Marathon County v. D. K.
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In this review of the court of appeals' decision affirming the circuit court's orders for involuntary commitment and involuntary medication and treatment of D.K. the Supreme Court held that there was clear and convincing evidence at a final hearing that D.K. was dangerous as defined under Wis. Stat. 51.20(1)(a)2.b.
D.K. argued that he should not have been committed because Winnebago County failed to prove by clear and convincing evidence that he was dangerous. The circuit court concluded that the County met its burden to prove by clear and convincing evidence that D.K. was mentally ill and dangerous. The court of appeals affirmed, holding that the circuit court's dangerousness determination was supported by the evidence. The Supreme Court affirmed, holding (1) D.K.'s commitment was not a moot issue because it still subjected him to a firearms ban; and (2) there was clear and convincing evidence that D.K. was dangerous as defined under section 51.20(1)(a)2.b.
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2020 WI 8 SUPREME COURT OF WISCONSIN CASE NO.: 2017AP2217 COMPLETE TITLE: In the matter of the condition of D. K.: Marathon County, Petitioner-Respondent, v. D. K., Respondent-Appellant-Petitioner. REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 384 Wis. 2d 272,921 N.W.2d 14 (2018 – unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: February 4, 2020 November 25, 2019 Circuit Marathon Karen L. Seifert JUSTICES: ZIEGLER, J., delivered the majority opinion of the Court with respect to Parts I., II., III., IV.A., IV.B., and IV.C.1, in which ROGGENSACK, C.J., REBECCA GRASSL BRADLEY, KELLY, and HAGEDORN, JJ., joined, the majority opinion of the Court with respect to Part V., in which ROGGENSACK, C.J., KELLY and HAGEDORN, JJ., joined, and an opinion with respect to Parts IV.C.2., and IV.D., in which ROGGENSACK, C.J., and HAGEDORN, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J., joined. NOT PARTICIPATING: ATTORNEYS: For the respondent-appellant-petitioner, there were briefs filed by Catherine R. Malchow, assistant state public defender. There was an oral argument by Catherine R. Malchow. For the petitioner-respondent, there was a brief filed by Michael J. Puerner and Scott M. Corbett, corporation counsel. There was an oral argument by Michael J. Puerner. 2 2020 WI 8 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2017AP2217 (L.C. No. 2017ME132) STATE OF WISCONSIN : IN SUPREME COURT In the matter of the condition of D. K.: MARATHON COUNTY, FILED Petitioner-Respondent, FEB 4, 2020 v. Sheila T. Reiff Clerk of Supreme Court D. K., Respondent-Appellant-Petitioner. ZIEGLER, J., delivered the majority opinion of the Court with respect to Parts I., II., III., IV.A., IV.B., and IV.C.1, in which ROGGENSACK, C.J., REBECCA GRASSL BRADLEY, KELLY, and HAGEDORN, JJ., joined, the majority opinion of the Court with respect to Part V., in which ROGGENSACK, C.J., KELLY and HAGEDORN, JJ., joined, and an opinion with respect to Parts IV.C.2., and IV.D., in which ROGGENSACK, C.J., and HAGEDORN, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J., joined. REVIEW of a decision of the Court of Appeals. ¶1 ANNETTE KINGSLAND ZIEGLER, J. Affirmed. This is a review of an unpublished decision of the court of appeals, Marathon County v. D.K., No. 2017AP2217, unpublished slip op. (Wis. Ct. App. No. 2017AP2217 Aug. 7, 2018), affirming the Winnebago County circuit court's1 Wis. Stat. involuntary ch. 51 orders medication and for involuntary treatment.2 commitment D.K. argues should not have been committed because the County and that he failed to prove by clear and convincing evidence that he was dangerous as defined under Wis. Stat. § 51.20(1)(a)2.b. (2015-16).3 The County disagrees, and also argues that D.K.'s commitment is a moot issue. ¶2 At the final hearing, the County had to prove by clear and convincing evidence that D.K. was mentally ill, a proper subject for commitment, § 51.20(1)(a). The County burden met its and circuit of dangerous. court proof, concluded ordered Wis. that D.K.'s Stat. Winnebago involuntary commitment for six months, and ordered involuntary medication and treatment. The court of appeals affirmed. It concluded that D.K.'s threats and plans to strangle police officers and kill other people established a "'reasonable serious physical harm' under § 51.20(1)(a)2.b," "the circuit 1 court's dangerousness fear . . . of and, therefore, determination . . . was The Honorable Karen L. Seifert presided. Winnebago County was the original petitioner in this case. But after the circuit court entered its order, venue was transferred to Marathon County. On appeal, Marathon County was designated as the petitioner-respondent and argued before the court of appeals and this court. Throughout this opinion, we will refer to Marathon County as "the County." 2 All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless otherwise indicated. 