard: "[w]hen [corporation counsel]
did not receive an answer in those [statutory] terms, he should

6
No. 2017AP2217.rfd

have required his witness to expound upon his answer, so that

the circuit court and a reviewing court did not have to

speculate upon [the doctor's] meaning." Id., ¶91. While no

medical expert is required to be clairvoyant, and certainty is

not required, Melanie L. signifies that a medical expert must

testify to the standard set forth in § 51.20(1)(a)2.b.

¶86 Here, as in Melanie L., Dr. Dave did not testify to

the standards set forth in the competency statute and

corporation counsel failed to clarify the testimony or introduce

his report into evidence.3 The majority attempts to distinguish

Melanie L. by claiming that Dr. Dave "did not misstate the

substance of the standard; he merely failed to recite it

exactly." Majority op., ¶54. Dr. Dave did exactly what the

majority opinion identified as improper: he misstated the

substance of the standard. The testimony of Dr. Dave using an

alternate standard did not rise to the level of proof by clear

and convincing evidence that D.K. evidences a "substantial

probability of physical harm to other[s]" as mandated by

Wis. Stat. § 51.20

(1)(a)2.b.              As this court warned in Melanie L.,

"[Wis. Stat. ch. 51] hearings cannot be perfunctory under the



      3The majority opinion recognizes that the County "could
have further developed its medical expert's testimony, moved the
expert's report into evidence, and properly provided notice of
its witnesses."   Majority op., ¶55.  We review only the record
before us in a case, not the record that could have been made.
See Covelli v. Covelli,

2006 WI App 121, ¶14

293 Wis. 2d 707

718 N.W.2d 260

 ("When reviewing fact finding, we search the
record for evidence to support findings reached by the trial
court, not for evidence to support findings the trial court did
not but could have reached.").

                                                 7
                                                                        No.   2017AP2217.rfd


law.     Attention      to    detail      is       important."          Melanie    L.,

349 Wis. 2d 148, ¶94

.

       ¶87    Since    the   record    before         the    circuit     court     reflects

that    the   County's       only   witness          did     not    render    an     opinion

regarding D.K.'s likelihood of dangerousness as defined in

Wis. Stat. § 51.20

(1)(a)2.b.,         and     as      required       by   Melanie    L.,