3 2 No. supported by the evidence." slip op., ¶11. 2017AP2217 D.K., No. 2017AP2217, unpublished On review, we are asked to decide two issues: (1) whether D.K.'s challenge to his commitment order is moot; and (2) whether there was clear and convincing evidence that D.K. was dangerous under § 51.20(1)(a)2.b. ¶3 because We conclude that D.K.'s commitment is not a moot issue it still subjects him to a firearms ban. We also 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. I. ¶4 On April 25, FACTUAL BACKGROUND 2017, Officer Kelly Schmitz Winnebago County Sheriff's Department arrested D.K. of the The next day, Officer Schmitz filed a Statement of Emergency Detention by Law Enforcement Officer in the Winnebago County circuit court. According to the Statement, D.K. had complained that the Oshkosh Police Department bugged his phone and that other people were "stalking him" and lying about him. The Statement also alleged that D.K. had emailed the Department's human resources director and requested "strangle a him meeting to with death." the It police also chief alleged so that he D.K. could had threatened to "hurt every single person" who was stalking him and lying about him. ¶5 On April 28, 2017, the circuit court commissioner determined that there was probable cause to believe that D.K. was mentally ill, a proper subject for treatment, and dangerous 3 No. to himself circuit or court others. See commissioner Wis. Stat. ordered 2017AP2217 § 51.20(7)(a). that D.K. be detained Winnebago Mental Health Institute pending a final hearing. same day, the circuit court issued an Order The at That Appointing Examiners, appointing Dr. Jagdish Dave and Dr. Yogesh Pareek. See Wis. Stat. § 51.20(9)(a). filed reports with the Both doctors examined D.K. and circuit court. See Wis. Stat. § 51.20(9)(a)5. ¶6 hearing. On May 11, 2017, the circuit court See Wis. Stat. §§ 51.20(10), (13). presented only one witness——Dr. Dave. held a final Winnebago County Winnebago County did not move Dr. Dave's report into evidence at the hearing, although the report had been filed with the circuit court.4 Winnebago County did not call Dr. Pareek or any fact witness such as Officer Kelly or the human resources director to testify.5 did not testify. D.K. Thus, the only evidence at the final hearing was Dr. Dave's testimony. ¶7 Dr. Dave is a psychiatrist. opportunity to evaluate D.K. He stated that he had the Dr. Dave spoke with D.K., observed We will not refer to the contents of Dr. Dave's report because the circuit court did not rely on it when it made factual findings and legal conclusions. Nor did the parties rely on its contents in their arguments before this court. Thus, we need not decide whether filing Dr. Dave's report with the circuit court was sufficient to enter the report into evidence. 4 The County attempted to call a different officer, but D.K. objected because the officer was not on the witness list. See Wis. Stat. § 51.20(10)(a). The circuit court sustained the objection and did not permit the officer to testify. 5 4 No. him, and reviewed his records. 2017AP2217 Dr. Dave stated his conclusion to a reasonable degree of medical certainty that D.K. suffered from a mental "substantial illness disorder called of delusional thought and disorder and perception." had He also concluded that D.K.'s judgment and behavior were substantially impaired, he was a proper subject for treatment, and he needed treatment. Corporation counsel for Winnebago County then 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 substantial risk of danger to either himself or others?" a Dr. Dave responded, "To other people." ¶8 Dr. Dave then explained the basis of his opinion. stated that D.K. was "paranoid about people around him. He 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 responded, "Yes." the persons in the public?" that Dave "He plans on strangulating the police officer and also killing the people who made fun of him." testified Dr. D.K.'s threats were directly Dr. Dave also related to his delusional disorder. ¶9 On cross-examination, Dr. Dave made multiple statements relevant to D.K.'s argument before this court. other Dr. Dave stated that D.K.: "was acting on his delusional belief and he could be potentially dangerous"; "can act on those thoughts 5 No. and he can become potentially dangerous"; "could 2017AP2217 be still potentially dangerous"; "was expressing those thoughts and he probably may have acted possibly . . . might act on on those those thoughts"; thoughts." Dr. and "most Dave also stated, "I don't think I can make [a] difference whether he will act on his thoughts or not." ¶10 It is this final hearing evidence that we review, along with the circuit court's findings and conclusions, for clear and convincing evidence of dangerousness. II. ¶11 hearing. PROCEDURAL POSTURE The circuit court made an oral ruling at the final The circuit court concluded: Based on the testimony that at this point is the only testimony and it's uncontroverted, I do find that Dr. Dave testified that [D.K.] suffers from a major mental illness. . . . He 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. On that basis I do [D.K.] be committed he be under the care that it be inpatient find that it's appropriate that for a period of [6] months, that and custody of the department and treatment at this time. When counsel for D.K. asked the circuit court to clarify under which statutory subsection it found dangerousness, corporation 6 No. 2017AP2217 counsel suggested that the circuit court's findings fell under Wis. Stat. § 51.20(1)(a)2.b., "which would be indicating that he evidences a substantial probability of physical harm to others as manifested by evidence of recent homicidal or other violent behavior." The circuit court responded, "That's what I heard the doctor testify to." ¶12 The circuit court issued its Order of Commitment that same day. It stated that the grounds for commitment were that D.K. mentally was ill, dangerous, a proper treatment, and a resident of Winnebago County. subject for It also stated that, as a result of his commitment, D.K. was prohibited from possessing a firearm. The circuit court also issued its Order for Involuntary Medication and Treatment. D.K. then filed a Notice of Intent to Pursue Postcommitment Relief.6 ¶13 to On May 17, 2017, D.K. was transferred from inpatient outpatient status. On June 12, 2017, the circuit court issued an Order for Transfer of Venue to Marathon County because D.K. had changed his residence to Marathon County. 6, 2017, D.K. filed a Notice of Appeal. On November On November 11, 2017, D.K.'s six-month commitment expired and the County did not seek an extension. ¶14 On August 7, 2018, the court of appeals issued its decision affirming the circuit court. First, it declined to The various record documents refer interchangeably to a Notice of Intent to Pursue "Postconviction" Relief or "Post Disposition" Relief. Since this was a commitment proceeding, we refer to this document as a Notice of Intent to Pursue Postcommitment Relief. 6 7 No. 2017AP2217 address whether the issue was moot because the County did not argue mootness in its briefing. D.K., No. 2017AP2217, unpublished slip op., ¶3 n.3 (citing State v. Verhagen, 2013 WI App 16, ¶38, 346 Wis. 2d 196, arguments are deemed conceded)). 827 N.W.2d 891 (unrefuted Second, the court of appeals concluded: [W]hile in Dr. Dave's presence, [D.K.] specifically threatened strangulation and murder of multiple people for specific, delusional perceptions of his ill treatment by those people. We conclude those 'plans' and threats establish a 'reasonable fear . . . of serious physical harm' under [Wis. Stat.] § 51.20(1)(a)2.b. In sum, the circuit court's dangerousness determination was based upon a correct interpretation of § 51.20(1)(a)2.b. and was supported by the evidence. D.K., No. 2017AP2217, unpublished slip op., ¶3 n.3. ¶15 review. On September 5, 2018, D.K. petitioned this court for We granted the petition. III. ¶16 his STANDARD OF REVIEW We must first determine whether D.K.'s challenge to six-month commitment is moot because it has expired. Mootness is a question of law that we review independently. Waukesha Cty. v. S.L.L., 2019 WI 66, ¶10, 387 Wis. 2d 333, 929 N.W.2d 140. ¶17 We must also interpret Wis. Stat. § 51.20(1)(a)2.b. in order to determine whether the County proved dangerousness in D.K.'s case. question of The law interpretation that this court of a statute "reviews de presents novo a while benefiting from the analyses of the court of appeals and circuit 8 No. court." 2017AP2217 State v. Alger, 2015 WI 3, ¶21, 360 Wis. 2d 193, 858 N.W.2d 346 (citing State v. Ziegler, 2012 WI 73, ¶37, 342 Wis. 2d 256, 816 N.W.2d 238). ¶18 Finally, we must review whether there was clear and convincing evidence of dangerousness as defined under Wis. Stat. § 51.20(1)(a)2.b. at D.K.'s final hearing. D.K. does not challenge any of the circuit court's factual findings as clearly erroneous. "'We will not disturb a circuit court's factual findings unless they are clearly erroneous.'" Winnebago Cty. v. Christopher S., 2016 WI 1, ¶50, 366 Wis. 2d 1, 878 N.W.2d 109, cert. denied, 136 S.Ct. 2464 (2016) (quoting Outagamie Cty. v. Melanie L., 2013 WI 67, ¶38, 349 Wis. 2d 148, 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. A. ¶19 ANALYSIS The Commitment is Not a Moot Issue. 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 overlook declines mootness to reach if the them. issue 9 Id., falls ¶12. within But one we of may five 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. ¶20 Id. 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. the County forfeited its mootness argument. D.K. argues that 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 Const. art. I, § 25. right. U.S. Const. amend. II; Wis. 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)." No. 2017AP2217, unpublished slip op., ¶3 n.3. 10 D.K., But the County No. did argue mootness before this court. 2017AP2217 Accordingly, we do address the issue. ¶22 We have previously concluded that an expired initial commitment order is moot. However, the issue of Christopher S., 366 Wis. 2d 1, ¶30. collateral consequences' effect on an otherwise moot commitment was not raised in that case. Then in J.W.K., whether we specifically left open the question 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 J.W.K., 386 Wis. 2d 672, ¶28 n.11. order are raised." We said these collateral consequences may include a firearms ban, civil claims, and costs of care. Id. 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 conviction not moot. could render a prior criminal 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. 329. We noted that the defendant's challenge faced a mootness hurdle. his Id. at Id. at 332. prior conviction But the defendant argued that the issue of was not moot. Id. 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. further penalty conviction]." of deportation Id. at 333. because of 2017AP2217 the [prior 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." also State v. Larkin, Nos. unpublished slip op., ¶6 (concluding the defendant's 2007AP1646 (Wis. Ct. through App. "challenge 2007AP1650, Jul. to Id.; see 24, his 2008) 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 firearms "causal relationship between" D.K.'s civil commitment "which he wishes to attack." 72 Wis. 2d at 333. ban and the Theoharopoulos, 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 "prohibited from possessing any firearm." commitment, D.K. is 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. ¶26 Constitutional Rights And Commitment Proceedings The Fifth Amendment declares that no person shall be "deprived of life, liberty, or property, without due process of 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. 7 13 No. law. . . . " U.S. Const. amend. V. 2017AP2217 "'[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.") the individual sufficient to is mentally show "[m]ere It is not sufficient to show that ill. Id. at 575. public intolerance or Nor is it animosity." Id. ¶28 Second, due process dictates how the petitioner must prove commitment is appropriate. commitment is appropriate by The petitioner must prove that clear and convincing Addington v. Texas, 441 U.S. 428, 432-33 (1979). Court concluded appropriate that burden of clear and proof in convincing commitment evidence. The Supreme evidence cases is the 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 facts." standard lends Id. at 430. subtleties and itself to "specific, knowable Civil commitment cases do not. nuances of psychiatric "The diagnosis render certainties virtually beyond reach in most situations." Id. The the clear and individual's interests convincing significant in unable . . . to "providing care for evidentiary liberty care standard interest to its themselves" balances with the citizens and State's who are "protect[ing] the community from the dangerous tendencies of some who are mentally ill." Id. at 425. ¶29 requires Accordingly, in a civil commitment case, due process 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. 1. Statutory Interpretation 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 controlled by Wis. Stat. § 51.20. commitment proceedings 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 are 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. has never before interpreted § 51.20(1)(a)2.b. 2. ¶32 This court We do so now. Wisconsin Stat. § 51.20(1)(a)2.b. Dangerousness 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. 16 presented "a substantial 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. that § 51.20(1)(a)2.b. Accordingly, we interpret 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). ends. Id. If its meaning is plain, then our inquiry We give statutory language "its common, ordinary, and accepted meaning." defined words or We give "technical or specially- phrases" definitional meaning." Id., ¶46. Id. Id. their "technical or special "Context is important to meaning." 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." ¶35 While this Id. 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) N.W.2d 697 (1999). (1995-96). We noted 227 that Wis. 2d 389, both the 402-03, 597 legislature and courts use the two phrases interchangeably and concluded that 17 No. they "share a common meaning." Id. at 403. 2017AP2217 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. risk" with "substantial probability." County did not dispute that "much more likely than not." It replaced "substantial Id. "substantial In this case, the probability" means 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 Since our decision in State v. Curiel, 227 Wis. 2d 389, 597 N.W.2d 697 (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).. 8 18 No. do serious physical harm." Wis. Stat. 2017AP2217 § 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. Wis. 2d 516, 431 N.W.2d 708 (Ct. App. 1988). 146 In that case, R.J. argued that "them" meant only the individuals threatened. at 521. Id. Under R.J.'s interpretation, there was no "reasonable fear" unless the threatened individual was subjectively aware of the threat. that Id. The court of appeals correctly concluded 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 interpretation of the statute. appeals Id. rejected that narrow Instead, it concluded that the statute was satisfied by "a showing . . . that others are placed actions in a even fearsome if the position person subjective awareness of it." by a placed [mentally in Id. at 523. that ill] position person's has no 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 19 sufficient to satisfy the statute. They dispute only whether Dr. No. 2017AP2217 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. probability See § 51.20(1)(a)2.b. ("Evidences a substantial of physical manifested . . . by harm evidence to other that others individuals are placed as 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 the In his briefing and at oral argument, D.K. argued that County could not prove dangerousness under Wis. Stat. § 51.20(1)(a)2.b. without showing facts supporting an objective, "reasonable fear." did not prove Specifically, D.K. argued that the County 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. and we decline interpretation to would But our agreement ends there, adopt D.K.'s read out 20 interpretation. the first portion His of No. § 51.20(1)(a)2.b. "reasonable fear" Under would D.K.'s be both interpretation, necessary and 2017AP2217 evidence of sufficient to establish "a substantial probability of physical harm." § 51.20(1)(a)2.b. "substantial reasons. Put simply, a "reasonable fear" would equal a probability." First, See the That plain cannot language of be right those for two 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, "substantial probability" in if "reasonable § 51.20(1)(a)2.b. fear" and 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." also Antonin Interpretation Canon"); id. Scalia of at & Bryan Legal 174 Kalal, 271 Wis. 2d 633, ¶46; see A. Texts, ("If Garner, 174-79 possible, Reading (2012) every word Law: The ("Surplusage and every Common sense suggests that "reasonable" is something less than "substantial." Thus, D.K.'s interpretation would likely provide less protection for the mentally ill than the one we adopt today. 9 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 "substantial sufficient probability § 51.20(1)(a)2.b. of alone physical to conclude harm" there under Wis. is a Stat. 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" person or another.10 Id. This reasonable to that same fear must be "evidenced by" a "recent overt act," an "attempt," or a "threat to do serious physical harm." ¶43 Id. 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 or other violent behavior" but that language is not at issue in this case. See Wis. Stat. § 51.20(1)(a)2.b. 10 22 No. D. any 2017AP2217 There Was Clear And Convincing Evidence of Dangerousness. ¶44 At the outset, we note that D.K. does not challenge of the erroneous. circuit Nor court's does D.K. factual challenge findings the as clearly 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 responded, "To other people." or others?" Dr. Dave The clear meaning of Dr. Dave's testimony is that D.K. "presented a substantial risk of danger" "[t]o other people." ¶46 that D.K. Dr. Dave then explained his conclusion. was "paranoid about people around him. He stated 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 responded, "Yes." the persons in the public?" Dr. Dave "He plans on strangulating the police officer and also killing the people who made fun of him." 23 Dr. Dave also No. testified that D.K.'s threats were directly 2017AP2217 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 court's under We conclude that Dr. Dave's testimony and the circuit factual Wis. convincing findings Stat. evidence established § 51.20(1)(a)2.b. that D.K. that D.K. There "[e]vidence[d] was was a dangerous clear and substantial probability of physical harm to other individuals as manifested by . . . evidence that others [were] placed in reasonable fear 24 No. of violent behavior evidenced by and serious a . . . threat to physical do harm serious to 2017AP2217 them, physical as harm." § 51.20(1)(a)2.b. ¶50 D.K. argues that this evidence is negated statements Dr. Dave made during cross-examination. by 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 made statements Dr. Dave "substantial probability." potentially "could dangerous"; be acted"; still and to establish a Dr. Dave stated that D.K.: "could be "can potentially "most failed become potentially dangerous"; possibly . . . might dangerous"; "probably act." Dr. may have Dave also stated, "I don't think I can make [a] difference whether he will act on his thoughts or not." ¶51 would We agree with D.K. that this equivocal testimony alone be at least arguably "substantial probability." the phrases "probably insufficient to establish We will not attempt to discern what may possibly . . . might act" mean. have acted" whole. his testimony and the or "most We need not so attempt because we do not review Dr. Dave's statements in isolation. review a circuit court's Rather, we findings as a As we concluded above, Dr. Dave's testimony on direct- examination established clear and convincing evidence that D.K. was dangerous testimony as under a Wis. whole Stat. supports § 51.20(1)(a)2.b. that conclusion. And Dr. his Dave testified that D.K. presented a substantial risk of danger "to 25 No. other people." 2017AP2217 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. does not require probability." certainty, Wis. Stat. but rather a § 51.20(a)(1)2.b. The statute "substantial Furthermore, we have never required a mental illness expert to be clairvoyant and we decline to do so now. ("The subtleties and See Addington, 441 U.S. at 430 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, 349 Wis. 2d 148, 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. the person Under that section, the county "must prove that 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 understanding medication. substantially of the Id., ¶6. incapable advantages, [and] of applying disadvantages" an of the 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." ¶97. Id., We explained: Medical experts must apply the competency statute. An language to explain his or linked back to the standards the standards set out in expert's use of different her conclusions should be 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. true here. That is not 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 Melanie L., 349 Wis. 2d 148, ¶97. was paranoid and suffered standards in the statute." Dr. Dave testified that D.K.: from delusions; presented a "substantial risk of danger" "to other people"; and "plan[ned] on strangulating the police officer 27 and also killing" other No. people. (Emphasis added.) language, but it does This is not the exact statutory "link § 51.20(1)(a)2.b. (requiring physical to harm 2017AP2217 back" a to it. See "substantial other individuals Wis. Stat. probability as of manifested by . . . evidence that others [were] placed in reasonable fear of violent evidenced behavior by and serious a . . . threat to physical do harm serious to them, physical as 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 November to all happened would in have not the have a circuit been final answer in Had appeal will expired question whether his commitment was appropriate until 2020. things he commitment the D.K.'s and D.K.'s to certain 2017, concerned. court unnecessary. below, The perhaps 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. have made more detailed and Also, the circuit court could thorough clarified its legal conclusions. matter. factual findings and A commitment is no trivial Taking more time at the circuit court can save years of uncertainty on appeal. V. ¶56 because CONCLUSION We conclude that D.K.'s commitment is not a moot issue it still subjects him 28 to a firearms ban. We also 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. By the Thus, we affirm the court of appeals. Court.—The decision affirmed. 29 of the court of appeals is No. ¶57 REBECCA GRASSL BRADLEY, J. 2017AP2217.rgb (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. there was hearing I also agree with the majority's conclusion that clear of and convincing D.K.'s evidence dangerousness § 51.20(1)(a)2.b (2015-16). at the under Majority op., ¶3.1 commitment Wis. Stat. 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. (citations omitted). See id. While the majority recites these seminal principles of statutory interpretation, see majority op., ¶34, it only superficially applies them, opting to discuss past All subsequent references to the Wisconsin Statutes are to the 2015-16 version unless otherwise indicated. 1 1 No. 2017AP2217.rgb precedent rather than conducting a thorough textual analysis. See majority op., ¶¶35-37. ¶59 In order for I begin with the text of § 51.20. a county to involuntarily commit an individual under Wis. Stat. § 51.20, a court must find that the individual is: treatment; and (1) (3) mentally ill; dangerous. (2) a proper subject § 51.20(1)(a)1-2; see for 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 recent individuals homicidal or as other manifested by violent evidence behavior, or of 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. (d) "Evidences behavior manifested by 2017AP2217.rgb 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 3 community or the loss of No. cognitive or volitional control over 2017AP2217.rgb 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 subdivision. court analyzed dangerousness under that 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." 14, 597 N.W.2d 697 State v. Curiel, 227 Wis. 2d 389, 413- (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 In 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. 2 4 No. § 51.20(1)(a)2.b. 2017AP2217.rgb 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." ¶62 The text of subdivision 2.b plainly describes what is Id. 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." predicates suffices to reasonable fear violent harm[.]" and of Any show one that of these others behavior three were and factual "placed serious in physical Establishing a "reasonable fear of violent behavior serious physical "substantial harm" probability individuals[.]" is one of way of physical Establishing a demonstrating harm "substantial to a other probability of physical harm to other individuals" is one way of showing a person is dangerous § 51.20(1)(a)2. The within the analysis is meaning complete. of As Wis. Stat. 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 dangerousness; the statutory standard is met. 5 evidence of No. ¶63 2017AP2217.rgb The majority asserts that "evidence of a 'reasonable fear' is necessary but not automatically sufficient alone to conclude there is a 'substantial harm[.]'" Majority op., ¶41. statute. The legislature probability of physical The majority misunderstands the 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 probability Stat. of that physical a harm § 51.20(1)(a)2.b. defined, with some person to In "evidences other other substantial individuals[.]" words, particularity, a the what Wis. legislature 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 equates Puzzlingly, the majority believes this interpretation "reasonable fear" and "substantial probability" along with the dissent, invokes the surplusage canon. the majority duplication. nor the dissent explain their and, Neither accusations of 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' 'substantial always[.]" may, and perhaps probability[]' often will, establish [b]ut . . . not Majority op., ¶41. a necessarily 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. II ¶65 hearing D.K. argues that Dr. Dave's testimony at the final was insufficient dangerousness repeatedly under used to meet subdivision phrases such the 2.b. as legal standard Because "could Dr. be of Dave 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 on Both D.K. and the dissent would impose an obligation medical experts to use particular 7 statutory terms in No. expressing their opinions.3 2017AP2217.rgb 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, 227 Wis. 2d 650, 654, 669-70, 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 omitted)). with to "incant magic words" (quoted source The dissent asserts that "risk" is not synonymous "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. ¶67 See dissent, ¶¶79, 81, 83, 84. 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 WI 67, 349 Wis. 2d 148, 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. 3 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 dissent's conclusion, this distinction is not dispositive. the The dissent erroneously conflates the role of the court and the role of the medical expert in commitment cases. expert testifies to the facts, the While the medical circuit independent legal judgment as to whether court makes the facts an 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 Cty. v. Christopher S., 2016 WI 1, ¶50, 366 Cf. Winnebago Wis. 2d 1, 878 N.W.2d 109 (discussing how courts must apply facts to the legal statutory standard). Because 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 4 No. ¶69 Due to the significant deprivation 2017AP2217.rgb 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 convincingly case court's clearly and determination that D.K. was supported dangerous the based circuit 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." this finding as clearly erroneous. D.K. does not challenge 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 found: illness D.K. dangerous under subdivision 2.b, it also (1) D.K. had homicidal thoughts; (2) D.K. has a mental that causes delusional disorders; and (3) delusions affected D.K.'s ability to recognize reality. uncontroverted evidence demonstrated that D.K.: introduced during the hearing D.K.'s The also (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 commitment. firearm prohibition survives expiration of the 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 the finding that D.K. "made threats department[,]" is not clearly erroneous. to police 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[.]" of the tests for That showing, in turn, satisfies one dangerousness 11 under § 51.20(1)(a)2——"a No. substantial probability individuals[.]" Because of physical the majority's 2017AP2217.rgb harm analysis to other 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. ¶75 REBECCA FRANK DALLET, J. 2017AP2217.rfd (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, 349 Wis. 2d 148, 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. 441 U.S. 418, an intermediate 432-33 standard Addington v. Texas, (1979). "This Court of proof——'clear has and mandated convincing evidence'——when the individual interests at stake in a state proceeding are both 'particularly important' substantial than mere loss of money.'" and Santosky v. Kramer, 455 U.S. 745, 756 (1982) (quoting Addington, 441 U.S. at 424). 1 'more ¶77 To commit an individual pursuant No. 2017AP2217.rfd 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 direct The majority relies solely on Dr. Dave's testimony on examination1 to support its conclusion that D.K. "[e]vidences a substantial probability of physical harm to other 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. 1 2 No. individuals."2 2017AP2217.rfd Dr. Dave was asked the following question on direct examination regarding the likelihood of D.K.'s current dangerousness: able to form "Based on your interview of [D.K.], were you an opinion as presented a substantial risk others?" ¶80 Dr. Dave answered: The majority to whether or not [D.K.] had of danger to either himself or "To other people." 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 are scant, they are not clearly erroneous. See Outagamie Cty. v. Melanie L., 2013 WI 67, ¶38, 349 Wis. 2d 148, 833 N.W.2d 607 ("We will not disturb a circuit court's factual findings unless they are clearly erroneous."). 2 3 No. dangerous in accordance with the 2017AP2217.rfd statutory mandate of "substantial probability." ¶81 Dave's But even if, like the majority, I only consider Dr. testimony insufficient to on direct support examination, a finding the that record D.K. is still evidences a "substantial probability of physical harm to other individuals." The majority examination says the testimony "clear "is meaning" that D.K. risk of danger' '[t]o other people.'" of Dr. 'presented looks similar § 51.20(1)(a)2.b.: to the a direct substantial Majority op., ¶45. what exactly is "a substantial risk of danger"? it Dave's language But At first blush, of Wis. Stat. "substantial probability of physical harm." However, a deeper look reveals important distinctions. ¶82 amended As Wis. noted by Stat. the majority § 51.20 in 1977 opinion, to the replace legislature "'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 synonymous." a view that 'probability' and 'risk' were State v. Curiel, 227 Wis. 2d 389, 410, 597 N.W.2d 697 (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. at 404. The Merriam Webster Dictionary defines "risk" as a "possibility of loss or injury." Dictionary risk Curiel, 227 Wis. 2d (2020), (emphasis https://www.merriam-webster.com/dictionary/ added). something that Webster Online "Risk," Merriam Webster Online may or "Possible" may not Dictionary webster.com/dictionary/possible. is defined as "being occur." "Possible," Merriam (2020), https://www.merriam- 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" 5 to a medical expert's No. testimony that it plaintiff's injury. was possible the 2017AP2217.rfd accident caused the 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. Id. 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., 349 Wis. 2d 148. 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 advantages, disadvantages and alternatives" of medication. ¶96. We emphasized that standards set out in the expert's use conclusions statute." of should different be "[m]edical experts must apply the Id., the competency statute" and that "[a]n language linked back to to Id., ¶97 (emphasis added). explain the his or her standards in the 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 speculate upon [the doctor's] meaning." did not Id., ¶91. have to 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 the Here, as in Melanie L., Dr. Dave did not testify to standards set forth in the competency statute and corporation counsel failed to clarify the testimony or introduce his report into evidence.3 Melanie L. substance exactly." majority by of claiming the The majority attempts to distinguish that Dr. standard; he Majority op., ¶54. opinion identified substance of the standard. Dave merely "did not failed misstate to recite the it Dr. Dave did exactly what the as improper: he misstated the 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 The 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."). 3 7 No. law. Attention to detail is important." 2017AP2217.rfd Melanie L., 349 Wis. 2d 148, ¶94. ¶87 that the Since the County's record only before witness the did circuit not court render reflects 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., 349 Wis. 2d 148, I would reverse and vacate the circuit court's order. ¶88 For the foregoing reasons, I respectfully dissent. ¶89 I am authorized to state BRADLEY joins this dissent. 8 that Justice ANN WALSH No. 1 2017AP2217.rfd
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